Dave, J. - (1.) THIS is a first appeal under sec. 19 (2) of the Rajasthan Town Muncipalites Act, 1951, (which will hereafter be referred to as the Act) against the judgment and order of the learned District Judge, Merta, dated 11th May, 1956.
(2.) BEFORE coming to the question of law which has been raised in this appeal, it would be proper to set out a few facts which are no longer in dispute between the parties. The municipal election of ward No. 3 of Nagore town was held on 16. 1. 55. In that election petitioner Shri Aidan and non-petitioner, Shri Ramkrishna Kalla were rival candidates and there was a straight contest between the two. The result of the election was announced of 17-11 55 and non-petitioner was declared elected, since he secured 294 votes as against 137 votes polled in the petitioner's favour. The total number of votes polled were 487 but 56 of them were rejected as invalid. After this election, the petitioner filed an election petition in the court of the District Judge, Merta and non-petitioner's election was assailed on a number of grounds. The application was contested by the non-petitioner, whereupon 8 issued were framed, The learned Judge found that some of the allegations made by the petitioner were incorrect. At the same time it was found that the signatures of the voters were not taken on the counterfoils of the ballot papers, that in 459 ballot papers electoral roll numbers of the voters were written just below the numbers of the ballot papers and that these 459 ballot papers thus became invalid and should have been rejected. It was held by the learned Judge that only 28 votes polled were valid, but since 22 of these valid votes were cast in non-petitioner's favour and only six were given in favour of the petitioner, the non-petitioner had still a majority of 16 and so he was rightly declared elected. According to the learned Judge, the result of the election was not materially affected even though 459 ballot papers were invalid. He, therefore, dismissed the petitioner's application on 11. 5. 56. It is against this judgment that the present appeal has been filed. Although learned counsel for the appellant has raised many grounds in the memorandum of appeal, only two grounds have been urged by him at the time of arguments. In the first place, it is contended that the polling officer did not obtain the voter's signatures or marks on the counterfoils of voting papers and thus committed a breach of rule 28 (4) of the Rajasthan Town Municipal Election Rules, 1951 which will hereinafter be referred to as 'rules'. It is urged that the provision laid down in rule 28 (4) was meant to avoid false impersonations, that the polling officer tailed to observe the mandatory provision, that on account of his failure to obtain the voter's signatures or marks, it cannot be said how many cases of false impersonation took place during the course of this election and hence it must be held that the result of the election was materially affected. His next contention is that according to rule 33 (e) of the said 'rules' every ballot paper which bears any mark whereby a voter may be identified must be rejected by the polling officer, that in the present case 459 votes had become invalid on account of the polling officer's failure to observe the mandatory provision of this rule and for this reason also it must be held that the result of the election was materially affected. To begin with the first contention it would be proper to reproduce here rule 28 (4) which runs as follows: - "the Polling Officer shall dispose of any objections raised by candidates and when satisfied that the intending voter is entitled to vote and has not yet voted, shall initial the foil of a voting paper and after taking the voter's signature or mark on the counterfoil and endorsing the paper across the junction of the foil and counterfoil with a seal, give the foil to the voter and admit him to the polling room. " According to this provision it is certainly necessary for the polling officer that he should obtain the voter's signature or mark on the counterfoil of the ballot paper. It cannot, therefore, be denied that in failing to observe this rule in the present case the polling officer certainly committed an irregularity. But sec. 19 (5) of the Act provides that every error or irregularity on the part of the officers charged with carrying out the rules will not be enough to set aside the election. It should be further proved according to that section that the error was such that the result of the election was materially affected. The said section runs as follows; See. 19 (5): "if the validity of the election is brought in question only on the ground of an error by the officer or officers charged with carrying out the rules made under clause (b) of sub-section (2) of section 205 or of an irregularity or informality not corruptly caused, the Judge shall not set aside the election. " "explanation - The expression 'error' in this sub section does not include any breach of or any omission to carry out or any noncompliance with the provisions of this Act or the rules made thereunder whereby the result of election has been materially affected. " Learned counsel for the appellant has urged that the said error on the part of the polling officer might have given a chance of false impersonation to several voters, but this is only a surmise on his part and I find that the petitioner has not led any evidence to show that the result of the election was in fact materially affected on account of this error. A perusal of rule 28 (4), referred to above would show that it contemplates that if the candidates have any objection they should express them before the polling officer when voters go to exercise their votes. The rule further lays down a duty on the polling officer that if any objections are raised by the candidates, he should dispose them of and when he is satisfied that the intending voter is entitled to vote and has not voted, he should initial the foil of the voting paper and give it to the voter and admit him to the polling room. The rule thus no doubt requires that before giving the foil to the voter the polling officer should take the voter's signature or mark on the counterfoil and if he fails to obtain the voter's signature he commits an irregularity. But every error or irregularity does not invalidate an election unless the result of the election is materially affected by the error and hence the petitioner ought to have proved as a fact that so many cases of false impersonation actually took place on account of the error. The petitioner has nowhere stated in his application that when the polling officer was giving voting paper to the voters his attention was drawn towards the necessity of obtaining the voter's signature on the counterfoil. It appears that the petitioner himself was not aware of the irregularity at that time and he had no reason to apprehend that the above irregularity on the part of the polling officer was leading to false impersonation. It further appears from the judgment of the learned District Judge that the petitioner had pointed out only two cases of false impersonation and even those were taken as a separate ground for setting aside the election. It was not alleged if those two cases of false impersonation were due to this irregularity. So in the absence of any evidence it cannot be said that the said error or irregularity materially affected the result of the election. It was not enough for the appellant merely to point out an irregularity or illegality on the part of the returning officer and leave it for the court to infer that the result of the election was materially affected thereby. In Vashist Narain Sharma vs. Dev Chandra (1) it has been observed that the burden of proving that the result of the election has been materially affected is on the person who raises such an objection and since the appellant has failed to substantiate his allegation by definite evidence on this point, I think he cannot succeed on this score. Coming to the next contention it is urged by appellant's learned counsel that provision of rule 33 (e) was mandatory, that this provision has been made in order to maintain secrecy of ballot and since it was infringed by the polling officer, it should be held that there was no election according to law. Learned counsel has referred to Hari Vishnu Kantath vs. Ahmad Ishaque (2) in which it has been observed by their Lordships of the Supreme Court that 'the secrecy of voting of the essence of an election by ballot, this provision must be held to be mandatory, and the breach of it must entail rejection of the votes'. It is true that their lordships have made this remark while discussing rule 47 (1) (a) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951, but it applies with equal force to rule 33 (e) of the Rules. It is not contested by learned counsel for the respondent that the polling officer ought not to have written the electoral roll numbers of the voters on the ballot papers and that in doing so, an illegality was committed and also that 459 ballot papers had thus become invalid. Learned counsel for the respondent has, however, urged that the mere fact that the majority of votes had thus become invalid was not sufficient to set aside the election, because the appellant ought to have further proved that the result of the election was materially affected on account of this illegality. In support of his contention learned counsel has referred to Vashist Narain Sharma's case (2 ). He has drawn particular attention of this Court to the following observation. "but we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. This is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. " It may be pointed out that this observation was made in a case where a successful candidate had obtained 12868 votes. The next candidate had obtained 10996 votes and the fourth candidate whose nomination was said to have been improperly accepted and which was the basis of the election petition, had received 1983 votes. It would appear that in that case the number of voters who had exercised their votes was far in excess of the votes which were secured by respondent, Dudnath, about whom it was said that his nomination was improperly accepted and that the result of the election was materially affected thereby. In that case the vast majority of voters were not disfranchised. In the present case what has happened is that out of 487 votes, 459 became invalid because the polling officer wrote on the ballot papers the electoral roll numbers of the voters, whereby the voters could be identified. This means that 459 voters were in fact disfranchised on account of the illegality committed by the polling officer. In my opinion, it was not correct on the part of learned District Judge to hold that although 94% of the voters were disfranchised on account of the illegality on the part of the polling officer, still the result of the election was not materially affected. It was not proper to decide the case on the basis of the remaining 28 votes which represented hardly 6% of the actual votes polled. While dealing with the first point, I have myself held that every error on the part of the officer charged with the duty of carrying out the rules will not invalidate an election unless it is proved that it has materially affected the result of the election. But in a case where it is proved that more than one half of the total number of votes polled have become invalid on account of some error, it remains no longer necessary to prove further that the result of the election has been materially affected. If more than one half of the voters who have exercised their votes are disfranchised by an error of the officer, then it is clear without any further evidence that the result of the election has been materially affected because the majority of the electorate has not been able to express its voice and the very purpose of the election is defeated by the said mistake. It is one thing for a voter not to exercise his right to vote or to make his vote invalid by his mistake and it is very different thing when his vote is invalidated by reason of a mistake committed by an "officer charged with the duty of carrying out an election. In a case where more than one half of the voters, who have exercised their votes, are deprived of their right by an error on the part of the polling officer, there can be no doubt that the result of the election is materially affected because in that case it cannot be said what would have been the actual result if that majority had exercised its vote. To my mind, the rejection of 94% of the votes polled certainly affected the result of the election materially and the present election has remained no better that a farce. Learned counsel for the respondent has also referred to Jagdish Singh vs. Rudra Deolal (3 ). In that case it was held. "the fact that the result of an election has been materially affected by the improper acceptance of a nomination paper is a question of fact to be proved by the petitioner by affirmative evidence and to be decided in each case on the material on record and not on the basis of mere probabilities. In cannot be presumed that the votes given to the disqualified candidate would have come to the petitioner and the verdict of the electorate cannot be set aside on the basis of such probabilities. " It would be enough to say that this observation does not apply to the facts and circumstances of the present case. In the case before this Court it is crystal clear, as pointed out above, that about 94% of the voters who actually polled their votes have been disfranchised on account of the illegality committed by the polling officer and, therefore, it is self evident that the result of the election has been materially affected. In Upadhyay Ambika Prasad vs. Lakshmi Mohan Misra and Rai Sahib Ram Gopal Singh Chaudhury (4) a very substantial number of voters (515 out of 1731) were prevented from voting through the fault of the presiding officer who allowed the electoral roll numbers of the voters to be marked on the back of each ballot paper, whereby it was possible to ascertain the identity of the voters. It was held that the election was void. The present case is much stronger than the case cited above. It, therefore, seems to be a fit case in which the election must be set aside. The appeal is, therefore, allowed. The judgment of the learned District Judge, Merta, dated 11. 5. 56 is set aside. The appellant's election petition is allowed and respondent's election is set aside. In view of the fact that the mistake was committed by the polling officer and was pointed out in time by either party, they are left to bear their own costs throughout. . ;