- (1.) THIS writ petition is an offshoot of Civil Misc. Appeal No 6 of 1975.
(2.) THE petitioner was elected as a member of the Municipal Board, Chhappar from Ward No. 9 on 16. 9. 1974, and subsequently he was also elected as Chairman of the Board. THE non-petitioner No. 1 Ramjilal filed an election petition (No. 38/59) under Sec. 38 of the Rajasthan Municipalities Act, 1959 (which will hereinafter to be referred to as the 'act'), challenging the legality and validity of the petitioner's election. THE learned Civil Judge, Churu, who tried the election petition, set aside the petitioner's election by his order dated 16 1-1975, and further declared non-petitioner No. 1 as duly elected from Ward No. 9 Aggrieved by the order of the learned Civil Judge, the petitioner filed appeal to this Court, which has been registered as SB. Civil Misc. Appeal No. 6 of 1975 He also submitted stay application for a staying operation of the order of the learned Civil Judge. THE stay application was opposed on behalf of the non-petitioner No. 1 on the ground that the oath of office had already been administered to him as required under sec. 61 of the Act, and therefore, the stay application had become infructuous. My learned brother Jain J. , before whom the stay matter came up for disposal, passed the following order on 21st January, 1975: - "in view of the contention of Mr. Mridul (counsel for Ramjilal), it is hereby ordered that Ramjilal shall not take the oath of the office if he has not taken the oath uptil today. Further election of Chairman, Municipal Board, Chhappar shall not take place till further orders. " It is averred by the petitioner that he had contended before Jain J. that no proper and valid oath had been administered to the non-petitioner No. 1 and, therefore, the petitioner had a right to continue and work as a member and Chairman of the Municipal Board, Chhappar. 'jain J ', it is further stated by the petitioner in para No. 23 of his writ petition, "while granting time to the opposite party to file reply was pleased to observe that the proper forum to gel relief sought for in the application would be to file a separate writ petition. " This is how this writ petition came to be filed. It has been prayed that it should be declared that the petitioner still continues to be a member as also Chairman of the Municipal Board, Chhapar, and the non-petitioner No. 1 should be restrained from functioning as a member of the Board on account of his having been prohibited from taking the oath of office under the orders of this Court dated 21st January, 1975. The writ petition has been opposed by the non-petitioner No. 1 on the ground that the non-petitioner No. 1 had taken the oath of office in accordance with law after his election petition had been allowed, and he had been declared as duly elected by the Civil Judge. The case has been argued at length by learned counsel on both the sides. However, at the time of proceeding with the dictation of the judgment, I sent for the record of SB. Civil Misc. Appeal No. 6 of 1975, Jaichandlal vs. Ramjilal, pending in this Court, and found that on the stay application (Stay Application No. 9 of 1975 in S. B. Civil Misc. Appeal No. 6 of 1975) the order extracted above was passed on 21st January, 1975, and the stay application was disposed of in the terms contained in the order Thereafter the petitioner (appellant in Appeal No. 6 of 1975) filed an application dated 1. 3. 75 under Sec. 151, CPC on 3. 3. 75 praying that since Ramjilal had not been administered oath by a competent person, he may be prohibited from functioning as a member of the Board. This application was registered as 'second stay application No. 20 of 1975' and was disposed of by Jain, J. on 12. 3. 75 with the following order - "mr. S. N. Bhargava for the petitioner Mr. M. R. Calla for Mr. M. Mridul Heard learned counsel. The application dated 1. 3. 75 is dismissed. " Exactly identical prayer has been made in the present writ petition as was made in the application dated 1-3-75. In view of the facts I have stated above, there is, therefore, a serious question whether this writ petition is maintainable. It is unfortunate that the fact of filing of the aforesaid application dated 1-3-75 in Appeal No. 6 of 75 and dismissal of the same by Jain J. was not brought to my notice by any of the parties with the result, that the case was argued at length on merits. However, since this fact has come to my notice, and I have perused the record of S. B. Civil Misc. Appeal No. 6 of 1975, I called upon the learned counsel for the petitioner to explain to me how this writ petition is maintainable in view of the order by Jain J. dated 12. 3. 1975. as I do not find any such direction by Jain J. that the petitioner may file a separate writ petition. Learned counsel for the petitioner submitted that this direction was verbally given on 4 3-1975 while granting time to the opposite party to file a reply. I have noted the order sheet dated 4-3-75 also in stay application No. 20/1975 which reads as under - "mr. S. N. Bhargava for the petitioner Mr. Prem Asopa for Mr. M. Mridul Mr. Asopa prays for one week's adjournment. Put up after a week for orders as prayed. "
(3.) THERE is nothing in this order to indicate that the matter was intended to be kept open for agitation by another writ petition. Learned counsel for the petitioner further submits that this writ petition was prepared on 10. 3. 1975, and presented on 12. 3. 1975, and therefore, the order of Jain J. dated 12 3-1975 should not stand in his way. In my opinion, this argument has no substance, because, irrespective of the fact whether the present writ petition was prepared on 10-3 1975 and submitted on 12-3 1975, the fact remains that the prayer made by the petitioner by this writ petition was disallowed by Jain J. by his order dated 12th March, 1975 Again, the fact that no detailed or speaking order was passed by Jain J. , on 12th March, 1975 furnishes no ground for the petitioner to file this writ petition. This writ petition is, therefore, liable to be dismissed on this preliminary point. However, since this point was noticed by me at a late stage when I was dictating the order, and had already heard the arguments of the learned counsel for the parties on merits, I would deal with the case on merits also, though, in brief. The non-petitioner was administered oath by the Sub-Divisional Magistrate, Churu on 18th January, 1975 Learned counsel for the petitioner has urged that the Sub-Divisional Magistrate, Churu was not authorised by the Collector as his nominee for administering oath of office of the non-petitioner No. 1 as required by Section 61 of the Act, which reads as under - Sec. 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 on 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. " ;