- (1.) THIS is a petition under Art. 226 of the Constitution.
(2.) THE petitioner, Nirmal Kumar, is one of the elected members of the Municipal Board of Rajgarh. It is alleged that he was elected as a chairman by the members of the Municipal Board on 12th March, 1953, and acted in that capacity until he received an order of the Government of the 9th July, 1955, that his election as Chairman was invalid on the ground that the members who elected him as Chairman had not been administered an oath prior to their entering upon the election It was alleged that the order was passed under Rules 14 and 15 of the rules regarding the election of chairman but there was no election petition before the Government and no enquiry had been made as required by the rules. THE order of the Government was challenged as being illegal and contrary to the provisions of law. On behalf of the Government it was stated that an election petition had been filed by the requisite number of persons and an enquiry had also been made by the Regional Inspector. No detailed enquiry was necessary in this case as the facts did not admit of any dispute. THE oath was administered to the members on the 11th April, 1953, but the election of petitioner as Chairman took place on 12th March, 1953. It was urged on behalf of the Government that no case had been made out by the petitioner for interference. The facts are not disputed. The petitioner in his petition has admitted the fact of the each having been administered to the members on 11th April, as also the fact that his election by the members as Chairman took place on the 12th March, 1953, that is, before the members had taken oath of office. The rules framed by the Government under sec. 205 of the Rajasthan Town Municipalities Act provide in Rule 45 that every person who is elected or nominated to be a member of any municipal board shall, before taking his seat take an oath of his allegiance to the Constitution of India in the form prescribed before the District Magistrate or his nominee. The election of the Chairman is provided in sec. 21 of the Rajasthan Town Municipalities Act (Act No. 23 of 1951 ). It says that for every municipal board there shall be a Chairman and a vice-Chairman and that the Chairman shall be elected in accordance with the rules made by the Government in that behalf by the members of the Municipal Board from amongst themselves. The election of the chairman is thus one of the duties of the members and rule 45 of the Election Rules being obligatory they cannot proceed to discharge their duties as such members before they take the oath. The election of the petitioner was obviously invalid. Learned counsel urged that the validity of the election could only be challenged by an election petition, and by an enquiry of such petition. While the Government has stated that an election petition was received there is no mention of such petition in the order of the Government nor the said petition was produced before us and admittedly no notice of the petition was given to Nirmal Kumar. While, therefore, the action of the Government is not covered by rule 15 of the election rules permitting the setting aside of the election on an election petition, it is obviously a case where the petitioner's election was invalid on the admitted facts of the case and, therefore, we do not propose to interfere in the order passed by the Government. The petition fails but we do not allow costs to the Government as they have not proceeded in a proper manner in accordance with the rules in passing the order which they did. The petition is dismissed. There will be no order as to costs. . ;