D.L. Mehta, J.
1. By this writ petition filed under Article 226 of the Constitution the petitioner has prayed that a writ of auo warranto or any other appropriate writ order or direction, may be issued and the second respondent may be ousted from the office of the Member Municipal Board. Ladnu.
2. A few facts leading to filing of this writ petition are briefly as under:--
Respondent 3, the Collector, Nagpur. appointed the Sub-Divisional Officer deedwana as Returning Officer for co-option of one woman member to the vacancy which had occurred in the office of Municipal Board on July 18, 1983. By the same order, the Sub-Divisional Officer was directed to issue a notice to the members of the Municipal Board of a period not less than 7 days before the date of election and to get the notices served on all members and then take proceedings as per law. The Collector. Nagaur (respondent 3) annexed a list of members of the Municipal Board to this order. That list did not contain the name of Smt. Dilbahar. Thereafter, respondent2 proceeded to issue a notice calling upon the members of the Municipal Board Ladnu to co-opt one woman member to fill in the vacancy which had occurred in the office of Co-opted member and. as per the notice, the meeting was to be held on July 18, 1983 at 8 A. M. in the office of the Municipal Board. Ladnu. By this very notice, the programme of the election was also notified. Nominations were required to be filed by3 P. M. of July 16, 1983. The date for scrutiny of nomination papers was fixed as July 17, 1983, the date for withdrawal was fixed to be prior to the beginning of the counting and the polling was to take place on July 18, 1983 between 2 and 3 P. M. The notice (Annexure-3) was sent to all the members of the Municipal Board, except Smt. Dilbahar, Smt. Dilbahar thereupon made an application to the Returning Officer reauest-ing him to give a notice of the meeting to her so that she may participate in the election. The Returning Officer vide his letter dt. July 17, 1983 informed Smt. Dilbahar that as her name is not included in the list of members received by him the notice of election was not sent to her.
3-4. Smt. Dilbahar proceeded to file a suit in the Court of Munsif. Ladnu The plaint was accompanied by an application under Order 39. Rules 1 and 2 and Section 151 C.P.C. praying that respondents be restrained from holding the meeting of the Municipal Board. Ladnu on July 18, 1983 for filling the vacancy aforesaid by co-option. On this application, the learned Munsif proceeded to issue a notice to show cause. This notice was taken for service upon respondent 2 and also on respondent 3. It has been alleged that notice (Annexure-5) was submitted to respondent 1 at 2.45 P. M. on July 18, 1983 and a request was made that the notice may be accepted but the Returning Officer declined to accept the notices. The elections were conducted on July 1st, 1983 and Smt. Sundari (respondent 2)was declared elected. However, Smt. Dilbahar was not allowed to at end the aforesaid meeting. Hence, the petitioner has filed this writ petition.
5. On behalf of respondent 2 reply to the show cause notice has been filed. Respondent 2 has challenged the submissions made by the petitioner. It was submitted that the order Annexure-2 had rightly and validly been issued and the name of Smt. Dilbahar was rightly excluded from the list of members of the Municipal Board who are entitled to participate in and vote for the elec-tion-co-option of the lady members to be co-opted. It was further submitted that the election process i.e. polling was started at 2 P. M and was complete and result was declared before any injunc-tion order could be received or served upon the respondents. It, was also submitted that the meetings for co-option was started at 8 A. M. in the morning and all the members present had signed the proceedings register. According to respondent 2. the learned Munsif had no jurisdiction to issue any injunction in View of Section 272 (b) Rajasthan Municipa-lities Act (hereinafter referred to as 'the Act'). It was submitted that no injunction order was ever served upon respondent 1 before declaration of the result of the election. It was further submitted that the petitioner is a dissident member in the Municipal Board. Ladnu. and he and his colleagues could persuade the process server to make any report. It was submitted . that the petitioner and other members walked out from the mreting at that stase leaving 12 members out of the 21 members in the meeting. It was further submitted that 12 members casted the vote and out of them 11 votes were in favour of respondent 2 and one vote was found to be invalid. It was submitted that Smt. Dilbahar is a co-opted member and in the scheme of the Raiasthan Municipalities (Appointment of Members and Councillors by Co-option) Order 1969 (for short the Order of 1959'), the electoral college for election would consist of the elected members alone. It was further submitted that various clauses of the Order of 1959 clearly show the legislative intent and recognise the position that elections for co-option are held after the members of the Municipal Board are elected and it is that electoral colleee which co-opts the further members. According to respondent 2, the petitioner is not entitled to challenge the validity of An-nexure-2 now as the process of election has been completed and the result has also been declared.
6. I have heard Mr. M. Mridul. learned counsel for the petitioner and Mr. O. S. Shishodia. learned counsel for respondent 2.
7. Mr. M. Mridul. learned counsel for the petitioner contends that co-opted member is also a lawful member of the Board and so, the name of Smt. Dubahar was wrongly excluded from the list of voters. He invited my attention to Section 3 (15) of the Act, which defines 'member' as under :
'(15) 'member' means any person who is lawfully a member of a board;'. Section 9 of the Act provides composition of boards. Section 9 (5) of the Act is as follows :
(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 sen if no such person has been returned to the board be election referred to in Sub-section (4) or
(ii) one person belonging to the femalesex if only one such person has beenreturned to the board by such election.and such co-opted person being treatedfor all purposes of this Act as electedmember of the board and thenumber of seats fixed for that boardunder Sub-section (1) being deemed to beincreased accordingly.'
The process of co-option is really anelection with this difference that theelectors cannot stand as candidates fqpco-option. Section 34 of the Act deals withElection petitions.
In Nirmala Devi v. Election Tribunal 1955 Rai LW 155 this Court observed ms follows :
'the co-option of a person under Section 9 (5) cannot be challenged by means of an election petition under Section 34 of the Act. Section 34 does not contemplate the challenging the co-option of any person by an election petition. It is provided that a co-opted member shall be treated for all purposes of the Act as can elected member: But in the Act two different expressions 'election' anol co-option' have been used for two processes of election and co-option and there is no provision that 'co-option to betreated for ill purposes as an 'election'. Further the provision contained in Section 36 (2) that a petition can be presented, by an elector of the ward goes to show that the legislature did not contemplate that co-option should be challenged by means of an election petition under Section 34 and consequently, did not use more comprehensive language.' In Ahmad v. Mohammad Umar 1965Rai LW 451, it was observed as under :--
'The incurring of disqualification under Section 26 (xiv) of the Act does not automatically amount to removal of a member from Municipal Board or Council because the removal can be made only by the Government under Section 63. But he cannot exercise a valid vote under Section 65 (9) of the Act. Therefore, a Chairman against whom, a vote of no confidence is brought, can be ensured (censured?) only by those members who are Qualified to vote, on that day.' Looking to the various provisions of the Act referred to above the word 'member' defined in Section 3 (15) of the Act should only be construed for the purpose of functioning of the Board and should not be construed, for the purpose of the process of election or co-option. Section 3 (15) of the Act defines 'member' as any person who is lawfully a member of a Board. The composition of Board takes place under Section 9 of the Act and before the composition of the Board, the process of Co-option takes place in accordance with the provisions of the Order of 1959. For this reason the word 'member' as used in Section 3 (15) means amember only for the purpose of functioning of the board and not for the purpose of election or co-option of the member to be nominated or appointed by co-option in the manner provided under Section 9 (5) the Act read with Order of 1953.
8. Mr. D. S. Shishoda, learned counsel for respondent 2 has further invited my attention to the Order of 1959 andhas submitted that from the perusal of Schedule VI appended to the order of 1959, it is clear that the intention ofthe legislature was that for the purpose of co-option of the members of the Board only, those, members who have been elected are entitled to vote. If other view is taken then the position will be that no co-ption can take place before complete composition of the Board under Section 9 of the Act. For this reasonI am of view that for the purpose of co-option the ward member referred to in Section 3 (15) of the Act should, only be construed as elected members. I amfortified with the view taken in Moti-lal v. Collector. Sri : Ganganagar, 1962. Raj LW 100. In that case, in para 96 of the report it was observed as under :--
'There is a material difference between proceedings for election and proceedings for co-option inasmuch as in an election every elector has a right to standas a candidate and to vote and no personal notice is served on individual electors. In the case of co-option the right of voting is confined to the elected members on whom individual notice is served under Clause 3 of the Co-option Order andthe right of sponsoring names is also confined to them. Co-option is also confined to the electors of the femalesex.' Thus, it is clear that in the case of co-ootion. the right of voting is confined to the elected members on whom individual, notice is served under Clause 3 of the Co-optiort Order of 1959. The definition of the member as used in Section 3 (15) of the Act relates to the members for the purpose of functioning of the Board and it has mo relevancy as fir as the election of co-option of the member is concerned.
9. Mr. Mridul, learned counsel for thepetitioner has invited my attention toAtma Singh v. State of Rajasthan, 1967Rai LW 275 : (AIR 1967 Rai 239) (FB)and has tried to make out a case that asDiibahar's name was not included thewhole proceedings are vitiated. I haveread the judgment of Atma Singh's case.This case does not apply to the factsand circumstances of the case on hand.'
10. Mr. Mridul. learned counsel for the petitioner has further cited the case of Lal Chand v. Sohanlal. AIR 1938 Lah 220. wherein it was observed as follows :
'A temporary injunction under the provisions of Rule 1, Order 39 is not a stay order issued by a Court competent to stay execution proceedings under any provision of the Code authorising such an order. The effect of non-compliance with an injunction issued under Order 29.R. 1 is to mate the offender liable to the punishment prescribed in Order 39. Rule 2 (3) and a completed sale in contravention of an injunction under Order 39. Rule 1 is a nullity. A temporary injunction under Order 39, Rule 1 is not a mandatory direction to a Co Article as is a stay order of the kind provided for by the Procedure Code, but is an order directed against a particular , person which can be issued only in the circumstances described in Rule 1. Lal Cband's case has been approved by this Court in Udai Ram v. State. ILR (1963) 13 Rai 362. In Udai Ram's case it has been observed as under :
'that where a superior court directs the stay of execation pending in the lower court (Order XLI. Rule 5 of C. P. Code) the jurisdiction of the lower court to execute the decree is susoended and all proceedings taken after the stay order would be invalid.
In this case however, there was no such order for the stay of execution and the delivery of possession to the complainant in execution of the decree in his favour was not void on the around that he was restrained by a temporary injunction not to take possession (O. XXXIX. Rule 2. C. P. C.)'
Mr. Shishodia. learned counsel for respondent 2 has invited my attention to Section 272 (b) of the Act, which reads as under :
'272. Civil Court not to grant temporary injunctions in certain cases. No Civil Court shall in the course of any suit grant any temporary injunction or make any interim order:
(b) restraining any person or persons or any board or committee or sub-committee of a board from holding any election or from holding an election in any particular manner.'
Mr. Shishodia submits that the Court had no jurisdiction to pass any order restraining the Returning Officer from holding any election. I will not like to express any opinion on this point at this stage, suffice it to say that if the order of the Court below has not been complied with, the petitioner or Smt. Dil-bahar had a right to file the contempt petition and the Presiding Officer shall take note of the contempt if any committed. When the facts are also disputed, it will not be proper for me to hold that the proceedings were vitiated.
11. Mr. D S. Shishodia, learned counsel for respondent 2 has invited my attention to Anup Singh v. State, AIR1973 Punj & Har 472 and has submitted that the petitioner attended the meeting and thereafter he and his colleagues walked out. 12 members polled out of total number of 21 members. It was submitted that even if it is assumed that all the co-opted members were eligible to vote even then respondent 2 secured 11 votes and one vote was declared invalid. Thus, respondent 2 secured more than 50% votes and there cannot be any prejudice to the petitioner or any of the members including the co-opted members. It was also pointed out that the rival groups attended the meeting and when the objections were rejected they walked out. It was submitted that at the time of casting vote, no one can canvass within the polling booth and there was no restriction otherwise in the matter of canvassing. Mr. Shishodia submits that for this reason also the writ petition fails. I have already held that respondent 2 secured more than 50% votes and even if Smt. Dilbahar had casted the vote, the result would not have been different. Thus, there is no prejudice to the petitioner.
12. For the reasons mentioned above. I do not find any force in the submissions made by the learned counsel for the petitioner.
13. The writ petition is. accordingly, dismissed without any order as to costs.