SARJOO PROSAD, J. -
(1.)THE petitioners have prayed in this case for a writ of mandamus directing the State of Rajasthan to determine the wards of Ladnun Municipality under sec. 10 of the Rajasthan Town Municipalities Act, 1951, (Act No. XXIII of 1951 - hereinafter called the Municipal Act ). They have also prayed for a direction that fresh elections should be held on the basis of wards which may be newly formed. The petitioners are residents of Ladnun and their names are borne on the Electoral Rolls of the Ladnun Town Municipality. ' Their grievance is that the wards of the Municipality were not determined on the population basis, but have been so arranged as to deprive a particular community of its right of fair representation on the Municipal Board. They accordingly claim that the wards should be properly delimited and determined and a fresh election should be held on the basis of the newly determined wards.
(2.)IT appears that prior to the elections in May, 1955, the wards of the Municipality were defined. They consisted of 19 wards each ward being a single-member constituency entitled to return a representative on the Municipal Board at the General Elections. In other words the constitution of the Board was to consist of 21 members, 19 members to be elected, one from each ward and two members to be nominated. The case of the petitioners is that an artificial and arbitrary basis was adopted in dividing the Municipal limits into various wards with the specific object of depriving the Oswal community, which is a business community in Ladnun, of their right to have a fair representation in the membership of the Board and that inspite of repeated protests there was no change in the wards and the elections in 1955 took place accordingly. When the life of the Board then constituted expired and fresh elections were to take place, some of the residents of the town including the petitioners again raised the question of revision and while the agitation was still in progress, the draft electoral rolls were published on 1st May, 1958, on the basis of the wards as they were, Ist of June, 1958, was fixed as the date for entertaining objections and 16th August, 1958, at the date of polling. On the 20th of June, 1958, however, the Secretary to the State Government wrote to the Collector of Nagaur that the question of formation of the wards for the said Board under sec. 10 (d) of the Municipal Act should be finalised at an early date and the proposals sent up for Government approval ; and since this was likely to take some time, the ensuing Municipal General Elections should be postponed. On the 21st of July, 1958, Government directed an enquiry in the matter and stayed the election proceedings. Later, however, the Collector of Nagaur, on 18th August, 1958, wrote to the Government, observing that on the recommendation of the Returning Officer the proposals in regard to the wards and seats had been already approved by the Collector on 10th April, 1958, and that in his opinion there was no necessity felt on administrative grounds to change the constitution of the wards nor was there any resolution of the Municipal Board or any public organisation in this connection. It may be observed that the proposal of the Collector was in accordance with the wards previously fixed and approved by the Government under Notification No. F I (b) 14 LSG/54 dated 12th November, 1954. The above letter of the Collector had its desired effect. The Government realised that in case the wards had to be reconstituted the elections would be unduly delayed and it would take at least about six months to finalise. It was, therefore, of opinion that the proposal should be dropped and accordingly on the 30th of September, 1958, the Government wrote to the Collector of Nagaur that any idea of revising the list should be abandoned. In the meantime it appears that the Returning Officer had on the 28th of November, 1958, suggested certain changes in the wards ; but the Collector invited his attention to the aforesaid Government letter and advised him to proceed with the arrangements for the Municipal Elections on the basis of the existing wards and immediately to submit a revised programme for the same. Accordingly a fresh notice of the elections was published on the 22nd of January, 1959, and the elections took place as per schedule on the 25th of February, 1959. It appears that some of the petitioners themselves were candidates for the election but were un-successful. The petition before us was presented on 9th March, 1959, after the result of the elections had been published.
An attempt was made at the outset to challenge the vires of sec. 10 of the Act on the ground that the section concedes excessive and arbitrary powers to the Government; but when it was pointed out that notice had not been served on the Advocate General, the learned counsel for the petitioners confined his arguments only to the executive action taken under the section in delimitation of the wards. The contention was that the delimitation was hit by Art 14 of the Constitution inasmuch as there had been an unreasonable discrimination in the matter of distribution and defining of the constituencies against a section of the community. Various affidavits have been filed in support of the allegations made in the petition, but in particular the affidavits of one Kanhaiyalal Sethi and one Atmaram, giving various details, were read out to us in extenso. The petitioners seek to make out that the delimitation of the wards in 1954 was wholly arbitrary and appears to make an unauthorised discrimination against the 'oswal community who resided particularly in Wards No. 14 and 15.
(3.)OUR attention has been drawn to a statement (Annexure 8a) prepared in 1954-55 regarding the Municipal Election of Ladnun. It mentions, amongst others, the 19 wards in the Municipality, the number of residential houses, the number of voters and the population in various wards respectively. The figures to which particular reference has been made in the course of the arguments are in relation to wards Nos. 7, 11, 14, and 15, In ward No. 7 it appears that the number of voters as mentioned in the statement is 585 whereas the population is 1170. In ward No. 11 it is 535 as compared to a population of 1070. Similarly in ward No. 14 it is 492 and the population is 985; and in ward No. 15 the number of voters is 525 whereas the population is 1050. It is argued that the very fact that the number of voters in each case has been taken to be almost half of the population shows that it was prepared on some speculative basis. It is contended that the number of voters in the above wards was much more than the figures given above and yet on the erroneous assumption each ward was given only one representation in the membership of the Board. These figures have been further compared with the statement Ex. A appended to the petition which contains the number of voters in the respective wards of the Ladnun Municipality, as shown in the electoral rolls prepared for the election to be held on 25th February, 1959. In this list we find that the number of voters in ward No. 7 was 765; in ward No. 11, 755, in ward No. 14, 994, and in ward No. 15, 801. Mr. Tyagi for the petitioners contends that although the number of voters in these wards was fairly heavy as compared to the number of voters from the other wards, for instance ward No. 19 where it was as low as 487, yet each of these wards had the privilege of sending only one representative on the Municipal Board. It is submitted that in the case of those wards the number of voters is much larger or even double the number of others some additional representation may have been given or at least the wards should have been so distributed as to make the voters almost equal. Emphasis has also been laid on the report of the Returning Officer dated 28th November, 1958, where the Officer suggested that before any election is held for the constitution of the Municipal Board, there should be a redistribution of the wards and that each ward should be formed on the basis of at least 1000 population,; and since the population was a little above 25,000 he further suggested that there should be Â£5 wards in the Municipality out of which 23 should be elected and 2 nominated. Further the petitioners point out from the affidavit of Atma Ram that when the Board was constituted in 1954, there was some move on the part of the authorities to augment the proportion of the population and to secure for them an appreciable measure of over-representation. The affidavit further shows that in ward No. 14 out of the total of 994 voters, as many as 851 were Oswals and in ward No. 15 out of 802 voters, 636 were Oswals.