HIGH COURT OF RAJASTHAN
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(1.)THIS application ha3 been presented by three of the members of the Municipal Board, Merta, for a writ of certiorari quashing the order of the Director of Local Bodies dated the 8th of April, 1959 and also for a writ of' prohibition against Shri Umed Nath, Chairman of the Municipal Board from functioning as such.
(2.)THE order in question was passed by the Director of Local Bodies purporting to act under sec. 207 of the Rajasthan Town Municipalities Act, 1951 (Act No. XXIII of 1951) by virtue of the powers delegated to him by the Government under the Act in question. THE complaint before the officer was that the chairman was disabled from continuing to be a member of the Municipal Board and that his seat should be deemed to have become vacant because he was professionally interested on behalf of his client and as such his action fell within the mischief of sec. 12 (3) (b) (ii) of this Act.
The brief facts relevant to the matter are that there is some sort of a gali or lane intervening between the Government High School and a mosque of the Ghosis which is situated near the school in the municipal limits of Merta. It appears that the Ghosis had made some constructions over the land in question against which the Head, Master of the school filed a complaint for action under sec. 133 of the Code of Criminal Procedure. The Magistrate stopped the construction of the Ghosis. It is stated that the Respondent Umed Nath was appearing in this case as a lawyer on behalf of Ghosis and he pleaded on their behalf before the Sub Divisional Magistrate. It is also alleged that while these proceedings were pending the respondent was elected Chairman of the Municipal Board, Merta and thus on the application of the Ghosis, he passed an order sanctioning constructions on the land in question as claimed by his clients. It was, therefore, urged that the respondent was disqualified under the provisions of section 12 and his seat should be declared vacant.
The relevant provision of sec. 12 of the Act on which reliance has been placed on behalf of the petitioner runs thus : - "if any member during the term for which he has been elected Or nominated, votes or takes part as a member in the discussion of any matter in which he is professionally interested on behalf of a principal or other person, he shall be disabled from continuing to be a member and his seat shall be deemed to have become vacant. " The Director of Local Bodies after hearing the petitioners as also the respondent; Umed Nath came to the conclusion that the case was not at all covered by the said provision of Sec. 12 and therefore, he refused to declare that the respondent had become disqualified and thus his seat could not be declared vacant. The Officer held that on the clear terms of the section, it could not be said to be a case where the respondent had voted or taken part as a member in the discussion of any matter.
Mr. Chand Mal Lodha, learned counsel for the petitioner contends that the officer was in error in coming to that conclusion. He points out that in this case the respondent was professionally interested on behalf of the Ghosis in the proceedings under sec. 133 of the Code of Criminal Procedure relating to the construction on the land in dispute and he as a Chairman of the Municipal Board, sanctioned certain constructions op the land as prayed for by the Ghosis; and therefore, he did something more serious than what was required by the law itself. It should be, under these circumstances, held that the case is fully covered by the provision. We are unable to accept this contention. We have already quoted the section in question. It expressly says that if any member "votes or takes part in the discussion of any matter" in which he is professionally interested. It is only then that he is disabled from continuing to be a member. Mr. Lodha suggested that if this specific provision is held not to cover a case of this kind, then there is no other provision in the Act under which the conduct of the second respondent Chairman can be impugned. In answer to this contention, our attention has been drawn on behalf of the respondent to secs. 14 and 22 of the Act. Sec. 14 says that "the Govt. , if it thinks fit, may remove any member elected or nominated under this Act, after giving him an opportunity of being heard and after such enquiry as it deems necessary, if such member has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties as a member. It is quite clear therefore, that if the charge levelled against' the said respondent is correct, then his act may amount to misconduct in the discharge of his duties as a Chairman of the Municipality and a fortiori as a member thereof; and the appropriate section which would apply to such a cases would be sec. 14. He is not only the Chairman of the Municipal Board but is a Chairman by virtue of his being also a member of the Municipal Board. But the specific provision which relates to the case of a Chairman is sec. 22 of the Act Wherein by sub-sec. 10 it is provided that every chairman and every vice-chairman shall after an opportunity is afforded for hearing him, be removable from his office as such chairman and vice-chairman by the Government for misconduct in the discharge of his duties or for neglect of or incapacity to perform his duties. This provision is sufficiently comprehensive to cover a case of this nature. In fact the removal of a chairman or a vice-chairman is possible not only where there is misconduct in the discharge of his duties but also where he neglects the discharge of his duties or on account of his incapacity is unable to perform his duties. Now these are the specific provisions under which action could be taken against the respondent if the facts as stated by the petitioner are correct. The facts alleged are however seriously disputed by Mr. Tyagi, the learned counsel for the second respondent. The Director of Local Bodies has proceeded on the assumption that even if these facts are assumed to be correct, the case is not covered by the provisions of sec. 12 (3) (b) (ii ).
It may also be observed that after action has been taken against the member or the Chairman of the Municipal Board under sec. 14 or under sec. 22 of the Act, removing a member or the Chairman or Vice-Chairman concerned from his office, then under sec. 12 (3) (a) of the Act, he is disabled from continuing as member and his seat is deemed to become vacant. Sub-sec. 3 (a) says that "if any member during the term for which he has been elected or nominated becomes subject to any of the disqualifications specified in sub-sec. (1), then he is disabled from continuing as a member and his seat becomes vacant. " - Now clause (5) sub-sec. (1) of Sec. 12 says that no person may be a member of a Municipal Board who has been removed from office under sec. 14 or sub-sec. (10) of Sec. 22 of the Act. It is thus clear that on account of his removal under sec. 14 or under sec. 22 (1) there is a disqualification incurred by the member and consequently his seat becomes vacant under those circumstances.
We understand that in this case a notice has already been issued by the Government to the respondent to take action under sec. 12 (3) (b) of the Act. That was done on a reference made by the Collector under sec. 195 of the Act. Mr. Lodha contends that sec. 195 of the Act has really no application to the case and the notice issued by the Government directing the respondent to show cause under sec. 12 (3) (b) of the Act is not appropriate. There appears to be substance in this contention of Mr. Lodha, but as we have pointed out the appropriate sections under which the Government can act are secs. 14 and 22 of the old Act and sec. 63 of the new Act (Rajasthan Municipalities Act, 1959 Act No. XXXVIII of 1959 ). It is hardly necessary for us at present to say anything further-in the matter because the only question which arises before us is whether the order passed by the Director of Local Bodies is correct or there is any error apparent on the face of the record in the order in question. We do not find that the order of the Director of Local Bodies is in any way illegal or ultra vires and we, therefore, see no reason to interfere with the same. The application is accordingly rejected. We may also observe that the application was filed at a very late stage almost eight months after the order of the Director of Local Bodies had been passed.
Since we are informed that Government have started proceedings against the, second respondent we direct that each party should bear his own costs of this application. .
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