JAGAT NARAYAN, J. - (1.) THIS is a petition under Article 226 of the Constitution by Smt. Nirmala Devi and Smt. Mariam against an order of the Civil Judge, Hanumangarh, acting as a tribunal under sec. 40 of the Rajasthan Municipalities Act, holding that their co-option under sec. 9 (5) of the Act can be challenged by means of an election petition filed under sec. 34. It has been contested on behalf of respondent Salauddin Khan.
(2.) UNDER sec. 9 the board consists of such number of seats as may be fixed by the State Government. The Municipality is divided into a number of wards as provided under sec. 13 and elections are held wardwise. After the seats have been so filled by election some numbers are co-opted in certain contingencies as provided under sec 9 (5) which runs as follows : - "9. Composition of Boards - (5) To every board there shall be appointed by co-option in the manner provided for by order published in the official Gazette: - (i) two persons belonging to the female sex if no such person has been returned to the board by election referred to in subsection (4), (ii) one person belonging to the female sex if only one such person has been returned to the board by such election, and such co-opted person or persons being treated for all purposes of this Act as elected member or members of the board, and the number of seats fixed for that period under sub-sec. (1) being or deemed to be increased accordingly. " The procedure for co-option in laid down in the Rajasthan Municipalities (Appointment of Members/councillors by Co-option) Order, 1959. The process of co-option is really an election with this difference that the electors cannot stand as candidates for co-option. Section 34 provides that the election of any person as member of a board may be questioned by an election petition on one or more grounds mentioned therein. Section 36 runs as follows - "36. Presentation of Petition - (1) An election petition shall be presented within thirty days from the date on which the result of the election in question is announced by the returning officer. (2) The petition may be presented by any candidate at such election or by any elector of the ward. Explanation - (1) In Sub-Sec. (2) Elector" means the person who was entitled to vote at the election to which the petition related, whether he has voted at such election or not. Explanation: - (2) An election petition shall be deemed to have been duly presented if it is delivered by the person making the petition or by a person authorised in writ ing in this behalf by the person making the petition. " The contention on behalf of the petitioners is that sec. 34 provides only for the challenging of the election of any person but contains no provision for challenging the co-option of a person. On the other hand on behalf of the contesting respondent Salauddin Khan, who has filed the election petition, it is contended that under sec. 9 (5) a co-opted person is to be treated for all purposes of the Act as an elected member and as such he should be subject to all the rights and liabilities of an elected member, one of the liabilities being that his status as a member of the board can be challenged by an election petition under sec. 34. Having heard the learned counsel for the parties and having perused the provision of the Rajasthan Municipalities Act and the Rajasthan Municipalities ( Appointment of Members/councillors by co-option ) Order, 1959 I am of the opinion that/sec. 34 does not contemplate the challenging of the co-option of any person by an election petition. It is provided that a co-opted member shall be treated for all purposes of the Act as an elected member. But in the Act two different expres- sions namely "election" and "co-option" have been used for the two processes of election and co-option and there is no provision that "co-option" is to be treated for all purposes as "election". Further the provision contained in sec. 36 (2) that a petition can be presented by any elector of the ward goes to show that the legis-lature did not contemplate that co-option should be challenged by means of an elec-tion petition under sec. 34 and consequently did not use more comprehensive language. Co-option does not take place wardwise. All the elected members of the municipality join in co-opting the co-opted members, , Section 9 (4) of the Rajasthan Panchayat Act also contains a provision that persons who are co-opted shall in all respects and for all purposes be deemed to be duly elected Panchas. Yet in rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules there is a specific mention that co-option can also be challenged by filing an election petition. The earlier part of rule 78 runs as follows: - "78. manner of challenging an election or co-option under Rules - The election or co-option of any person as the Panch of a panchayat or the election of any person as the Sarpanch or Up-Sarpanch of a Panchayat or as the member or Chairman of a Nyays Panchayat may be called in question by presenting a petition to the Munsif, or, where there is no Mun sif, to the Civil Judge, within whose jurisdic tion the place of Headquarters of the Panchayat or the Nyaya Panchayat, as the case may be, is situated, within thirty days from the date on which the result of such election or co-option is declared, on any one or more of the follow ing grounds. " Rule 79, which follows it, is in the following words: - "79. Who may present election petition: - (1) A petition under rule 78 may be presented by an elector or by any candidate at such election or co-option, as the case may be. Explanation I: - "elector" means the person who was entitled to vote at the election or cooption to which the petition relates, whether he has voted at such election or co-optain or not. Explanation II: - The petition shall be deemed to have been duly presented if it is delivered by the person making the petition or by a person authorised in writing in this behalf by the person making the petition. (2) No petition shall be deemed to have been presented under these rules unless the petitioner deposits a sum of Rs. 50/- along with the petition by way of security for the costs of the opposite party. " For reasons given above I am of the opinion that the co-option of a person under sec. 9 (5) of the Rajasthan Municipalities Act cannot be challenged by means of an election petition under sec. 34 of the Act. I accordingly allow the writ petition, set aside the order of the learned Civil Judge holding that he has jurisdiction to set aside the co-option of the petitioners on an election petition under sec. 34 of the Act and dismiss the election petition. In the circumstances of the case I direct that parties shall bear their own costs of the writ petition as well as the election petition. . ;