JUDGMENT 1. - This writ petition has been filed by a voter of Malpura District Tonk for issuing writ of quo-warranto against the respondent No. 5 Shri Raj Kumar Jain to quit the office of the Chairman, Municipal Board, Malpura on the ground that he stood dis-qualified for being chosen as member of the Municipal Board, Malpura as per Section 26(viii) of the Rajasthan Municipalities Act, 1959 (hereinafter called as the Act). 2. The facts are that the respondent No. 5 was working as Additional Public Prosecutor, Malpura under Section 24 of the Code of Civil Procedure and Clauses 12 and 14 of the Law and Judicial Department Manual initially for a period of six months with the Municipal Board in the scale of Rs. 1200-1400 with a fixed salary of Rs. 1,200/- p.m. vide order dated 19-4-1994 as per Annexure-1. Annexure-1 dated 19-4-1994 roads that Raj Kumar is appointed against the vacant post as a Retainer for six months in the scale of Rs. 1200-1400 at the minimum of Rs. 1200. He started working on the said post vide his joining report Annexure-2. 3. A notification was issued for holding general elections for election of the members of the Municipal Board, Malpura on 31-7- 1995. The nominations were to be filed by 16- 8-1995, scrutiny date was 17-8-1995, date of withdrawal of nomination form was 19-8-1995 and date of election was fixed as 27-8-995. It is stated that the respondent No. 5 had filed his nomination from Ward No. 12 on 14-8- 1995. After attending his duties he proceeded to Jaipur for putting his resignation on 14-8-1995 itself. It is stated that the respondent No. 5 was present in the Court as per the proceedings of Annexures 3 & 4. His resignation is said to have been accepted on 16-8-1995 vide Annexure-4 with immediate effect. It is stated that the resignation could have been accepted only after the expiry of one month and for the reason that no notice as required under Clause 16 of the Rajasthan Law and Judicial Department Mannual, 1958 was tendered by the respondent No. 5, therefore, submission of the resignation as well as acceptance was illegal on the face of it. It is submitted that the nomination of respondent No. 5 should have been rejected at the time of scrutiny. It is submitted that the nomination of respondent No. 5 should have been rejected at the time of scrutiny. Clause 26 provides disqualifications for members to be elected and sub clause (8) of Clause 26 provides that the salaried or part time appointment under the Central or a State Government or a local authority shall be a disqualification to be elected as a member. Sub-clause 13 provides that a paid legal practitioner on behalf of such Board or on any person accepting employment as legal practitioner against such board during the term for which he has been elected is also a disqualification. Clause 26 is reproduced as under : "26. General disqualifications for members A person notwithstanding chosen as a member of a board:- (i) to (vii) ............... (viii) who holds a salaried or part-time appointment under the Central or a State Government or a local authority." (ix) to (xii) ....................... (xiii) who is employed as a paid legal practitioner on behalf of such Board or accepts employment as legal practioner against such board during the term for which he has been elected." There was amendment to Clause 26 which reads as under : "23. Amendment of Section 26- Rajasthan Act 38 of 1959- In Section 26 of the principal. (a) after the words 'for being chosen as', as the expression, 'or for being', shall be inserted; and (b) for clause (vii), the following clause shall be substituted, namely : (vii) If he is so disqualified by or under any law for the time being in force for the purposes of elections to the Rajasthan Legislative Assembly : Provided that no person shall be disqualified on the ground that he is less than 25 years of age, if he has attained the age of 21 years." 4. It is the contention of the petitioner that the respondent No. 5 was engaged by the Municipal Board and, therefore, under the relevant clauses of Section 26 the respondent No. 5 was disqualified to hold the post. 5. A reply has been filed and preliminary objection has been taken that the petitioner has an alternative remedy of filing the election petition and for the reason the disputed questions of fact are involved, the writ petition be not entertained. It is further submitted that the Additional Public Prosecutor is not a Government servant. 5. A reply has been filed and preliminary objection has been taken that the petitioner has an alternative remedy of filing the election petition and for the reason the disputed questions of fact are involved, the writ petition be not entertained. It is further submitted that the Additional Public Prosecutor is not a Government servant. The post of Public Prosecutor working in the Court of Sessions Judge or Civil Courts are distinguishable from the post of the persons who are appointed as Retainer by the Municipal Committees. It is submitted that the petitioner had actually submitted the resignation on 11-8-1995 and he did not draw any pay after 11-8-1995. It is stated that he had relinquished his charge on 11-8-1995 vide Annexure R-1. It has also been denied that he had ever appeared in any Court on behalf of the Board on any date as alleged. To show that the respondent No. 5 had relinquished the charge on 11-8.1995, he has attached the letter No. 160 dated 11-8-1995 and also an affidavit Annexure R-2. 6. Counsel for the petitioner submits that the post being hold by the respondent No. 5 was a civil post and is a Government servant and, therefore, was not entitled to be elected, but in view of the preliminary objection having been taken by the respondent of a statutory remedy of election petition available with the petitioner, the writ petition can be decided on the preliminary objection itself. 7. Section 33(2) of the Rajasthan Municipalities Act, 1959 clearly provides that no election shall be called for except by an election petition presented in accordance with the provisions of this Act. 8. Section 34 provides the grounds on which the election petition can be challenged and Section 34(a) prescribes that the election petition can be filed if a candidate on the date of election was not qualified or was disqualified to be chosen to fill the seat. Section 35 provides the corrupt practices for the purposes of setting aside the election of the returned candidate. Section 36 provides the presentation of election petition. There is specific provision for determination and the validity of the election of Chairman and Vine Chairman under Section 66 Section 65 provides that for every Board there shall be Chairman and Vice Chairman and the Chairman shall be elected by the members of the Board from amongst themselves in accordance with the rules. There is specific provision for determination and the validity of the election of Chairman and Vine Chairman under Section 66 Section 65 provides that for every Board there shall be Chairman and Vice Chairman and the Chairman shall be elected by the members of the Board from amongst themselves in accordance with the rules. Section 66 provides for challenge of the election of the Chairman before the District Judge and if there is no District Judge, before the Civil Judge. The relevant provisions are reproduced hereinafter. 34. Grounds on which election may be called in question:- The election of any person as member of a board maybe questioned by an election petition on one or more of the following grounds, namely : (a) that on the date of election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under this Act, or (b) that any corrupt practice specified in Section 35 has been committed by a returned candidate or his election agent or by any other person, with the consent of a returned candidate or his election agent, or (c) that any nomination has been improperly rejected, or (d) that the result of the election, in so far as it concerns a returned candidate has been materially. (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interest of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of this act or of any rules or orders made thereunder, or (e) that in fact the petitioner or some other candidate received a majority of the valid votes, or (f) that, but for the votes obtained by the returned candidate by corrupt practices, the petitioner or some other candidate would have obtained a majority of the valid votes. 36. Presentation of petition- (1) An election petition shall be presented within thirty days from the date on which the result of the election in question is announced by the returning officer. (2) The petition may be presented by any candidate at such election or by any elector of the ward. 66. 36. Presentation of petition- (1) An election petition shall be presented within thirty days from the date on which the result of the election in question is announced by the returning officer. (2) The petition may be presented by any candidate at such election or by any elector of the ward. 66. Determination of validity of election of chairman or vice-chairman- (1) The election of a chairman or vice-chairman under Section 65 shall not be called in question except by an election petition presented. (a) the District Judge sitting at the place where the municipal office is situated, or (b) where there is no such District Judge, the Civil Judge so sitting, or (c) any other Judge specially appointed by the State Government for the purpose : Provided that where an election petition is presented as aforesaid to a District Judge, he may, for the reasons to be recorded in writing, transfer the same for hearing and disposal to a civil Judge subordinate to him and sitting at the place where the municipal office is situated. (2) Such petition may be presented by a candidate who has been defeated or whose nomination has been rejected in such manner, on such grounds and within such period as may be prescribed, along with a deposit of one hundred rupees. (3) In hearing the petition the Judge shall follow the procedure laid down in Section 41 and exercise the powers specified in Sections 43 and 44. (4) Without prejudice to the generality of the provision contained in sub-section (3) the Judge, may if the petition is found to be frivolous, direct that the deposit mentioned in subsection (2) shall be forfeited to the State Government. 9. In the present case admittedly the petitioner is challenging the election of the respondent No. 5 who has been elected as Chairman of the Board. Election petition was maintainable under Section 66 and even otherwise to the election to the members of the Municipal Board the election petition is also maintainable under the relevant provisions as reproduced above. Section 33 which provides that no election can be challenged except by way of election petition. 10. For the reason that alternative statutory remedy of filing election petition was available to the petitioner, the writ petition is not maintainable and, therefore, is likely to be dismissed on that ground. 11. Section 33 which provides that no election can be challenged except by way of election petition. 10. For the reason that alternative statutory remedy of filing election petition was available to the petitioner, the writ petition is not maintainable and, therefore, is likely to be dismissed on that ground. 11. Apart from above, there does arise a disputed question of fact in regard to date of resignation, acceptance of resignation and the appearance of the respondent No. 5 in civil Courts which need to be established by way of leading evidence. Apart from the fact that the alternative remedy of election petition is available, the above-said disputed questions of facts cannot be determined by way of writ petition. 12. For the reasons mentioned above, the writ petition is dismissed with no order as to costs.Petition Dismissed. *******