MISRA, J. - (1.) IN all these writ petitions the principal question which has been raised is whether the Member of Legislative Assembly (MLA) and Member of Parliament (MP) representing a constituency can be treated as full fledged Member of the Municipal Council, so as to participate and vote in the proceeding of No Confidence Motion for removing the Chairman or Vice-Chairman of the Municipal Council and hence were required to be given a notice of the meeting for carrying out the motion of No Confidence.
(2.) THE question has cropped up since No Confidence Motions have been passed against all these petitioners, who were either Chairman or Vice Chairman of their respective Municipalities and they are all commonly aggrieved against their removal on account of passing of the No Confidence Motions against them and the ground of challenge is also essentially the same in material particulars as the factual details which have been urged for challenging the No Confidence Motions are clearly disputed questions of facts and hence do not deserve any interference on these counts. Hence, the only question on which arguments were entertained is the one referred to hereinabove. It would be therefore be sufficient to state summarily that the petitioner Prakash Chand in SBCWP No. 5410/97, who having succeeded as a Ward Member of Municipal Council, Karauli was elected subsequently as Chairman by the support of majority of members of the Municipal Council, but thereafter has been removed since No Confidence Motion had been initiated against him which was carried out as 24 out of 25 members voted in support of the motion. Smt. Laxmi Devi in SBCWP No. 5539/97 also had been elected Vice Chairman, after she succeeded in the election of Ward Members of Municipal Board Kotputli but has been voted out of the post of Vice Chairman as the No Confidence Motion which had been initiated against her was supported by 17 out of 25 members. Similarly, Yogesh Chand Saini, who is the petitioner in SBCWP No. 2510/97 was voted out from the post of Chairman of Alwar Municipal Council, since 35 out of 36 members, who were present in the meeting voted in support of the No Confidence Motion against Shri Saini and last of all Shri Radhey Shyam Sharma in SBCWP No. 2460/97 who was the Chairman of Municipal Board, Bandikui was also removed from the post of Chairman, as the No Confidence Motion has been carried out against him since 10 out of 15 members voted in support of No Confidence Motion in this matter. However, the petitioner in this writ petitioner has disputed about the validity of vote of one of the members on the ground that his resignation from the membership of the Council should not have been treated as effective on 5. 11. 1996, which was the date of the meeting for carrying out No Confidence Motion. But I do not deem it worthwhile to enter into this dispute as the writ petition had not been entertained due to this grievance. It can thus be noticed that all the petitioners have been removed from their respective posts as the motions for No Confidence has been passed by the votes of 2/3rd members of the Municipal Council, which is the mandatory legal requirement for passing the No Confidence Motion as envisaged in the Rajasthan Municipalities Act, 1959 (hereinafter to be referred as the `act of 1959' ). Challenging the No Confidence Motions, all the petitioners, however, have narrated detailed facts separately in their writ petitions which in substance is for the purpose of impressing upon this Court that the procedure for passing No Confidence Motion have not been duly followed and the voters were influenced in various ways and also were pressurised to vote in support of the motion adopting devious method. In some of the writ petitions, the petitioners have also challenged about the eligibility of some members participating in the proceeding. As already stated, it is difficult to entertain submissions on these counts since all these writ petitions were clearly not entertained to scrutinies the factual details nor the same is the function of this Court while exercising its writ jurisdiction.
(3.) THE counsel for the petitioners therefore, have made a desperate attempt to challenge the No Confidence Motions in order to bring it within the scope of legal parameters and hence, they have all urged that the Parliament vide its 74th Amendment of the Constitution of India, has incorporated in Part IX under Article 243-R incorporating provisions for Composition of Municipalities, which reads as under: "243-R. Composition of Municipalities: Save as provided in Cl. (2) all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards, (2) THE Legislature of a State may, by law, provide (a) for the representation in a Municipality of (i) persons having special knowledge or experience in Municipal administration; (ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area; (iii) the members of the Council of State and the members of the Legislative Council of the State registered as electors within the Municipal area; (iv) the Chairpersons of the Committee constituted under Cl. (5) of Art. 243-S: Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meeting of the Municipality; (b) the manner of election of the Chairperson of a Municipality. " In view of the aforesaid amendment to the Constitution, the State of Rajasthan also introduced necessary amendment in the Rajasthan Municipalities Act, 1959 vide the Rajasthan Municipalities (2nd Amendment) Act, 1994. The amendment that the introduced in Section 9 of the Municipal Act is as follows: " (i) Subject to the provisions contained in the succeeding sub section to save as provided in the following provisions of this sub section of the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies known as wards, the members of such seats, not being less than 13, being fixed by the State Government from time to time by notification in the Official Gazette; (a) the following viz. (i) three persons or 10% of the number of elected members of a Municipality, which ever is less with special knowledge or experience in Municipal Administration as co-opted by the elected members of the Municipality and; (ii) A member of the Rajasthan Legislative Assembly representing a constituency which comprises wholly or partly the area of a Municipality, shall be represented on the Board, Council or Corporation of such Municipality. Provided that the persons referred to in sub clause (1) shall not have the right to vote in the meetings of the Municipality and (b) A member of the House of the People representing a constituency which comprises wholly or partly the area of a Municipality with a Municipal Council or as the case may be a Municipal Corporation shall be represented on the Council or Corporation of such Municipality. The amendment further incorporated under 1a upon the completion of each census after the establishment of the Board, the number of seats shall be re-determined by the State Government by notification in the official gazette on the basis of the population of the Municipal area within the territorial jurisdiction of the Board as ascertained at the latest census. Provided that the determination of seats as aforesaid shall not affect the then composition of the Board until the expiry of the duration of the Board. " The amendment introduced in Section 9 of the Rajasthan Municipal Act of 1994 has given plank to the petitioners' counsel to urge that in view of the provisions with regard to Motion of No Confidence under the Act of 1959 as well as the relevant rules as also the provisions regarding the conduct of business of a meeting of the Municipal Boards as well as its relevant rules, every member has to be called in the meeting by intimation to him through a notice and as such every member has a right to participate in the meetings. All the learned counsels for the petitioners have therefore tried to establish that the Member of Parliament as also the Member of the Legislative Assembly should be treated as a Member of the Municipal Board in view of the amendment introduced and according to them the MLAs and MPs are also the members, who constitute the Municipal Board as a result of which the notice of the meeting for carrying out no confidence motion ought to have been issued to them also and they should have been allowed to exercise also their right to vote in such meetings. To re-inforce this aspect of the matter, they have also urged that the State of Rajasthan itself vide its circular dated 6. 3. 95 made it clear vide Annx. 6 in SBCWP No. 5410/97 making it clear by issuing instructions to all the Commissioners/executive Officers/municipal Corporation/board/municipalities of Rajasthan to comply with the provisions of Section 9 of the Act of 1959 in accordance with the 74th Amendment of the Constitution so as to ensure that notice of meeting of the Board be issued to all Members of Parliament and Member of Vidhan Sabha of the area. Since the relevant provision under the Rajasthan Municipalities Act of 1959 provides under Section 72 of the Act that "motion expressing No Confidence in the Chairman or the Vice Chairman shall be made and considered in the manner prescribed". It is in this context that the counsel for the parties in all these matters have stressed on the requirement of issuing notice to the Members of Parliament and the Members of the Legislative Assembly in the meeting of the Board including the meeting for carrying out the No Confidence Motion against the Chairman or the Vice Chairman of Municipal Council. ;