Motilal Kothari v. Collector Sri Ganganagar — 1961 DIGILAW 104 (RAJ)

JAGAT NARAYAN, J.—This is a writ petition under Art. 226 of the Constitution by an elected member of the Suratgarh Municipal Board against the co-option of Smt. Kaushalya Devi and Smt. Savitri Devi respondents Nos. 4 and 5 under sec. 9 of the Rajasthan Municipalities Act 1959 (hereinafter referred to as the Act) on the ground that no date for appointment by co-option was notified by the State Government or its delegate as prescribed under sec. 23 and that the elected members did not take oath of office as prescribed under sec. 61 before proceeding to co-opt the respondents. The petition has been contested on behalf of all the respondents except Nos. 10 and 11. 2. The general election for the election of elected members of the Board was held on 27.1.61 at which the petitioner and respondents Nos. 6 to 14 were elected. The date of this election was duly notified in the Gazette under a notification under sec. 23 of the Act issued by the Collector to whom the powers of the State Government under sec. 23 have been delegated under sec. 299 of the Act. As no person belonging to the female sex was elected it became necessary to appoint two persons belonging to that sex as members by co-option under sec. 9(5) (i) of the Act. Sec. 23(1) runs as follows — "Except as provided in sec. 295 there shall be general election or appointment by co-option or nomination, as the case may be to a board before the expiry of the term or extended term, as the case may be, of the board under sec. 11 on such date or dates as the State Government may, by notification in the official Gazette, appoint in that behalf." 3. It is not disputed that the above section prescribes that the date of appointment by co-option shall be notified by the State Government or its delegate in the official Gazette. It is also not disputed that no such notification was issued in the present case. The proceedings for the co-option of two female members were held by the returning officer under the Rajasthan Municipalities (Appointment of Members/Councillors by Co-option) Order 1959 (hereinafter referred to as the Co-option Order). Clause 3 prescribes for the issuing of a notice for the meeting of co-option. It runs as follows— "Notice for meeting for co-option. The proceedings for the co-option of two female members were held by the returning officer under the Rajasthan Municipalities (Appointment of Members/Councillors by Co-option) Order 1959 (hereinafter referred to as the Co-option Order). Clause 3 prescribes for the issuing of a notice for the meeting of co-option. It runs as follows— "Notice for meeting for co-option. — (l) Soon after the election of members of a Municipal Board, Returning Officer shall convene at the office of the Municipal Board at the appointed time a meeting of members after giving them a notice in writing of not less than seven clear days for the co-option of members specified in subsec. (5) of sec. 9. (2) The notice referred to in sub-para (1) shall state— (a) The number of persons to be co-opted, namely— (i) Two persons belonging to the female sex if no such person has been returned to the Municipal Board by election; (ii) one person belonging to the female sex if only one such person has been returned to the Municipal Board by election; (b) the place and date on which and the hours between which the nomination papers shall be filed; (c) the place and date on which and the hours between which the nomination papers will be taken up for scrutiny; and (d) the place and date on which and the hours between which the votes of the members will be taken should there be a poll. (3) Such notice shall be sent by post or by such other mode as the Returning Officer may consider expedient to every member at his ordinary place of residence. (4) Such notice shall be published by affixing it on the notice board of the Municipal Board at its Office." 4. In the present case the Returning Officer fixed the time for the meeting for co-option and issued notices to the elected members who all assembled on 18.2.61 and co-opted respondents No. 4 and 5. Before polling took place the petitioner and respondents No. 10 and 11 filed an objection before the Returning Officer in which they stated that the meeting was invalid on the grounds taken in the present petition and should not be held, To objection was over-ruled and polling took place as a result of which respondents No. 4 and 5 were declared as duly co-opted. 5. 5. Taking the first ground first, the contention on behalf of the petitioner is that the notification prescribed under sec. 23 for appointment by co-option is mandatory and absence of it vitiates the co-option proceedings. Reliance is placed on the decision of this Court in Gokul Chand vs. The State of Rajasthan (S.B. Civil Writ Petition No 52/1961, decided on 10.3.61). It is argued that as many of the electors of the Municipality may be residing at different places it is only publication in the official Gazette which will convey information about the holding of the meeting for co-option to them and absence of such notification deprives such female electors of an opportunity of canvassing support for themselves for co-option and such male electors of an opportunity for canvassing support for suitable female electors amongst the elected members. My attention is also drawn to the wordings of sec. 23 to the effect that "there shall be..................appointment by co-option..................on such date.........as the State Government may, by notification in the official Gazette, appoint in that behalf" which are words of command. The contention on behalf of the contesting respondents is that the provision relating to the appointment of a date for co-option contained in sec. 23 is merely directory and not mandatory. In my opinion this contention is sound. 6. There is a material difference between proceedings for election and proceedings for co-option inasmuch as in an election every elector has a right to stand as a candidate and to vote and no personal notice is served on individual electors. In the case of co-option the right of voting is confined to the elected members on whom individual notice is served under clause 3 of the Co-option Order and the right of sponsoring names is also confined to them. Co-option is also confined to the electors of the female sex. Further whereas in the case of election there is no public notice to electors residing outside the Municipality except by publication in the official Gazette, in the case of appointment by co-option notification appointing the date of election also serves as a notice to the electors residing outside, that co-option proceedings will follow shortly after the declaration of the result of the election. The electors residing outside the Municipality are informed by the notification of the date of the election under sec. The electors residing outside the Municipality are informed by the notification of the date of the election under sec. 23 that if any of them want to canvass support either for themselves or for others amongst the elected members they should proceed to do so as soon as the election has taken place. The ground on which the notification of election under sec. 23 was held to be mandatory in Gokul Chands case is therefore not applicable to the notification regarding appointment by co-option under the same section. I accordingly hold that; the co-option proceedings were not vitiated on account of the absence of notification about co-option under sec. 23 of the Act. Another argument which was advanced on behalf of the petitioner was that only the State Government or its delegate was authorised to appoint a date for | holding co-option proceedings and the Returning Officer had no authority to appoint a date. Reliance was placed in this connection on a Division Bench decision of this Court in Vishwanath Vs. Pt. Jhamanlal(1). That case is distinguishable as only the Collector was authorised to convene the meeting for the election of the chairman in that case and he had not convened it. In the present case under clause 3 of the Co-option Order it is the Returning Officer who is authorised to convene the meeting for co-option and the proper authority convened the meeting. 7. Coming now to the second ground urged on behalf of the petitioner it is not disputed that oath was not administered to the elected members before they took part in the Cooption proceedings. It was however held by a Division Bench of this Court in Manak Chand and another Vs. the State of Rajasthan and others (1). B. Civil Writ Petition No. 276/1960) that it is not necessary that elected members should take oath of office under sec. 61 before embarking on the duty of co-option. The reasoning given in that case is as follows: — "Sec. 61(1) of the new Act provides that every member shall, before entering upon his duties as such, make and subscribe before the Collector or his nominee for the purpose, an oath or affirmation in the prescribed form. The contention on behalf of the petitioner is that co-opting member under sec. 9 is one of the duties which elected members are called upon to perform under sec. The contention on behalf of the petitioner is that co-opting member under sec. 9 is one of the duties which elected members are called upon to perform under sec. 9 of the Act. Our attention was further drawn to clause 3(iv) of the Transitory Second Order in which the act of co-option has been referred to as the performance of a duty on the part of the elected members in the following words:— "and the members elected as aforesaid shall forthwith enter upon their duties for the purpose of such co-option in accordance with order made under the Act." Sec. 9(5) of the new Act provides for the issue of an order by the Government laying down the manner of cooption. This order was published in the Gazette of October 24, 1959. It is called Rajasthan Municipalities (Appointment of Members Councillors by co-option) Order, 1959. Clause 3 of the Order provides that soon after the election of the members, the returning officer shall convene a meeting of the elected members for co-option. There is no provision in this order for the taking of oath by the elected members before proceeding to coopt other members. The oath referred to under sec. 61(1) of the new Act is to be administered by the Collector or his nominee and not by the returning officer. It appears to us that co-option of members is a step in the formation of the municipal board itself and although the elected members pet from a duty when they coopt other members under sec. 9, they do not act as a Board in doing so. In our opinion sec. 61(1) of the new Act envisages a duty performed by a member on behalf of the Board. Co-option takes place at a stage before the members begin to function as a Board." On behalf of the petitioner my attention was drawn to an earlier decision of a Division Bench of this Court in Chairman Municipal Board Shri Dungargarh Vs. the State of Rajasthan and another(2) in which the election of the Chairman of the Municipality of Dungargarh was set aside on the ground that the members had not taken oath of office before electing the Chairman. That case was decided under the Rajasthan Town Municipalities Act, 1951 and the Rules framed thereunder and is distinguishable. the State of Rajasthan and another(2) in which the election of the Chairman of the Municipality of Dungargarh was set aside on the ground that the members had not taken oath of office before electing the Chairman. That case was decided under the Rajasthan Town Municipalities Act, 1951 and the Rules framed thereunder and is distinguishable. Rule 45 of the Rajasthan Town Municipal Election Rules 1951 ran as follows:— "Every person who is elected or nominated to be a member of any Municipal Board shall before taking his seat take an oath (or affirmation) of his allegiance to the Constitution of India in the form prescribed before the District Magistrate or his nominee." 8. Rules 2 and 3 of the Rules regarding the election of the Chairman of the Town Municipal Boards framed under the Act of 1951 were in the following words:– R. 2. "When a Municipal Board has been formed after a general election, the members thereof shall elect a Chairman for the Board in the manner provided in the following rules." R. 3. "The District Magistrate shall fix a date, place and time for a special meeting of the Municipal Board for the purpose of electing a Chairman. A notice of at least 7 days for such election will be given to the members. The meeting shall be presided by the District Magistrate or his nominee but he shall have no right: of vote." 9. Under R. 3 quoted above the meeting held for the election of the Chairman was termed as a "special meeting of the Municipal Board". R. 45 of the Rajasthan Town Municipal Election R. 1951 was therefore attracted as it required that every person who is elected or nominated to be a member of the board shall before taking his seat lake an oath. A member could not therefore participate in the election of the Chairman without taking his seat at the special meeting of the Municipal Board and consequently without taking his oath as required under R. 45. The election of the Chairman only takes place when the Board is fully constituted, that is when all the members who are to be elected have been elected and all those who ate to be nominated have been nominated. Co-option proceedings on the other hand take place before the Board is fully constituted. Before such constitution there is no board and sec. Co-option proceedings on the other hand take place before the Board is fully constituted. Before such constitution there is no board and sec. 61(1) is not attracted for reasons given in Manak Chands case. I accordingly hold that the co-ption proceedings were not vitiated on account of the fact that the elected members had not taken the oath of office before they proceeded to coopt two members of the female sex. 10. For reasons given above I find that there is no force in the writ petition. It is accordingly dismissed. In the circumstances of the case, I direct that parties shall bear their own costs. 11. The interim stay order passed by this Court is vacated. Let the Collector of Sri Ganganagar, be informed about it so that proceedings for the election of the Chairman may take place.