N. M. KASLIWAL J. - (1.) THE petitioner, a resident of Mount Abu, District Sirohi (Rajasthan) and an ex-member of Municipal Board, Mount Abu, has filed this writ petition challenging the constitution of Municipal Board, Mount Abu vide notification Annexures 1 and 2.
(2.) THERE were elected members in Municipal Board, Mount Abu, but the Government of Rajasthan issued a notification dated 10-3-75 in exercise of the powers conferred by sub-sec. (1) of sec. 10 of the Rajasthan Municipalities Act. 1959 (hereinafter referred to as 'the Act') for the purpose of carrying out improvement in a planned manner and to boost tourist traffic, ordered that the municipality of Mount Abu may consist of wholly nominated members. Seven persons were mentioned in this notification as nominated members and it was further mentioned that three non-official members including persons from the sehedule castes/tribes shall be nominated after approval by the Minister for Local Self Government This notification has been annexed with the writ petition and marked as Annexure 1. The Government again in partial modification of the above notification Annexure 1 and other notifications in this regard dated 17-1-76 and 10-12-76, issued another notification on January 5, 1977 in exercise of the powers conferred by sub-section (1) of sec. 10 of the Act, reconstituting the nominated board, Mount Abu and vide this notification eight persons were nominated as members of the Board. Notification Annexure 2 reads as under: - LOCAL SELF GOVERNMENT DEPARTMENT NOTIFICATION Jaipur, January 5, 1977. No F. 1 (36) LSG/73/1833-1843 - In partial modification of this Department Notification No. F. 1 (36) LSG/73/1678-85 dated 10-3-75, 17-1-76 and 10-12-76 and in exercise of the powers conferred by sub-section (1) of section 10 of the Rajasthan Municipalities Act, 1959 (Act No. 38 of 1959), the State Government hereby reconstitute the nominated board Mt. Abu, namely as under: - 1. Dy. Director of Tourism, Mt. Abu Chairman 2. Divisional Officer, Mount Abu. Member 3. Dy. Director of Local Bodies, Raj. Jaipur 4. Divisional Forest Officer, Sirohi. " 5. Executive Engineer, P. W D. , Sirohi" 6. Dy. Town Planner, Jodhpur" 7. Smt. Merwaniji" 8. Shri Bhura Ram, M. L. A. . (S. T.) By Order of the Governor, Sd/ Dy. Secretary to the Govt. The Board is now functioning under the above notification Annexure 2. The petitioner has challenged Annexures 1 and 2 on the following grounds: - (1) that the State Government in exercise of the powers conferred under section 9 of the Act, issued a notification on May 11, 1974, whereby it has fixed the number of seats for the Municipal Board, Mount Abu to be ten, out of which seven shall be elected from general seats and one is reserved for members of the schedule castes and two are reserved for members of the schedule tribes. Thus, according to the above notification, the total number of seats for Municipal Board, Mount Abu has been fixed as ten and by notification Annexure 2, the State Government has nominated only eight members as such the Board is not a validly constituted Board, (2) that by the impugned notifications, the government has nominated persons by virtue of their office and has not neminated individual persons, which is not permitted in law, (3) that the officials mentioned at serial Nos. 1 to 6 in Annexure 2 are all persons, whe are holding a salaried appointment either under the Central Government or under the State Government and such persons are disqualified under section 26 of the Act, which lays down general disqualifications for members. (4) that the nominated members vide Annexure 2 do not include requisite number of members from the schedule casts and schedule tribes, which was necessary in accordance with the notification dated May 11, 1974, (5) that the nominated Board suffer from the infirmity that it does not include two requisite members from the female sex, which is also necessary in accordance with sub-section (5) of the section 9 of the Act, (6) that the government had no power to nominate the Chairman of the Municipal Board inasmuch as under section 65 of the Act, the Chairman has to be elected in accordance with rules made by the State Government in that behalf, by the members of the Board from amongst themselves. The government has already made rules in this regard as the Rajasthan Municipalities (Election of Chairman, Vice-Chairman, President and Vice-President) Rules, 1959 and as such the Chairman could not have been nominated by the gov-rnroent, (7) that the nominated members mentioned in the notification Annexure 2 have not taken the oath of office and in accordance with section 61 (2) of the Act, any member who fails to take oath before entering upon his duties within a period of three months from the date of the first meeting of the Board, shall be deemed to have vacated his seat and according to the petitioner, as the nominated members have not taken oath, their seats shall be deemed to have vacated automatically. On the above grounds, the constitution of the present Municipal Board has been challenged and it is prayed that Annexures 1 and 2 be quashed and it may be declared that the Municipal Board, Mount Abu, is not a validly constituted Board and as such, the members so nominated have no authority in law to work. The respondents have filed a reply and have justified the constitution of the Board under sub-section (1) of the section 10 of the Act. Their contention is that the State Government was competent to nominate the person by designation to be the members of the Board and where the municipality is a hill station and it was considered proper to manage the affairs by whelly nominated members, the State Government was fully competent to appoint the nominated members in exercise of its powers under sub-section (1) of section 10 of the Act It is also pleaded that the nominated members mentioned in the notification have taken the oath of office before exercising their powers and the certified true copies of oath of the members have been submitted as exhibits R 1 to R 9 along with their reply. It is also contended that when members in a Board are appointed by nomination in exercise of the powers under sub-section (1) of section 10 of the Act, the provisions of section 9 are not at all applicable and thus, there is no defect or illegality in the constitution of the Board. Before dealing with the submissions made by the learned counsel for the petitioner, it would be necessary to reproduce sections 9 and 10 of the Act. "p. Composition of beards' - (1) Subject to the provisions contained in the succeeding sub-sections, every board shall consist of such number of the seats as may be fixed by the State Government from time to time by notification in the official Gazette. (2) In so fixing the total number of seats for a board, the State Govt. shall specify the number respectively of general seats and of seats reserved for members of the scheduled castes or for members of the scheduled tribes or for both as the State Government may in each case determine. (3) The number of seats reserved as aforesaid shall, in relation to the total number of seats fixed for a board, bear the same proportion as the pepulation of the scheduled cast's or scheduled tribes in the municipality bears to the total population thereof and such reservation shall be operative until the provisions of the Constitution relating to the reservation of seats for scheduled castes and scheduled tribes in the State Legislative Assembly case to have effect. (4) All the seats fixed for a board, general as well as reserved, shall be filled up by election held in the manner provided for by and in the order made under section 29. (5) To every board there shall be appointed by co-option in the manner provided for by order published in the official Gazette. (i) two persons belonging to the female sex if no such person has been returned to the board by election referred to in sub-section (4), or (ii) one person belonging to the female sex if only one such person has been returned to the board by such election, and such co-opted person or persons being treated for all purposes of this Act as elected member or members of the board, and the number of seats fixed for that board under sub-section (1) being deemed to be increased accordingly. 10. Composition to Boards in certain exceptional cases - (1) Notwith standing anything contained in section 9, in a municipality not being a city which is a hill station or to which, owing to the smallness thereof the backward state or indifference of its inhabitants or for other similar exceptional reason, the State Government may, by notification in the official Gazette, apply the provisions of this section, the board shall consist of members, partly elected and partly nominated, or, as the State Government may determine, wholly nominated and such nominated members shall be appointed by the State Government in such a manner and subject to such conditions, as it shall think fit to prescribe. (2) It shall be competent for the State Government at any time to alter or rescind any notification issued by it under sub-section (1) and, in the event of any such notification being rescinded, the board affected thereby shall, from a date to be fixed in this behalf by the State Government, be constituted in accordance with section 9. " Sec. 9 lays down a provision for the composition of boards and State Government under this section is empowered to fix the number of seats in a Board and also to specify the number of general seats and of seats reserved for members of the scheduled castes or for members of the scheduled tribes. Sub-sec. (4) of sec. 9 lays down that all the seats fixed for a Board, general as well as reserved, shall be filled up by election and sub-section (5) of section 9, lays down a provision for members to be appointed by co-option in the manner provided for by order published in the official gazette. For coopted members it has been laid down that there shall be two persons belonging to the female sex if no such person has been returned to the Board by election or one person belonging to the female sex if only one such person has been returned to the board by such election. Section 10 is a provision for composition of Boards in certain exceptional cases. This empowers the State Government in the case of a hill station or to which, owning to the smallness thereof the backward state of indifference of its inhabitants or for other similar exceptional reason to apply the provisions of this section notwithstanding anything contained in section 9 and by issuing a notification in the official gazette/the State Government may constitute such Board of members partly elected and partly nominated or wholly nominated. This section further empowers the State Government to appoint the nominated members in such a manner and subject to such conditions, as it shall think fit to prescribe. There is no dispute in this case that Annexure 1 and 2 have been issued by the State Government in exercise of its powers under sub-sec. (1) of sec. 10 of the Act. I need not consider all the objections raised by the learned counsel for the petitioner separately, as in my view, almost all the contentions will be me in the view I am proposing to take. The contentions raised by the petitioner in the writ petition asrise in case of board, which is constituted under section 9 of the Act and the provisions of number of seats both general as well as reserved and provision with regard to female members appointed by co-option, are all applicable in case of that Board, which is composed or constituted under sec. 9 of the Act. Sec. 10 lays down a provision for composition of Boards in certain exceptional cases. The language of section 10 itself starts with a non-obstante clause "notwithstanding anything contained in section 9" and as such the composition of a Board in exercise of the powers conferred under sub-section (1) of section 10 on the State Government in expeptional cases cannot be governed by the provisions of sec. 9. The general disqualifications for members as contained in section 26 of the Act is only applicable in case of elected members and not for nominated members, who are appointed by the State Government under sec. 10 of the Act. In section 26 the words are "a pers6n, notwithstanding that he is otherwise qualified, shall be disqualified for being chosen as a member of a Board" and then the various disqualifications have been enumerated. The argument of the learned counsel for the petitioner is that these disqualifications are applicable for every member of a board, who is chosen as such. More emphasis has been laid on the meaning of word 'chosen' and it is contended that a nominated member also chosen as a member of a Board. Reliance in this connection is also placed on Chatturbhuj Vithaldas Jasani vs. Moreshwar Parashram (1), in which it was observed as under: - "now the words of the section are "shall be disqualified 'for being chosen'. The choice is made by a series of steps starting with the nomination and ending with the announcement of the election. It follows that if a disqualification attaches to a candidate at any one of these stage he cannot be chosen. " The above case can be of no help to the petitioner. Their Lordships of the Supreme Court were considering the context of two seats in the Bhandara Parliamentary Constituency. The two persons, who were elected were Tularam Sakhare, for the scheduled caste seat and Chaturbhuj Jasani, for the general seat. Jasani's election was challenged on the ground that he was subject to the disqualifications set out in section 7 (d) of the Representation of the People Act, as he was interested in a contract for the supply of goods to the Central Government. While considering the challenge to Jasani's election, section (7) (d), which used the words "a person shall be disqualified for being chosen as, and for being a member etc. ," case for consideration and in that context it was observed that the choice is made by a series of steps starting with the nomination and ending with announcement of the election and a disqualification attaches to a candidate at any one of these stages and such person if disqualified during that period cannot be chosen. There is no such controversy in the present case Section 10 clearly mentions that such nominated members shall be appointed by the State Government and thus, there is no question of nominated members being chosen as mentioned in section 26 of the Act. The ordinary meaning of word chosen is 'selected, picked out'. Thus, in the case of the members nominated by the government under sub-section (1) of section 10 of the Act, there is no element of selection or picking out. The nominated members thus, who are appointed by the State Government in exercise of the powers under sub-section (1) of section 10 of the Act, cannot be governed with the provisions of section 26 of the Act. The objection raised by the petitioner that the nominated members should be deemed to have vacated their seats as they had not taken oath of office, has no substance inasmuch as the respondents have filed Exs. R. 1 to R9, which clearly goes to establish that all these members have taken oath of office before entering upon the duties of their office. The contention of the learned counsel for the petitioner that the government had no power to nominate the Chairman and the Chairman ought to have been elected in accordance with the rules made by the State Government in this behalf, has also no substance inasmuch as the composition of the Board in the present case is to be governed by sub section (1) of section 10 of the Act. Under this provision, the State Government is authorised to determine that such Board shall consist of members wholly nominated and such nominated members shall be appointed by the State Government in such a manner and subject to such conditions, as it shall think fit to prescribe. The words 'm such a manner and subject to such conditions, as it shall think fit to prescribe' are sufficiently wide to empower the State Government to nominate one of the members as a Chairman and other members to be as ordinary members. It is also within the competence of the State Government to nominate ex-officio members to be-come members of the Board and there is no restriction in the above provision of sub-section (I) of section 10 of the Act that the State Government could only nominate individual members and not ex-officio members to be members of the Board. Learned counsel for the petitioner cited the following authorities in support of his contentions raised above but I do not feel necessary to discuss these authorities in detail inasmuch as these authorities have no relevance in the view taken by me that the Board has been composed as an exceptional case by the State Government in exercise of its powers under sub-section (1) of section 10 of the Act and the provisions of section 9 of the: Act do not govern the nominated board. Learned counsel had cited the following authorities: AIR 1954 Raj. 153, ILR 7 Raj. 1041, AIR 1960 Raj. . 52, 1965 RLW 342, 1957 RLW 498, AIR 1954 Bombay 41 and AIR 1951 SC 230. Learned Additional Government Advocate had also opposed the writ petition on the ground that the petitioner had no right to file this writ petition Cording to the learned counsel, even if the Board was held to be illegally constituted, the petitioner had no right to be elected or nominated as a member of the Board and as such he had no legal right to maintain this writ petition I see no force in this contention of the learned counsel. The Petitioner is a resident of Mount Abu and has also remained an elected member and Chairman of the previous Boards and has a real interest to see whether the present Board is legally constituted Board or not. This writ petition is in the nature of at of quo warranto and a person like the petitioner is certanly entitled to file a writ petition asking the respondents to show that they are holding the public office in a legal and rightful manner. No other point was pressed by the learned counsel for the petitioner.
(3.) THE writ petition has, therefore, no force and is hereby dismissed with no order as to cost. .;