JAGAT NARAYAN, J. - (1.) THIS is a petition under Art. 226 of the Constitution by an elector of Karanpur Municipality challenging the validity of the general elections and the right of the Chairman and members of the Board of functioning as such.
(2.) THE general election to the Board took place on 29-3-64 and respondents Nos. 3 to 14 were declared as duly elected. On 14-4-64 a meeting of the elected members took place for co-opting two members. THE meeting was presided over by the Collector's nominee Shri Sardar Singh S. D. O. (Revenue) Karanpur. Respondents Nos. 15 and 16 were co-opted at the meeting as members of the Board. On 7th April, 1964 the Collector of Ganganagar had nominated Shri Sardar Singh as the Returning Officer under the Rajasthan Municipalities (Election of Chairman, Vice-chairman, President and Vice-President Rules, 1959 by an order (annexure 17) which runs as follows: - "in exercise of powers conferred upon me under sub-clause 11 of clause 2 of Rajasthan Municipal (Election of Chairman) Rules, 1959 read with sec. 65 of Rajasthan Municipalities Act 1959, I, H. M. Mathur, Collector Ganganagar do hereby appoint Sub-Divisional Magistrate Karanpur as Returning Officer for conven ing and presiding over the meeting of members of Municipal Board Karanpur for election of Chairman of the said Municipal Board on 29-4-64 at 11. 00 a. m. Sd/- H. M. Mathur Collector. " He omitted to authorise Shri Sardar Singh to administer oath of office to the members under sec. 61 of the Rajasthan Municipalities Act 1959, which runs as follows: - "61. 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. " On 28-4-64 Shri Sardar Singh called all the elected and co-opted members at the office of the Karanpur Municipality and administered oath of office to them. After administering oath he wrote the following letter (annexure) to the Collector, asking him to ratify his act of administering oath on his behalf: - "office of the Returning officer Municipal Elections, Shri Karanpur No. Elec/246 D/- 28-4-64 To The Collector, Shri Ganganagar. Sub: - Oath of office under clause 60 of Municipal Election Order 1960. The elected and co-opted members of Municipal Board Sri Karanpur were adminis tered oath today before starting proceedings for the election of Chairman. I have performed the duties on your behalf and it be regularised. Without administering oath proceeding could have been questioned. D/- 28-4-64. Returning Officer (S. D. M.) Municipal Election, Sri Karanpur. " On 8th May 1964 the Collector passed the following order (annexure 18): - "office of the Collector, Ganganagar. OFFICE ORDER In exercise of the powers conferred upon me by the Government under the Rajasthan Municipalities Election Order, 1960 vide clause 60, I, H. M. Mathur, Collector Ganganagar do hereby appoint Shri Sardar Singh, Sub-Divisional Officer (Rev.) Karanpur as my nominee from the date 28-4-64 to take oath of allegiance from the elected and co-opted members of Municipal Board, Sri Karanpur. (H. M. Mathur) Collector, Ganganagar. No. DEV/cg/1727 Dated the 8th May, 1964. Copy forwarded to Shri Sardar Singh, Sub-Divisional Officer (Rev.) Karanpur for information. He will please ensure that compliance has been made by him fulfilling the conditions of the clause 60 of the Rajasthan Municipalities Election Order 1960. This is in response to his letter No. Elec/246 dated 28-4-64. Collector, Ganganagar. " The case of the petitioner is that the oath administered by Shri Sardar Singh, to the members on 28-4-64 without the authority of the Collector was invalid and could not be validated by any subsequent order of the Collector purporting to confer authority on Shri Sardar Singh retrospectively. Shri Sardar Singh was impleaded as respondent No. 17 to this writ petition. He was appointed Officer-in-charge on behalf of the State Government. He filed one reply on behalf of himself and the State Government and supported it by his affidavit. In this affidavit he alleged that he had contaced the Collector on the telephone on 13-4-64 before issuing a notice under rule 4 of the Rajasthan Municipalities (Election of Chairman, Vice-Chairman, President and Vice-President) Rules 1959 and the Collector had authorised him orally to administer oath to the members on his behalf. He also alleged that he had recorded a note about the proceedings and had kept it on his office file relating to the elections to Karanpur Municipality. He filed a copy of this proceeding which is at page 67 and runs as follows: - "proceedings of the meetings called for administering oath to the elected and co-opted members of M. B. Karanpur dated 28-4-64. As per approved programme received through Collector Ganganagar for election of Chairman before issuing notice under R. 4, I had contacted on phone on 13.-4-64 with the Collector for issue of order under cl. 60 of the Municipalities Election Order, 1960. He having given his consent for administering oath on his consent for administering oath on his behalf to the members before starting the proceedings for the election of the Chairman I, today called all the co-opted and elected members at the Municipal Hall, Shri Karanpur at 10-30 A. M. All members having appeared they were administered oath by me. Proceedings for receiving nominations then started and the first nomination paper was filed by Shri Tack Chand at 11 A. M. Sarva Shri Guru Sharan Singh and Prabhati Ram filed their nominations at 2-15 and 2-30 P. M. respectively. The list of candidates proposed for nomination for election as chairman was published in Schedule 2 at 3-15 P. M. The scrutiny started during the appointed hour and Shri Guru Sharan Singh and Prabhati Ram having filed an objection at 3-15 P. M. against the nomination paper filed by Shri Tack Chand the matter was taken up and both sides being represented through their counsel they were heard and the objection was rejected the order of which was recorded separately, thus three candidates Sarva Shri Tack Chand, Guru Sharan Singh and Prabhati Ram, remain in the field and the list of the validly nominated candidates was published in Schedule '2' soon after completion of scrutiny at about 6 P. M. Collector Ganganagar requested separately for regularising the whole matter. Sd/- Sardar Singh 28-4" Shri Sardar Singh was cross-examined on his affidavit. He stated in his cross-examination that he was in the Municipal Office on 13-4-64 from 11 a. m. to 4 p. m. that there is no telephone there, and that there is a telephone at his residence from where he contacted the Collector, on 13-4-64 before 11 a. m. Now Karanpur is connected with Ganganagar, the headquarters of the Collector by trunk telephone and a complete record of all telephone calls is maintained by the Telephone Department. The petitioner got this record produced by Shri Goverdhan Motiram Devnani, a clerk in the Accounts Office, Telephone Revenue, Jaipur, who was examined as a witness by me. The record produced by him goes to show that no trunk call was made by Shri Sardar Singh to the Collector on 13-4-64 in the morning. The allegation made by Shri Sardar Singh in his affidavit and in the note a copy of which was produced that he contacted the Collector on telephone on 13-4-64 and obtained his authority to administer oath to the members is thus completely false. The pages in the file on which the note was kept are not numbered. The file is kept by Shri Sardar Singh in his own office and he could have inserted the note at any time in the file. If Shri Sardar Singh had prepared any such note in connection with the election of the Chairman he would have sealed it along with other papers relating to the election as required by rule 13 of the Rajasthan Municipalities (Election of Chairman, Vice-Chairman, President and Vice-President) Rules 1959. The sealed packets containing records relating to the election of Chairman and Vice-Chairman are forwarded to the Collector and are retained in safe custody for a period of three years. Shri Sardar Singh was unable to give any satisfactory explanation as to why he did not seal this note as required by rule 13 if he had actually prepared it. A perusal of his letter (annexure 2) and the order (annexure 13) passed thereon by the Collector completely rules out that the Collector authorised Shri Sardar Singh orally on 13-4-64 to administer oath of office to the members of the Board. Shri Sardar Singh has written in this letter "i have performed duties on your behalf and it be regularised. Without administering path proceeding could have been questioned. " If the Collector had authorised him orally on telephone on 13-4-64 he would have said so in this letter and the Collector would have also made a mention about it in his order (annexure 18 ). I accordingly hold that oath of office was administered to the members by Shri Sardar Singh without the authority of the Collector. The oath administered to them on 28-4-64 was thus invalid.
(3.) ON behalf of the contesting respondent no reliance was placed on the allegation of Shri Sardar Singh that he administered oath on the oral authority of the Collector. But it was strenuously contended that the act of administering oath is a ministerial act and it could be ratified by the Collector subsequently as no prejudice was caused to any one thereby. A reference was made to the decision in Shanker Lal vs. Collector Ganganagar (l) in which it was held that the act of appointing a returning officer under clause 5 of the Rajasthan Municipalities Election Order, 1960 is a ministerial act and an appointment made before the publication of the notification under sec. 23 will acquire validity as soon as the notification is pulished. The decision in Bhagwan Dass vs. Collector Bikaner (2) was also referred to. In that case draft electoral rolls were published by an officer before he was actually appointed as Returning Officer. It was held that the publication of the draft rolls was a ministerial act and the irregular act of the officer in publishing the draft rolls before his appointment as Returniag Officer was regularised when he was subsequently so appointed. In my opinion the administering of oath to a member cannot be regarded as an act of ministerial nature. The Legislature has attached great importance to it as is clear from the provisions of sec. 61 which is worded in a mandatory form. It lays down that 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. If a member fails to take oath within a period of three months from the date of the first meeting of the board he is deemed to have vacated his seat. The legislature has attached importance not only to the taking of oath but also to the administering of it by a person of the status of the Collector or by his nominee. It is next contended on behalf of the respondents that unless a finding is given by the State Government as contemplated under sec. 63 (1-A) of the Rajasthan Municipalities Act 1959 a member does not vacate his seat despite the fact that he fails to take oath of office for a period of three months from the date of the first meeting of the board. I am unable to accept this contention. The disqualifications which can be incurred by a member after his election or co-option are enumerated in clauses (a), (b), (c) and (d) of sec. 63 (1 ). The disqualification under clause (a) is described under sec. 63 itself. The wordings of it show that it is not automatic. The disqualification under clause (b) is contained in sec. 61 (2) of the Act, the wordings of which go to show that the disqualification is automatic. It is noteworthy that it is stated in this section that any member who fails to take oath of office within a period of 3 months from the date of the first meeting of the board shall be deemed to have vacated his seat. A distinction is drawn in the Act between vacating one's seat and vacating one's office. A member only enters upon his office as such after taking a valid oath. Till he has taken a valid oath he does not hold any office. He has merely been elected to a seat on the board. The disqualifications referred to under clause (c) of section 63 (i) are described in sections 18 and 26. None of these disqualifications is automatic. In the same way the disqualifications under clause (d) are not automatic. It is no doubt true that under section 63 (i) the State Government may hold an inquiry as to whether or not a member has failed to comply with the provisions of section 61 and if it finds that he has, it may order his removal. But sub-sec. (1-A) of sec. 63 which runs as follows: "the power conferred by sub-section (10) may be exercised by the State Government of its own motion or upon the facts otherwise, coming to the knowledge of the State Government. Provided that, until a member is removed from office by an order of the State Government under this section, he shall not vacate his office and shall subject to the provisions contained in sub-section (4), continue to act as, and to exercise all the powers and perfrom all the duties of, a member and shall as such be entitled to all the rights, and be subject to all the liabilities, of a member under this Act. " It lay down that a member shall not vacate his office unless he is removed from it by an order of the State Government. Now this sub-section is only applicable to a member who has assumed office by taking a valid oath under section 61. It cannot apply to a member who has not assumed office. There is no question of removing a member who has not taken a valid oath as required under section 61 from his office because he has not assumed any office. He automatically vacates his seat under section 61 (2) by failing to take oath within three months from the date of the first meeting of the board. The question which however arises is whether the respondents have vacated their seats under section 61 (2) in the peculiar circumstances of the case when a valid oath of office was not administered to even a single member. In my opinion there has not been a valid meeting of the Board so far and I have no doubt in my mind that the meeting referred to under section 61 (2) must be a valid meeting of the board. The legal position therefore is that the election of the Chairman and Vice-Chairman which have taken place are void and the meetings of the Board which have taken place are also void. The first meeting of the Board has not yet taken place. It will be only after a valid oath is administered to the members as provided under section 61 (1) that the Chairman and the Vice-Chairman can be elected and the meeting which will now be held for the election of the Chairman and the Vice-Chairman after administering oath to the members under section 61 (1) will be the first meeting of the board held within the meaning of section 61 (2 ). ;