IMPORTANT POINT
The court ruled that notices for pre-election disqualifications under Section 39 of the Rajasthan Municipalities Act, 2009 are invalid if issued before the amendment, which has prospective effect.

ORDER :

Mr. Vinit Kumar Mathur, J. - Heard learned counsel for the parties.

2. The present writ petition has been filed against the order dated 07.04.2022, whereby a notice under Section 39 of the Rajasthan Municipalities Act, 2009 (hereinafter referred to as the 'Act of 2009) has been issued to the petitioner.

3. Briefly noted the facts in the present case are that the petitioner was elected as Councillor of Ward No.2 of Municipal Council, Sirohi in the election held in the year 2019. After the election of the petitioner as Councillor, he was appointed as the Chairperson of the Municipal Council, Sirohi. While the petitioner was working as Chairperson of the Municipal Council, Sirohi, he was issued with a notice dated 07.04.2022 seeking his response/reply within a period of 15 days. Aggrieved of the notice issued under Section 39 (1) of the Act of 2009, the present writ petition has been filed by the petitioner on the ground that the notice issued to the petitioner under Section 39 (1) is de hors the law.

4. Learned counsel for the petitioner submits that there is no provision under the Act of 2009 which gives authority to the respondents to issue notice under Section 39 for pre-election disqualifications and disputes. He submits that the only action which the law provides is taking recourse of filing an election petition against the petitioner for any disqualifications incurred or the petitioner is not holding the eligibility for contesting the election on the post of Councillor as per rules. Learned counsel further submits that the initiation of the proceedings by issuing notice to the petitioner under Section 39 is not sustainable. He, therefore, prays that the writ petition may be allowed and the notice dated 07.04.2022 may be quashed and set aside.

5. Per contra, the private respondent No.5 present-in-person vehemently argued that after the amendment in Section 39 of the Act of 2009, the notice issued to the petitioner is absolutely legal and the proceedings undertaken against the petitioner are completely justified. He, therefore, submits that the writ petition may be dismissed.

6. Mr. Rajesh Panwar, learned Sr. Counsel & Additional Advocate General appearing for the official respondents submits that the amendment in Section 39 of the Act of 2009 has taken place on 13.04.2023 and since the proceedings in the present case have been initiated prior to the amendment, therefore, the respondents may be given liberty to take appropriate action against the petitioner as per the amended provisions in accordance with law.

7. I have considered the submissions made at the Bar and have gone through the relevant record of the case.

8. After hearing the counsel for the petitioner, while issuing notices, this Court passed the following order on 18.04.2022:

"Learned counsel for the petitioner has submitted that the petitioner was elected as Councilor of Ward No.2 of Municipal Council, Sirohi and thereafter he was elected as Chairperson of the Municipal Council, Sirohi.

It is submitted that in the year 2021, a complaint was filed on behalf of one Ramniwas Daga S/o Shri. Gopi Kishan Daga, resident of Mathania, District Jodhpur alleging that in the year 2019, when the petitioner contested the election for the post of Councilor, a criminal case was pending against him, but he did not disclose the said fact in his nomination form.

It is submitted that on the said complaint, the Election Commission has also issued a notice to the petitioner on 15.02.2021 to which the petitioner submitted his reply. The said proceeding is still pending against him.

It is further submitted that in the meantime, the respondent No.2 issued a notice dated 7.4.2022 asking the petitioner to submit his explanation as to why the proceedings under Section 39 of the Rajasthan Municipalities Act, 2009 be not initiated against him.

Learned counsel for the petitioner has argued that for pre-election disqualification, no proceedings under Section 39 of the Rajasthan Municipalities Act,