- (1.) THIS application has been made for quashing a notification dated 6th February 1958 and also for prohibiting the respondents from removing the petitioners, who are nominated members of the Municipal Board, Dausa until the term of the Board expires.
(2.) THE Municipal Board of Dausa consists of twelve members as determined by the Government under sec. 10 of the Rajasthan Town Municipalities Act, 1951 (Act No. XXIII of 1951, hereinafter called the Act ). Of these twelve members, ten were to be elected and two nominated. A fresh election of the Municipal Board, Dausa was held on the' expiry of its term in January 1956 and the results of the election were declared on the 29th of January 1956. THE Government issued a notification on the 8th of October, 1956 which was published in the Rajasthan Rajpatra on the 18th of October 1956, nominating these petitioners as members of the Municipal Board. THEy accordingly took oath of allegiance under R. 45 of the relevant Rules and started functioning as members of the Municipal Board from the 22nd of November 1956. Long after this period, it appears that on the 6th of February 1958, the State of Rajasthan issued a fresh notification whereby it cancelled the nomination of the petitioners to the Municipal Board, Dausa, and in their place nominated respondents Smt. Mohini Devi and Bhoma Chamar as members of the Municipal Board. THE petitioners are aggrieved by this notification and challenge the notification on the ground that they, having been already nominated as members of the Board, there was no power in the Government under sec. 9 of the Act to make any fresh nominations its power to nominate having been exhausted. The notification in question states that the persons sought to be nominated under the notification were already nominated as members of the Municipal Board on the 6th of April 1956 and since it had been held by this Court in Kanta Devi vs. State of Rajasthan (1) to which case reference has been made in the notification itself, the Government thought that it was not open to them to exercise their power of nomination in favour of the petitioners. There can be no doubt that once the Government has exercised its power under sec. 9 to make the nominations and has exhausted its power under the Act, it is not open to the Government to make any fresh nominations cancelling the earlier ones. The persons nominated then become members of the Board and they cannot be removed from functioning as such except under sec. 14 of the Act aforesaid. There is no provision in the law by which their membership of the Board could be otherwise terminated until the life of the Board expired. The question which, therefore, arises is whether there was any earlier nomination effectively made on the 6th of April, 1956 as stated in the notification in question and whether in view of that nomination, it was open to the Government to recall the nomination of the petitioners which was admittedly made on the 8th of October 1956, as published in the Rajasthan Rajpatra and in pursuance whereof the petitioners actually took oath and had been functioning as members of the Board. On behalf of the State of Rajasthan it has been contended that there was a valid order of nomination made on the 6th of April 1956, though it was never published in the Rajpatra. It is suggested that a copy of the order was sent to the Chairman of the Municipal Board, though it is not the case of the Government that at any stage the order in question was communicated to the persons concerned, namely Smt. Mohini Devi and Shri Bhoma Chamar These persons have been made respondents to the application and they are not contesting the claim of petitioners. Unfortunately, we do not find anything in the rules to show as to when an order of nomination made by the Government under sec. 9 of the nominating Act certain persons as members of the Board would become effective so as to deprive the Government of its power of making any further nomination. It is, however, obvious that so long as the parties concerned have neither direct notice of any such nomination or the Government has not through proper channels published the nomination in question so as to bring it to the notice of the persons nominated, that is, by virtue of a notification in the official Gazette, it cannot be said there was any valid nomination of the persons concerned within the meaning of sec. 9 of the Act. In this case there was neither any publication in the official Gazette of the nominations in question which are alleged to have been made on the 6th of April 1956, nor was there any such order of nomination communicated to the persons concerned. No such claim has been made on behalf of the State of Rajasthan. That being so, the order of nomination, if any, never became effective. Merely because an order is passed by the Government and then allowed to lie somewhere without its being communicated to the persons affected by the order, it could not be reasonably contended that the order had become effective, because until that is done, the persons nominated would not acquire any right to become members of the Board within the meaning of sec. 9 of the Act. We could understand that if the order had been published in Gazette, it could be very well assumed that there was a general notification fof the purpose of communicating the order of nomination and as such the nomination had become effective and1 Government could not thereafter exercise any further right of nomination under Sec. 9 of the Act. It is true that the publication in the Gazette under sec. 18 of the Act is merely directory and would not deprive the persons nominated of any right which they acquired under the statute as nominated members, provided they actually had been informed of their nomination; but the publication would certainly indicate that Government had exhausted their right of making any further nominations. That such a communication of the order of nomination is necessary is also implied in the decision or Kama Devi's case{2 ). In that case, the Government of Rajasthan. made nominations of two persons in the exercise of its power under the Act on the 28th of January 1956. The District Magistrate then issued a notice fixing a date, place and time for election of the Chairman of the Board and information of this meeting was sent to the applicants also as nominated members of the Board. Before that meeting, another meeting of the Board had been called by the Sub-divisional Magistrate for taking oath by the members, notice whereof was also sent to the persons nominated, and in those circumstances, it was held that the persons nominated became "members nominated under the Act" when they received the orders of nomination on or about the 28th of January 1956. Even though there was no publication of the notice in the Gazette, it was held that the validity of the order of nomination was not affected because the provision under sec. 18 was merely directory. It has been contended on behalf of the State of Rajasthan that once an order has been made, as it is claimed an order was made on the 6th of April, 1956 nominating the respondents, the power of the State Government was exhausted and that petitioners could not be nominated. It has not been explained that if the Government had already made nominations for the Board in April 1956, why it suddenly changed its mind in October 1956 in nominating the petitioners; but even assuming that any such order of nomination was there,so long as the order remained with the Government or in the hands of its officers and was never communicated to the persons concerned through proper channels, we cannot take notice of any such order, nor could it create any rights in favour of those persons under the Act so as to enable us to hold that the power of nomination was exhausted. So long as the papers were in the hands of Government agents, it could recall the nominations and change its mind. In our opinion, the nomination would become effective only in the circumstances which we have indicated earlier; and since there was no earlier nomination in this case effectively made, it must be held that the nomination of the petitioners who had already taken their oath and had been functioning as members of the Board was effective and that the subsequent notification by the Government cancelling their nomination is without jurisdiction and not authorised by sec. 9 of the Act. We accordingly make the rule absolute and quash the notification in question. The petitioners are entitled to their costs : hearing fee Rs. 50/ -. . ;