1. This Rule was obtained by the petitioner, Ram Chandra Sha, against an order of a Subordinate Judge, Alipore, dismissing his suit for setting aside an election held in Ward No. 1 of the Kamarhati Municipality.
2. The ground on which the election was. sought to be set aside was that the nomination paper filed by the petitioner was wrongly rejected'. The defect in the nomination paper which was relied on by the learned Subordinate Judge in support of his judgment is that against the name of the candidate, the name of the proposer and the name of the seconder the word 'mill' was used instead of word 'male'. In the Kamarhati Municipality there are only two rolls kept one for male voters and another for female voters. There is no roll kept in the Kamarhati Municipality of 'mill' voters. The numbers in the electoral roll of the candidate, the proposer and the seconder were correctly given. It is obvious that the word 'mill' was a clerical mistake for the word 'male'. There could be no doubt about the identity of the candidate, of the proposer and of the seconder. The ground therefore on which the learned Subordinate Judge upheld the rejection of the nomination paper cannot be sustained.
3. Mr. Apurbadhan Mukherjee appearing for the opposite parties contended that under- Section 38 of the Municipal Act the petitioner has got to show that the result of the electionwas materially affected by reason of the erroneous rejection of the nomination paper of the petitioner. Mr. Mukherjee submits that what the petitioner is required to do was to submit a list of persons who would have voted for him. If this were the rule, the result would be that the secrecy of the ballot would be affected. When a person's nomination paper is rejected the effect is that the voters are precluded from exercising their right to return that person at the election. It is difficult to say that in a case like this, the result of the election was not affected, as the petitioner might have been one of the successful candidates. In cases like the present, one must infer that the absence of a candidate at the election necessarily affected the result of the election which was held. I see no force in the contention raised by Mr. Mukherjee.
4. The result therefore is that this Rule must be made absolute. The order of the learned Subordinate Judge is set aside and a fresh election in Ward No. 1 of the Kamarhati Municipality should now be held after due formalities, as required by the Act, have been issued.
5. The Rule is accordingly made absolute with costs.
6. I agree.