JUDGMENT:

1. The facts leading up to the present writ petition are that the petitioner was elected as a Councilor of Ward No.7 of Municipal Board Badi Sadri and thereafter elected as Chairperson of the said Municipal Board in the municipal election held on 07.02.2021.

2. On 19.05.2021, on the basis of a complaint of one Vishnu Dutt Sharma, the Additional Superintendent of Police, Anti Corruption Bureau, Udaipur, apprehended Kush Sharma, brother- in-law of the petitioner while accepting a sum of Rs.2 lacs allegedly as a bribe on behalf of the petitioner. An FIR No.157/2021 came to be lodged on 26.05.2021, in which the petitioner so also said Kush Sharma was implicated for demanding and accepting the bribe of Rs.2 lakhs.

3. The Anti Corruption Department, in turn, sent an information to the State Government in this regard, acting whereupon, the petitioner was placed under suspension vide order dated 05.07.2021.

4. The petitioner has called in question, the suspension order dated 05.07.2021 by way of instant writ petition, which came to be filed on 09.12.2021.

5. On previous date(s) of hearing the Court expressed its concern about the stage of the proceedings and in response thereto an affidavit has been filed by Mr. Sunil Beniwal, learned Additional Advocate General who has put in appearance on behalf of the State. The said affidavit dated 19.01.2022 states that vide order dated 10.12.2021, the State Government has appointed an inquiry officer to conduct preliminary inquiry with specific reference to the FIR No.157/2021 dated 26.05.2021 sent by the Superintendent of Police, Anti-Corruption Bureau, Jaipur. An order dated 10.01.2022 has also been placed on record vide which the Deputy Director (Regional), Local Bodies, Udaipur, the officer, directed to conduct preliminary inquiry, has issued a notice to the petitioner asking for his explanation within three days.

6. Mr. Rajesh Joshi, learned Senior Counsel, appearing for the petitioner, argued that the petitioner has been placed under suspension on 05.07.2021, merely on the basis of the fact that an FIR has been lodged, which shows that the State Government has not at all applied its mind to determine as to whether there was any requirement of placing the petitioner under suspension. It was also argued that admittedly, at the time of placing the petitioner under suspension and till filing of the writ petition and even as late as on 17.01.2022, the petitioner has not been served with any notice from the State Government in relation to preliminary inquiry.

7. Learned Senior Counsel argued that even from the documents placed on record by the State Government, it is apparent that the Deputy Director (Regional), Local Bodies, Udaipur has been asked to conduct preliminary inquiry against the petitioner vide order dated 10.12.2021, who in turn, has purportedly issued a notice on 11.01.2022. With these admitted facts he argued that as the preliminary inquiry itself had not commenced till 11.01.2022, the State Government could not have placed the petitioner under suspension, because for the purpose of sub-section (6), inquiry can be said to have commenced only after consideration of the preliminary inquiry report and when the State Government decides to hold judicial inquiry.

8. The learned Senior Counsel read Section 39 of the Rajasthan Municipalities Act, 2009 (hereinafter referred to as 'the Act of 2009') in its entirety and explained the scheme of the Act to supply strength to his stand that an elected member of a municipality can be removed on the grounds mentioned in Clauses (a) to (d) and for which inquiry by an authorized officer or a Judicial Officer (as the case may be) under the proviso to sub- sections (1) and (4) of Section 39 of the Act of 2009 is necessary.

9. Learned Senior Counsel submitted that the scheme of Section 39 of the Act of 2009 envisages two types of inquiries;

(i) commonly known as preliminary inquiry in terms of first proviso to sub-section (1) of Section 39 and (ii) ju