MODI, J. - (1.) BY this writ application under Art. 226 of the Constitution, the petitioners who are voters in the municipality of the town of Mukandgarh, District Jhunjhunu, seek to challenge the general election last held for this municipality on the 23rd December, 1958, under the Rajasthan Town Municipalities Act, 1951, (Act No. XXIII of 1951) (hereinafter called the Act ).
(2.) IT is common ground that the petitioners were among the candidates who offered their candidature for the impugned election. Respondents Nos. 2 to 9 are members of this municipal board having been declared successful at this election. Respondent No. 1 is the Returning Officer, who conducted the election, while respondent No. 10 is the municipal board Mukandgarh. The petitioners have taken up a large number of grounds in their writ application which according to them vitiated this election; but it is necessary to mention only those which were debated at the bar of this Court, the rest having been given up. These grounds may be summarised as follows: First, the Returning Officer acted illegally in entrusting the preparation of the voters' list to the municipal board and in doing so he contravened rule 6 of the Rajasthan Town Municipal Election Rules, 1951 (hereinafter called the Rules ). Secondly, the voters' list was not published in accordance with rule 7 (1) of the Rules and further it was also not published after its finalisation in accordance with rule 11 (3) read with rule 7 (1 ). A third ground of attack was also raised by an application for amendment dated the nth April, 1960, and this was that neither the Government of Rajasthan nor the Collector who had authority delegated to him in this connection had issued any notification under sec. 10 of the Act determining the total number of members of this municipal board or whether this board would consist of wholly elected or partly elected and partly nominated members and in the latter event what was to be the proportion of the members to be nominated to those elected, and, lastly, whether the election shall be on a single constituency basis or otherwise. The contention was that the failure of the Government or the Collector to issue such a notification affected the very foundation of the election, and, therefore, it should be declared to be void. A reply was filed on behalf of the municipal board before respondents Nos. 2 to 9 took office. In this reply it was admitted that the Returning Officer had asked the municipal board to prepare the list of voters and so it had prepared the same. As for the publication of the said list it was submitted that the list was placed in the municipal office "under the custody of office staff with instructions to show it to any body who wants it to see during office hours. No such list was published by affixing it on the notice board of municipal office or at any other place in municipal office or municipal area as there were no such instructions of the Returning Officer. " It was further submitted in this connection that in accordance with the instructions received from the Returning Officer on the 3rd September, 1958, this list was also sent to the public library situate within this municipality and that it was for the librarian thereof to say how he had kept the list for inspection. According to the municipal board, the same procedure was followed in the publication of the electoral roll after it was finalised. We have an affidavit on the record filed by Murlidhar Sharma who was working as librarian of the library at the relevant time. According to this affidavit, the list of voters had been received by him on the 3rd August, 1958, through a messenger of the municipal board and he put it in an almirah of the library under lock and key thinking that "the said list was important and valuable document. " He was avowedly under the impression that this was to be taken out and given for reading as and when any person demanded and as no one made such a demand, it was not shown to any body and was returned to the municipal board on demand. As for the publication of the electoral roll as finalised, Murlidhar's version is that he received it from the board on the 21st November, 1958, with a covering letter and that this electoral roll was also put by him in the almirah of the library under his lock and key. His version further is that some three or four persons did requisition to see this roll and he allowed them to see it and every time after inspection he kept it under lock and key. He has clearly deposed in his affidavit that neither the list of voters nor this electoral roll had been displayed inside or outside the library for free inspection. Another reply was filed by respondents Nos. 2 to 9 after they took office. Accor-ing to them, the voters' list was prepared by the Returning Officer though he had taken the assistance of the municipal staff for this purpose and, therefore, the preparation of the voters' list was in order. On the point of publication, the reply was that a copy of the voters' list was published both at the office of the municipal board and the public library in Mukandgarh. It was further submitted in this connection that the list was kept on a table outside the office of the municipal board's and was easily accessible and open to inspection to every member of the public. It is Significant, however, that this reply does not make it clear whether the list was kept on a tab)e presumably in the compound of the office of the municipal board during office hours only or outside such hours also. As for publication of the list in the public library, all that is said is that the same had been put in the public library and that there was no contravention of rule 7 of the Rules. Although the affidavit of the librarian Murlidhar Sharma had been put in earlier and it showed that he had kept the voters' list under lock and key to be offered for inspection only on demand by the visitors to the library, there is no contradiction of this at all. So far as the publication of the electoral roll under rule 11 (3) is concerned, all that the respondents have said in their reply is that the roll was published in the manner provided in rule 7 of the Rules, and there is no specific denial of the allegations made by the petitioners in this connection. As regards the alleged infirmity of the election in question owing to the failure of the Government or the Collector to issue the notification under sec. 10 of the Act fixing the composition of the board, the respondents vehemently argued that permission to raise this additional ground should not be accorded to the petitioners as the prayer was highly belated and that the question sought to be raised was not one of law but of fact. It seems to have been further contended in paragraph four of their reply that the absence of the notification did not go to the very root or foundation of the election, and, therefore, also this additional ground of attack should not be allowed. It is in this state of pleadings that the question as to the validity of the impugned election falls for determination before me. In view of its obvious importance, I propose to take the third ground first. I may state at once that to me it appears to be perfectly futile to contend at this date in our Court as to what the effect of the failure on the part of the competent authority to issue a notification under sec. 10 of the Act would be. The point first directly arose in Qurab Ali Vs. Govt. of Rajasthan (1) to which I was a party. In that case, one of the grounds on which the election to the Pali Municipality was challenged was that the composition of the board had not been fixed either by the Government or by its delegate the Collector as required by sec. 10 of the Act. All that the Collector did there as seems to have been done in this case was that he ordered the municipality to go to polls and appointed a Returning Officer for the purpose and he had done so without determining what was to be the total strength of the board and whether all the members thereof were to be elected or a few could be nominated also and if so what was to be their proportion to the members elected. (See the order of the Collector dated the 9th July, 1958, in this case which is on the file of the Collector ). On these facts, I held (and Bhandari J. concurred in this conclusion) in Qurab All's case that the municipal board was improperly constituted and could not be allowed to function as a proper foundation for its membership had not been laid. This case latter came up for consideration before a Full Bench of this Court in Jaiwant Rao Vs. The State of Rajasthan (Full Bench Civil Reference No. 10 of 1960 decided on the 17th August, 1960, still not reported) and was approved. The law, therefore, may be taken to be two well settled at this date to admit of any doubt or dispute so far as our Court is concerned, that a breach of sec. 10 of the Act in the sense that the total strength of a Board has not been fixed or that the character of its membership, that is, whether it is to consist of wholly elected members or partly elected and partly nominated, and if so, what is to be proportion of one to the other, has not been determined goes to the very foundation of the constitution of the board and an election held in the absence of such a notification cannot but be struck down as illegal. The contension of the respondents, therefore, as raised in their reply dated the 20th September, 1960, that a failure like this would not go to the very root of the case cannot possibly be countenanced. That being so, the only other question which arises for consideration is whether under the circumstances the petitioners should be allowed to raise this point at all. It is necessary to state a few facts in this connection. The present writ application was filed on the 30th January, 1959. The amendment application seeking permission to introduce this additional ground of attack was filed on the nth April, 1960, that is about a year and three months after the filing of the writ petition. Qurab Ali's case (Supra) came to be decided by a bench of this Court on the 28th July, 1959, wherein, as already stated the effect of a failure on the part of the competent authority to issue a notification fixing the composition of the Board under sec. 10 of the Act came up for the first time "for a pointed consideration and pronouncement of the law on the subject. This decision was reported in the November Part of our Official Reporter for 1959. It has further been pointed out by the petitioners in their affidavit in this connection that the general election in the case of another municipality in their own district was struck down by this Court on the ground of it having proceeded to the polls without a proper foundation having been laid for the same by the issue of a notification under sec. 10 of the Act and that they had heard of the same in the beginning of April, 1960, (See Muhavir Prasad Vs. Chiranjilal, S. B. Civ/1 Misc. Appeal No. 89 of 1959, decided on the 3rd March, 1960) quashing the general election of the Surajgarh Municipality, District Jhunjhunu), and then it occurred to them to find out whether a notification under the said section had been issued by the Government or the Collector in the case of the impugned election and thereafter they made a thorough search and came to know that there was no such notification either in the Rajpatra or in the office of the Collector or the Returning Officer or the Municipal Board. As already stated, the application for amendment seeking permission to introduce this fresh ground was submitted in this Court on the nth April, 1960. By an order dated the 2nd May, 1960, of Jagatnarain Justice before whom the case was placed then, it was ordered that the application would be considered at the time of the hearing of the main petition. The case was thereafter placed before me for hearing for the first time on the 13th October, 1960. I thought it proper under the circumstances to ask the Collector, Jhunjhunu, to send the file regarding the composition and formation of wards etc. of this municipality in connection with the election in question. This record was received on the 22nd March, 1961, and the case was again placed before me for hearing on the 14th April, 1961. In the meantime a reply had been filed by the respondents on the 20th September, 1960, praying that the amendment application be summarily rejected. It is conceded before me on behalf of the contesting respondents and indeed there is no getting out of this position, that there was a complete failure on the part of the authorities concerned to issue any notification in this case under sec. 10 of the Act. No elaborate investigation into facts was perhaps necessary and all that has to be seen in this connection was the Rajasthan Rajpatra for the relevant period or the relevant file of the Collector or the Returning Officer pertaining to this Municipal Board. In these circumstances, the question is would this Court be justified in refusing permission for this point to be raised. I have deeply pondered over the matter and have come to the conclusion, though not without some reluctance, that the point has to be allowed in public interest. The point is vital. It affects the very foundation of the general election which is impugned before me. In this connection I am fully conscious of the general principle that an election must not be lightly set aside; but at the same time it is equally important to remember that the purity and the regularity of the election process has to be safeguarded and flagrant breaches of, the law relating to election cannot be allowed to go unnoticed or their inevitable consequences glossed over. See Jagannath vs. Jaswantsingh (2 ). Learned counsel for the respondents candidly conceded that if the point had been raised by the writ petition in the first instance, he could have had no legitimate objection to its being considered and given effect to. This is indeed as it should be. The only ground, however, on which learned counsel relies in his support is that the application for amendment was made after considerable delay. There is a certain amount of truth in this complaint. But mere delay, in my judgment, cannot be a valid ground for refusing an amendment irrespective of all other considerations. I feel strongly supported in the conclusion to which I have come by the decision of their Lordships of the Supreme Court in Arunachalam Pillai Vs. M/s. Southern Roadways Ltd. (3 ). That case arose under the Motor Vehicles Act. The appellant held a permit to ply his bus on a certain route. He applied to the Regional Transport Officer concerned for variation of his route. That Officer notified his application and invited objections. Eventually he rejected the application. The appellant went in revision before the Government of Madras under sec. 64a of the Motor Vehicles Act. The Madras Government set aside the order of the Regional Transport Officer and allowed the variation as prayed for. Thereafter the respondent, namely, the Southern Roadways Ltd. filed a writ application under Art. 226 of the Constitution in the Madras High Court with a prayer that the order of the Madras Government be quashed. In this writ application the point had not been taken that the Regional Transport Officer had no jurisdiction to grant the variation asked for or that the Government had likewise no such jurisdiction so grant in revision what the Regional Transport Officer himself could not have granted. This plea was however sought to be raised before the High Court at the time of hearing. It was urged on behalf of the respondent that the plea was being raised on account of a Division Bench decision of the Madras High Court in another writ petition which had been decided since the petition had been filed and wherein it was held that the Regional Transport Officer had no jurisdiction to deal with an application for variation of the conditions of a permit. The High Court relying on the bench decision bet aside the order of the Government of Madras without going into the other contentions raised by the respondent. The appellant went in letters patent appeal which was dismissed. In these circumstances a strong plea was raised before their lordships of the Supreme Court that the respondent having failed in his writ application to raise the objection that the Regional Transport Officer had no jurisdiction to vary the conditions of the permit, the High Court had acted erroneously in allowing him to urge this point at the time of the hearing. This is how their Lordships repealed this objection: "it was not until the decision of the High Court in Writ Appeal No. 107 of 1955 that it became the considered view of that Court that the Regional Transport Officer had no jurisdiction to make any such variation. When the law was so declared by the High Court, it could not reasonably be said that the High Court erred in allowing the respondent to take this point although in its petition under Art. 226 the point had not been taken. This was obviously because the decision of the High Court in Writ Appeal No. 107 of 1955 had not been given at the time of the filing of the petition. Since the question went to the rest of the matter and it involved the question whether the Regional Transport Officer had jurisdiction to vary the conditions of a permit the High Court faced with a Division Bench decision of its own on the matter, could not very well refuse permission to the respondent to rely on that decision in support of its petition questioning the validity of the order of the Government of Madras made under sec. 64 A of the Act. With great respect, these observations apply with full force to the case before me, and if I may say so, the present case stands on a stronger footing so far as procedure goes. The present writ application was filed, as already stated on the 30th January, 1959, and Qurab Ali's case (Supra) in which the question of consequences of non-compliance with the provisions of sec. 10 of the Act first came up for an elaborate consideration and a pointed decision was not decided at that time and it came into existence on the 28th July, 1959. It is also remarkable that even though an application for amendment of the grounds of petition as such does not appear to have been made before the learned single judge in the High Court of Madras, the petitioners here did take the precaution of filing such an application before it came up for hearing. The contesting respondents have had an ample opportunity of testing the truth of the allegation made therein and have indeed felt compelled to admit that no notification under sec. 10 was issued by the Government or the Collector in the present case. It cannot, therefore, be argued for a single moment that by the allowance of the amendment the respondents would be subjected to any surprise or prejudice on that account. To adopt the phrageology of their Lordships of the Supreme Court in the Madras case to the case before me, since the question of the non-compliance with the provisions of sec. 10 goes to the root of the election and I am faced with a Division Bench decision delivered subsequently which in its turn was approved by a Full Bench of this Court, I cannot very well refuse permission to the petitioners to rely on that decision in support of the petition questioning the validity of the election. I would, therefore, allow the amendment. Once the amendment is allowed, I do not think the impugned election can be sustained and must be quashed.
(3.) AT this stage it remains for me to dispose of three subsidiary contentions raised on behalf of the contesting respondents. The first contention is that even though a fresh notification fixing the total strength of this municipal board and determining the relative strength of the elective element therein to the nominated was not issued before the impugned election was held on the 24th December, 1958, this lacuna was adequately supplied by the notification issued by the State Government on the 14th May, 1951, and published in the Rajasthan Raj-patra in due course. This notification reads as follows: - "notification Jaipur the 14th May, 1951. No. F1 (b) 14 LSG-A/51. It is hereby notified for general information that as the population of the Mukandgarh Town is below 10,000 souls the Government have, in pursuance of the policy in vogue, been pleased to fix the number of seats as TO (8 elected and 2 nominated ). The election will be held on single constituency basis. The Tehsildar Jhunjhunu (Administrator of the Board) is appointed as Returning Officer to conduct the elections. By order of His Highness the Rajpramukh, Kamta Prasad Secretary to the Government It was pointed out in this connection that the impugned election was held exactly on this basis. This argument might have possibly had some force were it not for certain events which happened in between. The Board of 1951 finished its term on the 13th November, 1954, and thereafter its life was extended upto the 30th June, 1955, as a fresh general election could not be arranged upto that time. Then a further notification was issued by the Government dated the 16th December, 1954, which reads as follows: - Jaipur December 16, 1954. No. 17739/f. 1 (n) (l4) LSG/51. 11. In exercise of power conferred by sec. 10 of the Rajasthan Town Municipalities Act, 1951, the Government of Rajasthan is pleased to order that for the purposes of the ensuing Municipal General Elections of Mukandgarh: - (a) there shall be 8 wards; (b) there shall be 10 members - 8 elected and 2 nominated, and (c) that one member shall be elected from each ward. " It would be at once seen that the mode of election which was adopted at the election of 1951 was definitely ordered to be given up by the notification of 1954 for the election to be held in 1955 and instead of this municipality going to the polls on the single constituency basis, elections were ordered to be held on a ward-wise basis and each one of the wards was to return one member to the Board. What happened then at the end of the term of this Board in 1958 was that the Collector by his order dated the 9th July, 1958 referred to above, appointed respondent No. 1 as the Returning Officer to carry out the general election for this Board and thereafter the Returning Officer issued a programme of election. In this programme of election, he announced that the election would be held on a single constituency basis that being a clear departure from the last general election of 1955 and a reversion to the mode followed in 1951. No care was taken on the part of the competent authority to fix the composition of the Board or even to say that it would be as before. In these circumstances, I have no hesitation in saying that learned counsel for the contesting respondents makes a rather tall proposition when he asks me to read the notification of 1951 as still alive when the general election of 1958 was going to take place or that that notification would still govern the impugned election. An insuperable difficulty in the way of learned counsel is the notification of December, 1954, which I have already set out above. Undoubtedly it was issued for the ensuing municipal general election, that is of 1955; but in so far as it did so the inevitable position to which we come is that it completely superseded the notification of 1951. Let it be remembered that the notification of 1954 was not issued as being in partial supersession of the earlier one. Therefore by the sheer logic of events, the correct conclusion would be that once the notification of 1954 came into existence it necessarily displaced the earlier notification of 1951. And it is just a shortcut irresistible step from this to hold that inasmuch as the notification of 1954 was in terms limited to the ensuing general election, there was a complete hiatus as to the total strength of the board or the character of its composition and the proportion of the elective and the nominative element therein so far as the election of 1958 which is the election impugned before me goes. The inevitable position then is that no foundation was laid for the holding of the election of 1958 by the issue of a notification under sec. 10 of the Act, and, therefore, the entire super-structure must tumble down. The second contention of learned counsel for the respondents was that the proper remedy for the petitioners was to file an election petition under sec. 19 of the Act before an Election Tribunal instead of a writ application to this Court, and strong reliance is placed in this connection on the bench decision of this Court in Kapurchand Vs. State of Rajasthan (D. B. Civil Writ petition No. 165 of the 31st July, 1957) an unreported decision to which reference has been made in Qurab Ali's case as well as the Full Bench case referred to above. With all respect, this argument seems to me to be specious but has no substance in it. In Qurab Ali's case (Supra) I held that this other case was distinguishable on facts and that it would not be attracted into application where the irregularities on the strength of which the election was sought to be set aside were committed by the Collector or the Government and not by the Returning Officer. I may also point out with all respect, that it does not seem to have been ever contended before the learned Judges who decided that case that there was a breach of the basic requirements for the holding of a general election as provided in sec. 10 of the Act, and the entire emphasis in that case was laid on certain errors committed by the Returning Officer. As I understand the entire law, that has been developed as a result of the various decisions in our Court, the analogy of Kapoorchand's case (Supra) cannot be rightly held to be applicable where the deficiencies vitiating an election are more fundamental than mere errors committed by a Returning Officer in the conduct of an election, and it seems to me to be too late in the day to hold that such vital and if I might so characterise them, "pre-election deficiencies cannot be brought to this Court for rectification in the exercise of its writ jurisdiction. I have, therefore, no hesitation in holding that the present petition cannot be thrown out on the ground that the petitioners should have gone to an election tribunal and that they have acted wrongly in invoking the writ jurisdiction of this Court under Art. 226 of the Constitution. The last point raised on behalf of the respondents was that the petitioners having set up their candidature at the election in question and having fought it on the basis of the electoral arrangements such as they happened to be and having been defeated thereat should not be allowed to turn round and challenge the same by a writ application in the manner proposed. A complete answer to this is furnished by Qurab Ali's case (Supra) where I rejected a similar plea, because, firstly, there cannot be any estoppel against the statute, and, secondly, because it cannot be justly postulated that the position of the respondents was in any manner altered or adversely affected by reason of something done or omitted to be done by the petitioners. This contention is, therefore, without any merit and I over-rule it also. The result thus is that my finding on the point of non-compliance with the mandatory and foundational provisions of sec. 10) (b) and (c) of the Act is sufficient to dispose of the present application, and for the reasons which I have set out above at length, Ihave come to the conclusion, though not without considerable regret, that the impugned election be sustained in law and has to be quashed. ;