Wanchoo, C. J. - (1.) THIS is an application under Art. 226 of the Constitution by Sunderlal and two others and arises in the following circumstances. *
(2.) THE applicants are residents of Kotputli which has a municipality constituted under the Rajasthan Town Municipalities Act (No. XXIII of 1951) (hereinafter called the Act ). Under sec. 10 of the Act the Government determined the number of members of this municipality as 10 and provided that 8 shall be elected and 2 shall be nominated members in accordance with sec. 9 (1) of the Act. elections to the Municipality to fill the 8 elected seats were to take place and 2nd of March, 1956, was fixed for filing nominations. 10 persons including one of the applicants before us filed their nomination papers for these 8 seats. 3rd of March, 1956, was fixed for withdrawal of nominations. Something seems to have happened during this period which has not been disclosed in this application ; but we find that suddenly on the 3rd of March, 1956. 8 out of these 10 persons who had submitted their nomination papers on the previous day withdrew. THE result of this was that there were only 2 candidates for 8 vacancies. THE Returning Officer declared these two candi-dates elected and must have reported the circumstances to Government. THEreupon, the Government nominated 8 members to the Municipal Board. Six of these nominations were made under sub-sec. (2) of sec. 9, while two were under sub-sec. (1) of that section. THE contention of the applicants before us is that all these 8 nominations should have been made from amongst the classes mentioned in the first proviso to sec. 9 (1) and as it was not so, the nomination of six out of 8, who did not come within the first proviso to sec. 9 (1), was illegal. The application has been opposed on behalf of the State and its contention is that the restrictions contained in the first proviso to sec. 9 (1) do not apply to nominations made under sec. 9 (2 ). We may briefly consider secs. 8 to 10 and sec. 16 of Act with which we are concerned. Sec. 8 provides for the constitution and incorporation of town municipal boards. Sec. 9 lays down that every such municipal board shall consist of such number of of members, wholly elected, or partly elected and partly nominated, as may be fixed under sec. 10. We are for the present leaving out the first proviso to sec. 9. The second proviso to sec. 9 lays down that when provision is made for nominated member, the number of elected members shall not be less than three-fourth of the total number of members fixed for the Board. Passing for the moment from sec. 9 we come to sec. 10. That section gives powers to Government to determine the numbers and fix proportion of members who shall be nominated and so on. Under this power read with sec. 9 (1) the Government of Rajasthan fixed the quota of elected members of this Municipality as 8 and that of nominated members as 2. Now we come to the first proviso to sec. 9 (1) which is in two parts. Under this proviso the nominated members shall be elected from (i) either the female sex or any of the backward classes specified in the second schedule to the Act or (ii) from amongst those who are executing the functions of any office, that is, ex-office members. Then comes sec. 9 (2) which lays down that any vacancy due to failure to elect the full number of elected members which under this section might be elected and any vacancy due to failure to elect a member under sec. 16 may notwithstanding anything in this Act contained, be filled up by nomination by the Government. The submission on behalf of the applicants is this. Sec. 9 (2) speaks of filling up certain vacancies by nomination. Sec. 9 (1) speaks of the members of the Board who may be partly elected and partly nominated. Then cornea the first proviso which lays down how these nominated members whose number is fixed under sec. 10 are to be elected. Sec. 9 (2) certainly speaks of nomination by Government but that, in our opinion, is in a different contingency altogether. This nomination is not to the nominated scats determined under sec 10. This nomination is made when there is a failure to elect the full number of elected members or there is a failure to fill up a casual vacancy under sec. 16. Now the applicants' submission is that the restrictions under the first proviso to sec. 9 (1) apply to those nominated members whose seats are fixed under sec. 10 and also to those members nominated under sec. 9 (2) owing to a certain emergency. The argument is that because both classes of members should equally apply to both cases. We are of opinion that this is not so for reasons which we produce to give. It appears that the legislature thought fit to give discretion to the Government to reserve certain proportion of membership of a board for nomination not exceeding 25%. It will also be seen from the first proviso to sec. 9 (1) that the intention of the legislature in making this reservation was to provide for special interests like women or members of the backward classes specified in the second schedule to the Act or ex-officio Government officers. It was only this quota of nominated members which was reserved to be filled from the special class of persons. We see no reason why we should ex end this restriction to the nomination which is made under sec. 9 (2 ). This nomination is not to that quota of reserved seats. This nomination has to be made because the electorate has failed to elect the full number of elected members. It is true that the word "nomination" has again to be used ; but though these members may be nominated by the Government, yet they are as members elected. They form part of the elected quota of the seats. Therefore, the restrictions contained in the first proviso to sec. 9 (1) apply only to the nominated quota of the seats of the Board while nomination to the elected quota of the Board made under special circumstances mentioned in sec. 9 (2) stands, in our opinion, on a different footing and cannot be governed by the same restrictions. Here at the best, at ail can be asked for is that those nominated to this elected quota may be such persons who may be eligible for election to the board. It has not been contended in this case that these members are not eligible for election to the municipal board and, therefore, their nomination under sec. 9 (2) cannot be declared bad. There is no force, therefore, in this petition and it is hereby dismissed ; but under the circumstances we pass no order as to costs. .;