JUDGMENT Satish Chandra, J. -The Municipal Board of Amroha was constituted at the general elections held in 1964. The total strength of the Board was 24-28 members and a President. Vishwa Mitter and Mohammad Ali, petitioners, were elected members. Their election was set aside by the Election Tribunal. On 10-7-1967 a bye-election was held. The two petitioners were reelected as members on 11-7-1967. On 17-7-1967 the Sub-Divisional Magistrate addressed a letter to the Executive Officer of the Municipal Board requiring him to call a meeting of the Board at 4 p.m. on July 21, 1967 for the purpose of administering oath to the newly elected members. The Board met on 21-7-1967 on which date the petitioners were administered the oath of office. The President of the Board and 18 other members attended this meeting. On 5th August, 1967 the Executive Officer issued an agenda for a meeting of the Board to be held on 8th August, 1967. At Serial No. 7 of the agenda the election for the office of Senior and Junior Vice-Presidents was mentioned. There were in all 17 items on the agenda. At the meeting held on 8th August, 1967, Mohammad Yasin, the President of the Board, was in the chair. At the commencement of the meeting 12 members of the Board presented an application to the President stating that the two petitioners, Vishwa Mutter and Mohammad Ali, have not taken the oath according to law. Till they do so, they should not be permitted to participate in the meeting. The President agreed and ruled that the petitioners be not permitted to participate in the meetings of the Board till they have taken the oath according to law. The two petitioners were hence excluded from the deliberations of the meeting. When the matter of the election of Senior and Junior Vice-President was taken up the name of Vishwa Mitter, the first petitioner, was proposed and seconded. According to the recorded minutes, the objection to the proposal of Sri Vishwa Mitter's name was upheld by 13 votes and the proposal was rejected. The only other proposal was of Sri Jagmohan Saran. His proposal was, curiously enough, put to vote. He received 13 votes whereas nine votes were recorded against his proposal. He was declared to have been elected by a majority. For the office of Junior Vice-President Sri Mahfooz Ahmad was the only candidate in the field. The only other proposal was of Sri Jagmohan Saran. His proposal was, curiously enough, put to vote. He received 13 votes whereas nine votes were recorded against his proposal. He was declared to have been elected by a majority. For the office of Junior Vice-President Sri Mahfooz Ahmad was the only candidate in the field. He was consequently declared elected. The meeting continued and considered the other matters on the agenda in the absence of the two petitioners. The petitioners challenge the validity of their exclusion from the meeting and all the proceedings, specially the election to the office of the Senior and junior Vice-President. For the petitioners Sri S.N. Kacker, urged that the petitioners having been duly elected and having made and subscribed the oath in the requisite manner. they were entitled to function as the members of the Board and participate in the meeting. The first petitioner was entitled to be a candidate for the post of Senior Vice-President. His exclusion from the meeting and the rejection of his nomination, the post of Senior Vice-President was without the authority of law and void. In the alternative, learned counsel submitted that even if the oath made by him is held to be invalid, he was nonetheless entitled to participate in the first three meetings of the board held after his election in view of sub-sec. (2) of Section 43-D of the Municipalities Act. Sri S.C. Khare, appearing for the Board, on the other hand, urged that the meeting, at which the petitioners were administered the oath, was illegally convened and the proceedings thereof were invalid, Under the provisions, no Member of the Board was entitled to take his seat before he had made and subscribed the oath. The primary question is whether the proceedings of the meeting held on 21st July, 1967 were valid and whether the petitioners could function as members of the Board and participate in the meeting held on 8-8-1967. The question turns upon the interpretation of Section 43-D of the U.P. Municipalities Act. This provision runs as under: "(a) The President and every member of a board shall, before taking his seat, make and subscribe at a meeting of the board an oath or affirmation of his allegiance to the constitution in the following form "1. The question turns upon the interpretation of Section 43-D of the U.P. Municipalities Act. This provision runs as under: "(a) The President and every member of a board shall, before taking his seat, make and subscribe at a meeting of the board an oath or affirmation of his allegiance to the constitution in the following form "1. A.B., having been elected a member/President of this Board do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as bye-law established, that I will uphold the sovereignty and integrity of India, and that I will faithfully and consciously discharge the duties upon which I am about to enter". (2) The President or the member who fails to make, within three months of the date on which his term of office commences or at any one of the first three meetings of the board held after the said date, whichever is later, unless this period iF extended by the District Magistrate, the oath of affirmation laid down in and required to be taken by sub-sec. (I) shall cease to hold his office and his seat shall he deemed to have become vacant. (3) Any person required under sub-sec. (1) to make an oath or affirmation shall not take his seat at a meeting of the Board unless he has made and subscribed an oath or affirmation as laid down under sub-sec. (1) . (4) As soon as may be after the constitution of the Board, the District Magistrate shall convene a meeting of the Board for the administration of oath or affirmation under this section in the manner prescribed and such meeting shall be presided over by the District. Magistrate or in his absence, 3 Deputy Collector nominated by him in this behalf. (5) The Executive Officer shall, as soon as may be, report to the District Magistrate the name of the President or member, if any, who ceases to hold his office under sub-sec. (2) . Under Section 10-A of the Act, the term of every municipal board is five years, under sub-sec. (2) the term of the board begins from the date of the notification issued in pursuance of Section 56 that the Board has been constituted. (2) . Under Section 10-A of the Act, the term of every municipal board is five years, under sub-sec. (2) the term of the board begins from the date of the notification issued in pursuance of Section 56 that the Board has been constituted. Under Section 56, every election and nomination of a member or President of a Board, the due constitution of the Board, and every vacancy in the office of member or President is to be notified in the official gazette. The concept of the constitution of the Board is something distinct from the election of an individual member or of the President. The notification of the constitution of the Board marks the commencement of the term of the Board. The constitution hence takes place once after the General Elections. If a vacancy occurs for the membership of the Board, the constitution of the Board is not put in jeopardy. The election of a member at a bye-election hence will not affect the constitution of the Board. Sub-Sec. (4) of Section 43-D provides for the manner and procedure for the administration of oath in one situation alone, namely, after the constitution of the Board, an event which happens only once after the general elections for the municipal board. Under sub-sec. (1) the President and every member of the Board has to make the oath before taking his seat. When the President as well as other members of the Board are actually elected, a special provision has been made in sub-sec. (4) for administering oath to all of them. Sub-sec. (4) is applicable only at the time of the constitution of the Board after General Elections. It does not apply to the election of a member at a bye-election. The District Magistrate and the Sub-Divisional Magistrate were in error in thinking that sub-sec. (4) will apply to the petitioners. Sub-sec. (4) requires the administration of oath in the manner prescribed. The State Government has by notification No. 8872.F (iv) /XI-A869-64, dated December 11, 1964 framed rules therefor. It was, for the respondents, urged that rule (5) will be applicable to the instant case. This rule says: "The oath or affirmation to a President or member who fails or is otherwise unable to attend the meeting convened by the District Magistrate under sub-sec. (4) of Section 43-D shall, subject to the provisions of sub-sec. It was, for the respondents, urged that rule (5) will be applicable to the instant case. This rule says: "The oath or affirmation to a President or member who fails or is otherwise unable to attend the meeting convened by the District Magistrate under sub-sec. (4) of Section 43-D shall, subject to the provisions of sub-sec. (2) of said section, be administered at a subsequent meeting of the Board by the person presiding at such meeting". The latter part of this rule come into play only when a member fails or is otherwise unable to attend the meeting convened under sub-sec. (4), that is to say the meeting convened after the General Elections and after the constitution of the Board. Sub-sec. (4) does not provide for administration of oath to a member elected at a bye-election. Rule 5 hence will not also apply to such a case. In my opinion, the second part of this rule cannot be read in isolation. It is intimately connected with the first part. The position therefore, is that though under sub-sec. (1) every member has to make and subscribe the oath at a meeting of the Board, but no specific procedure for holding the meeting or for the administration of oath has been prescribed in the case of a bye-election held subsequent to the due constitution of the Board. The only requirement in view of sub-sec. (1) is that a newly elected member shall make and subscribe the oath in the given form at a meeting of the Board. The meeting held on 21-7-1967 was a meeting of the Board. At that meeting the petitioners did make and subscribe the oath in the proper form. For the respondents it was urged that the meeting held on 21-7-1967 was an invalid meeting, because it was not convened according to the provisions and further because the Sub-Divisional Magistrate without the authority of law presided at that meeting. In my opinion, the meeting was duly convened. The letter of the Sub-Divisional Magistrate asking that a meeting he convened for 21st July, 1967 was received by the Executive Officer on 17th July, 1967. The next day he placed the letter before the President of the Board along with a draft agenda. The President did not raise any objection and signed below the report of the Executive Officer. The letter of the Sub-Divisional Magistrate asking that a meeting he convened for 21st July, 1967 was received by the Executive Officer on 17th July, 1967. The next day he placed the letter before the President of the Board along with a draft agenda. The President did not raise any objection and signed below the report of the Executive Officer. Thereafter the requisite notices and the agenda for the meeting were issued. It was said that under Section 51 of the Municipalities Act only the President could convene a meeting of the Board. The Sub-Divisional Magistrate had no jurisdiction to do so. Here the Sub-Divisional Magistrate. no doubt, took the initiative and set the ball rolling, but the Executive Officer did not act directly on that letter. He placed the papers for orders before the President. The President approved the draft agenda and signed the report. This order of the President amounted to the exercise of the duty which Section 51 of the Act vests in the President to convene the meetings of the Board. The meeting was not. in my opinion, convened contrary to the provisions. The other aspect urged by the learned counsel was that the Sub-Divisional Magistrate had no jurisdiction to preside at the meetings. Under Section 51, it was the duty of the President to preside. The President was present in the meeting. He could easily have performed his duty. Neither the President nor any one of the eighteen members present raised any objection to the Sub-Divisional Officer occupying the chair. At that meeting the petitioners made and subscribed the oath as required by sub-sec. (1) of Section 43-D. Sub-sec. (4) of Section 43-D requires administration of oath to members. On the contrary, sub-sec. (1) only requires the member to make and subscribe the oath at a meeting of the Board. The petitioners did make and subscribe the oath. They did so at a meeting of the Board. The fact that an stranger occupied the chair will not change the character of the meeting. It nonetheless - remained and was a meeting of the Board. The petitioners did make and subscribe the oath. They did so at a meeting of the Board. The fact that an stranger occupied the chair will not change the character of the meeting. It nonetheless - remained and was a meeting of the Board. The petitioners' making and subscribing the oath was, in my opinion, not vitiated merely because of the presence of the Sub-Divisional Magistrate in the chair, especially when the President and a majority of the members were present and by their conduct assented to the manner and procedure of making and subscribing the oath. After making and subscribing the oath, the petitioners, in the eye of law, took their seats. The action of the President in accepting the representation of some members and holding that the petitioners did not snake and subscribe the oath according to law and hence were not entitled to function as members was clearly illegal. The petitioners were entitled to participate in that meeting as also to contest the election for the post of Senior Vice-President. The next submission of Mr. Kacker was that sub-sec. (2) of Section 43-D entitles a member to function for three months or at any one of first three meetings of the Board held after the date on which his term of office commences. Even if the meeting held on 21-7-1967 is held to b2 illegal, the meeting held on 8-8-1967 was within three months of the petitioners' election on 11th July, 1967. He has relied upon a Division Bench of this Court in Mohd. Rascal v. Mata Din Singhania, 1966 ALJ 925. In this case it was held that sub-sec. (3) of Section 43-D was only a proviso to sub-sec. (2). This authority does lend support to the submission of the learned counsel. Shri Khare submitted that the bench in that case was only concerned with finding out the actual date of assumption of office by a President in order to determine the commencement of his term, within meaning of Section 87-A (14) of the Act. He also pointed out that one of the learned Judges?re served his opinion on the views expressed as to the interpretation of Section 43-D by the other learned Judge. It is not necessary to deal with the rival contentions as to the value of this authority in detail because the petition is liable to succeed on the first question. Mr. He also pointed out that one of the learned Judges?re served his opinion on the views expressed as to the interpretation of Section 43-D by the other learned Judge. It is not necessary to deal with the rival contentions as to the value of this authority in detail because the petition is liable to succeed on the first question. Mr. Khare then urged that the minutes show that 13 votes were cast for Jagmohan Saran, the other candidate for the office of the Senior Vice-President. Thirteen votes constituted a clear majority in the Board. if the petitioner had been a contesting candidate, the result would not have been materially affected. The election of Sri jagmohan Saran should not be set aside the mere technicality that the petitioner was not permitted to be a candidate. Reliance has been placed upon Halsbury's Laws of England, Third Edition, Vol. 11, paragraph 261, at page 148 where it has been ruled that a court can in its discretion refuse an information in the nature of quo warranto where there had been an irregularity in the election but without any material result. He has also invited my attention to a similar passage of Corpus Juris Secondum, Vol. 74, Article 23, page 219, where it has been stated that the fact that irregularities in an election did not affect the result will afford a good defence to a quo warranto proceedings attacking such election. The question is: can it be said that the result was not materially affected? Both these authorities do not deal with the question as to when is the result materially affected where one of the two contesting candidate is excluded from the arena by the rejection of his nomination. On this later aspect the decision of the Supreme Court in Surendra Nath Khosla v. S. Datip Singh, A.I.R. 1957 SC 242 is a direct authority. In that case the Supreme Court riled that there is a unanimity on the point that an improper rejection of a nomination paper raises a presumption that the result is materially affected. The Supreme Court observed: "Apart from the practical difficulty almost the impossibility, of demonstrating that the electors would have cast their votes in a particular way, that is to say, that a substantial number of them would have cast their votes in favour of the rejected candidate. The Supreme Court observed: "Apart from the practical difficulty almost the impossibility, of demonstrating that the electors would have cast their votes in a particular way, that is to say, that a substantial number of them would have cast their votes in favour of the rejected candidate. the fact that one of several candidates for an election had been kept out of the arena is by itself a very material consideration. Cases can easily be imagined where the most desirable candidate from the point of view of electors and the most formidable candidate from the point of view of the other candidates may have been wrongly kept out from seeking election. By keeping out such a desirable candidate. the officer rejecting the nomination paper may have prevented the electors from voting for the best candidate available. Where a nomination is rejected, the presumption is that the result has been mate-tally affected. The first petitioner was a formidable candidate. Even in his absence and without being a candidate, nine members did not vote for Jagmohan Saran. if the petitioners had been permitted to vote, the tally may have gone to eleven. The contest was obviously a close one. There is no allegation that from the point of view of the electors the petitioner was not a more desirable candidate in comparison with Jagmohan Saran. Merely because 12 members raised an objection to the participation of the petitioners in the meeting on the technical ground, that they had not taken oath validly, does not conclusively establish that all these twelve members or any of them would not have voted for the first petitioner in case he was also a candidate. The petitioners have alleged that the President had along with some members formed a clique with a view to exclude the petitioners from participating in that meeting. That charge has been vehemently denied by Jagmohan Saran in his counter-affidavit as also in the counter-affidavit filed under the authority of the President. It has been stated that the objection of the members against the petitioners was die-cussed at the meeting and after deliberation the President gave his ruling. He also indicated that the petitioners may take oath of office in that meeting itself and then participate in that meeting. It has been stated that the objection of the members against the petitioners was die-cussed at the meeting and after deliberation the President gave his ruling. He also indicated that the petitioners may take oath of office in that meeting itself and then participate in that meeting. The truthfulness of this allegation has been denied by the petitioners, but it is apparent that the case of the respondents is that there was no well formed solid block of thirteen members dead set against the first petitioner, and for Jagmohan Saran. That being their own case, they cannot be heard to urge that even if the first petitioner had been a contesting candidate and present at the meeting, he would have lost because 13 rotes would have in any case been cast. against him. It is not possible to predict what the situation and the outcome would have been if the petitioners had been permitted to participate. The respondents have, in my opinion, not been able to lodge the presumption that the result may have been materially affected. Under the circumstances. The relief against the election of Jagmohan Saran cannot refused. The other Proceeding of the meeting did not necessarily become void by reason of the exclusion of the two members. it has not been established that the vote the two petitioner would have made any difference in the out come of the unanimous election of the Junior Vice-President or the other matters considered at the meeting. The petitioners are in my opinion not justified in asking that all those decisions be also set aside. In the result, the petition succeeds in part. The election of the third respondent as Senior Vice-President at the meeting held on 8.8.1967. is quashed . The respondent Board will soon held a fresh election for the post. The third respondent will not function an the Senior Vice-President of the Board by reason of his election on 8.8.1967. the petitioner will be entitled to their costs.