1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT. Pradeep Hinger vs. The State of Raj. & ors. S.B. Civil Writ Petition No. 3740/07 under Article 226 of the Constitution of India. Date of Judgment: August 16th, 2007. PRESENT HON'BLE MR. PRAKASH TATIA,J. Mr.Vijay Bishnoi and Mr. P.Solanki for the petitioner. Mr. N.M. Lodha, Addl.Advocate General and Mr. S.Toshniwal for the respondents. BY THE COURT: REPORTABLE 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 2 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. 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 3 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, 4 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 5 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 6 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 7 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 8 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 9 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 10 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. 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 11 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 12 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. 13 The learned counsel for the petitioner vehemently submitted that the order of suspension passed against the petitioner is a clear case of malafide in law because of the reason that the respondents have not applied their mind to the facts of the case and passed the order of suspension only to achieve their object of tarnishing image of the petitioner for political gain. Not only this, the respondents did not look into the relevant provisions of law as well as the law laid down by the Hon'ble Supreme Court and the High Court in various judgments in the matter of taking action of suspending the elected member. Further, the respondents did not examine whether any of the action or inaction of the petitioner which are under consideration fall in any of the category given under Section 63(1) of the Act of 1959 for initiation of any proceeding for removal of the petitioner from the membership of the Municipal Council or from the post of Chair Person of the Municipal Council. Assuming for the sake of argument that there was some laxity on the part of the petitioner, which was in fact is not there, then the only allegations for which the judicial enquiry has been ordered, are that in some of the pattas of some plots, some over-writing/interpolation have 14 been made. In the matter of plot no.5 of Surya Colony and Plot no.23-A of the Kasturba Nagar, some irregularities have been came to the notice, obviously in the knowledge of the Chairman but no FIR was lodged with respect to these irregularities by the Chairman. The another allegation is that in the matter of land allotted to INTUC when the INTUC converted the land to commercial use, no effective step was taken, obviously by the petitioner except sending a notice under Section 170 of the Rajasthan Municipalities Act on 20.4.2006. According to the learned counsel for the petitioner, in the enquiry report submitted by the Additional Director himself dated 24.1.2007, the finding has been recorded by the enquiry officer that the involvement of the petitioner in interpolation of the record has not been proved, therefore, so far as allegation of interpolation in any record of the Municipal Council, Pali is concerned, is not against the petitioner. The only allegation against the petitioner is that he has not lodged FIR even when the fact of irregularities about these plots were brought to the notice of the petitioner. For this allegation, the petitioner immediately in pursuance of the communication dated 2.2.2007, on the next date 15 only i.e. 3,2,2007, submitted report to the SHO, Police Station, Kotwali, Pali and requested him to register FIR. Assuming for the sake of argument that if there would not have been any FIR lodged by the petitioner even then that itself cannot be termed to be the misconduct of the petitioner in the light of the decision of the Hon'ble Supreme Court given in the case of Tarlochan Dev Sharma v. State of Punjab and others ( (2001) 6 SCC 260). The same is the position about the second allegation which is allegation that the petitioner on conversion of land allotted on concessional rate to INTUC to commercial use, has not taken any further action except issuing notice under Section 170 of the Rajasthan Municipalities Act. Assuming for the sake of argument that any further action was needed in the above two matters, then also the authorised person was only the Commissioner of the Municipal Council, Pali who was required to take action in view of Government order dated 25.11.2006 (Annex.12). According to the learned counsel for the petitioner, the Hon'ble Supreme Court in the case of Tarlochan Dev Sharma (supra) clearly held that a singular or casual aberration or failure in exercise of power is not sufficient for holding any person 16 guilty of abusing the power as of authority and non-exercise of power or an indecision is not an abuse of power. The abuse of power must, willful abuse or an intentional wrong. The decision, action or instruction may be inconvenient or unpalatable to the person affected but it would not be an abuse of power. Hon'ble the Supreme Court held that it must be such an abuse of power which would render a councilor unworthy of holding the office of President. The Hon'ble Supreme Court clearly held that an abuse of power would entail adverse civil consequences, therefore, the expression has to be narrowly construed. For removal of Member including Chairman of the Municipal Council, the proceeding can be initiated on the grounds mentioned under sub-section (1) of Section 63 of the Act of 1959 only. There is no allegation against the petitioner under sub-clauses (a),(b) and (c) of sub-section (1) of Section 63. From the allegations, it appears that the respondents' intention to cover it under sub-clause (d) of sub-section (1) of Section 63. Clause (d) of sub-section (1) of Section 63 is about the (i) misconduct in discharging of the duties, (ii) is one being guilty of any disgraceful conduct, (iii) become 17 incapable of performing his duties as a member and (iv) otherwise abused in any manner his position as such member. The petitioner's case is not falling in any of the categories, even under sub-clause (d) of sub-section (1) of Section 63 of the Act of 1959 in the light of the law laid down by the Hon'ble Apex Court in the judgment referred above. According to the learned counsel for the petitioner, the Division Bench of this Court in the case of Jan Mohd. vs. The State of Raj. ( 1992(2) WLC (Raj.) 463, clearly held that holders of elective public posts cannot be equated with the Government servants and, therefore, before a holder of an elected post is suspended, the Government must have sufficient reason to do so. Care should be taken that such suspensions should not be arbitrary and should not be brought about for political motives and consideration. According to the petitioner, by presence of the petitioner on the post of the Chairman, Municipal Council, the enquiry as it may be, cannot be adversely affected because of the plain and simple reason that the acts are concluded acts of not lodging FIR before particular time and not taking mere action 18 against INTUC. The petitioner now cannot lodge FIR as Chairman of the Municipal Council so as to affect the enquiry in any manner. If the action can be taken under Section 63 of the Act of1959, then that will be taken according to the events which took place prior to now. The same is position with respect to the second allegation of not taking any further action in the matter of change of use of land by the INTUC as the fact is admitted fact what has been done by the petitioner and what has not been done by the petitioner. The allegation relates to the matter of record and, therefore, also by the presence of the petitioner, in the Municipal Council, as Chairman of the Municipal Council, the enquiry cannot be affected. It is also submitted that all allegations are required to be proved and disproved only by documentary evidence which have already been collected by the concerned officers and they cannot be manipulated in any manner so as to affect the enquiry. It is submitted that the order of suspension cannot be merely on the ground that the State has decided to hold an enquiry through judicial officer under sub-section (2) of Section 63 by referring the matter to the judicial officer. The suspension has its own aim and 19 object and is not a natural consequence of the decision of the State Government for holding enquiry through judicial member under the provisions of Section 63 of the Act of 1959. This Court in the case of Nandlal vs. The State of Rajasthan ( 1996(2) WLC(Raj.) 497 held that the whole idea of suspension is that the suspended person does not cause any embarrassment in the enquiry proceeding and his presence in the office should not prejudice the enquiry. Under sub-section (2) of Section 63, the enquiry can be conducted only by the judicial officer that too of the rank of District Judge and this fact if kept in mind then no case is made out for suspension of the petitioner from the post of Chairman,Municipal Council, Pali. Since neither the facts have been considered nor the reasons have been looked into for suspending the petitioner from the post of Chairman of the Municipality nor the respondents prima facie reached to conclusion that the presence of the petitioner on the post of Chairman may cause any embarrassment in the enquiry proceedings or his presence in the office would prejudice or affect the enquiry, therefore, it is clear case of malafide in law as well as arbitrary exercise of power by the 20 State. Lastly the learned counsel for the petitioner vehemently submitted that if on the allegation of only not taking “mere steps” or “further action” only if an elected chair person of Municipal Council can be suspended then not a single chair person of Municipal Body can remain on post because of simple reason that normally no FIRs are lodged in all cases of encroachment upon the Government lands which involves immovable property of Municipal body. Even there may not be a single Municipality in the State where FIRs have been lodged in all such type of cases, then it is a clear case of arbitrarily choosing the petitioner alone out of all similarly situated persons. In present case, private parties have already lodged FIR for the offences which may have been committed by others and if property allotted to INTUC required to be taken back from INTUC then that can be taken now and the Municipality has not lost its said right. Shri N.M. Lodha, Addl.Advocate General appearing on behalf of the respondent-State raised preliminary objection about the maintainability of the writ petition. According to the learned 21 counsel for the respondents, the petitioner in his writ petition stated absolutely wrong facts and, therefore, on this ground alone the