JAGAT NARAYAN, J. - (1.) THIS is a petition under A. 226 of the Constitution challenging the validity of the election of the members of the Municipal Board Rajgarh at the general election held on 16. 1. 61. The petition has been contested by the elected members and the other respondents.
(2.) THE main ground taken in the petition is that the election was vitiated on account of noncompliance of the mandatory provision contained in sec. 23 of the Rajasthan Municipalities Act 1959 (hereinafter referred to as the Act), the relevant portion of which runs as follows: - ". . . . . . . . . . . . . . . . . . . . there shall be general election. . . . . . . . . to a board, before the expiry the powers of theterm. . . . . . . . . on such date or dates as the State Government may by notification in the official Gazette, appoint in that behalf. " Under the powers conferred on the State Government under sec. 29 of the Act the Rajasthan Municipalities Election Order 1960 was issued to make provision for holding elections under the Act. Clause 4 (2) of this Order lays down that upon the receipt of information about the expiry of the term of office of a Board or suo motu the State Government or any other authority to whom powers under sec. 23 of the Act may have been delegated, may by notification in the Official Gazette, appoint a date or dates for general elections. Clause 5 provides for the appointment of a Returning Officer by the Collector ''after a date has been appointed under sub-clause (2) of Clause 4". THE clauses following clause 5 lay down the duties of the Returning Officer and the manner in which the election is to be conducted. On 13. 5. 60 the Collector issued an order (Ex. 1) appointing the Sub Divisional Magistrate Rajgarh to be the Returning Officer for holding the general election of this Municipality. This was done in contravention of Clause 5 which lays down that the Returning Officer shall only be appointed after a date for holding the general election has been appointed by a notification in the Official Gazette as provided under sub-clause (2) of Clause 4. The general election was held on 16. 1. 61. A notification under sec. 23 of the Act was only published in the Rajasthan Gazette on 19. 1. 61 after the election had been held. The contention on behalf on the petitioners is that the notification provided under sec. 23 of the Act is mandatory and that non-compliance with this provision vitiates the election. On behalf of the respondents it was contended that the provision of sec. 23 is not mandatory, that wide publicity was given locally to the public of the election, that no prejudice was caused to the petitioners and that the alternative remedy by way of an election petition being open to them this Court should not interfere in the exercise of its extra-ordinary jurisdiction under Art. 226. The main question which arises for determination in this writ petition is whether the provision contained in sec. 23 with regard to the notification of the date of the general election in the Gazette is mandatory. An examination of the statute shows that the word "shall" has been used which generally imports a command and docs not permit of discretion. Shri Kan Singh on behalf of the respondents argued that the emphasis under sec. 23 was on holding the election before the expiry of the term of the Board. There can be no doubt that the Legislature intended that the general election should be held before the expiry of the term of the Board. But the provision with regard to it can only be directory and not mandatory. For the section cannot be construed to mean that if by mistake or accident the the general election is not held before the expiry of the term of the Board the Municipality would be permanently deprived of an elected Board. The provision regarding the notification of the date of the general election by publication in the Official Gazette can alone be mandatory. An examination of the scheme of the Act and the Rules framed thereunder also go to show that the notification under sec. 23 lays the foundation of the election and gives jurisdiction to the Collector to hold it. Clause 4 (2) of the Rajasthan Municipalities Election Order 1960 reproduces provision contained in sec. 23 of the Act and provides for the appointment of a date for holding the election by notification in the Official Gazette. It is only after such a notification has been published that the Collector is authorised to appoint a Returning Officer under clause 5. Publication by other means cannot take the place of publication by notification in the Official Gazette. In Parmeshwar Mahaseth vs. the State (1) election was held under the Bihar and Orissa Municipal Act. But no notification as prescribed in rule 7 (1) of the Bihar Municipal Elections and Election Petitions Rules 1953 was published in the Gazette. On behalf of the respondents a counter affidavit was filed that the notification was proclaimed publicly throughout the municipality by beat of drum and copies of it were posted at numerous places. It was held that the provision of rule 7 was mandatory and noncompliance with it invalidated the entire election. Kanhaiya Singh J. with whom Ramaswami C. J. agreed, observed as follows: - "applying these principles, it will be seen that the publication of the notification is the foundation of the election and the non-compliance with these provisions is calculated to deprive any electors of their right to vote at the election. The publication of the notification really gives the District Magistrate jurisdiction to hold elections of the Commissioners of the Municipality. Mere proclamation of the notification by beat of drum by pasting copies thereof, as laid down in S. 356, is not sufficient for the simple reason that most of the residents of different wards of the Darbhanga Municipality may be residing at different places. It is really the publication in the Official Gazette which will convey necessary information about holding of the election to the prospective voters. The omission to give the publicity to the notification will occasion great prejudice is inherent in non-publication of the notification, and the result of such election cannot but be deemed to have been materially affected. In these circumstances, the principle of R. 75, on which the learned Government Advocate relied, is not really applicable to the present case. I think, the provision of R. 7 of the Flection Rules is mandatory, and non-compliance with those provisions will invalidate the entire election. " I accordingly hold that the provision contained in sec. 23 of the Act requiring the publication of the date of the general election in the Official Gazette is mandatory and as it was not complied with the election of respondents Nos. 6 to 19 is null and void. Coming now to the contention that as the petitioners have not been able to prove that they were prejudiced in any way by the non-publication of the notification in the Official Gazette this Court should decline to interfere, I am of the opinion that having come to the finding that the election was null and void it is the duty of this Court to set it aside and direct a fresh general election in accordance with law. In Qurab Ali Vs. Government of Rajasthan (2) a Division Bench of this Court set aside the entire general election on the sole ground that there was a failure to fix the number of nominated members before the holding of the election. This decision was approved by a Full Bench of this Court in Jaiwant Rao Vs. The State (Civil Reference No. 10/60 decided on 17. 8. 60 ). The contention that the petitioners have an alternative remedy by way of an election petition under sec. 34 of the Act has also no force. That section runs as follows: - "grounds on which election may be called in question.- The election of any person as member of a board may be questioned by an election petition on one or more of the following grounds, namely : - (a) that on the date of election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under this Act, or (b) that any corrupt practice specified in sec. 35 has been committed by a returned candidate or his election agent or by any other person, with the consent of a returned candidate or his election agent, or (c) that any nomination has been improperly rejected, or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected - (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interest of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (vi) by any non-compliance with the provisions of this Act or of any rules of orders made thereunder; or (e) that in fact the petitioner or some other candidate received a majority of the valid votes, or (f) that, but for the votes obtained by the returned candidate by corrupt practices, the petitioner or some other candidate would have obtained a majority of the valid votes. Firstly, the scope of an election petition under sec. 34 of the Act is not greater 'than "that of an election petition under sec. 19 of the Rajasthan Town Municipalities Act I951. It is limited to breaches of the provisions of the Act or the Rules committed by the Returning Officer in holding the election. The notification under sec. 23 of the Act is to be issued before a Returning Officer is appointed and the non-issue of the notification cannot be made a ground for challenging the election in an election petition filed under sec. 34 of the Act.
(3.) SECONDLY the power of the Election Tribunal to set aside an election is circumscribed by the warding of sec. 34. The Tribunal can only set aside an election for noncompliance with a provision of the Act or the Rules made thereunder if such non-compliance has materially affected the result of the election. The Tribunal cannot set aside an election without proof of the result having been materially affected even if there has been a noncompliance with a mandatory provision of the Act or the Rules. In Vashist Narain Vs. Dev Chandra (3) it was held by their Lordships of the Supreme Court that the result of the election cannot be said to be materially affected unless it can be proved affirmatively that the elected candidate would not have been elected if the provision of the Rules or the Act had been complied with. I accordingly allow the writ petition with costs, set aside the election of respondents Nos. 6 to 16 and direct the State of Rajasthan and the Collector Churu to hold fresh general election in accordance with law. .;