CW 1359/10 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.1359/2010 Nirmal Nahta & Ors Versus State & Ors. Date of Order : 08/04/10 /Reportable/ Hon'ble Mr. Justice Ajay Rastogi Mr. Ajeet Kr. Sharma, for petitioners Mr. Alok Sharma, for respondents-2 & 3 Mr. Jainendra Jain, Govt. Counsel for respondent-State Instant petition has been jointly filed by 18 petitioners who are elected members/Corporators of Jaipur Municipal Corporation (“Corporation/JMC”), with the grievance that despite various requests made by majority of elected corporators including petitioners, respondents-3 & 4 in particular, are avoiding to convene meetings of Corporation for constitution of various committees provided U/S 55 of Rajasthan Municipalities Act, 2009 (“Act, 2009”). Election of Corporators of JMC was held in November, 2009. As alleged, the petitioners contested election of Corporators from their respective wards of JMC on tickets allotted by Bhartia Janta Party (BJP) and were declared as elected members of JMC. It has also been alleged that out of total strength of 77 members of JMC, majority of the elected members (46 Corporators) belongs to one political party. As a result of new composition of JMC, it started functioning CW 1359/10 //2// since 26/11/2009 and respondent-3 was elected as Mayor cum Chairperson of JMC. When respondent-3 failed to call ordinary general meeting of JMC as provided U/s 51(1) of the Act, 2009, joint representation dt.17/12/2009 (Ann.1) signed by 46 Corporators including Deputy Mayor & the petitioners was sent requesting respondent-3 to call special meeting U/s 51(2) of Act, 2009 - pursuant to which, letter dt.23/12/2009 (Ann.2) was sent by respondent-3 informing that action shall be taken in terms of S.51(1) of the Act, 2009. But when respondent-3 failed to call special meeting in terms of their request made on 17/12/2009 (Ann.1), further request was made by 34 Corporators including petitioners on 24/12/2009 (Ann.3) while approaching Chief Executive Officer U/s 51(3) of Act, 2009 requiring him to call special meeting, which he was under obligation to call within 10 days from 24/12/2009. It is relevant to mention that the Corporators had submitted their agenda regarding constitution of various committees and discussion on cleanliness of Jaipur besides other agenda items. However, Chief Executive Officer, JMC wrote a letter to Dy. Mayor in regard to agenda item No.1 about constitution of committees U/s 55 which shall be constituted in an ordinary general meeting as provided U/s CW 1359/10 //3// 51(1) of Act, 2009. It has been averred in the petition that R.3 of Duty Rules, 2009 – reference whereof has been made by Chief Executive Officer in his letter dt. 31/12/09 was published in gazette dt.08/01/10; and as per S.337(5) all Rules made by the State Government shall come into effect on or from the date of their publication in official gazette. When no action was taken, joint representation was made by 47 Corporators on 06/01/2010 (Ann.6) requesting the respondent-3 to call a meeting on agenda items mentioned therein by including them in ordinary general meeting scheduled to be held on 13/01/2010 but for the reasons best known to respondents, various agenda items throughout being reiterated by petitioners in their joint representations one after the other in regard to constitution of various committees but still it was not included in the agenda items of meeting scheduled by respondents and no explanation in specific came forward on record. Finally on 18/01/2010, legal notice (Ann.8) on behalf of 20 Corporators including petitioners was served upon respondent-3 & 4requesting them to call an ordinary general meeting within 7 days for constitution of committees. Since the respondents did not pay any heed to their requests, rather CW 1359/10 //4// deliberately avoiding to hold ordinary general meeting/special meeting for constitution of the committees with an oblique motive to get the time prescribed under Act, 2009 to expire so as to enable State Government to exercise its powers for constitution at its own. It constrained the petitioners to approach this Court by way of instant petition filed on 28/01/2010. Counsel for petitioners submits that respondents-2 & 3 were under legal obligation to convene an ordinary general/special meeting within 60 days as provided under sub-sections (1) of S.51 and within 7 days from the date of receipt of request made in writing by petitioners duly signed by not less than 1/3rd of elected members of JMC specifying their resolution about constitution of various committees proposed to be moved U/s 51(2); and immediately after election of Corporators, and new composition of the Corporation started its functioning on 26/11/09, which they failed to do so, inasmuch as when Chairperson (respondent-3) failed to call special meeting as requested by petitioners, in instant case, atleast Chief Executive Officer was under obligation U/s 51(3) to call special meeting within 10 days from the date of expiry of time specified in sub-section (2); but despite requests through joint representations being CW 1359/10 //5// made for convening an ordinary general/special meetings in terms of S.51(1), (2) & (3) of Act, 2009, for constitution of committees as provided U/s 55 in accordance with Rules; which the respondents failed to hold; and such action of the respondents was wholly arbitrary and in violation of Art.14 of Constitution. Counsel further submits that after the composition of JMC, the respondents deliberately has not convened the requisite meetings only with an oblique motive and intention to expire the statutory period of 90 days as provided for constitution of committees U/S 55 so that powers may divest to the State Government to constitute such committees and by such indirect method, the powers being vested in ordinary general meeting of the elected members of JMC for constitution of meetings of municipality can be frustrated; such action of respondents in no manner can be said to be in conformity with provision of Act, 2009. Counsel further submits that committees referred to in S.55 of Act, 2009 are to be constituted by Municipality; and power to constitute such committees vests in the Municipality, itself, in general/special meeting of members in terms of S.51(1) or (2), which cannot be diluted merely because of the omission on the part of Chairperson or Chief CW 1359/10 //6// Municipal Officer, as the case may be, and powers cannot be usurped by adopting indirect method by State Government under the garb of S.55(5) of Act, 2009. Respondents-1 & 2 have filed their separate reply to writ petition. However, it is relevant to mention that reply on behalf of State of Rajasthan and so also by JMC have been signed by Secretary of the JMC. As regards respondent-State, it has been inter- alia averred in their reply that the role of State government come into play only after expiry of 90 days stipulated for constitution of committees U/s 55(5); and since 90 days had not expired, it is for the Mayor of Corporation being empowered to constitute committees in terms of S.55 within 90 days. As regards reply filed by respondent-2, apart from preliminary objection being raised that 90 days from composition of present municipality (JMC) since 26/11/2009 having not expired, the writ petition is speculative and based on unwarranted assumptions of State Government invoking its powers with reference to the enabling provision of sub-section (5) of S.55 of the Act, 2009; it has been averred that word “shall” used in S.55 has to be construed as “may” and is directory in the context of over-all scheme of the Act; and constitution of the executive or other CW 1359/10 //7// committees as referred to in sub-sections (1) & (3) of S.55 are only recommendatory bodies and ultimately decision on all issues rests with the general body of Municipal Corporation constituted of its members. However, Counsel for respondents submit that committees are delegates of the municipality (JMC); even if constituted, still are subordinate to the municipality (JMC), and no mandmus can be issued to a duly elected body to delegate its powers to a subordinate body; therefore, the word, “shall” as referred to in sub-sections (1) & (3) to S.55 of Act, 2009 be read as “may” and being enabling provisions do not have consequences of failure to exercise the power spelt out; and it is not mandatory for the Municipality (JMC) to constitute committees as referred to in S.55 (1) & 55 (3) of the Act. This Court has considered rival contentions of Counsel for parties and with their assistance, examined material on record. To strengthen Municipal governance, framers of the Constitution inserted Part-IX-A (Art.243-P to 243-ZG) in the Constitution vide S.2 of the Constitution (74th Amendment) Act, 1992 (w.e.f. 01/06/1993). U/Art.243-P(e), “Municipality” means an institution of self-Government constituted under Art.243-Q, and in terms of Art.243-ZF of the Constitution, all the State CW 1359/10 //8// authorities were directed to make provisions under the Constitution (74th Amendment) Act, 1992 not inconsistent with provisions of Part- IX-A. Taking note of the Constitution (74th Amendment) Act, 1992, the State of Rajasthan with the assent of the Governor received on 11th day of September, 2009 enacted Rajasthan Municipalities Act, 2009. S.2(xlii) defines “municipality” which means a Municipal Corporation, Municipal Council, and a Municipal Board in existence at the time of commencement, or constituted in accordance with the provisions of the Act and members of Municipal Corporation are called as Corporators as defined in S.2 (xvi); whereas Chairperson of Municipal Corporation is called as “Mayor” in terms of S.2(xii) of Act, 2009. Chapter III of the Act, 2009 provides for conduct of business & ward committee. S.51 & 55 being relevant are quoted ad infra: “51. Provisions in regard to meetings of a municipality. - (1) There shall be an ordinary general meeting of the municipality once within sixty days and minimum six meetings in a calendar year and the business of the meeting shall be conducted in accordance with such procedure as may be prescribed. (2) The Chairperson shall call a special meeting for a date not more than seven days from the date of receiving a request in writing signed by not less than one-third of elected members of the municipality specifying the resolution, which is proposed to be moved. (3) If the Chairperson fails to call a special meeting within the time specified under sub-section (2), the Chief Municipal Officer shall call such meeting within ten days from the date on which the time CW 1359/10 //9// specified in sub-section (2) expires.” “ 55. Committees. - (1) In every municipality, there shall be an Executive Committee constituted and consisting of - (i) the Chairperson of the municipality, (ii) the vice-Chairperson of the municipality, (iii) the leader of the opposition; (iv) in case of a municipal corporation or municipal council seven members elected by the municipal corporation or, as the case may be, municipal council including two from the women members; (v) in case of a municipal board, such number of members not exceeding five, as may be determined by the municipal board, elected by the municipal board; (vi) the chairperson of the committees constituted by the municipality under sub-section (3); (2) The Chief Municipal Officer of the municipality shall be ex-officio Secretary of the Executive Committee. (3) In addition to the Executive Committee, every municipality shall also constitute the following Committees consisting of not more than seven to ten members, namely : - (i) a finance committee, (ii) a health and sanitation committee, (iii) a buildings permission and works committee, (iv) a slum improvement committee; (v) a rules and bye-laws committee, (vi) a compounding and compromising of offences committee, and (vii) looking to the functions of a municipality, it may also constitute such other committees, not exceeding eight in case of Municipal Corporation, not exceeding six in case of Municipal council and not exceedings four in case of Municipal Board, as it may deem necessary; Provided that the State Government may, looking to the functions of a Municipality, increase the maximum limit of committees specified in this clause. (4) The executive committee and the committees mentioned in sub-section (3) may exercise, perform and discharge such powers, duties and functions as may be prescribed. (5) The above referred committees shall be constituted by the municipality within ninety days of the constitution of the Municipality failing which the State Government may constitute such committees. Explanation :- For the removal of doubts, it is clarified that a nominated member may also be appointed as a member of a committee constituted under this section. “ CW 1359/10 //10// The scheme of the Act, 2009 discussed (supra) in general and Chapter III dealing with conduct of business & ward committee in particular clearly depicts that a Municipality after being constituted has to convene its ordinary general meeting in terms of S.51(1) once in 60 days with a minimum 6 meetings in a calendar year; and business of meeting has to be conducted in accordance with procedure as prescribed under the Act & rules framed thereunder. As per S.51(2), Chairperson has to call special meeting for a date not more than 7 days from the date of receipt of a request in writing duly signed by not less than 1/3rd of the elected members of municipality specifying the resolution being proposed to be moved and as per S.51(3), if the Chairperson fails to call special meeting within time specified U/s 51(2), Chief Municipal Officer has to call such meeting within 10 days from the date of expiry of time specified in S.51 (2) of Act, 2009. At the same time, S.54 of Act, 2009 provides constitution of ward committees while S.55 provides for constitution of various committees. However, S.55(1) provides that in every municipality, an Executive committee has to be constituted consisting of members mentioned therein; while S.55(2) provides that CW 1359/10 //11// Chief Municipal Officer shall be ex-officio Secretary of Executive committee. However, S.55(3) provides that in addition to executive committee, every municipality shall have to constitute various committees mentioned therein consisting of not more than 10 members. Such committees constituted either under sub-section (1) or (3) of S.55 will exercise, perform & discharge such powers, duties & functions as prescribed under the Act & Rules framed thereunder. But, if the committees mentioned in S.55 are not being constituted within 90 days of constitution of Municipality, the power thereaftr shall vest with State Government to constitute such committees U/s 55(5) of Act, 2009. But, once request was made, it cannot be withheld by the respective statutory authority. At the same time, S.55(1) clearly mandates that every municipality has to constitute its executive committee consisting of Chairperson, Vice Chairperson & opposition leader of the Municipality, apart from seven members elected by Municipality. Besides executive committee being constituted U/s 55(1), every Municipality is under legal obligation to constitute various committees consisting of not more than 10 members, referred to in S.55 (3) for better governance and administration of the Municipality in order to decentralize CW 1359/10 //12// the powers and for providing adequate opportunity to various elected members/ Corporators in case of Municipal Corporation being representatives of their ward; and sub- section (5) of S.55 of Act, 2009 appears to have been enacted with the object that if the Municipality, for cogent reasons, fails to constitute its committees as referred to in sub-sections (1) & (3) of S.55, ofcourse, powers thereafter vests with State Government to constitute such committees but certainly State Government in no manner can be permitted to constitute such committees at its own whim & caprices by abrogating legislative intent for constitution of committees provided U/Ss 55(1) & 55(3) of Act, 2009. As regards constitution of committees referred to in S.55, the power has been conferred U/s 337 under Chapter XVI of Act, 2009 upon State Government to make Rules & orders for carrying into effect provisions of the Act. S.337(xvi) provides that State Government may make the rules prescribing powers, duties & functions and so also the procedure for conducting meeting of the Committees constituted U/s 55 of the Act; whereas S.337(xvii) provides that State Govt. shall make rules prescribing restrictions, limitations & conditions subject to which any powers, duties or executive functions being CW 1359/10 //13// exercised, discharged or performed by or on behalf of the Municipality, may be delegated to the committees. In exercise of powers conferred U/s 337 read with Ss.51 & 52 of the Act, State Government made Rajasthan Municipalities (Conduct of Business) Rules, 2009 (“Conduct Rules, 2009”) duly notified for being come into effect vide notification dt.11/11/2009 – under which conduct of business has to be regulated. As provided U/r 3, there shall be an ordinary general meeting of the Municipality once within 60 days with minimum 6 meetings in a calendar year; and sub-rule (2) of R.3 provides that Chairperson shall call a special meeting within 7 days from the date of receipt of a request in writing signed by not less than 1/3rd of the elected members of the Municipality specifying the resolution for being proposed to be moved. However, State Government in exercise of powers conferred U/s 337 read with Ss.55 & 61 of the Act, 2009 notified Rajasthan Municipalities (Powers, Duty & functions of Committees ) Rules, 2009 (“Duty Rules, 2009”) vide notification dt.23/12/2009, which was published in Official Gazette on 08/01/2010. R.3 of Duty Rules, 2009 provides that committees of Municipality shall be CW 1359/10 //14// constituted in ordinary general meeting of the Municipality. R.4 provides for as to how powers, duties & function of Committees are to be exercised and regulated as contemplated under the Act, 2009. In the instant case, after constitution of the municipality, new composition whereof (JMC) indisputably started functioning since 26/11/2009 but without any reasonable justification having come forward on record, respondents-2 & 3 failed to call ordinary general/special meeting as referred to in S.51(1) & 51(2) within the period stipulated thereunder and despite written request being submitted by more than 1/3rd elected members/corporators of JMC including petitioners for one or the other reasons, requisite meeting could not be convened either by Chairperson or by Chief Municipal Officer as provided U/s 51(2) & (3) of Act, 2009 which compelled the petitioners to file instant petition. Upon the Scheme of Act, 2009 being examined in detail (supra), the Municipality (JMC) was under legal obligation to constitute its various committees as referred to in S.55 (1) & (3) of Act, 2009, and there must be cogent reasons to be recorded in writing, and to be conveyed to its members/corporators in case of JMC fails in constituting committees CW 1359/10 //15// within 90 days. Such inaction on the part of respondents are always open for judicial review by this Court. After examining scheme of the Act, Chapter-III in particular, in the opinion of this Court, action of respondents-2 & 3 in having failed to discharge their duties being assigned U/S 55(2) & (3), to call special meeting particularly when more than 1/3rd elected members including petitioners submitted their joint application specifying resolution proposed to be moved was arbitrary and is held to be violative of Art.14 of the Constitution and also of the provisions of Act, 2009 and since petitioners approached this Court before expiry of 90 days, laches pending petition as alleged by respondents on account of the period being elapsed pendente lis cannot be attributed to petitioners and committees as referred to in S.55(1) & (3) has to be constituted by the municipality and S.55 (5) shall not be invoked in the facts of instant case. Submissions made by Counsel for respondents are wholly without substance. Provisions referred to in Ss.51 of Act, 2009 clearly mandate the Municipality to convene its ordinary general/special meeting, as the case may be, and it is their legal obligation to constitute executive committee U/s 55(1) & CW 1359/10 //16// various other committees U/s 55(3) which cannot be held to be directory. At the same time, submission made by Counsel for respondents that only the Chairperson of Municipality will constitute committee, is also of no substance for the reason that committees have to be constituted U/s 55(1) & 55(3) in ordinary general meeting or special meeting as the case may be and functions of Chairperson or Vice Chairperson, are to be regulated in terms of S.48, which does not authorise Chairperson to constitute committee in its individual capacity. Since no cogent reasons have come forward by respondents for not having held & convened requisite meetings U/s 51 despite petitioners having made written joint request and for having not constituted committees U/s 55, inasmuch as they have been compelled to approach this Court by way of instant petition, whereas respondents failed to discharge its legal obligation under the Act, 2009, and at the same time, the State Government cannot be permitted to sit a silent spectator to permit the authorities to frustrate the mandate of law and for their inaction considers it appropriate to impose adequate costs. Consequently, writ petition succeeds and is hereby allowed with costs as quantified CW 1359/10 //17// of Rs.10,000/-. Respondents-2 & 3 are directed to convene meeting in terms of S.51 for the resolution having been proposed to be moved by more than 1/3rd elected members/Corporators of JMC including petitioners and further to constitute committees as provided U/s 55(1) & (3) of the Act and to notify the meeting to be convened in pursuance of directions (supra) of this Court within seven days from the date certified copy of this order being served. (Ajay Rastogi), J. K.Khatri/p17/ 1359CW10RsrApr8JMC.doc