GOKULCHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a petition under A. 226 of the Constitution challenging the validity of the election of the members of the Municipal Board Rajgarh at the general election held on 16. 1. 61. The petition has been contested by the elected members and the other respondents.

(2.) THE main ground taken in the petition is that the election was vitiated on account of noncompliance of the mandatory provision contained in sec. 23 of the Rajasthan Municipalities Act 1959 (hereinafter referred to as the Act), the relevant portion of which runs as follows: - ". . . . . . . . . . . . . . . . . . . . there shall be general election. . . . . . . . . to a board, before the expiry the powers of theterm. . . . . . . . . on such date or dates as the State Government may by notification in the official Gazette, appoint in that behalf. " Under the powers conferred on the State Government under sec. 29 of the Act the Rajasthan Municipalities Election Order 1960 was issued to make provision for holding elections under the Act. Clause 4 (2) of this Order lays down that upon the receipt of information about the expiry of the term of office of a Board or suo motu the State Government or any other authority to whom powers under sec. 23 of the Act may have been delegated, may by notification in the Official Gazette, appoint a date or dates for general elections. Clause 5 provides for the appointment of a Returning Officer by the Collector ''after a date has been appointed under sub-clause (2) of Clause 4". THE clauses following clause 5 lay down the duties of the Returning Officer and the manner in which the election is to be conducted.

(3.) SECONDLY the power of the Election Tribunal to set aside an election is circumscribed by the warding of sec. 34. The Tribunal can only set aside an election for noncompliance with a provision of the Act or the Rules made thereunder if such non-compliance has materially affected the result of the election. The Tribunal cannot set aside an election without proof of the result having been materially affected even if there has been a noncompliance with a mandatory provision of the Act or the Rules. In Vashist Narain Vs. Dev Chandra (3) it was held by their Lordships of the Supreme Court that the result of the election cannot be said to be materially affected unless it can be proved affirmatively that the elected candidate would not have been elected if the provision of the Rules or the Act had been complied with.