C.M. Lodha, J.
1. This writ petition is an off shook of Civil Misc. Appeal No. 6 of 1075. The petitioner was elected as a member of the Municipal Board, Chapper 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 Section 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 16/1/1976, and farther 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 S.B. Civil Misc. Appeal No. 6 of 1975. He also submitted a stay application for 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 bad already been administered to him as required under Section 61 of the Act, and therefore, the stay application had become in fructuous 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, Chappar shall not take place till further orders.
2. It is averred by the petitioner that he had contended before Jain J. that no proper and valid oath bad 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, Chappar. 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 get 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 is should be declared that the petitioner still continues to be a member as also Chairman of toe Municipal Board, Chapar, 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 toe order of this Court dated 21st January, 1975.
3. 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 who law after hit election petition had been allowed, and be had been declared as fully elected by the Civil Judge. Toe case has been argued at length by learned Counsel on both the sides.
4. However, at the time of proceeding with the dictation of the judgment, I sent for the record of S.B. Civil Misc. Appeal No. 6 or 1975, Jaichandlal v. 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 she order. Thereafter the petitioner (appellant in Appeal No. 6 of 1975) filed an application dated 1/3/75 under Section 151, C.P.C. on 3/3/75 praying that sine? 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 a 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.
5. 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 1/3/5 in Appeal No. 6 of 75 and dismissal of the same by Jain J. was net brought to my notice by any of the parties with the result, that the case was argued at length on merits. Howers, 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 bow this writ petition is maintainable in view of the order by Jam J dated 12/1/1975, 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.
6. There is nothing in this order to indicate that the matter was intended to be kept open for agitation by another writ petition.
7. Learned Counsel for the petitioner further submits that this writ petition was prepared on 10-3-75, 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 en 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 Match 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 Mage when I was dictating the order, and 'ad already beard the argument of 'learned Counsel for the parties on merits, I would deal with the case on merits also, though in brief.
8. 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:
Section 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-section (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.
9. Shri Vinod Kumar, as Collector, Churu, passed an order dated 18th January, 1975 (Annexure 1) appointing the Sub Divisional Magistrate, Churu as his nominee before whom Ramjtlal. who bad been declared as duly elected member of the Municipal Board, Chappar for ward No. 9 by the Civil Judge, Churu by his judgment dated 16th January, 1975 in election petition No. 3 of 1974 shall make oath. The contention of the petitioner is that Son Vinod Kumar was not the Collector, Churu. This is correct, and is conceded to by the learned Counsel for the non petitioner also. It appears from Anrexure S dated 10th July, 1974 that Mr. O.P. Behari, who was Collector, Churu bad, for the distribution of the work of hit office, assigned the work of Establishment, General Elections, Development and Panchayat and Relief to the Additional Development Officer, Churu. Shri Vinod Kumar was, in fact, the Additional District Development Officer at the relevant time and purporting to act as a Collector, he appointed Sub Divisional Magistrate, Churu as his nominee under Section 61 of the Act for administering oath to Ranjilal. This, be could not have done in view of clear language of Section 61, according to which the member has to make and subscribe oath only before the Collector or his nominee for the purpose.
10. Mr. Mridul, learned Counsel for the non-petitioner, however, submitted that Shri O.P. Behari Collector, Churu by his order dated 20/21 September, 1974, Annexure R/1 had appointed the Sub Divisional Magistrate, Churu as his nominee before whom the members of the Municipal Board, Chappar shall, before entering upon the duty as such, make and subscribe oath or affirmation in the prescribed form, and this order, according to the learned Counsel, was sufficient to clothe the Sub Divisional Magistrate, Churu with an authority to administer oath to Ramjilal who bad been declared elected to the Municipal Board, Chappar by the learned Civil Judge. He has also urged that tee act of Sub Divisional Magistrate, Churu in administering oath of office to Ramjilal in pursuance of the authority conferred upon him by Shri Vinod Kumar vide Annexure I was ratified by the Collector, Churu Sri O.P. Behari on 20th January, 1975 and therefore, the defect in the authority conferred by Shri Vinod Kumar was rectified.
11. The contention on behalf of the petitioner is that whatever was done without authority could not be ratified. As regards the authority conferred on the Sub-Divisional Magistrate, Churu by order Ex. R/1, it is contended that it was in relation to only those members who had been elected on 16-9-74 and not in respect of non-petitioner No. who had been declared elected by the learned Civil Judge by his order dated 16th January. 1975. In support of his contention, mr. Bhargava has relied upon Madan Lal v. The State of Rajasthan 1965 R.L.W. 342. On the other hand, Mr. Mridul has relied upon Ajmer municipally v. Sadula A.I.R. 1969 Raj. 39. Kesho Ram v. Delhi Administration A.I.R. 1974 S.C. 1158 and Parmeshwari Prasad Gupta v. the Union of India 1974 S.L.J. 486.
12. In Mandan Lal v. The state of Rajasthan 1965 R.L.W. 342 it was held that oath of office had been administered to the member of Municipal Board without authority of the Collector, and was, therefore, invalid. It was observed that no authority verbal or written was proved. It was further held that the administration of oath is not merely a ministerial act, & when there was nothing to show that the Collector had empowered the Sub-Divisional Magistrate to administer oath the oath administered by the Sub-Divisional Magistrate was invalid.
13. In Sabir v. State A.I.R. 1965 All. 97, it was observed that in exercise of power under Article 219 of the Constitution the Governor had no jurisdiction to authorise the Chief Justice to have three learned judges concerned to make and subscribe oath in his presence. It was held that the Governor could not have given such a general authority thus relieving himself for an indefinite period of his constitutional duty to consider in each case whether he would himself like to be present to see a person appointed to be a Judge of the High Court making and subscribing oath or he would for that purpose appoint some one else. However, it was observed that it was only an irregularity in the exercise of the jurisdiction which did not violate the making and subscribing of oath by the three learned Judges and their entry into office.
14. Now, the question which arises for decision is whether a general authority by the Collector to the Sub Divisional Magistrate, Churu to administer oath to members of the Municipal Board, appear was valid in the eye of law. It may be recalled that election to the Municipal Board, Chhaper took place on 16-9-74, and soon after that, the authority Ex. R/1 was issued by the Collector, Churu whereby be nominated the Sub divisional Magistrate to administer oath to the member of the Municipal Board. It appears that prior to 20th September, 1974 the Collector had authorised the administrative Officer, Woollen Mill, Churu as his nominee before whom the members of Chapter and Rajaldesar Municipal Board were to make can be, and some of the members Chhaper Municipal Board did mike oath before the said Administrative Officer. Who were left out and who were administered oath by the Administrative Officer is cot known However, this much is clear from the order Ex. R/1 that the Collector authorised the Sub-Divisional Magistrate as his nominee to administer oath to those members of Chapper and Rajaldesar Municipal Beards to whom oath had not been administered. It is clearly mentioned in Ex. R/1 that the members of the Municipal Board, Cheaper to whom oath had not been administered would make and subscribe oath before the Sub-Divisional Magistrate, Churu. In my opinion, there need not have been a specific authority for Ramjilal who hid only stepped into the shoes of the petitioner on his election petition against the latter having been allowed. I am also of the view that putting the petitioner's case at the highest it was only an irregularity which did not vibrate making and subscribing of oath. My conclusion therefore, is that the oath administered by the Sub Divisional Magistrate, Churu in pursuance of the authority conferred upon him the by Collector, Churu by the order Ex. R/1 was valid. This writ petition is therefore liable to be dismissed on the preliminary point as being not maintainable and also on merits.
15. Accordingly, I dismiss the writ petition, but without any order as to costs.