Wanchoo, C.J.—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.

3. 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 Chairmans 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 Chairmans 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 Chairmans Rules.

4. 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.

5. Let us take the first point relating to the so-called contradiction between rule 45 of the Rules and rule 5 of the Chairmans 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 o

Click Here to Read the rest of this document