SARJOO PROSAD, C. J. - (1.)THESE are three appeals by Roshanlal Arora and 13 others from the decision of a learned Single Judge of this Court dated the 1st of Dec. ,1959 allowing the three writ petitions of Udaram, Gauri Shanker and Keshrichand and setting aside the election of the 24 elected members of Ganganagar Municipal Board and the nomination of two nominated members and further directing the State to hold a fresh general election as early as possible in accordance with law. As all the three appeals arise out of the same judgment and as they raise common questions for determination, they are being dealt with together.
(2.)UDARAM, Gaurishanker and Keshrichand filed three writ petitions No. 269, 295 and 302 of 1959 on the 1st, 8th and 19th of August, 1959 respectively, alleging inter alia that the provision of sec. 10 of the Rajasthan Town Municipalities Act, 1951 (Act No. XXIII of 1951, hereinafter referred to as the Act) is mandatory and that as no notification was published by the Government or the Collector under sec. 10 of the Act fixing the number of members of the Municipal Board, and delimiting wards, the elections of 24 members held in the year 1959 and nominations of two members by the Government were invalid.
The State of Rajasthan, the Collector of Ganganagar and the elected and the nominated members of the Municipal Board were impleaded opposite parties in all the three cases. The respondents No. 3, 4, 6, 10, 11, 13, 14, 16, 17, 20, 21 and 22 supported the cases of the petitioners and the remaining respondents contested them. The contesting respondents pleaded that the Collector constituted the wards under sec. 10 of the Act by his order dated the 28th of April, 1959 which was published by affixation on the notice board of the Collector's office and also of the office of the Municipal Board and that in the alternative an order under sec. 10 of the Act that was published at the time of the general election to the said Municipal Board in the year 1955 survived and the elections and nominations of members to the Boards were, therefore, not invalid. It was also pleaded that sec. 10 of the Act was not mandatory and that an alternative remedy under sec. 19 of the Act was available and the petitioners had, therefore, no case under Art. 226 of the Constitution.

The learned Single Judge held as follows: - (1) The order bearing the date 28th April, 1959 was not passed till election was over and even assuming for the sake of argument that the said order was made by the Collector, it was not valid and effective for - (a) the Collector did not purport to issue a fresh notification as contemplated by sec. 10 after applying his mind to the question of delimiting the existing area of the municipality, (b) it was not published properly so much so that even the Returning Officer and the Executive Officer of the Board were not aware of the fact that any such order had been passed, (c) it took no notice of the areas subsequently added to the Municipal limits and also the premise that were built after the year 1955 in such of the wards as were described by naming the premises without giving their boundaries. (2) The order passed by the Collector in 1955 fixing the total number members of the Board both elected and nominated and delimiting wards, was confined in its operation to the elections held in the year 1955 and it did not survive and there was, therefore, no order by the Collector determining the total number of wards, fixing the number of elected and nominated members and delimiting the constituencies for the election of members held in the year 1959, as contemplated by sec. 10 of the Act. (3) The provision of sec. 10 of the Act is of mandatory nature, a breach whereof renders the subsequent proceedings relating to the election and nomination of the members void. An order under section 10 is a pre-requisite condition which must exist prior to the preparation and publication of the list of voters. (4) The provision of sec. 19 (5) cannot heal the defect of non-compliance of the mandatory provision of sec. 10, for it does not apply to non-compliance of sec. 19 (5); it is only applicable to 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. (5) Section 19 (5) does not provide an alternative remedy for challenging the validity of elections and nominations of the members of the Board on the ground of non-compliance with the mandatory provisions of the Act, for - (a) no election petition would lie for challenging the nominations made by the Government and (b) the determination of the total number of wards, the proportion of elected and nominated members and the delimitation of constituencies under sec. 16, the preparation and publication of list of voters and the adjudication of claims and objections with regard to it all precede the issue of a written notice of the election under rule 14 and they do not fall within the meaning of the term 'election' even in its wider sense and sec. 19 only contemplates an election petition in which the result of the election is challenged on the ground of invalidity occurring in the process of election and not before it. In the alternative where an entire election is vitiated by the violation of a mandatory provision, the High Court may interfere under Art. 226 even if an alternative remedy by way of filing an election petition is available. The remedy by election petition is not equally convenient, speedy and effective in such cases. (6) The scope of Art. 226 of the Constitution is considerably wider than that of the English prerogative writs of quo warranto. (7) There was no acquiescence on the part of the opposite parties and the petition cannot be dismissed on account of acquiescence.

Mr. C. L. Agarwal argued all the three appeals with the consent of the counsel of the other appellants. He canvassed the following points: - (1) The finding of the learned Judge that the provision of sec. 10 of the Act was not complied with is erroneous inasmuch as the order of the Collector constituting 24 wards dated the 20th of October, 1955 was operative and it was not necessary for the Collector to issue a fresh order under sec. 10 of the Act. The learned counsel cited the decision of this Court in Ramjilal Vs. State of Rajasthan (Civil Writ Petition No. 225/59 decided on the 11th of September, 1959) on this point. It was in the alternative contended that the order of the Collector Ganganagar dated the 28th of April, 1959 was a sufficient compliance of sec. to of the Act and the elections held in 1959 were, therefore, not in disregard of the provision of sec. 10 of the Act. (2) The three petitioners were not entitled to any relief under Art. 226 of the Constitution, for they were not qualified to claim a quo warranto having acquiesced in the proceedings of elections that were held in the year 1959 by taking part in them. The decisions in A. R. V. Achar Vs. Madras State (1), Bagaram Tuloule Vs. The State of Bihar (2), Ajoy Kumar Jagadev Mohapatra Vs. Saila Behari Chowdhari (3) and Shyam Chand Basak Vs. Chairman of Dacca Municipality (4) were cited in this connection. (3) A writ of quo warranto should not be granted where the effect of the grant of writ would result in the dissolution of the entire Municipal Board. The decision of Queen vs. Ward (5) was relied upon by the learned counsel. (4) The petitioners had their remedy under sec. 19 of the Act by way of an election petition and they could not, therefore, invoke the jurisdiction of this Court under Article 226 of the Constitution. (5) The petitioners had no fundamental or legal right so as to claim dissolution of the Municipal Board and they had, therefore, no case for coming to this Court under Art. 226 of the Constitution. Bagaram Tuloule Vs. The State of Bihar (2) was cited. (6 ). Sec. 10 of the Act is not mandatory and it was only directory and non-compliance of the sec. 10 did not entitle the petitioners to a writ of quo warranto. (7) The old Municipal Act under which the elections to the Municipal Board of Ganganagar were held in the year 1959 was repealed by the Rajasthan Municipalities Act, (Act No. 38 of 1959) and the petitioners, therefore, could not complain of the non-compliance of sec. 10 of the repealed Act. (8) The petitioner had a period of limitation of ten days only from the date of the declaration of the result of the elections for making an election petition under sec. 19 of the Act and they could not by-pass the provision of the law on the point of limitation by coming to this Court under Article 226 of the Constitution after the expiry of the said period of limitation of ten days.

Before dealing with the points raised by Mr. Agarwal, we may note that the view of the learned Judge on some points of law came up for consideration before a Full Bench of this Court in Jaiwant Rao and others Vs. State of Rajasthan (Civil Reference No. 10/60 in Civil writ No. 340/59 decided on 17th August, 1960) to which both of us were parties. In that case it was held that: - "in cases covered by sec. 19 of the Act, this Court would be slow to grant relief in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. The scope of sec. 19 includes cases of errors, irregularities or illegalities committed by a returning officer in course of the process of election, (taking the term in its widest sense) in contravention of the provisi ons of the Act or the rules framed under sec. 205 (2) (b) whether such provisions be mandatory or directory. '' The opinion on points of law expressed by the learned Judge in so far as it is covered by the Full Bench decision in Jaiwant Rao's case stands overruled and we need not go into those questions over again. However, even substituting the view of law taken by the Full Bench in place of the one adopted by the learned Judge, we find that the conclusion at which the learned Judge has arrived would remain unaltered for the reason that a breach of the mandatory provision of sec. 10 does non fall within the scope of sec. 19 (5) of the Act. In the first place, as observed by the learned Single Judge, nominations of members made by the Government cannot be questioned by an election petition under sec. 19 of the Act. In the second place, an election (taking the term in its widest sense beginning from the publication of a notification of election under rule 14 and coming to an end by declaration of the result of the election) cannot be taken to include orders contemplated by sec. 10 of the Act, for the reason that orders contemplated by sec. 10 have got to be made long before a notification of election is issued under rule 14.

We have carefully examined the chain of reasoning of the learned Single Judge by which he arrived at a finding that the order of the Collector of Ganganagar of the 28th of April, 1959 was not made or published and that the order of the 20th of October, 1955 did not survive for holding the elections in the year 1959. We entirely agree with the reasoning given by the learned Judge in arriving at the aforesaid findings. The order of the 20th of October, 1955 by which number of members - both elected and nominated - was fixed and the constituencies were delimited, on its very face is limited to the elections that were held in the year 1956 and it cannot be conceived to have survived thereafter. It may also be noted that the limits of the Municipality were extended since then and the order of the 20th of October, 1955 was also amended so as to remove certain defects with which it suffered. Thus the order of the 20th of October, 1955 could by no stretch of imagination be regarded to be subsisting so as to form the basis of the elections that were held in the year 1959. The order of the 28th of April, 1959 was not published properly and, as observed by the learned Judge, even the Returning Officer and the Executive Officer of the Board were ignorant of it. The said order does not take notice of the extended limits of the Municipality and it reproduces without any change the order of the 20th of October, 1955 without reference to the changes that had taken place in between. In the past, orders under sec. 10 of the Act had always been published in the Gazette and had an order been made by the Collector on the 28th of April, 1959, it would have certainly been published in the Gazette. Mr. Agarwal has not been able to demolish the reasoning given by the learned Judge in this connection and we have no reason to disagree with the learned Judge. We accept his finding that the order of the 20th of October, 1955 did not survive so as to afford basis for the elections that were held in the year 1959 and the order of the 28th of April, 1959 was not made till after the elections were over and even if made, it was not published. It may also be mentioned in this connection that the voters' lists were prepared and finalised after hearing the objections of all concerned before the 28th of April, 1959 and the said order of the 28th of April, 1959 could not, therefore, take the place of an order under sec. 10 so as to form the basis of the preparation of the electoral rolls and the electio|ns.

We also agree with the learned Judge that an order under sec. 10 of the Act fixing the total number of the members of a municipal board and delimiting constituencies, if any, is a pre-requisite condition for holding elections in disregard of the provision of sec. 10 in the circumstances of this case vitiates the elections.

Mr. Agarwal has argued that the three petitioners having acquiesced in the election by canvassing and taking part in it were precluded from making application for a writ of quo warranto. He his sought support from a decision of the Madras High Court in A. R. V. Achar Vs. Madras State (1 ). In that case writ petition was dismissed in limine for the reason that the relator had acquiesced in the election to the Municipal Board, Madras, by taking part and canvassing in the elections. On facts that case is distinguishable for the reason that in that case no breach of any mandatory provision of the law constituting a prerequisite condition for the holding of elections was urged. A writ of quo warranto cannot be claimed as a matter of right and such a writ is issued in the discretion of the court. In the circumstances of that case, the relator was not considered entitled to a writ of quo warranto for the reason of acquiescence. We think acquiescence cannot afford any jurisdiction for refusing a direction under Art. 226 of the Constitution in a case where mandatory provisions of law have been disregarded and the elections held would on that account having regard to the circumstances of the case amount to no election in the eye of law. For the same reason, other decisions referred to by the learned counsel are not of much avail. The learned Single Judge has rightly observed that the scope of Art. 226 is much wider than the scope of a prerogative writ of quo warranto.

(3.)THE third argument of the learned counsel is also devoid of force for the reason that under the circumstances of this case, the elections held in the year 1959 cannot be regarded to be in accordance with law, when they were held in disregard of the mandatory provisions of sec. 10 of the Act. It is very unfortunate that the entire elections have to be declared invalid; but as the matter stands, there is no escape from that conclusion.
As already discussed above, in view of the Full Bench decision of this Court in Jaiwant Rao's cast, the fourth point taken up by the learned counsel cannot be regarded to have any substance in it. We are bound by the decision in the Full Bench case and we do not think the contention of the learned counsel is well founded when he asserts that disregard of the provision of S. 10 of the Act falls within the ambit of S. 19 of the Act. In our opinion the law has been clearly discussed and laid down in Jaiwant Rao's case by the Full Bench. Breach of sec. 10 cannot be considered to be covered by sec. 19 of the Act.

The petitioners are residents of the municipal area and they are subject to the jurisdiction of the Municipal Board in such of the matters as lie within the ambit of the powers conferred upon it by the Act. They have, therefore, a right to challenge the constitution of the Board in case it is so formed as to be invalid in the eye of law. This Court has time and again granted relief under Art. 226 of the Constitution where boards were illegally constituted in disregard of the mandatory provisions of sec. 5, 7 or 10 of the Act. The contention of the learned counsel, in view of the decisions of this Court, cannot be considered to be good.

Though the learned counsel urged that sec. 10 of the Act is not mandatory, he could not dislodge the reasons that have been referred to by the learned Single Judge in arriving at the conclusion that the provision of sec. 10 is mandatory. We think orders under sec. 10 lay the foundation for the preparation of the electoral rolls and the elections and it cannot be accepted that sec. 10 is of directory nature. In Jaiwant Rao's case the Full Bench has held that sec. 10 is mandatory and we see no reason to disagree with that view.

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