JAGAT NARAYAN, J. - (1.) THIS is a writ petition under Art. 226 of the Constitution by six elected members of the Chavandia Gram Panchayat challenging validity of the co-option of respondents Nos. 5, 6 and 7. The application has been contested on behalf of respondents Nos. 2, 3 and 4. Respondent No. 2 has been elected as the Sarpanch and the other two respondents as Panchas of this Gram Panchayat.
(2.) THE facts as appear from the affidavits filed by the parties and from the documents produced before the Court are these. THE Chavandia Gram Panchayat was duly constituted with effect from 1. 12. 60. THE election of the Sarpanch and the Panchas was held on 30. 12. 60. THE result was declared on the same day. Respondent No. 2 Hanuman Singh was declared elected as Sarpanch and petitioners Nos. 1 to 6 and respondents Nos. 3 and 4 were declared elected as Panchas. THE elected Panchas did not include any female or any member of the Scheduled Caste. It was therefore necessary to co-opt two females and one member of the Scheduled Caste under sec. 9 of the Rajasthan Panchayat Act as amended by the Amendment Act of 1960. THE population of the members of the Scheduled Tribes in the Panchayat Circle not being more than 5 per cent it was not necessary to co-opt any member of that class. On 31. 12. 60 the Sarpanch circulated a notice which was written on the proceedings register intimating that one member of the Scheduled Caste and two females would be co-opted on 1. 1. 61 at 10 a. m. at the school building and that the Panchas should attend and file nomination papers by 11 a. m. after which no nomination paper would be accepted. This notice was shown to 7 out of the 8 Panchas who signed the proceedings register or put their thumb-marks in taken of having received the intimation about the meeting of co-option. The meeting was held on 1. 1. 61 but as all the Panchas did not attend no one was co-opted. Another notice was circulated by the Sarpanch. It was written out on a separate piece of paper and bears the date 2. 1. 61. This notice was also served on seven out of the eight Panchas. Under this notice the Panchas were informed that they should meet on 9. 1. 61 at 10 a. m. at the school building as one Panch belonging to the Backward Classes would be elected. The Sarpanch and seven out of the 8 Panchas attended the meeting on 9. 1. 61. The proceedings are entered in the proceedings register in accordance with which Maldass respondent No. 5 was co-opted as a Panch belonging to the Scheduled Caste and Smt. Gulabdi and Smt. Juwardi respondents Nos. 6 and 7 were co-opted as female members. With regard to the proceedings of this meeting there is controversy between the parties. On behalf of the petitioners it is asserted that no co-option took place and that their signatures and thumb-marks were taken on the proceedings book on the mis-representation that they only signified their presence at the meeting. On behalf of the contesting respondents however the contention is that co-option proceedings took place and that these 3 respondents were co-opted unanimously by the Sarpanch and seven out of the eight Panchas. Narayan Singh petitioner No. 3 who is the Panch whose thumb-marks do not appear on the notices for the meetings on 1. 1. 61 and 9. 1. 61 and on the proceedings of the proceedings of the meeting dated 9. 1. 61, has filed an affidavit that he was present in the village, but no notice was brought to him. The case of the contesting respondents is that an attempt was made to serve Narayan Singh but he could not be found. A statement showing the names and addresses of the Panchas co-opted was drawn up by the Sarpanch and was sent to the Collector. It appears to have reached his office on 16. 1. 61. One copy of notice on form No. V for the meeting on 1. 1. 61 was also sent to the office of the Collector which appears to have been received there on 14. 1. 61. No paper relating to the co-option was sent to the Collector. The validity of the co-option is challenged on the ground of non-compliance with the provisions of Rules 50, 51, 52, 53 and 54 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960 (hereinafter referred to as the Rules ). A preliminary objection has been taken on behalf of the contesting respondents that this Court should not interfere in the exercise of its extra-ordinary jurisdiction under Art. 226 of the Constitution in this case as the petitioners have an alternative remedy by way of an election petition under Rule 78 of the Rules. The reply to the preliminary objection on behalf of the petitioners is that the provisions of the Rules which have been violated are mandatory and that relief cannot be granted by the Election Tribunal under Rule 78 as it is not possible to prove that the result of the election was materially affected by the breaches of these Rules. It was held in Jaiwant Rao Vs. the State of Rajasthan (Civil Reference No. 10 of 1960 decided on 17th August 1960) by a Full Bench of this Court in a case under the Rajasthan Town Municipalities Act 1951: - (1) The scope of sec. 19 (5) of that Act is limited to breaches of provisions of the Act or the Rules framed under sec. 205 (2) (b) committed by the Returning Officer in holding the elections, which begin by notification under rule 14 and last up to the time of the declaration of the result of the election. (2) Sec. 19 (5) of the Act not only contemplates breaches of directory provisions of the Act or the Rules, but also affords a remedy for breaches of mandatory provisions provided they otherwise fall within the scope of the language of that section. (3) The High Court would be slow to grant relief under Art. 226 of the Constitution in cases falling within the scope of sec. 19. The principles underlying the above decision are applicable to the present case. Two questions arise for determination. The first question is at what stage the process of election commences and at what stage it ends within the meaning of the above Full Bench decision. The second question is whether the breaches complained of are breaches of mandatory provisions for which Rule 78 does not provide adequate remedy.
(3.) TAKING the first question first, the contention on behalf of the petitioners is that the process of election in case of Panchayats commences with the issue of notification of election under Rule 14 and ends with the declaration of the result of the election under Rule 41 and that thereafter the process of co-option commences with the issue of a notification under Rule 50 and ends with the publication of the names of co-opted members under Rule 54 and that the issue of a notification under Rule 50 is not a part of the process of election, but the process of co-option commences after the issue of this notification so that any defect in the notification under Rule 50 would invalidate the co-option and the question of materially affecting the result would not arise. An examination of the scheme of election and co-option in the light of the Act and the Rules goes to show that it is a continuous process. Rule 78 provides for challenging both the election and co-option by an election petition. Co-option only becomes necessary if the prescribed number of members belonging to the classes mentioned in sec. 9 are not elected. If such members are elected the whole process of election and co-option comes to an end with the declaration of the result of the election under Rule 41. If however the requisite number of members of these classes are not elected, the Sarpanch who is elected becomes ex-officio Returning Officer for the purpose of co-option and it is he who issues the notification under Rule 50 for co-option. It is quite unlike the notification under Rule 14 which is issued by the Collector and not by the Returning Officer. That rule requires that notice of election shall be given by means of a notification which is defined under the Rajasthan General Clauses Act as a notification published in the Official Gazette. The notice of co-option under Rule 50 is not given by issuing any notification. It is given by the Sarpanch in Form V to the Panchas who form the electoral college for co-option. I am therefore of the opinion that the process of co-option is a part of the process of election and the process of election in the wider sense commences with the issue of a notification under Rule 14 and only ends with the publication of names of co-opted members in case where such co-option becomes necessary. An election petition under Rule 78 would therefore lie for any breach of the Act or the Rules committed during the course of co-option proceedings including the non-compliance with Rule 50. Coming now to the second contention it has to be seen whether any of the Rules 50 to 54 is a mandatory rule the violation of which would vitiate the election irrespective of whether the result of the election is materially affected thereby. The most important rules in this connection are Rules 50 and 51 which require that separate notices of co-option shall be issued to the Panchas in form No. V and copies shall be endorsed to the Collector and a copy posted on the notice-board of the Panchayat. No notice in form No. V was admittedly issued to the Panchas in the present case. This notice is required to be issued by the Sarpanch who acts as the Returning Officer for co-option. There seems to be no reason why there should be insistence on full compliance of the provisions of Rule 50 or 51 so long as the Panchas get to know time and place of the meeting and the purpose for which it has been called. As has been held by me above this notice is issued by the Sarpanch during the process of election. Once the foundation for the election is laid by a valid notification under Rule 14 the subsequent proceedings during the process of election will generally be regarded as directory. This appears to have been the intention of the Legislature also as under Rule 78 it is provided that an election can only be set aside by an election tribunal for any non-compliance with the provisions of the Act or the Rules if it materially affects the result. The Legislature could not have intended to make the rules prescribing the duties of the Sarpanch as Returning Officer mandatory as many of them may not be competent enough to follow them rigidly. The provisions of Rules 50 and 51 cannot therefore be regarded as mandatory. Rule 51 (5) provides that if the Collector does not receive a copy of the notice in-Form V within 3 days after the date on which the Sarpanch was declared to have been elected or the date of the return under Rule 41, whichever is later, he would appoint any other person to convene the meeting for co-option. In the present case no copy of such notice was received by the Collector within 3 days. The contention on behalf of the petitioners is that the Sarpanch ceased to have the authority to hold the meeting for co-option when he did not send a copy of the notice to the Collector so as to reach him within the prescribed time. The provision of this sub-rule also appears to me to be directory and not mandatory. If the Collector had appointed some other officer to convene the meeting for co-option, the power of the Sarpanch to hold such a meeting would have come to an end, but so long as no such attempt was made the power of the Sarpanch to hold a meeting for co-option continued. ;