Rajasthan High Court - Jodhpur
Monika vs State Of Rajasthan on 12 March, 2025
Author: Nupur Bhati
Bench: Nupur Bhati
[2025:RJ-JD:11223]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 13740/2024
Monika W/o Shri Omprakash, Aged About 39 Years, Resident Of
Ward No. 29, Nohar, District Hanumangarh.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Local Self
Department, Jaipur.
2. The Director Cum Joint Secretary, Directorate, Local Self
Department, Jaipur.
3. The Deputy Director (Administration), Local Self
Department, Jaipur.
----Respondents
Connected With
S.B. Civil Writ Petition No. 2420/2024
Monika W/o Shri Omprakash, Aged About 39 Years, Resident Of
Ward No. - 29, Nohar, District-Hanumangarh.
----Petitioner
Versus
1. State Of Rajasthan, Through The Director Cum Special
Secretary, Directorate, Local Self Department, Jaipur.
2. The District Collector, Hanumangarh.
3. The Sub-Divisional Officer, Nohar, District- Hanumangarh.
----Respondents
S.B. Civil Writ Petition No. 10455/2024
Monika W/o Shri Omprakash, Aged About 39 Years, Resident Of
Ward No. - 29, Nohar, District - Hanumangarh.
----Petitioner
Versus
1. State Of Rajasthan, Through The Director Cum Joint
Secretary, Directorate, Local Self Department, Jaipur.
2. The Deputy Director (Regional), Local Self Department,
Bikaner.
3. The District Collector, Hanumangarh.
----Respondents
For Petitioner(s) : Mr. Sunil Purohit
Mr. Ankur Mathur
For Respondent(s) : Mr. Rajesh Panwar, Sr. Advocate and
AAG assisted by Mr. Monal Chugh
Mr. Moti Singh
(Downloaded on 19/03/2025 at 09:20:35 PM)
[2025:RJ-JD:11223] (2 of 24) [CW-13740/2024]
HON'BLE DR. JUSTICE NUPUR BHATI
JUDGMENT
Reserved on 25/02/2025
Pronounced on 12/03/2025
1. The instant writ petitions have been filed by the petitioner
under Article 226 of the Constitution of India. The S.B.C.W.P.
No.13740/2024 has been filed challenging the order dated
13.08.2024 (Annex.15) whereby the petitioner has been placed
under suspension. The S.B.C.W.P. No.2420/2024 has been filed
challenging order dated 06.02.2024 (Annex.3) whereby an
enquiry was initiated against the petitioner. The S.B.C.W.P.
No.10455/2024 has been filed challenging the order dated
21.06.2024 (Annex.11) whereby a show cause notice has been
issued against the petitioner seeking explanation from the
petitioner for the charges framed against her. As common question
of law and facts are involved in these writ petitions, the same are
being decided by this common order and the facts of S.B.C.W.P.
No.13740/2024 are being taken illustratively.
2. Briefly stated the facts of the case are that the petitioner
was elected as councilor in the year 2021 and subsequently was
elected as Chairperson of the Municipal Board, Nohar. During her
tenure as Chairperson, a complaint dated 25.01.2024 (Annex.1)
was filed by Mr. Dinesh Singh Bhati against the petitioner before
the Director-cum-Joint Secretary, Directorate, Local Self
Department, Jaipur (Respondent No.2) requesting her suspension
on the basis of FIR Nos.479/2023 and 440/2023 filed against her.
Subsequently, the respondent no.2, on instructions of Hon'ble
Minister, Urban Development and Local Self Government
[2025:RJ-JD:11223] (3 of 24) [CW-13740/2024]
Department (Independent Charge), Government of Rajasthan,
appointed District Collector, Hanumangarh vide order dated
06.02.2024 (Annex.3) for enquiring the allegations levelled
against her in the complaint (Annex.1). The Additional District
Collector, Nohar submitted the report dated 09.02.2024 (Annex.4)
wherein, the finding was given that FIRs have been falsely lodged
against the petitioner and no offence has been found to be
committed by the petitioner. Subsequently, the Additional District
Collector, Nohar vide order dated 13.02.2024 (Annex.5) directed
Sub-Divisional Officer, Nohar to make enquiry in the same matter.
Thus, aggrieved by the order dated 06.02.2024 (Annex.3) the
petitioner filed S.B.C.W.P. No.2420/2024 before this court.
Subsequently, a show-cause notice dated 23.02.2024 (Annex.7)
under Section 39 (1) of the Rajasthan Municipalities Act, 2009
(hereinaftere as 'the Act') was issued to the petitioner seeking
explanation on the charges as framed against her therein. On
26.02.2024 the petitioner filed an additional affidavit highlighting
the subsequent development in the matter and this court vide
interim order dated 26.02.2024 (Annex.8) restrained the
respondents from passing any order placing the petitioner under
suspension. In the meanwhile the petitioner filed the reply dated
26.02.2024 (Annex.9) to the show-cause notice dated 23.02.2024
(Annex.7) denying the charges as framed thereunder.
2.1. Subsequently, Mr. Gurusevak Singh Dhariwal filed the
complaint dated 08.03.2024 (Annex.10) before the Hon'ble Chief
Minister, Government of Rajasthan alleging inter-alia the illegality
on the part of the petitioner in issuance of patta. Thereafter, the
respondent no.2 issued show-cause notice dated 21.06.2024
[2025:RJ-JD:11223] (4 of 24) [CW-13740/2024]
(Annex.11) under Section 39 (1) of the Act to the petitioner
seeking explanation on the charges as framed against her
thereunder. Aggrived by the show-cause notice dated 21.06.2024
(Annex.11), the petitioner filed S.B.CWP No.10455/2024 before
this court. In the meanwhile the petitioner filed reply (Annex.13)
to the show-cause notice dated 21.06.2024 (Annex.11) denying
the charges as framed thereunder.
2.2. Thereafter, the respondents, after considering the reply
(Annex.11) of the petitioner and the enquiry report dated
12.06.2024 (Annex.R/1), vide order dated 13.08.2024 (Annex.15)
placed the petitioner under suspension under Section 39 (6) of the
Act and also initiated judicial enquiry against her under Section 39
(3) of the Act. Aggrieved by the order dated 13.08.2024
(Annex.15), the petitioner has filed S.B.CWP No.13740/2024
before this court.
S.B.CWP No.2420/2024:-
3. The instant writ petition has been filed seeking following
relief:
"i) By an appropriate writ, order or direction, the impugned
order dated 06.02.2024 (Annexure-3) passed by the
respondent authorities may kindly be declared illegal and
be quashed and set aside.
ii) By an appropriate writ, order or direction, the
respondent authorities may kindly be directed to drop the
entire proceedings initiated against the petitioner on the
basis of so-called complaint dated 25.01.2024 (Annexure-
2).
iii) Any other appropriate order or direction which this
Hon'ble Court may deem fit just and proper in the facts and
circumstances of the case may kindly be passed in favour of
the petitioner.
iv) Costs of the writ petition may kindly be awarded to the
petitioner."
[2025:RJ-JD:11223] (5 of 24) [CW-13740/2024]
4. Learned counsel for the petitioner submitted that impugned
order dated 06.02.2024 (Annex.3) has been issued on the
instance of Hon'ble Minister, Urban Development and Local Self
Government Department (Independent Charge), Government of
Rajasthan. He also submitted that the complaint dated 25.01.2024
(Annex.1) was filed on the basis of the FIR Nos.479/2023 and
440/2023 lodged against the petitioner however, in both these
FIRs negative final reports have been submitted, hence there was
no need to conduct enquiry against the petitioner. He also
submitted that in the enquiry report dated 09.02.2024 (Annex.4)
it is categorically mentioned by the Additional District Collector,
Nohar that these FIRs have been falsely lodged against the
petitioner and no offence has been committed by the petitioner.
5. Learned counsel for the petitioner further submitted that
vide order dated 06.02.2024 (Annex.3) the District Collector,
Nohar was appointed as enquiry officer, however, he has further
delegated the task of conducting enquiry to Additional District
Collector, Nohar and Sub-Divisional Officer, Nohar, which is not
permissible in law.
6. Learned AAG made a submission that he has instruction not
to oppose S.B.CWP No.2420/2024.
7. Heard the counsel for the parties.
8. Upon perusal of the enquiry report dated 09.02.2024
(Annex.-4), it is reflected that as per the final report for FIR
No.0479/2023 dated 11.10.2023, after completion of the
investigation, it was found that neither the petitioner has
fabricated any evidence nor has she made any false declaration by
way of furnishing any false affidavit. The complaint lodged by the
[2025:RJ-JD:11223] (6 of 24) [CW-13740/2024]
complainant, Mr. Fariyad Mohammad, was found to be a result of
personal vendetta against the petitioner, who was holding the post
of Chairman, Municipal Board, Nohar, and was found to be false.
Further, for the other FIR bearing No.0440/2023 dated
20.09.2023, the investigation did not reveal that the accused Shiv
Bhagwan and others, had committed any fraud by way of forgery
and thus, no offences under Sections 420, 467, 471, 487, 193 and
198 of the Indian Penal Code, were found to be committed. Thus,
it was observed in the enquiry report that in pursuance to both the
FIRs Negative Final Report was chalked out after completion of
investigation, therefore, it was concluded in the enquiry report
dated 09.02.2024 (Annex.-4), that the petitioner has not
committed any offence as alleged in both the aforesaid FIRs.
9. Thus, taking into consideration the fact that after thorough
investigation, it was concluded that the petitioner is not found
guilty of any offence coupled with the fact that the learned AAG
does not want to oppose the instant writ petition, the
Communication dated 06.02.2024 (Annex.-3), is quashed and set
aside qua the allegations levelled against the petitioner in
Complaint dated 25.01.2024 (Annex.-1) only.
10. Accordingly, the instant writ petition is allowed in the aforesaid
terms. Pending application (s), if any shall also stand disposed of.
S.B.CWP No.10455/2024:
11. The instant writ petition has been filed seeking following
relief:
"i) By an appropriate writ, order or direction, the impugned
show cause notice dated 21.06.2024 (Annexure-11), issued
by the respondent No. 1 may kindly be declared illegal and
be quashed and set aside.
[2025:RJ-JD:11223] (7 of 24) [CW-13740/2024]
ii) Any other appropriate order or direction which this
Hon'ble Court may deem fit just and proper in the facts and
circumstances of the case may kindly be passed in favour of
the petitioner.
iii) Costs of the writ petition may kindly be awarded to the
petitioner."
12. Learned counsel for the petitioner submitted that the instant
writ petition was filed challenging the show-cause notice dated
21.06.2024 (Annex.11), however, in pursuance to the said show-
cause notice, the petitioner has been placed under suspension
vide order dated 13.08.2024 (Annex.15), thus, as such the instant
writ petition has become infructuous.
13. Therefore, the instant writ petition, having become
infructuous, is dismissed.
S.B.CWP No.13740/2024:
14. The instant writ petition has been filed seeking following
relief:
"i) By an appropriate writ, order or direction, the Impugned
suspension order dated 13.08.2024 (Annexure-15), passed
by the respondent No. 2 may kindly be declared illegal and
be quashed
and set aside.
ii) Any other appropriate order or direction which this
Hon'ble Court may deem fit just and proper in the facts and
circumstances
of the case may kindly be passed in favour of the petitioner.
iii) Costs of the writ petition may kindly be awarded to the
petitioner."
15. Learned counsel appearing for the caveator - Mr. Gurusevak
Singh (hereinafter as the 'applicant') submitted that applicant has
filed application under Article 226 read with Order I Rule 10 for
impleadment as party respondent in the instant writ petition. He
submitted that the petitioner has illegaly issued patta dated
06.09.2023 to her husband for the land which belongs to the
[2025:RJ-JD:11223] (8 of 24) [CW-13740/2024]
family of the applicant, and he filed the complaint dated
08.03.2024 (Annex.10) against the petitioner in pursuance of
which the enquiry was initiated and ultimately suspension order
(Annex.15) was passed. He, thus, submitted that the applicant is
a necessary party and should be impleaded in the instant writ
petition.
16. Learned counsel for the petitioner submitted that the
applicant is not a necessary party as the instant writ petition has
been filed challenging the suspension order dated 13.08.2024
(Annex.15) which has nothing to do with the applicant.
17. Learned counsel for the petitioner, while drawing attention of
this court to note sheet dated 05.02.2024 (Annex.2), submitted
that the suspension order dated 13.08.2024 (Annex.15) has been
passed due to political rivalry as the Hon'ble Minister, Urban
Development and Local Self Government Department
(Independent Charge), Government of Rajasthan has directed to
initiate enquiry and proceedings for suspension of petitioner.
18. Learned counsel for the petitioner also submitted that the
respondents issued show-cause notice dated 21.06.2024
(Annex.11) in order to thwart the interim order dated 26.02.2024
(Annex.8) passed by this court in S.B.CWP No.2420/2024,
whereby the respondents were restrained from passing any order
placing the petitioner under suspension. He also submitted that all
the charges in show-cause notice dated 21.06.2024 (Annex.11)
are similar to the earlier show-cause notice dated 23.02.2024
(Annex.7). He also submitted that the impugned suspension order
dated 13.08.2024 (Annex.15) has been passed thwarting the
[2025:RJ-JD:11223] (9 of 24) [CW-13740/2024]
interim order dated 26.02.2024 (Annex.8) passed by this court in
S.B.CWP No.2420/2024.
19. Learned counsel for the petitioner submitted that petitioner
has been erroneously placed under suspension on the ground that
petitioner has illegally issued the patta dated 06.09.2023
(Annex.14 colly) to her husband for plot no.186 in khasra no.40 of
the approved scheme whereas no such plot no.186 exists in the
map of approved scheme of Khasra no.40 and the same exists in
Khasra no.41/1. He submitted that this was a bona fide clerical
mistake which has been admitted by the junior engineer in his
reply dated 19.11.2024 (Annex.19) to the show-cause notice
issued to him. He also submitted that even otherwise the
petitioner being chairman was not supposed to doubt the site
report presented by the junior engineer in note sheet (Annex.14)
of Municipal Board, Nohar wherein plot no.186 was stated to be in
Khasra no.40 of the approved scheme. He also submitted, while
drawing attention of this court to note sheet (Annex.14 colly), that
the petitioner has only written in the note sheet that 'proceed in
accordance with law' hence, the petitioner has not influenced
anyone in any way to issue patta (Annex.14 Colly.) in favour of
her husband. For this submission the learned counsel for the
petitioner has placed reliance on an interim order dated
06.01.2025 passed by a coordinate bench of this court in Gautam
Tak v. State of Rajasthan [S.B.CWP No.14844/2024].
20. Learned counsel for the petitioner also submitted that the
patta dated 06.09.2023 (Annex.14 Colly) has signatures of other
officers as well however, only the petitioner has been suspended
whereas no proceeding has been undertaken against these officers
[2025:RJ-JD:11223] (10 of 24) [CW-13740/2024]
which shows that the respondents are intentionally targeting the
petitioner to please the Hon'ble Minister.
21. Per contra, learned AAG has submitted that the impugned
suspension order dated 13.08.2024 (Annex.15) has been passed
pursuant to a different complaint dated 08.03.2024 (Annex.10)
and on a completely different set of facts hence, the respondents
have not taken any action in contravention of the interim order
dated 26.02.2024 (Annex.8) passed by this court in S.B.CWP
No.2420/2024.
22. Learned AAG has also submitted that the interim order dated
06.01.2025 passed by the coordinate bench of this court in
Gautam Tak (Supra) has no relevance in the present case for
the reason that in the present case the petitioner has conferred
undue benefit upon her husband by issuing patta on 06.09.2023
(Annex.14 Colly.). He also submitted that the duties of the
chairman as provided under the Act cannot be neglected. He also
submitted that the submission of the counsel for the petitioner
that only the petitioner is being targeted and no proceedings have
been undertaken against the other officers is based on wrong facts
as the appropriate proceedings have already been initiated against
all the concerned persons.
23. Learned AAG, while placing reliance upon the judgment
passed by a co-ordinate bench of this court in Nirmal Kumar
Pitaliya v. State of Rajasthan [S.B.CWP No.17285/2021
decided on 01.02.2022], has submitted that the competent
authority after applying its mind and after following due process of
law has arrived at the conclusion that it is a fit case to place the
petitioner under suspension by invoking discretionary power under
[2025:RJ-JD:11223] (11 of 24) [CW-13740/2024]
Section 39 (6) of the Act hence, no occasion arises for this court
to interfere in the matter. He also submitted that it clearly appears
from the facts and circumstances of the instant case that the
petitioner has conferred undue benefit on her husband by issuing
the patta (Annex.8) while ignoring her statutory duties and
functions under Section 48 of the Act. He has also placed reliance
upon a judgment passed by a co-ordinate bench of this court in
Manish Mohan v. State of Rajasthan and Ors. [S.B.CWP
No.6789/2023, decided on 24.05.2023].
24. Learned AAG has also submitted that the note sheet
pertaining to patta (Annex.14 colly.) does not bear the signature
of executive officer after the note which reads as: 'दै निक समाचार-पत्र
में आपत्ति सूचना का प्रकाशन करावें ।'. He also submitted, while drawing
attention of this court to the 'Notice inviting Public Objection'
dated 31.07.2023 (Annex.14 Colly.) with respect to the issuance
of patta (Annex.8), that the column which refers to the 'Plot no.'
has been left blank. He also submitted that the agreement dated
06.05.2022 (Annex.14 Colly.) between the husband and father-in-
law of the petitioner does not confer any right upon the husband
of the petitioner and also the same does not contain any
particulars of the Khasra number of the estate mentioned therein.
He submitted that these documents prima facie show the
irregularity and illegality committed by the petitioner while
issuance of the patta dated 06.09.2023 (Annex.14 Colly.) to her
husband.
25. In rebuttal the learned counsel for the petitioner has
submitted that the learned AAG is arguing beyond the enquiry
report dated 12.06.2024 (Annex.R/1) based on which the
[2025:RJ-JD:11223] (12 of 24) [CW-13740/2024]
petitioner has been placed under suspension as there is no finding
regarding the irregularities.
26. In sur-rebuttal the learned AAG has submitted that the
disputed questions of fact as raised by the petitioner are in the
domain of the judicial enquiry officer appointed under Section 39
(3) of the Act and the same cannot be decided by this court in
view of the limited jurisdiction of this court under Article 226 of
the Constitution of India.
27. Heard the counsel for the parties and perused the material
available on record.
28. This court finds that the applicant had filed a complaint
(Annex.10) against the petitioner and based on the complaint
enquiry was conducted against the petitioner and subsequently,
the petitioner was placed under suspension vide order dated
13.08.2024 (Annex.15). The petitioner has preferred the instant
writ petition being aggrieved of the order dated 13.08.2024 by
which she has been placed under suspension, which is a subject-
matter between the petitioner and the State Government and the
petitioner has not claimed any relief against the applicant. Thus,
this court finds that the applicant cannot be said to be a necessary
and proper party for adjudication of the instant writ petition.
Therefore, the impleadment application filed by the applicant is
dismissed.
29. At this juncture, this court finds it appropriate to refer to the
relevant provisions of the Act as well as the case laws with respect
to the suspension of the chairman who is an elected
representative.
[2025:RJ-JD:11223] (13 of 24) [CW-13740/2024]
30. Section 39 of the Act provides for the 'removal of member' of
a municipality. The same reads as under:
"39. 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,
(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) The power conferred by sub-Section (1) may be exercised by
the State Government of its own motion or upon the receipt of a
report from the Municipality in that behalf or upon the facts
otherwise coming to the knowledge of the State Government:
Provided that, until a member is removed from office by
an order of the State Government under this Section, he shall
not vacate his office and shall, subject to the provisions
contained in sub-Section (6), continue to act as, and exercise all
the powers and perform all the duties of, a member and shall as
such be entitled to all the rights and be subject to all the
liabilities, of a member under this Act.
(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
[2025:RJ-JD:11223] (14 of 24) [CW-13740/2024]
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) The Judicial Officer so appointed shall proceed to inquire into
the charge, hear the member concerned, if he makes
appearance, record his findings on each matter embodied in the
statement as well as on every other matter he considers relevant
to the charge and send the record along with such findings to
the State Government, which shall thereupon either order for re-
inquiry, for reasons to be recorded in writing, or pass final order.
(5) While hearing an inquiry under sub-Section (4), the Judicial
Officer shall observe such rules of procedure as may be
prescribed by the State Government and shall have the same
powers as are vested in a civil Court under the Code of Civil
Procedure, 1908 (Central Act No. 5 of 1908) while trying a suit in
respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and
examining him on oath;
(b) requiring the discovery and production of any such document
or any other material as may be predicable in evidence;
(c) requisitioning any public record; and
(d) any other matter which may be prescribed.
(6) Notwithstanding the foregoing provisions of this Section, the
State Government may place under suspension a member
against whom proceedings have been commenced under this
Section until the conclusion of the inquiry and the passing of the
final order and the member so suspended shall not be entitled to
take part in any proceedings of the Municipality or otherwise
perform the duties of a member thereof.
(7) Every final order of the State Government passed under this
Section shall be published in the Official Gazette and shall be
final and no such order shall be liable to be called in question in
any Court."
30.1. Thus, Section 39 (1) of the Act provides for the
grounds from clauses (a) to (d) on which the State Government
can remove a member of a municipality. Section 39 (2) provides
that the power under sub-section (1) of Section 39 can be
exercised by the State Government either suo-moto or upon the
receipt of a report from the municipality in this behalf or upon the
facts otherwise coming to the knowledge of the State
Government. The first proviso attached to Section 39 (1) provides
that a member can be removed only after an enquiry either by the
State Government itself or through such existing or retired officer
[2025:RJ-JD:11223] (15 of 24) [CW-13740/2024]
not below the rank of State level services or authority and after
affording the member concerned an opportunity of hearing.
30.2. Further, Section 39 (6) is a non-obstante clause having
overriding effect over the provisions contained preceding to it in
Section 39 and provides that the State Government may place
under suspension a member of municipality, against whom
proceedings have commenced under Section 39, until the
conclusion of such inquiry and passing of the final order.
30.3. It is important to note here that the phrase 'proceeding
have commenced' as used under Section 39 (6) of the Act has
been interpreted by a coordinate bench of this court in Nirmal
Kumar Pitaliya (Supra), wherein it has been held that the
proceedings stand commenced as soon as the State chooses to
take action against an elected representative with or without
simultaneously referring the matter to the competent authority for
inquiry in terms of proviso to sub-section (1). The relevant
paragraph of the aforesaid judgment is reproduced as under:
"51. But then, sub-section (6) of Section 39 of the Act of 2009,
does not make any reference of any sort of inquiry, preliminary or
judicial. The provision simply mentions that in case proceedings
have been commenced under this Section, a member can be
placed under suspension. This Court is firmly of the view that the
expression "proceedings have been commenced" coupled with the
expression "under this Section" is wide enough to include within
its fold not only the issuance of notice for preliminary inquiry and
service of chargesheet, but even the situation and cases, when
the State Government decides to get an inquiry conducted
through any authorized officer. The moment, the State chooses to
take action against an elected representative with or without
simultaneously referring the matter to the competent authority for
inquiry in terms of proviso to sub-section (1), the proceedings
stand commenced."
31. In Jan Mohd. V. State of Rajasthan and Ors.
MANU/RH/0014/1993, the Hon'ble division bench of this court,
[2025:RJ-JD:11223] (16 of 24) [CW-13740/2024]
while dealing with Section 63 of the Rajasthan Municipalities Act,
1959 which pertained to 'Removal of a Member', has held that
where the State Government after objective satisfaction of the
facts has suspended a member the court should not super-impose
its own discretion to that order of suspension however, the court
can examine whether such satisfaction has been arrived at
objectively or arbitrarily. The Hon'ble Division Bench has also held
that the suspension of a Chairman or member of a Municipal
Board, pending enquiry, is an interim measure and as such does
not result in civil or evil consequences neither it is penal in
character however, a Chairman or Member being holder of elective
public posts cannot be equated with Government Servants and
therefore, before such elected representatives are suspended, the
State Government must have sufficient reasons to do so and such
suspension should not be arbitrary or brought about for political
motives. The relevant part of the aforesaid judgment is
reproduced as under:
"52. Now, it takes us to the consideration of the facts of each
case. It is trite law that whether particular grounds exist for the
suspension of a person or not depends upon the subjective
satisfaction of the State Govt. and the Court cannot substitute
its own wisdom for that order. In this respect, Mr. L.S. Udawat,
the learned Addl. Advocate General has drawn our attention to
a decision of this Court in State of Tamil Nadu v. P. M. Belliappa
1985 LIC 51, wherein a Division Bench of the Madras High Court
has held :
"that when matter of suspension is left to the objective
satisfaction of the Govt., the normal rule is that it is not
necessarily justiciable before the High Court and the Court
cannot look into the question as to whether the materials are
adequate or inadequate from its point of view. But, the factum
of satisfaction can always be questioned before the Court and
the party challenging the order of suspension can always show
before the Court that the professed satisfaction is no
satisfaction at all either because it was formed on extraneous or
irrelevant circumstances or that there was a total lock of
application of mind to the question as to whether it is necessary
[2025:RJ-JD:11223] (17 of 24) [CW-13740/2024]
or desirable to suspend the Officer. The facts and circumstances
to be considered must be those which existed on the date of the
conclusion of the opinion or arriving at the satisfaction and
actually weighed with the authority while passing the impugned
order and facts which have come to transpire subsequently or
which have been subsequently unearthed as existing even at
the time of the conclusion or formation of opinion, though not
considered and taken into account, cannot at all be relied on to
support the impugned order. While the Court can examine as to
whether the opinion or satisfaction was formed at all, Court
cannot substitute its own satisfaction for that of the authority.
Though the materials placed may not satisfy the Court, the task
of the Court is only limited to an investigation as to whether
there was any foundation of fact at all or whether irrelevant and
extraneous circumstances have weighed with the authority
while passing the impugned order. The fact that different
formation of opinion or satisfaction is possible for the Court on
the very same facts and circumstances is not a ground to quash
the order in question. May be, the reason, given are in general
terms. Yet the Court should not exclude reasons which may
fairly fall within them, allowance being made for difficulties in
expression."
It is, therefore, clear that so far as the facts are concerned,
objective satisfaction of the State will have to be taken in to
consideration and the Court cannot super-impose its discretion.
However, it should always be examined whether the satisfaction
has been arrived at objectively or arbitrarily.
XXXX
64. In view of the aforesaid discussion, we are firmly of the
view that the proceedings against a Chairman or Member of the
Municipal Board commence when the preliminary enquiry report
submitted to the Government is considered by the Government
and the Government applies its mind to it and comes to the
conclusion that a further probe in the matter is essential. For
the removal of the holder of an elected public office that is
Chairman or Member of the Municipal Board, if the Govt.
decides to issue a notice to the incumbent under Section 63(2)
of the Act to the delinquent Chairman or the Member of the
Municipal Board to show cause why definite charges be not
framed against him and be referred to a Judicial Officer, that is
the stage where the proceedings start against the Chairman or
the Member of the Municipal Board and the State Govt. has
power to suspend the Chairman or a member of a Municipal
Board simultaneously when it decides to issue him a notice of
show cause under Section 63(2) of the Rajasthan Municipalities
Act. The suspension of a Chairman or a Member of a Municipal
Board pending enquiry being an interim measure the
suspension does not result in civil or evil consequences and it is
not penal in character. Enough safeguards have been provided
in the Section so that no arbitrary, capricious or mala fide
suspension may take place. However, we will like to add a word
of caution that the holders of these elective public posts cannot
[2025:RJ-JD:11223] (18 of 24) [CW-13740/2024]
be equated with Govt. servants and, therefore, before a holder
of an elected post is suspended, the Government must have
sufficient reasons to do so. Care should be taken that such
suspensions should not be arbitrary and the suspensions of such
elected representatives should not be brought about for political
motives or consideration."
32. Further, in Pradeep Hinger v. State of Rajasthan and
Ors. MANU/RH/0600/2007, a coordinate bench of this court,
while dealing with suspension of a Chairman under Section 63 (4)
of the Rajasthan Municipalities Act, 1959, has held that although
the suspension is not punishment but the consequence of
suspension of an elected member during enquiry cannot be taken
in light manner as that is against the democratic governance
policy established by the Constitution of India, thus, it must come
out from the record that the presence of such suspended member
will affect the enquiry or will prejudice the enquiry. The relevant
part of the aforesaid judgment is reproduced as under:
"34. Therefore, until a persons is removed from office, he is
entitled to continue to act and exercise all powers and perform all
duties of a member. The exception to it has been given under
Sub-section (4) of Section 63 of the Act of 1959. The petitioner,
after election as Member of the council and Chairman of the
Municipal Council, is elected for a term and that he acquires right
to continue and exercise all powers and perform all duties as
Member/Chairman, still proviso has been appended under Sub-
section (1) of Section 63 of the Act of 1959. Exception to it is
because of Sub-section (4) of Section 63 of the Rajasthan
Municipalities Act, 1959. Because of this provision only, the
elected member, before he is removed, cannot exercise his right
as of Member/Chairman. The removal dis-entitles the elected
Member from exercising his said right permanently and for ever,
whereas suspension makes him dis-entitles such person from
exercising his rights as such as elected Member or as Chairman as
the case may be till his suspension is revoked or he is exonerated.
It is true that the suspension is not punishment but the
consequence of suspension of an elected Member during enquiry,
also cannot be taken either in the light manner or in routine
manner as that is against the democratic governance policy
established by the Constitution of India which gives status and
recognition of elected member who are elected by the majority of
votes of public. This proposition that the suspension order cannot
be passed lightly or in routine manner or in mere consequence of
[2025:RJ-JD:11223] (19 of 24) [CW-13740/2024]
State Government's decision to hold enquiry under Section 63(2)
has its own purpose. Therefore, it must come out from the record
that the presence of the said suspended Member will affect the
enquiry or will prejudice the enquiry, as held in the judgments
referred above."
33. Thus, the principles that can be culled out from the afore-
cited provisions and authorities are that:
(a) The State Government under Section 39 (6) of the Act
has power to place under suspension a member of Municipal
Board against whom proceedings have been commenced until the
conclusion of inquiry and passing of final order;
(b) Although suspension being interim measure is neither
penal nor any civil or evil consequences follow but a Chairman or
member, being a democratically elected representative, cannot be
suspended in a routine manner or light manner, hence the State
Government must have sufficient reasons for doing so and it must
come out from the record that the suspended member will affect
the enquiry or will prejudice it;
(C) Where the State Government after objective satisfaction
of the facts has suspended a member, the court should not super-
impose its own discretion to that order of suspension however, the
court can examine whether such satisfaction has been arrived at
objectively or arbitrarily.
34. Before adverting to factual aspects of the case it is
worthwhile to mention that as far as present writ petition is
concerned this court is not touching upon the merits of the
charges levelled against the petitioner rather this court is
concerned with the question whether there were sufficient reasons
for the State Government to place the petitioner under suspension
and whether such suspension was necessary so as to prevent the
[2025:RJ-JD:11223] (20 of 24) [CW-13740/2024]
petitioner from affecting the enquiry or causing prejudice to such
enquiry.
35. At the outset it is observed that the interim order dated
26.02.2024 (Annex.8) was passed by this court in S.B.CWP
No.2420/2024 in the peculiar facts and circumstances of that case
only and the same was not intended to restrain the respondents
from placing the petitioner under suspension even if some
different cause of action arose, thus, the contention of the counsel
for the petitioner that the suspension order dated 13.08.2024
(Annex.15) has been passed while ignoring the interim order
dated 26.02.2024 (Annex.8) does not have any force as the
suspension order dated 13.08.2024 (Annex.8) has been passed by
the respondent on a different set of allegations as levelled in
complaint dated 08.03.2024 (Annex.10). Further, the contention
of the petitioner that the suspension order dated 13.08.2024
(Annex.15) has been passed on the instance of the Hon'ble
Minister is not sustainable as upon perusal of note sheet dated
05.02.2024 (Annex.2) it is clear that the said enquiry therein
against the petitioner was initiated on the allegations that she has
concealed facts in declaration form submitted by her to the
returning officer whereas the suspension order (Annex.15) has
been passed in pursuance to different set of allegation as levelled
in the complaint dated 08.03.2024 (Annex.10).
36. The perusal of enquiry report (Annex.R/1) reveals that the
enquiry officer has given a categorical finding that as per the map
of the approved scheme, the Plot no.186, for which patta bearing
dispatch no.3270 (Annex.14 Colly.) has been issued, is situated in
Khasra No.41/1 and not in Khasra No.40 hence, the said patta
[2025:RJ-JD:11223] (21 of 24) [CW-13740/2024]
(Annex.14 Colly.) has been issued by the petitioner to her
husband without exercising due diligence. It has also been
observed in the enquiry report (Annex.R/1) that no corresponding
entry of dispatch no.3270, as marked on the patta in question
(Annex.14 Colly.), has been made in the dispatch register. Further,
it has also been observed in the enquiry report (Annex.R/1) that
185 files for issuance of patta has been found from the office of
the petitioner which are pending for the signature of the petitioner
for more than one year. It has also been observed in the enquiry
report that as per the report of the in-charge of Land Branch that
the original file for issuance of patta in question (Annex.14 Colly.)
is in possession of the petitioner. The relevant part of the enquiry
report (Annex.R/1) is reproduced as under:
"f"kdk;r esa of.kZr rF;ksa ij vf/k"kk'kh vf/kdkjh] uxjikfydk uksgj }kjk
i=koyh esa ekStwn fjiksVZ esa voxr djk;k fd Hkwfe "kk[kk esa dqN i=kofy;ksa
dh vuqiyC/krk ckcr~ izFke lwpuk fjiksVZ 63@2024 iqfyl Fkkuk uksgj esa tSjs
vuqla/kku gS rFkk lacf/kr dkfeZd Jh vfer dqekj }kjk iV~Vk i=koyh vU;
i=kofy;ksa ds lkFk v/;{k egksn;k }kjk vius ?kj eaxok;h xbZ tks vkfnukad
okil ugha ykSVk;h xbZ gS rFkk mifuns"kd ¼{ks=h;½] chdkusj dh tkap ds
nkSjku vkseizdk"k iq= jkes"ojyky ds uke ls iathd`r iV~Vs ls lacf/kr
i=koyh dk;kZy; esa iwoZ esa dk;Zjr lsokfuo`Rr dkfeZd jes"k dqekj "kekZ ls
izkIr dj QksVksizfr yh xbZ] Hkwfe "kk[kk izHkkjh dh fjiksVZ ds vuqlkj lacf/kr
ewy iV~Vk i=koyh v/;{k egksn;k ds ikl gh gSA blds vfrfjDr pd
ljnkjiqjk ds [kljk la[;k 38] 39] 40] 41@1] 41@4 dk ofj'B uxj
fu;kstd chdkusj }kjk la;qDr ys vkmV~ Iyku vuqeksnu dj [kljksa dh lhek
dks vyx&vyx n"kkZ;s x;s gSA eqrkfcd dfu'B vfHk;ark ds HkkSfrd lR;kiu
iV~Vk la[;k 3270 ls lacf/kr Hkw[k.M la[;k 186 vuqeksfnr Iyku ds [kljk
ua- 40 esa ekStwn ugha gS lkFk gh iV~Vs ij vafdr fMLiSp la[;k 3270 fMLiSp
jftLVMZ esa vafdr ugha gksdj [kkyh gS] ftls [kkyh ik;s tkus ij fujLr Hkh
fd;k gS] bl izdkj vf/k"kk'kh vf/kdkjh us iV~Vs ij lansg izdV fd;k gSA
vf/k"kk'kh vf/kdkjh us viuh fjiksVZ esa fofHkUu&fofHkUu i=koyh;ksa esa iV~Vksa ds
forj.k ?kj ls djrs gq, vius ikl gh j[kh gS ftUgsa Hkwfe "kk[kk esa okil
miyC/k ugha djok;h x;h gS rFkk v/;{k egksn;k ds d{k ls 185 i=kofy;ka
iV~Vksa ij gLrk{kj gsrq ik;h xbZ tks ,d o'kZ ls T;knk le; ls gLrk{kj ds
fy, fopkjk/khu FkhA
i=koyh ij miyC/k eksfudk [kVksfr;k] v/;{k }kjk izLrqr tokc esa
mijksDr vkjksiksa dk [k.Mu fd;k gS ,oa voxr djk;k gS fd muds ikl dksbZ
[2025:RJ-JD:11223] (22 of 24) [CW-13740/2024]
i=koyh ugha gS rFkk muds }kjk lHkh dk;Z fu;ekuqlkj fd;s gS] uksfVl dh
dk;Zokgh fujLr QjekosaA
i=koyh esa mifuns"kd ¼{ks=h;½ chdkusj }kjk Hkh i=kofy;ksa ds fjdksMZ
dk la/kkj.k ugha gksuk voxr djk;k gSA
izdj.k ds laca/k esa ofj'B uxj fu;kstd] funs"kky; dh fVIi.kh yh xbZ]
i=koyh esa layXu vuqeksfnr ;kstuk ekufp= vuqlkj [kljk la[;k 38] 39]
40] 41@1 o 41@4 xzke pd ljnkjiqjk dh Hkwfe dk ,dtkbZ ih-Vh- losZ
djok lfEefyr ;kstuk rS;kj dj fnukad 11-07-2022 dks ys&vkmV vuqeksfnr
fd;k x;k gSA mDr ;kstuk dk uke Þrqylh dkWyksuh] ";ke ckck dkWyksuh]
fj)h&fl)h dkWyksuh] f"kok dkWyksuh ¼ukFkhnsoh½ß vafdr gSA tkap gsrq izLrqr
iz"uxr iV~Vk foys[k esa Hkw[k.M la[;k 186] {ks=Qy 39* x 84*= 364 oxZxt
,oa ;kstuk dk uke pd ljnkjiqjk [kljk ua- 40 vafdr gSA fdUrq ;kstuk
ekufp= vuqlkj [kljk la[;k 40 esa Hkw[k.M la[;k 186 vafdr ugha gSA
mDr ;kstuk ekufp= esa nks LFkku ij Hkw[k.M la[;k 186 vafdr gS]
ftuesa ls ,d Hkw[k.M {ks=Qy 156-30 oxZxt ";ke ckck dkWyksuh esa [kljk
la[;k 39 ij fLFkr gS ,oa ,d Hkw[k.M {ks=Qy 461-48 oxZxt fj)h&fl)h
dkWyksuh esa [kljk la[;k 41@1 ij fLFkr gSA tkap i=koyh esa iz"uxr
Hkw[k.M+ dk iV~Vk foys[k tkjh fd;s tkus ls lacf/kr uksV"khV] ekSdk fjiksVZ
vkfn layXu ugha gS] layXu lkbZV Iyku vuqlkj lM+d ekxkZf/kdkj dksVs tkus]
ekSdk fLFkfr ds ifjis{k esa fj)h&fl)h dkWyksuh esa [kljk la[;k 41@1 ij
fLFkr Hkw[k.M iz"urxr Hkw[k.M+ izrhr gksrk gSA mDr Hkw[k.M+ ;kstuk ekufp=
esa vuqeksfnr gS o [kljk la[;k 40 esa fLFkr uk gksdj [kljk ua- 41@1 fLFkr
gSA
vr% fj)h&fl)h dkWyksuh esa fLFkr Hkw-la- 186 ;kstuk ekufp= esa
vuqeksfnr gksus ds dkj.k mDr Hkw[k.M+ dk iV~Vk foys[k rduhdh n`f'V ls
fu;ekuqlkj LokfeRo] okn&fookn vkfn dh tkap fd;k tkdj tkjh fd;k
tkuk pkfg,] iV~Vk foys[k esa ;kstuk dk uke fj)h&fl)h dkWyksuh vafdr
fd;k tkuk pkfg,A
izdj.k ds foospu ls Li'V gS fd iz"uxr Hkw[k.M iV~Vk tkjh djus esa
orZeku v/;{kk eksfudk [kVksfr;k us i;kZIr ,gfr;kr ugha cjrh gS] blds
vfrfjDr Lo;a ds ifr ds uke ls tkjh iV~Vs dks fof/kor fMLiSp ugha djuk
Hkh lansg izdV djrk gS] ckotwn i;kZIr i=kpkj 185 dks i=kofy;ksa dks
vkokl ij yfEcr j[kuk vius inh; drZO;ksas dk nq:i;ksx ,oa vfu;ferrk
dh Js.kh esa vkrk gSA
tkap fjiksVZ izLrqr gSA"
37. Furthermore, this court finds that the State Government
after taking into consideration the enquiry report (Annex.R/1) as
well as the reply (Annex.13) filed by the petitioner to the show-
cause notice (Annex.11) has arrived at the conclusion that prima
facie it appears to be the case that the petitioner has retained the
files pending for issuance of patta without any reason and charge
[2025:RJ-JD:11223] (23 of 24) [CW-13740/2024]
of corruption was levelled against the petitioner for issuing patta
no.3270 (Annex.14 Colly.) in contravention of the rules. Thus, the
State Government has objectively attained the satisfaction that
the prima facie case appears to be made out against the petitioner
under sub-clauses (i), (ii), (iii) and (vi) of Section 39 (1) (d) of the
Act before placing the petitioner under suspension. Consequently,
the State Government vide order dated 13.08.2024 (Annex.15)
has initiated a judicial enquiry under Section 39 (3) of the Act
against the petitioner and the she has been placed under
suspension while invoking Section 39 (6) of the Act as there is
likelihood of her affecting the judicial enquiry. As far as the
likelihood of petitioner affecting the judicial enquiry is concerned,
this court is of the prima facie view that the apprehension of the
State Government has some substance in it as the patta no.3270
(Annex.14 Colly.) was issued to husband of the petitioner hence,
she can also be considered as an interested party.
38. Further, as far as the contention of the counsel for the
petitioner that the petitioner is being targeted due to political
rivalry as no proceedings have been initiated against any other
officer who were involved in the present controversy, is concerned
the same does not have any force for the reason that the learned
AAG has stated at bar that appropriate proceedings are being
undertaken against other officers as well.
39. Thus, in view of the above, no interference is called for in the
suspension order dated 13.08.2024 (Annex.15). Accordingly, the
instant writ petition is dismissed.
40. Pending Application (s), if any, shall also stand disposed of.
[2025:RJ-JD:11223] (24 of 24) [CW-13740/2024]
41. It is made clear that any observation made hereinabove shall
not have any bearing on the proposed judicial enquiry against the
petitioner.
(DR. NUPUR BHATI),J
21-23/Ravi/-
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