Rajasthan High Court – Jaipur
Rasida Khatoon W/O Mainuddin Khan vs The State Of Rajasthan on 23 July, 2025
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 11862/2024
Rasida Khatoon W/o Mainuddin Khan, Aged About 70 Years, R/o
Near Jama Masjid, Dholikhar, Karauli, Rajasthan - 322241
----Petitioner
Versus
1. State of Rajasthan, Through Secretary, Local-Self
Government, Secretariat, Jaipur, Rajasthan
2. Director Local Bodies and Joint Secretary, To The
Government (Local Self Department), Rajasthan
3. Additional District Collector, Karauli, Rajasthan
4. Tehsildar, Karauli, Rajasthan
----Respondents
Connected With
S.B. Civil Writ Petition No. 12086/2024
Rasida Khatoon W/o Mainuddin Khan, aged about 70 Years, R/o
Near Jama Masjid, Dholikhar, Karauli, Rajasthan -322241,
Currently Serving as Chairperson, Nagar Parishad, Karauli,
Rajasthan
—-Petitioner
Versus
1. The State of Rajasthan, Through Director and Joint
Secretary, Local Bodies, Jaipur, Rajasthan
2. Additional District Collector, Karauli, Rajasthan
3. Tehsildar, Karauli, Rajasthan
—-Respondents
S.B. Civil Writ Petition No. 653/2025
Rasida Khatoon W/o Mainuddin Khan, aged about 70 Years, R/o
Near Jama Masjid, Dholikhar, Karauli, Rajasthan – 322241
—-Petitioner
Versus
1. State of Rajasthan, Through Secretary, Local-Self
Government, Secretariat, Jaipur, Rajasthan
2. Director, Local Bodies and Joint Secretary to The
Government (Local Self Department), Rajasthan
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3. Additional District Collector, Karauli, Rajasthan
4. Tehsildar, Tehsil Karauli, District Karauli, Rajasthan
5. Special Secretary, Law and Jt. Legal Remembrance And
Judicial Inquiry Officer, Secretariat, Jaipur, Rajasthan.
----Respondents
For Petitioner(s) : Mr. S.S. Hora with
Mr. Ishan Khandelwal
For Respondent(s) : Mr. Rajendra Prasad-AG assisted by
Mr. Sheetanshu Sharma
Mr. Tanay Goyal
Ms. Dhriti Laddha
Ms. Harshita Thakral
Mr. G.S.Gill-AAG with
Mr. S.P.S Rajawat-Asst.G.C.
Mr. Manoj Kumar
Mr. Prem Shanker Sharma with
Mr. Jitendra Kumar Sharma
Mr. Mahendra Shandilya
Mr. Manish Kumar Meena
Mr. Pradeep Kumar
JUSTICE ANOOP KUMAR DHAND
Order
Reserved on 16/07/2025
Pronounced on 23/07/2025
Reportable
For convenience of exposition, this order is divided in the
following parts: –
INDEX
(1) Factual matrix of the case …………………………………….2
(2) Submissions on behalf of the petitioner ………………….3
(3) Submissions on behalf of the respondents……………….5
(4) Discussions and Analysis……………………………………….8
(5) Conclusion and Directions ……………………………………24Factual matrix of the case:-
1. Since, these writ petitions involve common questions of law
and facts, therefore, with consent of the counsel for the parties,
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(3 of 25) [CW-11862/2024]arguments have been heard together in all these matters and the
same are being decided by this common order.
2. The petitioner has submitted three different writ petitions by
way of (i) challenging the suspension order dated 15.07.2024
passed by the respondents; (ii) challenging the judicial enquiry
conducted against the petitioner under Section 39 of the
Rajasthan Municipalities Act, 2009 (for short, ‘the Act of 2009’);
(iii) challenging the enquiry report, submitted by the Enquiry
Officer, on the ground that the enquiry was not conducted by the
Enquiry Officer, so appointed for this purpose, but instead the
powers were delegated to the subordinate authorities.
Submissions on behalf of the petitioner:-
3. Counsel for the petitioner submits that the petitioner was
elected as Chairperson, Nagar Parishad, Karauli and certain
complaints were submitted against her with regard to issuance of
pattas. Counsel submits that as per the proviso attach to Section
39(1) of the Act of 2009, the State Government was supposed to
conduct an enquiry through existing or retired officer not below
the rank of State Level Services. Counsel submits that in the
instant case, the Additional Collector, Karauli was appointed as the
Enquiry Officer to conduct an enquiry against the petitioner, but he
did not conduct any enquiry himself rather delegated his powers
to the subordinate Officers viz., the Tehsildar, Karauli as well as to
the Commissioner, Municipal Council, Karauli and collected the
report with regard to the allegations from them. Counsel submits
that on the basis of the report, received from the aforesaid
Officers, the order dated 05.06.2024, incorporating the said
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(4 of 25) [CW-11862/2024]report, was sent by the Additional Collector, Karauli to the Director,
Local Bodies, without any enquiry being conducted by him.
Counsel submits that relying upon the aforesaid order/report
dated 05.06.2024, a show cause notice under Section 39(1) of the
Act of 2009 was issued and served upon the petitioner and she
was placed under suspension vide impugned order dated
15.07.2024 and an order was also passed for conducting judicial
enquiry against her. Counsel submits that as per the proviso
attached to Section 39 (1) of the Act of 2009, it was incumbent
upon the Enquiry Officer i.e. the Additional Collector, Karauli to
hold and conduct the enquiry himself and could not have
delegating his power to the subordinate officers i.e. the
Commissioner, Municipal Council, Karauli and Tehsildar, Karauli.
Counsel submits that under these circumstances, all the
subsequent orders which were passed, based upon the report
furnished by the Additional Collector have no bearing to the case
and the same are not sustainable in the eyes of law and are liable
to be quashed and set aside. Counsel submits that the general
rule, whatever a person has power to do himself, he may do the
same by means of an agent, has been limited by the operation of
the principle that a delegated authority/power cannot be further
delegated i.e. delegatus non protest delegare. Counsel further
submits that if the order/report dated 05.06.2024 goes, the
subsequent orders arising out of the aforesaid order will
automatically fall. In such a factual situation the latin maxim
sublato fundamento cadit opus comes into play which means that
when the foundation is removed, the structure falls. Counsel
further submits that the entire action against the petitioner is
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initiated on the allegation that pattas were illegally issued in
favour of certain known persons by her. Counsel submits that the
petitioner was simply a co-signatory of the pattas and the another
signatory was the Commissioner, Municipal Council, Karauli
against whom neither any action has been taken nor he has been
placed under suspension or any inquiry has been initiated against
him. Counsel submits that the aforesaid selective action of the
respondents is nothing but adopting a pick and choose approach
in the matter, inasmuch as when both the persons were at fault
then certainly, the action was also required to be taken against
both of them i.e. against the said Commissioner as well as the
petitioner. In support of his contentions, he has placed reliance
upon the judgment passed by this Court in the cases of Satish
Kumar Duhariya Vs. State of Rajasthan and Anr. (S.B. Civil
Writ Petition No. 11706/2023, decided on 23.01.2024) and Vimla
Devi (Smt.) Vs. State of Rajasthan and Ors., reported in
2007 SCC Online Raj. 458.
Submissions by the rival sides:-
4. Per contra, the learned Advocate General as well as the
learned Additional Advocate General, have opposed the arguments
advanced by counsel for the petitioner and submitted that certain
complaints were received against the petitioner alleging misuse of
her post and issuance of pattas. Counsel submits that the matter
was examined by the Additional District Collector, Karauli, who
sought report from the Municipal Commissioner as well as the
Tehsildar, Karauli. Counsel submits that after receipt of the
aforesaid report from the concerned Officers, a report was
prepared and sent to the Government for further examination of
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(6 of 25) [CW-11862/2024]the matter through audit, etc. Counsel submits that the Additional
District Collector was never appointed as an “Enquiry Officer”,
rather he was simply asked to submit the report. Counsel submits
that the proviso attached to Section 39(1) of the Act of 2009, does
not mandate that the enquiry should be conducted only by a
retired or existing officer not below the rank of State Level Service
but a mechanism has been provided under the proviso which
empowers the State to proceed in the matter either by conducting
enquiry by itself or through the existing or Retired Officer of the
rank of State Level Services or by any authority of the
Government directly. Counsel submits that the allegations against
the petitioner were prima facie found to be proved and
accordingly, the matter was sent to the Government for taking
appropriate action. Counsel submits that the report submitted by
the Tehsildar, Karauli and the Commissioner, Municipal Council,
Karauli was simply a fact finding report, hence the arguments
raised by counsel for the petitioner with regard to delegation of
power would not apply in the facts and circumstances of the
present case. Counsel submits that the principle of delegatus non
protest delegare is not applicable in the administrative actions or
ministerial acts rather this principle applies to statutory judicial
and quasi-judicial functions. Counsel submits that similar situation
came up before the Co-ordinate Bench of this Court in the case of
Narendra Kumar Khodaniya Vs. State of Rajasthan and Ors.
while deciding SBCWP No. 15215/2024, vide order dated
23.09.2024 wherein the earlier judgment passed by the said Co-
ordinate Bench in the case of Manszoor Ali Vs. State of
Rajasthan and Ors. (SBCWP No. 17283/2021) was distinguished
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and a view was taken by the said Co-ordinate Bench that the
matter can be proceeded against the elected representative under
Section 39 of the Act of 2009 on the basis of the fact finding
report submitted by the Officers. Counsel submits that the
petitioner cannot be allowed to claim negative parity on the
ground that she was simply a co-signatory of the pattas. Counsel
submits that even if the pattas have been issued under the
signatures of the Commissioner, Municipal Council, Karauli as well
as the petitioner and the action is taken against one of the
authorities, the petitioner cannot be allowed to claim negative
parity. Lastly, he argued that the petitioner is not only a signatory
but also the a beneficiary in the matter. Counsel submits that on
the basis of the report received from the aforesaid Officers, the
matter was sent by the Additional District Collector to the
Government where explanation/reply of the petitioner, was also
sought under Section 39 (1) of the Act of 2009. After duly
considering the reply submitted by the petitioner, a decision was
taken by the State to conduct judicial enquiry into the allegations
levelled against the petitioner as well as the other Officer,
therefore, pending judicial enquiry, the petitioner was placed
under suspension. Hence, under these circumstances, interference
of this Court is not warranted and the present writ petitions are
liable to be rejected.
5. In rejoinder, counsel for the petitioner submits that there has
been a complete non application of mind by the Government,
while passing the suspension order against the petitioner. Counsel
submits that the suspension order has been passed in a
mechanical and perfunctory manner, without duly considering the
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reply submitted by the petitioner and without proper deliberation
and evaluation of the facts. Counsel submits that the petitioner is
an elected representative having a limited term and in case, the
charges are ultimately not found to be proved in the judicial
enquiry and she is exonerated of all the charges, the time lost
during her suspension cannot be restored. Counsel submits that
the petitioner has no intention to influence or interfere with the
judicial enquiry, hence, her suspension is not warranted. Lastly, he
argued that the petitioner alone was not the competent authority
to issue the pattas, rather the pattas were issued by the
competent authority, after verification of the record and if no
action has been taken against him, then certainly, no action is
required to be taken against the petitioner as well.
Discussions and Analysis:-
6. Heard and considered the submissions made at Bar and
perused the material available on record.
7. Before dealing with the submission, it would be gainful to
reproduce the provisions contained under Section 39(1) and (3) of
the Act of 2009, which reads as under:-
“39. Removal of member. – (1) The State
Government may, subject to the provisions of
sub Sections (3) and (4), remove a member of a
Municipality on any of the following grounds,
namely: –
(a) that he has absented himself for more than
three consecutive general meetings, without
leave of the Municipality:
Provided that the period during which such
member was a jail as an under trial prisoner or
as a detenue or as a political prisoner shall not
be taken into account,
(b) that he has failed to comply with the
provisions of Section 37,(Downloaded on 23/07/2025 at 07:50:59 PM)
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(c) that after his election he has incurred any of
the disqualification mentioned in Section 14 or
Section 24 or has ceased to fulfil the
requirements of Section 21,
(d) that he has –
(i) deliberately neglected or avoided
performance of his duties as a member, or
(ii) been guilty of misconduct in the discharge of
his duties, or
(iii) been guilty of any disgraceful conduct, or
(iv) become incapable of performing his duties
as a member, or
(v) been disqualified for being chosen as
member under the provisions of this Act, or
(vi) otherwise abused in any manner his position
as such member, or
(e) that after his election, it has come to the
knowledge of the State Government that on the
date of election, he was not qualified under
section 21 or was disqualified under section 14
or section 24, to be chosen to fill the seat under
this Act and his election as a member of a
Municipality has not been questioned by an
election petition and period of limitation for filing
election petition has expired.
Provided that an order of removal shall be
passed by the State Government after such
inquiry as it considers necessary to make either
itself or through such existing or retired officer
not below the rank of State level services or
authority as it may direct and after the member
concerned has been afforded an opportunity of
explanation.
(2) xxxx xxxx xxxx xxx
(3) Notwithstanding anything contained in sub-
Section (1) where it is proposed to remove a
member on any of the grounds specified in
clause (c) or clause (d) of sub-Section (1), as a
result of the inquiry referred to in the proviso to
that sub-Section and after hearing the
explanation of the member concerned, the State
Government shall draw up a statement setting
out distinctly the charge against the member
and shall send the same for enquiry and findings
by Judicial Officer of the rank of a District Judge
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to be appointed by the State Government for the
purpose.”
Perusal of the aforesaid provision indicates that a member of
a Municipality can be removed from office if he/she has been
found guilty in discharge of duties or has been found guilty of any
disgraceful conduct. In the instant case, a memorandum of
charges dated 26.06.2024 was served upon the petitioner
enumerating several charges. The petitioner submitted her
explanation with the reply and after considering the same it was
found that the petitioner has misused her power and position by
issuing pattas in violation of the Rules for her own benefit and
such an act of the petitioner was found to be disgraceful. Hence, a
decision was taken to hold and conduction a judicial enquiry
against the petitioner and she was placed under suspension vide
order dated 15.07.2024.
8. The star argument of counsel for the petitioner is that the
Additional Collector was appointed as the ‘Enquiry Officer’ and he
was supposed to conduct the enquiry himself against the
petitioner, however, instead of doing so, he purportedly delegated
his power to the sub-ordinate Officers i.e. the Tehsildar, Karauli
and the Commissioner, Municipal Council, Karauli. He submits that
the order impugned was passed against the petitioner solely on
the basis of the report of these two officers. Counsel submits that
the delegated power cannot be further delegated. Counsel submits
that the well known maxim delegatus non protest delegare, is
applicable in this matter. Hence, the entire action initiated against
the petitioner stands vitiated. Counsel submits that the foundation
of the entire case is bad, hence other maxim “sublato fundamento
cadit opus’ is also applicable in the present case. Hence, the
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order/report dated 05.06.2024 and all actions taken thereupon i.e.
initiation of judicial enquiry and placing the petitioner under
suspension are legally untenable and liable to be quashed being
bad in the eyes of law.
9. Perusal of the entire record indicates that the Additional
Collector was not formally appointed as the ‘Enquiry Officer” to
conduct the enquiry against the petitioner. Rather, he was simply
asked to submit a report with regard to the allegations levelled
against the petitioner, in terms of the provisions contained under
the proviso attached to Section 39 (1) of the Act of 2009 on the
grounds mentioned in sub clause (c) to (d) attached thereto. The
proviso attached to the Section 39 (1) reveals that an order of
removal of a member shall be passed by the State, after holding
an enquiry, as it considers necessary to make:-
(i) either by itself; or
(ii) through such existing or Retired Officer not below the rank of
State Level Service; or
(iii) by authority as it may direct and after affording an
opportunity of explanation to such member. “Meaning thereby the
enquiry may be conducted by the State itself or by any authority
as may be directed by the State or by a retired or existing
member of State Level Services. It is not necessary that the
enquiry must always be conducted by an officer of the State
Services authority.
10. Now, the questions which remain for consideration of this
Court is “whether the Additional Collector, who submitted the
report against the petitioner, was appointed as the ‘Enquiry
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Officer’ or not”, and “whether the report submitted by him holds
any legal validity or not.”
11. A complaint was received by the respondents wherein
several allegations were levelled against the petitioner for
misusing her power and postion. It was also alleged that the
pattas were issued by her for her own benefits.
12. Thereafter, the Director, Department of Local Bodies, Jaipur
(for short, ‘the DLB’) asked the Additional Collector, Karauli to
submit his report after conducting enquiry in the matter.
Thereafter, the Additional Collector submitted the fact finding
report, received from the Tehsildar, Karauli and the Commissioner,
Municipal Council, Karauli and submitted the following order/report
to the Director, DLB on 05.06.2024 which reads as under:-
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iqu% vehuqnnhu iq= ebZuqnnhu dks mlh LFkku ij la”kksf/kr fefJr
iV~Vk dzekad 07@239 fnukad 06-07-2022 tkjh fd;k x;kA
la”kksf/kr iV~Vs dk {ks=Qy c<+kdj iwoZ esa tkjh iV~Vs ds {ks=Qy
372-63 oxZehVj ls 397-09 oxZehVj dj fn;k x;kA blh Hkw[k.M ds
laca/k esa ekuuh; U;k;ky; laHkkxh; vk;qDr dksVk ds izdj.k la[;k
16@93 dY;k.k izlkn ,oa vU; cuke iz”kkld ua-ik- ,oa vU;
djkSyh esa fu.kZ; fnukad 03-11-1997 eas bl Hkw[k.M esa fLFkr egknso
eafnj rd vkus tkus gsrq 05 QhV pkSMk jkLrk NksMus ds fy, uxj
ikfydk djkSyh dks vkns”k fn;s x;s gSA U;k;ky; vkns”k ds lkFk
layXu uD”ks esa eafnj dks iznf”kZr fd;k x;k gSA fu.kZ; fnukad 03-
11-1997 dh izfr layXu gSA uxj ifj’kn }kjk tkjh ewy iV~Vk
dzekad 07 fnukad 12-11-2021 ds lkFk layXu uD”ks esa Hkh 05 QhV
pkSMk jkLrk iznf”kZr fd;k x;k gSA uohu la”kksf/kr iV~Vs dzekad
07@239 fnukad 06-07-2022 esa eafnj vkSj jkLrs dks foyksfir djrs
gq, iV~Vk tkjh dj fn;k x;k gSA
03- ;g gS fd f”kdk;rdrkZ }kjk Mwc {ks= esa 66
vkoklh;@fefJr iV~Vs /kkjk 69 , ds rgr tkjh fd;s tkus dh
lwph layXu dh gSA uxj ifj’kn us viuh tkWp esa
f”kdk;rdrkZ }kjk crk;s x;s Mwc {ks= dh lwph ,oa blls lacaf/kr
lwpuk uxj ifj’kn dk;kZy; esa vuqiyC/k gksuk crk;k gSaA tcfd
f”kdk;r drkZ us uxjikfydk }kjk lgk;d vfHk;Urk ikWpuk flpkbZ
mi[k.M f}rh; djkSyh dks vius i=kad% ua-ik-@,Q@¼
½@97@1324 fnukad 02-08-97 ¼izfrfyfi layXu½ dj unh xsV
izksVD”ku ds vUnj vkus okys edku ekfydksa dh lwph miyC/k djkbZ
gSA tks f”kdk;r drkZ }kjk vkj-Vh-vkbZ- ds rgr lgk;d vfHk;Urk]
ty la”kk/ku mi[k.M djkSyh ds dk;kZy; ls çkIr dh gS] f’kdk;r
drkZ ds }kjk ;g Hkh crk;k x;k gS fd ikWpuk ckW/k dh Mwc {ks=
lhek esa vkus okys edku ekfydks }kjk ikWpuk flpkbZ foHkkx djkSyh
ls eqvkotk jk”kh ds pSd çkIr djus ds ckn Hkh uxj ifj”kn djkSyh
ls vius ifjokjtuks ds uke ls iV~Vs tkjh djok fy, ftldh tk¡p
gsrq dk;kZy; vf/k’kk”kh vfHk;Urk ty lalk/ku foHkkx djkSyh dks
v/kksgLrk{kjdrkZ }kjk i= dekad 269 fnukad 16-05-2023 izsf’kr dj
mu O;fDr;ksa ds uke dh lwph pkgh xbZ tks Jheku~ mi[k.M
vf/kdkjh egksn; dks eqvkots ds fy, izLrqr dh xbZA mDr lwph
pSd uEcj lfgr miyC/k ugha gksus ds dkj.k tkWp djuk laHko ugha
gks ik;k gSA flpkbZ foHkkx ,oa uxj ifj’kn ds vf/kdkfj;ksa dh
vifBr xfBr dj ekSds ij tkdj tkWp djuk mfpr gksxkA04- ;g gS fd vk;qä] uxj ifj”kn djkSyh dk dFku ;g gS fd%&
vYykuwj iq= ‘kdwj [kkW vEcsMdj lfdZy yksVuihj djkSyh dks tkjh
iêk 139-39 oxZehVj iwoZ esa LVsVxzkaV lu~ 1961 ds rgr iV~Vk tkjh
(Downloaded on 23/07/2025 at 07:50:59 PM)
(15 of 25) [CW-11862/2024]gks j[kk FkkA blds vk/kkj ij jktLFkku ljdkj dh xkbZM ykbZu ds
vuqlkj 69 , ds rgr iV~Vk fu;ekuqlkj tkjh fd;k x;k FkkA
mDr ds laca/k esa tkWp djus ij iV~Vk fu;ekuqlkj tkjh fd;k
tkuk çrhr gksrk gSA iV~Vs ,oa Hkw[k.M ds uD’ks dh Nk;k çfr t‚p
fjiksVZ ds layXu gSA05- ;g gS fd dk;kZy; gktk ds i=kad ih-th-@2024@172 fnukad
19-03-2024 ,oa 222&23 fnukad 13-05-2024 esa vafdr fcUnq la[;k
01 yxk;r 03 ls lacaf/kr nLrkost tk¡p gsrq miyC/k ugha djkdj
vk;qDr] uxj ifj’kn djkSyh ds i=kad 248 fnukad 30-04-2024 ls
voxr djk;k fd fjdkMZ ‘kh?kz gh miyC/k djok fn;k tkosxkA
ijUrq fjdkMZ vkfnukad rd vçkIr gksus ds dkj.k tk¡p djuk
lEHko ugha gks ik;k gSA06- ;g gS fd djkSyh iVokj gYdk 09 esa fLFkr Hkwfe [kkrk la[;k
u;k 342 [kljk ua- 5267 ls 5271 o iVokj gYdk djkSyh 08 esa
fLFkr Hkwfe [kkrk la[;k u;k 265 [kljk ua- 795 yxk;r 800] 827]
846 yxk;r 851] 863 yxk;r 871] 874 yxk;r 881 dh orZeku
tekcUnh esa dkLrdkj dk uke ijekuUn nkl psyk ?ku’;ke nkl
tkfr ckcwth lk-nsg- ls lacaf/kr Hkwfe esa uxj ifj”kn }kjk Hkw jktLo
vf/kfu;e dh /kkjk 90 ,@90 ch ds varxZr tkjh leLr iV~Vs ,d
ls vf/kd [kljk uEcjks esa lfEefyr iêk tkjh fd;k x;k gS mu
O;fä;ksa ds ukeksa dh lwph ,oa orZeku tekcUnh t‚p fjiksVZ ds lkFk
layXu gSA07- ;g gS fd vCnqy x¶Qkj iq= vCnqy xQqj fuoklh unh xsV ds
ikl] [kkj jksM] djkSyh ds uke uxj ifj”kn djkSyh }kjk 69, ds
vUrxZr fn;k x;k vkoklh; iêk Øekad%
LD/KRLI/2021&22@105967 fnukad 17-05-2022 {ks=Qy 400-37
oxZehVj ds laca/k esa f’kdk;rdrkZvksa dk ;g dFku gS fd vCnqy
x¶Qkj }kjk mDr vkoklh; iêk tkjh gksus ls iwoZ Loa; ds edku
ds ik¡puk Mqc {ks= esa vkus ij Jheku Hkwfe vokIr vf/kdkjh
djkSyh }kjk tkjh pSd la[;k 762686 ls 92299 :i;s dk eqvkotk
çkIr fd;k x;kA mä ds laca/k esa nLrkostksa dh tk¡p djus ij ;g
ik;k x;k fd uxjikfydk djkSyh }kjk lgk;d vfHk;Urk i‚puk
flpkbZ mi[k.M f}rh; djkSyh dks vius i=kad% u-ik-@,Q@¼
½@97@1324 fnukad 02-08-97 ¼çfrfyfi layXu½ }kjk unh xsV
çksVD’ku ds vUnj vkus okys edku ekfydksa dh lwph miyC/k djkbZ
gSA tks f’kdk;r drkZ }kjk vkj-Vh-vkbZ- ds rgr lgk;d vfHk;Urk]
ty lalk/ku mi[k.M djkSyh ds dk;kZy; ls çkIr dh gSA mä
lwph esa Øe la[;k 02 ij vCnqy x¶Qkj iq= vCnqy xQqj] fuoklh
unh xsV djkSyh dk uke vafdr gSA ¼layXu mijksäkuqlkj½08- ;g gS fd dk;kZy; uxj ifj”kn djkSyh }kjk vkifÙk vkea=.k
lwpuk dekad 2684&87 fnukad 06-09-2023 esa 94
vkosnudrkZvksa }kjk 90,@90ch ds vUrxZr vius Hkw[k.M dk fu;eu
dj iêk gsrq vkosnu çLrqr fd;s x;sA ftuds vkosnu i= uxj
ifj”kn esa çfØ;k/khu ds laca/k esa vk;qDr uxj ifj”kn djkSyh }kjk
laoknnkrk C;wjks lans’k ds uke ls LFkkuh; laLdj.k esa Mhåihåvkjå
nj ij çdkf’kr fd;k tkuk mYysf[kr gSA tcfd uxj ifj”kn }kjk(Downloaded on 23/07/2025 at 07:50:59 PM)
(16 of 25) [CW-11862/2024]laoknnrk C;wjks lans’k dks çdk’ku gsrq nh x;h çfrfyfi esa C;wjks
lans’k dk;kZy; dk irk dk mYys[k ugha gSA ftlls tk¡p esa ;g
Li”V ugha gks ik jgk gS fd uxj ifj”kn }kjk mijksDr lwpuk fdl
ek/;e ls izdk”ku gsrq nh tkrh gSAlkjka”kr% izdj.k esa izkIr f”kdk;rksa ds laca/k esa u-i- vk;qDr
djkSyh ls tcko@rF;kRed fjiksVZ izkIr gksus rFkk mudk ijh{k.k
rg- djkSyh ls djok;s tkus ,oa leLr fjdkWMZ dk voyksdu djus
ij mi;ZqDrkuqlkj dqN ekeyksa esa vfu;ferrk mtkxj gksrh gS rFkk
laiw.kZ fjdksMZ miyC/k ugha djok;s tkus ls dqN f”kdk;rksa ds
fcUnqvksa dh tkWp ugha dh tk ldh gSA
v/kksgLrk{kdrkZ ds vfHker esa u-i- djkSyh ds
fØ;kdYkkiksa@ys[kksa dh funs”kky; Lrj ls Vhe xfBr dh tkdj
foLr`r vkWfMV@tkWp djokbZ tkuh pkfg,A”
13. After receipt of the aforesaid report, a notice under Section
39 (1) of the Act of 2009 was given to the petitioner along with
the enquiry report. Hence, it is clear that the Additional Collector
was never ever appointed as an Enquiry Officer. He was simply
asked to submit a report and the same was submitted by him
after getting fact finding report from the Tehsildar and the
Commissioner of Municipal Corporation, Karauli.
14. Now the next issue which emerges for consideration is
“whether the summary report, obtained from the subordinate
Officers, amounts to a delegation of power/authority to them?”.
15. The issue involved in the present petition is no more res
integra, having already been thoroughly examined by the same
Co-ordinate Bench in the case of Narendra Kumar Khodaniya
(supra), who decided the matter of Manzoor Ali (supra) and it has
been held in paras 21 to 31, which read as under:-
“21. The case of Manzoor Ali (supra), was a case of
sub-section (3) of section 39 of the Act of 2009 and
the inquiry in question in clear terms was mentioned
as ‘preliminary inquiry’ and it was not the stand of the
State Government that another inquiry as
contemplated under section 39(1) of the Act of 2009(Downloaded on 23/07/2025 at 07:50:59 PM)
(17 of 25) [CW-11862/2024]will be undertaken, as is the position in the instant
case.
22. True it is, that similar argument was advanced by
the learned Additional Advocate General in the case of
Manzoor Ali (supra) that it is only a fact finding inquiry,
as has been advanced in the present case, but contra-
distinguished from the Manzoor Ali’s case, in the
present case on 05.09.2024, the State Government
has issued a notice under section 39 (1) of the Act of
2009. Moreso, not only the subject even the substance
of the notice makes it clear that the statutory inquiry
has commenced from 05.09.2024.
23. A careful reading of the judgment in the case of
Manzoor Ali shows that a notice dated 08.12.2021 was
under challenge therein, which was issued under
section 39(3) of the Act of 2009 and the said notice
was issued by the Director asking the petitioner as to
why judicial inquiry be not conducted against him and
prior to seeking such explanation he had directed the
District Collector to conduct inquiry, who in turn had
sent it to the Commissioner, Municipal Corporation who
in turn appointed one Deputy Commissioner to be an
inquiry officer and straightway on the basis of report
sent by said Deputy Commissioner, the Director in that
case had asked as to why case be not referred to
judicial inquiry. As against this, in the instant case the
Director has issued notice dated 05.09.2024 for the
first time, eliciting petitioner’s response during holding
an inquiry- it is a notice under section 39(1) of the Act
of 2009, during the process of inquiry.
24. According to this Court, in the present day
scenario, when a host of complaints are being filed
against elected representatives, State cannot be
expected to straightaway launch an inquiry under
section 39(1) of the Act of 2009 and engage its
officers for conducting the inquiry without first
ascertaining the facts. In order to avert unnecessary
exercise and to ward off frivolous complaints, if the
State Government has got done a fact finding exercise
through the respondent No.3-Deputy Director, it
cannot be said that the same is void or without
authority of law.
25. As such exercise is for ascertainment of facts, this
Court does not find any infirmity, if the respondent
No.3-Deputy Director constituted a committee and(Downloaded on 23/07/2025 at 07:50:59 PM)
(18 of 25) [CW-11862/2024]assigned or delegated the task of looking into the
allegations levelled in the complaint.
26. Most important aspect of the matter is, that the
respondent No.3 was not undertaking any statutory
inquiry as contemplated under sub-section (1) of
section 39 of the Act of 2009, and the communication
dated 08.02.2024 was meant to assimilate facts.
27. The principle ‘delegatus not potest delegare’
cannot be applied to administrative actions or
ministerial acts. This principle applies to statutory
judicial and quasi-judicial functions. If the statute
confers a power or delegates upon an authority a duty
to perform certain act, such authority cannot ask
someone else or delegate such power to another
person, is the underlying principle. In absence of the
inquiry being a statutory inquiry under sub-section (1)
of section 39 of the Act of 2009, the fact that the job
of inquiry has further been delegated and that the
report of such delegatee has been sent by respondent
No.3-Deputy Director by communication dated
28.08.2024, and acted upon, the process cannot be
held to be vitiated.
28. This Court is of the considered view that practical
necessity or exigency of the administration requires
that the decision making authority who has been
conferred with statutory power, be able to ascertain
the foundational facts first, before initiating the actual
proceedings or inquiry. Such exercise would as a
matter of fact, avoid unnecessary harassment to none
other than the elected representatives. Delegation to
some extent becomes inevitable and an administrative
necessity.
29. There is yet another aspect of the matter – by way
of the communication dated 08.02.2024, the
respondent No.2 (the Assistant Director) had asked
the respondent No.3 (the Deputy Director), who is
higher in the official hierarchy, hence, it cannot be said
that the respondent No.2 had delegated his power to
respondent No.3.
30. In the facts of the case in hands it cannot be said
that there is an abdication of power by the State
Government, when the inquiry has been initiated by
the notice dated 05.09.2024, issued by the Director-
cum-Joint Secretary of the Government.
31. As a consequence of the foregoing discussion, the
present writ petition is dismissed.”
(Downloaded on 23/07/2025 at 07:50:59 PM)
(19 of 25) [CW-11862/2024]
The Co-ordinate Bench of this Court has held that the
principle of delegatus non protest delegare is not applicable in to
administrative action or ministerial act. Rather, the principle
applies to statutory judicial and quasi judicial function. In absence
of any enquiry under Section 39 (1) of the Act of 2009, the
summary report obtained from the subordinate authorities cannot
be held to be invalid and the entire process cannot be held to be
vitiated on that ground.
16. This Court finds that even the maxim sublato fundamento
cadit opus is not applicable in the facts and circumstances of the
present case. As this Court finds no illegality in the order/report
dated 05.06.2024 submitted by the Additional Collector to the
Director, DLB, the subsequent actions taken against the petitioner
viz., holding of judicial enquiry against her and placing her under
suspension, stand on firm legal footing. The foundation of the
proceedings initiated against the petitioner is legally valid and
does not suffer from any legal infirmity. Therefore, this Court finds
no error or arbitrariness on the part of the respondents in
initiating the impugned actions against the petitioner. In the
considered opinion of this Court, the Additional Collector was not
appointed as the ‘enquiry officer’ for the purpose of conducting
enquiry against the petitioner. He was simply asked to collect ‘the
fact finding report’, which he did by obtaining the same from his
subordinate Officers and after receipt of the aforesaid fact finding
report, order/report dated 05.06.2024 was prepared and sent by
him to the Government for further examination of the matter
through audit, detailed inquiry, etc. Based on the order/report
dated 05.06.2024, the impugned order was passed, initiating a
(Downloaded on 23/07/2025 at 07:50:59 PM)
(20 of 25) [CW-11862/2024]
judicial enquiry against the petitioner after placing her under
suspension.
17. This Court now proceeds to deal with the next set of
arguments advanced by counsel for the petitioner that severe and
disproportionate action has been taken against the petitioner for
the allegation of issuing pattas in contravention of the Rules.
Counsel submits that the patta in question was counter signed by
the petitioner as well as by the Commissioner, Municipal Council,
Karauli, yet no action has been taken against the latter.
18. By advancing the above arguments, the petitioner is claiming
“negative parity”. If any wrongdoing has been committed by a
person or more i.e. the petitioner and the Commissioner, Municipal
Council, Karauli while issuing pattas illegally, by misusing their
power and postion, the petitioner cannot be allowed to claim
immunity on the ground that no action has been taken against the
Commissioner, Municipal Council, Karauli, who was also a counter
signatory of the pattas. This Court finds no substances in the
argument of the petitioner that the respondents have followed the
practice of pick and choose while taking action against the
petitioner alone. Such argument of the petitioner is legally not
sustainable. If the pattas have been issued illegally, while giving
benefits to the petitioner and the same have been counter-signed
by the Commissioner, Municipal Council, Karauli, stern legal action
must be taken against him as well strictly in accordance with law,
after affording him a fair opportunity of hearing, complying the
principles of natural justice. This Court hopes and trusts that the
respondents will take appropriate legal measures/action against
the said Commissioner, Municipal Council, Karauli, if his
(Downloaded on 23/07/2025 at 07:50:59 PM)
(21 of 25) [CW-11862/2024]
involvement in the issuance of illegal pattas is prima facie
established.
19. It is well settled proposition of law that no negative equality
can be claimed as a matter of right under Article 14 of the
Constitution of India, as has been held by the Hon’ble Apex Court
in the case of R. Muthukumar & Ors v. The Chairman And
Managing Director TANGEDCO & Ors 2022 SCC Online SC
151 in para 24, which reads as under :-
“28.A principle, axiomatic in this country’s
constitutional lore is that there is no negative equality.
In other words, if there has been a benefit or
advantage conferred on one or a set of people, without
legal basis or justification, that benefit cannot multiply,
or be relied upon as a principle of parity or equality.”
20. In Basawaraj and Anr. v. Special Land Acquisition
Officer (2013) 14 SCC 81, the Hon’ble Apex Court has held in
para 8 as under :-
“8. It is a settled legal proposition that Article 14 of the
Constitution is not meant to perpetuate illegality or
fraud, even by extending the wrong decisions made in
other cases. The said provision does not envisage
negative equality but has only a positive aspect. Thus,
if some other similarly situated persons have been
granted some relief/benefit inadvertently or by
mistake, such an order does not confer any legal right
on others to get the same relief as well. If a wrong is
committed in an earlier case, it cannot be perpetuated.”
21. Similarly, in the case of The State of Odisha v. Anup
Kumar Senapati 2019 SCC Online SC 1207, it has been held
by the Hon’ble Apex Court that :
“If an illegality and irregularity has been committed in
favour of an individual or a group of individuals or a
wrong order has been passed by a judicial forum,
others cannot invoke the jurisdiction of the higher or
superior court for repeating or multiplying the same
irregularity or illegality or for passing a similarly wrong(Downloaded on 23/07/2025 at 07:50:59 PM)
(22 of 25) [CW-11862/2024]order. A wrong order/decision in favour of any
particular party does not entitle any other party to
claim benefits on the basis of the wrong decision.”
22. Meaning thereby, Article 14 of the Constitution of India is not
meant to perpetuate any illegality even by extending the wrong
decisions made in other cases. If any wrong is committed by the
authorities, then in similar matter it cannot be allowed to be
perpetuated. Equality cannot be claimed in illegality and,
therefore, cannot be enforced by a citizen or Court in a negative
manner. This Court trusts and believes that appropriate action
would be taken by the respondents against all the erring Officers
who are involved in the incident of issuing illegal pattas in
contravention of the Rules.
23. The judgment relied upon by the petitioner in the case of
Satish Kumar Duhariya (Supra) is distinguishable and not
applicable in the facts and circumstances of the present case
because in that case the suspension orders were passed against
the Sarpanch and the Government Officers and an enquiry was
initiated against them and subsequently while the enquiry was
pending against them all, their suspension orders were revoked.
However, in the instant case, neither any suspension order has
been passed against the Commissioner, Municipality Council,
Karauli nor has any enquiry been initiated against him. If he has
committed a wrongdoing while issuing pattas illegally in violation
of the Rules, it is expected that the respondents shall taking
appropriate action against him as well. Nonetheless, that certainly
cannot be a ground to quash the orders, placing the petitioner
under suspension and holding judicial enquiry against her.
(Downloaded on 23/07/2025 at 07:50:59 PM)
(23 of 25) [CW-11862/2024]
24. It is a settled principle of law that this Court cannot interfere
with the suspension orders lightly since suspension is only a
deprivation of one’s status and that too temporarily, it does not
amount to penalty and it is normally ordered when the allegations
of misconduct and/or corruption are under scrutiny. Power of this
Court in such like matters should be used sparingly and that too
with utmost care and caution. No exceptional case has been made
out by the petitioner for interfering in her suspension order.
25. In the case of Durga Ram Mali Vs. State of Rajasthan
and Ors. reported in (2011) 4 RLW 3552, it has been held by
this Court that issue of suspension is not to be gone into by the
Court and the same should be left to the objective satisfaction of
the Government. It has been held as under:-
“I am of the opinion that when the matter of
suspension is left to the objective satisfaction of the
Government, the normal rule is that it is not
unnecessarily justiciable before the High Court and the
Court cannot look into the question as to whether the
materials are adequate or inadequate from its point of
view nor the Court should substitute its own
satisfaction for that of the authority.”
26. In the case of Tararam Mali Vs. State of Rajasthan and
Ors., [S.B. Civil Writ Petition No. 11814/2019, decided on
30.09.2019], it has been held by the Co-ordinate Bench of this
Court at Principal Seat at Jodhpur in para 51 as under:-
“The charges levelled against the petitioner and the
material available, show that a judicial inquiry in the
matter is imperative. In case the petitioner continues to
hold the office, not only the inquiry officer would be
under a moral pressure, the petitioner himself will be in
a position to influence the witnesses and may try to
withheld, if not temper the record.”
27. The facts, which have come on record, reveal that serious
charge of issuing pattas illegally against the Rules, for her own
(Downloaded on 23/07/2025 at 07:50:59 PM)
(24 of 25) [CW-11862/2024]
benefits, have been levelled against the petitioner, who is a public
representative and was holding the highest and esteemed post of
Chairman, Municipal Council, Karauli. The State, finding her above
conduct as disgraceful, issued charge-sheet to her levelling several
charges and placed her under suspension and initiated a judicial
enquiry against her. Hence, in the light of these circumstances,
this Court comes to the conclusion that the decision of the State
does call for any interference by this Court.
28. The judgments relied upon by counsel for the petitioner are
not applicable under the facts and circumstances of this case.
Conclusion and Directions:-
29. In view of the aforesaid and upon an overall appraisal of the
facts and the material on record, this Court does not find it to be a
fit case to interfere with the State’s decision to place the petitioner
under suspension.
30. In the light of the discussions made hereinabove, this Court
finds no merit and substance in these writ petitions and the same
are liable to be and are hereby rejected.
31. Stay application and all pending application(s), if any, also
stand dismissed.
32. The respondents are expected to complete the enquiry
proceedings against the petitioner expeditiously, as early as
possible, not beyond the period of three months from the date of
receipt of certified copy of this order, as the petitioner, being an
elected public representative, is under suspension and she cannot
be allowed to remain under suspension for an indefinite period.
33. Before parting with this order, it is made clear that the
respondents/authorities shall conclude the enquiry on its merits,
(Downloaded on 23/07/2025 at 07:50:59 PM)
(25 of 25) [CW-11862/2024]
after affording due opportunity of hearing to the petitioner and
without being influenced by any of the observations made herein
by this Court.
34. Let a copy of this order be sent to the respondent Nos. 1 and
2 for necessary compliance of the order/direction issued in para
18 and 23 of this order.
(ANOOP KUMAR DHAND),J
Ashu/161-163
(Downloaded on 23/07/2025 at 07:50:59 PM)
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