JAGAT NARAYAN, J. - (1.) THIS is a writ petition under Article 226 of the Constitution by 17 Sarpanchas who are members of the Arain Panchayat Samiti challenging the validity of the cooption of respondents Nos. 23 to 27 to the Samiti.
(2.) THE Arain Panchayat Samiti was constituted with effect from 15. 1. 61 under a notification dated September 22, 1960 under sec. 7 (1) of the Rajasthan Panchayat Samitis and Zila Parishads Act,1959 (hereinafter referred to as the Act) published in the Rajasthan Gazette dated 22. 12. 60. THE block for which the Panchayat "samiti was constituted consisted of 30 Panchayat Circles the Sarpanchas of which became members of the Panchayat Samiti under sec. 8 (1) of the Act. Seven members were be coopted under sec. 8 (2) of the Act. For the cooption of these members the Collector convened a special meeting under sec. 11 for 31st December 1960. Notices were issued to all the members of the Panchayat Samiti specified in sec. 8 (1) on 19. 12. 60. THEse notices were in accordance with rule 3 of the Rajasthan Panchayat Samitis (Cooption of Members) Rules 1959 (hereinafter referred to as the Rules ). According to this notice nomination papers were to be filed on 31. 12. 60 between 8 a. m. and 10 a. m. Scrutiny of these nomination papers was to commence on the same day at 10. 30 a. m. and the vote of the members was to be taken between 2 p. m. and 4 p. m. on that day should a poll became necessary. Another notice was issued by the Collector on 29. 12. 60 in which the same programme was repeated with the addition that oath shall be administered to the members on 31. 12. 60 between 7-30 a. m. and 8 a. m. Petitioners Nos. 1 to 4 filed the nomination papers of respondents Nos. 16 to 22 before the Returning Officer on 3 1. 12. 60 which were accepted. The nomination papers of respondents Nos. 23 to 27 were also filed and accepted. As there were more candidates than the number of members to be coopted a poll became necessary. When the petitioners Nos. 1 to 17 approached the Returning Officer for giving them ballot papers an objection was raised on behalf of the remaining 13 members of the Panchayat Samiti that they were not entitled to vote as they had not taken the oath. This objection was upheld by the Returning Officer who did not permit petitioners Nos. 1 to 17 to vote. The remaining 13 members alone therefore took part in the voting. As a result respondents Nos. 21 to 27 were declared as coopted to the Panchayat Samiti under sec. 11. These included respondents Nos. 21 and 22 whose nomination papers were filed by petitioners Nos. 1 to 4. The petitioners have challenged the cooption of respondents Nos. 23 to 27 whose nomination papers were not filed by petitioners Nos. 1 to 4. The petition has been contested on behalf of respondents Nos. 3 to 15 and 23 to 27. A preliminary objection is taken that the petitioners have an alternative remedy by way of an election petition under R. 3 read with R. 10 of the Rajasthan Panchayat Samitis Pradhans and Uppradhans, and Zila Parishads Pramukha and Uppramukha (Election Petition) Rules, 1959. This preliminary objection will be dealt with after disposing of the contentions raised on behalf of the petitioners. The first contention on behalf of the petitioners is that a member of the Panchayat Samiti is not required to take oath before taking part in cooption proceedings held under sec. 11. Sec. 72 of the Act which provides for the taking of oath by the members runs as follows: - "oath of allegiance to be taken by the members - (1) 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, or in the alternative before the Collector, on oath ox affirmation of his allegiance to the Constitution of India. . . . . . . . . . . . . . . (3) No member shall take his seat at a meeting of the Panchayat Samiti or 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 sec. 11 and 12 or in sec. 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 Panchyat Samiti, and (b) before the Pramukh, if he is a member of the Zila Parishad. The argument put forward on behalf of the petitioners is that the Panchayat Samiti really comes into existence only on a date notified under sec. 7 (1) and when cooption proceedings are held there is really no panchayat Samiti in existence and it cannot be said that a member taking part in the cooption proceedings held under section 11 is taking his seat at a meeting of the Panchayat Samiti. Further that it is only after the cooption of members and the election of the Pradhan and Up-Pradhan that the Panchayat Samiti is fully constituted and it cannot function as such till then. This argument cannot be accepted in the face of the specific provisions contained, in sub-sec. (4) of sec. 72 laying down that oath shall be taken at the meeting referred to in) sec. 11. The provision of this sub-sec. 4 makes it clear that the Legislature intended that the Sarpanchas who became members of the Panchayat Samiti under sec. 8 (1) should only take part in the meeting held under sec. 11 for cooption after taking oath. I may here refer to a decision of this Court in Vishwanath Vs. Pt. Jhaman Lal (1) in which it was held that a person becomes a member of a municipal board as soon as he is elected or nominated to it even before he takes his seat on the board and even before the board begins to function. The Panchayat Samitis Act contemplates that the Samiti should be fully constituted before the date appointed under sec. 7 (1 ). The proceedings for cooption take place before the date of the constitution of the Panchayat Samiti fixed under sec. 7 (1 ). This meeting is regarded as a special meeting for the cooption of members. It is not a business meeting of the Panchayat Samiti, but is a meeting held solely for the purpose of cooption and sec. 72 (4) provides that the members shall take oath before taking part in the meeting for cooption. This raises another question as to whether it is necessary for a member to take the oath before he can file a nomination paper, or it is necessary for him to take oath only before he votes. There are three stages in a proceeding for co-option : the stage for filing nomination papers, the stage for scrutiny of nomination papers and the stage for voting by members in case a poll becomes necessary. Under rule 5 a nomination paper can be filed either by one of the members proposing or seconding a candidate or by a candidate himself. If a nomination paper is filed by a candidate he can only do so without taking the oath. For so long as he does not become a member by co-option he cannot take oath of office under sec. 72. It stands to reason that a member who is a proposer or seconder of the candidate can also file a nomination paper without taking oath. Here again I may refer to the decision of this Court referred to above in which it was held that a member of a municipal board can propose the name of a person for the office of chairman of the board without taking oath. For the second stage namely the scrutiny of nomination papers the presence of members is not required. It is only at the third stage namely the stage of voting that it is necessary for the members to take oath before they vote. Sec. 11 (3) refers to the quorum for the meeting for co-option. The provision is reproduced in rule 10 in which it is laid down that one-third of the total number of members shall form the quorum of a meeting for co-option. Rule 7 prescribes that the Returning Officer shall, before the time fixed for the meeting for co-option, cause to be published a list containing the names of the validly nominated candidates. Although under sec. 11 the expression "meeting for co-option" has been collectively used for all the stages of the co-option proceedings I am of the opinion that the meeting for which a quorum has been prescribed under R. 10 is the meeting at which voting takes place, should a poll become necessary. This is clear from the wordings of rule 7 also. It is only at the stage of voting that the presence of all the members of the Panchayat Samiti is desirable. The presence of the members is not required either for filing nominations or for scrutiny of nomination papers. I am accordingly of the opinion that the Returning Officer was justified in refusing to give ballot papers to the petitioners on the ground that they had not taken the oath. The next contention on behalf of the petitioners is that there was violation of rule 3 inasmuch as the notice dated 29. 12. 60 was not served on the members seven clear days before the meeting. This contention has no force. The notice issued on 19. 12. 60, was the statutory notice prescribed under R. 3. It was served seven clear days before the meeting for co-option as required under sec. 11. The notice dated 29. 12. 60 was only issued to remind the members that they had to take oath at 7. 30 a. m. before taking part in the meeting for co-option. No such reminder is prescribed either in the Act or in the Rules and it was not necessary for the Collector to issue it. It was alleged in the petition that the notice dated 29. 12. 60 was served on Mool Chand petitioner on 1. 1. 61 and it was not served at all on the remaining petitioners. Even if this allegation is true it has no effect on the validity of the meeting for co-option. It was alleged in the petition that the Returning Officer acted in collusion with respondents Nos. 3 to 15. This inference was based on the following allegations.- (1) that he did not object to the filing of the nomination papers by petitioners Nos. 1 to 4 without taking oath. (2) that he. did not permit the petitioners to vote on the ground that they had not taken oath when really the taking of oath was not necessary for taking part in the co-option proceedings. (3) that when the petitioners on the objection of the Returning Officer volunteered to take oath he declined to administer it to them. As for (1) and (2) I have already held above that the Returning Officer acted rightly in not objecting to the filing of the nomination papers by petitioners Nos. 1 to 4 without taking oath and in not permitting the petitioners to vote on the ground that they had not taken the oath. As for (3) I am not satisfied that the petitioners asked the Returning Officer to administer oath to them. The petitioners have furnished a copy of the reply which they filed before the Returning Officer on 31. 12. 60 to the objection taken by the respondent about their not having taken oath. A perusal of it goes to show that the stand taken by the petitioners was that it was not necessary for them to take oath as they had already taken oath when they were elected as Sarpanchas. Further that if it was necessary for them to take oath again another meeting should be called for co-option after giving due notice to them at which oath should be administered. It did not occur to the petitioners to ask the Returning Officer to administer oath to them there and then and then permit them to vote. It was, argued on behalf of the petitioners that they had submitted another reply as well in which it was mentioned that Returning Officer should administer oath to them at that very meeting and should then allow them to vote. If this allegation is true they should have filed a copy of that representation. It is true that in a representation which the petitioners made before the Collector it was alleged that they asked the Returning Officer to administer oath to them. But that allegation might have been made on receiving better legal advice at Ajmer. In|any case even if it is assumed that the Returning Officer was asked and refused to give oath to the petitioners at 2. 15 p. m. that alone would not justify any inference of mala fides on his part as he might well have been under the impression that he could not administer oath to them at 2. 15 p. m. as the time fixed for taking the oath by the Collector was 7. 30 a. m. I accordingly hold that it has not been established that the Returning Officer in any was acted male fide or in collusion with respondents Nos. 3 to 15. While replying to the arguments put forward on behalf of the respondents the learned counsel for t)he petitioners sought to attack the validity of the co-option of respondents Nos. 23 to 27 also on the ground that the persons who voted for them had been administered oath by the Returning Officer at 7-30 a. m. The contention was that under sec. 72 (4) the Returning Officer was only authorised to administer oath when he was presiding at the meeting for co-option which only commenced at 2 p. m. and that before the commencement of that meeting only the Collector was authorised to administer oath under sec. 72 (1 ). This ground was however not taken in the petition and the petitioners cannot be allowed to raise it at this stage. Further there was no assertion of the fact contained in the petition that respondents Nos. 3 to 15 took oath at 7-30 a. m. It is only by inference that it may be deduced that respondents Nos. 3 to 15 must have taken oath at 7. 30 a. m. Coming now to the preliminary objection the petitioners no doubt had an alternative remedy by way of an election petition. Under notification No. 2 (6) Plan/b/59 dated December 9, 1960, published in Part IV-C of the Rajasthan Gazette dated 12. 12. 60 at page 294 the provisions of rules 3 to 9 of the Rajasthan Panchayat Samitis' Pradhans and Up-Pradhans, and Zila Parishads' Pramukhs and Up. Pramukha (Election Petition) Rules 1959 were applied to the co-option of a member of the Panchayat Samiti under sec. 11.
(3.) UNDER rule 3 an election by co-option of any person to the Panchayat Samiti can be challenged on one or more of the following grounds: - (a) that such person had committed during or in respect of the election proceedings a corrupt practice as specified in rule 4; (b) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes or for any other reason was not duly elected by a majority of lawful votes ; or (c) that such person was disqualified for co-option under the provisions of the Act. The grounds on which the cooption of respondents Nos. 23 to 27 has been challenged in the present petition fall under clause (b) of R. 3. The process of election by cooption commences with the issue of a notice under sec. 11 of the Act. It was during this process that the Returning Officer is (alleged to have illegally prevented the petitioners from casting their votes. This Court is slow to interfere in the exercise of its jurisdiction under Article 226 where the petitioners have an alternative remedy. The existence of an alternative remedy no doubt cannot oust the jurisdiction of this Court under Article 226 of the Constitution but unless exceptional circumstances exist it is not the practice of this Court to interfere till the alternative remedy is exhausted. It was asserted on behalf of the petitioners that the circumstances in this case are exceptional as the Returning Officer colluded with some of the respondents. As I have shown above the petitioned have failed to establish any collusion on his part. It was also contended that an election petition cannot be regarded as adequate remedy in the present case as the Election Tribunal has no power to stay the election of the Pradhan of the Panchayat Samiti pending decision of the election petition. I am unable to accept this argument for the simple reason that if it were to be accepted it would apply to all disputes regarding the election of Sarpanchas of Panchayats and members of municipalities. For a Sarpanch becomes a member of the Panchayat Samiti of the block concerned as soon as he is elected Sarpanch and he becomes entitled to co-opt other members and to elect a Pardhan of the Panchayat Samiti. In the same way a member of a municipality on election becomes entitled to take part in the election of the chairman. The Election Tribunal cannot restrain any person elected to any office from discharging the duties of that office till his election is set aside. It is neither possible for this Court to deal with all such disputes in the exercise of the its writ jurisdiction nor it is desirable that holders of elective offices should be restrained from discharging their duties unless the circumstances are exceptional. I therefore hold that the petitioners have adequate remedy by may of an election petition and there are no exceptional circumstances in the present case which entitle them to relief under Art. 226 of the Constitution at this stage. In the circumstances of the case I direct that parties shall bear their own costs. . ;