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2016 DIGILAW 535 (RAJ)

Hakim Khan v. State of Rajasthan

2016-04-18

SANGEET LODHA

body2016
JUDGMENT : Mr. Sangeet Lodha, J. By way of this petition, the petitioners have questioned legality of order dated 28.1.16, issued by the Director, Local Self, Government of Rajasthan, constituting Executive Committee and other Committees of Municipal Board, Bhinmal, in exercise of the power conferred under sub-section (5) of Section 55 of Rajasthan Municipalities Act, 2009 ( for short "the Act"). 2. Learned counsel appearing for the petitioners contended that the action of the State Government in constituting an Executive Committee consisting of twelve members is contrary to law inasmuch as, as per the mandate of provisions of Section 55 (1)(v) of the Act, number of members in the Executive Committee cannot exceed five. Learned counsel submit that besides Chairperson and Vice Chairperson, the leader of opposition is required to be included in the Executive Committee constituted, however, while issuing the order impunged, instead of included the petitioner Hakim Khan, who is leader of opposition, one Shri Guman Mal Parmar, has been included as member, showing him to be the opposition leader. Learned counsel submit that unless and until, there is specific failure of the Municipal Board in constituting the Committees as per the mandate of provisions of Section 55 of the Act, the State Government has no power to constitute the Committees and therefore, the order impugned deserves to be quashed. 3. On the other hand, the counsel appearing for the respondents submit that while relying upon the provisions of Section 55 (1)(v) of the Act, learned counsel for the petitioners has ignored the provisions of Section 55 (1)(vi), which provides that the Chairperson of the Committees constituted by the Municipality under sub-section (3) shall be the member of the Executive Committee. Learned counsel submit that besides the Chairperson of the Municipal Board, out of eleven members, six persons namely; Ramesh Rathi, Shyam Lal Bohra, Jairoopa Ram Mali, Jaisingh Rao, Smt. Basi Devi Banjara and Smt. Darmi Kanwar, are included as members in the Executive Committee, being Chairpersons of the various Committees constituted by the order impugned. Learned counsel fairly submit that instead of petitioner, Guman Mal Parmar, has wrongly been included as member of the Executive Committee and the Municipal Board has already indicated the error in the order to the State Government. Learned counsel would submit that the error crept in shall be rectified by issuing an appropriate order, expeditiously. Learned counsel fairly submit that instead of petitioner, Guman Mal Parmar, has wrongly been included as member of the Executive Committee and the Municipal Board has already indicated the error in the order to the State Government. Learned counsel would submit that the error crept in shall be rectified by issuing an appropriate order, expeditiously. Learned counsel submit that as per the mandate of provisions of sub-section (5) of Section 55, if the concerned Municipality fails to constitute the Committees as per mandate of provisions of Section 55 of the Act, within a period of 90 days of the constitution of the Municipality, the State Government is empowered to constitute such Committees and thus, the order impugned issued by the State Government admittedly, after expiry of the stipulated period, cannot be faulted with. 4. I have considered the rival submissions and perused the material on record. 5. Indisputably, after the election, the Municipality was constituted in November, 2014 and the order impugned constituting the Committees, has been passed after expiry of 90 days thereafter. A bare perusal of the provisions of Section 55, makes it abundantly clear that primarily, it is the duty of the Municipality to constitute an Executive Committee and other Committees. But then, as per provisions of sub-section (5) of Section 55, such Committees are required to be constituted by the Municipality, within 90 days of the constitution of the Municipality, failing which the State Government may constitute such Committee. It is not in dispute that no attempt was made by the Municipality to constitute the Committee as mandated by the provisions of Section 55 within the stipulated period and thus, the order impugned passed by the State Government constituting the Committees, in exercise of the power conferred under sub-section (5) of Section 55 of the Act, does not suffer from any illegality so as to warrant interference by this court. 6. Coming to the question of inclusion of eleven members besides the Chairperson of the Municipality in the Executive Committee, no doubt, as per the mandate of provisions of Section 55(1)(v), the number of members besides Chairperson, Vice Chairperson and leader of opposition, cannot exceed five but then, as per the mandate of provisions of Section 55 (1)(vi) of the Act, all the Chairpersons of the Committees constituted by the Municipality, shall be member of the Executive Committee by virtue of their office. From bare perusal of the provisions of sub-section (1) of Section 55, it is manifestly clear that the members to be included in terms of provisions of Section 55(1)(vi) of the Act, are in addition to the members to be included in terms of provisions of Section 55(1)(v) of the Act and thus, the action of the State Government in constituting the Committee as aforesaid, cannot be faulted with. 7. It has been fairly conceded by the learned counsel appearing for the State that the petitioner Hakim Khan being the leader of opposition, deserves to be substituted as member of the Executive Committee in place of Guman Mal Parmar and therefore, the question raised in this regard by the petitioners is not required to be dealt with by the court. 8. Accordingly, the respondents are direct to issue an appropriate order amending the order dated 28.1.16, substituting the name of the petitioner Hakim Khan being leader of opposition, in place of Guman Mal Parmar, as member of the Executive Committee of Municipal Board, Bhinmal, within a period of one week from the date of receipt of certified copy of this order. Except the modification of the order direct as above, the petition preferred by the petitioners questioning the legality of order dated 28.1.16 passed by the State Government, shall stand dismissed. No order as to costs. Except direction to substitute leader of opposition, Writ petition dismissed.