KASISWAR MITRA Vs. ADDITIONAL DISTRICT MAGISTRATE 24 PARGANAS

JUDGEMENT

(1.) THE facts in this case are shortly as follows: The State Government of West Bengal has established the Mayda Union Board under section 6 of the Bengal Village Self-Government Act, Act V of 1919 (hereinafter referred to as the 'act') composed of Mayda and other adjoining villages within Police Station of Jaynagar in the District of 24-Parganas. The number of members to constitute the said Union Board was fixed at 9. The said Union Board is divided into four wards and the number of members allotted to each ward is set out in paragraph 2 of the petition. In pursuance of Rule 4 of the Election Rules framed under section 101, the District Magistrate fixed the 26th February, 1959 as the date for general election from all the four wards. All preliminary steps were duly taken. On the 26th February, 1959 the election took place in all the wards. So far as the wards Nos. 2, 3 and 4 are concerned, the election was completed without any incident, but with regard to the election of ward No. 1 there was a rowdy demonstration and the presiding officer had to stop the election in that ward after it had proceeded for some time. Only one member is allotted to ward No. 1, and consequently the election of the only member that was to be returned from ward No. 1 remained in abeyance. Sub-section 4 of section 6 of the said Act runs as follows:

(2.) THE procedure to be followed at such second election is laid down in Rule 28, which occurs at page 66 of to Manual. It is laid down there a second election shall begin at the stage from which the original election failed. If, however, the second election is held in the year subsequent to the year in which the original election was held a fresh register of voters shall be prepared for such election in accordance with rules 5 to 9. It appears that the 31st March, 1959 was the date which was fixed for the second election. Thereupon, on the 23rd March, 1959 a petition was filed before the Sub-Divisional Officer asking him not to publish the names of the eight elected members without holding the second election. On the 26th March, 1959 the learned Sub-Divisional Officer up-held this application and directed that publication of the names of the eight elected members should be stopped. On the 30th March, 1959 however, the learned Additional District Magistrate declared that upon an analogy of section 73 of the Representation of the Peoples Act, 1951, he was of the opinion that simply because the election in one ward could not be completed, it did not follow that the remaining members who had been duly elected could not function. He found no authority for the proposition that their names should not be published and ordered such publication to be made and also directed that they should proceed to elect a President. On the 2nd April, 1959 the names of these eight members elected from wards Nos. 2, 3 and 4 were duly published in the Calcutta Gazette. In pursuance of the direction given by the learned Additional District Magistrate, the 8th May, 1959 was fixed for election of the President. Section 8 of the said Act lays down that every union board shall be presided over by a president, who shall be elected by the members of the union board from among their own number. The rules regarding the election of the president are rules 32 to 36 appearing at pages 67 and 68 of the Manual. It is laid down there that within one month after the names of the members have been notified in the Calcutta Gazette, the District Magistrate shall send a copy of the notification to the Circle Officer, with an order directing him to convene a meeting of the members for the purpose of electing a president. Rule 33 lays down that one-half of the number of members present shall form a quorum; when however the board consists of 7 or 9 members, in that case 4 or 5 members respectively should form the quorum. It is further laid down that no election of a president should take place unless a quorum was present. On the 7th May, 1959 this Rule was taken out and s. limited interim order was issued. Before however the interim order could be served, on the 8th May, 1959 the election of the president was completed. The respondent No. 4 Hiralal Sardar was elected as the president of the union board by the unanimous vote of the 8 members who had been returned. Because of the interim order, further proceedings have been stayed, that is to say, the new president has not taken charge.

(3.) THE point taken in this application is that under the law, as it now stands, until all the 9 members representing the four wards had been elected, they could not function, and the election of a president could not take place. The petitioner was a member of the old board. He was a candidate for election as a member from ward No. 1. According to him, the union board consists of 9 members, and until all the members have been elected, the new board cannot function, and cannot proceed to elect a president. On the other hand, it is contended on behalf of the respondents that simply because the election from one ward has become in fructuous, it does not prevent the remaining members, who had been duly returned, from functioning and proceeding to elect a president. Before I proceed further, I might mention as to why this second election has not yet been made effective. As I have stated above, according to the rules, if the election goes into the next year, then it can only be made after the electoral roll has been revised. That will take time and consequently the election of the member from ward No. 1 has been unavoidably postponed and the election cannot take place for a considerable time to come. There is no doubt that this is a point of some importance and I find that it is also one of first impression.