JAGAT NARAYAN, J. - (1.) THIS is a petition under Art. 226 of the Constitution by one Sohanlal an elected member of Municipal Board Shri Doongargarh from ward No. 3 against the co-option of Smt. Dakhan and Smt. Jyani respondents Nos. 4 and 5 under sec. 9 of the Rajasthan Municipalities Act, 1959. The petition has been contested on behalf of the respondents.
(2.) THE facts which have given rice to this petition are these. Yamuna Prasad, respondent No. 3, was elected as a member of the Municipal Board Shri Doongargarh in 1959. He was also elected as the Chairman of the Board. During the term of his office an inquiry was held against him under sec. 63 (1) of the Act and he was suspended pending inquiry under sec. 63 (4) read with sec. 65 (10 ). Before a final order was passed by the Government under sec. 63 (3) fresh elections to the Board took place on 30-12-63 and Yamuna Prasad was re-elected as a member of Board. On the expiry of the term of the previous Board the new Board began to function and Yamuna Prasad started function as a member of the new Board. On 14-1-64 co-option proceedings took place and he took part in them. THE main contention of the petitioner is that Yamuna Prasad was not entitled to take part in the co-option proceedings as because of the order of suspension against him he was not entitled to take part in any proceedings of the Board to perform any duty of the Board thereof and the co-option proceedings were vitiated because he was allowed to participate in them. Having heard the learned counsel for the parties I am unable to accept this contention. Sections 63, 63-A and run as follows: - "63. Removal of members - (1) The State Government may, subject to the provisions of sub-secs. (2) and (3), remove a member of a board on any of the following grounds, namely - (a) that he has absented himself from the meetings of the board of more than three consecutive months for three consecutive ordinary general meetings, whichever is the longer period, without leave of the board: Provided that the period during which such member was in jail as an under trial prisoner or as a detenu or as a political prisoner shall not be taken into account, (b) that he has failed to comply with the provisions of sec. 61, (c) that after his election he has incurred any of the disqualifications mentioned in sec. 18 or sec. 26 or has ceased to fulfil the requirements of sec. 24, (d) that he has - (i) been guilty of misconduct in the discharge of his duties, or (ii) been guilty of any disgraceful conduct, or (iii) become incapable of performing his duties as a member, or (iv) otherwise flagrantly abused in any manner his position as such member : Provided that an order of removal shall be passed by the State Government after such inquiry as it considers necessary to make either itself or through such officer or authority as it may direct and after the member concerned has been afforded an opportunity of explanation. (1-A) the power conferred by sub-sec. (1) may be exercised by the State Government of its own motion or upon the facts otherwise coming to the knowledge of the State Government; Provided that, until a member is removed from office by an order of the State Government under this section, he shall not vacate his office and shall subject to provisions contained in sub-sec. 4, continue to act as, and to exercise all the powers and perform all the duties of a member and shall as such be entitled to all the rights, and be subject to all the liabilities, of a member under this Act. (2) Notwithstanding anything contained in sub-sec. (1) where it is proposed to remove a member on any of the grounds specified in clauses (c) or clause (d) of sub-sec. (1), as a result of the inquiry referred to in the proviso to that sub-section and after hearing the explanation of the member concerned, the State Government shall draw up a statement setting out distinctly the charge against the member and shall send the same for inquiry and findings by judicial officer of the rank of a District Judge to be appointed by the State Government for the purpose. (3) The judicial officer so appointed shall proceed to inquire into the charge in the prescribed manner, hear the member concerned if he makes appearance, record his findings on each matter embodied in the statement as well as on every other matter he considers relevant to the charge and send the record along with such findings to the State Government, which shall thereupon pass orders in conformity with those findings. (4) Notwithstanding the foregoing provisions of this section, the State Government may place under suspension a member against whom proceedings have been commenced under this section until the conclusion of the inquiry and passing of the final order and the member so suspended shall not be entitled to take part in any proceedings of the board or otherwise perform the duties of a member thereof. (5) Every order of the State Government passed under this section shall be published and no such order shall be liable to be called in question in any court. "63-A. Inquiry into certain allegations after expiry of term of office - (1) In respect of any allegations of the nature specified in clause (d) of sub-sec. (1) of Chairman or Vice-Chairman of a board, the enquiry referred to in the proviso to the said sub-section and in sub-secs. (2) and (3), of that section may be initiated against such member, Chairman or Vice-Chairman even after the expiry of the term of office of that board or after he has ceased to be such member, Chairman or Vice-Chairman, or, if already initiated before such expiry or ceaser, may be continued thereafter and in each such case the State Government shall by order in writing only record its findings in conformity with those of the Judicial Officer recorded under sub-sec (3) of sec. 63. (2) The provisions of sub-sec. (5) of sec. 63 shall apply to the findings of the State Government so recorded. " "64. Disability of members removed under sec. 63 (l) (d) - A member who has been removed under clause (d) of sub-sec. (1) of sec. 63 or against whom adverse findings have been recorded under sec. 63-A shall not be eligible for reelection for a period of three years from the date of the order of his removal ( or of recording adverse findings, as the case may be ). " The contention of the petitioner is that the order of suspension u/sec. 63 (4) remains effective until the passing of the final order and as the final order has not been passed Yamunu Prasad was not entitled to function as an elected member of the Board. In my opinion the effect of an order passed u/sec. 63 (4) ceases as soon as the term of the Board during the continuance of which the order is passed comes to an end. On the expiry of the term of the board however the enquiry can be continued under the provisions of section 63-A. But that section does not extend the operation of the order of suspension under section 64 (4) after the termination of the term of the board during which it was passed. Nor does it authorise the suspension of the person concerned of the new board to which he may have been re-elected. It is noteworthy that sec. 63-A does not apply the provisions of section 63 (4) to an inquiry held or continued after the expiry of the term of office to which it relates. I accordingly find that Yamuna Prasad was entitled to function as a member of the new Board after his election to it on 30-12-63. The next ground on which this petition is based is that certain sums of money were outstanding against Yamuna Prasad of the Board and hence he was disqualified to be choosen as a member. The election of Yamuna Prasad on that ground could only be set aside by filing an election petition. As no such election petition was filed within the time provided by law the election of Yamuna Prasad can no longer be challenged on this ground. The respondents have taken some other grounds also in their reply, but it is not necessary to go into them. I accordingly find that there is no force in this writ petition and dismiss it. In the circumstances of the case, I direct that parties shall bear their own costs of it. . ;