KAN SINGH, J. - (1.) THIS writ petition under Article 226 of the Constitution has been filed by one Hanuman Bux who claims to be a resident and an elector of the village Panchayat, Palada included in the Panchayat Samiti, Kuchaman, seeking a writ in the nature of quo-warranto and for other appropriate reliefs by questioning the co-option of respondents Nos. 5 to 8 to the Panchayat Samiti, and the election of Rameshwarlal and Hanuman Bux, respondents Nos. 3 and 4 as Pradhan and Up-Pradhan of the Panchayat Samiti respectively. The case setup in the writ petition in briefly this:
(2.) A Panchayat Samiti was established by the Government in accordance with the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (hereinafter to be referred to as the Act ). The last general election of the Panchayat Samiti was held in January, 1965. It is stated that the Sar Panchas of the various village Panchayats comprised in the Panchayat Samiti and whose names are set out in para 2 of the writ petition, became ex-officio members of the Panchayat Samiti, in accordance with the provisions of the Act. Besides the Sar Panchas the member of the legislative assembly from that area also became its ex-officio member. Thereafter, according to the petitioners, the Block Development Officer, Didwana respondent No. 2 convened a special meeting of the members of the Samiti for the purpose of co-option of members. The members present at the meeting were called upon to co-opt two members from scheduled caste and two members who were women. As a result of the meeting held on 21st January, 1965, it is submitted, that respondents Nos. 5 to 8 were co-opted. After this co-option, steps were taken for the election of the Pradhan and respondent No. 3 Shri Rameshwarlal was elected as a Pradhan at the meeting held on 1st February, 1965. Thereafter election for the office of Up Pradhan was held on 7th March, 1965 and respondent No. 4 Hanuman Bux was elected as Up Pradhan of the Samiti. It is further pointed out that after the election of the Up Pradhan various standing committees of the Samiti were constituted on 30th March, 1965, from amongst the members of the Panchayat Samiti. In challenging the validity of (1) co-option of respondents Nos. 2 to 8, (2) the election of the Pradhan respondent No. 3 and (3) election of Up Pradhan, respondent No. 4, on the various grounds mentioned above, it is submitted that as before participating at the meeting held for co-option the various Sar Panchas of village Panchayats and other ex-officio members participating in the co-option had not taken the oath of office as laid down in sec. 72 of the Act, the co-option of respondents Nos. 5 to 8 stood vitiated and it has, according to the petitioner, also vitiated the election of the Pradhan and Up Pradhan held subsequently. It is further submitted that as the members of the Panchayat Samiti had not taken the oath even subsequently within the prescribed time they will be deemed to have vacated the office. Thus, it is on account of the failure of the members of the Samiti to take oath that it is claimed that neither the co-opted members nor the Pradhan or the Up Pradhan are entitled to continue in office and therefore it is prayed that they should be restrained from functioning as such. The writ petition has been opposed on behalf of the respondents. While it is not denied that no oath was taken by the members of the Panchayat Samiti before they participated at the meeting held for co-option of members it is pointed out that all the answering respondents, namely respondents Nos. 3 to 8 have taken the oath in accordance with sec. 72 of the Act, and therefore, it cannot be postulated that they have vacated the office for failure to take the requisite oath. It is submitted that respondent No. 3, the Pradhan took the oath in the presence of the Returning officer, the Block Development Officer, Didwana on 1st February, 1965 when he was elected to the office. As regards respondents Nos. 5 to 8 it is submitted that they subscribed to the oath of their office on 31st January, 1965 in the presence of the Returning Officer after they were co-opted. A regards the Up-Pradhan it is submitted that he took oath on 7th March, 1965 on his election. Then again it is submitted that Pradhan of the Panchayat Samiti is elected by an electoral college consisting of not all the members of the Panchayat Samiti but only some designated members of the Panchayat Samiti together with some other persons who are not members of the Panchayat Samiti, and therefore it cannot be said that the election is held by the members of the Panchayat Samiti. In other words, according to the respondents, there is no requirement of taking oath for electors including those who are members of the Panchayat Samiti before they could casta valid vote at the election of the Pradhan. In the alternative, it is submitted by the respondents that even if as many votes as the number of so-called members of the Panchayat Samiti, who participated at the election, are excluded, the Pradhan would still be having the majority of votes. It is averred that there were 503 voters who were not required to take oath at all and out of them 501 voted at the election. The Pradhan secured, according to the respondents, 276 votes and his nearest rival who lost to him secured only 223 votes. Therefore, even if the votes of the persons who were already members of the Panchayat Samiti, namely 46 in number, are excluded the Pradhan would still have a larger number of votes, compared to the losing candidate. It is, therefore, argued that even if there is a wrong reception of votes of members of the Panchayat Samiti it does not materially affect the result of the election of the Pradhan. Then in contesting the writ petition certain preliminary objections have also been raised. In the first instance it is submitted that the petitioner being not a member of the Panchayat Samiti cannot challenge the election of the Pradhan. In other words, it is submitted that an ordinary elector or a resident of Panchayat circle has no right to question the election of the Pradhan. Then it is pointed out that the alternative remedy of an election petition being there as provided in the Act for challenging the election the court should decline to interfere in the case in exercise of its extra ordinary jurisdiction. Then thirdly it is submitted that the petitioner has suppressed some material facts. It is pointed out that while oath of office had in fact been taken by the various respondents, the petitioner has falsely averred that no such oath was taken. Lastly it is submitted that though the relief of restraining the Panchayat Samiti and its members from functioning as such, has been sought, all the other members of the Samiti have not been impleaded; so also, according to the respondents, Panchayat Samiti which is a body corporate has not been made a party to the writ petition. I will first of all deal with the preliminary objections raised on behalf of the respondents. In inviting my attention to, Narra Lingayya Vs. Rev. Div. Officer, Narsaraopet (1) and Ramchandra Reddy vs. State of Andra Pradesh represented by the Secretary Panchayat Raj, Hyderabad (2) the learned counsel for the respondents submitted that as the petitioner has not shown that any legal right of his was violated in the election of the Pradhan, Up Pradhan or in the matter of co-option of respondents Nos. 5 to 8 he is not entitled to maintain the writ petition. I may, however, observe that these two cases do not deal with a matter relating to a writ of quo-warranto. Learned counsel himself invited my attention to a case of this court Mishrilal Vs. The State of Rajasthan (3) where a similar argument was advanced on behalf of the State in connection with certain enquiries against two members of the Municipal Board, Jalore about their having incurred a disqualification. In repelling the arguments about the infringement of any legal right of the petitioner, so as to entitle him to maintain the writ petition the then Chief Justice indelivering the judgment of the Court observed as follows: - "the residents of the various wards in a Municipal area are the electors who return the members of the Board. These elected members go to compose a Municipal Board and the Board inter alia has certain primary and secondary functions which are to be discharged by it towards the citizens residing within the limits of the Board. There are a number of duties thus cast by the Act on the Board which is its creature with corresponding legal rights in the citizens or electors and they can in appropriate cases evidently enforce those rights. As a logical corollary, whoever interferes in the performance of these duties can also be made answerable to the electors and rate-payers who have "a right to see that the Board functions in accordance with the law". A writ of quo warranto is an old judicial remedy against occupier or usurper of a substantive public office, franchise or liberty. By such a writ the usurper is called upon to show as to by what authority he is in such office franchise or liberty. If the answer that he returns is not found to be satisfactory by the court then the usurper could be ousted by an order in the nature of quo warranto. It has been held both by the English courts and the Indian courts that an application to challenge the validity of an appointment to a public office could be filed by any person even though none of his fundamental or legal rights have been infringed by such appointment. The following observations of Lord Reading, C. J. (4 ). may usefully be quoted: - "an information in the nature of quo warranto will lie at the instance of a private elector against a member of the Privy Council whose appointment is alleged to be invalid. " "it cannot be doubted that the application concerns public Government and there is no ground for impugning the motives of the relator. A stranger to the suit can obtain prohibition See Board vs. Perkins, (1890), 21 Q. B. D. 533 and I see no reason why he should not, in a proper case, obtain an information of quo warranto. " In Vishwanath and another vs. The State and others (5) the question that was canvassed was whether the member of a Municipal Board could question an order of the Government about vacation of seats by certain other members on account of their incurring a disqualification, though the legal right of the petitioning member was not involved. It was held by this Court that the members of the Municipal Board have certainly the right to see that no one who has become disqualified on account of any reason sits as a member of the Board. In. G. N. Ghannamalla Setty and others vs. Returning Officer and Amidar and others (6) the Mysore High Court observed that any person though not personally interested in the result of elections can apply for a writ of quo warranto. Of course, there may be cases where the title of a person holding a particular office may depend upon the validity of the election as a result of which the person whose right to hold the office is in question was returned. In a case where the Court finds that the person who is seeking to unseat another by challenging the election and who, therefore, wants to invoke the jurisdiction of the Court under Article 226 of the Constitution is short circuiting the normal processes by which the election has to be questioned the Court may decline to exercise its discretionary powers under Article 226. Quo warranto is not a writ of right as such but it is always a matter of discretion and where the Court finds that the petitioner is not acting bonafide it may refuse to exercise its discretion. All the same it cannot be postulated that a person who has no legal right in himself cannot maintain a petition under Art. 226. It is beyond question that this requirement about the infringement of the legal right of the person concerned will be insisted upon in dealing with a writ petition about mandamus or for an allied relief. So far as writs of quo warranto are concerned the position, to my mind, admits of no doubt that even a person who may not be claiming any legal right in himself will be entitled to file a petition for the relief in the nature of quo warranto. I, therefore, overrule this preliminary objection. Turning now to the second preliminary objection it is sufficient to say that the petitioner has no right to question the validity of the election by filing an election petition under the Act. Therefore, the alternative remedy being available to the present petitioner he is not disentitled from seeking the aid of this court. Coming now to the third preliminary objection, it is true that the petitioners have made mis-statement in the writ petition when they proceeded to aver that the respondents Nos. 5 to 8 or for that matter the respondents Nos. 3 and 4 had not taken at all the oath of their office at any time after the commencement of the term of their office. This, however, will not relieve me, in the circumstances of this case, from dealing with the question of the validity of co-option of respondents Nos. 5 to 8 or the validity of the election of respondents Nos. 3 and 4 because they are obviously holding public offices. Even if this petition is thrown out on account of the technical ground of some mis-statement having been made by the petitioner, any other person from that constituency can very well approach the Court again and the same ground may have to be covered over. Since the matter has already been heard at length I do not think that it will be a right course now to throw out the present writ petition merely because it involves certain misstatements about the question of some of the respondents vacating office on account of failure on their part to take the requisite oath. Similarly I do not find much force in the last preliminary objection that the petitioners cannot be allowed to agitate the matter as all the members of the Panchayat Samiti have not been impleaded. In the course of the arguments learned counsel for the petitioner trimmed his relief down to a prayer for restraining only the present answering respondents from functioning either as members of the Panchayat Samiti or as Pradhan or Up Pradhan respectively. I may now deal with the merits of the case. It will be seen from the above narration of the respective cases of the parties that the principal question involved is about a proper interpretation of sec. 72 of the Act and its applicability to the various stages in the process of formation of the Panchayat Samiti. I may read sec. 72; 72. Oath of allegiance to be taken by the members - (1) Every member of a Panchayat Samiti and 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 - (1) I. . . . . . . . . . . . , having become a member of the Panchayat Samiti Zila Parishad. . . . . . . . swear in the name of God and solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold "the sovereignty and integrity of India 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. (!) 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 secs. 11 and 12 or in secs. 44 and 55, 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 section. (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. (ii) Provided that if it is made to appear to the State Government that the Pradhan or the Pramukh as the case may be does not administer the oath or affirmation to any member as provided in this sub-section the State Government may direct that such member shall take the oath or affimation before the collector. " Sub Sec. (1) of this section lays down that every membr of a Panchayat Samiti shall, before taking his seat make, at a meeting of the Panchayat, Samiti, an oath or affirmation of his allegiance to the Constitution of India in the manner laid down in the section. This sub section therefore, clearly contemplates that the oath is required to be taken at the final stage in the process when the Panchayat Samiti is duly formed and this oath is further required to be taken at a meeting of the Panchayat Samiti and the member has to subscribe to the oath before taking his seat. The meeting contemplated here is one prior to the taking of the oath by the members and therefore the expression 'meeting' herein will connote the coming together of the members at one place at one time. It is only thereafter when there is already a congregation of the members of the Panchayat Samiti that the member has to take the oath of his office. The expression 'to take his seat', to my mind, means participating at the meeting as a member. Sub sec. (2) contains the legal consequence of the failure of a member to take oath of his office. If this is not done within three months from the date of the commencement of his office or at one of the first three meetings held after the date of commencement, whichever is later then the member shall, ipso facto, cease to hold his office and the seat shall be deemed to have fallen vacant. Sub sec. (3), to my mind, contains a provision for disqualification of a member who has not taken the oath of office in terms of sub sec. (1 ). This is a consequence which is in the very nature of things prior to ensuing of the consequences enacted in sub sec. (2), and the member is to be precluded from taking his seat at a meeting of the Panchayat Samiti or doing any act as such member, unless he has taken the requisite oath. Sub sec. (4) enjoins that the oath of office shall be taken at the meeting referred to in sec. 11 or 12, and I will presently refer to the provisions of these sections at the appropriate place. Sub sec. (4) against to my mind, contains a clear mandate that even earlier to the completion of the process of formation of the Panchayat Samiti the member is required to take his oath for participating in the intermediate meetings contemplated in sec. 11 and 12 of the Act though properly speaking, these meetings are not meetings of the Panchayat Samiti as such, which is still in the process of its formation. Reading all these sub sections together harmoniously one is led to the inference that whereas sub-section (1) of sec. 72 enacts that a member shall take oath at a meeting of the Panchayat samiti before taking his seat, sub sec. (4) thereof places the meetings held under sec. 11 or 12 at par with the meetings of the Panchayat samiti itself. It has not been questioned by the learned counsel for the respondents that the provision regarding taking of the oath is mandatory. It has been held by a learned Judge of this Court in Laxmi Narain vs. Pratapsingh and others (7) 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. The provision regarding the taking of oath was held by him to be mandatory. Now for laying down the view the learned Judge relied on the earlier cases of this court reported as ILR (1961) 11 Rajasthan 1214. ILR (1963) 13 Rajasthan 166 and ILR (1962) 12 Rajasthan 944. I am in respectful agreement with this view. I have now to see how this requirement about the taking of oath becomes applicable at the various stages in the formation of the Panchayat samiti. Sec. 11 relates to a meeting of certain members of the Panchayat samiti for the purposes of co-opting members. Before I come to deal with the holding of a meeting in accordance with sec. 11 of the Act it will be convenient to refer to the composition of the Panchayat Samiti. Sec. 8 of the Act provides for various classes of members of the Panchayat Samiti. One such class is that of ex-officio members. Ex-officio members are: (1) Sar Panchas of all Panchas of all Panchayats in the block (2) members of the legislative Assembly of the State elected from the area within the jurisdiction of the Panchayat samiti and (3) the Sub Divisional officer in whose jurisdiction the block is situate. From amongst the ex-officio members only the members of the first two categories are entitled to participate at the co-option of members under sec. 11 of the Act. Then, there are elected members and they arc elected in the prescribed manner by the Presidents of all the Gram Sabhas in that Block from amongst themselves. The number of the elected members in to be determined by the Collector in accordance with the formula laid down in sub sec. (3) (a) of sec. 8 of the Act. Then there are the co-opted members to be co-opted in the manner laid down in sec. 11 of the Act ). Then, lastly sec. 8 speaks of associate members who are specified in sec. 10 of the Act. The elected members are entitled to participate in the co-option of members under sec. 11 but the associate members are not so entitled. There is one more category of membership and that is, an additional member and it is the Pradhan who becomes an additional member of the Panchayat after his election if he is not already a member thereof. Now sec. 11 may be reproduced at this stage: - "11. Special meeting for co-option of members: (1) The Collector shall, on a date previously to be appointed for the constitution of a Panchayat Samiti under sec. 7 or subject to the provisions of sec. (4) of sec. 7, on every occasion when the Panchayat Samiti is reconstituted, convene at the office of the Panchayat Samiti, at the appointed time a special meeting of the members of the Panchayat Samiti specified in (clauses (i) (ii) (iii)-a. of sub-sec. (1) of sec. 8 after giving them a notice in writing of not less than seven clear days of such meeting for the co-option of the members specified in sub-sec. (2) of sec 8. (2) The Collector himself or the Additional Collector or any other sub-ordinate gazetted officer authorised in this behalf by the collector shall preside at such meeting. (3) If for want of the necessary quorum or for any other sufficient reasons the members of the Panchayat Samiti referred to in sub-sec. (1) fail to co-opt members specified in sub-sec. (2) of sec. 8, the Collector himself or the Additional Collector, or any other sub-ordinate Gazetted Officer, authorised in this behalf by the Collector, presiding over the meeting shall adjourn the same to another date not less than seven days after the date appointed under section sub-sec. (i), and the presence of the necessary quorum shall" not be required at such adjourned meeting. (4) A notice of the date fixed for the adjourned meeting shall be affixed on the notice board of the office of the Panchayat Samiti and shall be despatched by post under a certificate of posting individually to the members specified in Clauses (i) (ii) and (iii-a) of sub-sec. (1) of sec. 8 immediately after the adjournment of the previous meeting under sub-sec. (3) and upon such despatch the notice shall be regarded as having been served on the members within the ordinary course of the post. (5) The Collector himself or the Additional Collector or any other sub-ordinate gazetted officer authorised in this behalf by the Collector shall preside at such adjourned meeting also and, if at such adjourned meeting the members of the Panchayat Samiti specified in clause (i) (ii) and (iii-a) of sub-sec. (1) of section 8 fail to co-opt any of the members specified in sub sec. 2 of that section, the State Government shall nominate such member or members and every member so nominated shall be deemed to have been duly co-opted. " Sec. 11 speaks of meetings where the members of the Panchayat Samiti who are to participate in the co-option of members have to get together. Such a meeting is certainly a meeting that is referred to in sub section (4) of sec. 72 of the Act. As already observed above the members participating at the meeting for co-option are required to take the oath as provided in sec. 72 of the Act and without that meeting cannot validly co-opt the members. Since it is not disputed by the respondents that no such oath was taken by the members of the Samiti before they participated at the meeting convened on 21st January, 1964 for the purposes of co-option, no doubt is left in my mind that the respondents Nos. 5 to 8 cannot be held to be validly co-opted as members of the Panchayat Samiti in accordance with the provisions of the Act. It remains to be considered as to how this invalidity in the co-option of respondents Nos. 5 to 8 will affect the process of election resulting in the return of respondent No. 3 as a Pradhan of the Samiti and I propose to deal with the relevant provisions of the Act. Before I do that I may, however, briefly refer to the general scheme of the Act dealing with the formation of the Panchayat Samiti. A Panchayat Samiti is elected indirectly. In other words, it is not elected by a direct vote from the voters in that area. The primary bodies that are constituted as a result of a direct vote are the village Panchayats and it is the Sar Panchas of these village Panchayats who form the bulk of the members of the Panchayat Samiti. Sar Panchas become members of the Panchayat Samiti ex-officio i. e. by virtue of their holding office of Sar Panchas. Then, there is a provision for co-option of members. The co-option is provided to give representation to two specified classes of citizens who may not be able to secure any position in the Panchayat Samiti otherwise. If they otherwise become members of the Panchayat Samiti then there is no necessity for co-option. Such two classes are; (1) the members of the scheduled castes and schedule tribes and (2) women. Therefore, the importance of co-option in the entire process of election has to be appreciated in this background. The idea of co-option, to my mind, is only to give representation to this two classes of citizens. Otherwise co-option has no other significance. Now, in order to provide a wider base to the election of Pradhan all the members of the Panchayat Samiti along with certain other persons who are members of the Panchayat Samiti ex-officio and the members of the Legislative Assembly of the area are made to constitute an electoral college which returns the Pradhan in accordance with the procedure laid down in the Act and the Rules framed thereunder. Therefore, Sarpanchas of the Village Panchayats who are undoubtedly members of the Panchayats village participate in the membership of the electoral college in a dual capacity. They will be entitled to be members of the electoral college by virtue of their being members of the village Panchayats, and besides that they will also be entitled to be the members of that electroal college by virtue of their being ex-officio members of the Panchayat Samiti. I have adverted to this aspect of the matter in connection with the question of taking oath before the Sar Panchas could participate at the election of the Pradhan. Now sec. 12 which deals with the question of the election of Pardhan may be reproduced here - 12. Election and term of office of Pradhan and Up-Pradhan of a Panchayat Samiti and filling up of vacancies - (1) Every Panchayat Samiti shall have - (a) A Pradhan who shall be elected by - 1. the members of the Panchayat Samiti specified in cls. (i), (ii) and (iv) of sub-sec. (1) of sec. 8. 2. all members of the Panchayats in the block, specified in cls. (b) and (c) of sub-sec. (1) of sec. 4 of the Rajasthan Panchayat Act, 1953 (Rajasthan Act 21 of 1953, and 3. Presidents of all the Gram Sabhas in the block. Provided that no person shall be eligible to be elected as Pradhan unless he is a voter of any Panchayat or a member of any Gram Sabha established under sec. 8 of the Rajasthan Gramdan Act, 1960 (Rajasthan Act 3 of 1960) in and a resident of, the block and is able to read and write Hindi; Provided further that no person shall be entitled to be elected or to continue as Pradhan if he is or becomes a member of the State Legislature or Parliament. Provided also that election to the office of a Pradhan or Up Pradhan may be held notwithstanding the failure of any Panchayat or Panchayat Samiti to co-opt any member at the first meeting convened for such co-option (or any vacancy in the office of any member specified in cls. (iii-a) of sub-sec. (1) of sec. 8) and any election so held shall be valid notwithstanding such vacancies; (b) an Up-Pradhan, who shall be elected by the members of the Panchayat Samiti other than those specified in cls. (iii) and (v) of sub-sec. (1) of sec. 8 from amongst the members specified in cls. (i) and (iv) of sub-sec. (1) of the said section. (1-A) A Pradhan shall, unless he is already a member, be an additional member of the Panchayat Samiti and shall in all respects and for all purposes, be deemed to be ex-officio member of the Panchayat Samiti specified in cl. (i) of sub-sec. (1) of sec. 8. (2) As soon as may be after the co-option of members mentioned in sub-sec. 8, and as often as the office of the Pradhan becomes vacant election to the office of the Pradhan shall be conducted in the prescribed manner. (3) As soon as may be after the election of the Pradhan and as often as the office of the Up Pradhan becomes vacant, a meeting for electing the Up Pradhan shall be convened by the Pradhan in the prescribed manner. (4) Every election under sub-sec. (2) or sub-sec. (3) shall be by secret ballot. (5) If the Up Sarpanch of a Panchayat is elected as the Pradhan of a Panchayat Samiti he shall, on and from the date of his election as such, cease to be, and vacate the office of, the Up Sarpanch of the Panchayat but such cessation shall not affect in any way his election as such Pradhan and he shall continue to hold the office of Pradhan as though he had been "duly elected thereto as an additional member of the Panchayat Samiti. " (5-A) If the Sarpanch of Panchayat is elected as the Pradhan of a Panchayat Samiti. (i) he shall, on and from the date of his election as such Pradhan, nominally continue to be the Sarpanch of that Panchayat for so long as he would have but for such election held the office of such Sarpanch. (ii) he shall hand over charge of all papers and properties pertaining to his office as Sarpanch, as provided in sec. 15-A of the Rajasthan Panchayat Act, 1953 (Rajasthan Act 21 of 1953), to the Up Sarpanch of the Panchayat who shall thereafter act, during that period, as Sarpanch for all practical purposes and represent the Panchayat on the Panchayat Samiti concerned as a member of the latter. (iii) during that period he shall neither have any hand in the administration of the affairs of that Panchayat nor participate in the meetings thereof. (iv) fresh elections to the office of the Sarpanch of that Panchayat shall not be held during the said period, and (v) if during that period he vacates the office of the Pradhan upon removal or otherwise he will resume charge of the office of the Sarpanch and shall as such replace the Up-Sarpanch as a representative of the Panchayat on the Panchayat Samiti. (vi) Save as otherwise provided in this Act, the terms of office of every Pradhan or Up-Pradhan shall be co-extensive with the term of the Panchayat Samiti of which be is elected Pradhan 'or Up-Pradhan, as the case may be. (vii) When a vacancy occurs in the office of the Pradhan or the Up-Pradhan before the expiration of the term thereof, the person elected as Pradhan or Up-Pradhan in that vacancy shall hold office for the residue of the term of his predecessor. " Sec. 12 lays down in unmistakable terms that every Panchayat Samiti shall have a Pradhan and amongst others he will be elected by the members of the Panchayat Samiti as specified in clauses (1 ). , (ii) and (iv) of sub-sec. (1) of sec. 8 and all members of the Panchayats in that block. Then, the implications of the third proviso to sub-sec. (1) of sec. 12 have also to be appreciated. It will be necessary to do so in order to assess the possible effect of certain members being not properly co-opted. , prior to the holding of the election of the Pradhan. The question that pointedly rises for examination in the light of the plain language of this proviso is whether it can be said in the circumstances, that there was a failure on the part of the members of the Panchayat Samiti to co-opt at the first meeting convened for such a co-option, so that failure may not stand in the way of holding the election of the Pradhan. If we look to the scheme of sec. 72 we find that the duty is clearly cast on a member to take the oath, and if he fails to do so, then he comes to suffer from a temporary disqualification in that, he is not eligible to participate at the meetings of the Panchayat Samiti. , or to otherwise act as a member of such a Panchayat Samiti. The temporary disqualification from which a member suffers on account of his failure to take the oath will be removed the moment he takes the oath. But this he could do only within the prescribed period. If, however, he sleeps over his obligations for the entire period that has been prescribed then he becomes completely disqualified and no longer remains a member of the Panchayat Samiti and his seat shall be deemed to have fallen vacant on that score. Thus, there are these two so called sanctions to enforce compliance with the requirement of the taking of oath by members. The first one, as I have observed, is that of incurring of temporary disqualification and the second one is the ultimate sanction which would result in the vacation of the office by the member. No corresponding obligation has been cast on any particular officer or functionary of the State to take the initiative to administer oath to a member, though opportunity is provided by law to the member to take the oath before certain officers or functionaries. In a situation where the members do not care to take the oath before they participate at a meeting for co-option under sec. 11 of the Act and then if as a result of the want of oath on their part the proceedings do not result in a valid co-option it is, to my mind, a case of failure of the members of the Panchayat Committee to co-opt the members at the first meeting convened for the purpose and the third proviso to sub-sec. (1) of sec. 12 will remedy the situation, and the process of the election of the Pradhan can be gone through not-withstanding that there had been no co-option prior to that. Now, sec. 12 of the Act provides that the election of the Pradhan has to be held in the prescribed manner i. e. as laid down in the Rajasthan Panchayat Samitis and Zila Parishads (Election of Pradhan and Pramukh) Rules 1964 (hereinafter to be referred to as the Rules ). In accordance with rule 3 the Government has to appoint a date for the election of the Pradhan. Under rule 4 public notice of election has to be given. Then, there is to be nomination of the candidates in accordance with rule 5 of the Rules. Then, nominations are presented in accordance with rule 5 of these Rules. After nomination papers are scrutinised and after the period for withdrawal of candidates is over, if it is found that there is only one candidate in the field, he is declared elected. However, if there are more than one contestants for the office of the Pradhan then there is a procedure to take the poll and the allotment of symbols and a ballot is to be filled in accordance with the manner laid down in the Rules. With all the remaining provisions of the Rules we are not concerned at the moment. A perusal of all these relevant provisions, however, leads me to one important thing and it is this that for the election of the Pradhan there is not required to be any meeting of the members of the Panchayats or for that matter the members of the general body which is to vote for the election of the Pradhan. This shows that sec. 72 (4) will not apply to such an election by the electoral college. A perusal of sec. 12 leaves no doubt in my mind that no meeting is required unlike the meeting contemplated for co-option under sec. 11 of the Act. However, one point that was canvassed by the petitioners remains to be considered. It was argued that the ex-officio members of the Panchayat Samiti are certainly acting as member of the Panchayat Samiti when they are exercising the right of vote and according to them sub-sec. (3) of sec. 72 will stand as bar against a member of the Panchayat samiti exercising his right of vote. This position on the other hand is contested by the learned counsel for the respondents. As I have already observed the electoral college for the election of the Pradhan comprises all the members of village Pachayats in that area. The right to vote of Sar Panches of that area arises on account of such Sar Panches being members of the Panchayat, as also they being ex-officio members of the Panchayat Samiti. This aspect of the matter has exercised me good deal and one does not find it easy to perform dichotomy of the two capacities in which a Sar Panch of a village Panchayat is entitled to cast his vote at the election of a Pradhan. However, it is to be remembered that the legislature has not thought it necessary to prescribe any oath for members of the village Panchayats participating at the election as such. Sar Panches of such village Panchayats who become ex-officio members of the Panchayat Samiti constitute a small fraction of the total electorate that is to take ' part in the election of the Pradhan. It do not see any valid reason for insisting on a requirement of oath-taking for Sar Panches only, unless this view is forced on me by the clear language of the statute. All that sub-section 3 of Section 72 of the Act, to my mind, contemplates is that the members should not be entitled to act as member of the Panchayat Samiti as such. This does not stand in the way of his acting as a member of the general body which constitutes the electoral college for the election of the Pradhan. But for sub-section 4 of Section 72 of the Act, if only the other 3 preceding sub-sections were to be construed there would have been good basis for coming to the conclusion that the member is prevented from acting as such member after the Panchayat Samiti comes into being when he is required to function as a member. All in all therefore, I am of the opinion that it is not necessary for the Sar Panches of the village Panchayats, though they are ex-officio members of the Panchayat Samiti, to take the oath before they participate at the election of the Pradhan. That being so, I do not find any force in the contention that the election of Pradhan respondent No. 3 is not vitiated because some of the members of the general body contemplated under section 12 of the Act had not taken oath. Turning now to the matter relating to the election of respondent No. 4 as Up Pradhan,, Section 12 clearly contemplates that there shall be meeting of the members of the Panchayat Samiti referred to therein for the election of the Up-Pradhan. Section 72 (4) will therefore clearly apply to a meeting held for the purpose of election of the Up Pradhan. It is not disputed by the respondents that no oath was taken by the members participating at the meeting for the election of the Pradhan. Thus. , the election of the Up Pradhan suffers from this infirmity which, to my mind, renders his election invalid. As observed by me earlier, it was asserted by the respondents that after they were elected to their respective offices they had taken the requisite oath. At the request of both the learned counsel I called for the papers about the oath from the office of the Collector. Since the co-option of respondents Nos. 5 to 8 was itself invalid it will be hardly material to see whether they had or had not taken any oath of their office. The same thing applies to respondent No. 4 the UP. Pradhan. We are now left with the oath said to have been taken by the Pradhan respondent No. 3 after he had been returned. The oath that was taken by the Pradhan after he was elected and which was called for from the office of the Collector as mentioned above was perused by both the learned counsel in my presence. It appeared that the form bore the caption "rule 62 of the Rajas-than Panchayat Samiti and Zila Parishads (Election of Pradhan and Pramukh) Rules, 1964. Then in the body of the document embodying the oath it was mentioned that the person concerned was subscribing to oath as a Pradhan of the Panchayat Samiti and the words "sar Panch-member" etc. were scored out. It is contended by the learned counsel for the petitioners that this is not an oath which can be said to have been taken by the respondent No. 3 as a member of the Panchayat Samiti as required by section 72 of the Act. It is submitted that there is no requirement of oath taking by the Pradhan as such. The oath is required to be taken it terms of section 72 of the Act by the members of the Panchayat Samiti as members thereof. The learned counsel for the respondents disputes this proposition and submits that as the Pradhan soon after his election becomes an additional member of the Panchayat Samiti the oath taken by him as an additional member of the Panchayat Samiti. Sub section 12 (l-a) has already been reproduced while producing section 12 of the Act in its entirety and it clearly lays down that a Pradhan shall be an additional member of the Panchayat Samiti, unless he is already a member thereof, and further he shall be deemed to be an ex-officio member of the Panchayat Samiti as contemplated by section 8 of the Act. It is common ground between the parties that the Pradhan was a Sar Panch of village Panchayat Falada prior to his election as Pradhan of the Panchayat Samiti. This shows that the he was already a member of the Samiti and therefore the terms of section 12 (l-a) along will not clothe him with a character of an additional member because this provision is not obviously attracted where a Pradhan is already a member of the Panchayat Samiti. It is therefore, argued that since there is no provision for the Pradhan being an additional member in the circumstances, he shall be required to take an oath under sec. 72 of the Act for his being a member of the Panchayat Samiti. Once he has failed to take the path as member, though he was an ex-officio member of the Panchayat Samiti he will be debarred from acting as such member. The question, however, falling for decision is whether the disqualification attached to respondent No. 3 from acting as a member of the Panchayat Samiti will ipso facto result in his ceasing to be a Pradhan of the Samiti. As already observed no oath is required to be taken by a Pradhan under any provision of the statute nor has any such provision been brought |to my notice. Therefore even though the Pradhan may be disqualified from functioning as a member of the Panchayat Samiti for want of a valid oath under sec. 72 of the Act I do not think in the absence of any clear provision in the law he will have to vacate his office as Pradhan merely because he has not subscribed to the oath under sec. 72 of the Act. The oath that has been produced by the office of the Collector, Nagour does not reveal that he had taken the oath as a member of the Panchayat Samiti. This oath he could have taken within a period of three months, from the date of the commencement of the tenure of the Pradhan, that is, from 8th February, 1965 or upto the third meeting of the Panchayat Samiti, whichever was later. The learned counsel for both the parties took time while the case was being argued to find out as to how many meetings of the Panchayat Samiti had been held in the meanwhile. It is the admitted case of both the parties now that more than three meetings had already taken place so far. In the circumstances there is no escape from the conclusion that respondent No. 3 has ceased to be an ex-officio member of the Panchayat Samiti as such. His seat as ex-officio member in that capacity shall be deemed to have been vacated. There is, however, a newly substituted sec. 9 which provides that Pradhan of a Panchayat Samiti shall be an additional member of the Panchayat Samiti. This may be so but the status that he enjoyed as a member of a Panchayat Samiti by his being an ex-officio member thereof under Sec. 8 of the Act has come to an end. All the same as I have observed above, there is no requirement of oath taking by a Pradhan and merely because he has not taken the oath as a member he cannot be deemed to have vacated the office as Pradhan.
(3.) THE last question that now remains for consideration is whether the Pra-dhan can function as a Pradhan before all the component parts going to constitute the Panchayat Samiti in the first instance have been brought into existence. THE co-opted members of the Panchayat Samiti respondents Nos. 5 to 8 have not been validly co-opted as already held and are, therefore, no longer entitled to remain in office. THE formation of the Panchayat Samiti was, thus, obviously not complete. THEre is, however, sec. 70 A of the Act which has to be considered. It runs as follows: - "70-A. Procedure upon declaration of cooption as invalid - Whenever any co-option of members u/sec. 11 or under sec. 44 shall be declared by competent authority to be invalid, then, notwithstanding anything contained in any provision of this Act, such declaration shall be deemed to have caused a vacancy in the Panchayat Samiti or the Zila Parishad, as the case may be, irrespective of whether the co-option of all or a few only of the members thereof have been so declared as invalid, and such vacancy shall be filled up - (a) In the case of a Panchayat Samiti, in accordance with section 18, and (b) in the case of a Zila Parishad, in accordance with clause (iv) of sub-sec. (2) of sec. 46". It provides that whenever the co-option of any member under sec. 11 has been declared to be invalid by a competent authority then notwithstanding anything contained in the provisions of this Act such declaration will be deemed to have caused a vacancy in the Panchayat Samiti or the Zila Parishad, as the case may be, irrespective of the fact whether co-option only of the members has been so declared invalid and as such vacancy shall be filled up in the case of a Panchayat Samiti in accordance with sec. 18. Now if one turns to sec. 18 one finds that this shall be deemed to be a casual vacancy to be filled up and the only co-opted members shall hold office for the remainder of the term. This leads me to think that the invalidity of the co-option has not been intended by the legislature to operate as leaving the formation of the Panchayat Samiti incomplete at the outset so as to disentitle it from functioning merely because the co-option has subsequently been declared to be invalid. This view is further confirmed if one considers the importance of co-option of the Panchayat Samiti. As already observed by me this is designed to give representation to two classes of citizens when they have not been able to get themselves returned as members of the Panchayat Samiti by the normal process. In the circumstances there is no warrant for holding that the respondent No. 3 the Pradhan will not be entitled to function as a Pradhan as such. The result of the above discussion is that I partly allow this writ petition and declare the co-option of respondents No. 5 to 8 to the Panchayat Samiti as also the election of Up Pradhan respondent No. 4 to be null and void and forbid them from functioning as such members or Up Pradhan of the Panchayat Samiti. I also hereby declare that respondent No. 3 the Pradhan shall not be competent to function as a member of the Panchayat Samiti in his capacity as Sar Panch though he will be entitled to do so as an additional member of the Panchayat Samiti being the Pradhan. The Collector, Nagour shall take steps as soon as possible to have a proper co-option to fill up the vacancies of respondents Nos. 5 to 8 in accordance with the law. In the circumstances of the case the parties are left to bear their own costs. . ;