1. The petitioner was a candidate for election to the Calcutta Corporation from the Mahomedan Constituency of Ward No. 25. There was only one vaqancy to be filled up from that ward. There were three candidates. The petitioner filed six nomination papers; they were all rejected at the scrutiny by the returning officer, Dr. S. Z. Ahmad, respon. dent 2 and respondent 1, Mr. Noor Maham-mad was elected Councillor defeating the other candidate, Mr. Mahammad Ali Khan. The respective number of votes obtained by each was 142 and 109 respectively. The petitioner seeks to set aside the election on the ground that the returning officer illegally and unfairly rejected his nomination paper. He alleges that the result of the election has been mate-rially affected by this illegal and wrongful rejection. The admitted and unchallenged facts are these. On 28th February 1944 the petitioner delivered to the returning officer six nomination papers. The returning officer received and marked them serially with the numbers 9 to 14. The proposers and seconders in the respective nomination papers were as follows:
No. 9-Proposer-Dr. K. Ahmed (beingelector No. 261)Seconder-S. Amir Hossain (beingelector no. 24)No. 10-Proposer-Shawkat Ali (being elec-tor No. 102)Seconder-Dr. K. Ahmed (beingelector No. 261)No. 11-Proposer-Dr. K. Ahmed (beingelector no. 261)Seconder-Sk. Ali Hossain (beingelector no. 157)No. 12-Proposer-Shawkat Ali (being elec-tor No. 102)Seconder-Dr. K. Ahmed (beingelector no. 261)No. 13-Proposer-S. Amir Hossain (beingelector no. 24)Seconder-Sk. Abdul Sovan (beingelector no. 248)No. 14-Proposer-Dr. K. Ahmed (being elec-tor NO. 261)Seconder-Shawkat Ali (being elec-tor no. 102 but wronglydescribed as No. 12 onthis nomination paper.)
It should be noted that in nomination paper No. 14 the Seconder's number in the electoral roll was given as 12 whereas in the electoral roll his number was 102.
2. At the time of scrutiny the returning officer; first took up nomination paper No. 14 and rejected it on the ground that the person whose number in the electoral roll was 12 was not Shawkat Ali but some one else. He purported to act under Rule 14 (1) (iv) of the rules framed by the Government under the Calcutta Municipal Act. He then took up nomination paper No. 9 and rejected it on the ground that K. Ahmed, the proposer named therein, had also subscribed his name as proposer in nomination paper No. 14. He held that there being only one vacancy a proposer was entitled to subscribe one nomination paper only under Rule 6 of the aforesaid rules and that consequently the nomination paper no. 9 waa also bad. Thereafter he took up the other nomination papers and rejected them on the same-ground. The first point urged by the petitioner is that nomination paper No. 9 having been first received by the returning officer it could not be rejected on the ground that the proposer had subscribed as proposer on another nomination paper inasmuch as a paper first received must be deemed to be valid so far as this defect is concerned. He relies on Rule14 (2) (b) which is in these terms:
Where a person has subscribed whether as proposer or seconder a larger number of nomination papers than there are vacancies to be filled, those of the papers so subscribed which have been first received, up to the number of vacancies to be filled, shall be deemed to be valid.
The Sub-rule is quite clear. If nomination paper No. 9 had been first received by the returning officer then, in spite of the fact that the same proposer had subscribed his name in the subsequently received nomination papers, that nomination paper must be deemed to be valid. The learned Advocate-General appearing for respondent 1 agrees that this must be so; but he contends that Sub-rule (2) (b) of Rule 14 cannot apply as all the nomination papers were made over to the returning officer by the candidate 'in a lump' and it was not possible to say that paper no. 9 was first received. If his view be correct then a candidate cannot avail himself of the benefit of this Sub-rule unless he hands over his nomination papers one after the other with an interval of time between each handing over. I cannot imagine that there could have been any such intention in the authority that made the rule. A candidate is allowed under the Act to deliver to the returning officer as many nomination papers as he chooses. If he has several nomination papers ready before going to the returning officer it would be but natural for him to make them over in one bundle to the returning officer. It would be unreasonable to hold that unless he made them over one after the other with a pause between each handing over he must be deprived of the benefit of Rule 14 (2) (b). It may be to avoid an argument of this nature that Rule 10 provides that on receiving a nomination paper the returning officer
shall enter on it its serial number and shall sign a certificate stating the date on which and the hour at which the nomination paper has been delivered to him.
Here the time of receipt entered on all the six nomination papers is the same. They were undoubtedly handed over in one bundle but the returning officer had to put serial numbers on them; the first serial number was No. 9 and it was put on the nomination paper under consideration. In my opinion although all the papers were delivered in a bunch it is just and reasonable to hold that the paper which bears the earliest serial number is the paper which was first received. Delivery and receipt are not the same thing. A thing is received when a person takes it with the intention of accept, ing it. The returning officer signifies his acceptance on receipt of a document when he puts a serial number on it. The receipt is complete when the serial number is put. After this the next document is taken up and the receipt is completed in the same way. In myr opinion although all the nomination papers were delivered in a bundle nomination paper No. 9 must be taken to have been first received for the purposes of Rule 14 (2) (b). That being so it is entitled to the benefit of that Rule and must be deemed to be valid in spite of the fact that the proposer named therein has subscribed his name as proposer in the other nomination papers received later. The returning officer was therefore wrong in rejecting this paper. I next take up for consideration the rejection of nomination paper No. 14. The returning officer has rejected it, purporting to act in accordance with the provisions of Rule 14 (1) (iv) which is as follows:
14. (1) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, refuse any nomination on any of the following grounds:
(iv) that the candidate or the proposer or seconder is not identical with the person whose electoral number is given in the nomination paper as the number of such candidate, proposer or seconder, as the case may be.
As stated before, the seconder Shawkat Ali's number in the electoral roll is 102 but in the nomination paper his electoral roll number was erroneously given as 12. It is not suggested that the seconder is not identical with Shawkat Ali. The one is identical with the other. It is nobody's case that the name of a fictitious seconder has been put on the nomination paper or that some one has personated some one else. Put shortly the nomination paper has been rejected because Shawkat Ali's roll number has been wrongly given or, as has been stated by the returning officer, because the 'number of the seconder as given in the nomination paper does not tally with his number in the electoral roll.' Now, does Rule 14 (1) (iv) direct a nomination paper to be rejected on a ground like this The learned Advocate-General argues that it does. I am unable to agree. The Sub-rule does not contemplate a case where a seconder is by mistake given a wrong electoral number in the nomination paper. It presupposes that the electoral number given in the nomination paper to the person named as seconder and the number of that person in the electoral roll tallies and enacts that if the seconder is not identical with the person who bears that electoral number then the nomination paper will be rejected; in other words, what the Rule provides is that if the person bearing that electoral number (and if I am right in my interpretation he will also bear the same name as that given in the nomination papers) comes forward and says he is not the seconder or if some one else proves that such person is not the Seconder the nomination paper will be rejected. The Sub-rule does not contemplate the rejection of a nomination paper merely because an erroneous number is given. I agree that the drafting of pule 14 (1) (iv) does not make its meaning very clear but I am convinced for the further reasons which I shall presently give that the meaning is as stated above and not as suggested by the returning officer and the learned Advocate-General. My reasons for holding that the Sub-rule is based on the presumption that there has been no mistake regarding the electoral number are based principally on Rule 9 which is as follows:
9. On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and numbers on the electoral roll of the candidate and his proposer and seconder as entered in the nomination paper are the same as those entered in the electoral roll. Where necessary he shall direct that the former be amended so as to be in accordance with the latter.
It shall be also competent for the returning officer to alter or amend any entry in the nomination paper presented to him with a view to ensuring accurate and adequate publication under Rule 10 of the names of candidates and of persons who have subscribed the nomination paper as proposer and seconder.
3. The section clearly lays a duty upon the returning officer at the time of receiving the nomination paper to satisfy himself that the electoral number is correctly given. If it is not correctly given it is his duty to direct the candidate to correct the mistake. If the candidate does not correct it or if he discovers the error when the candidate is not available he is given the power to make the correction himself. After making these corrections he is directed to publish a notice containing descriptions similar to those given in the nomination paper. The reason for having every thing corrected before publication is obvious. The voters and other candidates must have a correct statement of the names and numbers of the proposer, seconder and candidate in Order to decide as to whom they should give their votes and also to decide if they will take any objection at the time of the scrutiny. Rule 9 has been enacted to ensure that the names and electoral numbers shall be correct and shall tally before publication. Scrutiny and rejection come after publication. This stage is dealt with by Rule 14. The law always presumes that official duties are duly performed. Rule 14 must therefore be based on the presumption that the returning officer has done his duty in accordance with Rule. 9 and that he has satisfied himself that
the names and numbers on the electoral roll of the candidate and his proposer and seconder as entered in the nomination paper are the sane as those entered in the electoral roll.
I am here quoting the very words of Rule 9. If that be correct, can it be reasonable to inter, pret Rule 14 as directing the same returning officer to reject a nomination paper because the electoral number in the nomination paper does not tally with the electoral number in the electoral roll In other words can this Rule mean that the returning officer is to reject a nomination paper and debar a candidate from standing for election because he (the returning officer) has failed to perform the duties imposed upon him by the earlier Rule 9 Such an interpretation would be absurd. The absurdity of this construction can be demonstrated in another way. If this construction be adopted I would have to hold that the law has given the returning officer two conflicting directions, one to correct the erroneous electoral number in the nomination paper and another to reject the nomination paper because it contains an erroneous electoral number. In my opinion, an interpretation leading to this result is manifestly absurd. If the Sub-rule be carefully analysed it will, I think, be clear that this is not the meaning of the relevant words used. They are:..the seconder is not identical with the person whose electoral number is given in the nomination paper as the number of such ... seconder ....
4. If the Sub-rule intended to direct the rejection of a nomination paper on the ground of a mere error in the giving of the electoral number or if it contemplated such an error to be possible in spite of the provisions of Rule 9 it would have been framed thus '... the seconder is not identical with the person whose electoral number is the same as that given in the nomination paper as the number of such seconder.' The words used however are not these and to my mind the phraseology employed indicates that the identity of the person and not a mere error in the giving of his electoral number is the factor which the re. turning officer has to consider in deciding whether a paper should be rejected.
5. I hold, therefore, that nomination paper No. 14 has also been wrongly rejected. I may state at this stage that I am not prepared to accept the statement of the returning officer that he asked the petitioner to correct the electoral number and that the petitioner had refused. The petitioner denies this. It is highly improbable that a person would take the trouble to fill in six nomination papers and take them to the returning officer and then refuse to correct it when a mistake is pointed out to him and thus run the risk of getting that nomination rejected. The next and most important question to be decided is whether the election can be set aside because these nomination papers have been wrongly rejected. The learned Advocate-General draws my attention to Section 47 (1) (c) of the Act which is as follows:
47. (1) Save as hereinafter provided in this section, if in any proceeding duly instituted under Section 46, the High Court is of opinion that
(c) the result of the election has been materially affected by any irregularity in respect of a nomination paper, or by the improper reception or refusal of a vote, or, save as is provided in Section 46, by any non-compliance with the provisions of this Act or the rules made thereunder, or by any mistake in the use of any form annexed thereto, the election of the returned candidate shall be void.
He argues that it will not be enough for the petitioner to show a non-compliance with the provisions of the Act or rules thereunder on the part of the returning officer. He must show that the result of the election has been materially affected thereby. This is quite correct. Now, what has been the result of the returning officer's non-compliance with the rules made under this Act A person has been wrongfully and illegally excluded from contesting the election. Would the Court be entitled to be of opinion that this wrongful and illegal exclusion has materially affected the result of the election The learned Advocate-General says that it would not. The onus, he says, is on the petitioner to prove that res-pondent 1 would not have been elected but for this non-compliance.
6. Mr. Bose appearing for the petitioner argued that when the non,compliance is of a 'mandatory' provision then the Court must presume that the result of the election has been materially affected and he relied on 1. Shyam Chand v. Dacca Municipality ('20) 7 A.I.R. 1920 Cal. 669, where it was held that where there has been an infraction of a mandatory Rule the defendant who maintains the validity of the election in spite of such infraction must prove that the result of the election was not materially affected by the infraction. That decision was based on the principles laid down in Section 13, English Ballot Act, which is as follows:
13. No election shall be declared invalid by reason of a non-compliance with the rules contained in Schedule 1 to this Act, or any mistake in the use of the forms in Sch. 2 to this Act, if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance or mistake did not affect the result of the election.
This section lays down that once a non-compliance with the rules has been established the onus lies on the person seeking to maintain the validity of the election to prove that the non-compliance did not affect the result of the election. I agree with the learned Advocate-General that Section 47 (1) (c), Calcutta Municipal Act, is materially different from Section 13, Ballot Act. In our Act the onus is clearly put on the person seeking to set aside the election to satisfy the Court that the result of the election has been materially affected by the non-compliance. Learned counsel for the petitioner also referred to the Ahmad-nagore case (Khanna's Indian Election Cases,. Vol. 3, 24) for showing what was meant by the words 'materially affected.' It was held there that if it could be shown that the majority of the elected candidates would have been materially reduced if he had not resorted to corrupt practice, then it could be held that the result of the election had been materially affected. I do not think that the case is of much help as it dealt with corrupt practices. The Judges expressly state at p. 27 that they were not dealing with the meaning of the phrase 'materially affected' in Sub-section (1) (c) of Section 47 but with its meaning in Sub-section (1) (a). This case is concerned with Sub-section (1) (c). Some English decisions were also relied upon but I do not propose to deal with them as the English law is different from the law here. I prefer to come to my decision on the words of the section. The words used are 'result of the election' and 'materially affected.' Now, what is the result of an election The learned Advocate-General says that the 'result of the election' means the return of a candidate and nothing more. I am unable to agree. The result of an election certainly includes the return of a candidate and I will concede that this is one of the most important elements in the result but it does not constitute the whole result. In my opinion the 're-suit of the election' in its most comprehensive sense is the expression of the will or decision of the electorate. If A and B stand for election and A is elected the result of the election is the expression of the decision of the electorate that it prefers A to B. If A, B and C stand for election and if A is elected, is the result of the election the same? Superficially viewed it may be taken to be the same but the result-is essentially different. At this election the electorate expresses its decision that A is more fitted to be elected not only than B but also than c. If therefore C has been wrongfully and illegally excluded from contesting the election it follows that the result of the election has been materially affected. It is not necessary for c in such a case to show that the returned candidate would not have been returned.
7. The section does not say that the Court must be of opinion that the returned candidate would have been unseated. It does not say that the Court must be of opinion that the result of the election would have been materially different, it says that 'the result of the election has been materially affected.' In my opinion a decision that A is better than B is not the same as a decision that A is better than B and C. If C comes into the competition the result of the competition must, at any rate, be considered as being materially affected if not materially different. I may add that even if the words in the section had been 'materially different' my decision would have been the same in view of my interpretation of the words 'result of the election.' If any other view be taken, it would amount to putting an impossible burden on an unsuccessful candidate to discharge. No Court will construe a section as giving a person a right and at the same time imposing such conditions on that person as would render it impossible for him to realise that right. If a person has been illegally prevented from standing for election by reason of a non-compliance with the rules it is impossible for him to prove that the returned candidate would not have been returned without holding a mimic election in Court. His difficulties would be still further increased if there were three candidates standing for election. Voting is to be in secret and it could never have been intended that persons should come to Court land declare for whom they would vote. There can hardly be a more just ground for setting aside an election than the ground that a per-son has been illegally and wrongfully depriv-ed of the right to contest the election.
8. In my view, the result of the election has been materially affected by the wrongful and illegal rejection of the nomination papers of the petitioner and it must therefore be set aside. There remains another question for decision. Mr. B. C. Ghose argues that the returning officer cannot be made a party to an election petition and he relies on Cal. 230, Mahomed Hossain v. Mahomed Raffique : AIR1941Cal130 , The case, however, in my opinion does not decide this. The headnote is not accurate. It was held by McNair J. in that case that the allegations made against the returning officer had not been established and in this view he held that the returning officer should not have been made a party (see bottom of p. 235 and the top of p. 236). I can see no principle underlying the contention that in no case should a returning officer be made a party respondent to an election petition. If allegations are made against the returning officer challenging the correctness of his con-duct and challenging his bona fides, it seems to me that the proper course would be to make him a respondent. The view I have held is supported by the observations made in vol. 12, p. 395, Salisbury's Laws of England, Edn. 2 (Lord Hailsham). This is that what is stated at paragraph 782:
Where an election petition complains of the conduct of a returning officer, he will, for all the pur-posea of the Act, except as regards the admission of respondents in his place,, be deemed to be a respondent. The allegation against the returning officer need not necessarily be one of wilful misconduct, and he may be joined as a respondent where the acts or omissions or negligence complained of are not personal but are those of his subordinates.
A petition complaining of an undue election or return of a member who has since died may be brought, notwithstanding his death.
In this case the returning officer, in my opinion, is a very necessary party. His conduct, to say the least, has been extraordinary. He fails to carry out the duties imposed upon him under Rule 9. After failing to perform his duties he takes up nomination paper no. 14 first instead of nomination paper no 9. If he took up nomination paper No. 9 first he would have had to accept it as it contained no error regarding the electoral number and as it was not otherwise bad, he cannot give any acceptable explanation of why he took up nomination paper No. 14 before nomination paper No. 9. He says that nomination paper no. 14 was on the top; if it was on the top and he took that paper first because it was on the top then one would expect that the next paper which he would take up would not be nomination paper NO. 9 but nomination paper No. 13. Now, if he had taken up nomination paper No. 13 after nomination paper No. 14 he would have accepted it as it contained no error regarding the name or electoral number and as the names of the proposer and the seconder in that nomination paper were different from those named in nomination paper No. 14. That the same person has subscribed more than once would only be apparent if nomination paper no. 9 be taken up after nomination paper No. 14. These facts justify the petitioner in challenging the bona fides of the returning officer. I hold, therefore, that he is a necessary party and in the circumstances of this case I am of opinion that he should pay the costs of this application personally. I see no reason why the ratepayers money should be spent when the conduct of the returning officer has been indefensible. The respondent Noor Mahomed is also liable to pay the costs of this application. The election is accordingly set aside with costs against both the respondents. The costs will be as of a hearing.