Jagat Narayan, J. - (1.)THIS is a petition under Art. 226 of the Constitution challenging the validity of the election of respondents Nos. 2 to 9 as members of the Municipal Board Bissau at the, last general election held on 21. 8. 59 under the Rajasthan Town Municipalities Act, 1951 ( hereinafter referred to as the Act) and the Rajasthan Town Municipal Election Rules, 1951, ( hereinafter referred to as the Rules ). Petitioner No. 1 is a defeated candidate and petitioners Nos. 2 to 3 are voters. The petition was contested by successful candidates respondents Nos. 2 to 9. The Returning Officer was joined as respondent No. 1 and notice was served on him. He did not however either file a reply or put in appearance.
(2.)THE S. D. O. Jhunjhunu was appointed Returning Officer by the Collector of Jhunjhunu and he conducted the election in accordance with the following programme published in the Rajasthan Gazette dated 23. 4. 59 : - 1. Preparation of voters' list by the Returning Officer under Rule 6 (1) . . . . . . . . . 18. 4. 59 2. Publication of voters' list under Rule 7 . . . . . . . . . 20. 4. 59 3.Last date for filing claims and objections under Rule 9 . . . . . . . . . 20. 5. 59 4. Claims and objections to be decided under Rule 10 by . . . . . . . . . 4. 6. 59 5. Last date for filing appeals under Rule 10 (7) . . . . . . . . . 15. 6. 59 6. Appeals to be decided by . . . . . . . . . 17. 6. 59 7. Final publication of electoral roll under Rule 11 . . . . . . . . . 15. 7. 59 8. Publication of notice under Rule 14 . . . . . . . . . 20. 7. 59 9. Date fixed for election . . . . . . . . . 21. 8. 59 THE election was contested by two groups of candidates. THE successful candidates respondents Nos. 2 to 9 were backed by the Congress party. THE other group of candidates which was defeated included Mall Ram petitioner No. 1 and Durgadatt Harit the former chairman of Bissau Municipal Board.
On 17. 5. 59 one Sagarmal Misra President of Mandal Congress Party, Bissau presented an application (Ex. 2) before the Returning Officer at Jhunjhunu in which he alleged that the names of persons a list of whose names he had filed had been deliberately left out from the voters' list and prayed that they may be included. Along with this application he filed a list of 1543 persons. On this application the Returning Officer sent his election clerk to Bissau to verify the list and submit a report to him by 19. 5. 59 (Ex. R. 2 ). At the same time he directed the Secretary of Bissau Municipal Board to assist the election clerk in the verification.

The election clerk reached Bissau on 18. 5. 59 and met one Shri Nathoolal Vaid whom he described in his report Ex. 6 as a man of Sagarmal Misra. Nathoo Lal Vaid gave three of his men to the election clerk. Two municipal clerks were provided to him presumably by the Secretary who had been directed by the Returning Officer to assist the election clerk. These clerks had assisted in the preparation of electoral roll. The election clerk formed three parties. One party consisted of himself and a man of Nathoo Lal. The other two parties consisted of a municipal clerk and a man of Nathoo Lal each. The party consisting of the election clerk verified the voters' list of wards Nos. 5 and 6 which were mostly populated by Mohammedans. The election clerk thought it proper to verify the voters of these wards personally as Shri Nathoo Lal Vaid had complained to him that the names of Mohammedans were left out from the voters' list. The other two parties were entrusted with the verification of the voters of wards Nos. 1 to 4 and wards Nos. 7 and 8 respectively. Each party carried a list of persons alleged to have been left out from the voters' list. The election clerk directed the members of the other two parties to make a tick mark against the names of persons who may be present and a cross-mark against the names of persons who may not be present.

The election clerk found as a result of the enquiries made by him in wards Nos. 5 and 6 that-- (1) Most of the persons of these two wards resided outside Bissau in connection with business and their houses were locked or only one or two persons were residing in "each house whose names were already on the voters' list. (2) House Numbers were missing from the houses so that it could not be ascertained whether or not the occupants of the houses had or had not been already included in the voters' list. (3) There were several persons on the list who were married daughters of this village who were not entitled to be enrolled in Bissau. (4) There were several names of persons in the list who had not attained the age of 21 years. ' He found that 62 persons out of the list were entitled to be included in the voters' list of ward No, 5 and 207 in the voters' list of ward No 6. As a result of the verification carried out in the aforesaid manner the election clerk recommended to the Returning Officer that the names of 687 persons should be included out of the list of 1543 persons submitted by Sagarmal Misra. This recommendation was accepted by the Returning Officer (Ex. 7.) He sent two copies of the list of persons whose names were to be added to the voters' list already published to the Secretary, Municipal Board, Bissau on 19. 5. 59 (Ex. R. 3) asking him to attach the two copies to the voters' list placed in the office and the library for publication. In accordance with this direction the Secretary published the additional voters' list on 20. 5. 59 by placing copies of them in the municipal office and the municipal library.

One Babu Lal Kanoria filed an application (Ex. R. l) on 22. 4. 59 for the addition of the names of 10 persons of his family which had been left out of the voters' list. This application was addressed to the Chairman, Municipal Board, Bissau. It was however presented before the Returning Officer. It was rejected on 3. 6. 59 on the ground that it had not been filed in accordance with Rule 9 (4) which lays down that each claim or objection shall not relate to more than one person.

It was alleged by the petitioners that the Returning Officer acted illegally in adding the names of 687 persons inasmuch as the rules require that before any one's name is entered to the list of voters published under Rule 6 (1) the procedure prescribed under Rules 9 and 10 has to be gone through. Under Rule 9 (1) no one's name can be entered unless he himself files a claim in writing before the Returning Officer duly signed and verified in the manner provided for signing and the verification of pleadings in the Code of Civil Procedure. A separate application is to be filed with regard to each claim. These claims are to be judicially determined in the manner prescribed under Rule 10 by a revising committee consisting of the Returning Officer and two members of the Municipal Board appointed by a resolution of the Board before they can be allowed. The decision of the committee is subject to an appeal before the District Magistrate under Rule 10 (7 ). Further it was alleged that the action of the Returning Officer in entertaining the claims of 687 persons filed by the President of the Mandal Congress party and not entertaining a similar claim filed by Babu Lal Kanoria was discriminatory inasmuch as Babu Lal Kanoria was not a supporter of the candidates backed by the Congress party. It was also alleged that the action of the Returning Officer was mala fide inasmuch as it was designed to help the candidates backed by the Congress party in winning the election.

The contention of the contesting respondents was that the Returning Officer ordered the addition of the names of 687 persons under his extraordinary power under Rule 1. 1 (2 ). It was alleged that Durga Datt, the former Chairman, apprehended that Mohammedans would not vote for him at the next election and when the voters' list was under preparation under Rule 6 (1) he so manoeuvred things that the names of the majority of the Mohammedan voters were left out and that Sagarmal Misra brought this fact to the notice of the Returning Officer on 17. 5. 59 who ordered the inclusion of the names of 687 persons after making proper inquiry. It was asserted that his action in doing so was bonafide and not malafide. As for the application of Babu Lal Kanoria it was stated that it was treated differently as it was addressed to the Chairman, Municipal Board and not to the Returning Officer. It was asserted that the verification of the list submitted by Sagarmal Misra was done openly in Bassau which is a small town and the petitioners must have been fully aware of it and could have filed objections on 20. 5. 59 against the additions made by the order of the Returning Officer. It was contended that the petitioners had an alternative remedy in the shape of an election petition, under section 19 of the Rajasthan Town Municipalities Act 1951 and that an election challenging the validity of the election of all the eight respondents had already been filed by Durga Datt and was pending.

Rule 11 (2) runs as follows: - "the Returning Officer may also, within a month from the date of the publication of the list make any additions to, or omissions from, or corrections in, the list, which he may discover to be necessary otherwise than on the application of any person interested therein. "

(3.)THIS rule certainly empowered the Returning Officer to add 687 names to the list of voters published on 20. 4. 59 at any time upto 20. 5. 59 and such additions, not being made on the application of the claimant himself Rules 9 and 10 did not apply to them. On behalf of the petitioners it was contended that Rule 11 (2) was ultra vires the rule making power conferred on Government under sec. 205 of the Act. Reliance was placed on the Supreme Court ruling in Chief Commissioner vs. Radhey Shyam (1 ).
Having heard the learned counsel for the parties at length on this contention I am satisfied that it must be upheld.

The relevant portion of sec. 205 runs as follows: - Power of Government to make rules and order - (1) The Government may make rules or orders generally for the purpose of carrying into effect the provisions of this Act and prescribe forms for any proceeding for which it considers that a form should be provided. (2) In particular, and without prejudice to the generality of the foregoing power, the Government may make rules or orders - (b) (iii) for preparing and revising the lists of voters from time to time. . . . . . . . . . . . . . . . . (iv) for determining the manner in which and the authority by whom any objection to such lists in regard to the names entered therein or omitted therefrom may be heard and decided, and to. what authority the appeals as to such entries and omissions shall lie ;"

Sec. 205 thus lays down that the rules framed under it must provide an opportunity to the persons interested in the election - (1) to scrutinise whether the persons enrolled as electors possess the requisite qualifications, and (2) to file claims and objections thereto. They must also provide a machinery for the quasi-judicial determination of the claims and objections and for an opportunity to file appeals from such decisions and for the decision of such appeals.

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