RAJ KUMAR KUNDAN LAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is a petition of 17 persons who claim to be voters of the Ludhiana municipality to challenge the continuance of respondents 4 to 43 as members of the Municipal Committee, Ludhiana, to which they were notified to have been elected on 1st of July, 1964.

(2.) THOUGH there are other reasons for the challenge, as stated in the petition, the only ground which has been urged by Mr. Sachar, the learned counsel for the petitioners, is that the forty respondents who were elected to the Municipal committee, Ludhiana, not having taken the oath within the statutory period prescribed in Section 24 of the Punjab Municipal Act (hereinafter referred to as the Act) their election consequently should "be deemed to be invalid" under Subsection (2) of Section 24 of the Act. In order to appreciate the argument of Mr. Sachar, the provisions of Section 24 may be briefly set out:-

(3.) THE question which arises for determination is whether the language of Subsection (2) of Section 24 of the Act justifies a declaration from this Court that the election of respondents 4 to 43 shall be deemed to be invalid ? It is an essential pre-requisite that a person so elected should omit or refuse to take the oath of allegiance within three months from the date of the notification before his election can be deemed to be invalid. Concededly, the respondents have never refused to take the oath. Mr. Sachar submits that while there is an element of volition in the act of refusal, an omission, on the other hand, includes a mere failure or noncompliance with the requirement of taking the oath within three months from 1st of July, 1964. It is to be noticed that the oath of allegiance as required by Sub-section (1) of section 24 should have been refused or omitted by the person who is to be punished by the deeming clause. The oath of allegiance in Sub-section (2) is relatable to the requirement of Sub-section (1) which says that an oath of allegiance has to be taken at a meeting before a member can enter upon his duties after his election. There must, therefore, be meeting before the question of omission or refusal to take oath can arise. A person may conceivably omit deliberately to take the oath at a meeting, as when he may be absent unavoidably on account of illness or business and such an omission like a refusal would entail the penalty of the election being deemed to be invalid. The juxtaposition of the words 'omits' and 'refuses' indicates strongly, in my opinion the essential element of volition and excludes an omission which is not an act or failure on the part of the person himself. Such a construction of the word 'omits' which appears to be reasonable on first principles also finds support from the dictionary meaning of word 'omission'. In Shorter Oxford English Dictionary, the word 'omission' is defined as 'non-performance or neglect of action or duty' or 'the action of omitting'. Now, in both these concepts of the word, some conscious act is necessarily implied. Omission or refusal has to be by a person and unless it is condoned by the Government, the deeming clause would operate. There is no occasion for the state to condone an act of omission where the person has not been given a chance to take the oath. When no meeting was convened, how could a person be said to have omitted to take the oath of allegiance in it ? The construction which is sought to be placed on the word 'omission' by Mr. Sachar is opposed to the plain meaning of the word given in the dictionary, as also in its connotation and context.