Sulaiman, Ag. C.J.
1. This case has been referred by a learned Judge of this Court to a Bench of two Judges because it raises a novel point.
2. At a municipal election held at Chandausi there was a quadrangular contest between four candidates, who had all deposited Rs. 50 as security under Rule 22 of the Municipal Rules. The applicant Sahu Kalyan Das got less than the minimum fraction of the number of votes recorded which is prescribed by Rule 34. The election was objected to by another defeated candidate and was ultimately set aside by the Commissioner. The learned Commissioner held that the election must be quashed because there were no official marks on the ballot papers at all required by Rule 45 and the whole proceedings were accordingly void ab initio. Rule 45 is imperative and lays down that the ballot paper shall be rejected if it has not the official mark. As none of the ballot papers had any official mark, they were all rejected, and the whole election was set aside and a fresh election was ordered. The applicant applied to the Municipal Board for a refund of the amount of his deposit but his application was refused. He then filed a suit in the Court of Small Causes, and his suit has been dismissed on the ground that the deposit was rightly forfeited under Rule 34.
3. As the case is a Small Cause Court case we have power under Section 25 of the Act to revise the order if it is not according to law.
4. The forfeiture under Rule 34 follows automatically,
if a candidate is not elected and the number of votes polled by him does not exceed that fraction of the total number of votes polled which is obtained by dividing the fraction of 1/8th by the number of seats for which the election is being held.
5. In the present case none of the ballot papers was considered valid because it had no official mark. Accordingly all the ballot papers wore rejected as being invalid. Rule 34 also provides that the number of ballot papers shall be deemed to be the number of ballot papers other than 'spoiled' ballot papers and tendered ballot paper. It therefore follows that all the ballot papers were invalid and were therefore spoiled' ballot papers.
6. The learned Counsel for the parties have not drawn our attention to any rule where (Spoiled ballot paper has been defined. We therefore take it that a ballot paper which is rejected under Rule 45 must be a spoiled ballot paper. All the ballot papers being invalid there was no valid vote cast at all. lit is accordingly impossible to say that the applicant received less than the requisite minimum fraction of the total number of votes validly polled, as there was not a single valid vote cast. We are of opinion that there was no forfeiture of the deposit in this case. We must guard ourselves from being understood to hold that if an election is set aside on a ground personal to the elected candidate and a fresh election is ordered no forfeiture can in any, case take place.
7. The application is accordingly allowed and the decree of the Court below is set aside, and the plaintiff's suit for recovery of Rs. 50 is decreed with costs in both Courts.