1. This is a reference made by the Commissioner of Benares under the Municipalities Act asking us for a decision as to whether Muhammad Ekram, who has been returned as a member of the Benares Municipal Board election, was qualified as voter. It is not the practice of this or any other Court to give a decree or pass an order or express an opinion on a reference when such decree, order or opinion must of necessity be infructuous. It is possible that there are other facts or considerations which have not been drawn to our attention which were present to the mind of the Commissioner and which led him to make this reference, but, as we are at present advised, we are unable to appreciate how any expression of our opinion on the question that has been referred would be otherwise than infructuous. Section 19 (2), Municipalities Act, says that
the election of any person as a member of Board shall not be questioned, (a) on the ground that the name of any person qualified to vote has been omitted from, or the name of any person not qualified to vote has been inserted in, the electoral roll or rolls.
2. There was formerly a second para. (6) to this subsection immediately following the one which we have quoted, which made a similar provision in regard to challenging the qualifications of a candidate. That para. 2 has been omitted, and para. (c) re-lettered as (b), and we have no reason to suppose that it was omitted for any other than the reason which is given to us, namely, that the qualifications of electors and of all candidates are now, at any rate for the purposes of the Benares Municipality, identical. It would, therefore, appear manifest that the election of a member of Board cannot now be questioned on the ground that he was not qualified to be a voter; or, in other words, that his name had wrongly found place on the list of electors passed by the revising authority and finally accepted by the District Magistrate. We use the word 'finally' in reference to Rule 13, Election Rules of 28th June 1928, which provides that the proceedings of the revising committee shall be submitted to the District Magistrate 'whose orders thereon shall be final.' It is agreed to by counsel on either side representing the parties before us that no question arises in this reference of the exercise within their authority of powers by the revising, committee or by the District Magistrate. In the presence of Section 19 (2) (a), Section 19 (2) (b) can have no application.
3. In view of the provisions we have quoted it appears manifest that whether or no Muhammad Ekram was qualified' or was not qualified to be placed on the roll of electors, his name being there and having been passed by the revising committee and the District Magistrate, its-inclusion cannot now be challenged, and no petition can be based on any allegation that he was unqualified. As, therefore, we are not at present advised as to the facts, it would make no difference whether we return an expression of opinion to the Commissioner that Muhammad Ekram was qualified or whether we return it in an adverse sense; in. either case the Commissioner would have to reject the petition in so far as it is based only on the allegation that the name of Muhammad Ekram was improperly included in the electoral roll, and on the consequential ground that he-was not therefore a qualified candidate. We have expressed our views above with some caution, for we do not find any reference to this aspect of the case in the order of the Commissioner. If in view of what we have said above he still-desires an answer to his question and desires to say anything to suggest that an expression of our opinion on this point could be given effect to, it will be open to him to again refer the matter to this Court. Let the return of this reply to the Commissioner be expedited.