Dave, J. - (1.) THIS is a writ petition by Prithviraj; who is a resident of Sujangarh and who is one of the qualified voters for purposes of election to the Sujangarh Municipality.
(2.) IT is common ground between the parties that non-petitioner No. 2, Shri Radha Vallabh Chowdari, Sub-divisional Magistrate, Ratangarh, was appointed as Returning Officer for conducting election of the. Sujangarh Municipality. He issued a notice Ex. 1 dated 9th December, 1958, whereby all concerned were informed that the last date for filing nomination papers was 28th March, 1959, and that the polling would take place on the 13th April, 1959. The petitioner's case is that he wanted to contest the election and in order to file his nomination paper, he went to Ratangarh on 28th March, 1959, because the Returning Officer used to reside there and he had not fixed any place for filing the nomination papers. When he reached Ratangarh, the Returning Officer was not available there and so he could not file his nomination paper on the appointed date. Thereafter, he applied to the President, Municipal Board, Sujangarh for a copy of the electoral roll (vide Ex. 3), but he was informed by the President, Municipal Board on the same date (vide Ex. 4) that the copy of the electoral roll was not available there. It is alleged by him that according to the notice given by the Returning Officer dated 5th March, 1959, the amended electoral roll ought to have been published on 9th March, 1959, but it was apparent from the reply of the Municipal President (vide Ex. 4) that the electoral roll was not available even upto 8th April, 1959. The third allegation made by the petitioner is that the portion shown in red colour in the plan attached Ex. 5 was outside the area of Sujangarh Municipality, that the Government of Rajasthan had wrongly included that portion in the wards constituted by gazette notification dated 26th February, 1955. It is stated by the petitioner that he had presented an application to the President, Municipal Board on 8th April, 1959 to supply him information about the territorial limits of the Sujangarh Municipality and that the reply received by him in response to his application is Ex. 7. It is contended by him that the portion marked red in the plan Ex. 5 is outside the limits shown in Ex. 7 and, thus, the electoral lists, if any, prepared by the Returning Officer were useless inasmuch as they included the names of persons, who were not residing in the municipal limits and who had, therefore, no right to vote at the election. It may be mentioned here that the writ application was presented on the 11th of April, 1959 and it was prayed that a writ of prohibition be issued to the Returning Officer and he should be directed not to hold election of Sujangarh Municipality on 13th April, 1959. In the alternative, it was prayed that a writ of quo warranto or any other writ or direction be issued declaring the whole election void, in case the election was held before the disposal of his petition. A joint reply has been filed by non-petitioner Nos. 1 and 2. Non-petitioner No. 3 Swami Ram Tirath was not impleaded as a party by the petitioner, but it was requested by the former that he should be permitted to contest the writ application as an intervener, because he was a candidate at the said election; he hoped to be elected and his interests would suffer in case the Writ application was allowed. It was obvious that the intervener was going to be directly affected by the decision of the writ application and, therefore, he was allowed to file his reply. He has accordingly filed his separate reply to the application. All the non-petitioners have contested the writ applications and alleged that the facts stated by the petitioner are not correct. According to the non-petitioners, it was doubtful if the petitioner went to Ratangarh on 28th March 1959 and that it was at all not necessary for him to go to that place. It is pointed out that the petitioner did not submit any nomination paper to the Returning Officer rill the last date i. e. 28th March, 1959. It is asserted that the Returning Officer was present at Ratangarh till 12-30 P. M. and the petitioner did not approach him by that time. The Returning Officer then came to Sujangarh at 1. 45 P. M. and there, he received all the nomination papers' from candidates. The petitioner, however, did not approach him and did not file his nomination paper. It is further pointed out that the petitioner could not possibly file his nomination paper on 28th March, 1959, because he had not made necessary deposit of Rs. 25/- with the Municipal Board, Sujangarh as required by Rule 16 of the Rajasthan Town Municipal Election Rules, 1951. It is urged that the petitioner's contention that he was a candidate for election and that he went to Ratangarh to file nomination paper is, thus, incorrect. With regard to the second allegation, it is stated by the non-petitioners that the final publication of the electoral roll was made on 9th March, 195-9, according to the notice Ex. 2 and that it was wrong on the part of the petitioner to say that they were not published till 8th April 1959. It is not denied that the petitioner made an application on 8th April, 1959 to President, Sujangarh Municipality for obtaining a copy of the electoral roll and the Municipal President gave the reply vide Ex. 4, but it is urged that the interpretation put upon it (Ex. 4) by the petitioner was wrong. It is contended that Ex. 4 only mentioned that a copy of the electoral list of Ward No. 14 was not available at the Municipal office. This reply might have been given because the Municipal President may not be in a position to give a copy of the electoral list of ward No. 14 as demanded, but it did not mean that the electoral rolls were not prepared. It is asserted that electoral lists were prepared according to law and were published by 9th March, 1960. As regards the third allegation, it is urged by the non-petitioners that the portion shown in red ink by the petitioner in plan Ex. 5 is known as 'bas of Malis' and has always been included within the territorial limits of Sujangarh Municipality from the year 1925. It is pointed out that the former State of Bikaner had divided the area of the Sujangarh Municipality into 4 wards and that by notification dated 20th October, 1925, it included the disputed area in ward No. 4. They have also referred to notifications of the Bikaner State, published in the Bikaner Raj Patra dated 16th March, 1929 and 14th September, 1929. In the first notification, a notice was given to all concerned under the provisions of section 5 (l) of the Bikaner Municipal Act that His Highness' Government proposed to issue a notification mentioning the limits of the Sujangarh Municipality and objections were invited to that proposal. Thereafter, in the second notification dated 2nd September, 1959 published in the Bikaner Raj Patra dated 14th September, 1959, it was notified that in accordance with the provisions of sec. 4 (b) of the Bikaner Municipal Act, 1923, His Highness' Government was pleased to approve of the limits of the Municipality of Sujangarh as follows: - North : - Railway Station and line. East : - -Rohi (jungle) area; Abadi (populated area) of village Dulian and its outskirts. West : - Railway line; His Highness' Kothi and the Bas of Malis. South : - Gaushala; the area of Sujangarh Tal (Lake) and pasture land. It is admitted that these limits are the same as mentioned in Ex. 7 presented by the petitioner, but it is urged that the disputed area was included within these limits and that it was not correct on the part of the petitioner to say that this area fell outside the said boundary. According to the non-petitioners, the disputed area was included in Ward No. 4 when the distribution of wards was made in the year 1925. Then, it is pointed out that on the 3rd August, 1932, another notification was made by the then Bikaner Government, whereby the wards were re-distributed. After this reconstitution of the wards, the disputed area was included in ward No. 1. It was further stated that these four wards continued up to the year 1955. In 1955, the Rajasthan Government under its notification No. F. 1-A-1 LSG/55 dated 27th January, 1955 divided the four wards into 18 wards and instead of the four wards which were multiple member constituencies, the new 18 wards were formed into single member constituencies. It is asserted by non-petitioners that the disputed area is included only in ward. no. 18 and does not form part of any other ward. Thus, the non-petitioners have seriously contested the correctness of the facts stated by the petitioner. Learned counsel for the non-petitioners have further raised a preliminary objection to the effect that if the petitioner felt aggrieved, the proper course for him was to file an election petition and that since he has got an alternative remedy as provided by the Rajasthan Town Municipalities Act, 1951 (hereinafter referred to as the Act), his application should be dismissed. Learned counsel for the petitioner has urged in reply to the preliminary objection that his client is not challenging the validity of the election of any particular member, but he is challenging the validity of the entire process of election, that the Election Tribunal cannot enter into the question whether the disputed area was included within the municipal limits of Sujangarh, that in fact it is a question which relates to the very constitution of the Board and to a period prior to the commencement of election, that he has applied for a writ of prohibition before the holding of the election and under the circumstances, this Court should exercise its extra-ordinary jurisdiction and direct non-petitioners Nos. 1 and 2 not to hold election so long as the error regarding the territorial limits of the Municipality is not rectified. It is apparent from what has been stated above that the first question which arises for determination is whether the objections raised by the petitioner can be heard and decided by the Election Tribunal if and when an election petition is filed under section 19 of the Act, and if so, whether it would be proper for this Court to interfere at this stage in its extra-ordinary jurisdiction as prayed for by the petitioner. As pointed out above, the contention of the petitioner's learned counsel is that since he is challenging the validity of the very basis of the ejection and not election of any particular candidate, the Election Tribunal would not be able to go into this question under Sec. 19 of the Act. According to him, sec. 19 only contemplates election petition against individual persons who are elected as members and it is not meant to provide for challenging the validity of the entire election. In support of his argument, learned counsel has referred to Prabhudayal vs. Chief Panchayat Officer, Jaipur (1) and Lekhraj vs. The Cantonment Board, Jullundur Cantonment (2 ). I have given due consideration to these arguments and I think that the conten-tion of the petitioner's learned counsel is not tenable. It may be pointed out that in Prabhudayal's case (1) the learned Judges were considering the language of the provision of Rule 19 of the Rajasthan Panchayat Election Rules and not the provision of section 19-A of the Town Municipalities Act. The language of Rule 19 of the Rajasthan Panchayat Election Rules is not the same as that of sec. 19 of the Town Municipalities Act. In order to clarify this point, it would be proper to reproduce here sec. 19-A of the Act, which runs as follows : - "19-A. Procedure where entire election is set aside. Whenever the election of the total numbet of the members of a municipal board is simultaneously set aside under sec. 19, the Government shall order fresh general ejection to be held as early as possible and shall appoint an Administrator either by name or by virtue of office to look after the proceedings relating thereto and in the meanwhile to exercise all the powers and perform all the duties of the municipal board. "
(3.) IT is apparent that Section 19 of the Act deals with the determination of the validity of elections challenged before the election tribunal and sec. 19-A of the Act lays down the procedure where entire election is set aside. IT says that whenever the, election of the total number of the Municipality is simultaneously set aside under sec. 19, the Government shall order fresh general elections to be held as early as possible. To my mind, the foregoing provision makes it quite clear that the election of the total number of the members of the Municipal Board can also be challenged before the Election Tribunal. I have not been referred to any provision which debars the Election Tribunal from making an enquiry into and giving its decision upon the allegations relating to a fundamental deficiency in the election, i. e. a deficiency which shakes the very foundation of the election. On the other hand, I think that the questions which have been raised by the petitioner can be decided properly by an Election Tribunal, because it can decide both questions of fact and of law. It is apparent from what has been narrated above, that the question whether the electoral rolls were prepared and published by 9th March, 1959 as asserted by the non-petitioners or that they were not published even up to 8th April, 1959 is one of fact, which can be decided properly by an Election Tribunal after the necessary evidence is brought on record. In the writ petition before this Court, there is nothing on record except assertion of certain facts by one side and denial of them by the other party. Similarly, the question whether the disputed area was included within the boundaries of the Municipal limits as fixed in the notification dated 2nd September, 1929 published in the Bikaner Raj Patra dated 14th September, 1929, is more one of fact than of law. Unfortunately; the limits fixed in the said notification were very vague and without more evidence on record, it is difficult to pronounce authoritatively whether the area in dispute was included in the 'bas of Malis' or not. The Election Tribunal will be in a better position to decide this point, because it cannot only record the evidence of the parties, but also inspect the site, if necessary, and, therefore, it would not be proper for this Court to decide this question at this state. A similar question arose before this Court in Malchand vs. The State of Rajasthan (3 ). In that case, it was urged by the petitioner that certain areas, viz. Ramnagar and Chandaliya Ice Factory were not included within the limits of Sardarshahar. It was observed that "this point could not be agitated in this Court under Art. 226 of the Constitution, but should have been made the basis of an election petition under sec. 19 of the Act. . . . . . . . . . . . . . . " It was further observed that "some persons who should not have voted, had actually voted at the election is a grievance which can be taken before an Election Tribunal under sec. 19 of the Act. " It is clear from what was observed above in Malchand's case (3) that the Court refused to enter into a disputed question of fact and it was also held that the question relating to the territorial limits of Municipality could be agitated before an Election Tribunal. It may also he pointed out that as sec. 19 of the Act provides an appeal to this Court from the order of the Election Tribunal on a question of law, once the facts are decided by the Election Tribunal, this Court would be in a better position to deal with the questions of law and for this reason also, it does not seem proper to interfere in the matter at this stage in extra-ordinary jurisdiction. There is yet another reason why this Court should not interfere in the matter on the application of the petitioner. The petitioner is only one of the voters for the Municipal Board. ,sec. 19 of the Act provides that an election petition may be filed after the declaration of the result of the election either by a candidate who stood at the election or any ten persons qualified to vote at that election. Thus, according to this statutory provision, one voter alone cannot be permitted to bring an election petition. If the present application is allowed, it would mean-that a voter can circumvent the above provision of law and it would become nugatory. In Milakhraj vs. Jagdish Chandra (4), the writ application was filed by a voter living within the limits of Municipal Board, Karanpur. It was observed as follows :- "we cannot permit the applicant to come to this Court even before the election was over to have the election set aside when there is a specific provision in the Town Municipalities Act for having the election set aside by an election petition. We may also point out that sec. 19 provides that any ten persons qualified to vote at the election would be entitled to make an election petition. In the face of that provision, it would in our opinion, be improper for any one elector like the applicant to come to this Court to challenge an election even after it has been held on the ground that the law only entitles ten electors to present an election petition and therefore one elector should be allowed to come to this Court under Art. 226 and challenge the election. If this were permitted, we would be negativing the policy of the legislature which in its wisdom has thought fit that an election to a municipal board, if it is to be challenged by electors, should be challenged by at least 10 of them. If we were to say that because of this provision, one elector can come to us and challenge the election, we would in effect be setting aside the provision of the law which requires that ten electors should join together in filing an election petition against a municipal election. We are, therefore, of Opinion that as it was open to ten electors to challenge the election from ward no. 3 after it had been held, if the provision of rule 14 of the Rajasthan Town Municipal Election Rules was not complied with, we should not in our extraordinary jurisdiction go into that very matter on the application of one elector even before the election was held. We can only go into a matter of this kind after the Election Tribunal has decided the matter. " Learned counsel for the petitioner has urged that this Court had interfered at the instance of one voter in Jainarain vs. The State of Rajasthan (5 ). But, in that case, the petitioner was aggrieved by a wrongful imposition of a tax by the Municipality. In the present case, the petitioner has no other grievance except that he could not file his nomination paper and he only challenges the validity of the election. In Tekchand vs. Banwarilal (6), it was clearly laid down by this Court, that where a right or liability is created by a statute and that statute gives a special remedy for enforcing it, the remedy provided by the statute must be availed of. Sec. 19 provides for an election petition to a District Judge and it is further provided that where the decision of the District Judge is It appears to us that the intention of the legislature was to provide a self-contained set of provisions for questioning election matters under the Act. We are, therefore, most reluctant to hear them in our writ jurisdiction. " Another strong reason which was given in the said case was that this Court would not interfere where any interference on its parts is likely to place it in a position in which it is open to an inferior authority under the law to arrive at an opinion contrary to it. For instance, if in the present case, this Court decides the second and third allegation raised by the petitioner against him and if an election petition is latter on filed before the Election Tribunal by some other person and if the Election Tribunal, on further facts being brought to its notice, decides otherwise, an anomalous position would be created about the decision of this Court. Such a situation would be highly undesirable and, therefore, it is but proper that the matter should first be agitated before the Election Tribunal. ;