- (1.) THE petitioners have moved for a writ of mandamus or prohibition or any other appropriate writ declaring that the Notification dated 24th November, 1959, issued by the State Government cancelling their nominations to the Municipal Board, Chhappar, was illegal and ultra vires, and that no action could be taken by the authorities on the basis of the Notification in question.
(2.) THE relevant facts are that under sec. 9 of the Rajasthan Town Municipalities Act, 1951 ( Act No. XXIII of 1951 - hereinafter called "the old Act), the Government appears to have nominated the petitioners as members of the Municipal Board, Chhapar. This was done on the 15th of October, 1959. It is said that the order of the Government nominating these petitioners as members of the Municipal Board was communicated to the Chairman of the Municipal Board on the 21st of October 1959, who in his turn informed the petitioners of the said order. THEre were however, some clerical errors in the order inasmuch as the name of the second petitioner Nanaga had been shown as "nanag", while the name of the husband of the first petitioner Mst. Gatu was shown as "bhanmal", when in fact it should have been Manmal. THE Chairman, Municipal Board, therefore, wrote to the authorities on the 22nd of October, 1959, asking the errors to be rectified ; but the order was subsequently published on the 5th of November, 1959, in the official Gazette containing the errors aforesaid. On the 24th of November the Government issued the Notification now impugned under which it was noticed that since the Rajasthan Town Municipalities Act, 1959 (Act No. 38 of 1959 - hereinafter referred to as ''the new Act"), had come into operation and the new Act contained no provision for nomination by the State Government, the nomination of the petitioners as members of the Board was cancelled and option was left to the Municipal Board, Chhapar, to proceed to co-opt certain members as contemplated by the new Act. The contention of Mr. Than Chand, the learned counsel for the petitioners, is that this Notification is illegal and unauthorised, since the nomination of the petitioners took effect according to law. He points out that once the nominations have become effective, as in this case he says that they had become effective, it was no longer open to the State Government to recall the nominations or make fresh nominations. The petitioners, who were duly nominated, according to the learned counsel, were, therefore, entitled to continue as members of the Board until their membership terminated according to law, as provided by secs. 14, 19 or 203 of the old Act. In support of his contention the learned counsel relied upon the decisions of this Court in Kanta Devi vs. State of Rajasthan (1) and Smt Vimla Devi vs. The State of Rajasthan (2 ). In both these cases it was undoubtedly held that once the Government had exercised its power under sec. 9 of the Act to make nominations, the power of the Government to nominate was exhausted; it was not open to the Government to make any fresh nominations cancelling the earlier ones and the persons once nominated as members could not be removed, except under the provisions of the law. He, therefore, submits that the later Notification issued by the Government cancelling the petitioners' nominations was entirely without jurisdiction. The contention would have been well founded, but for the fact that the law had changed during the interval and we have to examine what effect the new legislation had upon the order of nomination which was made by the Government on the 15th of October, 1959. The new Act received the assent of the President on the 7th of September, 1959, and was published in the Gazette on the 14th of September, 1959. Under sub-sec. (3) of sec. 1 of the new Act the State Government by a notification put it into operation on the 17th of October, 1959. On the same date purporting to act under sec. 301 of the above Act, the Government with a view to facilitate transition from the provisions of the laws repealed by virtue of sec. 2 of this Act, published in the official Gazette, the Rajasthan Municipalities (Transitory Provision) Second Order, 1959 Order No. II of 1959 - hereinafter called "the Order" ). The provisions of the Order have an important bearing upon the nominations of these petitioners. Mr. Than Chand contends that under sec. 2 of the new Act there was a saving in favour of the validity of anything done under the previous law, and since the nominations had been already made under the old law, these nominations were not affected by any change in the legislation. Clause (b) of the proviso to sec. 2 is relevant in this connection. Leaving aside the irrelevant parts it says that all municipal boards, corporations, and councils established under any of the said laws (meaning the enactments specified in the First Schedule of the Act including the old laws which were repealed), shall be deemed to be established under this Act, and all municipalities constituted, members nominated, appointed, or elected under the said laws or enactments shall be deemed, unless the State Government directs otherwise, to have been respectively constituted, nominated, appointed or elected under the present Act. The important words, therefore, in this clause are "unless the State Government directs otherwise". The above provision of sec. 2 has to be read along with sec. 301 of the Act where specifically provision has been made for any order published by the Government in order to facilitate transition from the old state of things to the new. It was under those provisions of the new Act that the Government promulgated the Order which came into force on the same day as the Act itself. Clause 3 of the Order is material. It runs : "in cases in which elections to a Municipal authority established under and governed by any repealed law have been held, but such municipal authority has not been completely formed or begun to function before the appointed date, then, notwithstanding anything to the contrary contained in the repealed law or in the Act - (iv) where any repealed law or an order thereunder fixing the number of members of a municipal authority contained a provision for the nomination or co-option of some members, the number of seats to be filled up by nomination or co-option may be filled after the appointed date by co-option of one person belonging to the scheduled castes or the scheduled tribes and 2 persons belonging to the female sex if no such person has been returned by election or one such person if only one such person has been returned and the members elected as aforesaid shall forthwith enter upon their duties for the purpose of such co-option in accordance with rules made under the Act. " The "appointed date" mentioned in the clauses refers to 17th* October, 1959, when the new Act came into force, and the Order was promulgated. The language of Clause 3 shows that where the municipal authority has not been completely formed or begun to function before the appointed date, then, notwithstanding anything to the contrary contained in the earlier enactment, the provisions of the new law will come into force. In this case we find that although the order of nomination was made On the 15th October, 1959, it was not communicated to the Chairman of the Board or to the petitioners before the 21st of October, 1959; and, therefore, evidently till then the nominations had not become effective as held in the case of Smt. Vimla Devi vs. State of Rajasthan (supra ). Mr. Than Chand contends that the notification nominating the petitioners was actually published on the 5th of November, 1959, long after the appointed date, which shows that the Government's intention was to uphold these nominations. He thereby pleads that the publication of the notification should be read as a direction by the State Government saving these nominations as provided by sec. 2 (b) of the new Act. This argument though quite ingenious cannot stand scrutiny. The publication of the nomination in the Gazette was a mere ministerial act as it is apparent from the fact that even the clerical errors remained as they were. It was merely a publication of the order which was passed on the 15th of October, 1959, and is no indication of Government's intention to the contrary as against the specific provisions of the new Act and the order which was promulgated by the Government. The position, therefore, remains that these petitioners could not be held to have been effectively nominated until the 21st of October, 1959, which was after the appointed day, namely 17th October, 1959, when the new Act came into operation. In the circumstances it has to be held that the Board had not been completely formed till then; and the nominations made under the old Act could not prevail. There was the further question which makes the position of Mr. Than Chand's clients even worse. Clause 3 also provides that sub-clause (iv) of the Clause would come into play even if the Board formed under the old Act had not begun to function before the appointed day. Nothing has been shown, nor it is anybody's case that the Board had started functioning before the 17th of October, 1959. That being so, it is obvious that the provisions of sub-clause (iv) of Clause 3 of the Order would be attracted to the case, and it was open to the Municipal Board within the meaning of sec. 9 of the Act to co-opt members thereof. Therefore, with or without the Notification in question before us the provisions of Clause 3 of the Order would apply to the case and the nominations of the petitioners would fall through. Mr. Than Chand has, however, contended that sub-cl. (iv) will have no application to the case, since already two persons had been nominated and the seats had been filled up by virtue of the nominations. In other words, he wants us to assume that subclause (iv) has to be interpreted in its isolation torn from the context of the main body of Clause 3. For the reasons given earlier, it cannot be assumed in the circumstances of this case that the seats had been filled up by valid and effective nominations, which could be held to be saved under Clause 3 of the order read with section 2 (b) of the new Act. We are, therefore, unable to hold that there is any illegality in the Notification issued by the Government or that the Notification is without the authority of law. We accordingly discharge the rule and reject this application. The contesting respondents are entitled to costs. Hearing fee Rs. 50/ -. . ;