- (1.) BOTH these petitions have been filed for quashing the No Confidence Motion dated 31.03.2001 (Annex. 5). Since common questions of law are involved in these petitions, they are being decided by this common judgment taking S.B. Civil Writ Petition No.1610/2001 as leading case.
(2.) THE facts and circumstances giving rise to this case are that petitioner Guman Mal Parmar contested the election of Ward Member of Municipal Board, Bhinmal and on being elected as such, he was further elected as the Chairman of the said Board in 1999. A No-confidence motion was moved against the petitioner, on which a meeting was held on 31.03.2001 for its consideration. THE District Collector nominated respondent No.4 to preside over the meeting. Seventeen members supported the motion and it was declared to have been passed. Hence this petition. The facts are not in dispute. Only legal issues have been raised. Altogether there are twenty-five elected members in the Municipal Board, Bhinmal (for short, "the Board"). Two members have been nominated by the State Government vide order dated 16.11.2000 and as per the provisions of See. 9 of Rajasthan Municipalities Act, 1959 (for short "the Act"), the local M.L.A. is also an ex officio member of the Board. Therefore, the total number of members of the Board comes to twenty-eight. Rule 3 of the Rajasthan Municipalities (Motion of No-confidence against Chairman and Vice Chairman) Rules, 1974 (for short, "the Rules, 1974") provides that V3 members of the Board may submit a written notice of intention to make motion of no-confidence in the Chairman or Vice Chairman to the District Collector and the same shall be served by registered post to all the member indicating the date, time and place and date of meeting. As per R.8 of the Rules, 1974, if a motion is not carried by 2/3 of the whole number of the members or if the 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 lost. Sub-rule (9) of R.8 reads as under:- "If the motion is carried by a majority of two-third members of whole number of members, the motion shall be deemed to have been passed against the Chairman or Vice Chairman, as the case may be, and such Chairman or Vice Chairman shall forthwith be deemed to have vacated his office." The term "whole number" or "total number" has not been defined in the Rules of 1974, but R. 2(2) of the said Rules provides that an expression used but not defined in the Rules, shall have the meaning assigned to it in the Act. See, 3(36) of the Act defines "whole number" or "total number" with reference to the members of a Board as the total number of members holding office at the time. Thus, the basic question involved herein is as what should be the exact number of members, of which 2/3 is required to pass a No-confidence motion? According to Mr. Lodha, learned counsel for the petitioner, the whole number of the Board have been twenty-eight, as such minimum nineteen votes were required to remove the petitioner and in the instant cases, as only seventeen members have voted against the petitioner, the impugned resolution/order is liable to be quashed.
(3.) ON the other hand, learned counsel appearing for the respondents, have submitted that "total number" or "whole number" does not include the nomi-nated members and the M.L.A. and, thus, as 2/3 of the elected members are required for passing the resolution of no-confidence motion, the impugned resolution does not require any interference. According to them, even if it is so required, the local M.L.A. and two nominated members had not taken oath, as mandatorily required u/s. 61 of the Act, and they cannot be held to be members in strict sense and as one of the elected members, namely Sri Raja Ram Bhil, was under suspension at the relevant time so he has also to be excluded while counting the total number. Before proceeding on merit, it may also be pertinent to mention here that learned counsel for the respondents have raised a preliminary objection regarding hearing of the petitions contending that the respondents have challenged the constitutional validity of the provisions of Sec. 3(36) of the Act, defining "whole number" or "total number" and Cl. (3) of R.9 of the Rules, 1974 by filing D.B.C.W.P. No.2879/2001 and as the said petition has been entertained by the Division Bench of this Court, the matter cannot be heard by the Single Bench and it has to be referred to the Division Bench for disposal along with the said petition. To fortify the contention, reliance has been placed upon the decision of the Hon'ble Supreme Court in State of U.P. & Ors. vs. Rajesh Kumar Misra (1) wherein the Hon'ble Apex Court has held that connected writ petitions should be clubbed and heard together. In that case, the writ petition had been filed by ad-hoe appointee continuing in service by virtue of interim order of the Court but during selection process, he had been placed below in the merit list and the other persons having higher position in the select list had filed writ petition to make appointment on the basis of the merit list. The Hon'ble Supreme Court held that in such a situation, both the petitions should be heard together and disposed of by a common order. Similarly, in Government of Andhra Pradesh & Ors. vs. Gudepu Sailoo & Ors. (2) the Hon'ble Apex Court held that when two appeals were filed against a common judgment and two distinct questions were involved, both the appeals should have been heard together. ;