Dave, J.—This is a special appeal against the judgment of a learned single Judge of this Court dated the 24th July, 1962 dismissing the appellants writ application under Article 226 of the Constitution of India.

2. The facts giving rise to it are that after the general election of the Mundwa Gram Panchayat., two ladies were to be co-opted to the said Panchayat and for that purpose, the co-option proceedings were held on 5th January, 1960. The appellants were declared co-opted to the panchayat while the nomination papers of respondents Nos. 2 and 3 Smt. Heeran and Smt. Pyarudi were rejected by the Sarpanch on the ground that the Panchas who had filed the nominations had not taken oath under sec. 15 of the Rajasthan Panchayat Act, 1953 (Act. No. XXI of 1953—hereinafter to be referred to as the Act). The respondents Nos. 2 & 3 thereupon filed election petitions under Rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 (hereinafter to be referred to as the Rules) challenging the co-option of the appellants. The learned Civil Judge came to the conclusion that it was not necessary for the Panchas to take oath before filing the nomination papers of respondents Nos. 2 and 3 and that their nominations were wrongly rejected. He, therefore, allowed the election petitions and declared the co-option proceedings to be void. Aggrieved by that decision dated the 4th October, 1961, the appellants filed writ application under Article 226 of the Constitution of India in this Court. The learned Judge who heard the said application followed the view earlier taken by him in Manakchand Vs. The State of Raj.(l) and Moolchand Jhanjhari Vs. Collector Ajmer (2) and upheld the decision of the Civil Judge. It is against this decision that the present appeal is directed.

3. It is urged by learned counsel for the appellants that the view which was expressed by the learned Judge in Manakchand Vs. State of Rajasthan(l) was based on the interpretation of sec. 61 of the Rajasthan Municipalities Act, 1959 and that taken in Moolchand Jhanjari Vs. Collector, Ajmer (2) was based on the interpretation of sec. 72 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959, that the language of sec. 15 of the Act was very different and that he had committed an error in interpreting this section on the analogy of the sections appearing in other Acts. Since the decision of the appeal turns upon the interpretation of sec. 15 of the Act, it would be proper to reproduce it here. It runs as follows:–

"Oath or affirmation—Every Panch or Sarpanch shall, as soon as possible after his election or appointment, as the case may be, make in the prescribed manner the prescribed oath or affirmation of his office and, unless this is done, shall not perform any of his functions under this Act."

It is urged by learned counsel for the appellants that according to the language of the said section, every Panch or Sarpanch should take oath of office "as soon as possible after his election or appointment" and this shows that the legislature did not approve of any delay on the part of Panch or Sarpanch in taking oath of his office. It is next contended that the further use of the words "shall not perform any of his functions under this Act" clearly shows that a Panch or Sarpanch cannot proceed even to file nomination paper for the purpose of co-option because co-option is one of the functions to be performed by him under the Act.

4. We have given due consideration to this argument and have no hesitation in agreeing with the learned counsel to the extent that it would be proper for every Pancha and Sar Panch to take oath of his office after his election or appointment without unnecessary delay but the question which arises for determination in this case is : whether a nomination paper filed by him for the purpose of co-option would be invalid for the mere reason that he does not take oath of the office before filing it ? It the language of sec. 15 (noted above) be given

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