HANDARI, J. -
(1.) THIS is a special appeal under sec. 18 of the Rajasthan High Court Ordinance against the judgment of a learned single Judge in a writ petition under Art. 226 of the Constitution filed by Lalooram who was member of the Panchayat Samiti, Bikaner for a declaration that Kumari Chandrakala had ceased to hold the office of Pradhan and member of Panchayat Samiti Bikaner as well as that of Sarpanch, Panchayat, Kalasar as she failed to take the oath prescribed under sub-sec. (1) of sec. 72 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (Act No. 37 of 1959, hereinafter called the Act) within the time prescribed in sub-sec. (2) of that section or under sec. 72-A thereof.
(2.) KUMARI Chandra Kala was elected as member of the Gram Panchayat Kalasar within the jurisdiction of Panchayat Samiti, Bikaner, and by virtue of sec. 3 of the Act she became an ex-officio member of the Panchayat Samiti, Bikaner. On 30th January, 1965, she was elected as Pradhan of that Panchayat Samiti. She took the oath contained in Ex. 1 before Shri K. R. Goyal on 30th January, 1965. She further took oaths in the forms contained in Exs. 2 and 3 on the 18th August, 1965, before Mr. K. G. Raj who is described as Collector, Bikaner, in these exhibits. The contentions of the respondent Lalooram in his writ petition were that the form of oath contained in Ex. 1 taken by the petitioner in the meeting of the Panchayat Samiti held on 30th January, 1965, was not in accordance with sub-sec. (1) of sec. 72 of the Act and that the appellant had not taken any oaths before the Collector within the time prescribed in sec. 72-A as the oaths contained in Exs. 2 and 3 were not taken before the Collector but were taken before the Assistant Collector and were therefore not precise compliance with the provisions of sec. 72-A of the Act. It was urged that all the three oaths taken by the petitioner being not in accordance with law, were not valid and the appellant ceased to be a member of the Panchayat Samiti in accordance with the provisions of sub-sec. (2) of sec. 72. It was further urged that as she ceased to be a member of the Panchayat Samiti, she ipso facto ceased to be Pradhan and she also ceased to be the Sarpanch of the Gram Panchayat Kalasar. It was, therefore, prayed that a writ in the nature of quo warranto or any other writ, direction or order may be issued against the appellant restraining her from functioning in any of these capacities, in other words, for vacating these offices forthwith.
The appellant appeared in the initial stage of the proceeding to contest the stay application filed along with the writ petition in which she stated that the oath Ex. 1 was in the prescribed form and even if there was some necessary defect, there was substantial compliance of the law. She further urged that as a matter of abundant caution, she had taken oaths contained in Exs. 2 and 3 on 18th August, 1965, within one month of the publication of the Rajasthan Panchayat Samitis and Zila Parishads ( Second Amendment ) Act, 1965. She did not put in appearance thereafter and the writ petition was heard ex parte by the learned single Judge. The learned Judge held that the appellant was elected as Pradhan in the meeting convened for that purpose on 30th January, 1965, which was presided over by Mr. K. R. Goyal, Sub Divisional Magistrate, Bikaner, and that after being elected as Pradhan, she took oath of office of the Pradhan before Mr. K. R. Goyal; but as no such oath was prescribed and she did not take oath as a member of the Panchayat Samiti, the oath taken by her on 30th January, 1965 was of no avail. He further held that the oaths taken by her on the 18th August, 1965, were taken before Mr. K. G. Raj who described himself as Collector, Bikaner, but was not the Collector and was only an Assistant Collector performing the routine duties of the Collector, and these oaths having been not taken before the Collector did not avail. Taking this view of the oaths, he allowed the writ petition and declared that Kumari Chandra Kala had ceased to be a member of the Panchayat Samiti, Bikaner, and had also ceased to be a Pradhan of that Panchayat Samiti. He also declared that she ceased to be the Sarpanch of the Panchayat Kalasar in view of the proviso (d) to Section 8 (1) of the Act.
In this appeal, learned counsel for the appellant has challenged the correctness of the view taken by the learned Judge on all the points. He has further argued that under the provisions of the Act, no oath is prescribed to be taken by a Pradhan and the appellant could not be debarred from holding the office of a Pradhan even if she had not taken any oath as member of the Panchayat Samiti. Learned counsel for Laloo Ram respondent has supported the judgment of the learned single Judge. . He has also argued that by virtue of sec. 12 (l) (a), the Pradhan became an additional member of a Panchayat Samiti and as sub-sec. (1) of sec. 72 required that every member of a Panchayat Samiti should take an oath before taking his seat, the appellant could not take her seat in the Panchayat Samiti and could not, therefore, act as Pradhan as well.
We first focus our attention to the question whether a Pradhan elected in accordance with the provisions of sec. 12 of the Act must take oath in order to retain his office as Pradhan. It has to be conceded that no oath has been prescribed under the Act for a Pradhan as such. Before the amendment of sec. 12 by the Panchayat Laws Amendment Act, 1964 (hereinafter called the Act of 1964), the Pradhan used to be elected from amongst the members of the Panchayat Samiti by the members of the Panchayat Samiti. The position changed with the amendment of sec. 12 by the Act of 1964. A person who is a voter of any Panchayat or a member of any Gram Sabha established under sec. 8 of the Rajasthan Gramdan Act, 1960, who is a resident of the block and who is able to read and write Hindi, could stand as candidate for election as Pradhan provided that he was not a member of the State Legislature or of Parliament. A Pradhan was to be elected by (i) the members of the Panchayat Samiti (ii) all members of the Panchayats in the block and (iii) Presidents of all the Gram Sabhas in the block. Thus the effect of this provision was that even a person who was not already a member of the Panchayat Samiti could become a Pradhan.
At this stage it would be proper to refer to the provisions of sec. 72 of the Act - "72. Oath of allegiance to be taken by the members - Every member of a Panchayat Samiti and a Zila Parishad shall, before taking his seat, make at a meeting of the Panchayat Samiti or the Zila Parishad, an oath or affirmation of his allegiance to the Constitution of India in the following form, namely - "i. . . . . . . . . . . . . . . . . . having become a member of the Panchayat Samiti/zila Parishad. . . . . . . . . . . . . . . . . . swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter. " (2) Any member who fails to make within three months of the date on which his term of office commences or at one of the first three meetings held after the said date, whichever is later, the oath or affirmation laid down in sub-sec. (1) shall cease to hold his office and his seat shall be deemed to have become vacant. (3) No member shall take his seat at a meeting of the Panchayat Samiti of the Zila Parishad or do any act as such member unless he has made the oath or affirmation as laid down in this section. (4) The oath or affirmation referred to in sub-sec. (1) shall be taken at the meetings referred to in secs. 11 and 12 or in secs. 44 and 45, before the officer presiding thereat and if any member does not so take the oath or affirmation he may do so subsequently within the time specified in sub-sec. (2) - (a) before the Pradhan if he is a member of the Panchayat Samiti, and (b) before the Pramukh if he is a member of the Zila Parishad. Provided that if it is made to appear to the State Government that the Pradhan or the Pramukh as the case may be, does not administer the oath or affirmation to any member as provided in this sub-section the State Government may direct that such member shall take the oath or affirmation before the Collector. (5) Nothing contained in this section shall require an ex-officio member specified in sec. 8, sub-sec. (1), clauses (if, (iii) and sec. 42, sub-sec. (3), clauses (ii), (iii), (iv) and (iv-a) to make and subscribe oath or affirmation laid down in sub-sec. (1 ). "
Sub-sec. ; (5) was added to sec. 72 by the Rajasthan Panchayat Laws Amendment Act, 1966.
Sub-sec. (1) of S. 72 makes it obligatory for every member of a Panchayat Samiti before taking his seat to make at a meeting of the Panchayat Samiti an oath or affirmation of his allegiance to the Constitution in the form given in that subsection. Sub-sec. (2) prescribes the time within which a member to make an oath and also prescribes the penalty for failing to make an oath. Sub-sec. (3) prohibits a member of the Panchayat Samiti to take his seat at a meeting of the Panchayat Samiti or to do any act as such member unless he has made the oath. Sub-sec. (4) provides the names of the officer or person before whom the oath is to be taken. Sub-sec. (5) exempts certain members of the Panchayat Samiti from taking oath. There is no provision in sec. 72 prescribing that a Pradhan after his election should take an oath nor is there any form prescribed for taking oath by the Pradhan. Before the amending Act of 1964, a Pradhan being already a member of a Panchayat Samiti must have taken oath as member thereof and he was not required to take any fresh oath in his capacity of Pradhan. The reason may be that he was only an elected main executive head of the Panchayat Samiti and it was not considered necessary that he should take any fresh oath on his election as Pradhan. In many local laws, it is not considered necessary that a Chairman or a President of a local body should take fresh oath on his election as Chairman or President. The same appears to be the position under the Act with respect to a Pradhan who was a sort of a Chairman or President of the Panchayat Samiti and was elected from amongst the members of the Panchayat Samiti before the coming into force of the amending Act. The position, however, changed with the amendment in sec. 12, and a person who was not already a member of the Panchayat Samiti could be elected as Pradhan of the Panchayat Samiti. The law-framers, however, failed to make a provision for a Pradhan to take an oath.
In the instant case, however, an oath as Pradhan was taken by the appellant before Mr. K. R. Goyal, City Magistrate, Bikaner. In the writ petition, it is stated that this oath was taken at a meeting of the Panchayat Samiti held on 30th January, 1965, under sec. 12 of the Act. This statement appears to be incorrect as sec. 12 of the Act does not prescribe for holding of a meeting for the election of a Pradhan after the amendment of sec. 12 by the amending Act. An oath was made by the appellant before Mr. K. R. Goyal on 30th January, 1965, after the election but there is nothing on the record from which it can be inferred that such oath was taken at the meeting. This mistake in drafting the writ petition may have been occasioned by the presence of sec. 12 in sub-sec. (4) of sec. 72. When section 12 was amended and a new method of election of a Pradhan was provided by the amendment Act, there was not to be any meeting under sec. 12 for the election of a Pradhan after the amendment of sec. 12. Reference to the meeting under sec. 12 in sub-sec. (4) of sec. 72 should have been deleted but the Legislature lost sight of the fact that under amended sec. 12 no meeting for the election of a Pradhan was at all envisaged and failed to delete reference to sec. 12 in sub-sec. 72 (4 ).
The contention of learned counsel for the respondent Laloo Ram is that under sec. 12 (l) (a), the Pradhan becomes an additional member of the Panchayat Samiti and as sub-sec. (1) provided that every member of a Panchayat Samiti should make an oath at a meeting of the Panchayat Samiti, the appellant should have also made such oath. This point is answered by learned counsel for the appellant by pointing out that the Pradhan could not take an oath in the meeting referred to in sec. 11 nor could he make an oath in any other meeting before any body. In view of the phraseology of sub-sec. (4) this contention must be accepted. A meeting under sub-sec. (2) of sec. 11 is held for co-option of members and till then the Pradhan is not elected. No meeting is to be held for election of a Pradhan under sec. 12 under the amended law and the other meetings referred to in sub-sec. (4) in which oath Is to be taken before the Pradhan cannot apply to the Pradhan himself.
Thus it cannot be held that a Pradhan must take oath as member of a Panchayat Samiti in accordance with the provision of sec. 72. The appellant's right to function as Pradhan, therefore, remains unaffected even if it be taken that she had not taken any oath as member of the Panchayat Samiti. This view has also been taken by Kan Singh J. in Hanuman Bux vs. The Collector, Nagaur (1) with which we are in respectful agreement.
We further find that the appellant had taken oath as a member of Panchayat Samiti as well as Pradhan on 18th August, 1965, before Mr. K. C. Raj who described himself as Collector, Bikaner. Sec. 72-A which has been inserted in the Act by the Rajasthan Panchayat Samitis and Zila Parishads (Second Amendment) Act, 1965, runs as follows - "notwithstanding anything contained in this Act, where a member of a Panchayat Samiti or a Zila Parishad has failed to make oath or affirmation of his allegiance to the Constitution of India within the time and in th3 manner specified under sec. 12, he may, within one month of the commencement of the Rajasthan Panchayat Samitis and Zila Parishads (Second Amendment) Act, 1965, make such oath or affirmation in the form laid down in sub-sec. (1) of Sec. 72, before the Collector. " Before that, there was an Ordinance to the same effect. The Ordinance and the Amendment Act were inserted in the Act as it was found that a number of members of various Panchayat Samitis and Zila Parishads had failed to comply with the provisions of S. ,72 within the time prescribed therein. This was not unexpected in view of the fact that the system of establishment of Panchayats in the State of Rajasthan was being given its first trial. There is no lacuna pointed out by the petitioner to the writ petition in these oaths except that according to him they were not taken before the Collector but were taken before the Sub-Divisional Magistrate. Learned counsel for the appellant has urged that under Sec. 84 (3) of the Act, the Collector could delegate his function to any person subject to such restrictions, limitations and conditions as were prescribed by the Act or the Rules made thereunder in the matter of delegation of the power by the Collector, he could delegate his functions to any person. He has further pointed out that Shri K. G. Raj has signed as Collector of Bikaner in this matter, and it must be taken that he had delegated powers of the Collector in this respect. In the absence of any other evidence to the contrary, this contention must be accepted.
The learned single Judge perhaps acted on the copy of the standing order dated 17th August, 1965, issued by the Collector saying that Shri K. G. Raj, Sub-Divisional Magistrate, Bikaner, being the senior-most Rajasthan Administrative Service Officer, will look after the routine work of the Collectorate at the headquarters whenever the Collector was out on tour and that all concerned may be informed accordingly.
(3.) THE learned single Judge has held that the oath taken on the 18th August, 1955, was illegal on the ground that it was not administered by the Collector and further on the ground that the appellant did not take oath of the office of the member of the Panchayat Samiti as required under sec. 72-A of the Act.
The second ground is obviously wrong as the attention of the learned Judge was not drawn to Ex. 3. With regard to the first ground, it may be mentioned that sec. 72-A does not require that the Collector should administer the oath. It only lays down that a member of the Panchayat Samiti shall make on oath before the Collector. There is a good deal of difference between administration of oath by an officer and taking an oath before him. The administration of oath cannot be treated as a performance of routine duty but whether the same can be said with regard to the function of witnessing a person taking an oath is open to question. What were the routine duties in the office of Collector, Bikaner, were not laid down anywhere. Routine duties vary from office to office. What may not be a routine duty with regard to one office may be a routine duty with regard to another office if that duty is being performed in a customary or regular manner. When Shri K. G. Raj thought it proper to allow the oath to be made before him by Kumari Chandra Kala, then in the absence of any other circumstance it may be taken that he thought himself empowered to function as Collector though he may be in charge of disposing of only the routine matters of the Collectorate. In any case, under these circumstances, there was no fault on the part of the appellant in taking oath before Shri K. G. Raj.
A writ of quo warranto is not a writ as a matter of right. The court may refuse to issue such a writ if in the circumstances of the case it does not think it proper to exercise its discretion in favour of the petitioner. In this case there are several reasons why a discretion should not be exercised in favour of the petitioner. The first and foremost reason is that she was duly elected as Pradhan and no defect was pointed out in her election and her right to function as Pradhan could not be taken away on any technical grounds. Howsoever significant the act of taking of oath may be, still even in the case of a member of Parliament, the Constitution has not treated non-taking of oath as a disqualification resulting in the unsealing of the Member. Art. 104 of the Constitution provide that if a person sits or votes as a member of either House of Parliament before he has complied with the requirements of Art. 99 which provides for making and subscribing an oath, he shall be liable in respect of each day on which he sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the Union. Of course the provision in the Act is stricter in so far as sub-sec. (2) lay down that a member of a Panchayat Samiti failing to take an oath shall cease to hold the office. But absolute failure to take an oath may be distinguished from some technical errors in taking an oath, and in this case we are of the view that there has been merely a technical error in taking the oath.
Then again the writ petition was filed by Laloo Ram respondent on the 6th January, 1966, after about a year of the election of the appellant as Pradhan and during this period the appellant may have discharged her duties as Pradhan in various ways affecting the rights of third parties.
Learned counsel for the appellant has further argued before us that Laloo Ram had filed an election petition before the District Judge, Bikaner, for setting aside her election as Pradhan, which election petition has been dismissed. There is nothing on the record to support this contention of learned counsel for the appellant and we do not take his argument into consideration. However, on the material on record, we are of the view that this is a fit case in which Lalooo Ram's prayer for issue of a writ in the nature of quo warranto should be rejected.
The result of the aforesaid discussion is that the appeal is allowed and the order of learned Jagat Narayan J. dated April 20, 1967, is set aside and the writ filed by Laloo Ram is dismissed with costs in both the courts. .