1. The facts in this case are shortly as follows : On or about the 25th February, 1935 the election in Wards Nos. I, II and III of Sree-bati Union Board wag held. On the 31st March 1955 the results were Published. There were objections to the election and on the 13th December, 1955 the election in Ward No in was set aside by the District Magistrate of Burdwan. On the Sth May 1956 the election in Ward No. I was likewise set aside by the Commissioner of Burdwan Division. It is unnecessary to give detailed particulars of what happened subsequently, but it is enough to state that on or about the 7th December, 1956 a bye-election in respect of Wards Nos. I and III was held and on the 14th February, 1957 the results were published. Thereafter notice was given by the Circle Officer fixing the election of the President on the 12th March, 1957. On the 11th March, 1957 the meeting was cancelled and another notice was given fixing the election for the 22nd March, 1957, On the 22nd March, 1957 the Presidential election was held and a President was elected.
2. In this Rule which was issued on the 18th April, 1957 the petitioner challenges the bye-election in the two Wards above mentioned and also the election of the President. With regard to the bye-election the objection is as follows. It is said that a bye-election can only take place under the provisions of Section 6 (4) of the Bengal Village Self Government Act. The relevant provision is as follows:
'If on the date fixed for the election, the electors of any union board fail to elect any member or members the vacancy or vacancies shall be filled by another election. If for any reason no member or members are elected at such second election, the vacancy or vacancies shall be filled by appointment by the District Magistrate; and any person so appointed shall be deemed to be a duly elected member: .....'.
3. Mr. Dutt appearing On behalf of the petitioner argues that in this case there was no failure to elect because the electors actually made an election which was found to be bad and was set aside. Reference has been made to Rules 26, 27 and 28 of the Rules framed under the Act and it is said that these rules support this contention. My attention was also drawn to similar expressions used in Section 8 (2) and Section 17 (2). The learned Government Pleader has taken the preliminary objection that an objection of this bind should first have been taken before the District Magistrate under Section 17(b) of the Act and that as the petitioner failed to exercise his alternative legal remedy, this application does not lie. Mr. Dutt has argued that in this case he is not raising any dispute as to the election of a member but that he is raising a dispute as to the election itself. In my opinion, the distinction is without a difference. If he is raising a dispute as to the election, that means he is raising a dispute as to the person elected in the election and I do not see why Section 17(b) is not attracted. In any event, I am unable to accept his interpretation of the provision of Section 6 (4) of the Act. There is nothing there to show that the expression 'fail to elect' only embraces a case where the electors did not in fact turn up at the election and thereby did not elect any member. The rules cited, namely. the rules Nos. 26, 27 and 28, instead of supporting the interpretation made by Mr Dutt destroy it. For example, Rule 28 states that where there is a second election under Section 6 (4). it will begin at the stage where it originally failed and it enumerates several stages of an election. If Section 6 (4) contemplated a total failure to elect any member or to hold any election, then there was no point in providing for an election in which a certain stage has been reached. Nor do the provisions of Sections 8 (2) and 17 (2) of the Act in any way support the Interpretation put forward by Mr. Dutt. In my opinion, the words 'fail to elect' in Sub-section 6 (4) of the Act means a failure to elect according to Law. An election which has not been held in accordance with law and therefore set aside is not an election at all and therefore if an election has been held Illegally then it cannot be said that the electors have elected anybody because the purported election is no election in the eye of law. Bye-elections are constantly held in institutions of this description and it could never have been the intention to provide for a case where there will be a total failure to elect which is very unlikely even, and not to provide for the eventuality of an election failing midway, which is what would happen in most instances. The Act and the Rules show that it was intended also to provide for cases where the election has failed midway, or for any reason whatsoever, and not merely in the instance where the electors have totally failed to turn up at the election and the election was consequently abandoned.
4. Coming to the second point, namely the election of the President, the learned Government Pleader has taken a preliminary objection which I think is fatal. According to Rules framed under the Act under Notification No. 908 L. S. G. dated the 8th July 1941, the following Rules have been framed.
'1. It any dispute arises as to the election or the President or the Vice-President of a Union Board the matter shall within thirty days from the date of the meeting at which such election took place, be referred to the District Magistrate who shall decide the same after giving notice to the parties concerned and after taking such evidence as may be produced.'
2. The decision of the District Magistrate shall, within thirty days from the date thereof, be subject to revision by the Commissioner whose decision shall be final'.
5. It is obvious that in view of this Rule the petitioner cannot be allowed to come straight to this Court by an application under Article 226 of the Constitution. Mr. Dutt argues that an alternative legal remedy is not an absolute bar. As I have pointed out before, franchise is a matter of Statute and where the Statute or the Rules made under it provide for a remedy, that must first be followed before coming up to this Court for a high prerogative writ. It is not as if this Court has no jurisdiction but under such circumstances it will not use it in favour of the petitioner if he has neglected to follow the procedure laid down, by the very law which has created the franchise.
6. Both the points therefore fail. The Ruleis therefore discharged. All interim orders arevacated. There will be no order as to costs.