Rajasthan Municipalities Act, 2009 | Elected Member Of Corporation Can Be Suspended U/s 39(6) Once Proceedings 'Commenced': Rajasthan HC

The Rajasthan High Court has reiterated that under Section 39(6) of Rajasthan Municipalities Act, 2009, an elected member of a Municipality can be suspended once proceedings have "commenced" against him.

The court was hearing a petition filed by an elected member of the Ajmer Municipal Corporation, challenging his suspension for filing Vakalatnama against the Corporation in a suit for permanent injunction.

The petitioner's case was that he simply signed power on behalf of the plaintiff in the suit, without acting in any disgraceful manner against the Corporation. He was aggrieved by the fact that no show cause notice or opportunity of explanation was given to him before issuance of the suspension order, and contended that suspension could have followed only after the State government thoroughly considered the preliminary report made after the enquiry.

The respondents contended that the petitioner acted against the interest of the Corporation and his conduct amounted to disqualification under Section 24(xvi) of the Act. Further, the petition was liable to be rejected as he had not challenged the show cause notice with definite charges issued against him.

The Single Judge Bench of Justice Anoop Kumar Dhand held that once the matter was examined by the Corporation and a show cause notice with definite charges was issued, it was well within the respondent authorities' power to propose a suspension of the elected member.

On the petitioner's contention that suspension could have been effected only after affording a show cause notice and opportunity of explanation, the court said:

“…The whole case [of the petitioner] is based on the judgments passed by this Court in the case of Jan Mohd. (supra). This judgment is based on the provision contained under Section 63 and 65 of the old repealed Rajasthan Municipalities Act, 1959 (for short 'the old Act of 1959') wherein it was mandatory to issue show cause notice before removing any Member”.

In the analysis, it took note of the decision in Nirmal Kumar Pitaliya v. State of Rajasthan 2022 LiveLaw (Raj) 53, where it was held:

“…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 charge-sheet, 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”.

Pertinently, the Bench in Nirmal Kumar Pitaliya (Supra) had also highlighted that the word used in Section 39(6) was "proceedings" and not "inquiry". 

Justice Dhand also referred to Rajaram Gurjar v. State of Rajasthan & Ors. (2020) to make the following observations:

“…It is worthy to note here that in the case of Rajaram Gurjar (supra), the judgment of Jan Mohd. (supra) was considered and finally a view was taken that an elected representative can be placed under suspension, if proceedings have been commenced against him under Section 39 of the Act of 2009.”

While holding that the impugned order was in compliance of Section 39(6) of the 2009 Act, it was observed,

“A show cause notice with the above definite charges was issued to him on 29.11.2022 (Annexure R/5) and his explanation under Section 39(3) of the Act of 2009 was called and after considering his explanation dated 06.12.2022, an enquiry was commenced against him and the charges were found prima facie correct against the petitioner by the Deputy Director (Regional), Department of Local Self, Ajmer in its report dated 20.07.2023. Thereafter, the petitioner was placed under suspension vide order dated 22.08.2023”.

In conclusion, the Jaipur bench directed that enquiry proceedings against the petitioner-member must be disposed of within four months from the date of receipt of certified copy of the court order.

“…the elected public representative is under suspension and he cannot be allowed to remain under suspension for indefinite period”.

Senior Advocate Rajendra Prasad and Advocate Ashish Sharma appeared for the petitioner-member

Additional Advocate General Anil Mehta along with Advocates Yashodhar Pandey and Anurag Sharma represented the State authorities

Case Title: Devender Singh Shekhawat v. State of Rajasthan through its Secretary, Local Self Government & Ors., S.B. Civil Writ Petition No. 14381/2023

Citation: 2023 LiveLaw (Raj)

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