Sunil Kumar Garg, J. - (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 (Hardeo Sahay) be ordered to be ousted from the office of Chairperson, Municipal Board. Suratgarh with all consequential direction 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 2/3rd 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. (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 (Hardeo Sahay) to the Collector, Sri Ganganagar (respondent No. 2). (v) That the Collector, Sri Ganganagar (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 said meeting which included respondent 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 2/3rd 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 Mohd.) 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. 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 2/3 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 abovementioned prayer. 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.
(3.) 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. Jairoopa Ram and Ors.), on 14.8.2002 and in that judgment, this Court came to the following conclusions: In our view, the decision of Supreme Court in Raees Ahmed's, case : (2000)1SCC432 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 fo 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, ultravires...;