- (1.)This writ petition has been filed by Sant Kumar and Abdul Rahman. They along with Prem Chand were declared elected in a three member Municipal Constituency of Tilhar on the 9th of November, 1964. Respondents Nos. 2 to 66 who were the electors in the ward filed an election petition alleging that the name of one of the candidates Mithlesh Kumar (respondent No. 68 to this writ petition) was not properly printed in the ballot paper with the result that a number of voters, were misled into believing that Mithlesh Kumar was not. a candidate and they did not vote for him. This materially affected the result of the election and prayed for the setting aside of the election. Several oilier points had also been raised but all of them have been negatived by the Tribunal and have no more been agitated in this Court. The Tribunal accepted this contention and has set aside the election on that ground alone. Against that order, the present writ petitions have been filed and the contention of the learned Counsel for the petitioner is that the mistake in the name of Mithlesh Kumar was not a material one and did not amount to "non-compliance with this Act or any sale or any error, irregularity or informality on the part of the officer or officers charged with carrying out of this Act or any rules", and, in any case, such non compliance or error, if any, has not materially a affected the result of the election within the meaning of Section 19(2)(b) of the U.P. Municipalities Act under which the election has been set aside.
(2.)The facts, which have given rise to this controversy, are not in dispute. At the election, Mithlesh Kumar received 750 votes while the successful candidates received votes as follows: Prem Chand 935, Sant Kumar 860 and Abdul Rahman 810. The name of Mithelesh Kumar was wrongly spelt in the ballot paper. Instead of being printed in Hindi as "Mithlesh Kumar" (sic) it was printed as "Midhalesh Kumar". (sic) The relevant part of rule 36, as it then stood, was as follows:
36 (1) Every ballot-paper shall be in such form and the particulars therein shall be in such language or languages as the Director may specify.

(2) The names of the candidates shall be arranged on the ballot paper in the same order in which they appear in the list of contesting candidates.

(3.)The contention on behalf of the petitioner is that this Sub-rule (2) of Rule 36 has not been complied with inasmuch as the name of the candidate Mithlesh Kumar was not printed in the ballot paper correctly. It is not denied that the name, as printed, was at proper serial number at which it ought to have been, as mentioned in Sub-rule (2) above. It is also admitted that the symbol which was given to this candidate was also printed along with this name in the ballot papers. The only mistake was in the spelling, as mentioned above. On these facts, it is quite clear that Mithlesh Kumar not having withdrawn from the contest and his name having occurred at the proper serial number in the ballot paper along with his special symbol, the name of the candidate had been printed on the ballot paper as required by the rule. The only mistake was that instead of "tha" in the middle of the name, the letter "dim" had been printed. In the figure of these two letters as also in the pronunciation of these letters there is not very much difference and on the basis of this mistake alone, we are unable to say that Rule 36(2) was not complied with.