The court established that pre-election disqualifications can be addressed under Section 39 of the Rajasthan Municipalities Act, allowing for suspension of members.

JUDGMENT

1. This writ petition has been filed by the petitioner being aggrieved with the order dated 18.06.2021 whereby, the respondent No.2 while exercising powers under Section 39(6) of the Rajasthan Municipalities Act, 2009 (for short 'the Act of 2009') has suspended the petitioner from the post of member of Ward No.6, Municipal Board, Bhadra and has also suspended him from the post of Vice Chairman (Acting Chairman), Municipal Board, Bhadra. The principle contention raised by the petitioner in this writ petition is that the petitioner has been suspended from the post of Member as well as Vice Chairman (Acting Chairman) of the Municipal Board, Bhadra on the ground that an enquiry has been initiated against him under Section 39(1) of the Act of 2009 on the ground that at the time of election of petitioner on the post of Member of Municipal Board, Bhadra, he was disqualified for being chosen as a Member on account of the fact that he was having additional child after the cutoff date.

2. Mr. R.N. Mathur, Senior Advocate assisted by Mr. R.S. Choudhary has argued that the alleged disqualification, on the basis of which, the enquiry under Section 39 of the Act of 2009 has been initiated against the petitioner is certainly a pre election disqualification and for a pre election disqualification, proceedings under Section 39 of the Act of 2009 cannot be initiated.

3. Mr. Mathur has placed reliance on a Full Bench decision of this Court rendered in Sameera Bano Vs. State of Rajasthan & Ors., reported in 2007(2) DNJ (Raj.) 858 and a decision of Single Bench of this Court rendered in Julfikar AH Bhutto Vs. State of Rajasthan & Ors. (SBCWP No.1399/04).

4. Per contra, Mr. Sunil Beniwal, AAG appearing on behalf of the State of Rajasthan other respondents has vehemently submitted that the State Government is empowered to commence proceedings against a member of the Municipal Board under Section 39 of the Act of 2009 in relation to a pre election disqualification also. Mr. Beniwal, AAG has also placed reliance on the decision of a Division Bench of this Court rendered in Rakesh Ghatiwal Vs. The State of Raj. & Anr. 2001(4) WLC (Raj.) 731 and a Single Bench of this Court (Jaipur Bench) rendered in Prabhu Dayal Saini Vs. State of Rajasthan & Ors., reported in 2002(2) WLC (Raj.) 427. Learned counsel Mr. Moti Singh appearing for the respondent No.8 has submitted that in view of the decisions rendered in the cases Prabhu Dayal Saini and Rakesh Ghatiwal (supra), the State Government is fully competent to commence proceedings against a member of the Municipal Board in relation to pre election disqualification and after commencement of the said proceedings, a member can very well be suspended by the authority concerned while exercising powers under Section 39(6) of the Act of 2009 and, as such, the State Government has not committed any illegality in passing the impugned order dated 18.6.2021.

5. Yesterday, Mr. P.P. Choudhary, Senior Advocate appearing for the respondent No.8 has also argued that as per the provisions of Article 243ZG, election of a member of a Municipal Board can also be questioned by way of initiation of enquiry and not only by way of election petition in relation to a pre election disqualification.

6. Having heard learned counsel for the parties, this Court is of the opinion that the matter requires consideration.

7. Admit. Notices need not be issued as parties are represented through their respective counsel.

8. In the meantime, effect and operation of the order dated 18.6.2021 (Annex./ll) passed by the respondent No.2 shall remain stayed.

9. Let this matter be listed for final disposal in the fourth week of August, 2021.