Allowed

Narottam Lal v. State and Ors.

Rajasthan HC2 Feb 2015SAW/1569/2014

Case brief

AI extract

What is this about?

The Division Bench allowed the appeal, quashing the State Government's order rescinding the Municipal Board's resolution against suspending the petitioner. The court held that Section 327 of the Rajasthan Municipalities Act requires a quasi-judicial approach involving record examination and a hearing before rescinding a resolution. Direct suspension orders by the Director (Legal) were also struck

What did the court decide?

Orders dated 14.8.2014 and 19.9.2014, the communication dated 19.9.2014 and the consequential order dated 24.9.2014 are quashed. The Single Bench judgment dated 14.10.2014 is also quashed. The appeal

Narottam Lal Vs State and Ors. — Service and Employment | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

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J U D G M E N T

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D.B. Civil Special Appeal No.1569/2014

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Narottam Lal v. State of Rajasthan & Ors.

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Date of Judgment :: 2^nd February, 2015

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P R E S E N T

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HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MISS JUSTICE JAISHREE THAKUR

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Mr. Kuldeep Mathur, for the appellant. Dr. Pratistha Dave, Government Counsel, for the respondents.

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BY THE COURT :

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The Director General, Anti Corruption Bureau, Jaipur, by a letter dated 5.3.2014 made a recommendation to the Municipal Board, Sheoganj to suspend the petitioner being involved in a case under the Prevention of Corruption Act, 1988. The Municipal Board in its meeting dated 21.5.2014 considered the recommendation and resolved not to suspend the petitioner, a Lower Division Clerk, but to transfer him to a post not concerned with the work of issuing No Objection Certificate for raising construction in municipal area. The resolution aforesaid was taken keeping in view the idea to utilise services of the petitioner by keeping him on a post from where he may have not been in position to impress the inquiry/investigation going against him.

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The resolution aforesaid came to be rescinded under an order dated 14.8.2014 passed by the Deputy Secretary to the Government of Rajasthan, Department of

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Local Self Government, Jaipur exercising powers under Section 327(2) of the Rajasthan Municipalities Act, 2009 (hereinafter referred to as 'the Act of 2009'). Subsequent thereto, the Director (Legal), Department of Local Self Government by a communication dated 19.9.2014 instructed the Executive Officer, Municipal Board, Sheoganj to place the appellant petitioner under suspension and also to change his headquarter. Acting upon the communication dated 19.9.2014 read with order dated 14.8.2014 the Executive Officer, Municipal Board, Sheoganj placed the petitioner under suspension and changed his headquarter from Municipal Board, Sheoganj to the office of the Deputy Director (Regional), Department of Local Self Government, Jodhpur.

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Being aggrieved by the order aforesaid as well as the order dated 14.8.2014 and communication dated 19.9.2014 the petitioner preferred a petition for writ with assertion that the powers under Section 327(2) of the Act of 2009 could have not been exercised by the State Government without providing an opportunity of hearing to the Municipal Board, Sheoganj and without examining the record relevant.

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Learned Single Bench by order dated 14.10.2014 dismissed the writ petition by opining that “if a case under the Prevention of Corruption Act is registered against the petitioner and a resolution has been passed contrary to basic principal of law for not granting prosecution sanction then the State while exercising supervisory power can cancel such resolution passed by the Municipal Board which is contrary to law”.

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The submission of learned counsel for the appellant is that instant one is not a case for grant of prosecution sanction as per Section 19 of the Prevention of Corruption Act, 1988, but for exercise of powers under Section 327(2) of the Act of 2009 by the State Government. According to learned counsel for the appellant the State Government passed the order rescinding resolution of the Municipal Board in violation of the procedure given under Section 327 itself. The Director (Legal) was having no jurisdiction to instruct the Executive Officer, Municipal Board, Sheoganj to place the appellant petitioner under suspension and the suspension of the petitioner could have been effected by his appointing authority or an authority to whom the appointing authority is subordinate, but in the instant matter the appointing authority without application of its own mind acted under instructions of the Director (Legal), Department of Local Self Government, Jodhpur, that clearly indicates abdication of powers.

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While opposing the appeal and defending the order passed by learned Single Bench, Dr. Pratistha Dave submitted that the petitioner appellant was found involved in corrupt activities and, therefore, his suspension was highly desirable. The State Government considering this aspect of the matter rescind the resolution undertaken by the Municipal Board, Sheoganj.

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Heard learned counsel for the parties.

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Section 327 of the Act of 2009 reads as under:-

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“327.Power to call for records.--(1) The State Government or any officer authorized in this behalf by the State Government, may, for the purpose of being satisfied as to the correctness, legality or propriety of any order or resolution passed or purporting to have been passed, under this Act by or on behalf of a Municipality, its Chairperson, Vice-Chairperson, any member or officer, call for the relevant record, and may, in doing so, direct that pending the examination of such record, such order or resolution shall be kept in abeyance and no action in furtherance thereof shall be taken until such examination by the State Govt. or by the officer authorized in this behalf by the State Government and the passing of order under sub-section(2).

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(2)On examining the record the State Government or the officer authorized as aforesaid may rescind, reverse or modify such order or resolution and the order of the State Government or the officer authorized as aforesaid shall be final and binding on the Municipality.”

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From perusal of the provisions of Section 327 of the Act of 2009 it is apparent that the State Government or any officer authorised in this behalf may call for the relevant record for examining legality, correctness and propriety of any order or resolution passed or purported to have been passed under the Municipalities Act by its officers. The State Government or its officer is also empowered to rescind, reverse or modify any order or resolution record of which is called for after examining the same. The examination for determining correctness, legality or propriety of any order or resolution demands examination of record on the scale of law, practicability and other settled norms. As a matter of fact the authority

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under Section 327 of the Act of 2009 is a revisional power of the State Government and as such is of quasi judicial nature. Such power cannot be exercised without providing an opportunity of hearing to the municipality or the officer authorised by the municipality. The order as per subsection (2) of Section 327 of the Act of 2009 is also supposed to be a reasoned and speaking one.

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In the case in hand the State Government neither called for the record nor provided any opportunity of hearing to the municipality that resolved for not suspending the appellant petitioner. The State Government acted upon a report received from the Deputy Director (Regional), Local Self Government, Jodhpur. The decision of the Government is not founded on adequate reasons too. In our considered opinion the State Government while rescinding the resolution dated 21.5.2014 acted in contravention of the procedure prescribed under Section 327 of the Act of 2009, hence, the same is bad.

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It is also pertinent to mention that strict compliance of the procedure given under Section 327 of the Act of 2009 as discussed above is all the more necessary to ensure autonomy of a municipality which is a basic unit of urban governance as per Part IX-A of the Constitution of India. In the case in hand the Director (Legal) under the communication dated 19.9.2014 while extending warning to the Executive Officer, Municipal Board, Sheoganj instructed him to suspend the appellant petitioner and further to change his headquarters. The Act of 2009 nowhere prescribes such an authoritative power to any officer of the State

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Government in relation to administration of a municipality. The order dated 19.9.2014 in specific terms depicts abdication of powers without authority of law.

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In our considered opinion, for the reasons given above, the order passed on behalf of the State Government dated 14.8.2014 and the communication dated 19.9.2014 addressed to the Executive Officer, Municipal Board, Sheoganj by the Director (Legal), Department of Local Self Government and their consequential order dated 24.9.2014 are illegal and as such deserve to be quashed.

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The appeal is accordingly allowed. The judgment dated 14.10.2014 passed by learned Single Bench and the orders dated 14.8.2014 passed by the Deputy Secretary to the Government of Rajasthan, Department of Local Self Government, Jaipur; communication dated 19.9.2014 addressed to the Executive Officer, Municipal Board, Sheoganj by the Director (Legal), Department of Local Self Government and their consequential order dated 24.9.2014 are quashed. The acceptance of the appeal in no manner shall restrict the State Government to proceed in the matter afresh in accordance with the authority available as per Section 327 of the Rajasthan Municipalities Act, 2009.

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No order to costs.

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(JAISHREE THAKUR),J. (GOVIND MATHUR),J.

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Mathuria.KK/PS

Narottam Lal v. State and Ors.

Case brief

What is this about?

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Narottam Lal v. State and Ors.

Case brief

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