JUDGMENT 1. THIS is an appeal against an order of Basu, J., dated the 6th April, 1967 by which the Rule was made absolute, so far as it related to the appellant, amarendra Nath Sarkar, cancelling his co-option as a member of the bolepur Sriniketan Anchalic Parishad and consequential directions were given. The co-option of another respondent had also been challenged, but neither was it pressed in the court below nor before us, and it is not necessary to deal with the case of the said respondent. The facts in this case are briefly as follows: The respondent No. 1, Dr. Radha krishna Sinha, is a member of the West bengal Legislative Assembly elected from the Bolepur constituency and as such he is an ex officio member of the bolepur Sriniketan Anchalic Parishad. On or about the 10th September, 1964 the said Amarendra Nath Sarkar was co-opted as a member of the said Anchalic Parishad under paragraph (e) of section 52 (1) of the West Bengal Zilla parishads Act, 1963 (hereinafter refered, to as the "said Act"). On or about the 7th October, 1964 he was duly elected as the President of the said Anchalic Parishad. As such, he became an ex-officio member of the Birbhum Zilla parishad. He has been subsequently elected as the Vice-President of the said zilla Parishad. I have already stated that the co-option took place on the 10th september, 1964 and objection thereto was filed before the co-option was made, on the ground that the said Amarendra nath Sarkar was not a resident within the area of the said Parishad, but was a resident in the town of Bolepur. The co-option took place on the 10th September, 1964 and this was challenged on two grounds; the first being that the said Amarendra Nath Sarkar had not the requisite residential qualification and secondly that the co-option was not made in accordance with law. A demand for justice was made on the 19th September, 1964 and an application was made to this Court by the respondent no. 1 and a Rule was issued on 28th of September, 1964 upon the opposite parties to show cause why the co-option should not be set aside and for other reliefs. It is this Rule which was heard by Basu, J., and it succeeded so far as the said Amarendra Nath Sarkar is concerned, who has now appealed against the same. 1 and a Rule was issued on 28th of September, 1964 upon the opposite parties to show cause why the co-option should not be set aside and for other reliefs. It is this Rule which was heard by Basu, J., and it succeeded so far as the said Amarendra Nath Sarkar is concerned, who has now appealed against the same. It may be mentioned here that the period of membership will in any event expire in September 1968. The learned Judge in the Court below has held against the appellant on both the points. Upon the materials before him, the learned Judge has decided that in fact the appellant did not have the requisite residential qualification. The learned Judge has also held that the co-option of the appellant was not made in accordance with law. I shall deal with the second point first. The relevant provision as to co-option appears in section 52 (1) (e) of the said Act which is contained in Chapter VIII which deals with the constitution of the Anchalic parishad. The relevant part thereof runs as follows : "52. Subject to the provisions of sections 59 and 60, the following persons shall be members and associate member of the Anchalic Parishad, namely- (e) two persons who have knowledge of, or experience in, social work or rural development, having a place of residence within the block, co-opted by the members in such manner as may be prescribed." 2. THE relevant rule is Rule 80 of the West Bengal Zilla Parishad (Election, Constitution and Administration) Rules, 1964 (hereinafter referred to as the "said Rules"). The relevant part thereof is set out below : "80. (1) As soon as possible after receipt from the Block Development officer of a list of elected, ex-officio, appointed and associate members of the Anchalic Parishad, the Sub-divisional Magistrate shall call a meeting of the members for co-opting for the anchalic Parishad two persons who have knowledge of, and experience in, social work or rural development, by causing a written notice thereof in form 14 to be served on each such member at least ten days before the date fixed for the purpose. (2) The meeting shall be presided over by an officer not below the rank of a gazetted officer authorised in this behalf in Form 15 by the Sub-divisional, Magistrate. (2) The meeting shall be presided over by an officer not below the rank of a gazetted officer authorised in this behalf in Form 15 by the Sub-divisional, Magistrate. (3) At the meeting particulars of the persons proposed for co-option shall be furnished in Form 26 to the Presiding Officer by the members proposing and seconding such person. The presiding Officer shall read out the particulars of the persons proposed. The Presiding Officer shall, if the number of persons proposed is two or less than two, declare in Form 17 such persons to be co-opted. (4) If the number of persons pro-posed is more than two the Presiding officer shall call upon the members to decide by open votes the co-option of the required number of persons and shall declare as co-opted the person or persons who have secured the largest number of votes. (5) The names of the co-opted persons with their addresses shall be communicated by the Presiding Officer to the Sub-divisional Magistrate and by the Sub-divisional Magistrate to the Block Development Officer." That the provisions of sub-rules (1) and (2) were complied with is not disputed. What happened in the meeting convened for the purpose of co-option is contained in the minutes kept by the presiding officer a copy whereof is Annexure "g" to the petition in the Court below and set out at pages 21 and 22 of the paper book. It appears therefrom that copies of Form mo. 26 were supplied to members who were willing to propose or second the names of persons to be co-opted. What happened thereafter is very peculiar find will appear from a copy of the said minutes set out below:- "3. Names of the following persons were proposed and seconded in form No. 26 (enclosed herewith marked "a") for casting the first vote. 1. Sri Amarendra Nath Sarkar. 2. Sri Tarak Ch. Dhar. 3. AS the members of persons proposed is more than one, the members were called upon to decide try casting open votes. The result of voting was as follows: names of the persons 1. Sri Amarendra Nath Sarkar -2. Sri Tarak Ch. Dhar – 4. AS Sri Amarendra Nath Sarkar secured the largest number of votes he was declared duly co-opted as member of the Bolpur-Srineketan Anchalik parishad in the first place. The result of voting was as follows: names of the persons 1. Sri Amarendra Nath Sarkar -2. Sri Tarak Ch. Dhar – 4. AS Sri Amarendra Nath Sarkar secured the largest number of votes he was declared duly co-opted as member of the Bolpur-Srineketan Anchalik parishad in the first place. Three objection petitions were received during meeting and filed along with proceedings (marked 'c) 5. NAMES of the following persons were proposed and seconded in Form no. 26 (Enclosed herewith marked "b") for casting the 2nd votes. 1. Sri Pasupati Ghosh. 2. Sri Jitendra Nath Mukherjee. 6. AS the number of persons pro posed is more than one, the members were called upon to decide by casting open votes. The result of voting was as follows: names of the persons 1. Sri Pasupati Ghosh -2. Sri Jitendra Nath Mukherjee - As Sri Pasupati Ghosh secured the largest number of votes, he wais declared duly co-option (sic) as member of the Bolpur, Srineketan Anchalik parishad in the 2nd phase." no. of votes cast in favour Sixteen Five. No. of votes cast in favour seventeen Six 4. The learned Judge in the court below has held that four persons were proposed for co-option and the Presiding Officer divided the same into two groups and offered them for vote in two groups. In group 1, Amarendra nath secured the larger vote and in group 2, Fashu Pati got the larger vote and they were both declared as coopted. The learned Judge held that the procedure adopted was not in accordance with law and is not cured by section 93 of the said Act. In our opinion the learned Judge was right in his decision. Section 52 (1) (e) has not divided the block into two constituencies. In the same constituency, two persons were to be co-opted. Co-option, therefore, would have to be simultaneous and it was not in accordance with law to divide the operation into two parts. The procedure to be adopted is made quite clear in Rule 8. First of all, the proposals are to be furnished in Form No. 26. If the number of persons proposed is two or less than two, then the persons proposed would at once be declared as co-opted and no voting is necessary; but if the number of persons proposed is more than two, then there would have to be open voting. First of all, the proposals are to be furnished in Form No. 26. If the number of persons proposed is two or less than two, then the persons proposed would at once be declared as co-opted and no voting is necessary; but if the number of persons proposed is more than two, then there would have to be open voting. Obviously, if the operation of voting is split up into two parts then the provisions contained in Rules 3 and 4 are rendered infructuous. In this case, when the first voting was called for, two names were proposed. But Rule 3 was not applied. In fact, it could not be applied because this splitting up of the vote into two operations was not contemplated either by the Act or the rules. If four persons were to be co-opted for two seats in the same constituency, obviously they must be put up for voting at one and the same time, otherwise there was no necessity at all of formulating rules 3 and 4. Division into two blocks was therefore unwarranted. The learned Judge has rightly pointed out that the voters in one bloc could not make a comparison with the persons put up for voting in the other bloc, and yet the voting was for two seats in the same constituency. In our opinion, the procedure adopted was not in accordance with law and cannot be supported. Mr. Dutt has taken two preliminary points which do not appear to be of substance. Firstly, he argues that the matter is covered by section 102 of the said Act, and that the person complaining should have proceeded under that section by filing am election petition. In our opinion this point is not of substance because we are not concerned in this case with the 'election' of a member, but of co-option. Co-option may be called election in the larger sense, if we mean that wherever there is a vote, there is an election. The constitution of the an-chalik Parishad contained in Chapter viii itself contemplates two kinds of voting, one for the election of elected members, where the word "election" has been specifically used and voting for 'co-option' where the word 'co-opted' has been used. The constitution of the an-chalik Parishad contained in Chapter viii itself contemplates two kinds of voting, one for the election of elected members, where the word "election" has been specifically used and voting for 'co-option' where the word 'co-opted' has been used. In this context, it must be held that section 102 only relates to disputes arising as to the validity of an election under the said act and not to co-option. The second point that has been taken is that what has happened in this case is a mere irregularity and no prejudice has been caused. This point also is of no substance. As has been frequently pointed out, the right of franchise is entirely a creature of statute and has no existence in common law. Hence, the pro-decisions contained in the law which creates the right must be strictly followed. It has not been followed in this case and therefore, the learned judge was right in holding that it is not a mere irregularity. As regards prejudice, it is pointed out that the petitioner in the court below has not been prejudiced as he is merely an ex-offido member of the said Parishad. This also is not a valid argument. Where there is an election or co-option to a public body, every voter or member of the particular elected body has a right to see that those who are elected or co-opted have been elected or co-opted in accordance with law. Any infraction of the law, automatically causes prejudice. This point of law disposes of this case and it was not really necessary to go into the second point as to residential qualification. So far as residential qualification is concerned, the facts were certainly disputed. Mr. Dutt argued that in a writ application disputed facts should not be gone into. As a general rule it is correct. But it has also been held that it is not an absolute proposition that under no circumstances the court can go into a. question of fact if it is disputed. There is no doubt that the reasoning of the learned Judge is careful and cogent, and we are not prepared to upset the findings. If however the matter depended on this issue alone, we might have seriously examined the position as to whether the learned Judge should have avoided coming to any conclusion on a disputed question of fact. There is no doubt that the reasoning of the learned Judge is careful and cogent, and we are not prepared to upset the findings. If however the matter depended on this issue alone, we might have seriously examined the position as to whether the learned Judge should have avoided coming to any conclusion on a disputed question of fact. Under the circumstances however, we do not disturb the findings. The result is that this appeal fails and is dismissed, but there will be no order as to costs.