By this writ petition, a challenge is made to the Rajasthan Municipalities (Motion of no confidence against Chairperson or Vice-Chairperson) Rules, 2017 (in short “the Rules of 2017”) and to declare No Confidence Motion against the petitioner to be illegal along with grant of consequential reliefs.

BRIEF FACTS OF THE CASE:

2. The petitioner was elected as Chairperson of Municipal Council, Dausa. While he was holding the post, a notice for No Confidence Motion was served on him. A meeting was thereafter held and motion was carried out against the petitioner. The participation in the meeting was only of the elected members. It is in consonance to the Rules of 2017. The grievance of the petitioner is regarding non-participation of Members of Parliament and Legislative Assembly being ex-officio members. It is by taking an erroneous interpretation of definition of “eligible member” given under Rule 2(1)(b) of the Rules of 2017. The definition aforesaid excludes only nominated members. If it excludes exofficio members then definition given under Rule 2(1)(b) of the Rules of 2017 is contrary to the provisions of the Rajasthan Municipalities Act, 2009 (for short “the Act of 2009”) so as Article 243R of the Constitution of India. In view of the above, a challenge has been made to the constitutional validity of the Rules of 2017 so as the No Confidence Motion.

3. Learned counsel for petitioner submits that once a Chairperson is elected, he can be removed save with the No Confidence Motion. It is as per amended provision of Section 53 of the Act of 2009. The earlier provision was for recall of Chairperson but was amended. The meeting of No Confidence Motion is to be held as per procedure given under the Rules of 2017. The definition of “eligible person” under Rule 2(1)(b) of the Rules of 2017 includes elected members of a Municipality but exclude the nominated members. It is silent on the ex-officio member by virtue of their office being Members of Legislative Assembly and Parliament.

4. The Members of Legislative Assembly and Parliament were not allowed to participate in the meeting held for No Confidence Motion and, for that reason, the meeting vitiated and, otherwise, would not have been carried out. If interpretation of Rule 2(1)(b) of the Rules of 2017 excludes ex-officio member from the definition of “eligible member” then it would be illegal being contrary to the definition of “member” given under Section 2(xxxvi) apart from definition of “whole number” or “total number” given under Section 2(Lxxiii) and Section 6 of the Act of 2009.

5. A reference of Section 6 of the Act of 2009 has been given to show composition of Municipality. If three provisions, referred above, are read together then would show that whoever is lawfully member of the Municipality and included in the composition of Municipalities, cannot be denied right of vote. It is moreso when Section 6 of the Act of 2009 gives right of vote to the ex-officio members. It has been denied to the nominated members.

6. It is also stated that respondents have failed to make distinction between three type of members which are elected members, nominated members and, lastly, ex-officio members. The nominated members cannot participate in the meeting for No Confidence Motion but exclusion does not exist for the ex-officio member. In view of the above, a prayer is to struck down Rule 2(1)(b) of the Rules of 2017 so as No Confidence Motion.

7. Learned counsel for petitioner has cited judgment of the Division Bench of this court in the case of Yogesh Chandra Saini & Ors. Vs. State of Rajasthan & Ors., reported in 2002 (1) DNJ 208. A further reference of recent judgment of the Karnataka High Court in the case of Sultan Ali & Anr. Vs. Shahajaha & Ors., W.A. Nos.200299-300/2015 (LB-RES), decided on 8th October, 2015 has been given where similar controversy was decided in favour of the petitioner.

8. Learned Advocate General has contested the writ petition. It is submitted that there is