JUDGMENT 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: "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: provided that no person who is not entitled to be elected as a member of the union board under section 7 shall be so appointed". 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. 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. 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. 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. 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. 3. MR. Roy Chaudhury appearing for the petitioner has formulated his case thus: He says that this union board has been constituted as consisting of 9 members. According to him, until and unless all the nine members are elected, it cannot be said that every part of the union board has been duly represented in the board and therefore the board cannot function. He urges that any other construction would give rise to injustice because the voters in ward No. 1 would go unrepresented for no fault of theirs, and would have no voice in the appointment of a president. He next refers me to section 8 and lays emphasis on the words "from among their own number", which according to him can only mean that before the election of a president has taken place, there must be a full com pelmet of members and nobody can-be left out. In my opinion, this is a possible point of view, but the matter cannot be decided merely by considering the justice or injustice of a particular situation. As has been repeatedly held, a right of franchise is not a common-law right but is a right given by statute. Therefore, the right itself, and its different attributes must be found within the four-corners of the statute. If there is any injustice occasioned by a particular set of circumstances, it is for the legislature to come to the relief. 4. COMING to the Act, I find that section 13 speaks of 'casual vacancies'. Therefore, the right itself, and its different attributes must be found within the four-corners of the statute. If there is any injustice occasioned by a particular set of circumstances, it is for the legislature to come to the relief. 4. COMING to the Act, I find that section 13 speaks of 'casual vacancies'. When the place of a member of a union board becomes vacant by his removal, resignation or death, a new member is to be elected, in the manner prescribed by rules framed under section 101. The contingency that arises under subsection (4) of section 6 does not come within the ambit of section 13, and therefore cannot be said to cause a casual vacancy. Where there is a casual vacancy, there is no difficulty. It would be absurd to argue that if there is a death, at certain point of time, of any member, then the board becomes functus-officie. Mr. Roy Chaudhury however has argued that the very fact that in this Act the contingency that arises under sub-section (4) of section 6 has not been declared as a casual vacancy, shows that it was not intended that under such circumstances the union board should function. He points out that in section 65 of the Calcutta Municipal Act. this very contingency has been provided for. There, it has been laid down that a contingency such as is contemplated by sub-section (4) of section 6, would also be treated as a casual vacancy. The provisions of the Bengal Municipal Act however stand more or less on the same footing as the Bengal Village Self-Government Act. In my opinion, this mere omission to include such a contingency within the ambit of section 13 does no1 establish that it was intended that when such an occasion arose, the remaining members duly elected were not to function. If the matter stood there, it would have to be said that there is undeniably much to be said on either side. On the one hand, it might be said with justification that a certain part of the union should not go unrepresented when the election of a president was taking place. On the other hand, it might equally be urged that for no fault of theirs, the duly elected members ought not to be prevented from functioning. On the one hand, it might be said with justification that a certain part of the union should not go unrepresented when the election of a president was taking place. On the other hand, it might equally be urged that for no fault of theirs, the duly elected members ought not to be prevented from functioning. It may so happen, as it has happened in this case, that for some unforeseen reason, the election of a particular ward is held up for an unconscionably long period. It may even happen that the second election may not take place for a year or more. It is certainly harsh lines that the duly elected members from the; rest of the constituencies should be rendered totally ineffective simply because the election has failed in one ward. The learned Government Pleader has however pointed out that there is a section in the Act which deals with the contingency and that is section 17 (C) of the Act. That provision runs as follows: "no act done or proceeding taken under this Act shall be questioned on the ground merely (a) the existence of any vacancy in, or any defect in the constitution of, the union board,, or (b) any defect or irregularity not affecting the merits of the case. " 5. THE learned Government Pleader argues that it is in contemplation of exactly such a situation as has arisen in this case that the Legislature has laid down that if by chance there occurs a vacancy in any of the seats of the board, or even if there is a difficulty in the constitution of the whole board, still, an act done or proceeding taken, should not be questioned on that ground. Some such provision exists in all municipal Acts. For example, in the Calcutta Municipal Act, 1951, there is a section which lays down that no act of a Standing Committee or a Special Committee shall be rendered invalid simply by reason of any defect in its constitution. The reason behind such a provision is that it would be difficult to conduct the municipal affairs of any place, if mere formal defects could render the actions of the municipal body illegal. Firstly, if that had been the law, the members or councilors would be exposed to great risks, and secondly, the rate-payers would suffer. 6. MR. The reason behind such a provision is that it would be difficult to conduct the municipal affairs of any place, if mere formal defects could render the actions of the municipal body illegal. Firstly, if that had been the law, the members or councilors would be exposed to great risks, and secondly, the rate-payers would suffer. 6. MR. Roy Chaudhury appearing on behalf of the petitioner however says that the word "vacancy" is inappropriate to the facts of the present case, because it must refer to a prior incumbent of the office, in whose absence there would be a vacancy. In other words, according to him, a Vacancy' is really another name for a casual vacancy. I am unable to accept this argument, which is not supported by the provisions of sub-section (4) of. section 6 itself, In sub-section (4) of section 6 it is provided that if on the date fixed for the election, the electors failed to elect any member, then the vacancy or vacancies shall be filled by another election. Here, there is no reference to any casual vacancy. I am unable to accept this interpretation of the wordings in section 17 (C) and must hold that the provisions of this section apply in all cases of vacancy, that is to say, wherever a seat is vacant and or not filled up. If this be the proper interpretation, as in my opinion it is, of the provisions of the Act, then it follows that the contingency that has arisen by reason of the postponement of the election of ward No. 1 does not affect the power of the remaining members to function, and they are entitled to proceed to elect their own president, Such an election would be saved by section 17 (C). I have already mentioned that Mr. Roy Chaudhury has referred me to the wording" of section 8, particularly to the phrase "own number". There is however no particular reason to connect this with there being, in all cases, a full complement of members. The Act contemplates cases where there are vacancies, casual or otherwise. In my opinion, section 8 does not indicate that the eight members who had been duly elected cannot proceed to elect their own president. There is however no particular reason to connect this with there being, in all cases, a full complement of members. The Act contemplates cases where there are vacancies, casual or otherwise. In my opinion, section 8 does not indicate that the eight members who had been duly elected cannot proceed to elect their own president. The result of holding that these elected members cannot function or proceed to elect their own president would be to attract the operation of section 11, which extends the terms of office of the members in the last union board up to the date of the first meeting of the newly elected members. Looking at section 11, I find that it speaks about "the date on which he district magistrate shall declare the board to be duly constituted". I do not find anywhere in the Act or in the Rules any provision for such a declaration. In the Rules I find that after the election has taken place, he district magistrate forwards the list of duly elected members to the Superintendent of the West Bengal Government Press for publication in the Calcutta Gazette and after such publication, he directs the Circle Officer or the appropriate officer to cause the election of the president to take place. As I have said, there is no provision for any 'declaration' by the district magistrate and this seems to be the defect in the Act and the Rules. In the absence of any specific provision in the Rules, I am inclined to hold that the very act of the district magistrate forwarding the names of the elected members for publication would amount to a declaration. I think however that a proper rule should be introduced, relating to such a declaration. Of course, it suits the petitioner if section 11 continues to apply, since he would remain on the saddle. I regret however that, in my opinion, there is no reason whatsoever to stop eight duly elected members from acting, or from preventing them from electing their president, and therefore there is no warrant for the old board to continue to exist until the second election in ward No. 1 takes place. In view of my decision on the merits of the case, it is scarcely necessary to deal with the preliminary points taken. I shall however deal with them briefly. The first preliminary point that is taken by Mr. In view of my decision on the merits of the case, it is scarcely necessary to deal with the preliminary points taken. I shall however deal with them briefly. The first preliminary point that is taken by Mr. Dutt is to the effect that the union board has not been made a party to this application. He points out that the union board is a statutory corporation and all legal actions must be taken in its name. In my opinion, there is not much substance in this preliminary point. According to the petitioner, the union board has not been duly constituted yet. On the other hand, his contention is that these eight elected members do not properly constitute the union board of Mayda. It is hardly to be expected therefore that; the union board should be made a party. 7. THE second preliminary point taken was by the learned Government Pleader, who points out to certain Rules promulgated by notifications and which are to be found at page 153 of the Union Board Manual. The Rules lay down that if any dispute arises as to the election of the president, the matter shall, within 30 days of the election, be referred to the district magistrate, who shall decide the same after giving notice to the parties concerned. From his decision, there is a further appeal to the Commissioner whose decision shall be first. Now that we find that the new president has been elected, undoubtedly this Rule comes into operation, and the proper step to be taken by the petitioner would have been to appeal to the district magistrate or to the Commissioner. However, when this application was made, the president had not been elected, and it is probably now too late to prefer such an appeal. In any event, as I have decided on the merits of the case, such an appeal would now be pointless. 8. IN my opinion, therefore, no reasons; have been shown in this application for my interference and the application should be dismissed. The Rule is therefore discharged. Interim order, if any, is vacated. There will be no order as to costs. Let the operation of this order Te-main stayed for four weeks from today to enable the petitioner to prefer an appeal, as prayed for. Further stay, if necessary, must be obtained from the Appeal Court if and when an appeal is preferred.