JAGAT NARAYAN, J.—This is a writ petition under Article 226 of the Constitution by 17 Sarpanchas who are members of the Arain Panchayat Samiti challenging the validity of the cooption of respondents Nos. 23 to 27 to the Samiti.

2. The Arain Panchayat Samiti was constituted with effect from 15.1.61 under a notification dated September 22, 1960 under sec. 7(1) of the Rajasthan Panchayat Samitis and Zila Parishads Act,1959 (hereinafter referred to as the Act) published in the Rajasthan Gazette dated 22.12.60. The block for which the Panchayat "Samiti was constituted consisted of 30 Panchayat Circles the Sarpanchas of which became members of the Panchayat Samiti under sec. 8(1) of the Act. Seven members were be coopted under sec. 8(2) of the Act. For the cooption of these members the Collector convened a special meeting under sec. 11 for 31st December 1960. Notices were issued to all the members of the Panchayat Samiti specified in sec. 8(1) on 19.12.60. These notices were in accordance with rule 3 of the Rajasthan Panchayat Samitis (Cooption of Members) Rules 1959 (hereinafter referred to as the Rules). According to this notice nomination papers were to be filed on 31.12.60 between 8 a. m. and 10 a. m. Scrutiny of these nomination papers was to commence on the same day at 10.30 a. m. and the vote of the members was to be taken between 2 p.m. and 4 p.m. on that day should a poll became necessary. Another notice was issued by the Collector on 29.12.60 in which the same programme was repeated with the addition that oath shall be administered to the members on 31.12.60 between 7-30 a. m. and 8 a. m.

3. Petitioners Nos. 1 to 4 filed the nomination papers of respondents Nos. 16 to 22 before the Returning Officer on 3 1.12.60 which were accepted. The nomination papers of respondents Nos. 23 to 27 were also filed and accepted. As there were more candidates than the number of members to be coopted a poll became necessary. When the petitioners Nos. 1 to 17 approached the Returning Officer for giving them ballot papers an objection was raised on behalf of the remaining 13 members of the Panchayat Samiti that they were not entitled to vote as they had not taken the oath. This objection was upheld by the Returning Officer who did not permit petitioners Nos. 1 to 17 to vote. The remaining 13 members alone therefore took part in the voting. As a result respondents Nos. 21 to 27 were declared as coopted to the Panchayat Samiti under sec. 11. These included respondents Nos. 21 and 22 whose nomination papers were filed by petitioners Nos. 1 to 4. The petitioners have challenged the cooption of respondents Nos. 23 to 27 whose nomination papers were not filed by petitioners Nos. 1 to 4. The petition has been contested on behalf of respondents Nos. 3 to 15 and 23 to 27. A preliminary objection is taken that the petitioners have an alternative remedy by way of an election petition under R. 3 read with R. 10 of the Rajasthan Panchayat Samitis Pradhans and Uppradhans, and Zila Parishads Pramukha and Uppramukha (Election Petition) Rules, 1959. This preliminary objection will be dealt with after disposing of the contentions raised on behalf of the petitioners.

4. The first contention on behalf of the petitioners is that a member of the Panchayat Samiti is not required to take oath before taking part in cooption proceedings held under sec. 11. Sec. 72 of the Act which provides for the taking of oath by the members runs as follows:—

"Oath of allegiance to be taken by the members—

(1) Every member of a Panchayat Samiti and a Zila Parishad shall, before taking his seat, make, at a meeting of the Panchayat Samiti or the Zila Parishad, or in the alternative before the Collector, on oath ox affirmation of his allegiance to the Constitution of India ...............

(3) No member shall take his seat at a meeting of the Panchayat Samiti or the Zila Parishad or do any act as such member unless he has made the oath or affirmation as laid down in this section.

(4) The oath o

Click Here to Read the rest of this document