- (1.) THIS is an applicaion by Vishwanath and Mahavir Prasad under Article 226 of the Constitution for a writ, direction or order in the nature of quo warranto. The State of Rajasthan, the Secretary to the Government Local Self-Government Department, and Director of Local Bodies have been made parties to it along with Sheo Bhagwan and Chuniram whose membership of the Municipal Board of Bhadra (hereinafter called the Board) in district Ganganagar is being challenged.
(2.) THE applicants' case is this. Elections to the Board took place in April 1955, and the applicants as well as Sheo Bhagwan were elected. Later in June, 1955, Chuniram was nominated a member of the Board by Government. THE names of the members of the Board were duly published. In July, 1955, election to the office of the chairman of the Board was held, and one Jhamanlal was duly elected as chairman. THEre was an election petition with respect to this election of the chairman, and therefore the Government did not publish the name of the chairman in the gazette till the 20th of March, 1956; but the fact of the election of the chairman was well-known and meetings of the Board were duly held from August, 1955. THEse meetings were attended by the members including Sheo Bhagwan and Chuniram, and these two did not raise any objection to the validity of the election of the chairman. Later Sheo Bhagwan absented himself from the meetings of the Board from 22nd of October, 1955 to 2nd of March, 1956, without any leave being sanctioned by the Board. Consequently he became disqualified under Section 12 (3) (c) of the Rajasthan Town Municipalities Act (No. XXIII) of 1951 (hereinafter called the Act) from continuing as a member of the Board. THE Chairman thereupon asked the Director of Local Bodies to pass orders declaring the seat vacant. Chuniram also absented himself from the meetings of the Board in December, 1955, and January, February and March, 1956, without taking any leave from the Board, and therefore he also became disqualified under Section 12 (3) (c) of the Act from continuing to be a member. THE Chairman wrote this time to the Secretary Local Self-Government, and requested that his seat might also be declared vacant. THE Chairman was however informed by the Government that his own election as chairman had not been published in the gazette till the 20th of March 1956, and as such the meetings held before that date were null and void, and therefore Sheo Bhagwan and Chuniram's seats in the Board could not be declared vacant. THE Chairman, however, did not accept this interpretation of the Government, and requested them to review their order. THEreupon, the Chairman was informed on the 5th of July, 1956, that the Chairman was wrong in stopping Sheo Bhagwan and Chuniram from functioning as members of the Board. THE Chairman was also asked to explain his conduct. THEreafter, the present petition was made in this Court on the 12th of July, 1956. THE contention of the applicants is that the publication of the name of the Chairman in the gazette as required by Section 22, Sub-section (14) of the Act is merely directory, and that the Chairman had a right to function immediately after his election, and that Rule 13 of thp Rules framed by Government for election of Chairman and for the matter of that of Vice Chairman also (hereinafter called the Rules) goes far beyond Section 22 (14) of the Act, and therefore is ultra vires of the rule making powers. Consequently, it is urged that the meetings of the Board held by the Chairman after his election could not be null and void, and Sheo Bhagwan and Chuniram incurred disqualification under Section 12 (3) (c) of the Act as they did not attend for four consecutive months. THE application has been opposed by Sheo Bhagwan and Chuniram. It is not necessary to set out in detail their replies to the application. It is enough to say that they support the stand taken in the Government's letter that the chairman could nob hold any meetings till his name was notified in the gazette on the 20th of March, 1956. It has also been contended on their behalf that a stay order was passed by the Government under Rule 13 of the Rules and for that reason also the Chairman could not hold any meetings up to the-20th March, 1956. Therefore, even if any meetings were held before the 20th of March, 1956, they were invalid meetings, and the absence of these persons from these meetings did not disqualify them from membership of the Board. Chuniram has also said that he was not in formed of any meetings, but it is enough to say that this objection never seems to have been taken before as otherwise the Government's decision under Section 12 (5) of the Act would have taken notice of on this objection, and it is a mere device to raise a question of fact when there is no question of fact really in dispute in this case. It was also urged that the applicants had no right to make this application. The points, therefore, that require determination in this case are these : (1) Have the applicants any right to maintain this application? (2) Were the meetings of the Board held before the 20th of March, 1956, invalid because of any stay order of the Government, and therefore the applicant did not incur- any disqualification for not attending meetings for four months consecutively? (3) Were the meetings held by the Chairman before the 20th of March, 1956, invalid because his name was not published before that date in the gazette, and therefore Sheo Bhagwan and Chuniram did not incur any disqualification for not attending meetings for four months consecutively? (4) Is Rule 13 of the Rules ultra vires of the rule making power inasmuch as it goes beyond the provisions of Section 22 (14) of the Act? Point No. 1. The first point may be briefly disposed of. The applicants want a relief in the nature of quo warranto inasmuch as the Government by their order under Section 12 (5) of the Act have said that the seats of Sheo Bhagwan and Chuniram have not become vacant. The applicants are members of the municipal Board, and have certainly the right to see that no one sits as a member of Board who has become disqualified for any reason. As a matter of fact, such an application for writ of quo warranto can be filed even by a voter because a voter is interested to see that those members alone sit in the Board who are not in any way disqualified under the law. The applicants, therefore, have a right to maintain this application. The fact that they are also challenging the election of the chairman by another writ application will not take away their right, for even if the chairman is unseated the meetings held by him would be perfectly legal in view of Section 35 of the Act, subject of course to what we shall say later about Rule 13 of the rules. Point No. 2. We now come to the second Point namely that there was a stay order by Government under Rule 13 "of the Rules restraining Jhamanlal from working as chairman of the Board. It is enough to say that no such stay order is forthcoming, Reliance in this connection was placed on the order of the Government dated the 20th March, 1956, whereby the election petition against the chairman was dismissed. In that order these words certainly appear - " And whereas stay order was passed by Government under Rule 13 of the Town Municipal Boards Chairman Elections Rules. . . . " These words do not mean that there was a stay order restraining the chairman from acting. They may very well mean, as submitted by the Deputy Government Advocate, that there was some sort of an order by Government staying publication of the chairman's name in the gazette. But that would not, in our opinion, result in restraining the chairman from acting as such as we shall show later when we consider Rule 13 of the Rules. Further it is remarkable that there is no provision under Rule 13, even assuming it to be valid, which gives power to Government to pass a stay order restraining the chairman from acting as such. We are therefore of opinion that there was neither a stay order of the kind alleged by Sheo Bhagwan and Chuniram, nor can such a stay order be passed under Rule 13. There is, therefore, no force in the contention that Sheo Bhagwan and Chuniram had not been disqualified because of any stay order. Points Nos. 3 and 4. We shall take the 3rd and 4th points together. The question raised in this connection is whether a notification in the gazette is necessary before a chairman of a municipal Board can assume office as such. The contention on behalf of the applicants is that the Act does not envisage publication in the gazette as an indispensable necessity before the chairman of a Board can assume office, and that Rule 13 of the Rules in so far as it goes beyond the Act, and make a provision that the name of the chairman must be published before he can assume office is ultra vires of the Act. Section 22 of the Act deals with the election of chairman and vice-chairman of a Board, Sub-section (2) of that section provides that the election shall be held in accordance with the rules made by the Government in that behalf by the members of the municipal board from amongst themselves. Publication is provided in Sub-section (14) which runs as follows - " The names of all chairmen or vice-chairmen elected or nominated in accordance with the provisions of this section shall be published, as soon as conveniently may be, in the Rajasthan Gazette. " Considering the words of this sub-section, it is obvious that the sub-section is merely directory, and publication is envisaged in the gazette for purposes of information of the public. If it was the Intention of the legislature that no chairman or Vice-chairman shall assume office until his name was published in the gazette, there was no reason Why the legislature should not have said so in Sub-section (14) when a specific provision was being made by it with respect to publication. Learned counsel for the opposite parties were also not able to urge before us that the words used in Sub-section (14) make it a mandatory provision, and no chairman or vice-chairman can take office until publication takes place. The conclusion, therefore, at which we arrive, is that the legislature did make a provision for the publication of the names of chairman and vice-chairman but the provision is directory and that in making the provision the legislature did not say that chairman and vice-chairman would assume office after the publication of their names in the gazette. It is in this context that we have to consider Rule 13 of the Rules. We may say that the same will apply to Rule 13 of the Rules for the election of vice-chairman for that is in exactly the same words as Rule 13 for the election of chairman. That rule is as follows : " Save in the case in which there are reasons to believe that the election has not been duly held and further enquiry is necessary, Government shall publish in the Rajasthan Gazette the name of the elected candidate who can thereupon enter on his duties as Chairman. " Emphasis is placed on the words "who can thereupon enter on his duties as Chairman". It is true that these words mean that a person can only begin to function as chairman of a board after his name has been notified by the Government in the gazette. The question is whether this rule goes beyond what the legislature intended. If there had been no provision about publication in the Act, there might have been something to say for the validity of such a rule by Government under its rule making powers. But where the legislature has thought it fit to make a provision as to publication (See Section 22 (14) of the Act), and that provision is merely directory, and the legislature did not say that a chairman would assume office only after the publication of his name in the gazette, it follows that the legislature did not intend to make publication in the gazette a necessary preliminary to the assumption of office by a chairman. When therefore the Government by Rule 13 made assumption of office by a chairman dependent upon the publication of his name, it was certainly going beyond what "the legislature was providing by Section 22 (14 ). It is well known that even Ministers take office and continue to hold it in spite of election petitions pending against them, for a member of an elected body continues to be such member in spite of the election petition against him so long as that petition is not decided. Similarly, a chairman, once he is elected, assumes office immediately after his election, and the fact that there is some election petition against his election cannot, in any way, detract from his holding office. Further, when the legislature in a case of this kind has provided a directory provision about publication of the name in the gazette, and has not thought fit to say that the chairman will not assume office before the publication of his name, the chairman is entitled to assume office before his name is published, even though an election petition might be pending against him. Rule 13, in so far as it provides that a chairman can only assume office after his name is published in the gazette, goes far beyond what the legislature intended, and provided in Section 22 (14), and is therefore ultra vires of the rule making powers of the Government. Nor can the Government, in our opinion, prevent a chairman from assuming office simply because an election petition is pending against him, for that would be going against the general practice which is prevalent amongst all elective bodies where a member or a minister continues even though there might be an election petition against him. In any case, if it was the intention of the legislature to make such an extraordinary provision, we should have expected that provision in the Act. We are, therefore, of opinion that Rule 13, as it stands is beyond the rule making powers of the Government, and is ultra vires of the provision in Section 22 (14) of the Act. It follows therefore that the chairman in this case could hold office immediately after his election, and the meetings called by him were perfectly valid, and if any member did not attend meetings continuously for four months, he would incur the disqualification provided in Section 12 (3) (c) of the Act. The view of the Government conveyed to the chairman that the meetings before the 20th of March, 1956, were null and void is, in our opinion, quite incorrect. We, therefore, hold that Rule 13 of the Rules is ultra vires of the rule making powers of the Government as it goes beyond the provisions of Section 22 (14), and therefore the meetings held by the chairman before the 20th of March, 1956, were valid, and Sheo Bhagwan and Chuniram certainly incurred disqualification under Section 12 (3) (c) of the Act as they did not attend meetings continuously for four months. It has, however, been urged that we should not declare the seats of these members vacant because they were misled by Rule 13 of the Rules, and might have reasonably taken the view that a chairman could not function without his name being notified in the gazette, and that this view of theirs was later upheld by the Government also in its order under Section 12 (5 ). We should, however, like to point out that Sheo Bhagwan and Chuniram did attend meetings up to November or December, 1955. It was only thereafter that they gave up attending meetings. Whatever might have been the reason which impelled them to do so, the fact remains that under Section 12 (3) (c) the disqualification is automatic, and it is provided that if a member is absent for four consecutive months, he shall be disabled from continuing to be a member, and his seat shall be deemed to have become vacant. There is no provision anywhere for waiving this disqualification once it is incurred. We are, therefore, of opinion that even if there was some misapprehension on account of Rule 13 of the Rules, it is not possible to waive the disoualification once it has been incurred. We have, therefore, to hold that Sheo Bhagwan and Chuniram having incurred the disqualification mentioned in Section 12 (3) (c) have become disabled from continuing to be members of the Board and their seats have become vacant. We, therefore, allow the application, and declare that the seats of Sheo Bhagwan and Chuniram in the Municipal Board of Bhadra have become vacant, and we direct that as there is no warrant now for their continuing as members of the Board, they shall cease to be such members. In view however of the dubious position created by Rule 13, we order parties to bear their own costs. . ;