Modi, J - (1.) THIS is a writ application by Birmaram under Art. 226 of the Constitution, and is directed against the election of opposite party No. 5 Ghamandiram as Sarpanch of village Panchayat Himmatsar, Tehsil Nokha.
(2.) THE material facts on which this application is founded may shortly be stated as follows. One Juharmal was elected Sarpanch of the Panchayat in question but on a motion of no confidence having been passed against him he resigned, and his resignation having been accepted, the office of Sarpanch was declared to be vacant. A fresh election for this office was consequently ordered by the Collector, and the 7ch June, 1957, was fixed as the date for the holding of the election by an order of the Chief Panchayat Officer, dated the 6th May, 1957. At this election the petitioner Birmaram and opposite party Ghamandiram were rival candidates for the office of the Sarpanch, Ghamandiram was declared to be duly elected. Aggrieved by this election, the petition has filed the present writ application by which he seeks to have the election of Ghamandiram declared as illegal. The main grounds on which the election of Ghamandiram is assailed are two in number. In the first place, it is contended that under Rule 3 of the Rajasthan Panchayat Rules, 1951, it was for the Chief Panchayat Officer to communicate to the Returning Officer the date fixed by him for holding the election and not for the Collector. The grievance of the petitioner is that this date was fixed by the Collector in the present case, and, consequently, there was a breach of rule 3 of the said Rules. In the second place, it is contended that it was the duty of the Returning Officer to announce, for the information of the inhabitants of the Panchayat Circle, the number and name of the wards, if any, and the number of Panchas to be elected from each ward, and the date, time and place of election, at least seven days before the date of election. The point that is sought to be made in this connection is that the date for the poll was fixed in the present case as the 7th June, 1957, and the notice fixing the date and time and place for election was ordered to be published in the Panchayat Circle as late as the 31st May, 1957, with the result that it was not possible for all the inhabitants of the Panchayat Circle to know the date, time and place of election clear seven days before the holding of the election. This application is opposed by the opposite party No. 1, namely the State of Rajasthan, as well as by the rival candidate Ghamandiram who was declared successful in the election, and is opposite party No. 5 before us. It is strenuously contended before us on behalf of the opposite parties named above that an election petition questioning the election of opposite party No. 5 Ghamandiram is already pending before the Collector and that petition is based on these as well as some other grounds, and the petitioner and opposite party Ghamandiram are parties thereto and, therefore, this Court should not intervene at this stage. This contention is sought to be met by learned counsel for the petitioner on the ground that the grounds of attack on which his present writ application is founded did not fall within the ambit of Rule 20 of the Rajasthan Panchayat Election Rules. It is contended that what Rule 20 contemplates is an election petition based on the ground of some misconduct or corrupt practice or an Irregularity which has substantially influenced the result of the election and that the grounds urged by the petitioner in the present case do not fall within the four walls of the expression "such irregularity as has substantially influenced the result of the election" used in rule 20. Our attention has been drawn in this connection to Kalyanchandra vs. The Chief Panchayat Officer (1), Prabhudayal vs. Chief Panchayat Officer, Jaipur and Mangilal vs. The Collector, Bhilwara, (Civil Miscellaneous Writ application No, 114 of 1956 decided on the 11th October, 1957. We have carefully considered these rulings, and have come to the conclusion that the contention raised by learned counsel for the petitioner that the irregularities relied upon in the present case do not fall within the scope of rule 20 of the Rajasthan Panchayat Election Rules is without force. We shall deal with the cases referred to above briefly. So far as Kalyanchandra's case (1) is concerned, we consider it sufficient to say that the language of Rules 20 did not come up for any particular consideration in that case, and, therefore, that case is no authority for the contention advanced on behalf of the petitioner. We next come to Prabhudayal'a case (2 ). Two points stand out so far as that case is concerned. In that case also the complaint was that Rule 4 of the Panchayat Rules had been breached, and the question arose whether that rule was mandatory or only directory. It was held that rule 4 was mandatory, and we respectfully agree with this view. The next point that stands out is that what was being challenged in that case was not the individual election of a Panch, Sarpanch or Up-Sarpanch but the entire election. The contention on that view that an election petition lay and that this Court should not interfere was repelled on the ground that rule 19 contemplated an election petition against individual Panchas and that it did not contemplate an election petition asking the Tribunal to declare the entire election invalid on the ground of a fundamental deficiency in carrying out the mandatory rules relating to the holding of the election. It was, therefore, held that as the petitioner there did not challenge the election of the individual Panch or Sarpanch or Up-Sarpanch but the entire election, a writ application was competent and an election petition did not lie. Having carefully considered this ruling, we feel disposed to point out that that case was entirely different and is clearly distinguishable from the case before us, the reason being that what is principally and avowedly challenged before us the election of a Sarpanch. We consequently, hold that the case before us cannot be considered to fall within the principle of the decision in Prabhudayal's case. Turning next to the case of Mangilal it clearly appears that the petitioners in that case filed a writ application after they had gone in election petition to a Tribunal. The Tribunal set aside the election on certain fanciful grounds, and, therefore, the Bench held that the reasons given by the Tribunal for setting aside the election were not such as to fall within the words "misconduct, corrupt practice or such irregularity as would substantially influence the result thereof". This case, is, therefore, no authority for the proposition contended for on behalf of petitioner that a violation of rules 3 and 4 of the Rajasthan Panchayat Election Rules cannot be properly made a ground of attack for setting aside an election before an Election Tribunal within the meaning of rule 20 of the said Rules. As we look at the whole matter, we feel bound to point out that an election petition questioning the election of a Panch or Sarpanch or Up-Sarpanch can be founded on firstly, some misconduct or corrupt practice of the candidate or, secondly such irregularity as has substantially influenced the result of the election. There is no question of misconduct or corrupt practice in this case as no such ground has been alleged before us. So far as the question of an irregularity goes, we think that irregularities may be of two kinds; firstly, either such as would materially influence the result of an election and, secondly as would not have that effect, being minor ones. If, an election is sought to be assailed on the ground of an irregularity, it would be for the Returning Officer then to examine the same and come to a conclusion whether that irregularity was substantial and was such as could influence or could not influence the result of the election. Learned counsel for the petitioner raised the argument that it is only substantial irregularities influencing the result of election which can be made the foundation of an election petition before an Election Tribunal and that other irregularities in the conduct of election could not be made the basis of such a petition. If this argument is streached to its logical conclusion then it would amount to this that whereas only material irregularities influencing the result of an election can be made the basis of an election petition to question the election such election can be questioned before us on the basis of irregularities, which are otherwise than material or substantial, by means of a writ petition before us. We regret, we cannot accede to such an argument, and have no hesitation in saying that it is entirely fallacious. Either an irregularity is material in the sense in which it has been used in the rule or it is not. If it is material, an election petition would lie provided other conditions are fulfilled. If it is not material, then no election petition can succeed on such a ground. But let it be remembered that that is not the same thing as to say that an election petition cannot be made on the basis of such an irregularity or, what seems to us to be a startling proposition, that where such a petition cannot be made because the irregularity is a minor one, the election can be attacked by a writ petition invoking our extraordinary jurisdiction. On this view of the matter, we have arrived at the conclusion that the irregularities complained of in the present case are such as clearly fall within the scope of Rule 20 of the Election Rules, and, in our opinion, they can justly and rightly be made the basis of an election petition, and it is for the election tribunal to pronounce its opinion upon them, as indeed such a petition has already been filed and is pending before the Collector concerned. The view is firmly established in this Court that where an election petition lies, this Court will never interfere until the election tribunal has decided the dispute between the parties concerned. See in this connection Tekchand vs. Banwarilal (1 ). For the reasons mentioned above, we hold that there is no force in this writ application, and we consequently dismiss it, but under the circumstances would make no order as to cost s . ;