1. This appeal is on behalf of the plaintiff and arises out of a suit instituted by him for a declaration that the appointment of defendants 2 to 6 as members of the District Board of Jessore was illegal and ultra vires, and for an injunction restraining them from functioning as such members. The Province of Bengal was joined as defendant 1 on the allegation that the appointment in question had been made by that authority. The learned Munsif of Jessore who tried the suit in the first instance gave the plaintiff a decree. On appeal the learned District Judge has set aside that decree and upheld the appointment of defendants 2 to 6 as members of the District Board. Hence the present appeal by the plaintiff. The question involved in this case turns on the construction of certain sections of the Bengal Local Self-Government Act of 1885 (Bengal Act 3 of 1885). By this enactment, provision is made for the constitution of District Boards and Local Boards in the Province of Bengal. Section 7 lays down that a District Board shall consist of such number of members, not being less than nine, as the Local Government may, by notification, fix in this behalf, and may include elected and appointed members. The elected members are returned by the various Local Boards functioning in the District. Paragraph 2 of Section 7 provides that when a Local Board has been established in any District, such Local Board shall be entitled to elect such proportion of the whole of the District Board as the Local Government shall from time to time direct. The remaining members are appointed by the Local Government.
2. The facts which are admitted in this case are that the Sadar Local Board of Jessore was re-constituted in September 1936 and thereupon it became its duty to take steps to elect the requisite number of members to be returned to the District Board. Provision is made for such election by rules framed by the Local Government in exercise of its powers under Section 138(a) of the Act. It so happened that for some reason or other, the Sadar Local Board failed to convene a special meeting as required by Rule 54(1) to elect such members. This brought into operation Sub-section (1) of Section 10 which says that, if within the time prescribed by the rules, the prescribed proportion of elected members of any District Board is not duly elected, the vacancy or vacancies shall be filled by another election to be held on such date as the Local Government may notify. Acting under this provision, the Local Government fixed 17th April 1937 for holding an election and the election was duly held. The result was that defendants 2 to 6 were returned as the successful candidates. The election, however, was not allowed to go unchallenged. Proceedings were instituted for setting it aside, and it is not disputed that these proceedings were taken under Section 18B of the Act which specifies the grounds on which the election of a returned candidate may be declared void. It will be seen that this section speaks of 'the election of a returned candidate' being declared void, not of setting aside an election in its entirety without reference to any specified candidate. This is, however, the only provision in the Act for calling in question the validity of an election. By the rules framed under Section 188 the Magistrate of the District has been appointed as the authority to decide all disputes relating to elections under the Act; and so the objections to the present election were preferred to the District Magistrate of Jessore. The District Magistrate in the result set aside the whole election, which must mean that he set aside the election of all the five returned candidates.
3. The question arises as to what was the proper procedure to be followed thereafter for the purpose of filling up the vacancies so created. The plaintiff's contention is that Section 19 indicates the correct procedure, in so far as it distinctly lays down inter alia that when the place of an elected member of a District Board becomes vacant by reason of his election having become void under Section 18B, a new member shall be elected to fill the place. And it is only if within the time prescribed by the rules, no new member is duly elected the Commissioner may appoint : a new member to fill the place. On behalf of the contesting defendants it is urged that the position which arose in this case was governed by Sub-section (2) of Section 10. This subsection provides that if for any reason the prescribed proportion of elected members is not filled at any election ordered by the Local Government under Sub-section (1) the Local Government may appoint a member or members to make up that proportion, and any person so appointed shall be deemed to be a duly elected member.
4. The Provincial Government in this case actually followed the latter procedure. The annulment of the election of the five candidates by the District Magistrate was regarded as having brought the contingency contemplated in Sub-section (2) of Section 10 into existence. In, other words, the Local Government considered that the ease was to be treated as one where the prescribed proportion of elected members had not been filled at the election held on 17th April 1937. The learned Munsif was of opinion that this was not the correct view. According to him the case was not one for action under Sub-section (2) of Section 10 at all, but under Section 19. In that view he decreed the suit. The learned District Judge, on the other hand was of opinion that the case fell under Sub-section (2) of Section 10 and not under Section 19.
5. Having considered the relevant provisions, I am inclined to agree with the learned Munsif. Sub-section (2) of Section 10, in my opinion, contemplates a default in electing the requisite number of members at an election directed by the Local Government under Sub-section (1), and does not apply where an election is held and the requisite number of successful candidates returned, but for any of the reasons specified in Section 18 B the election of the returned candidates is afterwards declared void. In such a case, as I understand the matter, it is not possible to predicate that the prescribed proportion of elected members was not filled at the election within the meaning of Sub-section (2). The Local Board here did hold an election on 17th April 1937, as ordered by the Local Government under Sub-section (1) of Section 10. That election purported to be held in accordance with rules prescribed under Section 138. The total number of members required to be returned was fully made up, and it is difficult to see how it can be said that the prescribed proportion of elected members was not filled at such election. It may be that the proceedings for setting aside the election before the District Magistrate commenced before the names of the elected members were published in the Calcutta Gazette under Rule 60, but there is nothing in the Act or in the rules to show that a person is not to be deemed to be duly elected until the publication of his name in the Gazette. There is no room, therefore, for an argument that because the names of defendants 2 to 6 had not been published in the Calcutta Gazette, their elections should be deemed not to have been held at all, and that from that point of view, there was such default on the part of the Local Board as to justify or call for action under Sub-section (2) of Section 10. Apart from this, the language used in Sub-section (2) of Section 10 should be observed. It does not say 'if the prescribed proportion of elected members is not duly elected,' but uses the words 'is not filled.' These words unquestionably refer to the stage at which the result of the election is declared, not necessarily to the later stage when the names of the returned candidates are officially published in the Gazette.
6. Where, therefore, the requisite number of seats have been actually filled at an election ordered under Sub-section (1) but the election of the returned candidate is subsequently set aside or declared void under Section 18B, the sequel, in my opinion, falls to be governed by the provisions of Section 19; in other words as the place of the elected member or members becomes vacant by reason op the election having become void under Section 18B, the vacancy or vacancies are required to be filled up by a fresh election, and it is not within the competence of Local Government, purporting to act under Sub-section (2) of Section 10, to dispense with such fresh election and appoint the elected members themselves. In so far as the Local Government did so in the present case, their action was clearly outside the four corners of the statute. I must hold, therefore, that the appointment of defendants 2 to 6 as members of the District Board, in consequence of their prior election having been set aside, was ultra vires. The plaintiff is, therefore, entitled to a decree that these defendants were not validly appointed as such members, and a perpetual injunction must go against them restraining them from functioning as such members. As to whether a fresh election may or may not be held now under Section 19, is a question on which I pronounce no opinion. The result is that this appeal is allowed, the judgment and decree of the learned District Judge are set aside and those of the learned Munsif restored. As there is no appearance on behalf of the defendants in this Court, I make no order for costs in this Court; but the appellant will 2 be entitled to his costs in the lower appellate Court.