RAJASTHAN HIGH COURT

              Ishwar Parashar

              Vs.

              State of Rajasthan

              C.W.P. No. 2818 of 2001
                   (V.S. Kokje, J.)

              30.08.2001

              ORDER

V.S. Kokje :

1. Heard Mr. Himmat Singh, learned counsel for the petitioner and Shri Mohd. Rafiq,
AAG for the State.

2. With the consent of the parties, the matter was finally heard. The petitioner is an
elected member of Municipal Board, Pushkar, Ajmer. The petitioner's membership of
the Municipal Board was suspended by the State Government by passing an order
under Section 63(4) of the Rajasthan Municipalities Act, 1959. The petitioner has
challeged that suspension in this petition.

3. The learned counsel for the petitioner pointed out that in the order suspending the
membershiip of the petitioner, the only reason for such suspension given is that
continuation of the petitioner as a member of the Municipal Board is likely to
influence the enquiry pending against him. According to the learned counsel,
discharging functions as a member of Municipal Board is in no case prejudicial to
holding of a fair enquiry in the matter and that cannot be a ground on the basis of
which an elected member can be stopped from performing his duties as a member of
the Municipal Board.

4. The learned counsel for the State, Shri Mohd. Rafiq submits that serious charges of
encroaching upon municipal property and abating encroachment on the municipal
property are pending enquiry against the petitioiner and in the circumstances of the
case, it was necessary to suspend the membership of the petitioner to save the pending
enquiry from being adversely affected. According to the learned counsel, the
witnesses to be examined in the enquiry would not be deposing with free mind and
would be afraid of or influenced by the petitioner, if he is allowed to continue as
member of the Municipal Board. The learned counsel for the State also cited decisions
of this Court in the case of Jan Mohd. v. State of Rajasthan reported in 1 and Chhagan
Kanwar Rathore v. State of Rajasthan reported in 2

5. I have heard the learned counsel and perused the record. In the order of suspension
(Annexure 4 to the writ petition) the only reason given for suspension is likelihood of
the pending enquiry being influenced in the event the petitioner continues as a
member of the Municipal Board. No other reason has been mentioned. As a specific
reason has been mentioned for suspension, it cannot be said that there may be some
other reasons also which have not been disclosed in the order of suspension. There are
no details mentioned in the order as to how the enquiry is likely to be affected.

6. The learned counsel for the State submitted that even if it is taken that the Enquiry
Officer is not likely to be influenced, but the witnesses to be examined would certainly
not feel free to depose against a sitting member of the Municipal Board and that will
affect to hold a fair enquiry.

7. I do not understand as to what difference does it make to an enquiry whether a
person proceeded against continues to be an effective member of the Municipal Board
or is suspended. So far as the enquiry into the charges against him is concerned, the
membership of a Municipal Board is not an executive office, enabling the incumbent
to wield certain powers by using which he can pressurise the witnesses or influence
the Enquiry Officer. Continuance as a member of the Municipal Board is absolutely
irrelevant to a fair and impartial enquiry in the circumstances of the case. It is to be
remembered that a person gains influence first in the public and then only he gets
elected to a municipal office. If he is influential, he remains to be influential even
without the membership of Municipal Board as the post does not give him any
additional powers. Thereason stated for suspension, therefore, has no nexus with the
purpose of suspension that is to save the enquiry from being influenced or affected by
continuance of the petitioner as member of the Municipal Board. It should also be
remembered that membership of a Municipal Board is an elective office and by
barring a person from discharging his functions as a member of the Municipal Board,
the entire municipal ward from which he is elected goes unrepresented and might
suffer. If a member of the Municipal Board commits some misconduct for which he
can be removed, he may be removed after holding an enquiry into the misconduct
expeditiously. But the citizens of the municipal ward cannot be made to go
unrepresentedinthemunicipal body only because the State Government institutes an
enquiry against the member of the Municipal Board, keeps it pending and suspends
the membership of the elected representative of the Municipal Board. Permitting such
an action would be against the basic principles of democracy. It should be
remembered that the representation in the Municipal bodies and the autonomy of
Municipal bodies was considered so sacrosanct that safeguards for maintenance of
basic democracy and autonomy of civicinstitutions are provided by amending the
Constitution by inserting a separate chapter in it.

8. For the aforesaid reasons, I do not find that the suspension of the petitioner is legal
or justifiable. I am, however, not suggesting that in no case a member of the
Municipal Board can be suspended pending enquiry against him. In appropriate cases
when the continuance in office has direct relation with the subject-matter of the
enquiry, no doubt, a member can be put under suspension. For example, if the charge
against a member is that he behaved in indisciplined manner in the Council or Board
meetings and made it impossible to hold such meetings peacefully and to transact
business at such meetings smoothly, a suspension from membership pending enquiry
would be justified. No such thing is alleged in this case.

9. The petition is, therefore, allowed. The impugned order dated 27-2-2001
suspending the petitioner from membership of Municipal Board, Pushkar is quashed.
The respondents shall permit the petitioner to discharge functions as member of
Municipal Board, Pushkar till his tenure expires subject to result of the enquiry
pending against him.

Petition allowed.

Cases Referred.

1. (1992) 2 WLC (Raj) 463
2. (2000) 2 WLC (Raj) 231