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2002 DIGILAW 1899 (RAJ)

Girdhari Lal v. State of Rajasthan

2002-11-30

SUNIL KUMAR GARG

body2002
JUDGMENT 1. 1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 14.8.2002 with a prayer that by an appropriate writ, order or direction, the conclusion arrived at by the respondent No.3 (Sub-Divisional Magistrate, Suratgarh) in the meeting held on 3.7.2002 treating the motion of No Confidence against respondent No.4 (Hardeo Sahay) as having dropped be declared illegal and it may be declared that the motion of No confidence against respondent No.4 (Hardeo Sahay) stood carried out in terms of Rule 3(9) of the Rajasthan Municipalities (Motion of No Confidence against Chairman and Vice-Chairman) Rules, 1974 and the respondent No.4 (Harden Sahay) be ordered to be ousted from the office of Chairperson, Municipal Board, Suratgarh with all consequential directions inter alia holding of fresh election of Chairperson etc. and further it may be declared that the seats of respondents No.5 (Om Prakash) and respondent No.6 (Vali Mohd.) stood vacated on 27.3.2001 and they may be declared to have ceased to be members of Municipal Board, Suratgarh on 27.3.2001 and further it may be declared that the number of respondents No.5 (Om Prakash) and 6 (Vali Mohd.) could not be counted for computing fraction of ⅔rd majority of whole total number of members of Municipal Board, Suratgarh for the purpose of carrying out the motion of No Confidence against respondent No.4 (Hardeo Sahay) 2. The facts of the,case as put forward by the petitioner are as under: i) That elections to the Municipal Board, Suratgarh were held in the month of Nov., 1999. The petitioner contested the election from Ward No. 22 and was elected as member, Municipal Board, Suratgarh from the said ward. ii) That initially Shri Purkha Ram Valmiki was elected as Chairperson of the Municipal Board, Suratgarh but a motion of no confidence was passed against him in the meeting held in the month of March, 2001. iii) That thereafter Shri Hardeo Sahay (respondent No.4) was elected as Chairperson of Municipal Board, Suratgarh in the month of May, 2001. ii) That initially Shri Purkha Ram Valmiki was elected as Chairperson of the Municipal Board, Suratgarh but a motion of no confidence was passed against him in the meeting held in the month of March, 2001. iii) That thereafter Shri Hardeo Sahay (respondent No.4) was elected as Chairperson of Municipal Board, Suratgarh in the month of May, 2001. iv) That the activities of Shri Hardeo Sahay (respondent No.4) were not in the interest of the Municipal Board and, therefore, the petitioner along with 25 elected members of the Municipal Board submitted a motion of no confidence against respondent No.4 (Harden Sahay) to the Collector, Sri Ganganagar (respondent No.2) v) That the Collector, Sri Gangangar (respondent No.2) vide his order dated 20.6.2002, convened meeting for consideration of motion of no confidence on 3.7.2002. A copy of notice issued to the petitioner on 20.6.2002 is marked as Annex. 1. vi) That the meeting for consideration of motion of No Confidence was held on 3.7.2002 and in all 26 members attended the same meeting which included respondents No.5 (Om Prakash) and respondent No.6 (Vali Mohd.). vii) That the motion was put to discussions and after completion of discussions, same was put to vote. Out of 25 elected members, and one ex-officio member, 23 members exercised their right of franchise and 21 voters polled in favour of motion of No Confidence. viii) That respondent No.3 (Sub-Divisional Magistrate, Suratgarh) declared the motion as dropped as having not been carried by ⅔rd of whole number of members of the Municipal Board, Suratgarh. A copy of proceedings dated 3.7.2002 is marked as Annex.2. ix) That the further case of the petitioner is that the Municipal Board, Suratgarh had 30 elected members. In addition to 30 elected members, Smt. Vijaya Laxmi is ex-officio member in her capacity as Member, Legislative Assembly. The respondents No.5 (Om Prakash) and respondent No.6 (Vali Mod.) were nominated as members, Municipal Board, Suratgarh by notification of the State Government dated 24.10.2000 (Annex.3). x) That it is further submitted by the petitioner that since respondent No.5 (Om Prakash) and respondent No.6 (Vali Mohd.) were not elected members of the Municipal Board, Suratgarh, therefore, they could not be counted in the strength of Municipal Board, Suratgarh. x) That it is further submitted by the petitioner that since respondent No.5 (Om Prakash) and respondent No.6 (Vali Mohd.) were not elected members of the Municipal Board, Suratgarh, therefore, they could not be counted in the strength of Municipal Board, Suratgarh. Thus, the strength of Municipal Board on the date of consideration of Motion of No Confidence against respondent No.4 (Hardeo Sahay) was 31 i.e. 30 elected members and one ex-officio member. Out of 31 members, holding the office of Municipal Board, Suratgarh, 21 had voted in favour of the No Confidence Motion and, therefore, the motion of No Confidence stood carried out against respondent No.4 (Hardeo Sahay) by majority of ⅔ of whole number of members of the Board excluding two nominated members. Therefore, conclusion arrived at by respondent No.3 (SDO, Suratgarh) in the meeting held on 3.7.2002 is erroneous one and contrary to the provision of Section 72 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as the Act of 1959) and Rule 3(9) of the Rajasthan Municipalities (Motion of No Confidence against Chairman and Vice-Chairman) Rules, 1974 (hereinafter referred to as the Rules of 1974) and thus the proceedings dated 3.7.2002 (Annex.2) by which motion of no confidence was dropped by respondent No.3 (SDO, Suratgarh) are illegal. Hence, this writ petition with the above mentioned prayer. 3. Reply to the writ petition was filed by respondent No.4 (Hardeo Sahay) and respondents No.1 to 3 separately and they have placed reliance on notification dated 21.12.2001 (Annex.8) issued by the Government of Rajasthan whereby it was notified that in computing the total strength, nominated members would also be counted. Hence, this writ petition should be dismissed, 4. The learned counsel for the petitioner has placed reliance on Division Bench judgment of this Court delivered in D.B. Civil Special Appeal No. 892/2001 Prem Raj Bohra V/s Jairoopa Ram and Ors.) on 14.8.2002 [reported in 2003 (1) RLR 221 ] , and in that judgment, this Court came to the following conclusion: "In our view, the decision of Supreme Court in Raees Ahmed's case (2000) 1 SCC 432 ) is clearly distinguishable and the point of distinction is contained in the relevant statutory provisions of the U.P. Municipalities Act and the Rajasthan Municipalities Act. Under the U.P. Act, the Chairman/President of the Municipality is elected directly, by the electorate on the basis of adult franchise exercised by voters of the area....." ".....As a result of above discussion, we hold that in the context of provisions of the Rajasthan Municipalities Act, the nominated members are not to be included in the total number of members for the purposes of considering a no confidence motion against a Chairman or Vice-Chairman of a Municipal Board." "........To this extent, sub-rule (9) of Rule 3 of the No Confidence Motion Rules, 1974 and Section 3 (36) of the Rajasthan Municipalities Act, 1959 are held to be violative of the Act as well as the Constitution of India and, therefore, ultra vires.......... 5. I have heard and perused the record. 6. In my opinion, the present controversy is squarely covered by decision of Division Bench of this Court in Prem Raj Bohra's case (supra). 7. The learned counsel for the respondents have submitted that the judgment in the case of Prem Raj Bohra (supra) is against the judgment and observations made by the Hon'ble Supreme Court in the case of Raees Ahmed (supra). 8. In my opinion, this argument cannot be appreciated or should not be appreciated at all because Division Bench of this Court has clearly made distinction and has clearly held that law laid down in Raees Ahmed's case would not be applicable in Rajasthan especially looking to the provisions of Act of 1959 and Rules of 1974. Therefore, the argument that Division Bench judgment of this Court in the case of Prem Raj Bohra (supra) is against the judgment of Hon'ble Supreme Court in the case of Raees Ahmed (supra) is rejected. 9. Apart from this, Single bench of a High Court is bound by the decision of Division Bench of the same High Court on the principles of proprietary and convention. Single Bench of a High Court should give full respect to the judgment of Division Bench of the same High Court and show (sic should ?) follow the law laid down by the Division Bench. From this point of view also, this court is bound by the Division Bench Judgment of this Court in the case of Prem Raj Bohra (supra). 10. From this point of view also, this court is bound by the Division Bench Judgment of this Court in the case of Prem Raj Bohra (supra). 10. The argument that SLP has been admitted in the Hon'ble Supreme Court against the Division Bench judgment of this Court in the case of Prem Raj Bohra (supra) is also not to be accepted as law laid down by this Court in the case of Prem Raj Bohra (supra) is in force today as no stay has been granted by the Hon'ble Supreme Court. 11. Coming to the facts of the present case, if strength of two nominated members (respondents No.5 Om Prakash and respondent No.6 Vali Mohd.) is excluded from the total strength and if when out of 31 members holding the office of Municipal Board, Suratgarh, 21 had voted in favour of Motion of No Confidence, in these circumstances, the Motion of No Confidence deemed to have been passed by majority of ⅔rd of whole number of members and figure of 21 out of 31 is a figure which shows that the motion has been carried out by ⅔rd majority. In view of this, the proceedings dated 3.7.2002 (Annex.2) passed by SDO, Suratgarh (respondent No.3) by which he dropped the motion of no confidence on the ground that it was not carried out by majority of ⅔rd of whole number of members are illegal and deserve to be set aside. The result would be that the Motion of No Confidence should have been treated as passed against respondent No.4 on 3.7.2002. 12. The result would be that the Motion of No Confidence should have been treated as passed against respondent No.4 on 3.7.2002. 12. For the reasons mentioned above, it can easily be said that the controversy involved in the present writ petition is squarely covered by decision of this Court in Prem Raj Bohra's case (supra) and hence this writ petition deserves to be allowed and the proceedings dated 3.7.2002 (Annex.2) passed by the SDO, Suratgarh (respondent No.3) are liable to be quashed and set aside.Accordingly, this writ petition is allowed to the extent that the conclusion arrived at by respondent No.3 (SDO, Suratgarh) through proceedings dated 3.7.2002 (Annex.2) by which no confidence motion against the respondent No.4 (Hardeo Sahay) was treated as dropped is quashed and set aside and further it is declared that motion of no confidence against respondent No.4 (Hardeo Sahay) stood carried out on 3.7.2002 in terms of Rule 3(9) of the Rajasthan Municipalities (Motion of No Confidence against Chairman and Vice Chairman) Rules, 1974 and when this being the position, the respondent No.4 (Hardeo Sahay) is ordered to be ousted from the office of Chairperson, Municipal Board, Suratgarh and further it is ordered that fresh election of Chairperson, Municipal Board, Suratgarh be held in accordance with law.Cost made easy.Petition disposed of. *******