Skip to content


Balmukand Vs. the State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 525 of 1972
Judge
Reported in1972WLN523
AppellantBalmukand
RespondentThe State of Rajasthan and anr.
DispositionPetition allowed
Excerpt:
.....act, 1959 - sections 26 and 63--printing work of rs. 313/- done by member for municipal board--held, member not disqualified from membership.;it cannot be forgotten that clause (d)(v) of the proviso is an integral part of clause (xii of section 26 of the act, and the disqualification as prescribed by clause (xii) can be incurred by a member of the board only when a member receives payment from the board for the occasional sale of any article in excess of the prescribed limit and unless such a limit is fixed under the proviso it is difficult to hold that a person has incurred disqualification under the provisions of section 26 (xii) for having dealings with the board.;(b) words and phrases - 'occasional sale' in section 26 of the raj. municipalities act, 1959--explained.;the..........raisinghnagar. by a notice dated 24th november, 1971 (ex 1) the petitioner was called upon by the state government to show cause why he should not be removed from the membership of the board for accepting the order of the board to do the printing job in his press and to receive payments to the extent of rs. 333/-from the board for completing that job along with this notice the government of rajasthan also issued an order (ex 2) suspending the petitioner from the membership of the board. this order of suspension was issued by the government in the exercise of its power under section 63(4) of the rajasthan municipalities act, 1959. these two orders have been challenged by the petitioner, inter alia, on the ground that unless a limit under proviso (d)(v) of section 26 of the act for.....
Judgment:

V.P. Tyagi, J.

1. The circumstances giving rise to this writ petition are as follows Petitioner Balmukand was elected as a member of the Municipal Board, Raisinghnagar. By a notice dated 24th November, 1971 (Ex 1) the petitioner was called upon by the State Government to show cause why he should not be removed from the membership of the Board for accepting the order of the Board to do the printing job in his press and to receive payments to the extent of Rs. 333/-from the Board for completing that job Along with this notice the Government of Rajasthan also issued an order (Ex 2) suspending the petitioner from the membership of the Board. This order of suspension was issued by the Government in the exercise of its power under Section 63(4) of the Rajasthan Municipalities Act, 1959. These two orders have been challenged by the petitioner, inter alia, on the ground that unless a limit under proviso (d)(v) of Section 26 of the Act for getting the occasional payments from the Board by a member in his regular trade is fixed, the petitioner cannot be said to have incurred any disqualification under Clause (xii) of Section 26 and, therefore, it is prayed that orders Ex. 1 and Ex 2 issued by the State Government be quashed and a direction be issued to the respondent No. 2 to fix the limit of the amount under proviso (d) (v) of Section 26 with the sanction of the State Government and till then the respondent No. 1 be restrained from proceeding with the enquiry alleged to have been started against the petitioner under the provisions of Section 63 of the Act.

2. No reply has been filed on behalf of the State Government and the Municipal Board, Raisinghnagar who are respondents in this case. Learned Deputy Government Advocate, who has put in his appearance on behalf of the State Government, has, however, submitted that he has no instructions from the Government to oppose this writ petition.

3. Section 26 of the Act lays down certain circumstances in which a member of the Board incurs disqualification for being chosen as a member of the Board. Clause (xii) of this section states that 'a person, notwithstanding that he is otherwise qualified shall be disqualified for being chosen as a member of a Board who, save as hereinafter provided, has directly or indirectly by himself or his partner, employer or employee any share or interest in any work done by order of such board, or in any work done by order of such board, or in any contract or employment with or under or by or on behalf of such board.' This qualification is subject to a proviso enacted by the legislature which reads as follows:

Provided that....

(d) a person shall not be deemed to have incurred the disqualification under Clause (xii) by reason of his....

(v) having sharp or interest in the occasional sale of any article in which he regularly trades to the Board to a value not exceeding in any official year such amount as the board, with the sanction of the State Government, may fix in this behalf.

4. Clause (xii) of Section 26 can come into operation only after the Municipal Board with the sanction of the State Government his fixed a limit as prescribed by Clause (V) of proviso (d) to this section. Unless a limit is fixed under the said proviso, it is difficult to attract the application of Clause (xii) of Section 26, especially when there is no other printing press in the town of Raisinghnagar and the Municipality has no alternative but to entrust its routine printing work to the petitioner's press. In the whole year the petitioner has done the job of the Municipality which got him the payment of Rs. 333/-only which amount cannot be said to be excessive amount to show any favour to the petitioner. Under these circumstances, it is difficult to accept the stand taken by the Government that the petitioner has incurred disqualification under Section 26 (xii) of the Act. It is contended that every year the Municipality gets its printing work done at the petitioner's press and in the year 1971 like previous years the petitioner received the printing order from the Municipal Board, Raisinghnagar and the same was executed by him. In these circumstances, it is argued by the petitioner that the job of printing done by the petitioner for the Board falls within the expression 'occasional sale' as is used in clause(d)(v) of the proviso to Section 26 of the Act. It is also submitted by learned Counsel for the petitioner that the amount paid by the Municipal Board for performing the printing work includes the price of the paper also which had been used by the petitioner for the Municipal Board.

5. Clause (d)(v) of the proviso to Section 26 of the Act, when read with Clause (xii) of Section 26, leaves no room for doubt that the printing work done by the petitioner in his press on the order received from the Board comes within the expression 'occasional sale' as used by the legislature in this clause. It cannot be forgotten that Clause (d)(v) of the proviso is an integral part of Clause (xii) of Section 26 of the Act, and the disqualification as prescribed by Clause (xii) can be incurred by a member of the Board only when a member receives payment from the Board for the occasional sale of any article in excess of the prescribed limit and unless such limit is fixed under the proviso it is difficult to hold that a person has incurred disqualification under the provisions of Sections 26 (xii) for having dealings with the Board In this view of the matter, the order passed by the State Government suspending the petitioner & initiating an enquiry by issuing notice Ex. 1 under Section 63 of the Act is beyond its competence.

6. For the reasons mentioned above, the writ petition is allowed and notice issued by the State Government dated 24th November, 1971(Ex. 1) and t he order (Ex. 2) passed by the Government suspending the petitioner are here by quashed. No order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //