JAGAT NARAYAN, J.—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. On 13.5.60 the Collector issued an order (Ex. 1) appointing the Sub Divisional Magistrate Rajgarh to be the Returning Officer for holding the general election of this Municipality. This was done in contravention of Clause 5 which lays down that the Returning Officer shall only be appointed after a date for holding the general election has been appointed by a notification in the Official Gazette as provided under sub-clause (2) of Clause 4. The general election was held on 16.1.61. A notification under sec. 23 of the Act was only published in the Rajasthan Gazette on 19.1.61 after the election had been held.

4. The contention on behalf on the petitioners is that the notification provided under sec. 23 of the Act is mandatory and that non-compliance with this provision vitiates the election. On behalf of the respondents it was contended that the provision of sec. 23 is not mandatory, that wide publicity was given locally to the public of the election, that no prejudice was caused to the petitioners and that the alternative remedy by way of an election petition being open to them this Court should not interfere in the exercise of its extra-ordinary jurisdiction under Art. 226.

5. The maiN question which arises for determination in this writ petition is whether the provision contained in sec. 23 with regard to the notification of the date of the general election in the Gazette is mandatory. An examination of the statute shows that the word "shall" has been used which generally imports a command and docs not permit of discretion. Shri Kan Singh on behalf of the respondents argued that the emphasis under sec. 23 was on holding the election before the expiry of the term of the Board. There can be no doubt that the Legislature intended that the general election should be held before the expiry of the term of the Board. But the provision with regard to it can only be directory and not mandatory. For the section cannot be construed to mean that if by mistake or accident the the general election is not held before the expiry of the term of the Board the Municipality would be permanently deprived of an elected Board. The provision regarding the notification of the date of the general election by publication in the Official Gazette can alone be mandatory. An examination of the scheme of the Act and the Rules framed thereunder also go to show that the notificat

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