Point of Law : Municipal Corporation - Suspension order - Suspension of a Chairman or a Member of a Municipal Board pending enquiry being an interim measure, suspension does not result in civil or evil consequences and it is not penal in character.

JUDGMENT :

PANKAJ BHANDARI, J.

1. Defects, pointed out by the Registry, are waived.

2. The petitioner has preferred the instant writ petition challenging the vires of Sections 39(1)(d)(ii) and 39(1)(d)(iii) of the Rajasthan Municipalities Act, 2009 (hereinafter referred to as “the Act of 2009”) and against the order dated 06.06.2021 whereby the petitioner has been placed under suspension from the Office of Mayor, Municipal Corporation Jaipur Greater as well as from her membership of Ward No.87 of the said Municipal Corporation.

3. Succinctly stated the facts of the case are that Municipal Corporation Jaipur was dissolved and instead, two Municipal Corporations were established in its place i.e. Municipal Corporation Jaipur Heritage and Municipal Corporation Jaipur Greater. The petitioner was elected as a Member of the Municipal Corporation Jaipur Greater from Ward No.87 and thereafter, as a Mayor of the said Municipal Corporation. In the year 2017, BVG India Limited (hereinafter referred to as “the Company”) was granted the work by the earlier Corporation with regard to door to door collection, segregation and transportation of municipal waste.

In view of the dissolution of the earlier Corporation, the Director Local Bodies vide order dated 18.01.2021 informed both the Corporations to enter into supplementary agreements with the said Company.

4. In the first general meeting of the Board, it was decided that the Commissioner must take appropriate legal action against the said Company within 30 days and a new arrangement in this regard should be made. In compliance thereof, process for issuance of new tenders was initiated, and in the meanwhile, the said Company filed a writ petition bearing S.B. Civil Writ Petition No.5253/2021 and an interim order dated 06.05.2021 was passed in favour of the said Company. Due to non-payment of the amount, the Company stopped garbage collection resulting into problem of sanitation.

5. The petitioner called the respondent–Commissioner for discussing the issue and some untoward incident took place in the meeting room of the Mayor. The Commissioner filed a complaint and also lodged an FIR of the incident pleading therein that action should be taken against the Corporators. The Government appointed an Officer of the rank of State level service to conduct the Preliminary Enquiry and after conclusion of the said enquiry, the Officer submitted his report on 06.06.2021. On the same day, Government took a decision to hold judicial inquiry against the petitioner under Section 39(3) of the Act of 2009 and suspended the petitioner from the post of Mayor as well as Member of Ward No.87, aggrieved by which, the present writ petition has been preferred by the petitioner. The relief claimed by the petitioner in the writ petition is for declaring Sections 39(1)(d)(ii) and 39(1)(d) (iii) of the Act of 2009 as ultra-vires the Constitution of India and for quashing and setting aside the order dated 06.06.2021 whereby petitioner has been suspended.

6. The Constitutional validity of the provisions of Sections 39(1) (d)(ii) and 39(1)(d)(iii) of the Act of 2009 are under challenge, hence, we would first deal with the issue of Constitutional validity of Sections 39(1)(d)(ii) and 39(1)(d)(iii) of the Act of 2009. Section 39 deals with removal of a member and the same reads as under:

“39. Removal of member- (1) The State Government may, subject to the provisions of sub-Sections (3) and (4), remove a member of a Municipality on any of the following grounds, namely: -

(a) that he has absented himself for more than three consecutive general meetings, without leave of the Municipality:

Provided that the period during which such member was a jail as an under trial prisoner or as a detenue or as a political prisoner shall not be taken into account,

(b) that he has failed to comply with the provisions of Section 37,

(c) that after his election he has incurred any of the disqualification mentioned in Section 14 or Section 24 or has ceased to