Notice Of Pre-Election Disqualification Issued To Councillor Prior To Introduction Of S.39(e) Rajasthan Municipalities Act Not Valid: Rajasthan HC

Rajasthan High Court has ruled that Section 39(e) of the Rajasthan Municipalities Act 2009 which was inserted by way of an amendment dated April 13, 2024 to empower the State government to remove a member of a Municipality on grounds of pre-election disqualification, does not have a retrospective application.

“The amendment was done on 13.04.2023 and there is nothing on record which shows or suggests that this amendment was made effective from a retrospective date, thus, for all intents and purposes, the provision which has been added in Section 39 will be deemed to have prospective effect.”

Section 39 of the Act provides grounds for removal of a member of a municipality. After the amendment, one more ground has been added to the list. As per Section 39(e), after the election of an individual, if the state government becomes aware that the person was not qualified under the Act, and the election has not been questioned by an election petition and the period for filing the election petition has expired, it may remove such a member.

A bench of Justice Vinit Kumar Mathur was a hearing petition filed against an order under which a notice under Section 39 was issued to the petitioner. The notice sought response from the petitioner within 15 days regarding why proceedings under Section 39 should not be initiated against him.

The petitioner was elected as a councillor and thereafter the chairperson of Municipal Council, Sirohi. The notice was issued in the background of a criminal complaint that was filed in 2021 against the petitioner alleging that when election was contested in 2019, there was a pending criminal case against the petitioner which was not disclosed.

Counsel for the petitioner argued that for pre-election disqualification and disputes, there was no provision under the Act apart from filing an election petition. However, the counsel for the respondents argued that in light of the amendment to Section 39, the respondents must be allowed to take appropriate actions against the petitioner.

The Court observed that the amendment to Section 39 of the Act did not have a retrospective effect. And since the notice under Section 39 was issued to the petitioner prior to the amendment, the proceedings undertaken by the respondents were not sustainable in law. Accordingly, the notice was quashed and set aside. However, the respondents were informed that they could proceed against the petitioner afresh as per the amendment.

Title: Mahendra Kumar Mewara v State of Rajasthan and Ors.

Citation: 2024 LiveLaw (Raj) 118

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