1. This is an application under Article 226 of the Constitution of India by Jaiwant Rao and 13 others against the State of Rajasthan, the Collector of Kotah, the City Magistrate of Kotah and 34 others for an appropriate writ, order or direction (1) declaring that the Kotah Municipality was not properly constituted inasmuch as the wards constituted by the Collector for the purpose of election were not proper and the elections held on the 26th of July, 1959 on the basis of those wards were illegal and void ab initio; and (2) directing non-petitioners Nos. 4 to 36 to quit the office of the members of the Municipal Council of Kotah Municipality; and (3) further directing the State of Rajasthan by a writ of Mandamus to constitute the Kotah Municipality in accordance with law.
2. The application came up for hearing before one of us sitting singly and as some important points of law were raised in course of the arguments, the case was referred to Hon'ble the Chief Justice for constituting a larger Bench and has thus come before us.
3. The petitioners did not implead the Municipal Council, Kotah as one of the parties to the writ petition in the first instance and they, therefore, moved an application on the 14th of December, 1959 for adding the Municipal Council, Kotah also as one of the non-petitioners. The application was allowed and the Municipal Council was added as non-petitioner No. 37.
4. The facts leading to this writ petition may briefly be stated thus:
5. Kotah had a Municipality of its own at the lime the Rajasthan Town Municipalities Act, 1951 (Act No. XXIII of 1051) (hereinafter referred to as the Act) came into force on the 22nd December, 1951 and its constitution and local limits were saved by Section 2 of the said Act.
6. The Government of Rajasthan issued Notification No. D. 1634/58/F. 1. (A)/48/ Local Self Government/A/55 dated 1st March, 1858 published in Rajasthan Gazette Part 6 (Ka) dated 24th April, 1958, under Section 7(1) of the Act declaring its intention to extend the limits of the Kotah town Municipality as noted below:
'IN NORTH -- Including all lands of Rangpur village and that of Rangpur Road.
IN WEST -- Parallel to the right bank of liver Chambal up to mile No. 575 of the Railway Bridge including villages Ganeri., Genta. Bhadana, Ganeshpura, Dhadwada, Purohitji-ki-khedli, Khand Ganeri and then with the boundary of the Kotah district to milestone No. 42 of the proposed Kotah-Chittorgarh railway crossing excluding Sindta village, but including Gordhanpura Balita and Girdharpura villages and then to mile No. 441/2 of the Northern crossing of the Railway line and then from mile No. 46 up to Kotah-Baori in west and then from mile No. 61/2 of the crossing of Kotah Bundi road to Abhera tank including Kanari, Nanta, Nandana and Sakatpur villages and then crossing the Chambal river at mile No. 7 on Kotah Rawatbhata Road excluding Nayagaon village and then straight up to Anandpura at mile No. 6 on Kotah Jhalawar Road, including Anandpura, Kishorepura, Amarnivas, Shopur, Akelgarh, (Water Works), Balakund, Dadabari villages, but
IN SOUTH -- Excluding Rangbari, further crossing the railway line from Anandpura village to Kheda village at mile No. 565/21 and then Kanswa-Umedganj road at mile No. 4; and then
IN EAST -- Parallel to the Alaniya river upto Manas village, including villages Raipura, Rajnagar, Hanwantkhera, Chandrasar, Kishanpura, Deoli,. Machhiyana, Notana, Ratoda, Sogariya, Kala-talao, Naya Nohra, Kanswa, Dcoli-Arab, Borkheda, Dhegda, Chhawani, Ramachandrapuxa, Kothari, Dakaniya tank and Manasgaon; and then parallel to the left bank of Chambal River up to Rangpur village in the north.'
7. The Government finally extended the limits of the Kotah Municipality by its Notification No. 11288/F. 1(A) (48)/ Local Self Government/A/ 55 dated 16th October, 1958, published in the Rajasthan 'Gazette part (Ka) dated 27th November, 1958, under Section 5 of the Act, as follows :
''IN NORTH-- From Bhandana village (including Bhandana village) and parallel to the right bank of Chambal River all lands upto Railway bridge at mile No. 575 including Ganesh pura, Dhadwada, Khedli (Purohitji) Khand Gaonri villages, and then parallel to the boundary of the Kotah district crossing the proposed Kotah-Chhittorgarh railway line up to mile No. 42.
IN WEST-- From mile No. 42 of the proposed Kotah-Chittorgarh railway line excluding Senta and Girdhatpura villages and upto Abhera tank crossing Kotah-Bundi Road including Baleeta, Nanta, Nandana, Kanari and Sakatpura villages.
IN SOUTH -- From Abhera tank (including Abhera tank) after crossing Chambal River and milestone No. 6 of the Kotah-Rawatbhhata Road and thencefrom right up to Anandpura village at milestone No. 6 on Kotah-Jhalawar road including villages Rangbari, Anandpura, Kishorepura, Amarnivas, Sheopura, Akelgarh (Water works), Balakund and Dadabari,
IN EAST-- From Anandpura village to Kanswa village crossing the railway line at mile No. 565/21; thenceforth crossing Kanswa-Umedganj Road upto village Deoli-Arab and then crossing the Kotah-Baran Road upto Kala-talao, and then crossing the proposed Kotah-Chittorgarh railway line at mile No. 39 upto Bhandana village including villages Dakaniya Talao, Kanswa Deoli Arab, Umedganj, Kotari, Chhawani, Ramachandrapura, Borkheda, Tekara and Kala Talao.'
8. A comparison of the two Notifications dated 1st March, 1958 and 16th October, 1958 will show that Rangbari which was expressly excluded.from the proposed limits of the Kotah Municipality by Notification of the 1st of March, 1958, was added to it by Notification of the 16th of October, 1958. As regards the inclusion of Umedganj in the area of Kotah Municipality, the counsel on either side have tried to interpret the two Notifications differently.
According to the learned counsel of the petitioners, Umedganj was included in the Municipal area by the Notification of the 16th October, 1958, even though it was not mentioned in the earlier Notification of the 1st of March, 1958. The learned counsel for the non-petitioners, however, interpreted the notification of the 1st March, 1958 so as to include Umedganj also in the proposed limits.
9. The term of the Kotah Municipal Council was to expire on the 5th of July, 1959 and the Collector of Kotah in exercise of powers under Section 10 of the Act which were delegated to Mm by the Government by order No. F. 5/58/Mun/ General/58 dated the 13th February, 1959 declared that:
(1) the total number of members of the Municipal Council, Kotah shall be 33, out of which 31 shall be elected and two nominated;
(2) the Municipality shall be divided into 31 wards as mentioned in his order; and that
(3) One member shall be elected from each ward.
The said Order was published in the Rajasthan Gazette part 6 (Ka) dated 12th March, 1959, He also appointed Shri G.S. Dwivedi, the City/Sub-Divisional Magistrate Kotah as the Returning Officer for holding the elections. By his order No. 5(57) 1134 dated 20th March, 1959, he made some changes in the local limits of the wards, which were originally fixed by his order of the 13th February, 1959.
The Returning Officer first prepared the lists of voters in accordance with the wards that were originally constituted under the Order of the Collector, Kotah dated 13-2-1959 and he published the lists and invited objections by his order dated 21st of February, 1959. However, the Collector made some changes in the delimitation of wards, the Returning Officer prepared fresh voters' lists in accordance with the changed wards and published them on the 30th March, 1959 and invited objections to those lists.
The elections were held on the due date i.e. 26th July, 1959 as per the changed wards and 31 members (who are non-petitioners Nos. 4 to 34) were declared elected and two persons (who are non-petitioners Nos. 35 and 36) were nominated by the Government. 27 election petitions were filed in the court of the District Judge, Kotah, out of which only one is said to be now pending.
10. The petitioners are residents of Kotah and they have challenged the elections of non-petitioners No. 4 to 36 in this writ petition on a number of grounds stated in the petition, but at the time of the hearing of the case, the following grounds alone were pressed and others were expressly abandoned :
(1) That, the provisions of Section 7 of the Act are mandatory and the areas of Kangbari and Umedganj which were not included in the Notification under Section 7 of the Act could not be declared under Section 5 of the Act to be part of the extended limits of the Kotah Municipality and the Government Notification dated 16th October, 1958 is invalid for this reason and since the areas of Rangbari and Umedganj were included in the Municipal area while constituting and delimiting the wards, the elections become illegal;
(2) The voters had no notice of the Order of the Collector dated 20th of March, 1959 introducing certain changes in wards till the 14th at May, 1959 when it was published in the Rajasthan Gazette. The last date for filing objections to the Voters' lists was 30th April, 1959. Thus,, the time for filing objections expired before people came to know the changes in the wards and the voters were thus deprived of their right to file objections to the Voters' lists prepared as per the changed wards; and
(3) Even though Section 19 of the Act provides a remedy by way of election petition, the petitioners have a right to approach this court under Article 226 of the Constitution of India for the reason that in the instant case, the petitioners do not seek to set aside an individual election, but challenge the entire elections as null and void on the grounds Nos. 1 and 2 supra, namely, that mandatory provisions of law referred to above were ignored, which go to the root of the elections and disregard of which render the entire elections invalid.
11. The petitioners prayed that the elections held on the 26th of July, 1959 be declared to be null and void and the Government and the Collector, Kotah be directed to arrange to hold fresh elections of the Kotah Municipality.
12. Replies were filed by the Municipal Council, Kotah and non-petitioners Nos. 5, 13, 16r 17, 20, 21, 23 to 29, 31 and 34 only. The Municipal Council, Kotah pleaded that though the facts stated by the Petitioners were not incorrect, the Municipal Council was properly constituted and that the petitioners had no case under Article 226 of the Constitution of India. No reply was filed by the State or the Collector, Kotah and Mr. Raj Narain who appeared for them at the time of the hearing, stated that the State did not want to contest the petition and would like to abide by the decision of the Court. Other non-petitioners did not put in their appearance.
13. The reply to the above Petition of the contesting non-petitioners Nos. 5, 13, 16, 17, 20, 21, 23 to 29, 31 and 34 is that:
1. The provision of Section 7 of the Act is directory and not mandatory and as both Rangbari and Umedganj were declared parts of the Kotah Municipality by Government Notification dated 16th October. 1958, both these areas were rightly included by the Collector in delimitation of wards;.
2. The order of the Collector making changes in the delimitation of wards under Section 10 of the Act did not require publication by the Act or the Rules and the voters had sufficient information of the same through the publication of the Voters' lists, which were prepared on the basis of the changed' wards and the elections did not suffer from any illegality for this reason; and
3. The petitioners have no right to invoke the extraordinary jurisdiction of this court under Article 226 of the Constitution for the reason that they have an alternative remedy by way of an election petition under Section 19 of the Act for challenging the validity of the elections.
14. It was also pleaded that the petitioners had no personal interest and had therefore, no locus standi to challenge the validity of the elections of non-petitioners Nos. 4 to 36 and that the petitioners had come to this court with delay and they were, therefore, not entitled to any relief.
15. Mr. Tyagi for the petitioners contended that the provision of Section 7 of the Act was mandatory and extension of the limits of the Kotah Municipality under Section 5 of the Act could only take effect if the provision of Section 7 of the Act had been faithfully complied with by the Government; and in the present case, since the Government did not include the areas of Kangbari and Umedganj in the proposed limits of the. Municipality in their Notification under Section 7 CD of the Act, these areas could not be considered to be within the limits of the Koath Municipality.
The learned counsel referred to Article 72 at page 104 of the Construction of Statutes by Craw-ford 1940 'Edition, and urged that the provision of Section 7 of the Act related to the essence and substance of the Act and was not a matter of convenience only and was, therefore, mandatory. He drew support from, the decisions in Sahlot Brothers v. The State of Rajasthan, ILR (1956) 6 Raj 663, Nazir Ahmed v. King Emperor, AIR 1936 PC 253(2). Parmeshwar Mahaseth v. State of Bihar, AIR 1958 Pat 149, Qurab AH v. Govt. of Rajasthan, ILR (1959) 9 Raj 1084 : (AIR 1960 Raj 152) and Kotayya v. State of Andhra, AIR 1957 Andh Pra 907.
The learned counsel thus urged that the Notification (Ex. p: 4) dated 16th October, 1958 was invalid for the reason that it included certain areas, which were not specified in the proposed limits mentioned in the earlier Notification under Section 7 (1) of the Act dated 1st of March, 1958.
16. He next urged that the delimitation of wards under Section 10 of the Act was a fundamental requirement for holding the elections and as the order of delimitation of the wards was published late in the Gazette after the time for filing objections against the electoral rolls had expired, the delimitation of the wards suffered from illegality which went to the root of the elections and vitiated them. The people, it was urged, did not know the 'boundaries of the wards at the time they were required to file objections against the electoral rolls and they were, therefore, deprived of their valuable right to file objections against the 'electoral rolls granted to them by rules 7(2) of the Rajasthan Town Municipal Election Rules, 1951 (hereinafter referred to as the Election Rules).
He drew support on this point from the decisions in Shiam Sunder v. State of Punjab, AIR 1958 Punj 128, Chief Commissioner, Ajmer v. Radhey Shyam, (S) AIR 1957 SC 304, Lachhmansingh v. State of Punjab, AIR 1959 Punj 522 and Udaram v. State of Rajasthan, ILR (1960) 10 Raj 540.
17. Mr. Rastogi for contesting non-petitioners Nos. 5, 13, 16, 17, 20, 21, 23 to 29, 31 and 34 urged that the petitioners had no fundamental right to base their case upon in challenging the elections of the Municipal Councillors of the Kotah Municipality and their rights, if any, emanated. from the Rajasthan Town Municipalities Act, 1951; and the said Act being a comprehensive piece of legislation, the petitioners could only seek the remedy provided under that Statute, namely, by way of ant election petition.
They could make no grievance of the illegalities or irregularities committed in the course of elections by way of a writ petition. As regards the point regarding delimitation of the wards, the learned counsel pointed out that the wards were delimited in accordance with the law and the Act did not expressly require1 publication of an order of delimitation of wards under Section 10 of the Act, and under the scheme of the Act and the Rules, the substance of an order of delimitation of wards required publicity only through the publication of electoral rolls under rule 7 (2) of the Election Rules, which are prepared on the basis of such wards.
In the instant case, the learned counsel urged, since the electoral rolls prepared on the basis of the wards delimited under an order of the Collector-had been properly published, there was no illegality whatsoever either in the delimitation of the wards or in publication of the electoral rolls. The-electoral rolls it was stated, were prepared as per the revised delimitation of the wards and were-publislied on the 30th of March, 1959 leaving full one month up to the 30th of April, 1959 for filing objections.
It was also urged that the order of the Collector by which delimitation of the wards was altered, was communicated no sooner it was made, to the Returning Officer, who prepared the electoral rolls in the light of the changed wards. The learned counsel further argued that in case any of the petitioners had any doubt about the issue of the order of the Collector in this behalf, he was at liberty to go and inspect the Order of the Collector in the Officer of the Returning Officer or that of the Collector, and the delay in the Publication of that Order in the Gazette was not due to any fault of the Collector or the Returning Officer and it could not affect the legality of his order.
In any case, Mr. Rastogi contended, wards Nos. 1, 2, 3, 6; 22, 24, 25, 26, 29 and 30 did not undergo any change and so far as the elections of the members from those wards are concerned, the petitioners have no case whatsoever against their legality. The electoral rolls, he said, contained the names of the Mohallas and house-numbers as per the revised delimitation of wards and the people, therefore, had thereby a fair opportunity of knowing the delimitation of wards. The learned counsel referred to the following observations of this Court in Tekchand v. Banwarilal, ILR (1956) 6 Raj 910 at p. 920: (AIR 1956 Raj 185 at p. 188):
'Where a right or liability is created by a Statute and that Statute gives a special remedy for enforcing it, the remedy provided by the Statute must be availed of.'
and urged that the petitioners should be left to pursue their remedy by way of an election petition.
He also cited the following decisions on the point that when an alternative remedy is Provided by the Statute, the High Court should not, in exercise of its extraordinary jurisdiction, grant relief under Article 226 of the Constitution of India : Prithvi Raj v. The State, ILR (1959) 9 Raj 1024, Malchand v. State of Rajasthan, ILR (1955) 5 Raj 327, Daulatram v. The State of Rajasthan, ILR (1959) 9 Raj 1255 : (AIR 1960 Raj 86), Milakh Raj v. Jagdish Chandra, ILR (1957) 7 Raj 742 : ((S) AIR 1957 Raj 293), Premsukh v. Bhanwarlal, ILR (1954) 4 Raj 214, Kalicharan Sharma v. Chief Panchayat Officer, Jaipur, ILR (1958) 8 Raj 177, Kirori Lal v. Chief Panchayat Officer, Rajasthan, ILR (1959) 9 Kaj 461; N. P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64, Veluswami v. Raja Nainar, AIR 1959 SC 422, and the unreported decision of this court in Kapoorchand v. State of Rajasthan, Civil Writ No. 165 of 1955, D/- 31-7-1957 ;(Raj), Bhairulal v. State of Bombay, AIR 1954 Bom 116, Narayan Chandra v. District Magistrate, Hooghly, AIR 1954 Cal 32, Dharanidhar Mandal v. State, AIR 1958 Cal 287, and Hariprasad Khadaksing v. State of Madhya Pradesh, AIR 1959 Madh Pra 343 (FB). The learned counsel also referred to the decisions in Surendra Mohan v. Gopal Chandra, AIR 1952 Orissa 359, Ajoy Kumar v. Saila Behari, (S) AIR 1957 Orissa 159, Indian Sugar Mills Association v. Secretary to Government, U.P. Labour Department, AIR 1951 All 1 (FB), Ratna Sabha-pathi Rao v. State of Madras, AIR 1953 Mad 510, Shyamapada v. Abanj Mohan, AIR 1951 Cal 420 and Rajnarainsing v. Chairman, Patna Administration Committee, AIR 1954 SC 569, on the point that no writ of quo warranto lies on the motion of a person who is not affected.
The learned counsel also referred to the decisions in AIR 1954 Cal 32 (supra) and AIR 1952 Orissa 359 (supra) in support of his contention that no writ lies in cases where the petitioner seeks his remedy with delay. It was further urged that the duty cast on the Government or its delegate to delimit the wards under Section 10 of the Act was a public duty and its exercise must be regarded as directory and not mandatory.
In this connection, he cited the decisions in Shatrushalsing v. Noor Mahammad, ILR (1959) 9 Raj 710, Montreal Street Railway Co. v. Normandin, AIR 1917 PC 142. Biswanath Khemka v. Emperor, AIR 1945 FG 67, Hirday Narayan Singh v. Jang Bahadur Singh, AIR 1952 Pat 265, and Dattatraya v. State of Bombay, AIR 1952 SC 181.
18. Mr. Agarwal, Dr. Laxmimal, Mr. Chand-mal and Mr. M. M. Vyas appeared as interveners at the time of the hearing of the case and they were also heard.
19. Mr. Agarwal generally supported the points urged by Mr. Rastogi and he urged that as in England, the writ of quo warranto was in the nature of an election petition and was replaced by the law of election petitions in the matter of municipal elections. He further urged that where the Statute is comprehensive and provides a remedy, that remedy alone should be pursued and as the Rajasthan Town Municipalities Act, 1951 was a comprehensive piece of legislation and provided a remedy by way of an election petition, the petitioners were not entitled to seek relief under Article 225 of the Constitution of India.
He also urged that the provision of Section 10 of the Act was not mandatory and was only directory, for the reason that public duty was cast by Section 10 of the Act on the Collector, and no rights of third parties were thereby created. In this connection, he referred to the decision of this court in ILR (1959) 9 Raj 710 (supra). He also added that the conduct of an elector in filing election petition and losing that case, should go to disqualify him from coming to the High Court for writ of quo warranto.
Haribux Mandhania v. Gulabchand Kabra, ILR (1960) 10 Raj 180, ILR (1959) 9 Raj 710 (supra), AIR 1952 SC 181 (supra), State of U. P. v. Manbodhanlal, AIR 1957 SC 912 and Halsbury's Laws of England, Third Edition, Volume II, Page 145, were cited in this connection. He also urged that acquiescence would disentitle one to a writ of quo warranto.
20. Mr. Chandmal urged that in cases where the entire constitution of the Municipal Board is challenged on account of contravention of Section 10 of the Act, remedy by way of a writ petition is the most suitable one. He further elaborated his argument by showing that the remedy by way of Section 19 of the Act was of a limited character and did not include a case of disregard of the mandatory provisions of the Act. He referred to the decision in Hifzurraheman Ansarsaheb v. Hasansaheb Abansaheb, AIR 1944 Bom 203 and pointed out that Section 15 of the Bombay Municipal Boroughs Act, 1925 was similar, to Section 19 of the Rajasthan. Town X Municipalities Act.
He also referred to the decision of the Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque, (S) AIR 1955 SC 233 and pointed out that the jurisdiction of the Election Tribunal was limited to the events during the course of the election and contravention of the provisions of Ss. 5 and 10 of the Act cannot be considered to be covered by Section 19 of, the Act and the only remedy that was available was by way of a writ petition.
In cases of fundamental deficiencies regarding elections, this court had from time to time, it was urged, granted relief under Article 226 of the Constitution of India and the remedy by way of election petition was not supposed to whittle down the writ jurisdiction of this court. He referred to Vishwanath v. The State, ILR (1957) 7 Raj 241: (AIR 1957 Raj 75), to show that personal interest was not necessary for invoking the writ jurisdiction of the High Court.
21. Dr. Laxmimal supported Mr. Tyagi in his arguments and added that the existence of an alternative remedy was not a bar for exercise of writ jurisdiction by the Court. He referred to Ferris on the Law of Extraordinary Legal Remedies at p. 130, Article 106, in support of his contention. He urged that the election petition was not a complete remedy and a writ of Mandamus would issue in such matters. He cited the decision In re, Banwarilal Roy, 48 Cal WN 766, to show that in cases of fundamental deficiencies existence of an alternative remedy was no bar to the issue of a writ. He also cited King (Roycroft) v. Justice of Schull, 1910-2 Ir Rule 601 in this connection.
22. According to Mr. Tyagi, Rangbari and Umedganj villages were not included in the area that was proposed to be added to the Kotah Municipality under Government Notification dated 1st March, 1958. The contesting non petitioners have also conceded that Rangbari was not so included, but they have contended that Umedganj was included. A perusal of the description of the area proposed to be added to the Kotah Municipality, given in the Notification of the 1st of March 1958, relevant portion of which has been given above shows that the mode adopted for describing the proposed area was firstly by giving the boundary line of the proposed municipal limits and secondly by specifically enumerating the names of all the villages or habitations lying in such limits, and care was also taken to mention at some places the names of the villages which fell just outside such limits.
Having regard to this manner of description, one would expect that if Umedganj had been included in the proposed area, which was to be added to the Kotah Municipality, its name would have been specifically mentioned like that of Anandpura, Manasgaon, Tangpur and other villages on the boundary line. The argument of the learned counsel of the contesting non-petitioners is that the description of mile No. 4 of Kanswa -- Umedganj Road in the Notification in defining the boundary line is sufficient to include Umedganj in the proposed limits for this point is beyond Umedganj to its south.
It was argued that the situation of the milestone No. 4 should be found out by measuring a distance of four miles from Kanswa on Kanswa-Umedganj Road and if the point of the mile-stone No. 4 is fixed in this manner, Umedganj would fall inside the boundary line and would be included in the proposed limits of the Kotah Municipality. The argument is ingenious, but we think, there is little substance in it. Mr. Tyagi has Produced a copy of a sheet of the map of Kotah area published under the authority of the Surveyor General of India.
Mile-stones from Kotah via Kanswa-Umedganj Road are also shown in the said map. Mile numbers on this road begin from Kotah city and mile No. 4 is shown at a place between Kanswa and Umedganj. The description of the mile-stone in the Notification should be taken to be with reference to the mile stones that are fixed on the Toad. Reference to mile stone in the Notification cannot be assumed to be to an imaginary stone whose point has to be calculated and found out by assuming the point on the road at Kanswa as 6 and measuring the road for four miles.
Such a cumbrous method of locating miles stone No. 4 cannot be conceived to have been contemplated by the author of the Notification. We are, therefore, not prepared to accept the argument of Mr. Rastogi. In our opinion, the description in the Notification of 1-3-1958 clearly includes Kanswa and excludes Umedganj, for as already mentioned above, if Umedganj had been included in the proposed limits of the Kotah Municipality, its name would have found specific mention in the Notification like the names of other habitations mentioned in it.
On the point of interpretation of the Notification of the 1st of March. 1958, we are positively of the view that it excluded both Rangbari and Umedganj. However, the second Notification dated the 16th October, 1958' is unambiguous on the Point that both Rangbari and Umedganj were declared to be included in, the limits of the Kotah Municipality.
23. The contention of Mr. Tyagi is that the areas of Rangbari and Umedganj not having been notified under Section 7 (1) of the Act could not have been legally declared to be included in the limits of the Kotah. Municipality by Notification under Section 5 of the Act and even though both these villages were declared to be included in the Kotah Municipality by Notification of the 16th October, 1958, they should be deemed to be outside the limits of the Kotah Municipality in the eye of law. The point that arises for consideration in this connection is whether the provision of section 7 of the Act is mandatory or directory. Section 7 of the Act is as follows:
'Town Municipalities --
(1) Not less than two months before the publication of any notification declaring any local area a town municipality, or altering the limits of any such municipality or, declaring that any local area shall cease to be a town municipality, the Government shall cause to be published in the Rajas-than Gazette in Hindi and if necessary in English and to be posted up in conspicuous spots in the stud local area in Hindi, a proclamation announcing that it is proposed to constitute such local area a town municipality, or to alter the limits of the municipality in a certain manner or to declare that such local area shall cease to be a municipality, as the case may be, and requiring all persons who entertaia any objection to the said proposal to submit the same, with reason therefor in writing, to such officer as may be appointed or authorised by the Government in this behalf within two months from the date of the said proclamation and, whenever it is proposed to add to or exclude from a municipality any unhabited 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.
(2) Such officer 'shall, with all reasonable despatch, forward every objection so submitted to the Government.
(3) No such notification as aforesaid shall the issued by the Government, unless the objections, if any, so submitted are, in its 'opinion, insufficient or invalid.'
24. It is specified in section 5 of the Act that the Government may from time to time by Notification in the Rajasthan Gazette declare any local area to be a town municipality, etc., etc. subject to the provisions of sections 6 and 7 of the Act. Thus, it is evident that section 5 of the Act is controlled by the provisions of sections 6 and 7 of the Act. However, the contention of the petitioners can succeed Only in case it is held that the provision of section 7 of the Act is mandatory.
25. The Construction of Statutes by Earl T.Crawford 1940 Ed. at page 104 gives the followingrule of construction of statutes:
'Mandatory and Directory Acts -- A statute, or one or more of its provisions, may be either mandatory or directory. While usually in order to ascertain whether a statute is mandatory or directory, one must apply the rules relating to the construction of statutes, yet it may be stated, as a general rule, that those whose provisions relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance is merely a matter of convenience rather than of substance, are directory. So, a mandatory statute may be defined as one whose provisions or requirements, if not complied with, will render the proceedings to which it relates illegal and void, while a directory statute is one where non-compliance will not invalidate the proceedings to which it relates.'
At page 529, para 266 of the same book, it is further noted as follows:-
'As a, general rule, a statute which regulates the manner in which public officials shall exercise the power vested in them, will be construed as directory rather than mandatory, especially where such, regulation pertains to uniformity, order, and convenience, arid neither public nor private rights will be injured or impaired thereby. If the statute is negative in form, or if -nothing is stated regarding the consequences or effect of non-compliance, the indication is all the stronger that it should not be considered mandatory. But if the public interest or private rights call for the exercise of the power vested in a public official, the language used,, though permissive or directory in form, is in fact peremptory or mandatory, as a general rule ........ ............
Moreover, words mandatory in form should be construed to be permissive, even where statutes regulating the exercise of Powers by public officials are concerned, if the permissive construction will effect justice, or save a proceeding from invalidity, provided, however, that such a construction does not destroy or impair the rights of the Public, or of any member thereof. In other words, where a statutory requirement which relates to official action shall be considered mandatory or permissive, depends upon the effect the suggested construction has upon public and private rights.'
26. Maxwell in his book, 'Interpretation of Statutes' (6th Edition), pp. 649, 650 has given the following rule of construction in this connection:-
''In the first place, a strong line of distinction may bet drawn between cases where the prescriptions of the Act affect the performance of a duty, and where they relate to a privilege or power. Where powers or rights are granted, with a direction, that certain regulations or formalities shall be complied with, it seems neither unjust or inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred; and it is therefore probable that such was the intention of the legislature. But when a public duty is imposed, and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty, would result if such requirements were essential and imperative.
On the other hand, where the prescriptions relate to the performance of a public duty, and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them.'
27. In ILR (1959) 9 Raj 7lO (supra) a question came up before this Court as to whether Rule 15 of the Election Rules by which a nomination paper was required to be presented 15 days before the date of the election, was mandatory and in dealing with that question, his Lordship the Chief Justice who delivered the judgment of the Court, ably summed up the rules of construction of statutes on this point as follows and held that Rule 15 was only directory and not mandatory:
'The question whether a particular rule of law is mandatory or directory is not easy to answer and cannot be decided safely merely upon drawing analogies from certain provisions of other rules. The language of the rule in question or the provision of law has to be examined in each case specially in the context and scheme of the legislation and the matter has to be approached in the light of certain well known standards or tests. The mere use of the word 'shall' does not make any difference if the context suggests that the legislature did not intend that any disobedience of minor rules of procedure should defeat its main purpose. The primary consideration, therefore, is the language of the rule itself, examined in the light of the scheme and purpose of the legislation in the context of which the rule occurs. Secondly, it has to be seen whether on the face of the rule there is any penalty provided in which case the penalty may require to be enforced. Thirdly, one has to interpret the rule having regard to the balance of convenience which may result in case, it is held to be directory or mandatory. Lastly, the well known doctrine of construction should be borne in mind that where the legislature requires a thing to be done by any public authority or person, then if there is substantial compliance with the rule, if should be held to be sufficient. The Legislature could not have intended to cause harassment to the parties concerned where due to unavoidable reasons, the public authority or person was not able to perform the duty strictly according to schedule.'
28. In ILR 0960) 10 Raj 180 (supra), Bapna, J., sitting singly took a contrary view of rule 15 and held that it was mandatory. In doing so, the learned Judge thought that the decision on the point in Shatrushalsingh's case, ILR (1959) 9 Raj 710, (supra), was obiter dicta. With respect for the opinion of the learned Judge, it may be noted here that the decision in Shatrushalsingh's case, ILR (1959) 9 Raj 710 proceeded firstly on the point that the provision of Rule 15 was not mandatory and secondly on the point that section 10 of the General Clauses Act was applicable to the period mentioned in Rule 15 and the defect of delay in presentation of the nomination Paper was, therefore, cured.
The decision on each one of the points was expressed independent of the other. As such, it was not right for the learned Judge to consider the decision on the first point regarding directory nature of Rule 15 to be obiter. For if such on approach be held to be permissible, the decision on the second point of applicability of section 10 of the General Clauses Act may also be assailed on the same reasoning to be obiter and the decisions on both the points would then be reduced to nothing. Sitting Single Bapna, J., was bound by the authority of Shatrushalsingh's case, ILR (1939) 9 Raj 710 and he was in error in not following it.
The idea of the learned Judge as to what is obiter dicta does not appear to be appropriate. A dicta which does not form the integral part of the train of reasoning directed to the question decided may be regarded as obiter. In cases where the Court gives alternative trains of reasoning, both of them constitute ratio decidendi and one or the other of such reasonings cannot be regarded as obiter. However, we are not directly concerned in this case with the directory nature of Rule 15. We are here concerned with the enunciation of the rules of construction of statutes very ably summed up in the judgment of Shatrushal Singh's case, ILR (1959) 9 Raj 710 (supra), referred to above.
29. The learned Counsel for the petitioners has referred to the decision in AIR 1958 Pat 149, (supra) regarding the discussion of the rules of construction of statutes to determine if they are directory or mandatory. It may be noted that the decision in AIR 1958 Pat 149, (supra) follows the decision in Ajit Kumar v. State of West Bengal, AIR 1954 Cal 49 which has also been discussed and followed in Shatrushalsingh's case, ILR (1959) 9 Raj 710, (supra) and we need not, therefore, discuss them here.
30. Having regard to the Principles of construction enunciated in Shatrushalsingh's case, ILR (1959) 9 Raj 710 (supra), and in the texts mentioned above, we shall now proceed to examine, if the provision of section 7 of the Act is directory or mandatory. Section 7 of the Act is intended to afford an opportunity to the inhabitants of a local area to file objections in writing against the proposal of the Government to include a particular area in a particular municipality.
Sub-section (3) of section 7 of the Act is in negative form and it is therein provided that no declaration under section 5 of the Act shall be issued by the Government, unless objections, it any, so submitted, are in its opinion insufficient or invalid. It may be noted that Sub-section (3) gives a clue to the intention of the legislature as to the nature of the provisions of Sub-section (1) of section 7 of the Act A valuable light of filing objections is conferred by section 7 (1) of the Act upon the inhabitants of a locality and the Government is subjected to a duty of considering their objection if any and to issue a declaration under section 5 of the Act only in the event they come to the conclusion that the objections received under section 7(1) of the Act are insufficient OF invalid.
In case, no notification under section 7 of the Act is issued and a declaration under section 5 of the Act is made, the inhabitarats of such local areas would be deprived of their right of filing objections, which it is obligatory on the part of the Government to consider before making a declaration under section 5 of the Act. The inhabitants of the local area cannot have any control over the Government, and if the provision of Section 7 (1) is regarded as directory, they would be deprived of their valuable right of making objections against the proposed inclusion of a local area in a particular municipality.
The point of allowing opportunity of filing objections under section 7(1) of the Act cannot be regarded as a matter of convenience only, for it relates to the essence of the statute and is a matter of substance. Once Notification under section 7 of the Act is Published and an opportunity to file, objections is afforded, it is for the Government to decide whether objections are insufficient or invalid and to make a declaration under section 5 of the Act.
We are of the opinion that the provision of section 7 of the Act is of a mandatory nature. In the instant case, a Notification under section 7 of the Act was issued by the Government and certain areas that were proposed to be included in the Municipality were specified therein. The inhabitants of those areas got an opportunity of filing objections for the consideration of the Government The inhabitants of Rangbari and Umedganj which were not included in the proposal that was published in Notification of the 1st March, 1958, had no reason to think that those areas were also likely to be included in the limits of the Kotah Municipality and they thus had no reason to file objections against that proposal.
So far as Rangbari and Umedganj are concerned, it is evident that no Notification under Section 7 of the Act was published by the Government for including them in the Kotah Municipality. However, by its Notification dated the 16th October, 1958, the Government declared Rangbari and Umedganj also as included in the limits of the Kotah Municipality. The Notification of the 16th October, 1958, is invalid to the extent the local areas of Rangbari and Umedganj were thereby added to Kotah Municipality for non-compliance with the provision of section 7 of the Act.
As regards other areas specified therein for which a Notification under section 7 of the Act had already been issued, it would certainly be valid. The Notification of the 16th October 1958, can be split up and the portion of it which is invalid can be separated from the portion which is valid and the entire Notification cannot, there fore, be thrown out as invalid.
31. Though Rangbari and Umedganj have been treated as parts of the Kotah Municipality they cannot be deemed to be included in its limits in the eye of law, and the petitioners have a good case for issue of a direction against the Government and the Municipal Council, Kotah for treating those areas outside the limits of the Kotah Municipality.
32. We shall now examine the effect of in eluding the areas of Rangbari and Umedganj into 'the limits of the Kotah Municipality visa-vis the general elections held on 26th of July, 1959. The argument of Mr. Tyagi is that inclusion of these areas was fatal for the elections as it necessarily affected the delimitation of wards- The illegality, it is urged, goes to the root of the elections, because the fabric of elections stands on the base of wards that are delimited under section 10 of the Act.
Mr. Rastogi on the opposite side has pointed out that there were only 89 voters in Rangbari and an equally small number of voters in Umedganj and even if their invalid votes are taken into account, the result of the election would not be materially affected, for the reason that the successful candidates in the two wards in which both these areas were included won the election by a very large majority of votes, much larger than the total number of voters in the two areas.
33. It may be noted that the effect of the inclusion of these areas on the delimitation of the constituencies deserves a careful consideration. Both these areas are small additions to ward No. 26 Kishorepura and ward No. 31 Borkheda-Umedganj respectively. In view of their local situations, any scheme, of delimitation of wards could not have included them in any wards other than those in which they have been included. The total number of voters in Kishorepura and Borkheda wards are 1077 and 1254 respectively, when the biggest ward of the Kotah Municipality contained as many as 2680 voters and the smallest ward contained 997 voters.
As such, inclusion of these areas in the Municipal limits by itself cannot be considered to have-affected on the whole the delimitation of wards. It is true that establishment of a municipality and fixing of its limits under section 5 of the Act are among some of the important matters which constitute the basis for holding elections. Delimitation of the wards, if any, has to be made with dus regard to them.
However, as in the present case, where on account of inconsistencies between the Notifications under section 7 and section 5 of the Act, certain small and sparsely populated areas lying at extreme ends of two constituencies were wrongly included in the limits of municipality, the delimitation of wards on the whole as a matter of fact cannot be regarded to have been necessarily affected on that account except that these areas were super-added to wards Nos. 26 and 31.
Election from Wards Nos. 26 and 31 alone can thus be had to have been affected by this illegality of adding Rangbari and Umedganj to them. Addition of these areas to Kotah Municipality can at She most have a bearing on the election from wards Nos. 26 and 31 only.
34. Mr. Rastogi has cited the decision in ILR(1955) 5 Raj 327 (supra), in support of his contention that addition of certain areas to a Municipality can have no effect on the holding of electionHe has relied on the following observations ofWanchoo, C. J., in Makhand's case, ILR (1955)
'In the first place, it is not the applicant's case that Ramnagar and Chandaliya Ice Factory areas return separate elected members of the Municipal Board. What appears is that these areas have been tacked on to other areas which are within the Municipal Board, so that what may have happened is that some persons have voted in the election, who should not have voted. This is a grievance which the applicant could have taken before an Election Tribunal under section 19 of the Act. As that was not done, we are not prepared to allow him to raise this question under Article 226.'
35. In that case, the applicant, who was a resident of Sardarshahar and a voter, challenged the validity of certain new taxes imposed by the Sardarshahar Municipal Board inter alia on the ground that certain areas, namely Ramnagar and Chandaliya Ice Factory were not included in the municipal limits of Sardarshahar by an order of the Government and in the election that took place in 1953, the residents of those areas also voted and consequently the entire Municipal Board was illegally constituted and the taxes imposed by that body were, therefore, illegal.
In dealing with this contention of the petitioners, the Court observed that the only effect of adding those areas to the municipality was that some voters who had no right to vote voted the election and the matter that some voters having no right to vote voted at the election could be agitated in an election petition under section 19 of the Act. It was also at the same time noted that the question of those areas having been wrongly added to the municipal limits was disputed by the opposite parties and thus it became a disputed question of fact which could not be determined in summary proceedings under Article 226 of the Constitution.
The Court refused to entertain the objection in this behalf mainly for the reason that it involved a decision of a disputed question of fact. The other observations relied upon by the learned counsel in this behalf may, in this view of the matter, be considered to be obiter. The effect of wrongly superadding certain areas to the limits of a municipality may be manifold and it may not be correct to say that the only effect which it might produce is that some voters not entitled to vote are permitted to vote at tile election.
When such areas are added on account of some illegality in the orders under section 10, the names of the voters of those areas are included in voters' list and the returning officer cannot, therefore, restrain them from taking part at the election. It may also be mentioned here that participation of the voters of such superadded areas in the election may affect the holding of the election otherwise than merely by the votes of the residents of those areas.
Persons may be nominated from such areas to fight the elections, when they would otherwise not be entitled to do so. The weight of the votes and the influence of propaganda by the residents of those areas may tilt the balance of elections one way or the other. The election propaganda on the whole may also be affected for that reason. It is thus not easy to assess correctly the effect of superadding certain outside areas to a ward on the election from that ward. In this view of the matter, we think the addition of Rangbari and Umedganj to wards Nos. 26 arid, 31 may have affected the holding of elections from those wards only.
36. The learned counsel for the petitioners has referred to the observations of Modi, J., ir ILR (1959) 9 Raj 1084 : (AIR 1960 Raj 152) (supra) in support of his contention that inclusion of areas in the municipal limits not forming part of such limits is necessarily fatal for the elections. Modi, J., in discussing the law on the subject has pointedly observed that the cases of inadvertent errors regarding limits of municipalities stand on a different footing, and the instant case being one of an inadvertent error in the description of the boundaries of the municipality is thus outride the scope of rule enunciated by the learned Judge.
Moreover, having regard to the particular facts and circumstances of the case, the effect of the illegality in this behalf is limited to the two wards to which Rangbari and Umedganj were added and elections to that extent only can be held to have been influenced on that account. It would be wrong to set aside the entire elections from all the wards when the effect of the illegality is obviously confined to two wards only. The learned counsel of petitioners has referred to the decision in ILR (1956) 6 Raj 663 (supra).
In that case, two towns named Rajnagar and Kankroli were joined together and a common Municipality was established, but the Government failed to issue a proper notification under Section 5 of the Act preceded by a Notification under section 7 of the Act establishing the said Municipality. There being no foundation for the establishment of the Municipality, it was held that the Municipality in that case had no legal existence and the writ petition was allowed and a direction Was issued against the Municipality to refrain itself from imposing taxes.
It would be noticed that the case of ILR (1956) 6 Raj 663 (supra), is one where no Municipality was established by Notification under section 5 of the Act. It was not a case of wrong inclusion of certain areas in the municipal limits on account of inaccurate description of boundaries and limits and inconsistency between such descriptions in the Notification under section 7 as compared to one under section 5 of the Act.
37. The learned counsel of the petitioners referred to the following observations in the decision of AIR 1936 PC 253 (2) (supra);
'The rule which applies is a different and not less well recognised rule, namely, that where a power is given to do a certain thing in a certain wav the thing must be done in that way or not at all.'
Their Lordships of the Privy Council pointed out that this doctrine had often been applied to Courts and although the Magistrates acting under the group of sections of the Code of Criminal Procedure that came up for consideration in that case did not act as Courts, yet since they were judicial officers, their Lordships thought there were strong reasons for applying the rule to them. These observations of their Lordships have no relevance regarding exercise of the powers of the Government under section 5 or 10 of the Act, for theGovernment cannot be supposed to exercise judicial functions while exercising its powers under those sections.
38. In AIR 1958 Punj 128 (supra), which his been relied upon by the learned counsel of the petitioners, certain areas which formed part of the Municipality were excluded while delimiting the wards and preparing the voters' lists. It was held that this was a case of an illegality which went to the root of the holding of elections and vitiated them. It may be noted that a case of exclusion of areas is a little different from a Case of wrong inclusion of areas in Municipality, and as discussed above, the illegality in this case has not affected the entire elections but has influenced the elections from wards Nos. 26 and 31 only.
39. Mr. Tyagi has also cited the decision in AIR 1957 Andh Pra 907 (supra), in support of his contention that the entire elections to the Municipality became null and void on the ground of the illegality attached to Notification of the Government dated 16th October, 1958, by which eertain areas were added to the Municipality including Rangbari and Umedganj for which no proper Notification under section 7 of the Act had been issued two months prior to that date.
In N. Kotayya's case, AIR 1957 Andh Pra 907 (supra), the Regional Inspector of Municipalities and Local Boards, purporting to act in exercise of the powers delegated to him by the Inspector of Municipal Councils and Local Boards, issued a Notification excluding Swarnapalem, a hamlet of Swarna, from the Swarna Panchayat and including it in the neighbouring Panchayat of Kodavalivaripalem. The remaining extent of Swarna without the hamlet was constituted as the Swarna Panchayat.
On the basis of the limits so fixed, elections to the Panchayat of Kodavalivaripalem were held on 16th February, 1954, and the petitioner was elected president of the Panchayat on the same day. On 29th July, 1954, the Government of Andhra acting under section 128 of the Madras Village Panchayats Act of 1950 set aside the order of the Regional Inspector of Municipalities and Local Boards excluding Swarnapalem, hamlet of Swarna from the Swarna Panchayat and including it in the neighbouring Kodavalivaripalem Panchayat and also set aside the elections to Kodavalivaripalem panchayat for that reason.
The petitioner who was elected President of the Kodavalivaripalem Panchayat, challenged the validity of the Order of the Government on the ground that the elections could not be set aside except by way of an election petition. The High Court of Andhra Pradesh held that the Order of the Government was a legal one for the reason that the Regional Inspector of Municipalities and? Local Boards transferred the hamlet of Swarna village to Kodavalivaripalem Panchayat without first declaring the hamlet to be revenue village and without such declaration, the hamlet could not be transferred from Swarna Panchayat to the other Panchayat.
It was also held that the Government had revisional jurisdiction over the orders of the Regional Inspector of Municipalities and Local Boards and the change in the limits of the Panchayat under the circumstances of the case rendered the elections held on that basis, null and void and the provision of election petition was not applicable to such a case. It may be noted that the decision in N. Kotayya's case, AIR 1957 Andh Pra 907 (supra), proceeds on a different footing.
There it was held that Government had revisional jurisdiction to set aside the order of the Regional Inspector of Municipalities and Local Boards and that the order of the Government was legal. In the instant case no such question of jurisdiction is involved. Here the effect of illegality is of a limited character and relief can be granted to that extent only and no further.
40. The conclusion on this point under the circumstances of the case is that the wrong inclusion of Rangbari and Umedganj in Kotah Municipality did not materially affect the delimitation of wards and thereby the entire elections. It had a bearing on]y on the elections from wards Nos. 26 and 31 and elections from those wards alone can be held to be illegal for this reason.
41. We shall now take up the second point as to whether the1 delay in the publication of the Order of the Collector, Kotah dated 20th March, 1959 in the Rajasthan Gazette introducing some changes in the delimitation of the wards was defect fatal to the election.
42. The Collector and District Magistrate of Kotah in exercise of the powers delegated to him under Government Notification No. F-1 (b) (6) LSG/52. II, dated 20th October, 1955, issued an order on the 13th of February, 1959 under Section 10 of the Act and published it in Rajasthan Gazette dated 12th March, 1959, fixing the total number of the members of the Kotah Municipal Board to be 33, including two nominated members and dividing the Municipality including the areas added to it by Government Notification dated 16th October, 1958, into 31 wards for the purpose of the ensuing elections and further directing that one member from each ward shall be elected.
He also specified the boundaries of the wards in the order in detail. He made certain alterations in the boundaries of wards by his order dated 20th March, 1959 and he immediately communicated copies of that order to the press and the Returning Officer. The Returning Officer had already taken up the work of the preparation of the electoral rolls and had prepared the voters' lists according to the wards initially fixed on the 23th of February, 1959.
According to the petitioners, the voters' lists that were published by the Returning Officer on the 30th of March, 1959, were Prepared on the basis of the wards fixed under the order of the Collector of the 13th of February, 1959, and they were not prepared as per the boundaries fixed by the subsequent order of the Collector dated 20th of March, 1959. But according to the contesting non-petitioners Nos. 5, 13, 16, 17, 20, 21, 23 to 29, 31 and 34, the voters' lists that were published by the Returning Officer on the 30th of March, 1959 were prepared as Per the wards constituted under the subsequent order of the Collector dated the 20th of March, 1950.
In support of the averment of the petitioners in this behalf, a copy of the electoral rolls of Ladpura constituency, ward no. 9, has been placed on the record and it is urged that the name of the constituency was changed by the order of the Collector of 20th March, 1959 from Ladpura West to Ladpura North and in the list published by the Returning Officer, the name of Ward No. 9 was put as Ladpura West instead of Ladpura North.
This example was given in order to substantiate the contention that the lists published by the Returning Officer took no notice of the changes made by the Order of the Collector in the formation of the wards of the Kotah Municipality. In answer to this, it was pleaded by the contesting non-petitioners Nos. 5, 13, 16, 17, 20, 21, 23 to 29, 31 and 34, that the lists were prepared by the Returning Officer on the basis of the wards initially constituted under the order of the Collector of the 13th February, 1959, but when some of the wards were changed and information thereof was communicated to the Returning Officer, he recast the electoral rolls in the light of the changes made in the wards and published the voters' lists as per the revised wards.
The lists already prepared as per the old wards were got printed, but after the changes in wards were made, the Returning Officer made corrections with pen in the printed electoral rolls so as to adapt them to the changed wards and published them with such corrections. The printed cover of Ward No. 9 that was produced from the records of the Municipality, Mr. Rastogi urged, must have remained in the record uncorrected, for it had not been issued for publication and no assistance can, therefore, be taken by the petitioners in support of their contention from the printed title page of Ward No. 9.
It may be noted that the original records, both of the Collector and District Magistrate and of the Returning Officer, were sent for and were produced for the inspection of the Court. A perusal of those records clearly showed that the Collector communicated the information of the changes made by him in the wards on the 20th of March, 1959 immediately to the Returning Officer and to the press. However, the Press took a very long time in publishing the said order of the Collector.
That order was printed in the Gazette of the 14th of May, 1959. The Returning Officer completed the work of the preparation of the electoral rolls on the 28th of March, 1959 and he had received the information of the changes in wards much before that date. He consequently made changes in the electoral rolls so as to bring them in line with the changed wards as averred by the contesting non-petitioners by making corrections with hand in the printed rolls.
He also noted the areas by name that wereincluded in each one of the wards on the firstpage of the list of the respective wards. In hisorder of publication of the voters' lists dated 30th .of March. 1959, the Returning Officer also referred to the changes made in the wards by thesubsequent order of the Collector dated 20thMarch, 1959, which positively shows that he hadnotice of it and he recast the voters' lists as perthe revised wards and published them on thatbasis.
In this view of the matter, the printed cover of the voters' list of ward No. 9 produced by the petitioners cannot be regarded to be a true copy. The argument of the learned counsel of the petitioners is that the inhabitants of the Municipality were denied an opportunity of filing objections against the voters' lists for the reason that the period for filing objections expired on the 30th April, 1959 before the order of the Collector making changes in the wards was Published in the Rajasthan Gazette on 14th May, 1959.
The answer of the contesting non-petitioners Nos. 5, 13, 16, 17, 20, 21, 23 to 29, 31 and 34 to this argument is that under the law, it was not necessary for the Collector to publish his order by which wards had been constituted or changed and the only notice that was required under the provisions of the Act and the Rules was by publication of the electoral rolls under Rule 7 (2) of the Election Rules and the Returning Officer published the electoral rolls as per the revised wards on the 30th March, 1959 and allowed one month's time for filing objections and the inhabitants of the Municipality thus got ample opportunity of filing their objections, if any.
It may be noted that under Section 10 of the Act, the Government or its delegate has been empowered from time to time, generally or specially for each Municipal Board, (1) to determine the number of members, (2) to fix the proportion of the nominated members, if any to the elected members, (3) to fix the number of members to be elected in the Municipality by the several constituencies, if any; and (4) to issue orders for regulating the description, number and extent of constituencies for election of members.
The inhabitants of the Municipality have no say in the matter of the exercise of the powers under Section 10 of the Act. The matters referred to in Section 10 of the Act are of fundamental character and they constitute the basis for the holding of elections of the municipal board. Even though no specific provision has been made in the Act or, the Rules for publication of the Government orders passed under Section 10 of the Act, yet the orders passed under Section 10 of the Act were in fact always published in the Gazette.
The orders of the Collector of the 13th February, 1959 and also of the 20th March, 1959 were published in the State Gazette of 12th March, 1959 and 14th May, 1959 respectively. Having regard to importance of matter it has always been considered necessary that such orders should be published and brought to the notice of the people. A convention appears to have been established that orders passed under Section 10 of the Act are invariably published for the information of the people.
It is true that no specific provision regarding the publication of the orders passed under Section 10 of the Act or the mode thereof has been made either in the Act or the Rules and the only provision relating to the publication of the formation of the constituencies under Section 10 of the Act is by way of the publication of the voters' lists tinder Rule 7(2) of the Election Rules. The electoral rolls when prepared in accordance with the wards constituted under Section 10 of the Act and signed by the proper officer are published under Rule 7 (2) of the Election Rules for the information of the public and objections thereto are invited.
Thus, delay in the matter of publication of the order of the Collector revising the boundaries of the wards cannot be considered as amounting; to. contravention of the provisions of the Act or Rules. There being no provision at, all in this behalf, it cannot be assumed that the publication of the orders passed under Section 10 of the Act is mandatory and non-publication thereof would go to vitiate the elections.
However, let us examine if any mischief has thereby been committed. It is alleged that the inhabitants of the Municipality failed to make objections under Rule 7 (2) of the Elections Rules, for they were not aware of the order by which most of the wards were reconstituted. In the first place, no changes were made in Wards Nos. 1, 2, 3, 6, 22, 23, 24, 25, 26, 29 and 30 and the petitioners can have no grievance so far as those wards are concerned.
As regards the remaining wards, the contention of the learned counsel on the opposite side is not without force that the inhabitants got the desired information about the changes in wards by means of the electoral rolls that were published by the Returning Officer on the 30th of March, 1959. Those rolls were positively prepared on the basis of the revised wards and they were published as required by the Rules for information of the people.
It was also mentioned in the Order of the Returning Officer by which these lists were published that certain changes had been made in the formation of wards under an order of the Collector. The publication of the voters' lists and the Order of the Returning Officer by which those lists were published under Rule 7 (2.) are his official acts and ordinarily there is a presumption of their regularity.
The inhabitants had no reason to doubt the fact of a change having been introduced in the formation of wards as mentioned in the Order of the Returning Officer and also the fact that the lists that were published were strictly in accordance with the reconstitution of wards. The People could easily understand the formation of reconstituted wards from the names of the villages, habitations, or Mohallas that were mentioned at the beginning of the voters' list of each ward.
It is true that the inhabitants of the Municipality had no direct opportunity of acquainting themselves with the language of the Order of the Collector by which -wards were changed till that order was published in the Gazette on the 14th of May, 1959. This, however, is a mere technicality. The people must have come to know substantially about the changes in wards through the Order of the Returning Officer which made a clear reference to it and which also clearly showed that the lists that were published by him were on the basis of wards that were reconstituted under the Order of the Collector.
There was no room for any misunderstanding in this behalf. The voters' lists contained the names of the voters in each ward with necessary particulars and also the names of the areas that were included in each ward. There is no material on the record of this case to show whether the names of the particular localities mentioned in the beginning of the voters' list of each ward indicated their limits with precision Or Otherwise.
To avoid such complication, the Returning Officer should have also in addition to mentioning the names of the particular localities which constituted each ward, mentioned the boundaries of the wards as stated in the Order of the Collector under Section 10 of the Act. However, having regard to the circumstances of the case, it appeals that the inhabitants of the local areas knew very well the exact limits of each mohalla or local area described in the electoral rolls and they had a fair opportunity to file their objections, if any, to the voters' lists.
Nor can the defect of delay in the publication of the order of the Collector which has been made one of the grounds of this writ petition, be regarded to be inherently of such a character as to vitiate the elections.
43. In ILK (1960) 10 Raj 540 (supra), Jagat Narayan J. has made certain observations regarding the necessity of publication of an order under Section 10 of the Act regarding formation of wards. The learned Judge having regard to the facts of that case held that no order whatsoever was made by the Collector under Section 10 of the Act dividing the areas of the Ganganagar Municipality into several wards for the purpose of election and an order which was alleged to have been made by the Collector in this connection was virtually in effect not an order of constitution of wards.
The point regarding the effect of non-publication or late publication of an Order under Sec, 10 of the Act did not arise in that case and no assistance can. therefore, be taken by the learned counsel of the petitioners from it in support of his contention on this point.
44. In ILR (1959) 9 Raj 1084 : (AIR i960 Raj 152) (supra) the general elections of the Municipal Hoard of Pali were assailed on two grounds : (1) that the order constituting the wards was made about a week before the polling and the preparation and publication of the voters' lists and the inviting of objections thereto were done without first constituting the wards under Section 10 of the Act; and (2) that the Government or the Collector failed to determine the total number of the members of the Municipal Hoard and the Proportion of the nominated members to the elected members, and the elections were held in the; absence of such an order.
Modi J. held that the publication of voters' lists and the inviting of objections thereto when no wards on the basis of which such lists were prepared had been constituted under Section 10 of the Act, constituted an irregularity which went to the root of the elections and vitiated them. The opinion of Modi J., however, cannot help the case of the petitioners, for the reason that in the instant case the wards had been Properly constituted of altered under Section 10 of the Act before the voters lists were published and a clear indication of the formation of the wards was given in such lists.
The second point on which both the learned Judges agreed in Quarab Ali's case, ILR (1959) 9 Raj 1084 : (AIR 1960 Raj 152) (supra), is not material for the purposes of this case and we need not go into that aspect of the case here.
45. The learned counsel of the petitioner, has referred to the following observations of the Supreme Court in (S) AIR 1957 S'C 304 (supra), and has urged that the opportunity for making objections to the electoral rolls is an essential requirement of the law and as in the instant case the voters failed to get such an opportunity on account of the fact of delay in the publication of the Order of the Collector altering some of the wards, the elections were vitiated:
'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.'
As already discussed above, in the instant case, the wards had been properly constituted and changed and the lists that were published by the Returning Officer were prepared on the basis of the changed wards and the voters had sufficient opportunity to file objections, if any, under Rule 7 (2) of the Election Rules, for even though the Order making changes in the wards was published late in the Gazette, the voters had sufficient notice of it by the lists themselves which specifically mentioned the names of the local areas included in each ward. The irregularity referred to in the observations of their Lordships of the Supreme Court in the Chief Commissioner, Ajmer's case, (S) AIR 1957 SC 304 (supra), does not appear to have been committed in the instant case.
46. Learned counsel for the petitioners also referred to the decision in AIR 1959 Punj 522 (supra). In that case, elections of Morinda Municipal Committee were challenged on the ground of voters' lists not having been prepared on the basis of wards and objections not having been invited thereto. The Punjab Legislative Assembly electoral rolls were adopted for the purpose of elections to the Municipality and a key chart was-issued by the Deputy Commissioner, Ambala dividing the electoral rolls into six parts and thus constituting six wards. The elections that were held on the basis of the electoral rolls of the Legislative Assembly without properly constituting the wards and without inviting objections to the rolls were held to be invalid.. It was observed as follows :
'The determination of the territorial limits of the constituencies, in other words their delimitation, is an essential and integral part of the process of preparation of the roll for each municipal constituency and, in my view, this cannot under the law, be deemed to have been left to the sweet will or discretion of the Deputy Commissioner or, for that matter, of any other individual officer.'
47. It may be pointed out that in the instant case, the wards were properly constituted and electoral rolls were properly prepared on the basis of such wards and opportunity to file objections was also afforded as required by Rule 7 (2). The observations in AIR 1959 Punj 522 (supra), are, therefore, not of any help to the petitioners.
48. Our finding on the second point is that the delay in the publication of the Collector's order in the Gazette cannot be regarded to be fatal for the holding of the elections, because the effect of this irregularity was counterbalanced by the information in this behalf contained in the voters' lists, which were duly published in accordance with the rules. The voters had full opportunity to file objections to the voters' lists.
49. We would now proceed to consider the third point raised by the petitioner. The question is whether a petitioner can be permitted to invoke the extraordinary jurisdiction of this court under Article 226 in a case where it is open to him to avail of his remedy by way of an election petition under Section 19 of the Act.
50. In AIR 1952 SC 64 (supra), Fazl Ali, J. who delivered the judgment of the Court, other Judges all concurring, observed that,
'It was well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by the statute only must be availed of'. He referred with approval to the following observations of Willes, J. in Wolverhampton New Water Works Co. v. Hawkesford, (1859) 6 CB (NS) 336 at p. 356. The Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant find Co., 1935 AC 532 and Secretary of State v. Mask and Co., 44 Cal WN 709 : (AIR 1940 PC 105) and the House of Lords in Neville v. London Express Newspaper Ltd., 1919 AC 368, also approved the rule laid down by Willes, J. ; 'There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability, existing at common law, and that liability is affirmed by a statute which gives a special and particular form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular, remedy for enforcing it .......The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.'
The rule has also been held to be equally applicable to enforcement of rights (see Hurdutrai v. Official Assignee of Calcutta, 52 Cal WN 343).
51. Enforcement of rights, duties or liabilities created by an Act having no corresponding rights, duties or liabilities at the common law would fall within the third category of the classification made by Willes, J. Thus, it is clear that in cases covered by Section 19 of the Act, the parties should be left to enforce their rights and liabilities by way of an election petition and they are not entitled to any relief under Article 226 of the Constitution of India.
Jagat Narayan, J. in Uda Ram's case, ILR. (1960) 10' Raj 540 (supra), has tried to distinguish N. P. Ponnuswami's case, AIR 1952 SC 64 (supra), by observing that it was based on Article 329(b) of the Constitution which limits the powers of the High Courts under Article 226 of the Constitution in cases of elections to the Parliament and State Legislatures. It may be noted that the aforesaid observations of the Supreme Court in N. P. Ponnuswami's case, AIR 1952 SC 64, are clear ami unambiguous and the said rule has not been qualified by the circumstance of the applicability ot Article 329(b) of the Constitution to the case.
The learned Judge was, therefore, not right in holding that the aforesaid rale laid down by N. P. Ponnuswami's case, AIR 1952 SC 64, was not applicable arid binding on this Court in case of municipal elections. This Court has, from time to time, refused to exercise its extraordinary jurisdiction under Article 226 of the Constitution, of India in cases which in its opinion were covered by Section 19 of the Act.
In ILR (1956) 6 Raj 910 : (AIR 1956 Raj 185) (supra), the petitioner's nomination paper was rejected by the Returning Officer and on that basis, the petitioner came to this Court for a writ of certiorari without waiting for the result of the election. It was held that he had his remedy by way of an election petition after the result of the election was declared and he was not entitled to a writ of certiorari.
This decision is in line with the principles laid down, by Willes, J. as reproduced above. The rule laid down in ILR (1956) 6 Raj 910 : (AIR 1956 Raj 185) (supra), was followed in an unreported decision of this Court in Civil Writ No. 165 of 1955, D/- 31-7-1957 (Raj) (supra), to which one of us was a party.
In that case, the petitioner who stood as a candidate at the election and was defeated, filed, a writ petition challenging the elections on the following grounds : (1) that the Returning Officer had no authority to constitute wards of the Municipal Board and to order that one member from each ward shall be elected; (2) the Returning Officer formed wards and accordingly split up the voters' list which was prepared on the basis of single constituency and held the elections on that basis; and (3) Rule 17 of the Election Rules was contravened inasmuch (as V) the lists of the nominations were not published under the signatures of the Returning Officer, but were published under the signatures of the Secretary to the Municipal Board.
The petitioner did not approach the Court for a writ of mandamus before the elections were concluded and he sought relief under Article 226 of the Constitution of India for the purpose of obtaining a declaration from this Court that the elections that were held were illegal. In other words, he sought a writ of quo warranto against the elected members of the Municipal Board. It was held that it was open to the petitioner to challenge the validity of the elections on those grounds by way of an election petition if the result of the elections had been materially affected thereby.
It may be noted that the petitioner in that case was a defeated candidate and he was at .liberty to file an election petition. Secondly, he made no grievance of any illegality regarding the exercise of powers, by the Government or its delegate in the matters covered by Section 10 of the Act. He was aggrieved by the action of the returning officer in acting in disregard of the orders under Section 10 in the matter of formation of wards and in splitting the roll of voters arbitrarily to suit the wards formed by him.
The illegality complained of was committed by the Returning Officer in course of the process of election. It was clearly a case of an error or illegality committed by the Returning Officer in holding the elections for which an election petition was the proper remedy. In Uda Ram's case, ILR (1960) 10 Raj 540, the decision in Kapoor Chand's case, Civil Writ No. 165 of 1855, D/-31-7-1957 (Raj), was dissented from on the wrong assumption that it was a case of breach of the provision of Section 10 of the Act.
With respect for the opinion of the learned Judge, we may point out that he was in error in so assuming merely because the Returning Officer disregarded the orders that were validly made under Section 10 of the Act. Modi, J. in Qurab Ali's case, ILR (1959) 9 Raj 1084 : (AIR 1980 Raj 152) (supra), rightly distinguished the decision in Civil Writ No. 165 of 1955, D/- 31-7-1957 (Raj) (supra), on the ground that the irregularities that were complained of in that case were the acts of the Returning Officer and they thus came within, the scope of Section 19 of the Act.
Jagat Narayan, J. in ILR (1960) 10 Raj 540 (supra), has also dissented from the Division Bench decisions in ILR (1958) 8 Raj 177 (supra), and ILR (1957) 7 Raj 742 : ((S) AIR 1957 Raj 293) (supra). The point on which the learned Judge has noted his disagreement does not directly arise in the instant case and we are, therefore, not called upon to embark upon a close examination of the issue.
However we may note that the issue on which disagreement has arisen would be resolved if the rule laid down by Ponnuswami's case, AIR 1952 SC 64, is strictly adhered to. For example, ten voters have to join together to challenge an election only in cases that are covered by Section 39 of the Act, for which relief under Article 226 should not be granted. For matters falling outside the scope of Section 19, it is not necessary for ten votets to join together to make an application under Article 226. The learned Judge sitting singly could express disagreement with the aforesaid decisions of Division Bench, but as he was bound by them, he should have formulated issues and referred them to Hon'ble the Chief Justice for constitution of a larger bench.
It is a well recognised and salutary rule of practice that a single Judge is bound by the decision of a Bench of two or more Judges (vide Sub-barayudu v. State, (S) AIR 1955 Andhra 87 (FB)), Firm Balmukund Harikishan v. Union of India, AIR 1955 Madh-B 181, Shanmugavelu Pillai v. Karupannaswami Pillai, AIR 1954 Mad 1070, Bhikkabhai Nanabhai v. Chimanlal Maganlal, AIR 1953 Bom 437 (KB), Khodadat Bibi v. Kamala Ranjau, AIR 1940 Gal 584, Radha Kishen v. Bombay Company Ltd., AIR 1943 Lah 295, Kuldip Das v. Emperor,. AIR 1933 Pat 38, Ali Husain v. Lachmi Narain, AIR 1932 All 188 and a Division Bench is bound by the decision of another Division Bench : vide (S) AIR 1955 Andhra 87 (FB), Saslii Bhusan v. Bhuneshwar Rai, (S) AIR 1955 Pat 124, Dr. K.C. Nambiar v. State of Madras, AIR 1953 Mad 351, Gangasahai v. Bharat Bhan, AIR 1950 All 480, Udhavji Anandji v. Bapudas Ramdas, AIR 1950 Bom 94, Ajudhia Pershad Ram Pershad v. Sham Sunder, AIR 1947 Lah 13 (FB)) and he cannot ignore or disregard the earlier decision, unless such decision has been overruled by a Full Bench or the Supreme Court.
Subordinate Courts are bound by the decisions of this Court and if single Judges make pronouncements inconsistent with those of a Division Bench in disregard of the rules of judicial precedents, they would create confusion in the minds of the subordinate judiciary. We cannot, therefore, over-emphasize the salutary importance of respecting judicial precedents which foster judicial traditions and help to provide a safe guide in a morass of confusion.
52. The High Court has wide powers under Article 226 of the Constitution and the jurisdiction of the Court is not affected or reduced because the Court acts with certain amount of restraint, under Article 226 of the Constitution and refuses to grant relief in cases regarding enforcement of rights created by a statute, which also provides a special remedy for enforcing them.
53. It would be noticed that the language of Section 19 of the Act is not very happy and there is some apparent inconsistency in the language of the explanation and that of Sub-section (3). However, both of them should be read together. A candidate or any ten persons qualified to vote, have a right under Section 19 of the Act to present an election petition for questioning the validity of an election on the grounds (I) of any corrupt practice as defined by Sub-section (3) (a) and Sub-section (4) of Section 19 of the Act : and (2) of any substantial error or irregularity on the part of the officer or officers charged with the duty of conducting the elections provided that such error Or irregularity has affected or would have the effect of materially affecting the result of the election.
Thus breaches of the provisions of the Act or of rules framed under Section 205 (2) (b), whether they be of directory or mandatory nature, if committed by the returning officer in holding the election, would afford a good ground for challenging an election by an election petition under Section 19 of the Act provided they materially affect the result of such election. The term 'election' is used in its wide sense in this context.
In ILR (1956) 6 Raj 910 : (AIR 1956 Raj 185) (supra), the meaning of the term 'election' has been thoroughly discussed and it has been held by this Court that it should be taken to be in a wide sense including all proceedings beginning from a declaration under Rule 14 of the Election Rules up to the, stage of the declaration of the result of the elections.
Breaches of the mandatory provisions of the Act or the Rules committed by authorities other than the Returning Officer, either before the issue of a Notification under Rule 14 or after the declaration of the result of the election, do not fall within the scope Section 19 of the Act and the only remedy in such case is of an application under Article 226 of the Constitution. Modi J. in Qurab Ali's case, ILR (1959) 9 Raj 1084 : (AIR 1960 Raj 152) (supra), rightly observed 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 lie and that even such matters should be left to be decided by an election petition under Section 19 of the Act, which matters 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. 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.
'Where the election is sought to be challenged on the ground firstly that the territorial limits adopted for the purpose of holding the election had not been properly fixed under Sections 5 and 7 and secondly that the composition of the Board had not been lawfully determined as required by Section 10 of the Act, the irregularities involved in the ejection held in such circumstances could properly be made the subject matter of a writ application to the High Court under Article 226 of the Constitution.'
54. We may here refer to the comments of Jagat Narayan J. in Udaram's case, ILR (1960) 10 Raj 540 about the import of Section 19 (5) of the Act. The learned Judge has observed that:
'Error, irregularity or informality used in Section 19 (5) do not apply to breaches of mandatory provisions of the Act or the Rules.'
He further observed that
'error in the meaning of Section 19 (5) of the Act means disregard of the 'provisions of the Act or the rules laying down the manner, time and other conditions of performance laid down to promote method, system uniformity and despatch in the proceedings; in other words, to provisions which are directory.'
With respect for the opinion expressed by the learned Judge, it may be noted that there is nothing in the language of Section 19 of the Act to limit its operation only to cases of breaches of directory provisions of the Act or the Rules. In AIR 1958 Pat 149 (supra), Rule 7 of the Bihar Municipal Elections and Election Petition Rules, 1953, which corresponds with Rule 14 of the Election Rules, was held to be of mandatory nature and it was also held to be the very foundation of the municipal election and non-compliance with it was regarded to have the effect of depriving many voters of their right to vote at the election.
It was also observed that the publication of the Notification under Rule 7 delegated jurisdiction to the District Magistrate to hold elections of the Commissioners of the Municipality. Thus, Rule, 14 of the Election Rules may be regarded to be of a mandatory character. In Milakhraj's case, ILR (1957) 7 Raj 742 : ((S) AIR 1957 Raj 293), it was held by Wanchoo C. J. that disregard of the provision of Rule 14 can be made a ground of an election petition under Section 19 of the Act.
It would be too much to say that disregard of Rule 14 cannot afford a defeated candidate a good ground for challenging the validity of the election by way of an election petition even in cases where it as a matter of fact materially affects the result of the election. If the Proposition as laid down in the judgment of Udaram's case, ILR (1960) 10 Raj 540 (supra), is accepted, the Election Tribunal would be powerless in such a case to grant relief under Section 19 of the Act.
It may, therefore, be concluded that Section 19 (5), of the Act not only contemplates breaches of directory provisions of the Act or the Rules, but also affords a remedy for breaches of mandatory provisions of the Act or the Rules as well provided they otherwise fall within the scope of' the language of that section. When we say so, we should not be understood to mean that cases of disregard of mandatory provisions of the Act, not covered by Section 19 of the Act, cannot be challenged by petitions under Article 226 of the Constitution.
The scope of Section 19 is limited to the breach of provisions of the Act or the Rules framed under Section 205 (2) (b) committed by the Returning Officer in holding the elections which begin by notification under Rule 14 and last up to the time of the declaration of the result of the election. This Court has and rightly so interfered under Article 226 of the Constitution in cases of disregard of mandatory provisions of the Act, for instance', where no notification under Section 5 was issued establishing a municipality. Or where the provision of Section 10 was ignored thereby vitiating the elections. Those were the cases which do not fall within the scope of Section 19.
55. We may conclude this Point by saying that this Court would be slow to grant relief under Article 226 of the Constitution in cases of disregard of the provisions of the Act or rules framed under Section 205 (2) (b), whether directory or mandatory, by the Returning Officers in the course of the holding of elections, which term is to be under-' stood in its wide sense as discussed above.
In the instant case the illegality of disregard of Section 7 of the Act Cannot be considered to fall within the scope of Section 19 of the Act. Relief may be granted by this court under Article 226 of the Constitution by issuing a direction to exclude the areas of Rangbari and Umedganj from Kotah Municipality and also to set aside the election of the successful candidates from Wards Nos. 26 and 31 to which those areas were illegally added.
56. To sum up, the conclusions are as follows :-
1. Section 7 of the Rajasthan Town Municipalities Act is mandatory.
2. The notification of the Government dated 16th October 1958 to the extent it included Rangbari and Umedganj in tile limits of Kotah Municipality is invalid. Areas of Rangbari and Umedganj cannot be considered to be included in the Kotah Municipality in the eye of law.
3. Though the order of the 20th of March 1959 of the Collector of Kotah introducing certain changes in the wards was published in the Gazette of the 14th of May 1959, the voters had a reasonable opportunity of knowing it and of filing their objections to the voters' lists, because information in this behalf was contained in the voters' list's that were published on the 30th of April 1959. No mandatory provision of the Act or the Rules can be considered to have been contravened in this connection.
4. In cases covered by Section 19 of the Act, this Court would be slow to grant relief in exercise of its extraordinary jurisdiction under Article 226 of the Constitution.
5. The scope- of Section 19 includes cases of errors, irregularities or illegalities committed by a returning officer in course of the process of election, in contravention of the provisions of the Act or the rules framed under Section 205 (2) (b) whether such provisions be mandatory or directory.
6. The illegality of including Rangbari and Umedganj in the limits of the municipality had no effect on the delimitation of the wards as a whole and it only affected the holding of elections to wards Nos. 26 and 31 to which those areas were added. The petitioners are entitled to a direction to set aside the elections from wards Nos. 26 and 31 only.
57. The writ petition is partly allowed andthe elections from wards Nos. 26 and 31 are setaside and a direction is issued against the Government and the municipality for treating the areas ofRangbari and Umedganj as not forming parts ofKotah Municipality. The parties shall bear theirown costs.