Jagat Narayan, J. —This is a petition under Art. 226 of the Constitution challenging the validity of the election of respondents Nos. 2 to 9 as members of the Municipal Board Bissau at the, last general election held on 21.8.59 under the Rajasthan Town Municipalities Act, 1951 ( hereinafter referred to as the Act) and the Rajasthan Town Municipal Election Rules, 1951, ( hereinafter referred to as the Rules ). Petitioner No. 1 is a defeated candidate and petitioners Nos. 2 to 3 are voters. The petition was contested by successful candidates respondents Nos. 2 to 9. The Returning Officer was joined as respondent No. 1 and notice was served on him. He did not however either file a reply or put in appearance. 2. The S.D.O. Jhunjhunu was appointed Returning Officer by the Collector of Jhunjhunu and he conducted the election in accordance with the following programme published in the Rajasthan Gazette dated 23.4.59 :— 1. Preparation of voters list by the Returning Officer under Rule 6(1) ... ... ... 18.4.59 2. Publication of voters list under Rule 7 ... ... ... 20.4.59 3. Last date for filing claims and objections under Rule 9 ... ... ... 20.5.59 4. Claims and objections to be decided under Rule 10 by ... ... ... 4.6.59 5. Last date for filing appeals under Rule 10 (7) ... ... ... 15.6.59 6. Appeals to be decided by ... ... ... 17.6.59 7. Final publication of electoral roll under Rule 11 ... ... ... 15.7.59 8. Publication of notice under Rule 14 ... ... ... 20.7.59 9. Date fixed for election ... ... ... 21.8.59 The election was contested by two groups of candidates. The successful candidates respondents Nos. 2 to 9 were backed by the Congress party. The other group of candidates which was defeated included Mall Ram petitioner No. 1 and Durgadatt Harit the former chairman of Bissau Municipal Board. 3. On 17.5.59 one Sagarmal Misra President of Mandal Congress Party, Bissau presented an application (Ex. 2) before the Returning Officer at Jhunjhunu in which he alleged that the names of persons a list of whose names he had filed had been deliberately left out from the voters list and prayed that they may be included. Along with this application he filed a list of 1543 persons. 2) before the Returning Officer at Jhunjhunu in which he alleged that the names of persons a list of whose names he had filed had been deliberately left out from the voters list and prayed that they may be included. Along with this application he filed a list of 1543 persons. On this application the Returning Officer sent his election clerk to Bissau to verify the list and submit a report to him by 19.5.59 (Ex. R. 2). At the same time he directed the Secretary of Bissau Municipal Board to assist the election clerk in the verification. 4. The election clerk reached Bissau on 18.5.59 and met one Shri Nathoolal Vaid whom he described in his report Ex. 6 as a man of Sagarmal Misra. Nathoo Lal Vaid gave three of his men to the election clerk. Two municipal clerks were provided to him presumably by the Secretary who had been directed by the Returning Officer to assist the election clerk. These clerks had assisted in the preparation of electoral roll. The election clerk formed three parties. One party consisted of himself and a man of Nathoo Lal. The other two parties consisted of a municipal clerk and a man of Nathoo Lal each. The party consisting of the election clerk verified the voters list of wards Nos. 5 and 6 which were mostly populated by Mohammedans. The election clerk thought it proper to verify the voters of these wards personally as Shri Nathoo Lal Vaid had complained to him that the names of Mohammedans were left out from the voters list. The other two parties were entrusted with the verification of the voters of wards Nos. 1 to 4 and wards Nos. 7 and 8 respectively. Each party carried a list of persons alleged to have been left out from the voters list. The election clerk directed the members of the other two parties to make a tick mark against the names of persons who may be present and a cross-mark against the names of persons who may not be present. 5. The election clerk found as a result of the enquiries made by him in wards Nos. The election clerk directed the members of the other two parties to make a tick mark against the names of persons who may be present and a cross-mark against the names of persons who may not be present. 5. The election clerk found as a result of the enquiries made by him in wards Nos. 5 and 6 that-- (1) Most of the persons of these two wards resided outside Bissau in connection with business and their houses were locked or only one or two persons were residing in "each house whose names were already on the voters list. (2) House Numbers were missing from the houses so that it could not be ascertained whether or not the occupants of the houses had or had not been already included in the voters list. (3) There were several persons on the list who were married daughters of this village who were not entitled to be enrolled in Bissau. (4) There were several names of persons in the list who had not attained the age of 21 years. He found that 62 persons out of the list were entitled to be included in the voters list of ward No, 5 and 207 in the voters list of ward No 6. As a result of the verification carried out in the aforesaid manner the election clerk recommended to the Returning Officer that the names of 687 persons should be included out of the list of 1543 persons submitted by Sagarmal Misra. This recommendation was accepted by the Returning Officer (Ex.7.) He sent two copies of the list of persons whose names were to be added to the voters list already published to the Secretary, Municipal Board, Bissau on 19.5.59 (Ex.R.3) asking him to attach the two copies to the voters list placed in the office and the library for publication. In accordance with this direction the Secretary published the additional voters list on 20.5.59 by placing copies of them in the municipal office and the municipal library. 6. One Babu Lal Kanoria filed an application (Ex.R.l) on 22.4.59 for the addition of the names of 10 persons of his family which had been left out of the voters list. This application was addressed to the Chairman, Municipal Board, Bissau. It was however presented before the Returning Officer. 6. One Babu Lal Kanoria filed an application (Ex.R.l) on 22.4.59 for the addition of the names of 10 persons of his family which had been left out of the voters list. This application was addressed to the Chairman, Municipal Board, Bissau. It was however presented before the Returning Officer. It was rejected on 3.6.59 on the ground that it had not been filed in accordance with Rule 9(4) which lays down that each claim or objection shall not relate to more than one person. 7. It was alleged by the petitioners that the Returning Officer acted illegally in adding the names of 687 persons inasmuch as the rules require that before any ones name is entered to the list of voters published under Rule 6(1) the procedure prescribed under Rules 9 and 10 has to be gone through. Under Rule 9(1) no ones name can be entered unless he himself files a claim in writing before the Returning Officer duly signed and verified in the manner provided for signing and the verification of pleadings in the Code of Civil Procedure. A separate application is to be filed with regard to each claim. These claims are to be judicially determined in the manner prescribed under Rule 10 by a revising committee consisting of the Returning Officer and two members of the Municipal Board appointed by a resolution of the Board before they can be allowed. The decision of the committee is subject to an appeal before the District Magistrate under Rule 10(7). Further it was alleged that the action of the Returning Officer in entertaining the claims of 687 persons filed by the President of the Mandal Congress party and not entertaining a similar claim filed by Babu Lal Kanoria was discriminatory inasmuch as Babu Lal Kanoria was not a supporter of the candidates backed by the Congress party. It was also alleged that the action of the Returning Officer was mala fide inasmuch as it was designed to help the candidates backed by the Congress party in winning the election. 8. The contention of the contesting respondents was that the Returning Officer ordered the addition of the names of 687 persons under his extraordinary power under Rule 1.1(2). It was also alleged that the action of the Returning Officer was mala fide inasmuch as it was designed to help the candidates backed by the Congress party in winning the election. 8. The contention of the contesting respondents was that the Returning Officer ordered the addition of the names of 687 persons under his extraordinary power under Rule 1.1(2). It was alleged that Durga Datt, the former Chairman, apprehended that Mohammedans would not vote for him at the next election and when the voters list was under preparation under Rule 6(1) he so manoeuvred things that the names of the majority of the Mohammedan voters were left out and that Sagarmal Misra brought this fact to the notice of the Returning Officer on 17.5.59 who ordered the inclusion of the names of 687 persons after making proper inquiry. It was asserted that his action in doing so was bonafide and not malafide. As for the application of Babu Lal Kanoria it was stated that it was treated differently as it was addressed to the Chairman, Municipal Board and not to the Returning Officer. It was asserted that the verification of the list submitted by Sagarmal Misra was done openly in Bassau which is a small town and the petitioners must have been fully aware of it and could have filed objections on 20.5.59 against the additions made by the order of the Returning Officer. It was contended that the petitioners had an alternative remedy in the shape of an election petition, under section 19 of the Rajasthan Town Municipalities Act 1951 and that an election challenging the validity of the election of all the eight respondents had already been filed by Durga Datt and was pending. 9. Rule 11(2) runs as follows:— "The Returning Officer may also, within a month from the date of the publication of the list make any additions to, or omissions from, or corrections in, the list, which he may discover to be necessary otherwise than on the application of any person interested therein." 10. This rule certainly empowered the Returning Officer to add 687 names to the list of voters published on 20.4.59 at any time upto 20.5.59 and such additions, not being made on the application of the claimant himself Rules 9 and 10 did not apply to them. This rule certainly empowered the Returning Officer to add 687 names to the list of voters published on 20.4.59 at any time upto 20.5.59 and such additions, not being made on the application of the claimant himself Rules 9 and 10 did not apply to them. On behalf of the petitioners it was contended that Rule 11(2) was ultra vires the rule making power conferred on Government under sec. 205 of the Act. Reliance was placed on the Supreme Court ruling in Chief Commissioner vs. Radhey Shyam (1). 11. Having heard the learned counsel for the parties at length on this contention I am satisfied that it must be upheld. 12. The relevant portion of sec. 205 runs as follows:— Power of Government to make rules and order— (1) The Government may make rules or orders generally for the purpose of carrying into effect the provisions of this Act and prescribe forms for any proceeding for which it considers that a form should be provided. (2) In particular, and without prejudice to the generality of the foregoing power, the Government may make rules or orders— (b)(iii) for preparing and revising the lists of voters from time to time................. (iv) for determining the manner in which and the authority by whom any objection to such lists in regard to the names entered therein or omitted therefrom may be heard and decided, and to. what authority the appeals as to such entries and omissions shall lie ;" 13. Sec. 205 thus lays down that the rules framed under it must provide an opportunity to the persons interested in the election— (1) to scrutinise whether the persons enrolled as electors possess the requisite qualifications, and (2) to file claims and objections thereto. They must also provide a machinery for the quasi-judicial determination of the claims and objections and for an opportunity to file appeals from such decisions and for the decision of such appeals. 14. It is in pursuance of the provisions of sec. 205 that Rules 7, 9 and 10 have been framed, Rule 7(1) lays down that a copy of the voters list prepared under Rule 6(1) shall be published by affixing copy thereof in Hindi at the Municipal Office and in such other conspicuous places in the municipality as the Returning Officer may consider suitable. 15. 205 that Rules 7, 9 and 10 have been framed, Rule 7(1) lays down that a copy of the voters list prepared under Rule 6(1) shall be published by affixing copy thereof in Hindi at the Municipal Office and in such other conspicuous places in the municipality as the Returning Officer may consider suitable. 15. Rule 7(2) provides that when the list has been so published the Returning Officer shall, by beat of drum and printed hand bills, give public notice thereof, and of the places where the roll or a copy may be inspected ana extracts therefrom may be taken and also of the fact that any person entitled under Rule 9(1) to prefer an objection or claim may apply in writing to the Returning Officer for the amendment of the roll. Rule 9 provides for the filing of claims and objections. A claim or objection can be filed within one month from the date of the publication of the list of voters under Rule 7(1). This gives sufficient opportunity to the persons interested in the election to scrutinise the voters list published under Rule 7(1) and to file claims and objections. 16. Rule 10 provides that all claims and objections shall be determined quasi-judicially by a committee consisting of the Returning Officer and two members of the Municipal Board appointed by a resolution of the Board at a public hearing due notice of which has to be given to the electorate. It also provides for the filing of an appeal against the decision of the revising Committee and for the disposal of the appeal by the District Magistrate. These rules are in accordance with sec. 205 of the Act. But Rule 11(2) empowers the Returning Officer to add any name to the list of voters or to delete any name from it even on the last date fixed for filing claims and objections. The electorate does not get an opportunity of scrutinising the names so added or omitted by the Returning Officer or of filing objections against the additions or omissions so made. Rule 11(2) does not lay down that the Returning Officer shall personally make an enquiry before ordering the addition or omission of any name. He may act on information supplied to him by an interested person. His order under Rule 11(2) is final. No appeal has been provided against it. Rule 11(2) does not lay down that the Returning Officer shall personally make an enquiry before ordering the addition or omission of any name. He may act on information supplied to him by an interested person. His order under Rule 11(2) is final. No appeal has been provided against it. Rule 11(2) is thus at variance with the provisions of sec. 205 of the Act. It is beyond the rule making power conferred by the Legislature on Government. It is therefore invalid. The addition of 687 names by the Returning Officer who purported to act under Rule 11(2) is therefore illegal and the election held on the basis of the electoral roll to which these names had been added is invalid. 17. In Chief Commissioner vs. Radhey Shyam (1) Sec. 43 of the Ajmer Merwara Municipalities Regulation which came up for consideration by their Lordships was in these words:— "The Chief Commissioner may, by notification, make rules consistent with this Regulation for the purpose of regulating all or any of the following matters, namely: (a) ...................... (b) ...................... (c) the preparation and revision of electotal rolls, and the adjudication of claims to be enrolled and objections to enrolment;" Every person entitled to be enrolled under the Representation of the Peoples Act 1950 in the electoral roll for the Parliamentary Constituency was entitled to be enrolled as an elector of the Municipality under sec. 30 of the Regulation. The rules which were framed by the Chief Commissioner did not provide for filing claims and objections to the Parliamentary Electoral Roll which was adopted. In spite of the fact that the Parliamentary Electoral Roll had been finalised after going through the whole procedure in accordance with the provisions of the Representation of the People Act 1950 it was held that it could not form the basis of any valid election to the Ajmer Municipal Committee unless a further opportunity of filing claims and objections was given under the rules framed under Regulation 43 and machinery was provided for their adjudication. 18. Even though the petitioners may have become aware of the fact that some names might be added to the list of voters as a result of scrutiny which was being made by the election clerk they could not have known before 23.5.59 whether any names had in fact been added. That was the last date for filing objections. 18. Even though the petitioners may have become aware of the fact that some names might be added to the list of voters as a result of scrutiny which was being made by the election clerk they could not have known before 23.5.59 whether any names had in fact been added. That was the last date for filing objections. Even if the petitioners came to know on that date about the addition of 687 persons they did not have sufficient time at their disposal in order to scrutinise whether or not the persons whose names had been added were qualified to vote and to prefer objections in accordance with Rule 9 with regard to them; . It may be mentioned that these objections had to be filed before the Returning Officer at Jhunjhunu. 19. An additional affidavit was filed on behalf of the petitioners on 19.9.59 in which it was alleged that a number of persons whose names were added were below 21 years in age and a number of them were not found in the houses in which they are supposed to be residing in accordance with the additional list of voters. Particulars of these persons were given. No counter affidavit was filed on behalf of the respondents. It is immaterial for the disposal of the present petition whether or not the names of unqualified persons were actually added. It is therefore unnecessary to go into the question. Suffice it to say that the determination of the ages of villagers is a matter which is not free from difficulty. Further as the report of the election clerk shows house numbers in the Municipality cannot be ascertained easily as the new numbers differed from the old numbers and many of the new numbers have been obliterated. 20. The petitioners did not have an alternative remedy in this case in my opinion. As was held by me in Uda Ram vs. State of Rajasthan ( Civil Writ Petition No. 269/ 59 ) decided on 1.12.59 an election petition under sec. 19(1) of the Act lies only if the election is challenged on account of some defect occurring during the process of election. This commences with the issuing of a notice under Rule 14. The preparation and revision of the electoral roll is independent of the process of election. The petitioners could not have challenged the election of respondents Nos. 19(1) of the Act lies only if the election is challenged on account of some defect occurring during the process of election. This commences with the issuing of a notice under Rule 14. The preparation and revision of the electoral roll is independent of the process of election. The petitioners could not have challenged the election of respondents Nos. 2 to 9 by filing an election petition on the ground that it was based on an invalid electoral roll. 21. Coming now to the question of discrimination the Returning Officer would not be justified in treating Babu Lal Kanorias application differently from the application filed by Sagar Mai Misra merely on the ground that the former was addressed to the Chairman Municipal Board and the latter was addressed to himself. But the two applications were not exactly alike. In one filed by Babu Lal Kanoria it was prayed that the names of 10 members of his family which had been omitted from the voters list be added to it. In the other filed by an office bearer of a political party it was prayed that the names of 1543 persons be added to the voters list. The Returning Officer might have treated these two applications differently without any intention of showing any favour to the Congress party. Babu Lal Kanorias application was filed on 22.4.59. It was treated as a claim filed under Rule 9, in the usual course and was disposed of under Rule 10. Sagarmal Misras application was filed at a much later date namely 17.5.59. It was alleged in it that the names of 1543 persons had been left out of the voters list deliberately. Under Rule 6(1) the voters list is to be prepared by the Returning Officer. The allegation made in this application therefore implied gross negligence on the part of the Returning Officer in discharging his duty under Rule 6(1). The Returning Officer might have been prompted to take immediate action under Rule 11(2) on this application on account of this aspect of the matter. It cannot therefore be held on the material on record that the act of the Returning Officer was either discriminatory or malafide. 22. The Returning Officer might have been prompted to take immediate action under Rule 11(2) on this application on account of this aspect of the matter. It cannot therefore be held on the material on record that the act of the Returning Officer was either discriminatory or malafide. 22. Another contention which was raised on behalf of the petitioners was that the final publication of the electoral roll was not made in accordance with Rule 11(3) inasmuch as no publicity to it was given by beat of drum and distribution of printed hand bills as required under Rule 7(2). This allegation was not specifically made in the petition. What was alleged in the petition was that the electoral roll was not finally published as required under Rule 11(3). The respondents thus had no opportunity of showing whether Rule 7(2) was complied with at the time of the final publication of the electoral roll. 23. In the result I hold that the election of respondents Nos. 2 to 9 as members of Municipal Board of Bissau is illegal I accordingly allow the petition and restrain the respondents Nos. 2 to 9 from acting as member of the Municipal Board Bissau. 24. It appears that after the coming into force of the Rajasthan Panchayat Samitis and Zila Parishad Act 1959 the Municipal Board Bissau was converted into a Panchayat and respondents Nos. 2 to 9 are acting as Sarpanch, Up-sarpanch and Panches of the Panchayat so established. They are also restrained from so acting. 25. In the circumstances of the case, 1 direct that parties shall bear their own costs of this petition.