Rajasthan High Court - Jodhpur
Narendra Kumar Khodaniya vs State Of Rajasthan (2024:Rj-Jd:39418) on 23 September, 2024
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2024:RJ-JD:39418]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 15215/2024
Narendra Kumar Khodaniya S/o Shri Ratanlal Khodaniya, Aged
About 66 Years, Resident Of Ward No. 23, Sanghvi Ji Ki Pol, Upla
Chowk, Sagwara, District Dungarpur.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Director Cum Joint
Secretary, Local Self Department, Secretariat, Jaipur.
2. The Assistant Director (Vigilance), Local Self Department,
Secretariat, Jaipur
3. The Deputy Director (Zonal), Local Self Department,
Udaipur.
----Respondents
For Petitioner(s) : Mr. Vikas Balia, Sr. Advocate assisted
by Mr. Vishan Das
For Respondent(s) : Mr. Rajesh Panwar, Sr. Advocate-cum-
AAG assisted by Mr. Ayush Gehlot
Mr. Monal Chug
Ms. Meenal Singhvi
JUSTICE DINESH MEHTA
Order
Reportable 23/09/2024
1. The petitioner, elected as Chairman of Municipal Board,
Sagwara in the year 2021, has challenged the action of the
respondents, more particularly, the order dated 05.06.2024
whereby the respondent No.3 has constituted a committee to
inquire.
2. The facts germane are that on the basis of the complaint
filed by one Shankarlal Decha, alleging that old building has been
illegally demolished, an inquiry was conducted by the respondent
[2024:RJ-JD:39418] (2 of 10) [CW-15215/2024]
No.2-Assistant Director (Vigilance) and by way of U.O. Note dated
23.08.2022, the same was dropped.
3. Another complaint is made in which it was alleged that the
Members of Municipal Board have committed various irregularities.
Acting upon said complaint, the respondent No.2-Assistant
Director (Vigilance) asked the respondent No.3-Deputy Director
(Regional), Udaipur to inquire into the matter and furnish a report
within a period of seven days.
4. The respondent No.3-Deputy Director in turn constituted a
committee of 4 persons by his order dated 05.06.2024, and asked
them to look into the complaint and furnish report within 3 days.
5. The committee sent its report vide letter dated 23.08.2024
to the respondent No.3-Deputy Director, who in turn not only
forwarded the same but also sent a memorandum of charges and
Articles of charges to the respondent No.2.
6. On receiving the report so sent by the respondent No.3, the
Director-cum-Joint Secretary, Local Self Department sent a show
cause notice dated 05.09.2024 to the petitioner and sought his
explanation about the findings in the report.
7. Impugning the notice dated 05.09.2024, Mr. Vikas Balia,
learned Senior Counsel firstly contended that the proceedings
against the petitioner are malafide inasmuch as the State has
proceeded on the basis of very same allegation for which a similar
complaint after being found incorrect was dropped by way of U.O.
Note dated 23.08.2022.
8. The basic plank for challenging the notice/proceedings in
question has been that since the inquiry was ordered by
respondent No.2-Assistant Director (Vigilance) to be conducted by
[2024:RJ-JD:39418] (3 of 10) [CW-15215/2024]
the respondent No.3-Deputy Director, he could not have further
delegated his power to conduct inquiry and constitute a committee
of four persons. It was vehemently argued that constitution of
committee by order dated 05.06.2024 was impermissible in the
eye of law.
9. While relying upon the maxim-Delegatus Non Potest
Delegare, learned Senior Counsel argued that the inquiry as
required by the State Government was to be conducted by none
other than the respondent No.3 himself and therefore, not only
the inquiry report prepared by the committee and forwarded by
the respondent No.3 by the communication dated 28.08.2024 but
also action of the State taken in furtherance thereof (notice dated
05.09.2024), is illegal and contrary to law.
10. Learned Senior Counsel argued that there is only one inquiry
provided under sub-section (1) of section 39 of Rajasthan
Municipalities Act, 2009 (hereinafter referred to as the 'Act of
2009'), which is to be conducted by the State Government and
thus, inquiry conducted by the committee constituted by the
respondent No.3-Deputy Director is illegal and contrary to law. He
argued that the inquiry report sent with the communication dated
28.08.2024 cannot be relied upon as the same was without
authority of law.
11. In support of this argument, learned Senior Counsel relied
upon the judgment dated 21.01.2022 passed by this Court in the
case of Manzoor Ali vs. State of Rajasthan and Ors. in S.B.
Civil Writ Petition No.17283/2021 and prayed that the present
writ petition be allowed and notice dated 05.09.2024 based on an
illegal report be quashed.
[2024:RJ-JD:39418] (4 of 10) [CW-15215/2024]
12. Mr. Rajesh Panwar, learned Senior Counsel-cum-Additional
Advocate General on the other hand submitted that what was
directed by the Assistant Director (Vigilance) vide communication
dated 08.02.2024, was not an inquiry contemplated under sub-
section (1) of section 39 of the Act of 2009 but the same was only
a fact finding exercise that has been undertaken by the State
Government, before proceeding against the petitioner.
13. He argued that since it was only a fact finding exercise, the
action of constituting a committee of four persons cannot be
faulted with as the same was done for ascertaining the facts, as
elicited by the State Government. He made a categorical
statement that the preliminary inquiry as contemplated in sub-
section(1) of section 39 of the Act of 2009 has been initiated now,
by the notice dated 05.09.2024. He added that the same is being
conducted by the competent authority and before that any inquiry
got done by the State cannot be termed as inquiry.
14. He read the communication dated 08.02.2024 (Annexure-6)
so also the notice dated 05.09.2024 (Annexure-9) and argued that
not only the subject even the tenor of the notice dated
05.09.2024 makes it abundantly clear that the inquiry under
section 39(1) of the Act of 2009 has been initiated by such notice
and not by the earlier notice dated 08.02.2024 which was sent by
the respondent No.3.
15. He argued that there is nothing illegal or contrary to law on
the part of the State Government or respondent No.3. He
submitted that if the State thought it proper to first ascertain the
facts of the complaint, no illegality can be alleged. He argued that
[2024:RJ-JD:39418] (5 of 10) [CW-15215/2024]
no prejudice has been caused to the petitioner by the fact finding
exercise.
16. Learned Additional Advocate General submitted that sub-
section (1) contemplates preliminary inquiry by the State or its
delegatee so that action as required under sub-section (1) or sub-
section (3) of section 39 of the Act of 2009 can be initiated.
17. He argued that the case of the petitioner cannot be equated
by the case of Manzoor Ali (S.B. Civil Writ Petition
No.17283/2021). Manzoor Ali's case was under sub-section(3) of
section 39 the Act of 2009, which separately provides an inquiry
under sub-section (1) of section 39 of the Act of 2009 whereas,
the proceedings in the present case are under section 39(1) of the
Act of 2009. He argued that since there is a clear distinction in the
facts of both the cases, the inquiry done by the committee
constituted by the respondent No.3-Deputy Director, being the fact
finding exercise, cannot be alleged to be illegal.
18. Heard learned counsel for the parties.
19. Before dilating upon the submissions made by rival counsel,
it would be apposite to go through the provisions contained in
sub-section (1) and (3) of section 39 of the Act of 2009, which are
reproduced hereinfra:-
"Removal of member. - (1) The State
Government may, subject to the provisions of
sub-Sections (3) and (4), remove a member of a
Municipality on any of the following grounds,
namely: -
(a) that he has absented himself for more than
three consecutive general meetings, without
leave of the Municipality:
Provided that the period during which such
member was a jail as an under trial prisoner or
as a detenue or as a political prisoner shall not
be taken into account,
[2024:RJ-JD:39418] (6 of 10) [CW-15215/2024]
(b) that he has failed to comply with the
provisions of Section 37,
(c) that after his election he has incurred any of
the disqualification mentioned in Section 14 or
Section 24 or has ceased to fulfil the
requirements of Section 21,
(d) that he has
(i) deliberately neglected or avoided
performance of his duties as a member, or
(ii) been guilty of misconduct in the discharge of
his duties, or
(iii) been guilty of any disgraceful conduct, or
(iv) become incapable of performing his duties
as a member, or
(v) been disqualified for being chosen as
member under the provisions of this Act, or
(vi) otherwise abused in any manner his position
as such member:
Provided that an order of removal shall be
passed by the State Government after such
inquiry as it considers necessary to make either
itself or through such existing or retired officer
not below the rank of State level services or
authority as it may direct and after the member
concerned has been afforded an opportunity of
explanation.
(2) ... ... ...
(3) Notwithstanding anything contained in sub-
Section (1) where it is proposed to remove a
member on any of the grounds specified in
clause (c) or clause (d) of sub-Section (1), as a
result of the inquiry referred to in the proviso to
that sub-Section and after hearing the
explanation of the member concerned, the State
Government shall draw up a statement setting
out distinctly the charge against the member
and shall send the same for enquiry and findings
by Judicial Officer of the rank of a District Judge
to be appointed by the State Government for the
purpose.
(4) ... ... ...
(5) ... ... ...
(6) ... ... ...
(7) ... ... ..."
20. On a first flush, Mr. Balia's argument sounds attractive, as
the facts involved in the present case vis-a-vis facts involved in
the case of Manzoor Ali (supra), appear to be identical, but upon
[2024:RJ-JD:39418] (7 of 10) [CW-15215/2024]
careful appraisal of the facts of the case of Manzoor Ali, vis-a-vis
the facts of the extant case, this Court finds that there is subtle
yet significant difference.
21. The case of Manzoor Ali (supra), was a case of sub-section
(3) of section 39 of the Act of 2009 and the inquiry in question in
clear terms was mentioned as 'preliminary inquiry' and it was not
the stand of the State Government that another inquiry as
contemplated under section 39(1) of the Act of 2009 will be
undertaken, as is the position in the instant case.
22. True it is, that similar argument was advanced by the
learned Additional Advocate General in the case of Manzoor Ali
(supra) that it is only a fact finding inquiry, as has been advanced
in the present case, but contra-distinguished from the Manzoor
Ali's case, in the present case on 05.09.2024, the State
Government has issued a notice under section 39 (1) of the Act of
2009. Moreso, not only the subject even the substance of the
notice makes it clear that the statutory inquiry has commenced
from 05.09.2024.
23. A careful reading of the judgment in the case of Manzoor Ali
shows that a notice dated 08.12.2021 was under challenge
therein, which was issued under section 39(3) of the Act of 2009
and the said notice was issued by the Director asking the
petitioner as to why judicial inquiry be not conducted against him
and prior to seeking such explanation he had directed the District
Collector to conduct inquiry, who in turn had sent it to the
Commissioner, Municipal Corporation who in turn appointed one
Deputy Commissioner to be an inquiry officer and straightway on
the basis of report sent by said Deputy Commissioner, the Director
[2024:RJ-JD:39418] (8 of 10) [CW-15215/2024]
in that case had asked as to why case be not referred to judicial
inquiry. As against this, in the instant case the Director has issued
notice dated 05.09.2024 for the first time, eliciting petitioner's
response during holding an inquiry - it is a notice under section
39(1) of the Act of 2009, during the process of inquiry.
24. According to this Court, in the present day scenario, when a
host of complaints are being filed against elected representatives,
State cannot be expected to straightaway launch an inquiry under
section 39(1) of the Act of 2009 and engage its officers for
conducting the inquiry without first ascertaining the facts. In order
to avert unnecessary exercise and to ward off frivolous
complaints, if the State Government has got done a fact finding
exercise through the respondent No.3-Deputy Director, it cannot
be said that the same is void or without authority of law.
25. As such exercise is for ascertainment of facts, this Court
does not find any infirmity, if the respondent No.3-Deputy Director
constituted a committee and assigned or delegated the task of
looking into the allegations levelled in the complaint.
26. Most important aspect of the matter is, that the respondent
No.3 was not undertaking any statutory inquiry as contemplated
under sub-section (1) of section 39 of the Act of 2009, and the
communication dated 08.02.2024 was meant to assimilate facts.
27. The principle 'delegatus not potest delegare' cannot be
applied to administrative actions or ministerial acts. This principle
applies to statutory judicial and quasi-judicial functions. If the
statute confers a power or delegates upon an authority a duty to
perform certain act, such authority cannot ask someone else or
delegate such power to another person, is the underlying
[2024:RJ-JD:39418] (9 of 10) [CW-15215/2024]
principle. In absence of the inquiry being a statutory inquiry under
sub-section (1) of section 39 of the Act of 2009, the fact that the
job of inquiry has further been delegated and that the report of
such delegatee has been sent by respondent No.3-Deputy Director
by communication dated 28.08.2024, and acted upon, the process
cannot be held to be vitiated.
28. This Court is of the considered view that practical necessity
or exigency of the administration requires that the decision
making authority who has been conferred with statutory power, be
able to ascertain the foundational facts first, before initiating the
actual proceedings or inquiry. Such exercise would as a matter of
fact, avoid unnecessary harassment to none other than the
elected representatives. Delegation to some extent becomes
inevitable and an administrative necessity.
29. There is yet another aspect of the matter - by way of the
communication dated 08.02.2024, the respondent No.2 (the
Assistant Director) had asked the respondent No.3 (the Deputy
Director), who is higher in the official hierarchy, hence, it cannot
be said that the respondent No.2 had delegated his power to
respondent No.3.
30. In the facts of the case in hands it cannot be said that there
is an abdication of power by the State Government, when the
inquiry has been initiated by the notice dated 05.09.2024, issued
by the Director-cum-Joint Secretary of the Government.
31. As a consequence of the foregoing discussion, the present
writ petition is dismissed.
32. Needless to observe that the petitioner shall be free to put
forth his defense qua all the allegations levelled against him,
[2024:RJ-JD:39418] (10 of 10) [CW-15215/2024]
before the competent authority by filing a reply, including
contention that similar inquiry was dropped vide U.O. Note dated
23.08.2022.
33. In case the petitioner files his reply/response to the notice
dated 05.09.2024, within a period of 15 days from today, the
Director-cum-Joint Secretary shall consider the same in
accordance with law, before passing any final order.
34. Stay application also stands dismissed accordingly.
(DINESH MEHTA),J
465-raksha/-
Powered by TCPDF (www.tcpdf.org)
