Allowed

Smt. Mitu Bothra v. State of Rajasthan

Rajasthan HC24 Jul 2024SAW/802/2023

Case brief

AI extract

What is this about?

Special appeal by an elected Municipal Council Chairperson suspended under the Rajasthan Municipalities Act for issuing pattas despite a status quo order. The Division Bench set aside the writ Court's order upholding the suspension, quashed the suspension itself, and allowed the appeal.

What did the court decide?

Order dated 02.06.2023 in S.B. Civil Writ Petition No.7396/2023 set aside; suspension order dated 16.05.2023 quashed; special appeal allowed.

Smt. Mitu Bothra Vs State of Rajasthan — Municipal and Town Planning | Rajasthan HC (2024)

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[2024:RJ-JD:30225-DB]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Spl. Appl. Writ No. 802/2023

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Smt. Mitu Bothra W/o Navratan Bothra, Aged About 48 Years, Resident Of Lodha Ka Chowk, District Nagaur, Rajasthan.

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----Appellant

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Versus

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1. State Of Rajasthan, Through The Principal Secretary, Local Self Department, Govt. Of Rajasthan, Jaipur.

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1. The Director Cum Joint Secretary, G-3, Raj Mahal Residency Area, Near Civil Line Fathak, C-Scheme, Jaipur.

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1. The Deputy Director, Regional Local Self Department, Ajmer.

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----Respondents

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For Appellant(s)	: Mr. Sachin Acharya, Sr. Adv. (through V.C.) assisted byMr. Chayan Bothra
For Respondent(s)	: Mr. Rajesh Panwar, Sr. Adv & AAG assisted by Mr. Ayush Gehlot
	Mr. VijayBishnoi

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HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE KULDEEP MATHUR

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Order

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24/07/2024

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Per, Hon’ble Shree Chandrashekhar, J:

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Challenging the order dated 2^nd June 2023 passed in S.B. Civil Writ Petition No.7396 of 2023 by which the writ Court declined to interfere with the suspension order dated 16^th March 2023, the writ petitioner has approached this Court in this Special Appeal filed under Rule 134 of the Rajasthan High Court Rules read with Article 225 of the Constitution of India.

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[2024:RJ-JD:30225-DB]

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[SAW-802/2023]

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(2 of 9)

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The writ Court referred to the allegations against the appellant and the provisions under sub-section 6 of section 39 of the Municipalities Act, 2009 to form an opinion that no interference is required with the order of suspension passed against the appellant. The writ Court held as under:

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“ 7. This Court observes that the petitioner was elected as Chairperson of the Municipal Council, Nagaur, and during his tenure, the pattas in question were issued to certain private persons, despite the status quo order having been passed by the Hon'ble High Court in the aforementioned appeal.

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8. This Court further observes that the letter/communication dated 03.02.2023 was issued to the petitioner by the District Collector, Nagaur, wherein it was clearly stated that in view of the interim status quo order passed in regard to the lands, in respect whereof the pattas in question were issued to certain private persons, the petitioner was directed to cancel such pattas within a period of three days.

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8.1. After the said letter, the petitioner herself issued notices on 08.02.2023 under Section 73-B of the Act of 2009 to the concerned private persons, calling for their explanation in regard to the pattas in question. Therefore, the petitioner has knowledge that the pattas in question were not legally issued, more particularly, when a status quo order was already passed by the Hon'ble High Court.

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9. This Court further observes that the communication dated 03.02.2023 reveals the entire controversy pertaining whereto the notice under Section 39 (1) of the Act of 2009 was issued and the impugned suspension order was passed on 16.05.2023. Therefore, cannot plead that he was not given any adequate opportunity of hearing before passing the impugned suspension order, as he was well aware of the entire controversy pertaining to the pattas in question. 10. This Court also observes that the Sub-Divisional Officer conducted an inquiry and submitted his report dated 16.12.2022, finding therein that the pattas in question were issued in derogation of the status quo order passed by the Hon'ble High Court. This Court also observes that the respondent-Department also initiated the disciplinary proceeding in the matter in question against the concerned Executive Officer.

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11. This Court further observes that the petitioner herself was the signatory in issuance of pattas in question to the private persons, in an illegal manner and against the provisions of law.

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(3 of 9)

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[SAW-802/2023]

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12. The judgments cited on behalf of the petitioner also do not render any assistance to her case in this petition.

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13. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioner in the present petition.”

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Mr. Sachin Acharya, the learned Senior counsel for the appellant submits that the powers under sub-section 6 to section 39 of the Municipalities Act, 2009 cannot be used as a weapon of persecution to punish the appellant at an initial stage itself and, that too, without following a fair procedure.

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Mr. Ayush Gehlot, learned counsel appearing for the respondent nos.1 to 3 refers to the observations of this Court in paragraph no.23 of the order dated 12^th October 2023 and contended that once the review petition is dismissed a second Special Appeal challenging the order passed by the writ Court shall not be maintainable. The learned counsel referred to a decision in “District Collector and Ors. vs. N. Udayappan and Anr.” reported in 2021 SCC Online Mad 1098 wherein the Madras High Court

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observed as under:

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“ 61. It is now left for the final conclusions to be recorded and for the questions of law referred to this Full Bench to be answered. The conclusions herein may be summarised thus:

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(i) A petition for review of an order passed in proceedings under Article 226 of the Constitution would lie irrespective of whether the provisions of the Code have been made applicable in a High Court to proceedings in such High Court under Article 226 of the Constitution.

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(ii) An appeal would lie against an order passed in a review of the order under Article 226 of the Constitution, even if the original order is retained, once the review petition is entertained and the additional material or grounds that are referred to or urged are considered or a further consideration on merits is evident from the order. In such a scenario, the original order, albeit being retained in substance, is eclipsed by the subsequent order as the considerations for making the subsequent order may be different.

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(iii) An appeal against an order passed in a review petition in proceedings under Article 226 of the Constitution will lie if the original order is altered or modified or

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(4 of 9)

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[SAW-802/2023]

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reversed. In such a scenario, the original order would stand substituted and lose all relevance.

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iv) Ordinarily, an order refusing to entertain a review against an order passed under Article 226 of the Constitution and, thereby, not entertaining the further material sought or grounds to be relied upon or reconsidering the original basis of the order, would not be appellable.

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(v) However, even if an order is passed refusing to entertain a review petition or look into the additional material or grounds sought to be relied upon or reconsidering the matter, an appeal may lie therefrom if such order of refusal can be regarded as a judgment within the meaning of Clause 15 of the Letters Patent.

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(vi) All the above would hold good even if the provisions of the Code were to apply or were expressly made applicable to proceedings under Article 226 of the Constitution in this Court.”

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Besides observing that a decision by the Madras High Court may have persuasive value but shall not be binding to this Court, this cannot be disputed that this Court may take a divergent view and differ with the view expressed by another High Court/Courts. This is well remembered that ratio of any decision must be understood in the background of the facts of that case (refer, Ambica Quarry Works & Anr. vs. State Of Gujarat & Ors. reported in 1987 (1) SCC 213). Just to indicate, the proceedings in the civil Court conducted as per the provisions of the Code of Civil Procedure are not similar and the principles applied therein in the civil Court shall not necessarily be applicable and applied in a writ proceeding. Moreover, this is not in the realm of any debate that the writ Court is entitled to lay down its own procedure and the powers under Article 226 of the Constitution of India are not fettered by any technicality. We may further observe that the observations by the Madras High Court in paragraph no.61 are in tune with the well-settled norms of judicial procedure and propriety. The plea urged on behalf of the respondents to challenge the maintainability of the present Special Appeal is unsustainable for the reason that the first Special Appeal was

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(5 of 9)

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[2024:RJ-JD:30225-DB]

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[SAW-802/2023]

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disposed of and not decided on merits, with a liberty to the appellant to prefer a review petition. Now, in the present proceeding the orders passed by both the writ Court and the Reviewing Court are under challenge.

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We would now refer to the provisions under section 39 of the Municipalities Act, 2009 which read as under:-

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“ 39. Removal of member . -

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(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: -

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(a) that he has absented himself for more than three consecutive general meetings, without leave of the Municipality:

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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,

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(b) that he has failed to comply with the provisions of Section 37,

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(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,

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(d) that he has

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(i) deliberately neglected or avoided performance of his duties as a member, or

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(ii) been guilty of misconduct in the discharge of his duties, or

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(iii) been guilty of any disgraceful conduct, or

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(iv) become incapable of performing his duties as a member, or

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(v) been disqualified for being chosen as member under the provisions of this Act, or

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(vi) otherwise abused in any manner his position as such member:

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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.

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(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:

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Provided that, until a member is removed from office by an order of the State Government under

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(6 of 9)

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[2024:RJ-JD:30225-DB]

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[SAW-802/2023]

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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.

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(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.

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(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.

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(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:

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(a) summoning and enforcing the attendance of any person and examining him on oath;

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(b) requiring the discovery and production of any such document or any other material as may be predicable in evidence;

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(d) any other matter which may be prescribed.

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(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.

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(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.”

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On a bare glance at the provisions under section 39 discloses

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that the power to put a member of the Municipality under

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[2024:RJ-JD:30225-DB]

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[SAW-802/2023]

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(7 of 9)

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suspension is the general power and the power of removal from the post is not akin to the provisions under Article 317 of the Constitution of India. The power under sub-section 6 to section 39 of the Municipalities Act should be exercised in a situation where the continuance of a member of the Municipality on the said position shall cause embarrassment to him or the Muncipality. It appears that the writ Court was swayed away by the preliminary inquiry report dated 16^th December 2022 conducted by the SubDivisional Officer wherein he made an observation that pattas were issued by the appellant in derogation of the status-quo order passed by this Court.

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In the present proceedings, this Court passed an order on 12^th October 2023 and stayed the operation of the order of suspension dated 16^th May 2023. This is admitted at the bar that against the order dated 12^th October 2023 the respondents did not prefer any appeal nor have filed an application seeking modification of the said order. The relevant portions of the order dated 12^th October 2023 where a co-ordinate bench of this Court considered the rival submissions are reproduced herein below:-

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“ 24. As per the appellant, the notice dated 12.05.2023 was served upon her on 15.05.2023. The State Government has not come out with a case that the notice issued to the appellant on 12.05.2023 was served either on 12.05.2023 itself or prior to expiry of three days, when the appellant was required to file her response.

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25. Be that as it may, before issuance of the pattas in question, notice inviting objections from public at large was issued by the Municipal Council, Nagaur, however, nobody filed objection to the effect that the status quo order passed by the High Court is in existence.

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26. Apart from that, the Panel Counsel of Municipal Council, Nagaur as well as Additional Government Counsel of Rajasthan High Court also opined in their legal opinions that the status quo order was not in relation to the land for which pattas in question were issued.

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(8 of 9)

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27. It is also to be noticed that though in the various orders passed by the respondents, the Chairperson as well as the Commissioner of Municipal Council, Nagaur were found prima facie guilty but the appellant has claimed that no action has been taken against the Commissioner.

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28. At this stage, Mr. Sunil Beniwal, learned AAG has submitted that on 01.09.2023, notice was issued to the then Commissioner, Municipal Council, Nagaur for initiation of disciplinary proceeding against her.

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29. Be that as it may, on 16.05.2023, when the appellant was suspended, no such enquiry was initiated against the then Commissioner, Municipal Council, Nagaur.

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30. Taking into consideration the above facts and circumstances of the case, we are of the view that the matter requires consideration.

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31. Admit.

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32. Issue notice.

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33. Mr. Sunil Beniwal, learned AAG puts in appearance on behalf of all the respondents. Hence, service is complete.

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34. As an interim measure, the effect and operation of the order dated 16.05.2023 passed by the respondent-Director and Special, Local Self Government Department, Government of Rajasthan, Jaipur, suspending the appellant from the post of Chairperson of Municipal Council, Nagaur, shall remain stayed till further order.”

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Even so, we may observe that an order of suspension cannot continue for an indefinite period and the respondents except referring to sub-section 6 of section 39 of the Municipalities Act, 2009 have not put-forth any ground why the suspension order dated 16^th October 2023 shall be continued.

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We may also indicate that a co-ordinate Bench of this Court has found prima facie illegality in passing of the order dated 16^th May 2023 also on the ground that the notice was served upon the appellant only on 15^th May 2023 and while so she has been denied of an opportunity to defend herself and to persuade the competent authority not to pass any order exercising the power under sub-section 6 to section 39 of the Municipalities Act. In our opinion, once a notice was issued to the appellant she should have been granted sufficient time to defend herself.

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[SAW-802/2023]

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(9 of 9)

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For the forgoing reasons, the order dated 2^nd June 2023 passed in SB Civil Writ Petition No.7396 of 2023 is set aside. Consequently, the order of suspension dated 16^th May 2023 is quashed.

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D.B. Special Appeal Writ No. 802 of 2023 is allowed.

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(KULDEEP MATHUR),J

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(SHREE CHANDRASHEKHAR),J

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259-DivyaTak/neha-

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Whether fit for reporting : Yes/No

Smt. Mitu Bothra v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Smt. Mitu Bothra v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

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