Wanchoo, C. J. - (1.) THIS is an application under Art. 226 of the Constitution by Vishwanath and five others praying that the election of Pt. Jhamanlal opposite party No. 1, as Chairman of the Municipal Board, Bhadra, be Set aside.
(2.) THE case of the applicants is this. THE applicants are members of the Municipal Board of Bhadra. A meeting of the members of the Board was called for the purpose of electing a chairman on the 25th of July 1955. THE notice of this meeting specify the date, place and time was issued by the Sub-Divisional Magistrate, Nohar. It is said that before this meeting, oath of office was administered to the newly elected members order Rule 45 of the Rajasthan Town Municipal Election Rules, 1951 on the 25th of July 1945 at 11 a. m THEreafter, all the members met at 4 p. m. on the 25th of July 1955 to elect the Chairman. THE applicants' case is that they objected both at 11 a. m. and at 4 p. m. against the meeting being held that day for the purpose of electing the chairman on the ground that the District Magistrate had not called it as required by law, but their objection was not heard. THEreafter, one of the applicants was set up as a candidate for election as chairman, but his nomination paper was rejected on the ground that it had not been filed two days before, as rcquired by rule 5 of the Town Municipal Boards Chairman Election Rules, 1951. THEreafter, Pt. Jhamanlal, opposite party No. I was elected Chairman. THE applicants challenged the validity of ejection under rule 14, but their application was dismissed. THEn followed the present petition. Two main grounds have been urged in support of the petition. Firstly, it is submitted that there was an error of law apparent on the face of the record inasmuch as the Government failed to appreciate the contradiction between rule 5, of the rules regarding the election of Chairman of the Town Municipalities (hereinafter called the Chairman's Rules) and rule 45 of the Rajasthan Town Municipal Election Rules, 1951 (hereinafter called the Rules ). It is contended that on a true construction of rule 45 of the Rules, the nomination paper of Vishwanath applicant should not have been rejected. Secondly, it is submitted that under rule 3 of the Chairman's Rules, it is the District Magistrate alone who can fix a date, place and time for a special meeting of the Board for the purpose of electing a chairman, and as this was not done, the meeting held on the 25th of July 1955 was no meeting at all and all proceedings in that meeting relating to the election of chairman are of no effect. It is urged that there is an error of law apparent on the face of the record inasmuch as the Government did not understand the nature of the provision contained in rule 3 of the Chairman's Rules. The application has been opposed by the opposite parties and the nature of their opposition will appear when we come to discuss the two points raised by the applicants. Let us take the first point relating to the so-called contradiction between rule 45 of the Rules and rule 5 of the Chairman's Rules. Rule 45 lays down 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 allegiance to the Constitution of India. Rule 5, as amended in February 1955, provides that a candidate for the office of chairman shall be nominated, by at least two non-official members in the prescribed form which shall reach the District Magistrate or his nominee at least 48 hours before the time fixed for the meeting. The argument is that a member of a board takes his seat only on taking the oath prescribed by rule 45. This oath is usually given in the first meeting called to elect the chairman. In this particular case, it was given at 11 a. m. on the 25th of July 1955, while the time fixed for the election was 4 p. m. on the same date. In these circumstances, no nomination could be made 48 hours before i. e. before 4 p. m. on the 23rd of July because by then, oath of office as required by rule 45 had not been taken. It is urged that there is a clear contradiction between rule 4) of the Rules and rule 5 of the Chairman's Rules and, therefore, the nomination of even Pt. Jhamanlal was not according to law and should have been rejected. A further argument in this connection is that Shri Jhamanlal was put up by two members, one of whom was a nominated member of the Board, while rule 5 requires that both the* members should be non-officials. We are of opinion that there is no force in either of these contentions. So far as the nomination of Pt. Jhamanlal by one of the nominated members is concerned, it is enough to say that the member in question is admittedly a non-official. Rule 2 requires nomination by non-officials. It does not prohibit nomination by a nominated member of the board, provided he is not an official. A glance at sec. 9 of the Rajasthan Town Municipalities Act, 1951 (Act Mo. XXIII of 1951) would show that nominated members are of two kinds, namely officials nominated by virtue of their office and non-officials. Rule 5 only forbids nomination by official members and not by non-official nominated members. Pt. Jhamanlal was nominated by a non-official nominated member And this was quite in accordance with rule 5. As for the contradiction between rule 45 of the Rules and rule 5 of the Chairman's Rules, we may point out that as these rules stand, there is no apparent contradiction. Rule 45 says that a member before taking his seat shall subscribe to an oath. Rule 5 says that a chairman shall be nominated 48 hours before the time fixed for his election. There is no provision anywhere in the Rules that members should take the oath on the date fixed for the election of chairman, though we are told that this generally happens where a board is constituted for the first time after a general election. Even if this happens, we cannot see any such contradiction between rule 45 of the Rules and rule 5 of the Chairman's Rules as can be called irreconcilable. In Kanta Devi vs. State of Rajasthan (1), we pointed out that the membership of a municipal board does not depend upon taking of oath of office under rule 45. A person becomes a member of the board as soon as he is elected and the result is declared or as soon as he is nominated. Taking of oath under rule 45 is for the purpose of functioning as a member. Therefore, a person, who has been elected or nominated, becomes a member as soon as the necessary formalities relating to election or nomination are over. As such, he is a member and, if he is a non-official, he can nominate a candidate for chairmanship. It was urged that the act of nomination would amount to the member functioning as such and he cannot do so till he takes the oath of office. Assuming that nominating a candidate for election as a chairman is part of the functioning of a member, it still does not follow that rule 45 of the Rules comes in the way and invalidates a nomination made under rule 5 by a member who has not yet taken the oath. All that rule 5 requires is that the person nominated should be a non-official member. It does not lay down that he must have taken the oath of office. As pointed by us in Kanta Devi's case, a person becomes a member even before he takes the oath of office. Therefore, he can exercise his right as non-official member conferred on him by rule 5 of nominating a candidate for chairmanship. In any case, if there is any contradiction between rule 45 of the Rules and rule 5 of the Chairman's Rules, the two sets of rules, in our opinion, must be so interpreted as to be harmonised. There is in our view no difficulty in holding that a person can act under rule 5 even though he has not taken the oath of office, for, as pointed out in Kanta Devi's case, he becomes a member as soon as formalities relating to his election or nomination are complete. Thus, we see no difficulty in rule 5 and rule 45 existing together and the contradiction, if any, is not so irreconcilable as to compel us to give preference to rule 45 over rule 5. Taking the two rules together, we may say that a member takes his seat on the board and begins to function as such for all other purposes after he has taken the oath of office under rule 45. But for the purpose of nominating a candidate for chairmanship, he has a special right under rule 5 to do so irrespective of whether he has taken the oath or not. We see no difficulty in construing these provisions in this manner. Under the circumstances, it cannot be said that there was any error of law apparent on the face of the record in the decision given by Government on this point. Then we come to the interpretation of rule 3 of the Chairman's Rules. It is urged that there is an error apparent on the face of the record in the decision of the Government in the matter of this rule. Rule 3 lays down that the District Magistrate shall fix a date, place and time for a special meeting of the Municipal Board for the purpose of electing a Chairman. There can be no ambiguity as to what it means. It means what it says, namely that it is the District Magistrate and the District Magistrate alone who has a right to fix the date, time and place of a meeting of the Board for the election of the Chairman, No other person or authority can fix such date, place and time, nor can the District Magistrate delegate this function of his to anybody else. Rule 3 further lays down that a notice of at least 7 days for such election shall be given to the members and the meeting shall be presided over by the District Magistrate or his nominee but he shall have no right of vote. It is clear therefore that it is only the District Magistrate who can call a meeting for the purpose of electing the Chairman and no one else can do so and there is no provision anywhere by which the District Magistrate can delegate his function of calling the meeting, to anybody else. If the meeting is not called by the District Magistrate, it is not a meeting within the meaning of rule 3 and whatever is done at such a meeting is of no effect and validity. We see no reason why we should permit any laxity in the observance of rule 3, particularly as it deals with a matter of election. Let us now see what happened in this case. The District Magistrate passed an order on the 13th of July, 1955 in which he told the Sub-divisional Magistrate, Nohar, to fix a date for holding the meeting and give a notice of at least 7 days for such election to each member of the Board. He also directed the Sub-divisional Magistrate to give the oath of office to each member before the election was held. It was in pursuance of this order of the District Magistrate that the Sub-divisional Magistrate fixed the date of the meeting as well as the time and place where it was to be held and gave notice to the members. The District Magistrate did not fix the date, place and time of the meeting as required by rule 3. He delegated his authority to the Sub-divisional Magistrate. In view of what we have said above, the District Magistrate had in our opinion, no power to delegate his authority under rule 3 to the Sub-divisional Magistrate so far as the fixing of the date, time and place of the meeting is concerned. Any meeting called on the basis of such delegated power by the Sub-divisional Magistrate was not a meeting contemplated under rule 3 of the Chairman's Rules, and therefore any election held at such a meeting was of no effect and validity. It was urged on behalf of the opposite parties that this was merely an irregularity and that as all members were present at 4 p. m. on the 25th of July, we should hold that the proceedings of the meeting were valid in fact. It is urged that rule 3 is merely directory and not mandatary and as all members were present when the meeting was held, there has been no prejudice to the applicants. All that we need say in this connection is that we are of the view that rule 3 is mandatary and it is the duty of the District Magistrate to follow it strictly. There must be reasons which led the legislature or its delegate to give this power only to the District Magistrate and some of these reasons are well-known and need not be mentioned hereby us. It seems to us in these circums-tances that the legislature meant that rule 3 should be strictly followed, and that a meeting for the election of Chairman should be called by the District Magistrate and District Magistrate only and by nobody else. If a meeting of this kind is called by anybody else, it is not in accordance with rule 3 and no election of Chairman can take place at a meeting called by anybody other than the Dist. Magistrate. Rule 3 provides that the District Magistrate may preside at such a meeting himself or may nominate someone else to preside for him, but it does not provide that a District Magis:rate, if he does not call such a meeting himself, may authorise somebody else to call it. Obviously, therefore, rule 3 contemplates that only the District Magistrate will call such a meeting. It must therefore be held to be mandatory and if a meeting is not called in accordance with rule 3, it is not a meeting at which the election of a Chairman can be held. Our attention in this connection was drawn to Shyabuddinsab Mohid-dinsab Akki vs. Gadag-Betgeri Municipal Borough (2 ). That case related to the election of a chairman of Municipality in the State of Bombay. In that State also, the rule is that a meeting for the election of a Chairman shall be called by the District Magistrate. It is also provided in the law there that this meeting will be called by a written notice to ail the members. What happened in that case was that a meeting was called by the District Magistrate for the 30th of July l954, but that meeting was postponed to the 3rd of August 1954 by the Prant Officer who was presiding on it as a nominee of the District Magistrate, No notice in writing of this meeting of the 3rd of August was given. Consequently, the validity of the meeting of the 3rd of August was challenged among other grounds for the reasons that it had not been called by the Collector, and that the written notice required by the law had not been given. The Supreme Court held that the meeting of the 3rd of August was called by the Collector and could not be invalid on the ground that, it was not called by the Collector. It further held that though there was no notice in writing as required by the law, that irregularity was cured by another provision of the Bombay Act It is remarkable that in that case, both the meetings were in fact called by the Collector. The second meeting was held to have been called by the Collector on the ground that it was adjourned to the 3rd of August on the instructions of the Collector, Thus, that case is only authority for the proposition that if there is an irregularity in the service of notice, it might in certain circumstances be condoned. It was condoned in that case because all the members were present both in the meeting of the 30th of July and 3rd of August. Bat that case does not lay down that if the meeting had not been called by the Collector, it would still have been a valid met ting. We have also a similar provision in sec. 35 (2) of the Rajasthan Town Municipalities Act, 1951 which lays down that no resolution of a municipal board shall be deemed invalid on account of any irregularity in the service of notice upon any member, provided that the proceedings of the municipal board were not prejudicially affected by such irregularity. If in the present case, the validity had been challenged on the ground that notice had not been served and if we found that all the members were present, even though there was some irregularity in the service of notice, sec. 45 (2) would have come to the help of the opposite parties. But here the charge is that the officer upon whom the duty lay to call the meeting under rule 3, namely the District Magistrate, never called the meeting. He delegated the power of calling the meeting to another officer, but he had no such authority in law to delegate his function under rule 3 of fixing a date, time and place of the meeting to anybody else We are of opinion that rule 3 on this point is clear and mandatary and there can be no two opinions as to what it means. A meeting for the election of the chairman has to be called by the District Magistrate, and by nobody else. If it is not called by the District Magistrate, it is not a meeting for the purposes of rule 3 and any proceeding taken for the election of a chairman at such a meeting is of no effect. The fact that all members happened to be present at the meeting held at 4 p. m. on 25th of July in this case does not, in our opinion, affect the invalidity of the meeting. We cannot accept the view that if one member had kept out on the ground that the meeting had been invalidly called, the meeting would have been invalid, as seems to be urged on behalf of the opposite parties and that the meeting is in the present case valid because all the members were present. The validity or otherwise of the meeting has to be judged on the clear words of rule 3 of the Chairman's Rules and those words are, in our opinion, unambiguous and the provisions thereof must be carried out. It they are not carried out, the meeting held is not a meeting for the purpose of electing a chairman and no chairman can be elected at such an irregular meeting. In this case, the meeting which was held on the 25th of July, 1950, at which Pt. Jhamanlal was elected chairman was not a meeting contemplated by rule 3 for electing a chairman. As such, all proceedings of that meeting are null and void. We, therefore, allow the application and issue a direction to the effect that the election of Pt. Jhamanlal as Chairman of the Bhadra Municipal Board in the meeting held at 4 p. m. on the 25th of July, 1955, at the Town Hall at Bhadra is invalid. Another meeting as required by rule 3 will now be called for electing a chairman. The applicants will get their costs from the opposite parties. . ;