TATIA, J. - (1.) THE petitioner was elected as Member of the Municipal Council, Pali in the month of November, 2004 from Ward No. 11 on the basis of ticket given by the Congress Party and was elected as Chairman of the Municipal Council, Pali on 27-11-2004. THE petitioner has been suspended from the post of Chairman,municipal Council, Pali by the State Government under Section 63 (4) of the Rajasthan Municipalities Act, 1959 vide order dated 11-6-2007, hence the petitioner in this writ petition has challenged the order passed by respondent no. 1 dated 11-6-2007 (Annex. 11) by which the petitioner has been suspended from the post of Chairman, Municipal Council, Pali.
(2.) ACCORDING to the petitioner he was discharging the duties with utmost sincerity and honesty. In last more than two and half years of the tenure, no serious complaint of any misconduct has been made against the petitioner except some false complaints made by Shri Gyan Chand Parakh, MLA, Pali. Because of prejudice of rival political party, the ruling party in the State of Rajasthan and the petitioner being member of Congress Party, the complaints were submitted against the petitioner by the local MLA. The petitioner also submitted that he is aspirant for the MLA seat from Pali as Congress Party candidate, therefore, the local sitting MLA who is from BJP wants to tarnish the image of the petitioner. On the basis of these complaints, the Additional Director, Directorate, Local Bodies came to Pali for enquiry. The Additional Director conducted the thorough enquiry in each and every allegation levelled in the complaints and has thereafter submitted his report on 24-1-2007. The copy of the complaints made against the petitioner, in bunch has been placed on record as Annex-1-The copy of the enquiry report dated 24-1-2007 has been placed on record as Annex-2- ACCORDING to the petitioner, in the said report dated 24-1-2007 submitted by the Additional Director, Local Bodies to the Government, has proposed some action against the LDC and UDC of the Municipal Council, Pali but gave a specific finding that the Chairman-petitioner is not involved in tempering with the record of the Municipal Council, Pali particularly in the pattas of some plots for which complaints have been lodged. In the report it is also specifically observed that when the irregularity in respect of Pattas no. 5 and 23a came in the knowledge of the Chairman, he immediately stopped permission of the construction over the said plots. However, in the report it is mentioned that the Chairman has adopted a lax attitude by not filing FIR in the police. It was further observed in the report that in the matter of land allotment to INTUC, a wing of the Congress Party, the Commissioner as well as the Chairman of the Board have not taken effective proceedings when the INTUC has used the plot allotted on concessional rate for commercial purposes by raising several shops over it and, therefore, the explanation should be sought from the Commissioner/chairman of the Municipal Council, Pali. On 2-2-2007, the petitioner received an order from respondent no. 2-Deputy Secretary, Local Self Department, Government of Rajasthan, Jaipur, who directed the petitioner to lodge the FIR with the police in respect of irregularity found in the various Pattas in the enquiry report (Annex. 2 ). The petitioner also received another notice of the same date i. e. 2-2-2007 whereby the petitioner was asked to submit his explanation in respect of not filing FIR in the cases of Plots no. 5 and 23a and for not taking any further action in the case of use of concessional rate allotted land by the INTUC for commercial purpose after giving notice under Section 170 of the Act of 1959. The copy of this notice is also placed on record as Annex-4- According to the petitioner, on receipt of the order dated 2-2-2007 (Annex. 3), on the next day on 3-2-2007, the petitioner submitted a report to the SHO, Police Station, Kotwali and requested him to lodge FIR. The copy of the communication sent to the SHO, Police Station, Kotwali is also submitted by the petitioner as Annex-5- According to the petitioner, the SHO, Police Station, Kotwali, Pali returned the complaint to the petitioner at 10. 00 p. m. in the night on 3-2-2007 itself by saying that in respect of Plots No. 18, 5 and 16, FIRs have already been lodged by some individuals and the investigations are going on. The concerned SHO further informed the petitioner that in respect of Plots no. 23-A, 37 and 38, details should be supplied that who forged and tempered with the pattas and separate FIR for each plot should be submitted along with all original record then only the FIRs can be registered. After receipt of the communication from the SHO, Police Station (Annex. 6), the petitioner immediately directed the Commissioner, Municipal Council, Pali to approach the SHO, Police Station, Kotwali along with original record and all other details for which the SHO, Police Station, Kotwali has asked vide letter dated 3-2-2007. The copy of the directions issued by the petitioner to the Commissioner, Municipal Council, Pali is placed on record as Annex-7- In that way, the FIRs have already been lodged against the suspected persons in respect of Plots no. 23-A, 37 and 38. In response to the notice dated 2-2-2007 by which the explanation was sought from the petitioner, by the Director, Local Self Bodies, the petitioner submitted his representation dated 9-2-2007 and also asked for the copies of certain documents for the purpose of filing detail explanation in response to the notice. The copies of the relevant documents were not supplied to the petitioner, then again the petitioner on 17-2-2007 requested for copies of the documents. On 26-2-2007, the Additional Director,directorate Local Bodies,government of India informed the petitioner to inspect the record in office time at the Directorate Jaipur and to file reply within 15 days. On 8-3-2007, the petitioner again moved representation and requested for documents for the purpose of filing reply to the notice dated 2-2-2007. Ultimately, the Deputy Secretary, Local Bodies, Govt. of Rajasthan, Jaipur issued order on 13-3-2007 whereby the copy of the complaints made by the local MLA Shri Gyan Chand Parakh, copy of the report of the Additional Director, Directorate, Local Bodies dated 24-1-2007 were supplied to the petitioner but no other document for which the petitioner made request were given and the petitioner was asked to submit his explanation within three days upto 16-3-2007. The petitioner also placed on record copy of the order-sheet dated 13-3-2007 as Annex-9-According to the petitioner,the Commissioner of the Municipal Council, Pali supplied order dated 13-3-2007 to the petitioner on 14-3-2007 at 9. 15 p. m. In that situation, the petitioner was left with no option and he immediately rushed at Jaipur for filing the reply on 16-3-2007. The petitioner submitted his reply contending that all the documents have not been supplied to the petitioner and, therefore, he is filing the interim reply with the request to provide him opportunity of personal hearing before taking any decision and the petitioner also submitted to withdraw the notice dated 2-2-2007. The petitioner also placed on record copy of the reply submitted by him before respondent no. 2 as Annex-10- According to the petitioner, by his reply, he made all the facts straight and clear before the concerned authority and informed the concerned authority that the Municipal Council, Pali was directed to lodge FIR at the Police Station, Kotwali, Pali in respect of Plot no. 5 and in respect of plot no. 23-A, the FIR has already been lodged with the police. The petitioner, in reply, further stated that in the matter of land use by the InTUC for commercial purpose, a notice under Section 170 of the Act of 1959 was already issued to the allottee on 24-4-2006 and thereafter, the InTUC applied for change of land use and has also deposited the requisite charges for and on which the Commissioner, Municipal Council, Pali has already allowed the change of land use. The petitioner, in his reply, stated that the petitioner was not informed by any authority regarding the commercial use of the land by the InTUC and the Commissioner, Municipal Council is only authority empowered to take action against the violators as per the notifications issued under the provisions of the Act of 1959. According to the petitioner, thereafter the petitioner heard nothing on his representation but the petitioner came to know from some other persons that there is a news on one news-channel conveying that the Chairman of the Municipal Council, Pali has been suspended. This news came on 11-6-2007. Then the petitioner obtained the copy of the suspension order dated 11-6-2007 at about 10 p. m. by Fax. The copy of this suspension order dated 11-6-2007 has been submitted by the petitioner along with the writ petition as Annex. 11. By this order dated 11-6-2007, the State Government decided to initiate proceeding against the petitioner under Section 63 of the Municipalities Act and by invoking power under Section 63 (4) of the Act of 1959, the petitioner has been suspended from the post of Chairman and Member of the Municipal Council, Pali. In the background of these facts, the petitioner has to file the present writ petition. According to the petitioner, the order dated 11-6-2007 (Annex. 11) is in violation to the provisions of Section 63 of the Act of 1959. According to the petitioner, till the date of passing order dated 11-6-2007, the State Government has not drawn up a statement of charge against the petitioner and has not sent the same for enquiry to the judicial officer under Section 63 (2) of the Act of 1959. Therefore, according to the petitioner, the proceeding under Section 63 of the Act of 1959 has not commenced against the petitioner and, therefore, power under Section 63 (4) of the Act of 1959 cannot be invoked. The power under sub-section (4) of Section 63 can be exercised only after commencement of the proceeding under Section 63. The learned counsel for the petitioner relied upon the Division Bench judgment of this Court delivered in the case of Sohan Lal Mareja vs. The State of Raj. & ors. (D. B. Civil Special Appeal No. 626/2004) decided on 18-1-2005, wherein though the matter was different but the entire scheme of Section 63 has been examined by the Division Bench of this Court even with respect to the power of the State Government in suspending the Member of the Municipal Board/council.
(3.) IT is also submitted that before passing order dated 11-6-2007, the respondent no. 2 has not applied his mind on the explanation given by the petitioner and also has not considered the enquiry report dated 24-1-2007 (Annex. 2) submitted by the Additional Director, Local Bodies. According to the petitioner, the Additional Director specifically gave a finding that the petitioner was not involved in tempering with the record of the Municipal Council, Pali and after knowing about the irregularities in some pattas, the Chairman immediately stopped the permission for raising construction over the disputed plots. In the explanation Annex. 10, the petitioner specifically clarified that in respect of plot no. 5, he has already set up a Committee way back on 25-2-2006 and the enquiry committee has not submitted its report till date. The petitioner also made it clear that immediately after direction of the State Government on 2-2-2007, the petitioner proceeded to lodge FIR against the culprits. Therefore, it cannot be said that the petitioner was guilty of any inaction on his part. In respect of plot no. 23-A, there is not a single whisper in the enquiry report (Annex. 2) about the involvement of the petitioner. According to the petitioner, in the enquiry report, the Additional Director specifically observed that in case of violation of conditions of allotment by the INTUC, the board has failed to take effective steps and it has not been held by the enquiry officer that solely the Chairman has failed to take effective steps. According to the petitioner, the petitioner cannot be blamed for any irregularity, misconduct or abuse of power as Chairman of the Municipal Council, Pali as the observations in the enquiry report are in favour of the petitioner and some observations are not reflecting against the petitioner's conduct. The petitioner also submitted that the action of the suspension of the petitioner is malafide and is the result of political vendetta on the basis of the facts already referred above. According to the petitioner, the petitioner's suspension is an stigma in the political career of the petitioner and in the facts and circumstances of the case, no case for suspension is made out against the petitioner. The petitioner also submitted that it is impossible to say that the petitioner, as a Chairman of the Municipal Council, Pali , will affect the enquiry in any manner and, therefore, the suspension is unwarranted. The petitioner's contention of malafide is malafide in law and not against any person as such. The petitioner further submitted that even if it is assumed that there was some laxity on the part of the petitioner in not taking action against the INTUC then also such a single inaction cannot be termed as an abuse of power in any manner, nor it can be said that the petitioner became unworthy of holding the office of Chairman. The petitioner further submitted that on several occasions, the petitioner directed to take disciplinary action against the employees who were not following the instructions and the resolutions of the Municipalities. ;