LAKSHMI NARAIN SHARMA Vs. PRATAP SINGH

JUDGEMENT

(1.) THIS is a petition under Art. 226 of the Constitution by one Lakshmi Narain Sharma, Sarpanch of Panchayat, Nakrasar, who is an ex-officio member of Panchayat Samiti Ratan Nagar under sec. 8 (1) (i) of the Rajas-than Panchayat Simitis and Zila Parishads Act, 1959, challenging a decision of the Senior Civil Judge, Churu, acting as a Tribunal under the Rajasthan Panchayat Simitis and Zila Parishads (Election Petition) Rules, 1959, dismissing his petition under R. 5 read with R. 10 thereof against the co-option of respondents Nos. 1 to 7 as members of the Panchayat Samiti.

(2.) THE co-option was challenged inter alia on the ground that the members of the Panchayat Samiti who took part in the special meeting for co-option held under sec. 11 did not take the oath as prescribed under sec. 72. THE members of the Panchayat Samiti who took part in the co-option proceedings were Sarpanchas of all Panchayats in the block and they had taken oath as Sarpanchas of their respective Panchayats in the form prescribed in R. 62 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960 read with sec. 15 of the Rajasthan Panchayat Act. This section 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 affir mation of his office and, unless this is done, shall not perform any of his functions under this Act. " THE form of oath prescribed under R. 62 (in Schedule II) runs as follows: - "i. . . . . . . . . . . . . . having become a Panch/ Sarpanch/member of the Panchayat/nyaya Panchayat, swear in the name of God, solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law establi shed and that I will faithfully discharge the duty upon which I am about to enter. "

(3.) THE form of oath is no doubt similar to the form prescribed under the Panchayat Samitis & Zila Parishads Act. But there is no specific provision in the Rajasthan Municipalities Act, 1959 or in the rules framed thereunder requiring a member to take oath before taking part in the co-option proceedings. It is no doubt true that co-option is merely an election and on general principles it should not be necessary for a person to take an oath of office before taking part in an election. For in doing so he only exercises a right which accrues to him by virtue of being elected to or by virtue of being an ex-officio member of a corporate body. He does not act in the performance of any of the duties of the corporate body for the performance of which the oath of office is generally prescribed. But these general principles cannot override the legislative intent which is expressed by the specific words used in sec. 72 of the Panchayat Samitis & Zila Parishads Act. Sub-sec. (1) prescribes that oath shall be taken by every member of a Panchayat Samiti before taking his seat at any meeting. It also prescribes that the oath is to be taken at a meeting of the Panchayat Samiti. Sub-sec. (4) enlarges the scope of the expression ''meeting of the Panchayat Samiti" by including therein the meetings referred to in secs. 11 and 12 namely the special meeting for co-option and the meeting for election of the Pradhan and Up-Pradhan. It may be mentioned here that the Panchayat Samiti is only fully constituted, not after the co-option of members prescribed under sec. 8 but only after the Pradhan and Up-Pradhan have also been elected. For till then the Panchayat Samiti cannot function as such.