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Rajasthan High Court · body

2000 DIGILAW 146 (RAJ)

Madhu Kumawat v. State of Rajasthan

2000-02-07

B.J.SHETHNA

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Honble SHETHNA, J.–The petitioner, who is a lady Chairperson of the Municipal Board, Kuchaman City has filed this petition under Article 226 of the Constitution and challenged the result of ``No Confidence Motion passed against her on 20.8.99 (Annex.2) whereby she was voted out from the office of Chairperson of the Municipal Board, Kuchaman City. (2). She was elected as a Member of the Municipal Board, Kuchaman City as BJP candidate in the elections held on 27.8.95 and later on she was elected as Chairperson of the Municipal Board, Kuchaman City as it was reserved for woman. There are in all 25 members of the Municipal Board + 1 local M.L.A. making it in all 26 members. It includes one Mana Ram Kumawat also belonging to BJP. (3). Under Rule 3(1) of the Rajasthan Municipalities (Motion of No Confidence Against Chairman or Vice-Chairman) Rules, 1974 (for short `the Rules) a written notice of intention to make motion of no-confidence in the Chairman or Vice-Chairman has to be signed by 1/3 members of the Board together with a copy of the motion which is proposed to be made and it has to be sent to the Collector of the District who shall thereupon convene a meeting for the consideration of the motion to be held at the office of the Board on the date and at the time appointed by him, which shall not be earlier than twenty or later than thirty days from the date of the receipt of the notice. (4). Under Rule 3(2) of the Rules, the Collector has to send a clear seven days notice of such meeting and of the date and time fixed to every member of the Board by registered post before the date of the meeting. (5). Under Rule 3(3) of the Rules, the Collector or his nominee has to preside over such meeting. (6). Under Rule 3 (5) of the Rules, no meeting for the consideration of motion of no-confidence can be held unless the quorum is present. One-third of the whole number of members shall form the quorum and as soon as the quorum is present, the Collector or his nominee shall read the motion for consideration of which the meeting was convened and declare it open for discussion. (7). One-third of the whole number of members shall form the quorum and as soon as the quorum is present, the Collector or his nominee shall read the motion for consideration of which the meeting was convened and declare it open for discussion. (7). Under Rule 3(8) of the Rules, if the motion is not carried by 2/3 majority of the whole number of members or if any meeting cannot be held for want of quorum, the motion of no-confidence against Chairman or Vice-Chairman, as the case may be, shall be deemed to have been lost. (8). As per the aforesaid Rules, the motion of no-confidence was moved against the petitioner by some of the members of the Board to the Collector, Nagaur who nominated S.D.O. to preside over the meeting which was to be held on 20.8.99. (9). Under the aforesaid Rules, All the members including Mana Ram were also served with a registered notice from the Collector regarding the meeting to be held on 20.8.99 for considering no-confidence motion against the present petitioner. However, just a day before the date of said meeting, against Mana Ram a suspension order was passed on 19.8.99 without show-cause notice or following the procedure of Section 63(1) of the Rajasthan Municipalities Act, 1959 and instead of serving the same on Mana Ram, it was handed over to the Executive Officer of the Board on 20.8.99 at about 11:00 A.M. at the time of consideration of the no-confidence motion against the present petitioner. He was placed under suspension on the ground that he had more than two issues, therefore, he was disqualified as provided under Section 19 of the Municipalities Act. (10). The case of Mana Ram was that the said proceedings were pending against him since last 5-6 months but only because he did not agree to vote in favour of no-confidence motion against the petitioner, therefore, abruptly on 19.8.99, just a day before the consideration of no-confidence motion against the present petitioner Smt. Madhu, he was placed under suspension with a malafide intention so that the no-confidence motion be passed against the present petitioner. It was his further case that six members of the Board namely, Hem Raj Chawla, Devi Lal Kumawat, Hanuman Kumawat, Hazi Ahmed, Mana Ram and Smt. Manju Sen were facing similar charge of giving birth to one more child after the stipulated date i.e. 27.11.95 but deliberately only he (Mana Ram) was picked up and placed under suspension just a day before the meeting for consideration of the no-confidence motion against the present petitioner was convened i.e. on 20.8.99, because he was not in favour of no-confidence motion. (11). The writ petition No. 3052/99 filed by Mana Ram allowed by me on 16.11.99 and the suspension order of Mana Ram, which was earlier stayed by this Court while issuing notice to the other side, was quashed as the matter was pending before the Judicial Officer and during the pendency of enquiry before the judicial officer, he was placed under suspension. (12). I have narrated the above facts of Mana Ram being placed under suspension and he filing the writ petition and the same being allowed by this Court in detail for the reasons that it is the case of the present petitioner in this petition that only with a view to see to it that the no-confidence motion is passed against her. Mana Ram was just picked up and placed under suspension only a day before the meeting as Mana Ram was against the passing of no-confidence motion. (13). It is not in dispute that out of in all 26 members including MLA, 18 members remained present on 20.8.90 for considering the no-confidence motion brought against the present petitioner and one more member Mana Ram could not remain present because against him, the suspension order was passed just a day before i.e. 19.8.99. Thus, for all practical purposes on 20.8.99, there were only 25 members excluding one member Mana Ram and out of 18 persons present in the meeting 17 persons voted out against the petitioner and the local MLA voted in favour of the petitioner. (14). Under Rule 3(8), 2/3rd majority of the total members were required to oust the petitioner from the post of Chairperson. If we consider the strength of 25 members on 20.8.99, then 17 members were there meaning thereby the requisite 2/3rd majority was there. (14). Under Rule 3(8), 2/3rd majority of the total members were required to oust the petitioner from the post of Chairperson. If we consider the strength of 25 members on 20.8.99, then 17 members were there meaning thereby the requisite 2/3rd majority was there. However, if Mana Ram was not suspended on that day then the requisite majority should have been 17.33 whereas it was only 17 as only 17 members voted against the petitioner in favour of no-confidence motion. (15). Learned counsel Mr. Mehta for the respondent State vehemently submitted that this Court should take into consideration the total strength of the members of the Municipal Board on the date on which the no-confidence motion was passed against the petitioner and it should not consider the case of Mana Ram whose petition was subsequently allowed by this Court. According to him, 2/3rd majority is to be counted as per the strength on the date on which the motion was passed. (16). In the ordinary circumstances, this Court would have readily accepted this argument. However, from the facts narrated hereinabove, it is clear that with an ulterior motive in a most arbitrary manner. Manna Ram was placed under suspension just a day before the meeting of no-confidence motion which was to be convened on 20.8.99 so as to deny him to cast his vote against the no-confidence motion. (17). It was rightly submitted by the learned counsel Mr. Jasmatia that when this Court sat at naught the suspension order passed on 19.8.99, then Mana Rams presence must be considered as member on that day and if his presence was considered, then the total strength of members would become 26 and only 17 members have voted in favour of no-confidence motion against the petitioner on 20.8.99, therefore, it must be held that in absence of 2/3rd clear majority, no-confidence motion failed. (18). This is such a peculiar case where one of the members who was not ready to oblige to other members who wanted to throw out a duly elected lady Chairperson of the Municipal Board, Kuchaman City, therefore, he was illegally and in a most arbitrary manner placed under suspension just on the eve of the meeting to be held on 20.8.99. It may also be kept in mind that this post of Chairperson was reserved for women. It may also be kept in mind that this post of Chairperson was reserved for women. Under the circumstances, when this Court has allowed the writ petition of Mana Ram and set aside the suspension order passed against him, then it has to be held that Mana Ram was not under suspension as on 19.8.99 and he was deliberately precluded from casting his vote on 20.8.99. Thus, it must be held that the total strength of the members of the Board was 26 on 20.8.99 and 2/3rd majority means it should be more than 17 and not 17 because 2/3rd of 26 would come to 17.33 and 17 was less than that. (19). At this stage learned counsel Mr. Mehta submitted that if it is 0.33. then it cannot be considered as 1 and presence of 17 members was sufficient to oust the petitioner. But there is a Division Bench judgment of this Court dated 2.12.98 delivered in Chimna Ram vs. State of Rajasthan and Ors., (1), wherein this Court has clearly held that 0.33 has to be counted, therefore, it must be held that there was no requisite 2/3rd majority against the petitioner when she was voted out on 20.8.99 by 17 members. (20). In view of the above discussion, there is no option for this Court but to quash and set aside the result of no-confidence motion passed against the petitioner on 20.8.99 (Annex.1) and accordingly, it is quashed and set aside. (21). Before parting, I must state that learned counsel Mr. Mehta has strongly objected the non-joinder of the necessary and proper party i.e. Municipal Board, Kuchaman City in the petition. (22). When this Court has found that the action of the respondents was arbitrary and malafide in placing Mana Ram under suspension just a day before the meeting for consideration of no-confidence motion then I do not see any reason to decide it. It is time and again held by the Honble Supreme Court and this Court that atleast such technical pleas should not be raised by the State, still it is raised. Be that as it may. (23). It is time and again held by the Honble Supreme Court and this Court that atleast such technical pleas should not be raised by the State, still it is raised. Be that as it may. (23). In view of the above, this petition is allowed, the result of no-confidence motion against the petitioner by the respondent No.3 on 20.8.99 (Annex.1) is hereby quashed and set aside and it is declared that against the petitioner, no-confidence motion was never passed and she has continued to remain Chairman/Chairperson of the Municipal Board, Kuchaman City. Now, the petitioner should be allowed to continue and work as Chairperson of Municipal Board, Kuchaman City, forthwith. (24). This order is pronounced in open court in presence of learned counsel Mr. Mehta and Mr. Vyas for the respondents and the Executive Officer, Municipal Board, Kuchaman City, the petitioner and the Vice Chairman Mr. M.L. Karwa who was holding the charge for the post of Chairperson in place of petitioner. Therefore, it is directed that the charge for the post of Chairperson/Chairman should be handed over to the petitioner by Mr. M.L. Karwa today itself. (25). Stay petition is also disposed of.