1. This is a writ application by Quarabali, Bhinvraj and Nemichand under Article 226 of the Constitution by which it is prayed that respondents Nos. 4 to 19 who have been lately elected as members of the Pali Municipality and respondents Nos. 20 and 21 who have been nominated by the Government thereto be restrained from functioning as members of the said municipality and that fresh elections be ordered to be held in accordance with law.
2. The facts which have led to the present application may be shortly stated as follows : A general election was held for the Pali municipality on the 3rd and 4th April, 1949, Respondents Nos. 4 to 19 are the successful candidates thereat who have been declared to be members of the municipality, and their names have been notified in the State Gazette. Respondents Nos. 20 and 21 appear thereafter to have been nominated as members of the said municipality. Of the petitioners, the first two are the defeated candidates, Quarabali having, offered himself as a candidate for ward No. 5 and Bhinvraj for ward No. 15, and the third petitioner Nemichand is a resident of and a voter on the electoral rolls of this municipality.
It is admitted between the parties that the boundaries of this municipality were revised by a notification of the Government dated 15-2-1953, under Section 5(1) of the Rajasthan Town Municipalities Act (No. XXIII), of 1951 (hereinafter referred to as the Act), (Document No. 1), In 1955 by a notification dated 12-1-1955, before the last but one general election was held for this municipality, the composition of this board was fixed so as to consist of 17 members out of which 15 were to be elected, one from each of the 15 wards of the municipality and two were to be nominated, and the entire municipal area was decided to be divided into 15 wards and each ward was directed to return one member from it.
By this very notification, the description and the extent of the several 15 wards were given (Document No. 2). Accordingly elections were held, and a municipal board was formed, and it started functioning from the 26-9-1955. The term of the board, being three years, was due to expire on 25-9-1958, but it was extended upto 3-6-1959 by the State under Section 15 of the Act. It is thus obvious that a fresh general election was due in the beginning of June, 1959. What happened in the meantime has resulted in the present development which have been rather unfortunate.
By a notification published in the Rajasthan Gazette dated 17-7-1958, (document No. 3) the then Chairman of the municipal board published the extent and description of the proposed 16 wards ofthe Pali municipality one more than the members previously fixed. The Collector, Pali, by his notification dated 24-7-1958, which was published inthe Rajasthan State Gazette dated 7-8-1958, announced under Section 10 of the Act that the Pali Municipality would be divided into 16 wards, and it was also mentioned that full description thereof had been already given under the notification published in the Rajasthan State Gazette dated 17-7-1958, referred to above.
This notification also said that each ward willreturn one member by election (See document No. 4). It may be pointed out here that by notification No. F-l(b)(6) LSG/52 II dated 20-10-1955 theGovernment of Rajasthan acting in exercise of the powers conferred on it by Section 207 of the Act orderedthat all the powers of the Government under Section 10 would also be exercised by the Collectors within their respective districts. In other words, this notification gave concurrent authority to the Collectors to exercise the powers covered by Section 10 of the Act.
A returning Officer, namely, the Sub-Divisional Magistrate, Pali, was then apparently appointed to take the necessary steps for carrying out the elections of this Municipality. Accordingly by a notification published in the State Gazette dated the 27-11-1958 the Suit-Divisional Magistrate published a programme of the forthcoming elections for the Pali Municipal Board (Document No. 5). According to this notification, the polling was to take place on the 3rd and 4th April. 1959.
The preliminary electoral rolls were to be published on 4-11-1958, according to Rule 7, of the Rajasthan Town Municipal Electipn Rules, 1951, (hereinafter referred to as the rules), and after the necessary steps for the revision of the said rolls being undertaken, the final rolls were scheduled to be published on 31-1-1959 under Sub-rule 3 of Rule 11. The last date for the receipt of the nomination papers was fixed as 11-3-1959 and the final list of thecandidates duly nominated was to be announced on 116-3-1959. The elections for wards Nos 1 to 8 were scheduled to be held from 8 A.M. to 5 P.M. on the 3-4-1959, and likewise elections for wards Nos. 9 to 16 were to be held on 4-4-1959.
The elections were accordingly held on the prescribed dates, and respondents Nos. 4 to 19 were duly declared as the elected members of this municipality. Thereafter, respondents Nos. 20 and 21, were also nominated as members of this Board by the Government although the exact date of their nomination is not disclosed on the record. It is important at this place to mention that under Section 7(1) of the Act, the State Government published a notification dated 8-9-1958, in the State Gazette dated 9-10-1958, (Document No. 6). by which it was proposed to extend the limits of the Pali Municipality in the manner mentioned at the foot of the notification, and objections were invited to this, withintwo months of the publication of the notice.
It is admitted before us that certain more territory (though according to the respondents this territory was all unpopulated) was proposed to be added including Naya Gaon to the old limits of this municipality. Then came the final notification ot the Government dated 15-3-1959, which was published in the State Gazette dated 26-3-1959 by which in effect the various additions proposed to be made were accepted save that the Naya Gaon area which was earlier proposed to be added was excluded.
It may be noticed that this notification came into existence long after the wards had been formed and notified by the Collector vide his notification dated 24-7-1958 published in the State Gazettedated 7-8-1958 (Document No. 4). After the elections were held and the names of the successful candidates were declared, the Collector by his notification dated 18-5-1959, appointed the Sub-Divisional Magistrate Pali to preside over the special meeting of the board which was called for the purpose ot holding the election of the chairman on 1-6-1959. This gave rise to the present writ application which was filed by the petitioners in this Court on 23-5-1959, during the summer vacation.
An interim prayer was made to restrain the respondents No. 4 to 21 from, functioning as members of the Pali Municipal Board as also from proceeding to elect a chairman. This prayer was ordered to be considered along with the writ application itself by a learned single Judge before whom the matter originally came, and it was further directed that as the case involved questions of considerable importance, it should be placed before a Division Bench for decision. This is how the case has come before us.
3. From the array of facts set out above, two main points have been argued before us. The first is that the limits of the Pali Municipality as altered by the Collector were improperly acted upon for the purposes of the last general election inasmuch as the order of the Government extending the previous limits of the Pali municipality was published as late as 26-3-1959 only about a week prior to the date of the polling, and the Government was the only authority which have altered the limits under Section 7 of the Act, no powers thereunder having been delegated to the Collector or any other authority, and, therefore, in effect there was no validly delimited local area which could have gone to the polls, and almost the entire election programme right upto the settlement of the nomination of the various candidates was premature and ineffective and null and void.
4. In the second place, it was contended that the provisions of Section 10 of the Act has not at all been complied with because the total number of members who were to compose this municipality had not been determined, even though it was said that the number of the elected members was to be 16 vide the Collector's notification dated 24-7-1958 (Document No. 4).
It was contended that it was not mentioned in this notification as required by Clause (a) of Section 10 what would be the total strength of this municipal board nor was it mentioned under Clause (b) of this section read with Section 9 whether the board was to consist only of elected members, or it was to consist partly ot elected members and partly of nominated members, and in the latter case, again, the proportion of the nominated members to the elected members was not fixed. All that this notification did was, under Clause (c) of Section 10 to have fixed the number of the members to be elected and it merely provided that each of the 16 constituencies was to return one member.
It was also submitted that although it was correct that the number of constituencies and their extent and description were specified in this notification in accordance with Clause (d) of Section 10, but as the limits of the Pali Municipality were undergoing an alteration, and the old limits were not being adhered to, the description and the extent of the constituencies were altogether premature, unauthorised and of no avail until such limits were determined by competent authority inasmuch as the power to revise the limits vested in the Government and Government alone under Section 7 of the Act, and had not been 'delegated to the Collector or for that matter any other authority.
5. These contentions have been traversed before us by a written reply filed on behalf of MohammadSaddiq, respondent No. 8, and only oral arguments were addressed so far as the remaining respondents were concerned.
6. A number of preliminary objections have been raised before us on behalf of the respondents, these being (1) that an alternative remedy by way of an election petition is available to the petitioners under Section 19 of the Act; (2) that the petitioners 1 and 2 had contested the elections and thereby acquiesced in them and, therefore, they should be held to be estopped from challenging them by means of a prayer for quo warranto; (3) that a joint petition by more than one petitioner was not maintainable and (4) that the municipal board was a necessary party to these proceedings and that it had not been impleaded; and it is prayed, therefore, that the present application be dismissed on all or any of these grounds.
7. The most formidable of these objections is No. 1, namely, that as the petitioners have an alternative remedy by means of an election petition, they are not entitled to any relief from us in the exercise of our extraordinary jurisdiction. Reliance has been placed in support of this proposition on a number of decisions of this Court, Tekchand v. Banjarilal, ILR (1956) 6 Raj 910 : (AIR 1956 Raj 185) Malchand v. State of Rajasthan, ILR (1955) 5 Raj 32 and an unreported Division Bench case of this court, namely Kapoorchand v. State of Rajasthan Civil Writ Petn. No. 165 of 1955, D/-31-7-1957.
8. Now before I deal with these cases, let me examine Section 19 of the Act which provides for a challenge to the validity of elections held under the Act by an election petition. As pointed out in Tekchand's case ILR (1956) 6 Raj 910: (AIR 1956 Raj 185) to which I was a party, the language of Section 19 is somewhat unhappy, ill-arranged and obscure, and the grounds on which an election petition can be filed have to be gathered from the various subsections of the Act. Thus, under Section 8(a) an election may be challenged on the ground of a corrupt practice (which has been defined under Sub-section 4 of this very section), and it may also be founded on the ground of a material error or irregularity, that is, an error or irregularity whereby the result of the election has been materially affected. (See Sub-section 5 along with its explanation.)
Sub-section (5) clearly provides however that it the validity of the election is challenged only on the ground of an error by the officer or officers charged with carrying out the rules for holding the election or of an irregularity or informality not corruptly caused, the election shall not be set aside. In other words, the law is fairly clear that an election cannot be set aside merely on the ground of an error or irregularity which is not serious, that is, when it does not or cannot have the force of materially affecting the result of the election.
9. The main grounds on which the election in the present case is sought to be challenged before us, as already pointed out above, are, firstly, that the territorial limits adopted for the purpose of holding the elections of this municipality at the last general elections thereof were not validly fixed and could not be retrospectively applied, and, secondly, that the composition of this board had not been lawfully determined as required by Section 10 of the Act.
10. Now the question which directly arises for determination in this case is whether any defects of the kinds described above are, properly speaking, errors in the holding of an election or are more fundamental matters affecting the territorial constitution and the composition of the board. I may stata at once that there is no direct authority of ourCourt on this point inasmuch as this point does not appear to have been expressly raised in any of the cases which we have otherwise been able to gather. It is correct that, in the present case, the errors on which the petitioners found their case are indirectly connected with the election, and it is on their basis that the elections are sought to be set aside. But that by itself cannot, to my mind, be a valid reason to hold that these matters are properly matters for an election tribunal and that they can be challenged, if at all, by an election petition and by no other process. Let me take a simple example. Supposing the Government does not declare any local area to be a town municipality under Section 5 of the Act and somehow a municipality is brought into existence and it proceeds to hold its elections, and then such elections are sought to be questioned by a writ application to this Court. The question which then arises is whether such an application can be thrown out on the ground that the matter can be fought out by the parties before an election tribunal. The answer to this question in my opinion can only be an emphatic no. An analogous question arose in connection with a case under the Marwar Village Panchayats Act, 1945, in Rangraj v. Gram Panchayat, Khinwel, ILR (1952) 2 Raj 301: (AIR 1952 Raj 144), and a Division Bench of this Court held that a notification under Section 4 of the said Act was the very foundation for the coming into existence of a Panchayat in a village, and where no such notification had been made, no Panchayat under the Act could function in any village and that, in the absence of such notification, the body which calls itself the Panchayat of village has no legal existence and cannot impose any taxes or perform any functions conferred on the Panchayat by the Act.
11. The next case to which I wish to refer relates to a town municipality, namely Sahlot Brothers v. State of Rajasthan, ILR (1956) 6 Raj 663 to which I was a party. The following observations bearing on the effect of Sections 5 and 7 of the Act, which I made in delivering the judgment in that case, may well be reproduced here:
'The effect of these sections, in our opinion clearly is that before a municipality can be said to have legal sanction behind it, it must have been brought into existence by a notification under Section 5 preceded by a prior notification under Section 7. It is further clear to us that what is declared as a municipality is a local area, and it is, therefore, implicit that such local area must be defined as regards its geographical limits without which it would be impossible to know which area has been made the subject-matter of the notification. In fact Sub-section (2) of Section 5 makes it abundantly clear that every notification constituting a new municipality ('or altering the limits of an existing town municipality') shall clearly set forth the local limits of the area to be included in the municipality.
Further emphasis is laid on the same requirement in Sub-section (3) which enjoins that every municipality under the Act must set up substantial boundary marks around its own area and maintain them at its own cost. 'We further think that it is on the basis oF its geographical limits that it is in due course divided into certain constituencies which are charged with the duty of electing members who then constitute a municipal board'. Where, therefore, the territorial limits of a municipality are not defined according to law, and in precise terms, it seems to us that it would be impossible to hold that a municipality or a particular Municipal Board governing it at any particular time has been effectively brought into existence or that it can function effect-ually and compel submission without which all government is rendered futile.
We would also draw attention to the fundamental principle that a municipality is a delegate from the State and its authority to function is dependent upon the limits of the authority delegated and, therefore, it can only tax persons or property strictly within its own limits and not outside them and these limits must therefore, be certain and require to be defined. We, therefore, hold that it is essential for a properly constituted municipality to come into existence that its limits must be clearly defined by or under competent authority and such limits must be duly published in accordance with law, and in the absence of such a delimitation, it would not be possible for it in law to levy and recover any taxes and further the very existence of its governing body would become open to a vital defect and its ability to function legally and effectively would stand impaired and destroyed.'
I further observed as follows:
'What we must however, further point out is that apart from the question of defining the boundaries of a local area so as to invest it with the status of a municipality what is of paramount importance is that the State Government must make a declaration that it is constituting a particular area as a municipality. 'We are altogether unable to accept the contention that a valid municipality can come into existence without any such declaration by mere acquiescence or implication.' As the policy of the Legislature is to provide a democratic base for the constitution of such self-governing organisations, provision has been made for making a proclamation that the Government intends to constitute a particular area as a municipality and due publicity is required to be given and machinery is provided for eliciting objections and duly considering them. In other words, the preliminary proclamation is a condition precedent to finally declaring such area to be a municipality. It must be remembered, however, that it is this final step which is the decisive step and without it no municipality can come into existence in accordance with law. We also desire to point out that this last requirement is not a mere technicality but is a matter of vital substance, and we wholly repel the idea that a municipality under the Rajasthan Act or for that matter under any other Act can be validly created without any such notification.'
(The underlining (here into ' ') is mine).
12. I should like to emphasise that what has been said above as regards the defining of the limits of a newly created municipality applies with equal force where the limits of any pre-existing municipality are to be altered. Under sub-section (3) of Section 5, it is not only the duty of the municipal board in every town municipality already existing and of every town municipal board newly constituted under this Act to erect and maintain at its cost the boundary marks of its lawful limits, but the law imposes the same duty on every municipality the local limits whereof are sought to be altered.
It clearly seems to me, therefore, that where the local limits of an existing municipal board are sought to be altered, but they have not been altered by a competent authority, and in this state of affairs the municipality goes to the polls and elects its members, then the correct position is that it is not the duly delimited municipality which has gone to the polls but a different body, and the error, to my mind, is so fundamental that it is not an error merely in the holding of an election but somethingwhich goes to affect the very constitution of the municipality in the eye of law,
13. I may also point out in this connection that it is only a matter of accident or coincidence that the question of the fixation or revision of the boundary limits of a certain municipality may arise in connection with the validity of an election, but it need not necessarily turn out to be so. An improperly constituted municipality in this sense may be taxing inhabitants living outside its properly fixed limits. Such a question, therefore, to my mind, is a question which is essentially separate from and independent of the electoral process and, in my opinion, cannot properly form the basis of an election petition.
I am disposed to hold the view that where an election is sought to be set aside by an election petition on the ground of an error or an irregularity, two things are essential: (1) that the error or irregularity must not be trivial or formal, but it must be a serious error in the sense that it has, or can necessarily have, the result of affecting an election. Secondly, such an error must be an error which is more or less intimately connected with the electoral process as such and must not be an error independent of it. What I mean to say is that any immaterial or unsubstantial error will and can never have the effect of vitiating the election, and it is only substantial or material errors which can have such an effect; but it is equally true to say that every substantial error made in violation of the provisions of the Act may not be capable of being challenged before an election tribunal although it forms a preliminary stage in the process of the election, because such an error is really a different kind of error and often a more fundamental one, which has the effect of vitiating the very existence of the municipality. If a particular case suffers from such an error, I have no doubt that it is going too far to say that it should be or can be attacked only by way of an election petition.
14. Bearing the afore-mentioned distinction in mind, my conclusion is that both the errors pointed out in the present case, although they are certainly material, arc not errors primarily connected with the holding of an election but are more fundamental ones which go to affect the constitution of this municipality as a whole at the relevant time, and, that being so, the contention of the respondents that an alternative remedy by way of an election petition is open to the respondents has, in my opinion, no force.
15. I shall now briefly refer to the cases on which learned counsel for the respondents has relied on this aspect of the case. Taking up Tekchand's case ILR (1956) 6 Raj 910: (AIR 1956 Raj 185) first, the principle was no doubt emphatically laid down therein that where the validity of an election can be questioned by way of an election petition, this Court should not interfere before trie remedy by way of an election, petition is exhausted. It should be remembered, however, that this case related to the improper rejection of a nomination paper by the Returning Officer. The contention which was raised in that case was that such a step did not strictly fall within the term 'election'.
This was repelled and it was pointed out that this term has both a narrow and a wide meaning, and that it connotes in its wide meaning the entire process of election right from the time when a written notice in connection with the holding of an election is given calling upon the constituency to go to the polls upto the stage where the Returning Officer declares the result of the election; andIt was, therefore, held that the act of the Returning Officer in accepting or rejecting the nomination paper or refusing to receive the same was clearly a matter which formed part of the process of the election.
In the first place, this case is therefore no authority for the view that the defective constitution or composition of the municipal board either from the view point of the fixation of its territorial limits or the contents of its membershipbecause of any non-compliance with the provisions of Section 10 is a matter which can be taken for redress to the election tribunal. In tact, havingregard even to the comprehensive meaning put on the word 'election' as used in Section 19, it seems to me to be clear that the matters relating to the composition of the board or to the proper delimitation of its area can hardly be understood to form part of the process of an election, and this case really seems to me to run counter to the contention raised by learned counsel for the respondents.
16. The next case on which learned counsel relies is ILR (1955) 5 Raj 327. This was a case in which the authority of a municipality to levy a certain tax was questioned on certain grounds. One of these grounds was that certain areas were included in the municipal limits of Sardarshahar municipality which should not have been included therein as there was no order of the Government to that effect. The other contention was that the mandatory provisions of Sections 60(b) and 46(2) of the Act were not complied with, as there was no lawful publication of the rules and the bye-laws. This last-mentioned contention was accepted and the municipality was prohibited from realizing the new 'taxes.
But the first contention was disposed of by saying that if certain areas were included in the municipal limits of Sardarshahr, this point should have been made the basis of an election petition under Section 19 of the Act, and it is on this part of the judgment that learned counsel places his strong reliance. If I may point out with all respect, the question whether an election petition would or could be the only proper way of challenging the legal existence of the municipality from the view-point of its territorial content, does not appear to me to have been made the subject-matter of any elaborate argument or consideration. Besides, the learned Judges might not at all have considered it necessary to examine this aspect of the case with any particularity as the application before them was being allowed on another ground.
17. I next turn to Kapoorchand's case, Civil Writ Pctn. No. 165 of 1955, D/-31-7-1957 (Raj). The facts of this case were that among otherdefects the Returning Officer had constituted the wards of the Jobner Municipal Board and ordered that each ward shall return one member, and the voters' list was not prepared with reference to the wards made. It was therefore, prayed that the entire election be declared to be null and void and the election of the respondents who had been declared to be successful be set aside. A preliminary objection was raised on behalf of the respondents that the petitioner had a remedy by way of an election petition to question the election, and he having not done so had no right to come to this Court under Article 226 of the Constitution, and reliance was placed in support of this contention on Tekchand's case ILR (1956) 6 Raj 910: (AIR 1956 Raj 185),
This objection was upheld, and it was decided that as it was open to the petitioner to seek redress by way of an election petition, he should not be allowed any relief in exercise of the extraordinary jurisdiction of this Court under Article 226 of theConstitution. I have carefully considered this caseand am of opinion that it is clearly distinguishable inasmuch as the municipal area of the Jobner municipality was divided into a number of constituencies or wards by the Returning Officer himself,and it was the Returning Officer again who had fixed the number of members to be returned from each ward and some of the other irregularities which were challenged in the case were also made by the Returning Officer himself.
In these circumstances the irregularities committed in that case could and should have been challenged before the Election Tribunal, and, that having not been done, the Bench, if I may say so with all respect, was fully justified in coming to the conclusion that the petitioner should have filed an election petition, and as he did not do so, it was not open to him to seek relief by a writ application to this Court under Article 226 of the Constitution. It should be borne in mind that the irregularities on the strength of which the election is sought to be set aside in the present case were not committed by the Returning Officer but by the Collector or by the Government. I may repeat, what I said in Tekchand's case. ILR (1956) 6 Raj 910: (AIR 1956 Raj 185) that where a right or liability is created by statute and that statute gives a remedy for enforcing it, the remedy provided by the statute must be availed of, and therefore, where an election is capable of being challenged by an election petition under Section 19 of the Act, the petitioner must pursue that remedy and exhaust it before coming to this Court.
But obviously the irregularity even though it is material must be one which has been committed in the process of election, using the word 'election' in its extensive sense, and where the irregularity on account of which the election is sought to be impugned is of a character which is not really or directly connected with the electoral process (and such a case, in my opinion, occurs where an irregularity has been committed in the sense that the geographical, area of the Municipality has been unlawfully accepted or altered, the necessary steps therefor having not been taken by the Government as required by Section 7 of the Act, or where the total strength of the members of the Board has not been fixed as required by Section 10 of the Act) and the municipality is made to proceed to elect its members, then I find it extremely difficult to hold that such an irregularity cannot be made the subject-matter of a petition to the High Court under Article 226 of the Constitution for the purposes of an appropriate writ being issued against the authorities or persons concerned.
As a matter of fact, it seems to me that such irregularities are outside the real scope of an election petition and cannot be made the subject-matter of an election petition although I am prepared to concede that they are most material and substantial and may have the effect of vitiating an election. If that is the correct view to take, as I think it is, of the irregularities of this class, and it is these with which we are concerned in the present case, I am clearly disposed to hold the view that they do not fall within the ambit or principle of Tenchand's case ILR (1956) 6 Raj 910: (AIR 1956 Raj 185), and if any person aggrieved by such irregularity invokes the extraordinary writ jurisdiction of this Court, then it would and should not refuse redress where a case for its interference is otherwise properly made out.
18. I may now refer to a few cases which support the view which I have felt persuaded to propound above. In Radhey Sham v. Chief Commr., Ajmer, AIR 1956 Ajmer 25, what is important to point out for our present purposes is that the voters in the Ajmer Municipality were asked to go to polls before the composition of the Ajmer Muni-cipal Committee was determined in accordance with law under Section 8(1), of the Ajmer-Merwara Municipalities Regulation, 1925 (No. VI of 1923) which is more or less in the same terms as Section 10 of the Act under consideration and no separate rolls of municipal voters had been prepared. A question arose whether the voter had a right to come to the High Court for the issue of a writ in order to stop the election which was being held contrary to law. This question was answered in the affirmative as it was held that it went to the very root of the matter.
This case went to their Lordships of the Supreme Court in Chief Commr., Ajmer v. Radhey Shyam, AIR 1957 SC 304 in a somewhat different context because the Chief Commissioner had meanwhile determined the composition of the Committee by another notification. The question which arose before their Lordships of the Supremo Court Was whether the Judicial Commissioner was right in restraining the elections from being held on the due date and their Lordships made the following observations
'It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned. It was in our opinion, therefore, necessary for the Chief Commission to frame rales in this behalf, said in so far as the rules which were thus framed omitted these provisions they were defective.'
The point to note is that it was virtually accepted in this case that where irregularities of this nature had occurred and they are sought to be challenged by a writ application by aggrieved party, the application eannot be thrown out on the ground that it was either premature or that it should be made the subject-matter of an election petition first.
19. In N. Kotayya v. State of Andhra, AIR 1957 Andh Pra 907 a notification was issued excluding a particular area from a certain Panchayat and including in it another neighbouring Panchayat area. Elections were held on the basis of this altered jurisdiction, and the president of the Panchayat was elected. The Government set aside the election and also declared the notification altering the area of the Panchayat as null and void. This order was made the subject matter of a writ application to the High Court on the ground that it was illegal and without jurisdiction.
One of the important contentions raised before the High Court was that as the election of the Panchayat had already been held and a president had also been elected, the only manner in which these elections could be set aside was by an election petition. It was held that the very foundation of an election to a panchayat is the constitution of one or more villages as a panchayat. and then the entire area which is sought to be placed under the panchayat has to be divided into wards, and the number of members to be returned by each ward has to be fixed, and the total number of members of apanchayat have to be determined and notified by the Inspector under Sections 6 and 9 ot the Madras Village Panchayats Act (No. 10) of 1950 and under Section 10(2) the election authority has to fix the date of the election, and that these fundamental requisites must be complied with before there could be any election at all.
It may in passing be mentioned here that orders made by the Inspector with regard to these preliminary steps which are to precede an election have been made open to revision by the Government under Section 128 of the Madras Village Panchayats Act (No. X) of 1950. It was further held that the rules for the decision of the election disputes contemplate an ex facie regular election where the preliminary steps preceding the election and required by law have been taken by the appropriate authorities.
If an election is purported to be held for an area not legally constituted as a panchayat, the election itself would be void. It was therefore further held that if the essential steps required by law to be taken as preparatory to an election have not been taken, or if such steps have been taken in a manner opposed to law, then, in that case the election would be void ab initio and wholly without jurisdiction and no question as to the result of the election being materially affected would arise as envisaged by Rule 1(1).
In other words the finding was that breaches or transgressions of the law regulating the formation of constituencies for which elections are to be held, committed before the beginning of the election, do not fall within the scope of an election dispute, properly so called, as ordinarily the first formal step in every election is the notification fixing the date therefor and the preliminary steps to be taken for the purposes of the holding of the elections stand on a different footing. The point which is established by this case is that breaches of the law regulating the formation of constituencies and the like arc among the preliminary steps for holding an election but do not form part of the electoral process as such.
20. I do not wish to multiply cases and hold that the correct position is that where an election is sought to be challenged by a person aggrieved by it such as a voter or a defeated candidate, not on the ground of some defect in the process of election, using the word in its wide sense, which begins from the publication of the notice calling upon a local area to go to the poll and ends up by the declaration of the result of the election, but on the ground of transgression of law in respect of certain preliminary matters which go to affect the very roots of the local body, then it would be going too far to hold that an application to the High Court for an appropriate writ cannot He and that even such matters should be left to be decided by an election petition, which matters, in my opinion, do not properly fall within the scope of any dispute relating to an election and can hardly be made the subject-matter of contest before an election tribunal.
21. Applying this principle to the irregularities alleged to have been committed in this case, namely, that the composition of the Board was not properly fixed or that certain areas were included within the municipal limits without proper governmental authority, I have no hesitation in coming to the conclusion that these can properly be made the subject-matter of a writ application to this Court under Article 226 of the Constitution, and, therefore, I overrule the preliminary objection on this score.
22. It was also brought to our notice in this connection that some election petitions have already been filed (1) by Barketali and (2) by Gani whoare among the defeated candidates and (3) by some voters, and to these applications the petitioners Nos. 1 and 2 have been made respondents and therefore we should not entertain the present application on this ground also. One ot these applications filed by Burkatali has also been placed on the record. It is, however, admitted before us that the reliefs claimed in these applications are to set aside the elections in certain particular wards only and they do not seek the setting aside of the entire general election.
The scope of the present application is, therefore, very much wider. Besides, on the principle which I have elaborately discussed above, I am far from satisfied that the kinds of irregularities which are being challenged before us can be properly made the subject-matter of enquiry and adjudication by an election petition. This argument, there-tore, is of no avail and I hereby repeal it as unsound.
23. The second preliminary objection is that the petitioners Nos. 1 and 2 had themselves stood up as candidates and contested the elections, which they were now challenging, and were defeated, and, therefore, having acquiesced in the election they should not be allowed to challenge the election by this writ petition. This objection, in my opinion, has no force for the simple reason that it is much too well established to admit of any doubt or dispute that there can be no estoppel against a statute.
If any authority were added for this proposition, reference may be made to Kanghi Baula v. Chief Executive Officer, Janpad Sabha, Durg, (S) AIR 1955 Nag 49 (FB). I respectfully agree with the further principle laid down in this case that there can be no question of any estoppel because it cannot be said that the position of the other side was in any way altered by reason of something done 01 not done by the petitioners. This preliminary objection, therefore, has no substance and I overrule it.
24. The third preliminary objection is that a joint petition by more than one petitioner was not maintainable and, therefore this petition should be dismissed. This objection seems to me, to have no force whatsoever. It is not disputed that the petitioners have a locus standi to file this petition for obviously two of the candidates were defeated at the election and the third one is a voter in this very municipality. The objection merely relates to the form of the petition and has no substance in it.
I may also point out that under Order 1 Rule 1 C.P.C., all persons may be joined in one suit as plaintiffs where the right to relief arises out of the same act or transaction or series of acts or transactions, and, secondly, the matter is such that if the plaintiffs brought separate actions, common questions of fact or law would arise. The principle is that even in cases where the plaintiffs seek individual reliefs where the investigation would to a large extent be identical in each of the cases, they may unite as co-plaintiffs and avoid useless expenditure. On the analogy of this principle, I overrule this contention.
25. The fourth objection is that the municipal board, Pali, was a necessary party to these proceedings and as it has not been made a party, the present application must be dismissed. The short answer to this objection is that no particular reliet has been sought against the Pali Municipality and that the Government of Rajasthan whose delegate the municipality is has already been made a party as respondent No. 1. The Collector, Pali, and the Returning Officer have also been made parties apart from the respondents whose election or nomination is being questioned. Consequently this objection has likewise no force and I hereby dismiss it as unsubstantial.
26. I next turn to the merits of the objections raised on behalf of the petitioners. The first contention of the petitioners is that the limits of tho Pali Municipality were last fixed by a proper notification in 1955. These limits were, however, sought to be enlarged at the general election held, in the beginning ot April, 1959, and that was why the then Chairman of the Pali Municipality purported to divide the entire area so altered into 16 wards. instead of the 15 wards which existed before, vide this notification dated the 17th July, 1958.
This was followed by a notification of the Collector dated the 24th July, 1958, and published in the Rajasthan State Cazette of the 7th August, 1958. What was mentioned in this notification was that the area of the Pali Municipality for the purposes of the forthcoming general election was divided, into 16 wards and each ward was to return one member and that the description and extent ot the wards had already been published under the notification of the Chairman dated the 17th July, 1958.
The question is whether this extension was in order 1 have no hesitation in saying that it was not. The extension was validly brought into force on. the 26th March, 1959 (vide document No. 8) when the Government issued its notification dated the 15th February, 1959, in the issue of the Rajasthan State Gazette dated the 26th March, 1959. It clearly seems to me that the division of the Pali Municipality into various constituencies could have taken place only after the issue of this notification and not before. That is what the scheme of Sections 5 and 7 of the Act clearly indicates.
Section 5 provides that the Government may, from time to time, declare any local area to be a. town municipality and may extend, contract of otherwise alter its limits subject to the provision of Sections 6 and 7. The provisions which apply to the initial determination of the boundary of a municipality clearly apply to any alterations therein, and that is why Sub-section (2) clearly provides that every notification whether it constitutes a new town, municipality or whether it alters the limits of an existing town municipality shall clearly set forth the local limits of the area to be included in or excluded from such municipality as the case may be.
Sub-section (3) then provides that every municipal board whose local limits arc so fixed or altered shall at its own cost erect and thereafter maintain substantial boundary marks defining the limits fixed in the first instance or the altered limits, as the case may be, of the municipality as set forth in tho notification. Section 7 then provides the procedure that before any local area is declared a town municipality or before the limits of any such municipality are altered, the Government shall cause to be published in the State Gazette a proclamation announcing its intention to constitute a municipality or to alter its limits, and a duty has been laid on it to invite objections to any of the aforesaid proposals from all persons living within the proposed area, and such objections are to be filed within two months from the date of the proclamation.
It is further provided that where it is proposed to add to or exclude from a municipality any inhabited area, it shall be the duty of the municipal board also to cause a copy of such proclamation to be posted up in conspicuous places in such area. Section 8 provides for the constitution and incorporation of a town municipal board for a municipality, and it is laid down that it shall have perpetual succession and a common seal and may site and be sued in its corporate name. Sections 9 and 10 may then be read together. These are in the following terms:
9. Municipal boards to consist of elected and nominated members.-
(1) Except as is hereinafter otherwise provided, every such municipal board shall consist of such number of members, wholly elected, or partly elected and partly nominated, as may be fixed under Section 10:
Provided that nominated members, if any, shall be selected by the Government from amongst persons who-
(i) belong to the female, sex or any of the backward classes specified in the Second Schedule appended to this Act, or
(ii) are executing the functions of any office from time to time notified in this behalf by the Government;
Provided further that when provision is made for nominated members the number of elected members shall not be less than three-fourths of the total number of members fixed for the Board.
(2) Any vacancy due to failure to elect' the full number of elected members which under this section might be elected and any vacancy due to failure to elect a member under Section 16 may, notwithstanding anything in this Act contained, be filled up by nomination by the Government.
(10) Government may determine the numberof members and fix the proportion of elected and nominated members. -
The Government shall, from time to time generally or specially for each municipal board, --
(a) determine the number of members;
(b) fix, subject to the provisions of the last preceding section, the proportion of the members, if any, who shall be nominated;
(c) fix the number of members to be elected in the municipality and by the several constituencies, if any, and
(d) issue orders for regulating the description, number and extent of constituencies for election of members.
After the various steps under Sections 9 and 10 have been taken, Section 11 provides for the preparation and operation of electoral rolls or the lists of votersentitled to vote in the municipality. These lists are required to be made in accordance with the rules made under Clause (b) of Section 205(2). The electoral roll remains in force for a period of three years from the date of its final publication unless the Government directs otherwise. Sub-section (2) of Section 11 provides that every person enrolled in the electoral roll for the time being in operation shall be deemed to be entitled to vote and every person not so enrolled shall be deemed to be not entitled to vote at every election of members.
27. I may here conveniently refer to some of the rules of election framed under Section 205 (2) of the Act. Rule 6 provides that the Returning Officer shall make a list of voters showing the persons entitled to vote in the municipality or, where it has been divided into wards for electoral purposes, in each such ward, not less than four months prior to the date of election. A copy of the list so prepared shall then be published as required by Rule 7, Rule 9 then provides that any person whose name is not entered in the list or where the name of another person has been wrongly entered therein may prefer a claim or an objection in the manner and within the time specified, to the Returning Officer for the amendment of the electoral roll.
The Returning Officer is then required to consider such objections under Rule 10 on a certain date to be fixed by him after giving notice thereof to the claimant or the objector. These objections are ordinarily required to be decided within 15 days from their presentation by a revising committeeappointed under Sub-rule (3) of Rule 10. An appealfrom the decision of the said Committee is made to lie to the District Magistrate within ten days from the date of its decision under Sub-rule (7). Every order passed by the District Magistrate under this rule is final.
The draft or the preliminary electoral rolls must be amended in accordance with the decisions so given, and this revised electoral roll is required to be published within three months of the date of the publication of the preliminary electoral roll, or, in other words, at least before one month of the actual holding of the poll. It is then that the Returning Officer is required under Rule 14 to give a written notice of the elections and this has to be given not less than one month before the date fixed for the election. Copies of the notice are required to be affixed at the municipal office and at other conspicuous place or places within the municipality.
Under Rule 15, nominations are invited from the various wards or constituencies, and the last date for filing the nominations should be fixed as not less than 15 days before the date of the polling. This list of the nominations is posted up, together with a notice inviting objections thereto, in the manner provided under Rule 17, and after hearing the objections and after such summary inquiry as the Returning Officer deems necessary, he is required to prepare a final list of such persons whom he considers to be eligible to stand for election and announce their names. If he rejects any nomination, he is required to state his reasons. Then the aetual polling takes place as provided under rules 19 to 35, and under Rule 36 the result of the election, after the necessary counting, is declared by him. This is a brief resume of the rules in so far as they are relevant for our present purposes,
28. A careful consideration of these provisions clearly shows to my mind that before a municipality can be legally asked to go to polls, its area must be delimited in accordance with the procedure laid down under Sections 5 and 7 of the Act. Then under Sections 9 and 10 it is the duty of the Government, and where such duty has been delegated to any other officer, the duty of such officer, to determine the total strength of the municipal board and, in particular, whether it would consist of all elected members or of partly elected and partly nominated ones, and in the latter event to fix the proportion of the nominated members in accordance with the limitations laid down under Section 9.
The Government or its delegate is under section 10 also required to take the necessary steps for the division of the area into several wards and to determine the number each constituency will be allowed to send as its representative by election. It is only when the area of a municipality has been properly delimited, or where the existing limits of a municipality are desired to be altered and such altered limits are properly determined and announced under Sections 5 and 7 of the Act that the various constituencies into which a municipality is sought to be divided for the purposes of holding a general election can be determined and not before.
To determine the constituencies first, and announce the limits of the municipality later would, if I may say so without any disrespect, be tantamount to putting the cart before the horse, and yet this is what seems to me to have unfortunately been the procedure adopted in this case. The chairman announced the altered limits by his notification dated the 17th July, 1958, and the Collector put his seal of approval thereon by his notification dated the 24th July, 1958. And indeed it was admitted before us that by this process certain portions were actually added to the old wards. Nos. 1 and 2 and they were redivided into three wards, and it was also admitted that Naya Gaon was sought to be added to ward No. 1,3 though it was eventually dropped out by the Government.
It must be remembered, however, that it is the case of no body before us that the Collector had the competence to alter the pre-existing limits of the municipality. Be that as it may, the Returning Officer proceeded to announce the programme ot elections in the issue ot the State Gazette dated the 27th November, 1958, including the preparation of the electoral rolls were to be published by the 81st January, 1959, and the last date tor nomination was fixed as the 11th March, 1959, and all this was scheduled to be done, surprisingly enough, when the altered limits of the municipality had yet not been authoritatively determined and announced by the Government which was the only competent authority in this respect.
The result was that the revised limits of this municipality became effective in law only on the 26th March, 1959, when the Government notification dated the 15th February, 1959, was published (Document No. 8) just a week before the elections were scheduled to be held. The conclusion, to my mind, is inescapable that there was a flagrant violation of the provisions of Sections 5 and 7 in the procedure adopted in the holding of the impugned elections, and that practically all the steps which were taken prior to the 26th March, 1959, by the Collector or the Returning Officer in this connection were without authority and without proper warrant in law and these should have properly followed and not preceded the notification of the Government published on the 26th March, 1959.
I am entirely unable to understand how the revised limits of the Pali Municipality could be divided into any wards and the electoral rolls framed therefor in accordance with law until such altered limits had been duly determined by the Government which was the only competent authority. If there was no vatidly determined area of this municipality, even to by revision of its pre-existing limits its division into various wards was vitiated ab initio, and similarly the electoral rolls for the various wards would also be vitiated, and in fact the very foundation for the functioning of this municipality whether for the purpose of the elections or any other municipal purpose became vitiated and unlawful.
29. It was argued before us that the areas which were so added were not populated and therefore were of no materiality whatever and we should therefore condone this defect. It is significant, however, that the reply and the affidavit filed by respondent No. 8 do not mention this matter of fact, in any case, I am unable to hold that the proposed extension was in order and can be brushed aside simply because the added areas were not populated. The reason, to my mind, is not far to seek.
It is and would always be a serious question whether these new areas were part and parcel ot the Pali Municipality for the purposes of municipal government at all material times before the holding of the elections and even afterwards, and whether the municipality would have jurisdiction over it lor the purposcs of exercising authority therein as respeets the people who may come to live in that area or as respeets the goods brought into or taken out of that area in the matter of taxation.
Realising the foree of this position, it was contended on the side of the respondents that this Court should hold that the proper limits of the municipality still continued to be those which were fixed by the Government by its notification dated the 15th Febru-ary, 1953 (document No. 1) and until the petitioners prove that the result of the election was materially affected by certain other areas being wrongly included therein, this Court should accept the elections that have been held as substantially good. This contention does not appear to me to be tenable. In the first place, this is not a case of an inadvertent error where certain areas were unintentionally included within the municipal limits and were allowed to go to the polls. But, on the other hand, this was a case of a deliberate extension of the boundaries of this municipality. That being so, I find myself utterly unable to accept the position that there was no unlawful violation of the provisions of Sections 5 and 7 of the Act, sufficient to vitiate the consequent elections. Besides, it is no use saying that this municipality went to the polls on the basis of its old boundaries, for the simple reason that this was not the factual position. The wards and the electoral rolls and the nominations were all founded on the basis of the altered limits which had not till then been sanctioned by a competent authority.
A simple example would be enough to expose the fallacy of this argument. Suppose some person from the added area stood up as a candidate for one of the wards. The question is, could he do so? I have no hesitation in saying that he could on the assumption that his name was on the electoral rolls of this municipality and that he was otherwise qualified. But if the argument of the respondents is to be accepted, the position would be that he could not stand as a candidate, which position, to my mind, would be legally indefensible in accordance with the tenor of the relevant provisions ot the Act and the Election Rules.
30. On a most careful and anxious consideration of the whole matter, therefore, I am strongly persuaded to come to the conclusion that the last general election of this municipality was unlawfully held, for the very foundation for the holding of such election with respect to its geographical limits was not lawfully laid and it cannot, therefore, be sustained.
31. I now turn to the next ground of attack based on non-compliance with the provisions of Section 10 of the Act. It is admitted before us that the Government had delegated all its powers under Section 10 generally to the Collectors within their repective districts by notification No. F-l(b)(6) LSG/52 IT dated the 20th October, 1955. It was, therefore, the duty of the Collector to have fixed the composition of the board as required by Sections 9 and 10.
All that the Collector did, however, by his notification dated the 24th July, 1958, (document No. 4) was that he had, acting under Section 10, ordered that the whole municipality was being divided into 16 wards for the purposes of the forthcoming election, and that these wards had been fully described in the notification of the Chairman published in the Rajasthan State Gazette dated the 17th July, 1958, and that each ward shall elect one member.
The contention on the side of the petitioners was that there was an utter failure to determine the composition of the total number of members of the board in the present case as required by Sections 9 and 10. and the Collector had not determined at all whether all the members of the Board were to be elected or some could be added thereto by nomination also and if so what was to be their proportion to the members elected. It was strenuously contended on the side of the respondents, however, that the earlier notification of the Government fixing the total membership of the Board dated the 12th January 1955, still stood in so far as it had not been altered by the subsequent notification.
But that notification published in the Rajasthan State Gazette, dated the 12th February, 1955, the Government had announced that for the general election of the Pali Municipality, the entire area had been divided into 15 wards and each ward would elect one member and that the total number of the members would be 17 out of which 15 would be elected to be sent up by each of the wards, and two would be nominated in other wards it is contended that the two notifications should be read together in order to see whether the requirements of Section 10 Were complied with.
I am afraid, I cannot see my way to accept this method of interpreting the notification of the Collector dated the 7th August 1958. as correct. For one thing, the language of the notification, in so far as it goes, is perfectly clear, namely, that there would be 16 wards and each ward would return one member and that the limits of the wards had already been published. This notification is completely silent as to what the total strength ot the Board would be. It is also silent as to whether there would be any nominated member or members on the Board or not, and if so, how many.
Again, there is no gainsaying the position that it did not make or suggest any reference whatsoever to the earlier notification of 1955. I have hardly any doubt that any voter reading the notification of 1958 could have rationally imagined that this was to be read along with any other notification previously issued. It is, therefore, impossible to accept that in order to get a complete picture of the composition of the Board, one would or could be expected to make a search for the earlier notification issued in 1955 and then read the two together. Again, assuming, though not conceding, that one knew the earlier notification also and was expected to read with both together, the difficulty does not end there.
32. A question at once arises what would be the net effect of the two notifications read together, What was the total number of members fixed for this Board? The earlier notification specifically fixed the total strength at 17. Was the total strength of the Board to remain at that figure? The latter notification says nothing expressly on the point. On the principle of interpretation that what is left unexpressed was in all probability not intended at all one may reasonably conclude that the total strength of the Board was to remain at 16 only and that no members were intended to be nominated at all.
But, again, assuming that this was not intended, and that the composition of the Board was to include some members by nomination also, the next question which arises is how was the number of tho nominated members fixed. Here again, the matter is not free from obscurity. It may be said from one angle that as the number of the nominated members was not mentioned at all, the old number remained which was two, and it was, therefore, that the Government nominated two members eventually.
But can it not be argued with equal reason that the earlier notification had fixed the total strength of tbe Board expressly as 17 and that if this total strength was intended to be changed, there should have been no difficulty whatsoever in saying so, and. therefore, the Government had acted erroneously in nominating two members instead of one because by doing so it would be acting in contravention of a specific provision made in the earlier notification?
The result is that according to the various interpretations attempted above, the total strength of the Board could be imagined to consist of 16 or 17 or 18 members according as one liked, and, tomy mind, we would be travelling completely in the realm of conjecture, if we were to adopt one or the other of these interpretations to the exclusion of the rest. In these circumstances, I have hardly anv doubt that the notification dated the 7th August, 1958, was thoughtlessly issued, if I may say so without any disrespect, and was and is a flagrant violation of the requirements of Sections 9 and 10 of the Act. I am, theretore, inclined to come to the conclusion that the composition of the Board was not determined according to law and the present Board has been illegally constituted and cannot be allowed to function.
33. It was argued in this connection that tho total number of members and the number of tho nominated members, it any, could be determined even after the elections were held, and, therefore, if the Government appointed two nominated members later, there was nothing wrong about that On a careful consideration of the whole matter, I do not see my way to accept this contention as correct. It clearly seems to me from an over all examination of the entire provisions of the Act and the Election Rules in this connection that the Government after it has announced tor the first time or altered, as the case may be, the limits ot the municipality by the due observance of the procedure laid down in Sections 5 and 7 of the Act, and before it calls upon such local area to proceed to election, it must determine the various steps enumerated in the four clauses of Section 10, and then and then only, a proper election according to the dictates, both of common sense and law, can be held and not otherwise.
To hold the elections first on the footing of a supposed territorial contest of a municipality, or its human content, and then to fix the number of its personnel whether entirely elected, or partly elected and partly nominated is, to my mind, clearly a process in the reverse gear and would be open to grave abuse and utterly contrary to the principles of any sensible system of democratic local self-government, and I am unable to accept it as correct. Even so, it may be noted in passing that no notification has been brought to our notice fixing the total membership of the Municipal Board until this date, and, therefore, there is hardly any scope for argument, so far as the present case is concerned, that the composition of this Board has been fixed at a certain figure later if not in the first instance. My conclusion, therefore, on this aspect of the case also is that the present Municipal Board is improperly appointed and cannot be allowed to function as a proper foundation for its membership was never laid.
34. There is one more contention to which 1 should like briefly to refer before I conclude. This contention was that as there was an alteration in the areas of wards Nos. 1, 2 and 3 only, and the other wards were admittedly the same as before the present general election took place, this Court be pleased to hold the elections of only these wards, as invalid. It may be pointed out in this connection that a similar infirmity attaches to ward No. 13 inasmuch as Naya Gaon appears to have been proposed to be added to ward No. 13 both by the Chairman and the Collector and the subsequent proposal of the Government itself dated the 8th September 1958 published in the Rajasthan State Gazette dated the 9th October, 1958. vide document No. 6. though it was dropped out in the final order published on the 26th March, 1959 (document No. 8).
It was also brought to our notice in this connection that the Returing Officer had on the eve of polling cut down the names of a number ofvoters from the final electoral rolls, presumably because they were residents in this area and as this had been left out oi the ambit of trie municipal limits finally sanctioned by the Government and published on the 26th March. 1959, -- a highly questionable procedure. I have carefully considered this argument and think that it is unsound and is based on an essentially incorrect approach to the whole case.
The infirmity which attached at all relevant times to the geographical limits of this municipality in the absence ot a lawful order revising the limits thereof affected the entire area of the municipality and not a particular portion of it, and it is impossible, in my opinion, to distribute or dissect it in the manner suggested. Again, it is extremely difficult to visualise with any approach to certainty or accuracy how the various wards would have been constituted if the additional areas had not been added to tho pre-existing limits of this municipality or if the area of Naya Gaon had not been sought to be included within the revised limits.
Furthermore, the number of elected members was raised from 5 to 16, and as J look at the matter, it was perfectly open to the candidates who actually stood from the admittedly affected wards, namely, 1 and 2 and 3 or 12 to have set up their candidature from any of the other wards, and the possibility of such candidates to have succeeded in their election from such other wards cannot be ruled out on any considerations of law or com:non sense. In these circumstances the submission that it is only the three or four Wards which have been affected by tho illegalities committed in this case and that these can be separated from the rest is untenable and cannot be accepted, and, consequently I repel this argument as fallacious and unsound.
35. For the reasons mentioned above, I allow this application, and hold that respondents Nos. 4 to 21 are not the duly appointed members of the Pali Municipality and cannot be allowed to function as such. I further hold that the election of the Chairman of this municipality cannot also be allowed tn stand. I further direct that fresh elections lo this municipality will be held on the basis of the limits fixed by the Government bv its notification dated the 26th March, 1959. after the composition of the Pali municipality has been fixed in accordance with sections 9 and 10 of the Act according to law. Having regard lo all the circumstances of the case, I would leave the parties to bear their own costs in this Court.
36. Before parting with this case. I should like to say that I am by no means happy to have arrived at the conclusion to which I have come. So much of labour and money and time which an election always involves, stands needlessly thrown away. Apart from that, the upsetting of an election is bound to cause a good deal of public discontentment and endanger a sense of frustration among the electors of the area going to polls. And for all these reasons. I am fully conscious that an election once made should not be lightly set aside and can be quashed for reasons which are compelling and almost inescapable.
But I feel bound to say that when the very democratic base on which an election is founded and conducted turns out to be a rope of sand, as it has turned out in this case, there is no way but to set aside the election and in such a case the High Court, in tbe exercise of its supervisory jurisdiction, has hardly any alternative but to do so. and must set things right irrespective of the consequence. The result, therefore, though it is to be regretted, cannot be helped on any sound principles of the administration of justice.
I also wish to add that if the authorities concerned and particularly those on the spot had been a little more vigilant and a little less indifferent and had shown a livelier awareness of the provisions of the Act and the legal requirements of the situation, this unfortunate result could have been avoided, and that it is earnestly to be hoped that a repetition of such delective operation ot the Act would be avoided in future in the interests of every one concerned.
37. I have read the judgment of my learned brother Modi J. and I agree with the conclusion arrived at on the ground that the Government or its delegated authority, the Collector in this case, has failed to determine the number of members and to fix the proportion of elected and nominated members, as required under Section 10 of the Act. Section 9 provides that every Municipal Board shall consist of such members, wholly elected, or partly elected and partly nominated, as may be fixed under Section 10.
The Government has been given the power to determine the number of members and fix the proportion of the members who shall be nominated if the Board is to consist of partly elected and partly nominated members. Under Section 207, tbe Government is authorised to delegate all or any of its powers under this section to any officer subordinate to it. In this case, the Collector of Pali District had been so authorised. By the notification of 12-1-1955, the composition of the Board was fixed at 17 members out of which 15 were to be elected.
This composition could be altered by the Collector by virtue of powers conferred upon him under Section 207 of the Act from time to time. In the notification issued on the 24th of July, the Collector divided Pali Municipality in 16 wards and further said that each ward shall return one member by election. It may be taken that by this notification, the Collector fixed the number of members to be elected in the Municipality at 16. He failed to determine the total number of members. He failed even to mention the number of members to be nominated, which, if done, would have determined the total number of members.
There was no preference in this notification of the previous notification issued on 12-1-1955, fixing the number of nominated members at 2 out of the total number of 17 members. He even failed to sav that the Board shall consist of only elected members. The notification issued bv the Collector was not in accordance with the provisions of Section 10 of the Act read with Section 9 of the Act. My learned brother has in his elaborate judgment pointed out that the aforesaid notification was in flagrant violation of the requirements of Section 10 of the Act.
I respectfully agree with him on this point and it would be needless for me to repeat what he has said in this connection over again. It was contended before us that as tbe Government, or for that matter, the Collector had been given the power to determine the number of members from time to time, the Government or tbe Collector, could first fix the number of members to be elected and after the elections were over, fix the total number and nominate the remaining members.
I have given my earnest consideration to this argument and in my humble opinion, the power to determine the composition of the Municipal Board must be exercised at one time and not precemeal. Section 9 contemplates that every Municipal Board shall have some elected members. The Municipal Board may be composed of either wholly elected members or partly elected and partly nominated members. There is no room for Municipal Board of only nominated members. This shows that the Legislature had contemplated that there shall be held an election for electing elected members. Before any such elections are held, the resident of a Municipality, who has a right to vote and who has a right to stand as a candidate, must get the whole picture about the composition of the Board,
It is why Section 9 requires that every Municipal Board shall consist of such number of members as may be fixed by Section 10. Under Section 10 also, the first thing the Government is required to do, is to determine the total number of members and then proceed to determine the proportion of members, if any, who shall be nominated, if it is contemplated that the Board should consist of partly elected and partly nominated members.
No doubt the Government has been given the power of determining the number of members and fixing the proportion of elected and nominated members from time to time, but each time this power is exercised, it should be exercised in the order laid down under Section 10, i.e., it must exercise the power under Section 10 (a) first, then proceed to fix the proportion of nominated members under Section 10 (b) and then fix the number of members in the Municipality to be elected under Section 10 (c). All these powers may be exercised simultaneously and by one notification.
In such a notification, even if there is any lacuna, but if the substance of the notification is there, the notification may not be defective for example, if the total number of members to be elected is given and the total number of members to be nominated is also given, it may be taken that the Government has determined the total number of members of the Board. Again, if the total number of members is given and the total number of members to be elected is also given, it may be taken to indicate that the rest are to be nominated. But it cannot fix the number o members to be elected and leave the matter in lur.ch in so far as the number of members to be nominated, is concerned
This view if taken will fail to give a complete picture regarding the composition of the Municipal Board to the residents of the Municipality, who may or who may not be satisfied with the composition ultimately cotemplated by the Government, in these days of democracy, the residents of a particular Municipality may have strong disfavour for the nominated members if they knew before hand that the Board is to consist of nominated members. They may evince this desire of theirs by making proper representations to the Government that full composition of the Board be announced before the elections take place. The possibility of the Government considering such representation cannot be ruled out. Again, a particular resident of a Municipality may have disinclination to stand as a member at the election for a Municipal Board in which there are going to be nominated members.
38. There is yet another strong reason why it is necessary that the composition of the Municipal Board should be announced in advance. If the Government has not determined the number of the members to be nominated but has only determined the number of members to be elected, and the Government seeks to exercise the power of nomination after the election, it may be that the Government may upset the verdict of the electorate which has gone in favour of one party by nominating more members than necessary of the other party whom it may for the time being favour. It is true that the number of nominated members cannot be more than one fourth of the total number of members fixed for the Board.
But in spite of such restriction, there might be scope of abuse by the Government of the power given to it in the matter of nomination. This would shake the very foundation of democracy in local self-government. Our country being a democratic Republic, it is the duty of the Court to jealously guard the tender plant of democracy in whatever sphere it is called upon to do so. The law should be interpreted as to advance the cause of democracy and not in a manner so as to adversely affect it. In this connection, I may refer to Article 40 of the Constitution, which is one of the Directive Principles of State Policy. The Article lays down that -
'The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units o self-government.'
What has been laid down in Article 40 in respect ot village panchayats, may be taken to be equally applicable to a Municipality. In my opinion, nomination is an interference by the executive in the proper functioning of a unit in the matter of self-government. It interferes with the democratic verdict of the people given by the electorate and thereby adversely affects the proper functioning of the unit as one of self-government. The Directive Principles of State Policy are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws. Section 10 must receive an interpretation at out hands which may enable the Municipality to function as a unit of self-government.
If the Legislature considered it proper to retain the power of nomination in the hands of the Government for the time being in the matter of the composition of the Board, it is in the fitness of things that the Government should make up its mind regarding the number of nominated members before any elections take place and this must be announced to the people before the election.
39. In the Act, the Legislature laid down the order in which the Government was to announce the composition of the Board from time to time and this order must be adhered to, otherwise there is likely to arise cases when the Government may abuse this power of nomination,
40. In this view of the matter, the notification issued by the Collector cannot be held to be valid and conforming to the requirements of Section 10 of the Act.
41. I am conscious of the fact that the granting of the Writ in this case would amount to the dissolution of the Pali Municipality and I for oae would have been the last person to order such dissolution if I could do so with due regard to the provisions of Sections 9 and 10 of the Act. I regret that I am unable to take a view which may keep the present Board intact. I may also mention that I was anxious to take such a view if I couid do so having regard to the fact that the elected members in the present Pali Board do represent the residents of the Municipality as at present delimited.
42. Now I take up the question whether there are sufficient grounds for the dissolution ot the Pali Municipality on the ground that in certain Wards some areas have been added which did not form part of the Pali Municipality before the 26th of March, 1959. In this connection, it may be mentioned that the Pali Municipality had its defined limits even before the present election and nobody has questioned that that delimitation of Pali Municipality was not in accordance with law as laid down in Sections 5 to 7
The boundaries of the Pali Municipality had been properly laid down by the notification of theGovernment dated the 15th of February, 1953, under Section 5 (1) of the Act. What happened thereafter has been given in detail in the judgment of my learned brother Modi J. and it will be taken that till the Government published the notification dated 15-3-1959, in the State Gazette dated the 26th March, 1959, the various additions proposed to be made were not brought about in accordance with law and the election programme was announced on the basis of the proposed additions without looking to the fact that the Government had till then not declared those areas as part of the Pali Municipality.
The elections took place after the notification published in the Gazette of 26-3-1959. Under Section 10 the Government, or for that matter, the Collector has been given the power to delimit various constituencies from which members are to be elected. In the present case, out of the 16 constituencies so delimited by the Collector, 12 constituencies are wards which did not include any area which did not form part of the Pali Municipality. One ward, i.e., ward no. 13 included the Nayagaon village which did not form part of the Municipality even according to the notification of 26-3-1959.
It is admitted before us that the other three wards, Nos. 1, 2, and 3, included some area which did not form part of the Pali Municipality as delimited bv the notification of 1953, but that area was included in it by a subsequent notification published in the State Gazette of 26-3-1959.
43. On these facts, it may be taken that in the 12 wards there was no inclusion or any area which did not form part of the Municipality, In ward No. 13, there was such an inclusion but before the polling day, names of the voters of the area newly sought to be added, were struck off with a result that those voters were not permitted to vote. In the other three wards there was inclusion of some areas though it is contended by the respondents that there was no addition of any voters in the voters' list as those areas had no population.
Be that as it may, in the ultimate analysis, it comes to this, that in 13 wards those who voted, were entitled to vote even in accordance with the boundaries defined by the Government under the notification of 1953, and in each of three remaining wards, there might have been some voters who voted at Municipal limits as defined by the notification of 1953. How far this affected the election of the members in wards Nos. 1, 2 and 3 has not been placed before us even by the petitioner.
As pointed out by my learned brother, there are some election petitions also pending in accordance with the provisions of Section 19 of the Act. An inquiry in these petitions must be going on in accordance with law. In this Writ petition it is urged by the petitioners that whatever may be the result of such inquiries, the election of all the elected members is void on the ground that the Government had not made the alteration of the limits of the Pali Municipality before the election programme was announced and the various wards were delimited on the basis of the limits of Pali Municipality which was in contemplation at that time.
44. What is to be seen in this case is whether the effect of such irregularity in determining the extent of constituencies is to make the election of all the elected members void and further that theproper remedy was not by way of an election petition under Section 19. I may say at once that this case must be distinguished from those cases in which there is no town municipality in existence under Section 5 (1) of the Act.
In a case where the Government has not declared an local area to be a town Municipality, there does not come in existence any municipality at all. When there is no municipality in existence, there can arise no question of the constitution and incorporation of a Municipal Board of a Municipality under Section 8 of the Act. But where there is a municipality in existence and the alterations in the area have not been given effect to by proper notification, yet there have been elections in which in certain wards new areas have not been added or have been taken in account in preparation of electoral rolls the right approach, in my humble opinion, is to determine how far the elections have been adversely affected by such irregularity.
It may be taken that certain members who had no right to vote, have voted at an election. The proper procedure for determining the validity of such election is under Section 19 of the Act and not by a Writ of Quo Warranto. When there is a remedy by way. of an election petition, a writ of Quo Warranto is, displaced. As observed by Blackburn J. in the Queen v. Cousins (1873) 8 QB 216,
'... The rule always acted upon is, that if the right person has been elected, and it is not shown that anyone else has been kept out, nor the result of the election in any way affected, the. Court will not allow the writ to issue.'
A writ of quo warranto will not lie to determine that issue involved in the contested election because such issues involve the validity of such, election and not the title to the office.
45. I may also refer to the case of the King v. Parry (1837) 112 ER 311. The facts in that case were mat the burough of Hereford was divided in three wards, each returning three councillors. The mayor held a Court for the revision of the burgesslists and the same were revised by him and two assessors, who had been elected assessors for the whole of the burough. Assessors had likewise been elected for the respective wards, but the assessors' for the mayor's ward (Ledbury) did not attend the revision. Parry was elected a councillor for Monmouth ward by the burgesses on the roll made up from the lists so revised.
An application for a quo warranto was filed against Parry to show by what authority he claimed to hold the office of a town councillor in the city of Hereford on the ground that burgess roll for the Monmouth ward in that city had not been revised pursuant to the provisions of the law. Lord Denman C. J. who delivered the judgment recognised that leave to file an information in the nature of quo warranto would be granted even if the effect may be to dissolve the corporation, but he refused to grant the permission to file the information with the following observations:
'On the one hand, if the rule be made absolute, the dissolution of the corporation may at least be reasonably apprehended; on the other, it is remarkable that the affidavits in support of the rule impute no corrupt, fraudulent, or indirect motive for the Acts complained of as irregular, nor do they allege that they have produced injustice, inconvenience, or even any one result different from what would have followed the fullest compliance with the law as they lay it down. They do not go the length of suspecting that a single vote has been won or lost, or that the burgess list would havevaried in a single name. It appears, moreover, that the town clerk had taken the precaution of procuring, and had bona fide acted upon, the most eminent legal advice; and, in fact, neither claim nor objection, as regarded the Monmouth Ward, was made to the overseer's list. We do not say that the Court of Revision had therefore no duties to perform but, in fact, they were not called upon to perform any; and the defective constitution of the Court has been, in all respects, an immaterial circumstance.
If these considerations would, under the old law, have been entitled to weight, they lose none from the passing of the recent statute. On the contrary, the difficulties that might attend the reconstruction of corporations once dissolved, and the important functions now vested in the municipal bodies, would rather induce increased circumspection in our proceedings. The inferior officers ought, indeed, to conform with care to the provisions of the law : the wilful departure from them this Court will visit with severity; and even negligence may not always escape animadversion: but our discretion as to the issuing of quo warrant informations must be regulated by a regard to all the circumstances which attend the application, and all the consequences likely to follow. Upon the whole, for the reasons stated, we think we act most in accordance with the current of authorities, in refusing the permission prayed by the present rule.'
The above observations lay down the principles for exercising the discretion in such matters. It may be noted that the petitioners have an alternative remedy by way of an election petition to determine the effect of irregularity committed in this respect, and some of the petitioners have availed of that remedy.
46. I may also draw the attention of the officers of the Government to the weighty observations of Lord Denman C. J. that the officer should conform with care to the provisions of the law and that any negligence on their part may result in taking such, a drastic step as the dissolution of a Municipal Board. In fact, in this case, because of the act of the Collector in not issuing an appropriate notification, we are compelled to order the dissolution of the Pali Municipality, but I am humbly of opinion that the dissolution cannot be ordered because some of the voters in Wards Nos. 1, 2 and 3 had not the right to vote. The appropriate remedy is by way of an election petition and this is what has been laid down in the Division Bench case of ILR (1955) 5 Raj 327.
47. With these observations, I agree with theorder passed by my learned brother Modi J. in thiscase.