MODI, J. - (1.) THIS is an application for writ by Ladulal under Art. 226 of the Constitution by which the general election made to the Municipal Board, Sarwar, on the 26th November, 1959, is sought to be quashed.
(2.) THE petitioner is a member of the Municipal Board, Sarwar. His case is that the Tehsildar Sarwar who was the Returning Officer published a notice dated the 21st October, 1959, calling upon the residents of this Municipality to proceed to polls. A certified copy of this notice setting out the programme of the election is annexure No. 1 according to which the polling was to take place on the 25th November, 1959 and the result of the election was to be announced on the next following date, that is, 26th November, 1959. THE election was accordingly held on the 25th November, 1959, and the result thereof was announced on the 26th November, 1959. It is obvious from a perusal of this notice that the Returning Officer was under the impression that the Rajasthan Town Municipalities Act, 1951 (No. XXIII of 1951) was still in force. THE petitioner's case, however, is that the new Rajasthan Municipalities Act, 1959 (No. XXXVIII) of 1959 ( hereinafter referred to as the Act of 1959 ) had come into force on the 17th October, 1959, by which the Act of 1951 had been repealed, and, consequently, any election held in accordance with the provisions of the earlier Act after the 17th October 1959 was of no legal effect whatsoever and deserves to be quashed. It appears that Shri Madansingh Mehta who was and is the chairman of this Municipal Board, which is still functioning, addressed a letter to the Secretary to the Government in the Local Self-Government Department of this State in which he pointed out that the aforesaid election which had been carried out without fulfilling the requirements of the Act of 1959 was illegal and that the Government be pleased to set it aside. ( See annexure No. 3 ). This letter, however, seems to have had no effect. On the nth December, 1959, the Return-ing Officer issued a further notification (this was obviously issued under sec. 9 (5) of the Act of 1959) whereby he called upon the newly elected members to attend a meeting of the Board which was fixed for the 22nd December, 1959, for the purpose of co-opting two women members to the Board. THEreupon, Shri Madansingh chairman of the Board sent a telegram to the Collector, Ajmer, requesting that the entire procedure followed by the Returning Officer in connection with the general election of this Board was arbitrary and illegal and that he should be stopped immediately from taking further steps in connection with the co-option of certain members to the Board without any delay. He even went to the length of administering a threat that he would not allow the newly elected members to enter the bounds of the municipality's office as they were usurpers in the eye of law. To this telegraphic communication the Collector, Ajmer, is alleged to have sent a reply dated the 15th December, 1959, in which it was stated that the circumstance under which the election of the Sarwar Municipal Board had been conducted had been conveyed to the Government and that further instructions were being awaited and that meanwhile further proceedings for the co-option of women members had been stayed. As the State Government failed to take any effective action in the matter under the circumstances which have been narrated at length above, the petitioner filed the present writ application in this Court on the 29th July, 1960. It seems that there has been a stalemate meanwhile and the old Board which had been elected to this municipality in 1956 is still continuing in office. It is to be regretted that no one on behalf of the State of Rajasthan which has been impleaded as respondent No. 1 in this writ application has appeared in this Court. The sole question which falls to be determined, therefore, is whether the impugned election which was held on the 25th November, 1959, in pursuance of the notice of election dated the 21st October, 1959, was lawful or not. I have no hesitation in saying that the answer to this question must be in an emphatic negative. As already stated, the Act of 1959 came into force on the 17th October, 1959 vide Local Self-Government Department notification dated the 15th October, 1959, published in the Rajasthan Rajpatra of the last-mentioned date. This notification reads as follow: - "local Self-Government Department. Notification Jaipur, October 15, 1959. No D. 6617/f. 4 (34) LSG/a/59. In exercise of the powers conferred by sub-sec. (3) of sec. 1 of the Rajasthan Municipalities Act 1959 (Rajasthan Act No. XXXIII of 1959), the State Government hereby appoints the 17th day of October, 1959, as the date from which the said Act shall come into force. By order of the Governor, R. K. Chaturvedi, Secretary to the Government. " By sec. 2 of this Act, read with the first schedule thereof, the Act of 1951 was repealed in its entirety. , There are two provisos to this section, and assuming that the second one may have some bearing on the matter with which we are concerned here, it clearly seems to me that it cannot help the respondents because in the first place it cannot be said that the notice of election issued under the old Act could have been issued in the way that was done after the new Act had come into force and in any case the scheme of election under the new Act is radically different from that under its predecessor, and therefore, the action taken under the old Act even though: erroneously cannot possibly be saved under the second proviso to this section. This brings me to a consideration of the scheme that is envisaged under the Act of 3959, as contra-distinguished from that under the Act of 1951. Under S. 9 of the Act of 1951, a Municipal Board was to be a wholly elected body or was to consist of members who were partly elected and partly nominated as may be fixed by the Government under S. 10 and that the nominated members were to be selected by the Government from members of the female sex or any of the backward classes as specified in the second Schedule of the Act or from among those who may be executing the function of any office from time to time notified in this behalf by the Government. Sec. 9 of the Act of 1959 divides all seats into two classes, namely, (1) general and (2) those reserved for members of the scheduled castes or scheduled tribes or both, and requires the State Government to specify the number of each of these before any election can be held. It further provides that all these seats, whether general or reserved, are to be filled by election. It then further makes a provision for co-option of certain members in addition to those who have been returned to the Board by election whether from the general seats or the reserved ones. The co-option is to be confined to members of the female sex only and it is further provided that such co-opted person or persons would be treated for all purposes of the Act as elected members of the Board. The manner of co-option has not been laid down in the Act itself but has been left to be determined by an order to be published by the Government in the official gazette and this may conceivably mean that these co-opted members may be permitted by the State Government to be elected by the (elected members themselves as contra-distinguished from the scheme under the Act of 1951 where under the nominated members could be nominated by the Government only. Again, sec. 13 of the new Act provides that for purposes of elections to a board, a municipality shall be divided into as many wards as there are general seats fixed for the board under sub-sec. (2) of sec. 9. It would thus appear that these wards will return their representatives to the board and in addition where any seat or seats are reserved for the members of scheduled castes or scheduled tribes in any ward, election in these wards will also be held for returning members of these classes only to such seats. I do not think it necessary to elaborate this point further, as, in my opinion, it is perfectly clear from what I have stated above that the scheme of election contemplated under the Act of 1959 is, in essential respects, different from that envisaged under the Act of 1951. That being so, there is no escape from the conclusion that no general election to any municipal board in this State can possibly be held under the Act of 1951 after the same was repealed and replaced by the Act of 1959. And if such a one is held, it must be struck down as being entirely illegal and it is imposible| to save it from the taint of illegality once the old Act has come to be repealed and what was done thereunder is substantially inconsistent with the requirements of the new Act. This being the correct legal position, any election which could be properly held in the case of this or any other municipal board after the 17th October, 1959, on which date the Act of 1959, had come into force and the old Act had been repealed could only be held in accordance with the scheme of the requirements of the new Act. As this has not been done in the present case, I have no alternative but to hold that the election which is impugned before me and which has not been held in the manner contemplated under the Act of 1959, is bad, and, therefore, it must be quashed. If the election of the elected members is per se bad, it must follow as a corollary that they can have no right to co-opt any members to this board by election as directed by the notice issued by the Returning Officer on the nth December, 1959, and this notice must also be quashed as illegal. In the result, I allow this application, set aside the election held in respect of the Sarwar Municipal Board which was held in accordance with the notice dated the 21st October, 1959, and the results whereof were declared on the 26th November, 1959, and further hold that these members shall have no right to function as such. I need scarcely add that it will be open to the State Government to hold fresh elections to this board in accordance with the provisions of the Act of 1959, and it seems indeed desirable that these should be held as quickly as possible after the necessary requirements prescribed by the new Act have been gone through. Having regard to the circumstance that the State Government, even though it was apprised of the true situation, did not take the necessary steps which it should have taken to straighten out the position, I think that it should be made to pay the costs of the petitioner and I order accordingly. . ;