DHARAM PAL SINGH AND ORS vs STATE OF RAJASTHAN
- Court
- Rajasthan High Court
[2026:RJ-JP:40615-DB]
REPORTABLE
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
Judgment reserved on: 29.09.2026
Judgment delivered on: 26.10.2026
Judgment (Full) uploaded on: 26.10.2026
D.B. Special Appeal Writ No. 279/2002
CNR: RJHC020223332002 | URN: SAW / 486U / 2002
1.
Dharam Pal Singh Jain s/o Shri U.M. Jain, aged near
about 61 years, resident of Mangrol, District Baran.
2.
Purshottam Jajoo S/o Shri J.D. Jajoo, aged near about
40 years, resident of Mangrol, District Baran.
3.
Mathura Lal S/o Shri Baldev Pankaj, aged near about 50
years, resident of Mangrol, District Baran.
4.
Rafiq Ahmed S/o Shri Mulla Noor Ahmed, aged near
about 42 years, resident of Mangrol, District Baran.
5.
Anita Porwal W/o Shri Hemraj Gupta, aged near about
33 years, resident of Mangrol, District Baran.
6.
Girija Soni W/o Shri C.P. Soni, aged near about 33
years, resident of Mangrol, District Baran.
7.
Shanti Bai Raigar W/o Shri Kalu Lal Raigar, aged near
about 50 years, resident of Mangrol, District Baran.
8.
Radha Rani Hada W/o Shri Hemraj Singh Hada, aged
near about 45 years, resident of Mangrol, District Baran.
9.
Prabhu Lal Pareta S/o Shri Chaturbhujh Pareta, aged
near about 35 years, resident of Mangrol, District Baran.
10.
Ramcharan Pankaj So/ Shri Dhanna Lal Pankaj, aged
near about 40 years, resident of Mangrol, District Baran.
11.
Radheshaym Meena S/o Shri Dhanna Lal Meena, aged
near about 43 years, resident of Mangrol, District Baran.
12.
Mohd. Rafiq S/o Shri Alimuddin, aged near about 27
years, resident of Mangrol, District Baran.
13.
Rasool Mohd. S/o Shri Hazi Yakoob Seth, aged near
about 50 years, resident of Mangrol, District Baran.
14.
Prabhjeet Kaur Bagga W/o Shri Tejpal Singh Bagga,
aged near about 27 years, resident of Mangrol, District
Baran.
----Appellants
Versus
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1. The State of Rajasthan, through Secretary, Local Self
Department, Government of Rajasthan, Govt. Secretariat,
Jaipur.
2. The Minister In-charge, Government Urban Development &
Housing Department, Government of Rajasthan, Jaipur.
3. The Municipal Board, Municipality, Mangrole, through its
Executive Officer, Mangrole, District Baran.
4. Shri Hemraj Ex-Chairman, Municipal Board, Mangrole,
District Baran.
5. The Director, Local Bodies, Government of Rajasthan,
Jaipur.
----Respondents
Connected With
D.B. Special Appeal Writ No. 280/2002
CNR: RJHC020223342002 | URN: SAW / 487U / 2002
1.
Dharam Pal Singh Jain s/o Shri U.M. Jain, aged near
about 61 years, resident of Mangrol, District Baran.
2.
Purshottam Jajoo S/o Shri J.D. Jajoo, aged near about
40 years, resident of Mangrol, District Baran.
3.
Mathura Lal S/o Shri Baldev Pankaj, aged near about 50
years, resident of Mangrol, District Baran.
4.
Rafiq Ahmed S/o Shri Mulla Noor Ahmed, aged near
about 42 years, resident of Mangrol, District Baran.
5.
Anita Porwal W/o Shri Hemraj Gupta, aged near about
33 years, resident of Mangrol, District Baran.
6.
Girija Soni W/o Shri C.P. Soni, aged near about 33
years, resident of Mangrol, District Baran.
7.
Shanti Bai Raigar W/o Shri Kalu Lal Raigar, aged near
about 50 years, resident of Mangrol, District Baran.
8.
Radha Rani Hada W/o Shri Hemraj Singh Hada, aged
near about 45 years, resident of Mangrol, District Baran.
9.
Prabhu Lal Pareta S/o Shri Chaturbhujh Pareta, aged
near about 35 years, resident of Mangrol, District Baran.
10.
Ramcharan Pankaj So/ Shri Dhanna Lal Pankaj, aged
near about 40 years, resident of Mangrol, District Baran.
11.
Radheshaym Meena S/o Shri Dhanna Lal Meena, aged
near about 43 years, resident of Mangrol, District Baran.
12.
Mohd. Rafiq S/o Shri Alimuddin, aged near about 27
years, resident of Mangrol, District Baran.
13.
Rasool Mohd. S/o Shri Hazi Yakoob Seth, aged near
about 50 years, resident of Mangrol, District Baran.
14.
Prabhjeet Kaur Bagga W/o Shri Tejpal Singh Bagga,
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aged near about 27 years, resident of Mangrol, District
Baran.
----Appellants
Versus
1. The State of Rajasthan, through Secretary, Local Self
Department, Government of Rajasthan, Govt. Secretariat,
Jaipur.
2. The Minister In-charge, Government Urban Development &
Housing Department, Government of Rajasthan, Jaipur.
3. The Municipal Board, Municipality, Mangrole, through its
Executive Officer, Mangrole, District Baran.
4. Smt. Nadar Begum, Ex-Chairperson, Municipal Board,
Mangrole, District Baran.
5. The Director, Local Bodies, Government of Rajasthan,
Jaipur.
----Respondents
For Appellant(s) : Mr. Abhay Kumar Bhandari, Sr. Adv.
assisted by Mr. Rakshit Jain,
Ms. Niti Jain Bhandari,
Mr. Hans Kumar Sharma
For Respondent(s) : Mr. Abhishek Sharma and
Ms. Pooja Sharma for
Mr. Manoj Sharma, AAG
Full Bench
HON'BLE THE CHIEF JUSTICE MR. SANJAY K. AGRAWAL
HON'BLE MR. JUSTICE SAMEER JAIN
HON'BLE MR. JUSTICE BHUWAN GOYAL
C.A.V. JUDGMENT
Sanjay K. Agrawal, C.J.
For sake of exposition, this judgment is divided in following
parts:-
S.No. Particulars Page Nos.
1. Preface 4
2.
Quintessential facts for answering the
reference
4
3. 5
Legislative changes pending reference
4.
Constitutional provision relating to issue
involved
6
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5.
Issue involved decided by Hon’ble Supreme
Court pending reference
7
6. Decision of the Supreme Court in Raees Ahmad 12
7. 13
Finding
8. 13
Conclusion
Preface
1. The Division Bench of this Court comprising of Mr. M.R. Calla,
J. and Mrs. G.S. Misra, J. finding disagreement with the
judgment of this Court in Prem Raj Bohra vs. Jairoopa and
1
Ors. , referred the matter to the Chief Justice for constitution
of a larger Bench/Full Bench in accordance with Rule 59 of the
Rules of the High Court of Judicature for Rajasthan to consider
and decide the following question of law:
“Whether the nominated members could be rightly
excluded from the total number of members or whole
number of members for the purpose of considering the
requisite 2/3 majority?”
1.1 Pursuant to the aforesaid reference, the Chief Justice, vide
order dated 28.09.2026, constituted this Larger Bench. This
is how the matter comes up before us.
Quintessential facts for answering the reference:
2. No-confidence motion was carried on against Hemraj Sharma,
Vice Chairman, Municipal Board, Mangrole, District Baran,
which was conducted by the Sub-Divisional Officer, Baran on
13.09.2001 leading to filing of the revision by him before the
State Government under Section 300 of the Rajasthan
Municipalities Act, 1959. The State Government, vide order
dated 08.11.2001, allowed the revision holding that the 2/3
majority required under the Rajasthan Municipalities (Motion
1 D.B. Civil Special Appeal No.892/2001
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of No Confidence against Chairman or Vice Chairman) Rules,
1974 ( hereinafter referred to as ‘the Rules of 1974’ ) would
include the nominated members also in light of the decision of
2
the Supreme Court in Raees Ahmad vs. State of U.P. and
consequently, set aside the order dated 13.09.2001 carrying
out the no-confidence motion. Dharmpal, who is appellant
herein, was the intervenor before the State Government. He
filed two writ petitions before this Court under Article 226 and
227 of the Constitution of India. The learned Single Judge,
vide judgment and order dated 11.12.2001, dismissed the
writ petitions affirming the order of the State Government
holding that the nominated members have also to be included
in computing 2/3 of the total number of members of the
Municipality. Being aggrieved and dissatisfied by the judgment
and order passed by the learned Single Judge, the appellant
preferred these special appeals, in which by order dated
07.03.2003 finding disagreement to the decision rendered by
this Court in Prem Raj Bohra (supra), the aforesaid question
for determination was referred to larger Bench, while holding
that the principle of law laid down in Raees Ahmad (supra)
cannot be brushed aside, which makes a clear distinction to
the effect that the nominated members have also to be
included while counting 2/3 out of the total number or whole
number of members existed in the Municipality.
2 AIR 2000 SC 583
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Legislative changes pending reference
3. It is appropriate to note that the reference was made way
back on 07.03.2003 and it remained pending meanwhile,
certain important legislative changes have taken place and it
would be appropriate to note these changes before addressing
into the question of law so referred.
3.1 The reference was made when the Rajasthan Municipalities
Act, 1959 was in force. Thereafter, the Act of 1959 has been
repealed and the Rajasthan Municipalities Act, 2009 has been
brought into force with effect from 15.09.2009. Section 6 of
the Act of 2009 provides for composition of Municipality and
proviso (iii) thereto clearly provides that a nominated member
shall not have a right to vote in the meetings of the
Municipality. Similarly, at the time when the reference was
made, Rules of 1974 were in force. Now, it has been repealed
and the Rajasthan Municipalities (Motion of No Confidence
against Chairperson or Vice-Chairperson) Rules, 2007 have
been brought into force. Rule 2(1)(iii) of the Rules of 2007
clearly states that the ‘Eligible Member’ means Member of a
Board or a Council or a Corporation, but shall not include
nominated members and any member disqualified or
suspended under the provisions of the Act.
Constitutional provision relating to issue involved
4. Article 243R of the Constitution of India reads as under:
“ 243R. Composition of Municipalities. – (1)
Save as provided in clause (2), all the seats in a
Municipality shall be filled by persons chosen by direct
election from the territorial constituencies in the
Municipal area and for this purpose each Municipal area
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shall be divided into territorial constituencies to be
known as wards.
(2) The legislature of a state may, by law, provide –
(a) for the representation in a Municipality of –
(i) persons having special knowledge or experience
in municipal administration;
(ii) the members of the House of the People and
the members of the Legislative Assembly of the
State representing constituencies which
comprise wholly or partly the Municipal area;
(iii) the members of the Council of States and the
members of the Legislative Council of the State
registered as electors within the Municipal area;
(iv) the Chairpersons of the Committees constituted
under clause (5) of article 243S:
Provided that the persons referred to in
paragraph (i) shall not have the right to vote in the
meetings of the Municipality;
(b) the manner of election of the Chairperson of a
Municipality.”
4.1 The aforesaid Article provides for constitutional provision and
rights of the Municipality. Article 243R(2)(a)(i) allows the
legislature of a State to provide for the representation in a
Municipality of persons having special knowledge or
experience in municipal administration. However, proviso
appended to the said Article provides that no persons referred
to in paragraph (i) shall have the right to vote in the meetings
of the Municipality. As such, the nominated member has no
right to vote in the meetings of the Municipality.
Issue involved decided by Hon’ble Supreme Court pending
reference
5. The question as to whether in counting the whole number of
members of the Municipal Board in terms of Section 3(9) of
the Rules of 1974 against Chairman or Vice Chairman,
nominated members have to be taken into consideration
and/or whether counted for calculating majority requiring for
carrying the no-confidence motion against Chairman, Vice
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Chairman of the Municipal Board came to be answered by
three Judge Bench of Supreme Court in the matter of
3
Ramesh Mehta vs. Sanwal Chand Singhvi , wherein their
Lordships of the Supreme Court categorically observed that
the post of Chairman or Vice Chairman shall stand vacated on
passing of no-confidence motion by the members of the
Board, who are entitled to vote. As such, the whole number
or total number would mean the total number of elected
members. Thus, the only elected members and those who are
treated at par with the elected members, were entitled to
participate in the proceedings against the Chairman of the
Municipality. In fact, the decision in Ramesh Mehta (supra)
directly answered the referred question. In Ramesh Mehta
(supra), the following question of law was formulated for
answering, which states as under:
“1. The question raised in these civil appeals is
whether in counting "the whole number of members of
the municipal board" in terms of rule 3(9) of the
Rajasthan Municipalities (Motion of No-Confidence
against Chairman or Vice-Chairman) Rules 1974,
nominated members have to be taken into consideration.
2. to 7. xxxxxxx
8. The question involved in the present civil appeals is
whether nominated members in a Municipal Board are to
be counted for calculating the majority required for
carrying a no-confidence motion against a
Chairman/Vice-Chairman of the Board.”
6. Their Lordships in case of Ramesh Mehta (supra) considered
the aforestated question and held that the ‘majority’ would
mean ‘majority of persons entitled to vote’. It was held in
paragraphs 9 and 10 as under:
3 (2004) 5 SCC 409
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“9. At the outset, we may notice the legal position
prior to 1994. Section 3, which is a definition section,
begins with the words "unless the context otherwise
requires". Section 3(36) defines the expression "whole
number" or "total number" to mean total number of
members holding the office at the time. Under section 72
read with section 274 of the said Act, the State
Government enacted the 1974 Rules, which have
remained unchanged till date. Rule 3 prescribes
procedure for passing no-confidence motion. Rule 3(5)
states that no meeting for consideration of no-confidence
motion shall be held unless the quorum of 1/3 of the
whole number of members is present. Rule 3(8) states
that if the motion is not carried by 2/3 majority of the
whole number of members or if any meeting cannot be
held for want of quorum, the motion of no-confidence
against the Chairman/Vice-Chairman shall be deemed to
have been lost. Rule 3(9) states that if the motion is
carried by a majority of 2/3 of the whole number of
members, the motion shall be deemed to have been
passed. Section 9(4) dealt with co-option of two
members. Under clause (ii) of sub-section (5) of section
9, the co-opted members had a right to vote on all
motions and accordingly, they were put on par with
elected members. Under section 65(9) of the Act, the
office of the Chairman/Vice-Chairman stood vacated as
and when no-confidence motion was passed by a
majority of "the whole number of members" and
conversely if the motion was not carried by a majority,
such motion would fail. Reading the above provisions of
the un-amended Act and the 1974 Rules, it is clear that
even prior to 1994 the legislative intent was that the
Chairman/Vice-Chairman had to vacate his office on
passing of no-confidence motion by requisite majority of
members who had the right to vote, which included the
co-opted members. In Shackleton: Law and Practice of
th
Meetings (8 Edn., p.66) while explaining the word
"Majority" the learned author states that in Legislative
Assemblies it is usual to decide the questions by a
majority of those who have voting rights. The learned
author, further states, that in cases where a motion is to
be determined by a majority consisting of 2/3 of the
votes, the word "Majority" would mean majority of
persons entitled to vote on the proposal and once the
motion is voted upon by the requisite majority, it
becomes resolution of the meeting. Therefore, the word
"majority" would mean majority of persons entitled to
vote. In the present case, the word "majority" finds
place in sections 65(9) and 72(9) of the Act prior to
amendment. Therefore, even prior to 1994 amendment
of the Act, the legislature intended that the
Chairman/Vice-Chairman of the Municipal Board shall be
removed only by a requisite majority of members having
right to vote on the motion. We are, therefore of the
view that even prior to 1994, the words "whole number
of members" under rule 3 of the 1974 Rules meant total
number of members who have voting rights.
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10. There is no dispute with the proposition that the
right to elect and the right to be elected is a statutory
right and that the mode and manner of election to any
post could be different from the scheme of removal of a
person from that post. However, in each case, we have
to examine the Act in question, which we have done
hereinabove. In the circumstances, we do not wish to
discuss the judgments cited on behalf of the appellant in
support of the above proposition. However, reliance was
placed on the judgment of this Court in the case of
Raees Ahmad v. State of U.P. reported in [(2000) 1 SCC
432]. In the said case this Court was concerned with the
provisions of U.P. Municipalities Act under which the
Chairman is elected by direct election. Under section 43
of the U.P. Act the Chairman is elected directly by the
electorate on the basis of adult franchise exercised by
the voters of the area. It is the case of direct election.
On the other hand, in the present case under section 65
of the Rajasthan Municipalities Act with which we are
concerned the Chairman is elected from amongst the
elected members of the Board. This distinction, in our
view, is very important. As stated above, prior to 1994
the co-opted and the elected members were put on par.
Both the categories had the right to vote. The Chairman
was elected from amongst the members of the Board.
Consequently, the Chairman/Vice-Chairman had to
vacate the office when such members voted in support of
the motion. In the circumstances, the judgment of this
Court in the case of Raees Ahmad (supra) has no
application to the facts of the present case.”
6.1 The Supreme Court finally answered the question in
paragraphs 11 and 13, which read as under:
11. In the present case, on facts, we are concerned with
post 1994 position. Article 243R brought about a drastic
change in the matter of composition of Municipalities. It
lays down guidelines with regard to the constitution,
composition, election and rights of the members of a
Municipality. Under the said Act, members of a municipality
are persons chosen by direct election by the residents of a
municipal area (ward). Article 243R(2)(a)(i) allows the
legislature of a State to appoint any person as a member of
the Board who has special knowledge in the field of
municipal administration, however, the proviso appended to
the said Article precludes persons nominated under sub-
clause (i) from having a right to vote in the meetings of the
Municipality. The Constitution, therefore, makes a
distinction between elected members and nominated
members who play essentially an advisory role. Pursuant to
the Seventy-fourth Constitutional Amendment of 1994,
section 9, 65 and 72 of the Act were amended. Prior to the
amendment the co-opted members were at par with the
elected members, however, after 1994 only elected
members and members of the legislative assembly have a
right to vote under section 9(1) of the Act. Under sub-
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section (2) of section 65, as amended, the Chairman has to
be elected by "elected members of the Board". This change
is very important. Prior to 1994, the Chairman was to be
elected by the "members of the Board", which is the phrase
used in the unamended section 65(2), as the co-opted
members had a right to vote. However, in 1994, section
65(2) of the Act was amended and the expression
"members of the Board" in the old section is substituted by
the expression "elected members of the board". In fact, the
expression "whole number of members" earlier appearing in
sections 65 and 72 of the Act have been deleted because in
section 65(2) it is expressly provided that the Chairman
shall be elected only by elected members of the Board from
amongst themselves. Therefore, the scheme of post 1994
Act is that the Chairman/Vice-Chairman shall be elected by
the elected members of the Boards and their office shall
stand vacated on passing of no confidence motion by the
elected members of the Board. The position which,
therefore, emerges is that both before and after 1994, the
no-confidence motion had to be voted upon by members
who were entitled to vote. As stated above, section 3 of the
Act begins with the words "unless the context otherwise
requires". Section 3(36) defines the expression "whole
number"/"total number" to mean total number of members
holding the office at the given time. The said expression
"whole number of members" finds place in rule 3(5), (8)
and (9). Hence, we have to read rule 3(5), (8) and (9) in
the context of the provisions of the said Act. As stated
above, the basic scheme of the Act prior to 1994 and post
1994 has remained unchanged. In both cases, the
legislative intent has been that the office of the
Chairman/Vice-Chairman shall stand vacated on passing of
no-confidence motion by the members of the Board who are
entitled to vote. Hence, in our view, the expression "whole
number" or "total number" connotes the "total number of
elected members".
12. xxxx
13. To sum up, under pre-1994 and post-1994 provisions,
the legislature intended that Chairman/Vice Chairman shall
be removed on passing of no-confidence motion by
requisite majority of members having right to vote.”
6.2 The aforesaid paragraph 13 specifically answered the question
that under pre-1994 and post-1994 provisions, the legislature
intended that the Chairman/Vice Chairman shall be removed
on passing of no-confidence motion by requisite majority of
members having right to vote.
7. In Ramesh Mehta (supra), Justice S.B. Sinha gave a
concurring and separate opinion and answered the question
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that only members with voting right are entitled to participle
in that proceedings and not the nominated members. Justice
S.B. Sinha has held as under:
“41. The decisions of the courts as regards right of
participation of the member who was an elected
member or who had a right equal to that of an elected
member had been taken notice of by Brother Kapadia, J.
The said decisions are pointers to the fact that only
elected members and those who are to be treated at par
were entitled to participate in a proceeding initiated for
removal of the Chairman of the Municipality.
42. By reason of the amendment in the Constitution
and consequent amendment by the State Legislature in
the Rajasthan Municipalities Act, however, no indication
has been given that by reason thereof a special right is
sought to be created in the nominated members
although they would not participate in such a
proceeding and would not have any voting right either
at the election of the Chairman or in the proceedings for
his removal.
43. We, therefore, are of the opinion that the Rules
which were made in the year 1974 having not been
amended; with a view to give an effective and proper
meaning must be construed to mean that only members
with voting right are entitled to participate in that
proceedings and not the nominated members.”
Decision of the Supreme Court in Raees Ahmad (supra)
8. However, the Supreme Court distinguished the principle of law
laid down in Raees Ahmad (supra). In that case, the
Supreme Court was concerned with the provisions of
Rajasthan Municipality Act, under which the Chairman shall be
elected by direct election under the Rajasthan Municipalities
Act, 1959. The Chairman was the elected member of the
Municipal Board and the Supreme Court further held that the
nominated members shall remain members and had to be
counted for vote even though a proviso denied them a right to
vote. The Supreme Court held in para 4 as under:
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“4. It will be noticed that nominated members are part
of the composition of the Municipality and are referred to
in the statute as the nominated members thereof. For the
purposes of finding whether a motion of no-confidence
against the President has been carried, what has to be
seen is whether it has been passed by "a majority of two
third of the total number of members of the Municipality".
There can be no doubt, therefore, that, on a plain
construction of the statute the number of the nominated
members has to be taken into account in determining
whether or not a motion of no-confidence against the
President has been carried.”
Finding
9. The decision of the Supreme Court in Ramesh Mehta (supra)
directly construes the very Act and the very Rules of 1974 in
issue here, and its ratio governs the instant question of law.
The whole number of members under the Rules of 1974 read
in its statutory and constitutional context, means the whole
number of members entitled to vote on the motion.
Nominated members, having no voting right, are accordingly
excluded from the denominator. The decision in Raees
Ahmad (supra) is clearly distinguishable from the facts of the
present case. This Court was concerned with the provisions of
the Municipalities Act, under which the Chairman was elected
by direct election. As such, the decision in Raees Ahmad
(supra) has no application in the instant case.
Conclusion
10. Accordingly, reference is answered in affirmative under the
Rajasthan statutory scheme governing a motion of no-
confidence, nominated members who have no right to vote
are not to be included in the whole number or total number of
members for computing the requisite majority, as held by
their Lordships of the Supreme Court in Ramesh Mehta
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(supra) and as such, Prem Raj Bohra (supra) was correctly
decided holding that the nominated member would not have
the voting right and should not be included in the total
number of members in counting 2/3 majority of voting for
passing no-confidence motion. The reference is, accordingly,
answered.
11. Ordinarily, we could have remitted the matter to the learned
Division Judge for deciding the appeal in view of the question
of law as answered hereinabove, but since the no-confidence
motion was carried way back on 13.09.2001, remitting the
matter would not serve any useful purpose.
12. Accordingly, the appeals are disposed of as having become
infructuous leaving the parties to bear their own costs.
(BHUWAN GOYAL),J. (SAMEER JAIN),J. (SANJAY K. AGRAWAL),CJ
2/MohitTak
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