Jagat Narayan, J. -
(1.)THIS is a petition by one Ghasiram under Art. 226 of the Constitution against the Collector of Tonk, the State of Rajasthan and the members of the Municipal Board Toda Rai Singh in the district of Tonk who were elected at the elections held on 9. 8. 55. Fresh elections to the Municipal Board were held on 18. 7. 59 in which Ghasiram petitioner, Heeralal, Manoharlal, Chauthmal and Madanlal, who were not members of the previous Board were elected and Bajranglal, Hasankhan Nagori and Mohanlal Bakliwal were re-elected. On the orders of this Court Heeralal, Manoharlal. Chauthmal and Madanlal were also joined as respondents.
(2.)THE petition was initially not contested either by the Collector and the State of Rajasthan or by the members of the previous Board. But by order dated 23. 2. 60 this Court directed the Assistant Government Advocate to put in his appearance on behalf of the State. A reply was thereafter filed on behalf of the Collector and the State of Rajasthan contesting the petition.
The facts which are not disputed are these. The previous Board was elected in August, 1955 and held its meeting on 25-11 55. The normal term of this Board expired on 25. 11. 58 but it continued to function beyond the expiry of this term. Its term was extended upto 31. 3. 59 by means of a notification dated 29. 1. 59. This extended term also expired but the Board continued to function. Fresh general elections took place on 18. 7. 59 and the result was declared on 20. 7. 59. Only three out of the 8 elected members of the previous Board were re-elected and 5 new members were elected including Ghasi Ram petitioner. Oath was however not administered to them inspite of the fact that the newly elected members approached the Collector several times requesting him to nominate an officer for the purpose. When they found that the Collector was not willing to get oath administered to them they approached the officers at the headquarters of the Government. The members of the old Board continued to function in the meantime without there being any order extending their term beyond 31. 3. 59.
On 14. 9. 59 a notification was issued in a Gazette Extra-ordinary converting the Toda Rai Singh Municipality into a Panchayat in exercise of the powers conferred under sub-sec. (2) of sec. 3 of the Rajasthan Panchayat Act as amended by sec. 4 of the Rajasthan Panchayat Samitis and Zila Parishads Act read with clause 3 (l) (b) of the Rajasthan Panchayat Samitis and Zila Parishads (Adaptations and Temporary Provisions) Order 1959.
Under notification published in the Gazette dated 24th September, 1959 the term of the members of the existing Municipal Board Toda Raisingh which had expired on 31. 3. 59 was extended upto 15. 9. 59 in exercise of the powers conferred under sec. 2 of the Rajasthan Town Municipal Boards (Extension of Terms) Act 1952.
The present writ petition was filed on 7-10 59 praying that the members of the old Board may be restrained from functioning and that the Collector may be directed to give oath to the newly elected members so that they may be able to function.
After the above petition had been filed the Joint Development Commissioner, Jaipur wrote a letter to the Collector Tonk on 12. 11. 59 directing him to fix a date for the election of the Up-Sarpanch by the newly elected members and to appoint a Returning Officer for holding the election of a Sarpanch. The Collector had earlier addressed a letter to the Secretary Local-Self Government Department seeking some clarification. As in the meantime the Panchayats were transferred from the Local Self Government Department to the Development Department this letter was sent for disposal to the Joint Deve-lopment Department who wrote to the Collector on 12. 1. 60 asking him to have the result of the new election published and to arrange for the administration of oath to the newly elected members by the Returning Officer. He directed specifically that the newly elected members should be allowed to replace the existing members.
The Collector however did not carry out the directions issued to him by the Joint Development Commissioner. When this was brought to his notice he wrote a stiff letter on 19. 2. 60 to the Collector, directing him to carry out the orders contained in letter dated 12. 11. 59.
On receipt of the above letter the Collector sent the names of newly elected members for publication in the Gazette and fixed 27. 3. 60 for the administration of oath to them and for the election of the Sarpanch and Up-Sarpanch. The S. D. O. was nominated as Returning Officer to perform these duties.
On 21. 3. 60 the Joint Development Commissioner sent a telegram to the Collector asking him to postpone the administration of oath to the new members and the election of Sarpanch and Up-Sarpanch. On the same date he sent a letter saying that the old members who were functioning on 14. 9. 59 as members of the Municipal Board would continue upto 31. 1. 61.
It is contended on behalf of the petitioner that the Government officials acted malafide in not administering oath to the newly elected members and in extending the term of the old members even after fresh elections had taken place.
It is not disputed that all the 8 elected members of the old Board belonged to the Congress Party. But in the elections held in 1959 four persons belonging to the Congress Party and 4j persons belonging to the Jan Sangh Party were elected. The allegation of the petitioner is that the Collector did not administer oath to the newly elected members under the influence of a particular highly placed individual and got the term of the Board extended even after fresh elections had taken place to keep the newly elected members who included 4 persons belonging to the Jan Sangh Party out of office. Further it was alleged that when the Joint Development Commissioner ordered the Collector to replace the old members by the newly elected ones, he too was influenced by the same person and was made to cancel his order.
These allegations were vehemently repudiated on behalf of the Collector and the State. It is however not necessary to go into them in the present writ petition as I find that the notification published in the Gazette of 24. 9. 59 purporting to extend the term of Tod a Raisingh Board is void.
(3.)THE contention on behalf of the petitioner in this respect is that the term of a Board can only be extended under the Rajasthan Municipal Boards (Extension of Terms) Act, 1952 where delay is likely to be caused in the final preparation of electoral rolls and the term of the Board expires before the elections are held. Reliance was placed on the preamble to the Act and on the observations made in Arjun Singh vs. Teek Chand (1 ). THE' preamble runs as follows - "whereas delay is likely to be caused in the final preparation of electoral rolls for the purpose of elections to the various Municipal Boards in Rajasthan constituted or deemed to be constituted under the Rajasthan Town Municipalities Act, 1951; And whereas the terms of some of such boards have already expired or are likely to expire before the electoral rolls for the purpose of elections thereto are finally prepared; And whereas in such circumstances it is expedient to provide for the extension of the terms of such Municipal Boards;" Section 2 of this Act runs: - "extension of terms of Municipal Board: - Notwithstanding anything contained in section 15 of the Rajasthan Town Municipalities Act,. 1951, or in any law repealed by Section 2 of the said Act, and notwithstanding the expiry of the term of any Municipal Board to which this Act applies, the State Government may by notification in this Act in the Rajasthan Gazette from time to time extend for the purpose of this Act the term of any such board, so as to take effect retrospectively, for such date as may be specified in the notification. "
The observations relied upon are as follows - "section 2 of this Act (No. XXV) gives power to the Government to extend the terms of the members of the Board retrospectively or prospectively from time to time for purposes of that Act. The purposes of this Act are to be found in the preamble which says that there was likely to be delay in the final preparation of electoral rolls for purposes of elections to the various Municipal Boards in Rajasthan constituted or deemed to be constituted under the Rajasthan Town Municipalities Act of 1951, and the terms of these Boards had already expired or were likely to expire before the electoral rolls were ready. Therefore power was conferred on the Government to extend the terms of the Municipal Boards retrospectively also. It is urged on behalf of the applicant that law merely contemplated extension of the terms of the members of such Boards whose terms had already expired in order to enable the Government to prepare the electoral rolls for purposes of new elections, and it did not authorise the Government to extend the terms of the members of such Municipal Boards in which the terms were not to expire for more than a year after the Act of 1952 was passed. The preamble, however, does not show that the power to extend the terms of the members retrospectively was to be exercised only in those cases where the terms had already expired when the law was passed in November, 1952. It clearly applied to other cases also where the terms were likely to expire before the electoral rolls were finally ready. We cannot, therefore, accept the contention of learned counsel for the applicant that the Government had no authority to extend the terms of the members of Municipal Boards like this Board because there was more than a year between the pissing of that Act, and the expiry of the term of this Board. The notification of the 13th of September, 1955, clearly shows that the elections for a new Board of Karanpur were on the way, and that is why the extension was made retrospectively under the 1952 Act. It has not been shown to us that the term of the Board in this case had not expired before the electoral rolls were ready. The Act of 1952 would apply to such Boards whose terms had expired before this Act was passed, or whose terms were likely to expire before the electoral rolls were finally ready. Unless, therefore, the applicant could show us that the electoral rolls were finally ready before the term of this Board expired, extension by the Government under sec. 2 would be for purposes of the Act. The applicant has not shown that the electoral rolls were ready before the term of this Board expired either in January, 1954, or in April, 1954, and in these circumstances we are of opinion that the Government had authority to extend the term retrospectively under sec. 2. " It was held in the above case that the above Act would apply to such Boards only whose terms had expired before it was passed or whose terms were likely to expire before final preparation of the electoral rolls has taken place. In the present case not only had the final preparation of the electoral rolls taken place but fresh elections were also held and the result thereof declared before it was sought to extend the term of the outgoing Board under the Act of 1952. As held in the above case this cannot be validly done.
On behalf of the Collector and the State it was argued that the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms and that sec. 2 of the above Act did not place any restriction or limitation on the exercise of the power of extension granted under it. There is however another principle of interpretation which is applicable to the present case. It is this that if very general language is used in an enactment, which it is clear must have been intended to have some limitation put upon it, the preamble may be used to indicate to what particular instances the enactment is intended to apply. The Legislature could not have intended to give unbridled power to Government to extend the term of the members of any Municipal Board at their sweet will for any length of time. From the preamble the intention of the Legislature clearly appears to have been to give power to Government to extend the term of the Board only in two cases namely, (I) where the terms of the Boards had already expired before the Act of 1952 was passed, and (2) where their terms were likely to expire before the electoral rolls were finally ready. In the enactment itself however very general language has been used. In order to interpret this enactment properly it is necessary to refer to the preamble. (Craies on Statute Law, Fifth Edition, pages 188-189 ). If effect were to be given to the general language used in the enactment without placing any restriction the result would be that it would become open to Government to hold an election but not allow the newly elected members to take charge if it did not like them for any reason and continue in office the old members, whose term has expired, by granting extensions to them. It would also become open to Government to continue in office the members of any Board they like for any length of time and not hold fresh elections after the expiry of their normal term as contemplated under the Rajasthan Town Municipalities Act 1951. That would amount to complete perversion of the democratic process.
I accordingly hold that the term of the members of the old Board could not be extended under the Act of 1952 after fresh elections had taken place. The notification No. D. 6063/f. 1 (a) (34)LGS/55 dated August 13, 1959 which was published in the Rajasthan Gazette dated September 24, 1959 is therefore void. It did not extend the term of the members of the Board who were elected in 1955 beyond 31. 3. 59. These members have no right to continue in office.
Another contention which was put forward on behalf of the Collector and the State was that the newly elected members of Toda Raisingh Board cannot be treated as Panches of Toda Raisingh Panchayat as oath had not been administered to them before 14. 9. 59 when the Municipality was converted into a Panchayat. This contention has no force. A person becomes a member of the Board as soon as he is elected. Under R. 45 oath can only be administered to a member of the Board. It is therefore not correct to say that a person does not become a member of the Board till oath is administered to him. In this connection a reference may be made to the Division Bench decision of this Court in Kanta Devi vs. State of Rajasthan (2 ). It was observed in para 7 - "thus the oath, which has to be taken under Rule 45 is merely for the purpose of taking the seat and functioning as member of the Board, But this membership as such does not depend upon his taking the oath of office. . . . . . . . . . . . . . . . . . . Therefore taking an oath under rule 45 is also not a necessary condition before a person becomes a member of the Board. " Under the provisions of the Rajasthan Panchayat Samitis and Zila Parishads Act even a superseded municipality can be converted into a Panchayat. If this is done fresh electrons will be held to the Panchayat. In a case where only members of the municipality have been elected at a fresh election, but the Chairman and Vice-Chairman have not been elected when the municipality is so converted the elected members of the Board shall become Panches who shall elect a Up-Sarpanch and the entire electorate shall elect a Sarpanch.
In view of my rinding above that the extension of the term of respondents Nos. 2 to 10 by the notification published in the Gazette dated 24. 9. 59 was not legal I hold that they ceased to be members of the Toda Raisingh Municipal Board on 31. 3. 59. They had no right to function as members of the Municipal Board after that date. Fresh elections were held in July, 1959. In this election only Bajrang Lal, Hasan Khan Nagori and Shri Mohanlal Bakliwal were elected. These three respondents, Ghasiram petitioner, Heeralal, Manoharlal, Chauthmal and Madanlal respondents were entitled to function as members of the Municipal Board Toda Raisingh after fresh elections were held. They alone are entitled to function as Panches of the Toda Raisingh Gram Panchayat. I accordingly restrain the following six respondents from acting as Sarpanch, Up-Sarpanch or Panches of the Toda Raisingh Panchayat - (1) Ram Swaroop, respondent No. 2. (2) Gopal Swaroop, respondent No. 4. (3) Mool Chand, respondent No. 5. (4) Narain Mali, respondent No. 7. (5) Bal Krishna, respondent No. 8. (6) Chhotu Regar, respondent No. 10. The Collector is directed to administer oath to the newly elected members and to hold the election of the Sarpanch and the Up-Sarpanch of the Toda Raisingh Panchayat at an early date.