JAGAT NARAYAN, J. - (1.) THIS is a petition under Art. 226 of the Constitution by one Lakshmi Narain Sharma, Sarpanch of Panchayat, Nakrasar, who is an ex-officio member of Panchayat Samiti Ratan Nagar under sec. 8 (1) (i) of the Rajas-than Panchayat Simitis and Zila Parishads Act, 1959, challenging a decision of the Senior Civil Judge, Churu, acting as a Tribunal under the Rajasthan Panchayat Simitis and Zila Parishads (Election Petition) Rules, 1959, dismissing his petition under R. 5 read with R. 10 thereof against the co-option of respondents Nos. 1 to 7 as members of the Panchayat Samiti.
(2.) THE co-option was challenged inter alia on the ground that the members of the Panchayat Samiti who took part in the special meeting for co-option held under sec. 11 did not take the oath as prescribed under sec. 72. THE members of the Panchayat Samiti who took part in the co-option proceedings were Sarpanchas of all Panchayats in the block and they had taken oath as Sarpanchas of their respective Panchayats in the form prescribed in R. 62 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960 read with sec. 15 of the Rajasthan Panchayat Act. This section runs as follows: - "oath or affirmation - Every Panch or Sarpanch shall, as soon as possible after his election or appointment, as the case may be, make in the prescribed manner the prescribed oath or affir mation of his office and, unless this is done, shall not perform any of his functions under this Act. " THE form of oath prescribed under R. 62 (in Schedule II) runs as follows: - "i. . . . . . . . . . . . . . having become a Panch/ Sarpanch/member of the Panchayat/nyaya Panchayat, swear in the name of God, solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law establi shed and that I will faithfully discharge the duty upon which I am about to enter. " The oath prescribed under sec. 72 (1) of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959, is in the following words: - "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 and that I will faith fully discharge the duty upon which I am about to enter. " Under the Panchayat Act the oath to be taken by every Panch or Sarpanch is referred to as the oath of office, but under the Panchayat Simitis and Zila Parishads Act it is referred to as oath of allegiance to the Constitution of India. The forms of oath in both cases however show that they are combined oaths of allegiance to the Constitution of India and oaths of office. The learned Senior Civil Judge was of the opinion that as the Sarpanchas who took part in the special meeting for co-option had already taken oath of allegiance to the Constitution of India, as Sar-panchas it was not necessary for them to take oath again as prescribed under the Rajasthan Panchayat Samitis & Zila Parishads Act. The contention on behalf of the petitioner is that this view is erroneous. On behalf of the contesting respondents it was not disputed that the view taken by the learned Senior Civil Judge is not correct. The oath prescribed under sec. 72 (1) being a combined oath of allegiance to the Constitution of India and oath of office as a member of the Panchayat Samiti the oath taken by the members of the Panchayat Samiti as Sarpanchas cannot serve the purpose of oath prescribed under sec. 72 (1) of the Panchayat Samitis & Zila Parishads Act. These members have only taken the oath of Office as Sarpanchas of the Panchayats. They have to take a fresh oath as members of the Panchayat Samiti in the form prescribed under sec. 72 (1 ). On behalf of the contesting respondents however it is argued that it is not necessary for the members of the Panchayat Samiti taking part in the special meeting for co-option held under sec. 11 to take the oath prescribed under sec. 72 (1 ). The contention on behalf of the petitioner is that such an oath is specifically provided under sec. 72 (4) and no member of the Panchayat Samiti can take part in the co-option proceedings without taking oath. Reliance is placed on my decision in Moolchand Jhanjhari vs. Collector, Ajmer (1 ). On behalf of the contesting respondents it is argued that the view expressed by me in the above case was merely obiter as the writ petition was dismissed on the ground that there was an alternative remedy by way of an election petition available to the petitioner, and that my attention was not drawn to important aspects of the matter. Sec. 72 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 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 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 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 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. " A reading of sec. 72 (1) goes to show that the oath is to be taken at a meeting of the Panchayat Samiti. On behalf of the contesting respondents an attempt was made to read this sub-section as follows: - "every member of a Panchayat Samiti and Zila Parishad shall, before taking his seat at a meeting of the Panchayat Samiti or the Zila Parishad, make an oath or affirmation of his allegiance to the Constitution of India in the following form" In my opinion the word "make" has been inserted before the words "at a meeting of the Panchayat Samiti or the Zila Parishad" in order to make it clear that the oath is to be taken at a meeting of the Panchayat Samiti. If this was not the intention then the word "make" would have been inserted after the words "at a meeting of the Panchayat Samiti or the Zila Parishad" and before the words "an oath or affirmation of his allegiance to the Constitution of India in the following form. " It is true that when a special meeting for co-option under sec. 11 is held, the Panchayat Samiti is not fully constituted and this special meeting is not really a meeting of the Panchayat Samiti. Sec. 11 refers to this meeting as a "special meeting of the members of the Panchayat Samiti specified in clauses (i) and (ii) of sub-sec. (1) of sec. 8". But in my opinion the legislature intended to give an extended meaning to the expression ''meeting of the Panchayat Samiti or the Zila Parishad" in sec. 72 of the Act and the meetings referred to in secs. 11 and 12 of the Panchayat Samitis and Zila Parishads Act were also included in the expression for the purpose of prescribing the taking of the oath. On behalf of the contesting respondent reliance was placed on the following observations made by a Division Bench of this Court in Smt. Jyoti Bai Vs. the Civil Judge, Nagaur (2): - "in Manak Chand vs. State of Rajasthan municipal board itself and although the elected I. L. R. (1961) 11rajasthan 63 - a similar question arose before another Division Bench of this Court. In that case also it was contended that the co-option of three respondents was invalid as the elected members were not administered oath before they proceeded to co-opt. It was observed by the learned Judges-'that co-option of members is a step in the formation of the members perform a duty when they co-opt other members under sec. 9, they do not act as a Board in doing so. It was further observed, 'that the Act envisages a duty performed by a member on behalf of a Board while co-option takes place at a stage before the members begin to function as a Board. " This case was relied upon by the learned Single Judge who was a party to it. Learned counsel for the appellants is correct to the extent that in the said case the question involved was of the interpretation of sec. 61 (1) of the Rajasthan Municipalities Act, and that the language of that section was different. We also agree with the learned counsel to the extent that analogy from other piece of legislation should not be ordinarily adopted in interpreting the provisions of a particular law. In the present case, however, the learned Judge seems to have referred to the said case as also to Moolchand Jhanjhari Vs. Collector, Ajmer (1) because similar provisions for co-option of members were made in those Acts and although the language of the sections relating to co-option was slightly different, the principle involved in all these Acts was the same. In other words, in all these cases the question of principle involved was whether it was necessary for an elected member to take oath before filing nomination for the co-option of allies members. If oath before co-option is necessary in one case, it should be equally necessary in the other case too. So far as the question of principle is concerned, we see no reason why the same legislature should have thought it necessary that in the case of Municipalities or Panchayat Samitis, oath should be taken by members after co-option and why in the case of Panchayat they should make oath before co-option. Under the circumstances, the learned Judge was not altogether unjustified in referring to the said cases. " The above decision was given on an appeal against my decision which is reported as Jyoti Bai Vs. the Civil Judge Nagaur (3 ). That was a case under the Panchayat Act. The elected members had not taken the oath of office before embarking on the duties of co-option. It was held by me that the elected Panchas and the Sarpanch in taking part in] the co-option proceedings exercise a statutory right of electing further members and do not perform any duty as members of the Panchayat. This decision was confirmed by the Division Bench. It was observed that although in a literal sense a Panch or Sarpanch taking part in co-option proceedings under the Panchayat Act does perform one of his functions under that Act, the reference to the functions of a Panch in sec. 15 is to the functions which he has to perform after the formation of the Panchayat and which are specifically mentioned in Chapter III of the Panchayat Act. It does not however appear that the attention of their Lordships was drawn to the provisions of sec. 72 of the Panchayat Samitis and Zila Parishads Act; nor was it necessary for them to apply their mind to the provisions of that section for purposes of deciding the case before them. In the Panchayat Act there is no provision like sec. 72 (4) prescribing that a member of the Panchayat Samiti shall take an oath before taking part in co-option proceedings. Sec. 61 of the Rajasthan Municipalities Act, 1959 which prescribes the taking of oath runs as follow: - "oath of office - (1) Every member shall before entering upon his duties as such, make and subscribe before the Collector or his nominee for the purpose an oath or affirmation in the prescribed form. (2) Any member who fails to comply with the provisions of sub-sec. (1) within a period of three months from the date of the first meeting of the board shall be deemed to have vacated his seat. " The form of oath is prescribed in clause 60 of the Rajasthan Municipalities Election Order, 1960 which runs as follows: - "i. . . . . . . . . . . . . . . do solemnly swear (or affirm) that I will be faithful and bear true allegiance to the Constitution of India as by law establi shed and that I will loyally carry out the duties of the office upon which I am about to enter. "
(3.) THE form of oath is no doubt similar to the form prescribed under the Panchayat Samitis & Zila Parishads Act. But there is no specific provision in the Rajasthan Municipalities Act, 1959 or in the rules framed thereunder requiring a member to take oath before taking part in the co-option proceedings. It is no doubt true that co-option is merely an election and on general principles it should not be necessary for a person to take an oath of office before taking part in an election. For in doing so he only exercises a right which accrues to him by virtue of being elected to or by virtue of being an ex-officio member of a corporate body. He does not act in the performance of any of the duties of the corporate body for the performance of which the oath of office is generally prescribed. But these general principles cannot override the legislative intent which is expressed by the specific words used in sec. 72 of the Panchayat Samitis & Zila Parishads Act. Sub-sec. (1) prescribes that oath shall be taken by every member of a Panchayat Samiti before taking his seat at any meeting. It also prescribes that the oath is to be taken at a meeting of the Panchayat Samiti. Sub-sec. (4) enlarges the scope of the expression ''meeting of the Panchayat Samiti" by including therein the meetings referred to in secs. 11 and 12 namely the special meeting for co-option and the meeting for election of the Pradhan and Up-Pradhan. It may be mentioned here that the Panchayat Samiti is only fully constituted, not after the co-option of members prescribed under sec. 8 but only after the Pradhan and Up-Pradhan have also been elected. For till then the Panchayat Samiti cannot function as such. Sub-sec. (3) runs - "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 of affirmation as laid down in this section. " This sub-section also lay down that it is necessary for a member of the Panchayat Samiti to take oath for doing any act as such member. Taking part in co-option proceedings is acting as such member. So is taking part in the meetings of a standing committee. I accordingly hold that it is necessary for a member of the Panchayat Samiti to take oath of office prescribed under sec. 72 (1) before he takes part in the voting for co-option, as held by me in Moolchand Jhanjhari vs. Collector, Ajmer (1 ). Next it was contended on behalf of the contesting respondents that the taking of oath is merely directory. Reliance is placed on the following passage at page 370 in Maxwell on interpretation of Statutes, Eleventh Edition: - "the usual provision in the commission of the peace that no justice named in it shall be capable of acting or authorised to act unless he shall have taken the oaths required by law would lead to intolerable inconvenience and injustice if it were imperative and struck with invalidity every act of an unqualified justice. If his acts were held void, it was pointed out by the King's Bench all persons who acted in the execution of a warrant issued by him would act without authority. Such consequences could not reasonably be supposed to have been intended, and the just conclusion was that the legislature intended by the prohibition only to impose a penalty for its infringement. " So far as the above paragraph is concerned all that is laid down is that the act of justice who has not taken oath is valid. This does not help the respondents in any way. If the taking of oath is held to be directory under one enactment then it does not follow that it is directory under another enactment also. ;