The expression "to elect" in Rule 7 (1) of the Bihar Municipal Elections and Election Petitions Rules means to pick out or choose by casting votes, which is the voters' role.

R.K.Choudhary, J.

1. These two writ applications under Article 226 of the Constitution of India arise out of the election of commissioners of the Rosera Municipality in the district of Darbhanga. M. J. C. 591 of 1956 is by one Raghuni Nayak who states that he intended to stand as a candidate for being elected a commissioner of the above Municipality, but was debarred from doing so as his name did not appear in the electors list. M. J. C. 898 of 1956 is by three defeated candidates, namely, Hansi Lal Sahani, Lakhan Nayak and Lakshmi Thakur. By these two petitions the petitioners pray for issue of an appropriate writ setting aside the election of the commissioners of the above Municipality, restraining the returned candidates, namely, opposite party Nos. 3 to 15, from functioning as commissioners of the said Municipality and directing the District Magistrate of Darbhanga for holding a fresh election in accordance with law.

2. The short facts are these : On the 11th of April, 1956, a notice by the District Magistrate of Darbhanga, opposite party No, 1, being No. 4303R dated the 29th March, 1956, was published in the Bihar Gazette fixing the 24th of July, 1956, as the last date for election of Municipal Commissioners for the Rosera Municipality. Sri Banarsi Prasad Singh, Magistrate, first class, Samastipur (opposite party No. 2 in M.J.C. 591 of 1956 and opposite party No. 3 in M.J.C. 898 of 1956), as being the Returning Officer for the said election, fixed the 27th of June, 1956, as the last date for filing nomination paper, the 29th of June, 1956, as the last date for scrutiny thereof and the 24th of July, 1956, for election, if necessary.

On the 10th of April, 1956, the petitioner of M.J.C. 591 of 1956, namely, Raghuni Nayak, moved an application before the District Magistrate of Darbhanga alleging that his name as well as the names of about 700 other people qualified to be registered as voters in the Assembly constituency of that area had been omitted from the electoral roll of the said constituency and prayed for a separate electors roll for the Rosera Municipality to be prepared on the basis of the qualifications prescribed for the electoral roll of an Assembly constituency under the proviso to rules of the Bihar Municipal Elections and Election Petitions Rules, 1953.

On the 11th of April, 1956, Mr. Jacob, the District Magistrate of Darbhanga, rejected the said application. Subsequently, polls were held on the 24th of July, 1956, votes were counted on the 25th of July, 1956, and opposite party Nos. 3 to 15 of M.J.C. 591 of 1956, who are opposite party Nos. 4 to 16 in the other application, were declared elected by the Returning Officer. The Chairman of the Rosera Municipality is opposite party No. 2 in M.J.C. 898 of 1956, but he is not a party in the other application.

3. The petitioners state that the election of the Municipal Commissioners referred to above was void inasmuch as no electoral roll as required by the Municipal Act and the rules framed thereunder had been prepared in the case and also because it was not held within the last date fixed for the purpose. On these two grounds they seek to have the election set aside. Reliance has been placed on their behalf in support of their applications on a Bench decision of this Court in Parmeshwar Mahaseth V/s. State of Bihar, 1957 BLJR 672 : (AIR 1958 Pat 149) (A), and on certain provisions of the Municipal Act and the rules framed thereunder.

4. The Standing Counsel opposes the applications on behalf of the District Magistrate and the Returning Officer. Mr. Baldeva Sahay appears for opposite party Nos. 3, 4, 9 to 13 and 15 in M.J.C. 591 of 1956 who are opposite party Nos. 4, 5, 10 to 14 and 16 in M.J.C. 898 of 1956. Causa has been shown on their behalf opposing the applications by filing counter affidavits in both the cases. The other members of the opposite party do not appear before us.

5. Mr. Baldeva Sahay has adopted the arguments advanced by the learned Standin