- (1.) THIS is an application under Article 226 of the Constitution challenging the order of the Government dated the 15th July, 1961 whereby it was directed as follows: "the undersigned is directed to say that the Second Election of ward No. VIII of the Budge Budge municipality held under section 26 of the Bengal Municipal Act, 1932 was set aside by the Subordinate judge as a result of an election petition under section 36 of the Act. Section 42 of the Act, therefore, clearly applies and there should be a fresh Election as provided in the section. It is clear from section 42, read with section 58 of the Act, that this fresh election is of the nature of a by-election to fill a casual vacancy and not an election under section 26 so as to attract rule 46 of the West Bengal Municipal Election Rules, 1960. The fresh election should be held after revision of the electoral roll under rule 18 (2), unless this has been done already and after calling for fresh nominations. "
(2.) THE Chairman of the Budge budge Municipality has been informed. " this order is contained in a communication addressed by the deputy Secretary of the Government of West bengal to the Additional District magistrate, 24-Parganas, on the subject of Election of Ward No. VIII of the budge Budge Municipality. The petitioners challenge this order and direction. The facts on which the petition rests are simple. The last general election of Commissioners of Budge Budge municipality was fixed to be held on the 31st day of March, 1959. The elections in seven Wards of the Budge Budge municipality were duly held but election for Ward No. VIII could not be held on account of heavy rains and storm which damaged the polling booth. The natural storm followed by legal storm has now posed the present problem of municipal election. Rule 41 of the Rules for the election of Commissioners of Municipalities under the Bengal Municipal Act, 1932 corrected up to January, 1952 which governed this election provides: "a second election, under section 26 of the Act, shall begin at the stage from which the original election failed, e. g. , if the election failed at the time of polling a fresh poll only shall be held or if the election failed for want of candidates, fresh nominations shall be called for. "
(3.) THE new Rule is similar to this old one in material particulars, as will appear from Rule 46 of the new West bengal Election Rules of 1960. The election was again held on the 4th october, 1959 and it was contended at that time that this was held not with the original nomination papers and with the original Voters' List, but on the basis of fresh nomination papers which were called for and on the revised Voters' List. As a result of the election held on the 4th October, 1959 the petitioners lost and one Dr. Ratan Chandra Das and Kishori mohan Mandal were duly declared elected. This was followed by an election petition to the District Judge which was ultimately tried by the learned Subordinate Judge. After a full hearing of the election petition the learned Subordinate Judge on the 13th august, 1960, set aside the election held far Ward No. VIII. Thereupon on the 7th September, 1960 the Budge Municipality obtained a Civil Rule under article 226 of the Constitution for quashing the order of the learned Subordinate Judge setting aside the election. That Rule was ultimately discharged on the 5th April, 1961. This was followed by the Government order dated the 15th July, 1961 which I have quoted above, to hold the election of ward No. VIII as a casual vacancy. It is this order which is challenged. The petitioners still contend that the election should be held on the basis of old nomination papers filed in 1959 and that the present election of Ward No. VIII is part of the general election held on the 4th October, 1959.;