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V.K. Jhanji, J.—In this petition filed under Article 226/227 of the Constitution of India, petitioner is seeking issuance of writ in the nature of Certiorari quashing notice dated 19.8.1998, Annexure P-5, issued by Sub Divisional Officer (Civil), Sirsa, fixing the meeting for 9.9.1998 to consider/discuss No Confidence Motion against the petitioner. It is the case of petitioner that she was elected as Member of the Municipal Council, Sirsa, from Ward No. 24 as a Congress (I) sponsored/supported candidate in the elections held in December, 1994. She was elected as President of the Municipal Council and till date, is continuing as such. There are 31 elected members in Municipal Council, Sirsa. Besides this, Member of Parliament and Member Legislative Assembly from Sirsa, are ex-officio/nominated members. In addition, three local residents of Sirsa were nominated as Members of the Municipal Council, but according to the petitioner, at present they are not participating in any of the meetings. Petitioner has contended that on the expiry of term of Vice President of the Municipal Council in May, 1996, repeated reminders were sent by her to the Deputy Commissioner, but he made no efforts to convene a meeting to elect new Vice President. Further, according to the petitioner, some Councillors of Municipal Council, Sirsa were keeping themselves absent from attending any of the meetings of the Municipal Council and constrained by the circumstances, Executive Officer of the Municipal Council vide office letter dated 28.7.1998 requested the Deputy Commissioner, Sirsa for recommending action against absentee Municipal Councillors u/s 14-C of the Haryana Municipal Act, 1973 (in short the 1973 Act) for removing them for not attending meetings of the Council in last more than three consecutive months. These Councillors are six in number. It is the allegation of the petitioner that Deputy Commissioner who is under the direct control of the present Government formed by HVP and BJP alliance has not taken any action on the aforesaid letter of the Executive Officer. Further, according to the petitioner, some Municipal Councillors with active support of powerful political leaders, filed an application on 29.7.1998 in the office of Municipal Council for convening a meeting of the House within 10 days for passing No Confidence Motion against the petitioner. The said application was signed by 23 members including six against whom action was proposed by the Executive Officer. Petitioner has contended that the meeting could not be convened under the circumstances that action against six members was already pending and notice was for a shorter period. It is averred that another application for convening a meeting was filed before the Deputy Commissioner, Sirsa, who authorised Sub Divisional Magistrate, Sirsa for convening a meeting for the purpose and the Sub Divisional Magistrate vide his office letter dated 19.8.1998 notified all the elected members of the Municipal Council regarding the meeting to be held on 9.9.1998 at 11a.m. for discussing the matter of No Confidence Motion against the petitioner. Hence, the present writ petition challenging notice dated 19.8.1998.
Initially, petitioner made only State of Haryana, Director, Local Bodies, Deputy Commissioner, Sirsa, S.D.O. (Civil), Sirsa- and Municipal Council, Sirsa, as party-respondents, but later, respondents 6 to 27 on their application were ordered to be impleaded as party-respondents.
Respondents 6 to 27 in their written statement have contended that the Deputy Commissioner has convened the meeting in accordance with the provisions of 1973 Act and there is no illegality in convening of the meeting. They have further submitted that 24 municipal councillors out of 31 elected councillors approached the Deputy Commissioner, Sirsa to convene a meeting since petitioner had failed to convene the meeting within the specified time mentioned in the application. Respondents thus, prayed for dismissal of the writ petition.
Mr. Ravi Sodhi, Advocate, counsel for the petitioner, has contended that notice convening the meeting is against the provisions of the Haryana Municipal Act inasmuch as notice has not been issued to the ex-officio members i.e. Member of Parliament and Member Legislative Assembly regarding convening of the meeting fixed for 9.9.1998. It is contended that ex-officio members cannot be debarred from participating and voting in the meeting. Counsel further contended that the meeting considering No Confidence Motion against the petitioner cannot be convened till such time proceedings initiated against those members whose names have been recommended for removal u/s 14C of the 1973 Act are concluded. In answer to these submissions, counsel appearing on behalf of private respondents has fairly concecfed that notice of the meeting was not given to the ex-officio members. In regard to the other submission, counsel contended that six members against whom action u/s 14-C has been recommended, so far have not been removed by the Government and they continue to be members of the council and have every right to participate in the meeting of the council.
In have heard the learned counsel for the parties at length.
Sub-section(i) of Section 9 of the 1973 Act provides that the municipalities constituted u/s 2A shall consist of such number of elected members not less than eleven as may be prescribed by rules. Sub-section (2)) provides that all the seats in the municipality shall be filed in by the persons chosen by direct election from the wards. Sub-section (3) makes a provision that in addition to persons chosen by direct election from the wards, the State Government shall by notification in the Official Gazette, nominate the following categories of persons as members of a municipalities:
"(i) not more than three persons having special knowledge or experience in municipal administration;
(ii) members of the House of the People and the Legislative Assembly of State, representing constituencies which comprise wholly or partly, the municipal area; and
(iii) members of the Council of States, registered as electors within the municipal area;
Provided that the persons referred to in clause(i) above shall not have the right to vote in the meetings of the municipality:
Provided further that the Executive Officer in the case of Municipal Council and the Secretary in the case of a Municipal Committee shall have the right to attend all the meeting of the municipality and to take part in discussion but shall not have the right to vote therein."
Haryana Municipal Act was amended in 1995 by Act 3 of 1995 and by the amendment, another proviso was added to Section 9 which provided that the persons referred to in clauses (ii) and (iii) shall neither have right to contest nor right to vote in the election or removal of President or Vice President of committee or municipal council, as the case may be. Another amendment was made in 1996 by Act 18 of 1996 and proviso added by 1995 amendment was substituted with the proviso that persons referred to in clauses (ii) and (iii) shall neither have right to contest for the election of president or vice-president nor right to vote in the meetings for the election of President or Vice-President and in special meetings for consideration of motion of no confidence against the President or Vice President of the committee, as the case may be. Clause (i) and first proviso were omitted by 1996 amendment. The effect of 1996 amendment was that the nominated three persons having special knowledge or experience in the municipal administration ceased to be members of the committee and the right given to Member Legislative Assembly and Member of Parliament to vote in the meetings for election of President or Vice President and in special meetings of motion of No Confidence against the President or Vice President, was taken away. Some writ petitions were filed challenging the 1995 amendment and the Full Bench of this Court in Raj Pal Chhabra Vs. State of Haryana and Others, , struck down the proviso of clauses (ii) and (iii) whereby it debarred the persons falling in categories (ii) and (iii) from exercising right to vote, being repugnant and contrary to the provisions of Article 243(R) and scheme of Chapter IX-A of the Constitution of India, meaning thereby that Member of Parliament and Member Legislative Assembly have the right to participate and vote not only in the meetings for election of President or Vice President, but also in special meetings for consideration of motion of No Confidence against the President or Vice President, as the case may.
Learned Counsel appearing on behalf of respondents 6 to 27 has fairly conceded that in the light of Full Bench Judgment in Raj Pal Chhabra''s case (supra), ex-officio members, i.e., Member Legislative Assembly and Member of Parliament cannot be debarred from participating and voting in the meeting. He : also conceded that no notice of the meeting to be held on 9.9.1998 was given to Member of Parliament and Member Legislative Assembly. In view of the fair concession extended by counsel for respondents 6 to 27, notice for convening meeting to be held on 9.9.1998 being bad in law deserves to be quashed.
Turning to the next contention of the counsel that the meeting cannot be convened unless proceedings u/s 14-C initiated against the six members are concluded, it is only to be stated that power of removal of members on disqualification u/s 14(1)C lies with the State Government and unless the State Government removed a member u/s 14 after holding him to be disqualified, the participation of such member cannot be forbidden. In this regard, reference be made to judgment of this Court in Smt. Budho Devi and Another Vs. Deputy Commissioner and Others, .
The objection of the petitioner that the meeting cannot be convened without taking final decision in regard to initiation of proceedings u/s 14-C against six members is thus without any substance.
Accordingly, order notice dated 19.8.1998 of the Sub Divisional Magistrate, Sirsa, convening the meeting for 9.9.1998, to the extent he had not issued notice to member of Parliament and Member Legislative Assembly is quashed with a liberty to respondents 3 and 4 to convene the meeting afresh in accordance with law. Writ Petition stands allowed in these terms. No costs.