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2017 DIGILAW 379 (RAJ)

Jivan Khan v. State Of Rajasthan

2017-02-02

PUSHPENDRA SINGH BHATI

body2017
JUDGMENT : Mr. Pushpendra Singh Bhati, J. 1. Petitioner has preferred this writ petition making following prayers : "(i) By way of appropriate writ, order or directions the order dated 4th July 2016 (Annex-13) passed by the respondents constituting committees on the askance of MLA may kindly be quashed and set aside; (ii) by way of appropriate writ, order or directions the respondents-State may kindly be directed to accept the proposal as approved by the board and as forwarded by the Municipal Council, Sikar on 5th October, 2015; (iii) any other writ, order or directions to which the petitioner may be entitled to in the circumstances of the case may be issued in his favour; (iv) cost of the writ petition may be awarded in favour of the petitioner." 2. Brief facts as noticed by this Court are that on 26/11/2014 Municipal Council, Sikar was constituted after due elections. It was to constitute Committees in accordance with Section 55 of the Rajasthan Municipalities Act, 2009 (hereinafter referred as 'the Act of 2009'). Section 55(3) of the Act of 2009 provides for increasing the numbers of the Committees by the State Government. The first meeting of the Municipal Council was held on 24/02/2015 for constitution of Committees. The Municipal Council sent a letter dt. 26/02/2015 addressed to the Director, Local Self Government for constitution of additional committees. The State Government granted permission for constitution of additional Committees vide order dt. 30/03/2015. The meeting of the Municipal Council was held on 09/09/2015 in which vide item No. 11, the proposal of constitution of 13 Committees was passed and sent to the State Government for approval vide letter dt. 05/10/2015. The Member of Legislative Assembly of the constituency also made a list of Members of the Committees and sent to the Government on 07/02/2016. The respondents issued a direction on 25/04/2016 with regard to constitution of Committees under Section 55 of the Act of 2009 wherein it was stated that if the Committees had not been constituted under Section 55(3) of the Act of 2009, within the time frame, the same may be sent for approval of the State Government under Section 55(5) of the Act of 2009. The State Government accordingly constituted Committees on its own vide order dt. The State Government accordingly constituted Committees on its own vide order dt. 04/07/2016, which, as per the petitioner, has been done ignoring the proposals of the Municipal Council and affirming the proposal of the MLA of the same constituency and as such, the petitioner has challenged the Constitution of such Committees vide order dt. 04/07/2016. 3. The respondents filed a detailed reply and stated that the respondents have acted in accordance with the requirement of Section 55 of the Act of 2009 and the letter of Member of Legislative Assembly was only taken as an input to balance the representation of the elected members. The respondents referred to Section 6 of the Act of 2009 in which it has been stipulated that the Member of the Rajasthan Legislative Assembly representing the constituency shall represent the Municipal Council. The relevant provision i.e. Section 6(1)(a) of the Act of 2009 is reproduced as follows "6(1)(a) the following shall represent in the Municipal Board, Municipal Council or, as the case may be, Municipal Corporation, viz. (i) the member of the Rajasthan Legislative Assembly representing a constituency which comprises wholly or partly the area of a Municipality; and (ii) six persons in case of Municipal Corporation, five persons in case of Municipal Council and four persons in case of Municipal Board, having special knowledge or experience in municipal administration, to be nominated by the State Government by notification in the Official Gazette : Provided that - (i) the provisions contained in section 24 and section 35 shall be applicable to the persons to be nominated or nominated members; (ii) the State Government shall have power to withdraw a nominated member at any time; (iii) a nominated member shall not have the right to vote in the meeting of a Municipality." 4. Section 55 of the Act of 2009 is also reproduced as follows : "55. Section 55 of the Act of 2009 is also reproduced as follows : "55. Committee—(1) In every Municipality there shall be an Executive Committee constituted and consisting of— (i) the Chairperson of the Municipality; (ii) the Vice-Chairperson of the Municipality; (iii) the leader of the opposition; (iv) in case of a Municipal Corporation or Municipal Council seven members elected by the Municipal Corporation or, as the case may be, Municipal Council, including two from the women members; (v) in case of Municipal Board, such number of members not exceeding five, as may be determined by the Municipal Board, elected by the Municipal Board; and (vi) the Chairperson of the committees constituted by the Municipality under sub-section (3). (2) The Chief Municipal Officer of the Municipality shall be ex-officio Secretary of the Executive Committee. (3) In addition to the Executive Committee, every Municipality shall also constitute the following Committee consisting of not more than ten members, namely :- (i) a finance committee; (ii) a health and sanitation committee; (iii) a building permission and works committee; (iv) a slum improvement committee; (v) a rule and bye-laws committee; (vi) a compounding and compromising of offences committee; and (vii) looking to the functions of a Municipality, it may also constitute such other committees, not exceeding eight in case of Municipal Corporation, not exceeding six in case of Municipal Counsel, and not exceeding four in case of Municipal Board, as it may deem necessary : Provided that the State Government may, looking to the functions of a Municipality, increase the maximum limit of committees specified in this clause. (4) The Executive Committee and the committees mentioned in sub-section (3) may exercise, perform and discharge such power, duties and functions as may be prescribed. (5) The above referred committees shall be constituted by the Municipality within ninety days of the constitution of the Municipality, failing which the State Government may constitute such committees. Explanation : For the removal of doubts it is clarified that a nominated member may also be appointed as a member of committee constituted under this section." 5. The respondents stated that the impugned order dt. 04/07/2016 constituting the aforesaid 13 committees was passed by the State Government while exercising its powers under Section 55(1) and Clause (i) to (vii) of sub-section (3) after taking note of the input as provided. The respondents stated that the impugned order dt. 04/07/2016 constituting the aforesaid 13 committees was passed by the State Government while exercising its powers under Section 55(1) and Clause (i) to (vii) of sub-section (3) after taking note of the input as provided. The powers were vested with the State Government only because the Municipal Council, Sikar could not constitute Committees within statutorily prescribed period of 90 days as provided under sub-section (5) of Section 55 of the Act of 2009. After expiry of 90 days which is an admitted fact, the State Government was authorised to constitute the Committees under Section 55(1) and Clause (i) to (vii) of sub-section (3) of Section 55 of the Act of 2009. 6. Counsel for the petitioner also submitted the list of documents pertaining to some Municipalities to reflect that in those Municipalities, the lists were approved as proposed by the Boards. Counsel for the petitioner relied upon the judgment in the case of Raj Kumari and ors. v. The State of Rajasthan and Ors. (SB Civil Writ Petition No. 2781/2002), decided on 18/08/2015 wherein it has been observed that 'Administrative instructions have a binding effect on State authorities and non-compliance of the same therewith give rise to malice in law. Counsel for the petitioner has also relied upon a judgment in the case of Nagar Panchayat, Kurwai and Anr. v. Mahesh Kumar Singhal and Ors. : 2013(2) WLC (SC) Civil 583 : 2013(12) SCC 342 wherein it has been observed that Nagar Panchayat is, therefore, a unit of self-government, which is a sovereign body having both constitutional and statutory status. Counsel for the petitioner has also relied upon a judgment In the case of Dr. Amarjit Singh Ahluwalia v. The State of Punjab and Ors. : 1975(3) SCC 503 wherein it has been observed as follows : "Now, it is true that Clause (2) (ii) of the memorandum dated 25th October, 1965 was in the nature of administrative instruction, not having the force of law, but the State Government could not at its own sweet will depart from it without rational justification and fix an artificial date for commencing the length of continuous service in the case of some individual officers only for the purpose of giving them seniority in contravention of that clause. That would be clearly violative of Articles 14 and 16 of the Constitution. That would be clearly violative of Articles 14 and 16 of the Constitution. The sweep of Articles 14 and 16 is wide and pervasive. These two articles embody the principle of rationality and they are intended to strike against arbitrary and discriminatory action taken by the 'State'. Where the State Government departs from a principle of seniority laid down by it, albeit by administrative instructions, and the departure is without reason and arbitrary, it would directly infringe the guarantee of equality under Articles 14 and 16. It is interesting to notice that in the United States it is now well settled that an executive agency must be rigorously held to the standards by which it professes it actions to be judged and it must scrupulously observe those standards on pain of invalidation of an action in violation of them. Vide the judgment of Mr. Justice Frankfurter in Vitaralli v. Seton 359 U.S. 535 : 3 Law. Sd. (Second Series) 1012." 7. Counsel for the petitioner has also relied upon a judgment in the case of B.S. Minhas v. Indian Statistical Institute and Ors., 1983(4) SCC 582 wherein it has been observed as follows : "It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr. Justice Frankfurter in Viteralli v. Seton 3 Law Ed. Second Series 1012 where the learned judge said : An executive agency must be rigorously held to the standard by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword. The aforesaid principle laid down by Mr. Justice Frankfurter in Viteralli v. Seton 3 Law Ed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword. The aforesaid principle laid down by Mr. Justice Frankfurter in Viteralli v. Seton 3 Law Ed. Second Series 1012 has been accepted as applicable in India by this Court in A.S. Ahluwalia v. Punjab, (1975) I LLJ 228 SC and in subsequent decision given in Sukhdev v. Bhagatram (1975) I LLJ 399 SC Mathew J. quoted the above-referred observation of Mr. Justice Frankfurter with approval." 8. Counsel for the petitioner submitted that vide document dt. 10/06/2015, which is Annexure-4, the State was under obligation to take the proposals from the Chairman of the concerned Municipality and then pass the orders under Section 55(5) of the Act of 2009 as per the recommendations of the Chairman of the concerned Municipality. The whole emphasis of counsel for the petitioner that this order dt. 10/06/2015 has not been complied with by the State Government and the Committee has not been constituted in accordance with the administrative order so passed. 9. Counsel for the petitioner also stated that the Constitution of the Committee had to be in conformity with the administrative orders and the precedent law cited by him also supports to the fact that such administrative orders need to be complied with in totality. Counsel for the petitioner also argued that the Nagar Panchayat in the spirit of Article 243Q and 243P(e) of the Constitution was a unit of Self Government and thus, the respondents were bound to constitute the Committee strictly in accordance with the administrative orders on recommendations of the concerned Chairman of the Municipal Council. 10. Counsel for the respondents stated that the orders passed by the State Government are strictly in accordance with the spirit of Section 55(5) of the Act of 2009 whereby the different Committees constituted by the Municipality would be within 90 days of the Constitution of the Municipality, failing which the State Government has to constitute such Committees. Counsel for the respondents also stated that the Members of the Legislative Assembly had a statutory role as per Section 6 of the Act of 2009 and therefore, could not be deprived of such role of providing necessary inputs to the State Government. 11. Counsel for the respondents also stated that the Members of the Legislative Assembly had a statutory role as per Section 6 of the Act of 2009 and therefore, could not be deprived of such role of providing necessary inputs to the State Government. 11. On the basis of the aforesaid discussion, this Court is of the opinion that constitution of the Committee within 90 days of the constitution of the Municipality was within the domain of the Municipality concerned but when the Municipality failed to do the same, the total prerogative shifted to the State Government which then constituted the Committee. The legislative intention in Section 55(5) of the Act of 2009 is very clear and the power given by the statute are unbridled for the State Government to act. It is also noted that a member of the Legislative Assembly had a statutory role under the Act of 2009 and taking this into consideration, his recommendation cannot be a ground of prejudice to the petitioner. The Chairman of the concerned Municipality definitely has a role to make his recommendations but there is no legal obligation shown by the petitioner which makes a binding effect upon the State Government to constitute such Committee in accordance with the recommendations of such Chairman/Board of the Municipality. 12. Thus, this Court holds that after a passage of 90 days of the constitution of the Municipality, the total prerogative of constituting the Committee shifts to the State Government which can make such orders strictly in accordance with law. The administrative order dt. 10/06/2015 is merely a guideline for processing the constitution of Committees and cannot be said to have an overriding impact upon the powers of the State Government arising out the statute. The legislative intention of the Act of 2009 is absolutely clear and no administrative action can cast a shadow by restricting the power of the State Government to constitute the Committee after 90 days of the Constitution of the Municipality. Thus, there is no reason to grant any indulgence to the petitioner or to interfere with the order dt. 04/07/2016 passed by the respondents as Annexure-13 of the writ petition. 13. Consequently, the writ petition is dismissed.