Nur Mohammed v. Khan Saheb S. M. Solaiman — 1944 DIGILAW 169 (CAL)

JUDGMENT Mitter, J. - The local Government by a notification, dated the 7th January, 1944, published in the Calcutta Gazette, fixed the 29th March, 1944, for the general election of the Corporation of Calcutta. The said notification contained other matters required to be stated by the provisions of the Calcutta Municipal Act (III of 1923) and the rules framed thereunder. Six persons including Noor Mohammed (the Appellant), Sulaiman (Respondent No. 1) and Mohammed Ali Khan, came forward as candidates for election from the Muhamedan Constituency of Ward No. 25. One seat is allotted to that constituency. On the 28th February, 1944, six nomination papers nominating Sulaiman were handed over in a bunch to the Returning Officer at 1-35 p.M. The Returning Officer received them and made upon them the endorsements, which he is required to make under Rule 10 of the rules made under sec. 30 of the Calcutta Municipal Act. The material portions of the said nomination papers are as follows:-- Serial No, as pat by Returning Officer Name of the Proposer His serial No. in the Electoral Roll. Name of the Seconder His Serial No. in the Electoral Roll. 9 Dr. K. Ahmed 261 S. Amir Hossain 24 10 Shawkat Ali 102 Dr. K. Ahmed 261 11 Dr. K. Ahmed 261 Sk. Ali Hossain 157 12 Shawkat Ali 102 Dr. K Ahmed 261 13 S. Amir Hossain 24 Sk. Abdul Sovan 248 14 Dr. K. Ahmed 261 Shawkat Ali 12 2. In the nomination paper numbered 14 by the Returning Officer the serial number of the electoral roll in respect of the seconder, Shawkat Ali, was wrongly stated. His real serial number was 102. Except Sk. Abdul Sovan, the others had subscribed, either as proposer or seconder, more than one nomination paper, which they could not do in view of Rule 6, as only one person had to be elected by that constituency. The scrutiny was held on the 3rd March, 1944, and all the six nomination papers of Sulaiman were rejected by the Returning Officer. The nomination paper first taken up for scrutiny was that numbered 14 by the Returning Officer on the date when he had received it, namely the 28th February, 1944. The scrutiny was held on the 3rd March, 1944, and all the six nomination papers of Sulaiman were rejected by the Returning Officer. The nomination paper first taken up for scrutiny was that numbered 14 by the Returning Officer on the date when he had received it, namely the 28th February, 1944. It was rejected by the Returning Officer as stated by him "under Rule 14 (iv) inasmuch as the seconder is not identical with the person whose electoral number is given in this nomination paper as the number of the seconder." The remaining five nomination papers were rejected on the ground that the same person had signed more than one nomination paper either as proposer or as seconder. As all the nomination papers of Sulaiman were rejected, the contest at the ensuing election held on the 29th March, 1944, was between Noor Mohammed and Mohammed Ali Khan, the other candidates having withdrawn. 142 votes were registered in favour of the former and 109 in favour of the latter, with the result that the former was declared elected by a notification published in the Calcutta Gazette on the 6th April, 1944. this Court was closed from the 5th April to the 14th April. It re-opened on Saturday, the 15th April, but according to practice the Judges sat in open Court for the first time after the re-opening on Monday the 17th April. On that date Sulaiman moved an application under sec. 46 of the Calcutta Municipal Act (hereafter called the Act) for having the election of the Appellant Noor Mohammed declared null and void. Although that application was filed beyond eight days from the date of the said publication in the Calcutta Gazette, the application was in time in view of the decisions in K. P. Sinha v. Jatindra Nath Biswas 41 C. W. N. 492 (1936) and Khirode Chandra Das v. Ramani Mohan Dhar I. L. R. 1937 2 Cal. 612 (1937). In fact no question of limitation was raised before our brother Sen or before us. That application was allowed by our brother Sen who, by his judgment dated 29th May, 1944, set aside the election and made the Returning Officer who had been made an Opposite Party in the application, personally liable for costs. Two appeals have been filed--No. 39 by Noor Mohammed and No. 40 by the Returning Officer. That application was allowed by our brother Sen who, by his judgment dated 29th May, 1944, set aside the election and made the Returning Officer who had been made an Opposite Party in the application, personally liable for costs. Two appeals have been filed--No. 39 by Noor Mohammed and No. 40 by the Returning Officer. The Respondent's Advocate has taken a preliminary objection in both the appeals. He contends that no appeal lies and so the judgment of our brother Sen is final. The decision given by a Division Bench of this Court in Dhirendra Kumar Mozumdar v. A. Latiff 45 C. W. N. 181 (1936) supports his contention. The Appellant's Advocates contend that that decision is wrong, as it has overlooked the principles laid down in a decision of the House of Lords and in a number of decisions of the Judicial Committee of the Privy Council. According to them, an appeal lies under cl. 15 of the Letters Patent. I may at once say that although I do not approve some of the reasons given in Dhirendra Kumar Mozumdar's case 45 C. W. N. 181 (1936), I agree with the conclusion arrived at therein. 3. It is well settled that where a right or liability is not a common law one but is the creation of a statute, the remedy provided by the statute is the only remedy available to a person with the result that if a special tribunal is by that statute appointed to give relief, the jurisdiction of that tribunal would be exclusive with the exception that ordinary Civil Courts would have jurisdiction to interfere in two classes of cases only, namely, where the provisions of the statute have not been complied with or where the statutory tribunal so appointed has not complied with fundamental principles of judicial procedure [Secretary of State for India v. Mask & Co. L. R. 67 I. A. 222 at 237 : s. c. 44 C. W. N. 706 (1940)]. It is not necessary to examine the decisions on that point. Some of the important ones are mentioned in the above-mentioned case and in the cases of Gopesh Chandra Aditya v. Benode Lal Das 40 C. W. N. 563. (1936). So far as India is concerned, the law is settled by the pronouncement of the Judicial Committee in the case of Secretary of State in Council v. Mask & Co. Some of the important ones are mentioned in the above-mentioned case and in the cases of Gopesh Chandra Aditya v. Benode Lal Das 40 C. W. N. 563. (1936). So far as India is concerned, the law is settled by the pronouncement of the Judicial Committee in the case of Secretary of State in Council v. Mask & Co. L. R. 67 I. A. 222 at 237 : s. c. 44 C. W. N. 706 (1940). That principle, however, would not solve the question of appeal, where the statute which creates the right or liability designates one of the ordinary Civil Courts as the tribunal to give relief. The Calcutta Municipal Act establishes the Municipal Corporation and creates the franchise. The tribunal set up by that Act to determine election cases would therefore have exclusive jurisdiction. But sec. 46of the Act makes the High Court the election tribunal. The principle above formulated would permit election cases to be tried by the High Court only and by no other Court--as for instance the Civil Courts of the Twenty-four Perganas, which have territorial jurisdiction over many wards, including Ward No. 25 of the Calcutta Corporation, would have no jurisdiction to entertain suits or proceedings concerning elections held under the provisions of the Calcutta Municipal Act. This is the only consequence of that principle and nothing more. The question whether an appeal would lie to a Division Bench of the High Court when an election case instituted in the High Court under sec. 46 of the Act is heard by a single Judge of that Court has to be decided on other principles. These other principles have been defined in the following cases:-- National Telephone Co., Ltd. v. Post Master General L. R. 1913 A. C. 546, Rangoon Botatoung Co. v. Collector of Rangoon L. R. 39 I. A. 197: s. c. I. L. R. 40 Cal. These other principles have been defined in the following cases:-- National Telephone Co., Ltd. v. Post Master General L. R. 1913 A. C. 546, Rangoon Botatoung Co. v. Collector of Rangoon L. R. 39 I. A. 197: s. c. I. L. R. 40 Cal. 21 (1912), Secretary of State for India v. Chelikani Rama Rao L. R. 43 I. A. 192 : s. c. 20 C. W. N. 1311 (1916), Maung Ba Thaw v. Ma Pin L.R. 61 I. A. 158: s. c. 38 C. W. N. 449 (1933), Shiromoni Sikh Gurdwara v. Ram Parsad Das L. R. 63 I. A. 180: s. c. 40 C. W. N. 610 (1935) and Hindusthan Co-operative Insurance Co., Ltd. v. Secretary of State for India L. R. 58 I. A. 259: s. c. 35 C. W. N. 794 (1931). The general principle has been laid down in the National Telephone Co., Ltd. v. Post Master General L. R. 1913 A. C. 546 which is the leading case on the subject, by Lord Parker of Waddington in the following terms: Where by statute matters are referred to the determination of a Court of record with no further provision, the necessary implication is, I think, that the court will determine the matters as a Court. Its jurisdiction is enlarged, but all the/incidents of that jurisdiction, including the right of appeal from its decision, remain the same. 4. The Lord Chancellor and other Law Lords used similar expressions. 5. This principle was applied in the cases of Chelikani Rama Rao L. R. 43 I. A. 192 : s. c. 20 C. W. N. 1311 (1916), Mating Ba Thaw L.R. 61 I. A. 158: s. c. 38 C. W. N. 449 (1933) and Shiromoni Sikh Gurdwara L. R. 63 I. A. 180: s. c. 40 C. W. N. 610 (1935). 6. The first case related to the Madras Forest Act (V of 1882). That Act gave the Governor power to declare by notification an area as reserved forest. It provided that persons who claimed any interest in land so reserved were to prove their claims before the Settlement Officer. An appeal was provided by the Act to the District Judge. There was no express provision for further appeal to the High Court from the order of the District Judge. The question was whether an appeal to the High Court against the District Judge's decision was competent. An appeal was provided by the Act to the District Judge. There was no express provision for further appeal to the High Court from the order of the District Judge. The question was whether an appeal to the High Court against the District Judge's decision was competent. Lord Shaw, in delivering judgment of the Board, distinguished Rangoon Botatoung Company's case L. R. 39 I. A. 197: s. c. I. L. R. 40 Cal. 21 (1912) and observed thus: The claim was the assertion of a legal right to possession of and property in land ; and if the ordinary courts of the country are seized of a dispute of that character, it would require, in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation. 7. He held that the appeal to the High Court was competent. In Mating Ba Thaw's case L. R. 61 I. A. 158: s. c. 38 C. W. N. 449 (1933) the question was whether an appeal to His Majesty in Council directed against an Appellate order passed by the High Court in a proceeding under sec. 4 of the Provincial Insolvency Act was competent. Lord Thankerton answered the question in the affirmative by simply referring to Chelikani Rama Rao's case L. R. 43 I. A. 192 : s. c. 20 C. W. N. 1311 (1916). In Shiromoni Sikh Gurdwara case L. R. 63 I. A. 180: s. c. 40 C. W. N. 610 (1935) the question was whether the appeal to His Majesty in Council was competent. Under sec. 12 of the Sikh Gurdwara Act (Punjab Act VIII of 1925) a tribunal (or more than one tribunal) is to be constituted by the Local Government. That tribunal is invested with the power of determining claims made in accordance with the provisions of that Act. Among the matters on which that tribunal could adjudicate were whether a religious institution was a Sikh Gurdwara and, if so, whether the properties claimed and included in the lists published by the Local Government under secs. 3and 7 (3) of the Act to be the properties of Sikh Gurdwara were really so. By the provisions of the Act the jurisdiction of the Civil Courts to entertain such matters was expressly barred after the Act had come into force. 3and 7 (3) of the Act to be the properties of Sikh Gurdwara were really so. By the provisions of the Act the jurisdiction of the Civil Courts to entertain such matters was expressly barred after the Act had come into force. Sec. 34 of the Act gave a party aggrieved by a final order of the tribunal determining any matter decided by it under the provisions of the Act a right to appeal to the High Court at Lahore. The Act was silent with regard to further appeal to His Majesty in Council. 8. Immediately after the Sikh Gurdwara Act had been passed, 64 Sikhs submitted a petition under sec. 7 (1) of that Act to the Local Government praying that a religious institution at Manak which generally went by the name of "Dera Bhai Prithi" be declared a Sikh Gurdwara, whereupon a notification was issued by the Punjab Government under sec. 7 (5) of that Act. In pursuance of the notification 83 persons presented a petition under sec. 8, praying that the Dera be not declared a Sikh Gurdwara. This petition was forwarded by the Local Government to the tribunal constituted under sec. 12 of that Act. That tribunal, by a majority of two to one, held the religious institution to be a Sikh Gurdwara. The appeal to the High Court provided for by sec. 34 of the Act was heard by two Judges who held that the institution was not a Sikh Gurdwara, but was a place of worship of Udasis who were not Sikhs. Leave was granted by the High Court to appeal to His Majesty in Council under cl. 29 of the Letters Patent of the Punjab High Court. At the hearing before the Judicial Committee the Respondents took a preliminary objection to the competency of appeal to His Majesty in Council and prayed for revocation of the certificate given by the High Court. Mr. DeGruyther, appearing for the Respondents, referred amongst other cases to Rangoon Botatoung Company's case L. R. 39 I. A. 197: s. c. I. L. R. 40 Cal. 21 (1912), the case of Hindusthan Co-operative Insurance Company L. R. 58 I. A. 259: s. c. 35 C. W. N. 794 (1931) and the case of the Municipal Corporation of Rangoon v. M.A. Shakur I. L. R. 3 Rang. 21 (1912), the case of Hindusthan Co-operative Insurance Company L. R. 58 I. A. 259: s. c. 35 C. W. N. 794 (1931) and the case of the Municipal Corporation of Rangoon v. M.A. Shakur I. L. R. 3 Rang. 259 : s. c. 35 C. W. N. 794 (1931) for the purpose of distinguishing the National Telephone Company's case L. R. 1913 A. C. 546. Mr. Dunne who appeared for the Appellant laid emphasis upon two points: (1) that the case involved the determination of the rights of the Sikh Community in regard to the temple and these rights were not the result of creation by the Sikh Gurdwara Act, but had existed apart from it, and (2) that the proceedings before the tribunal set up by the said Act were in substance suits. 9. On these two grounds he attempted to meet the argument advanced in support of the preliminary objection and to distinguish the cases cited in support of it, especially the case of Rangoon Botatoung Company L. R. 39 I. A. 197: s. c. I. L. R. 40 Cal. 21 (1912). 10. I have set out the facts and arguments in detail, for in my judgment they throw a good deal of light on some of the observations of the Right Hon'ble Sir George Rankin, who delivered the judgment of the Board. 11. In dealing with the preliminary objection relating to the competency of the appeal to His Majesty in Council, Sir George Rankin pointed out at page 190 of the report the following things, namely: (1) that the tribunal was given the same powers as are vested in a Civil Court by the CPC [sec. 12 (9)]. (2) that the procedure was to be the procedure of the CPC [sec. 12 (11)]. (3) that the formal expression of its decision is described in the Act as a decree [sec. 12 (10)]. (4) that the matters on which the tribunal were to give decisions concerned questions relating to property, questions relating to compensation to superseded officers of a Gurdwara, and questions which concerned the nature of the trust under which the religious institution was held. From these premises he came to the conclusion that no special jurisdiction was conferred on the High Court under sec. 34 of the Act but that the jurisdiction conferred on the High Court by sec. From these premises he came to the conclusion that no special jurisdiction was conferred on the High Court under sec. 34 of the Act but that the jurisdiction conferred on the High Court by sec. 34 was intended to include the new subject-matter as part of the ordinary Appellate Jurisdiction of the High Court. This last-mentioned observation has to be taken in the light of the provisions of cl. 11 of the Letters Patent of the Punjab High Court. That clause makes the High Court a Court of Appeal not only from the Civil Courts of the Provinces of Punjab and Delhi and from all other Courts subject to its superintendence, but also invests it with Appellate Jurisdiction in such cases as may after the date of the publication of the Letters Patent be made subject to appeal to it by any law made by a competent legislative authority for India. At pages 191 and 192 of the report the Right Hon'ble Sir George Rankin again points out the nature of the question which would come up before the tribunal and concludes by making the following observations: Having regard to the character, the variety and the importance of the questions to be dealt with by a tribunal and to the terms in which the right of appeal to the High Court is provided by the section, their Lordships are of opinion that the provisions of the CPC with reference to appeals to His Majesty in Council apply to ; decrees of the High Court made u/s 34 of/the Sikh Gurdwara Act. 12. The reservation of opinion on the point in cases of appeals to the High Court under secs. 106 and 142 of that Act is also significant. Those sections occur in Part III of that Act, which deals with control of Gurdwaras through Boards and Managing Committees. A judicial commission is established and the function of that commission is to determine disputes between the Boards and the Managing Committees. Secs. 106 and 142 give a right of appeal to the High Court from decisions of the Judicial Commission. Part III concerns generally internal affairs of Gurdwaras and it may be that for that reason the question whether an appeal would he to His Majesty in Council against the decision of the High Court in these cases was reserved by his Lordship. 13. Part III concerns generally internal affairs of Gurdwaras and it may be that for that reason the question whether an appeal would he to His Majesty in Council against the decision of the High Court in these cases was reserved by his Lordship. 13. A consideration of these passages of the judgment, taken with the facts of the case and the arguments advanced before the Judicial Committee, lead me to the conclusion that the rule formulated in the National Telephone Company's case L. R. 1913 A. C. 546, as interpreted by the learned Advocates for the Appellants, is not of universal application. It can be said to be a general rule but I do not think its scope is as wide as is contended for by the Advocates for the Appellants appearing before us. That there are qualifications to the proposition "that as soon a matter reaches a Civil Court, the normal incidents of the procedure of Civil Courts is attracted including the general right of appeal" are indicated by their Lordships in The National Telephone Company's case L. R. 1913 A. C. 546 by the use of expression "without more" used in the judgment of the Lord Chancellor and expressions of like nature in the other judgments. Rangoon Botatoung Company's case L. R. 39 I. A. 197: s. c. I. L. R. 40 Cal. 21 (1912), where it was held that no appeal lay to His Majesty in Council, was distinguished in Chelikani Rama Rao's case L. R. 43 I. A. 192 : s. c. 20 C. W. N. 1311 (1916) on the basis of the nature of the dispute involved in the case, and in the Hindusthan Co-operative Insurance Society's case L. R. 58 I. A. 259: s. c. 35 C. W. N. 794 (1931), when dealing with question about the competency of an appeal to His Majesty in Council, a distinction was suggested by the Right Hon'ble Sir George Lowndes at page 268 of the report that there could be no appeal to His Majesty in Council against the decision of the Calcutta High Court under cl. 39 of the Letters Patent, of this Court as this Court had acquired the jurisdiction to hear the appeal from the decision of the Calcutta Improvement Tribunal not under cl. 39 of the Letters Patent, of this Court as this Court had acquired the jurisdiction to hear the appeal from the decision of the Calcutta Improvement Tribunal not under cl. 16 of the Letters Patent but under a Special Act, namely Act XVIII of 1911, inspite of the words of cl. 39 of the Letters Patent which gave a right of appeal to His Majesty in Council to a person against a final judgment, decree or order of this Court made on appeal. On a review of all the above-mentioned cases, the decision given by the House of Lords in the National Telephone Company's case L. R. 1913 A. C. 546 and those given by the Judicial Committee, I have come to the following conclusions, namely: (1) that the general rule is that when a matter reaches a Civil Court, the procedure of Civil Courts would be attracted including the provisions regulating appeals from its judgments, decrees or orders, but (2) this general rule is applicable only when the matter comes to that Court as part of its ordinary jurisdiction and not by reason of a special jurisdiction having been conferred upon it : The last-mentioned proposition defines the precise scope of that principle. 14. The nature of the dispute would be a material factor to be taken into consideration in coming to the conclusion whether a special jurisdiction was intended to be conferred on the Civil Court. If the dispute relates to a right or liability which is itself the creation of the statute and which apart from the statute would not come within the jurisdiction of the Civil Court, the jurisdiction conferred by it on the Civil Court, be it the High Court or a subordinate Civil Court, to determine the said dispute would be considered to be a special jurisdiction. We are to see therefore whether sec. 46 of the Calcutta Municipal Act confers a special jurisdiction on the High Court or merely adds a new subject-matter as part of its ordinary jurisdiction or merely changes the procedure in respect of matters which it would have had jurisdiction to determine under the Letters Patent. 15. The Letters Patent confers on this Court, civil jurisdiction, criminal jurisdiction, admiralty jurisdiction, etc. We are concerned in this case with its original civil jurisdiction. It has also inherited whatever jurisdiction the Supreme Court had. 15. The Letters Patent confers on this Court, civil jurisdiction, criminal jurisdiction, admiralty jurisdiction, etc. We are concerned in this case with its original civil jurisdiction. It has also inherited whatever jurisdiction the Supreme Court had. The territorial limits of that jurisdiction is, however, confined within certain limits--the town of Calcutta proper, which is bounded by the river Hughli and the Maharatta Ditch, which roughly followed the site of the Circular Road. Cl. 11 of the Letters Patent provides that this Court is to have and exercise ordinary original civil jurisdiction within these limits till they are altered by a law passed by a competent legislative authority for India. Only one Act has been passed by the Central Government by which a small slice of land towards the northeast, roughly near the site of the Presidency General Hospital which is a little beyond the Circular Road has been included within its territorial jurisdiction. Cl. 12 of the Letters Patent gives it jurisdiction to determine suits where part of an immovable property is situate within its territorial limits or where part of the cause of action arose within those limits. The Calcutta Municipality covers a much larger area than Calcutta proper. In fact Ward No. 25 is outside it, being further south of Kidderpore. Sec. 46 of the Calcutta Municipal Act, however, confers jurisdiction on the High Court, even when the election is in respect of Wards beyond the territorial jurisdiction of the High Court as defined in cl. 11. 16. Under the general law a defeated candidate at a Municipal election or one whose nomination paper had been wrongly rejected by the Returning Officer would have the right to institute a suit to set aside the election, if the suit be not barred by any law. Sec. 9 of the CPC would make the suit maintainable and sec. 42 of the Specific Relief Act would furnish him with the cause of action [Sabhapat Singh v. Abdul Gaffur I. L. R. 24 Cal. 107 (1896) land the other cases reviewed in Gopesh Chandra Aditya v. Benod Lal Das 40 C. W. N. 553 (1936). But it is only a candidate who could institute such a suit under the general law, if the suit was not otherwise barred. 107 (1896) land the other cases reviewed in Gopesh Chandra Aditya v. Benod Lal Das 40 C. W. N. 553 (1936). But it is only a candidate who could institute such a suit under the general law, if the suit was not otherwise barred. Sec. 46 of the Calcutta Municipal Act is, however, of much wider scope, for it gives any person enrolled on the electoral roll the right to apply to this Court. I cannot therefore accept the argument of the Appellant's Advocates that sec. 46 has only changed the procedure by substituting an application for a plaint. A now right, a right in a body of persons, who would not have otherwise had the right to challenge the validity of an election in the High Court has been created by that section and that even when no part of the cause of action may have arisen within the territorial limits of Original Side of this Court. A special jurisdiction has thus been conferred on this Court by reason of that section of the Calcutta Municipal Act. Sec. 46 cannot, therefore, to paraphrase the words of the Right Hon'ble Sir George Rankin in the Sikh Gurdwara case L. R. 63 I. A. 180: s. c. 40 C. W. N. 610 (1935), be considered to have added "a new subject-matter as part of the ordinary original jurisdiction of this Court." Cl. 15 of the Letters Patent of this Court, which gives a right of appeal to a Division Bench of this Court from the judgment, decree or order of a single Judge of this Court exercising ordinary civil jurisdiction under the Letters Patent cannot accordingly be invoked. The same consideration which led the Right Hon'ble Sir George Lowndes to observe in the Hindusthan Co-operative Society's case L. R. 58 I. A. 259: s. c. 35 C. W. N. 794 (1931) that cl. 39 of the Letters Patent was not available to sustain an appeal to His Majesty in Council in that case would apply to cl. 15 of the Letters Patent. This is the principal ground on which I hold that no appeal lies to a Division Bench of this Court from the judgment of a single Judge of this Court pronounced on an application made under sec. 46 of the Calcutta Municipal Act. 15 of the Letters Patent. This is the principal ground on which I hold that no appeal lies to a Division Bench of this Court from the judgment of a single Judge of this Court pronounced on an application made under sec. 46 of the Calcutta Municipal Act. The observation of Panckridge, J., in Nier v. Reinhart 43 C. W. N. 697 at 729 (1938) is not inconsistent with the view I am taking, because in that case there could be no question of a special jurisdiction having been conferred on this Court by the Patent and Designs Act (II of 1911), for ever since its establishment this Court had the jurisdiction by reason of its Letters Patent to determine the matters which were involved in that case. By reason of secs. 22 and 24 of the Inventions and Designs Act (XV of 1859) the Supreme Court had jurisdiction to determine these matters and the Letters Patent has conferred on this Court all the jurisdiction, power and authority of the Supreme Court by the concluding portion of the second paragraph of the Letters Patent. The decision given in the Light of Asia Insurance Company, Ltd. 46 C. W. N. 441 (1941) really turned upon a different point. There an appeal to a Division Bench of this Court from a judgment of a single Judge was expressly provided for by sec. 153, sub-sec. (7) of the Indian Company's Act. It is really on this ground that Nasim Ali, J., rested his decision (see page 444 of the report). What followed was therefore obiter dicta. Assuming that these dicta have the effect attributed to them by the Advocates for the Appellants, they are not binding on us. 17. There is an additional reason for holding against the competency of appeals directed against the judgments of a single Judge of this Court pronounced on applications made under sec. 46 of the Calcutta Municipal Act. By providing for a very short period of limitation (eight days) for such applications, the Legislature has given some indication of its intention that election disputes should be speedily determined. Under the Calcutta Municipal Act a member of the Corporation holds his seat for a term, of three years. If an appeal lay to a Division Bench under cl. 15 of the Letters Patent, a further appeal would lie to His Majesty in Council under cl. Under the Calcutta Municipal Act a member of the Corporation holds his seat for a term, of three years. If an appeal lay to a Division Bench under cl. 15 of the Letters Patent, a further appeal would lie to His Majesty in Council under cl. 39 and it may be that before the final determination of the application made under sec. 46 of the Calcutta Municipal Act, the term of office of the successful candidate would expire and time for another election would arrive. In Appeal No. 4O which is by the Returning Officer, a special point has been raised. Our brother Sen held that he is a necessary party and has made him personally liable for costs. His appeal is directed against the order for costs. The special point urged is that he is not a necessary party and so the order for costs passed against him is without jurisdiction. As it is a nullity it can be set aside on appeal. This contention of the learned Advocate is based on another principle formulated in the National Telephone Company's case L. R. 1913 A. C. 546. That principle is that when a Court usurps jurisdiction on a matter and passes a decree or order, there is a right to appeal to a superior Court. It is doubtful whether this principle, would he applicable to the appeal before us, for the Court over which our brother Sen was presiding is not a Court subordinate to a Division Bench of the same Court, but I prefer to rest my decision on the ground that there was no usurpation of jurisdiction by our brother Sen. He had jurisdiction to entertain the application made under sec. 46 of the Calcutta Municipal Act and so had every jurisdiction to decide any and every question of law that cropped up. The question whether a Returning Officer is a necessary party to that application when his conduct is impeached by the applicant is a question which arose in the proceedings before him and his decision on the point can at most be said to be an erroneous decision on a point of law. 18. I accordingly hold that both the appeals are incompetent. 19. In the view I have taken about the competency of the appeals it is not necessary to decide the questions bearing upon the merits. 18. I accordingly hold that both the appeals are incompetent. 19. In the view I have taken about the competency of the appeals it is not necessary to decide the questions bearing upon the merits. I, however, proceed to express my opinion thereon shortly. Those questions in Appeal No. 39 are (i) whether the nomination of the Respondent had been improperly rejected by the Returning Officer; (ii) if so, can the election be set aside in the absence of any proof that the result of the election has been materially affected by reason of the improper rejection of the nomination; (iii) if not, are there materials on the record on which a finding to the effect that the result of the election has been materially affected by reason of the improper rejection of the nomination can be arrived at. 20. The questions involved in Appeal No. 40 are: (i) whether the Returning Officer is a necessary party to an application made under sec. 46 of the Calcutta Municipal Act, when his conduct is impeached, and (ii) if he is a necessary party, whether the facts proved justify the order for costs passed against him. Appeal No. 39. 21. I have already stated that Respondent No. 1 delivered to the Returning Officer six nomination papers in a bunch. Each of those nomination papers contravened rule 6 of the rules framed by the Provincial Government under sec. 30. (I) (a) of the Act, as the same person except Sovan, had subscribed more than one nomination paper either as proposer or as seconder. The nomination paper bearing serial number 14 suffered from another defect, namely, the number of the seconder, as given therein, did not tally with his number as appearing in the electoral roll. 22. At the time of the scrutiny the Returning Officer first considered serial number 14. He rejected it on the ground that the number of the seconder, as appearing therein, did not tally with that given in the electoral roll. Then he took up for consideration serial Nos. 9 to 13 in that order and rejected them on the ground that they contravened rule 6. But for rule 14 (2) (b) no exception could have been taken to his action. That sub-rule however provides that. Then he took up for consideration serial Nos. 9 to 13 in that order and rejected them on the ground that they contravened rule 6. But for rule 14 (2) (b) no exception could have been taken to his action. That sub-rule however provides that. 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. 23. The questions therefore are: (1) which one of the six nomination papers can be said to have been first received, and (2) whether the aforesaid defect in serial No. 14 is a fatal one. 24. Rule 5 provides for delivery of nomination papers to the Returning Officer. On presentation of a nomination he is required by paragraph 1 of rule 9 to compare the names and numbers of the candidate, his proposer and his seconder as given in the nomination paper with those given in the electoral roll. If he finds any discrepancy, he is required to direct the necessary amendments in the nomination paper, obviously by the man who had presented them, so as to make the nomination paper agree with the electoral roll. On receiving a nomination paper he is required to put on it a serial number and to sign a certificate thereon stating the date and hour of its delivery to him. He is also required to cause to be affixed in some conspicuous place a notice of the nomination containing descriptions similar to those contained in the nomination paper, both of the candidate and of the persons who had subscribed the nomination paper as proposer and seconder. The 2nd paragraph of rule 9 authorises the Returning Officer to correct "any entry in a nomination presented to him" with a view to ensure accurate and adequate publication of the names of candidates and of the proposer and the seconder. Though the word "names" only has been used in this paragraph I think that in view of the object for which corrections are to be made by him as expressed in the rule, the said paragraph gives authority to the Returning Officer to correct any inaccuracy in a nomination paper. Though the word "names" only has been used in this paragraph I think that in view of the object for which corrections are to be made by him as expressed in the rule, the said paragraph gives authority to the Returning Officer to correct any inaccuracy in a nomination paper. If he finds that the number as stated in the nomination paper does not tally with that stated in the electoral roll, he himself is to correct it, if he had omitted to ask the person presenting it to correct the discrepancy, or if it had not been corrected for any other reason. 25. I think that the word "deliver" used in rule 5 means the same as the act of presentation--the physical act of handing over to the Returning Officer and the word "receive" has been used to designate the act of acceptance by him. When several nomination papers are handed over in a bunch, there would be one act of delivery, but it would not necessarily follow that there would be only one act of receipt on the part of the Returning Officer. In view of what the Returning Officer is required by rule 10 to do in respect of each nomination paper, he would in normal course take the nomination papers from the bunch one by one and in view of the ordinary course of human conduct, that one of the bunch which bears the lowest serial number would be taken to have been first received by him. The presumption in the case before us is, therefore, that the nomination paper bearing serial No. 9 had been first received by the Returning Officer. I do not consider that this presumption has been rebutted by sufficient and credible evidence. There is no defect so far as this nomination paper is concerned, save and except that it contravened rule 6, because both the proposer and seconder had subscribed other nomination papers, but rule 14 (2) (b) makes that nomination valid. I further consider rule 14 to be mandatory. This finding is sufficient to sustain the finding of our brother Sen that the Respondent's nomination had been improperly rejected by the Returning officer. 26. The wrong number of the seconder as given in the nomination paper No. 14 is a technical and not a substantial defect, for it could have been collected under rule 9. This finding is sufficient to sustain the finding of our brother Sen that the Respondent's nomination had been improperly rejected by the Returning officer. 26. The wrong number of the seconder as given in the nomination paper No. 14 is a technical and not a substantial defect, for it could have been collected under rule 9. The case in my judgment comes within rule 14 (4). The matters specifically mentioned in that sub-rule are only illustrative. I am further inclined to place the same construction on rule 14 (I) (iv) which our brother Sen has put upon it. 27. The next question is whether an applicant is required to prove that the result of the election had been materially affected in a case where he applies to set aside an election on the ground that a nomination had been improperly rejected. I agree that in these cases, where such proof is necessary, the burden of proof would be on the applicant. 28. Sec. 46 of the Act enumerates the grounds on which an application to set aside an election can be made. If that section stood alone, it would have followed that on establishment of any one of the grounds mentioned therein, the Court would have to set aside the election. But sec. 47 contains qualifications. The two sections must be read together and their combined effect is that the mere establishment of some of the grounds mentioned in sec. 46 would not entitle the applicant to a favourable order. In some cases at least he must show that the result of the election has been materially affected. It is equally clear that in some cases he would succeed straightaway without proving the further fact that the result of the election has been materially effected, as for instance when corrupt practice coming within Part I of Schedule II is established. 29. A comparison of the first paragraph of sec. 46 with sub-sec. (1) of sec. 47 reveals that the latter Joes not include all the cases mentioned in the former. For instance the case of an unqualified person standing for election is not dealt with in sec. 47 (1). It follows therefore that where the wrongful inclusion of a candidate is the ground for setting aside an election, the fact that the result of the election has been materially affected is not required to be proved. For instance the case of an unqualified person standing for election is not dealt with in sec. 47 (1). It follows therefore that where the wrongful inclusion of a candidate is the ground for setting aside an election, the fact that the result of the election has been materially affected is not required to be proved. The unqualified candidate need not be the successful candidate. The material fact is that he was allowed to stand and contest the election. It is necessary to see if the wrongful exclusion of a candidate from the election stands on the sane footing. To all appearances the two cases stand on the same footing but the question is, did the statute treat them in the same way? My answer is in the affirmative. 30. Sec. 46 mentions the following cases specifically, as available grounds for setting aside an election: (a) that a candidate allowed to stand for election had not the necessary qualification; (b) corrupt practice (i) by the candidate or by his agent or (ii) by any other person. (c) improper rejection of a nomination; (d) improper reception or improper refusal of a vote. 31. Then there are the general words "or any other cause." Sec. 47 deals specifically with (b) and (d), that is with corrupt practice and improper reception or rejection of a vote. The subject "irregularity of a nomination paper" mentioned in 47 (1) (c) relates to a nomination paper that had been received. The concluding portion of cl. (1) (c) of that section is couched in general and wide terms--non-compliance with the provisions of the Act or the rules (subject to an exception not material for this case) or the use of wrong forms it would be in my opinion legitimate to say that those general words have reference to "any other cause" mentioned in sec. 46 with the result that sec. 47 does not deal either with what I have enumerated as (a) or (c), the intention of the legislature being that in these two cases, as in the case of corrupt practices falling within Part I of Schedule II, no proof to the effect that the result of the election has been materially affected would be required to set aside the election. The conclusion I arrive at receives some support from the following consideration. 32. Under secs. The conclusion I arrive at receives some support from the following consideration. 32. Under secs. 64, 72A and 129A of the Government of India Act, 1919, the Governor-General in Council had published rules concerning election to the legislative bodies of the country--the Council of State, the Central Legislative Assembly and the Provincial Legislative Councils. Those rules relating to elections to the Bengal Legislative Council were published in the India Gazette under Notification No. F 213-V, dated the 30th July, 1923, in supersession of the rules published under Notification No. 767-F, dated the 27th July, 1920 and its amendments. Rule 44 of the rules published in 1923 relating to elections to the Bengal Legislative Council specified the grounds on which an election was to be set aside. They are as follows: (a) the election, of a returned candidate had been procured or induced, or the result of an election has been materially affected, by corrupt practice; or (b) any corrupt practice specified in Part I of Schedule V has been committed, or (c) the result of the election has been materially affected by the improper acceptance or refusal of a nomination or by improper reception or rejection of a vote, or the reception of any vote which is void or by the non-compliance with the provisions of the Act or the rules or the regulations made thereunder, or by any mistake in the use of any form annexed thereto; or (d) the election has not been a free election by reason of the large number of cases in which influence or bribery, within the meaning of either Part I or Part II of Schedule V, has been committed. 33. These rules had been published at the time of the passing of the Calcutta Municipal Act. It is apparent that sec. 47 of that Act has closely followed these rules. Only sub-r. (d) has not been embodied therein. There is, however, a significant omission in sec. 47 (1) (c). The subject "refusal of a nomination" which is in the Council Election Rules has been omitted from that sub-section of the Calcutta Municipal Act. This is not conclusive but it affords some indication that the Legislature did not intend to include the improper refusal of a nomination in sub-sec. (1) (c) of sec. 47. 34. 47 (1) (c). The subject "refusal of a nomination" which is in the Council Election Rules has been omitted from that sub-section of the Calcutta Municipal Act. This is not conclusive but it affords some indication that the Legislature did not intend to include the improper refusal of a nomination in sub-sec. (1) (c) of sec. 47. 34. In this view of the matter the question whether the result of the election which is in question before us has been materially affected or not becomes irrelevant. I would, however, express my opinion on the point. 35. In the Borough of Hackney's case 2 O'Malley and Hardcastle 77 (1874), which was a case where two polling booths out of nineteen had not been opened at all and three other polling booths had been kept open only for a part of the day, Grove, J., gave an interpretation to the phrase "result of the election has been affected" occurring in the Ballot Act. In his view the phrase "result of the election" did not mean the "return of the successful candidate." It meant the return of the candidate with a particular number of votes. On this view if the tribunal could come to the conclusion that the margin of majority would have been substantially reduced by reason of the irregularity complained of, it would be justified in holding that the result of the election had been affected. This is the view which our brother Sen has accepted. The interpretation given by Grove, J., however, was not accepted in Woodward v. Sarsons and Sadler (1875) L. R. 10 C. P. 733 and in Eastern Division of St. Clare's case 4 O'Malley and Hardcastle 164. Both those cases concerned improper rejection or reception of votes. It was laid down in both those cases that the aforesaid provision of the Ballot Act would be satisfied only if evidence of such a character was led from which the Court could come to the conclusion that the returned candidate would not have been returned but for the irregularity alleged and proved. I accept the view expressed in Woodward's (1875) L. R. 10 C. P. 733 and St. Clare's cases 4 O'Malley and Hardcastle 164. That is the test no doubt, but what evidence would be regarded as sufficient would depend upon the ground on which the election is challenged. I accept the view expressed in Woodward's (1875) L. R. 10 C. P. 733 and St. Clare's cases 4 O'Malley and Hardcastle 164. That is the test no doubt, but what evidence would be regarded as sufficient would depend upon the ground on which the election is challenged. In arriving at the relevant finding it would also be open to rely upon presumptions and inferences of fact which arise from other facts established or admitted. [Gobordhan Dass v. Lal Chand 1 Khanna's Election Cases p. 106 at 109]. In the case before us the candidate returned secured 142 votes and Muhamed Ali Khan secured 109 votes. The difference was only 33 votes. If the Respondent had been in the field, there would have been a triangular contest. In these circumstances it would not be wrong to infer that the result of the election would have been otherwise, if the nomination of the Respondent had not been improperly rejected. 36. As I hold against the Appellant both on the preliminary point and on the merits, this appeal has to be dismissed with costs including reserved costs to Respondent No. 1. Respondent No. 2 would bear his cost in this appeal. Certified for two Counsel. Appeal No. 40. 37. As no substantial relief can be claimed or given in an application made under sec. 46 of the Calcutta Municipal Act against the Returning Officer, prima facie he would not be a necessary party. It is admitted that when there is no complaint against his conduct, he is not a necessary party. It is on this basis that the Appellant's Advocate distinguishes the case of Mahamed Hossain v. Mahomed Raffique I. L. R. [1940] 2 Cal. 230. Our brother Sen has, however, held that he is a necessary party where his conduct is impeached and for supporting that view he has relied upon paragraph 782 of Volume XII of Halsbury's Laws of England, (2nd Edition). That passage is based on the statute law of England. Before 1868, Parliament itself through committees dealt with Parliamentary elections. In 1868 by the Parliamentary Election Act (31 and 32 Vict. Ch. 125) jurisdiction to deal with election petitions was for the first time conferred on the Courts of Common Pleas of England and Ireland. That passage is based on the statute law of England. Before 1868, Parliament itself through committees dealt with Parliamentary elections. In 1868 by the Parliamentary Election Act (31 and 32 Vict. Ch. 125) jurisdiction to deal with election petitions was for the first time conferred on the Courts of Common Pleas of England and Ireland. Sec. 51 of that Act provided that when an election petition complained of the conduct of a Returning Officer, "such Returning Officer shall for all the purposes of the Act. . . . be deemed to be a Respondent." The Tamworth case 1 O'Malley and Hardcastle 75 (1864) was decided in 1869 and the observation of Willes, J., made in the course of the proceedings and reported at page 77 of the report must be taken to have been made in view of what had been enacted in sec. 51 of the Parliamentary Elections Act of 1868. In the Municipal Corporation Act (45 and 46 Vict. Ch. 50) there is also an express provision to the effect that the Returning Officer may be made a party Respondent to an election petition, if there is a complaint in the petition against his conduct [sec. 88, sub-sec. (2)]. I do not therefore think that the practice prevailing in England is of any assistance to us. On the principle that a person is not a necessary party when no relief is claimed against him or when he has no interest in the eventual result of a judicial proceeding, I hold that a Returning Officer is not a necessary party to an application made under sec. 46 of the Calcutta Municipal Act, even when there is a complaint against his conduct. 38. Even on the view that the Returning Officer is a necessary party, I do not think that the evidence is sufficient to establish bad faith on his part. There is no rule that at the time of the scrutiny, the nomination paper first received at the time of delivery under rule 5 is to be taken up first for examination, and the order of receipt of the other nomination papers followed. What the Respondent had done was to examine the nomination paper bearing serial No. 14 first and then he took up not serial No. 13 but serial No. 9 and then proceeded in accordance with the serial numbers. What the Respondent had done was to examine the nomination paper bearing serial No. 14 first and then he took up not serial No. 13 but serial No. 9 and then proceeded in accordance with the serial numbers. There is no credible evidence coming from the side of the applicant that he protested to that procedure at the time of the scrutiny and that the Returning Officer, disregarding his protest, proceeded in that manner. I cannot place reliance upon paragraph 9 (c) of the petition wherein it is stated that the applicant took objection to that procedure. Two respectable persons, Mr. Syed Ibne Iman, a disinterested person, and Mr. Mehta, a solicitor of this Court and who had attended the scrutiny on behalf of Noor Mohamed, have sworn affidavits and have made statements therein which are inconsistent with the case that the applicant had raised his protest at the time of scrutiny. As I hold this appeal to be also incompetent, we cannot interfere with the order of costs passed against the Appellant by our learned brother Sen, although on the merits of that order my view is different. In these circumstances I do not pass any order for costs in this appeal in favour of the Petitioner Respondent. The result is that this appeal is dismissed but without costs. Sharpe, J. 39. Except with regard to one small point which will be indicated hereafter and in regard to which I feel some doubt. I agree with the views expressed and the conclusions reached by my learned brother and that these appeals should be dismissed. I wish however to say a few words in regard to certain arguments advanced relating to the competency of the appeals, which have, not been dealt with specifically in his judgment, and also on the merits of Appeal No. 39 of 1944. 40. In addition to the contention that the jurisdiction conferred by sec. 46 of the Calcutta Municipal Act, 1923, is outside the ordinary civil jurisdiction of the High Court under cl. 11 of the Letters Patent, a further argument was advanced by Mr. Bose for the Respondent that the Provincial Legislature is not competent under cl. 44 of the Letters Patent to add to or extend the jurisdiction of the High Court under the Letters Patent. Consequently, he contended, whatever jurisdiction has been given to the High Court by sec. 11 of the Letters Patent, a further argument was advanced by Mr. Bose for the Respondent that the Provincial Legislature is not competent under cl. 44 of the Letters Patent to add to or extend the jurisdiction of the High Court under the Letters Patent. Consequently, he contended, whatever jurisdiction has been given to the High Court by sec. 46 of the Calcutta Municipal Act (III of 1923) is a jurisdiction outside the Letters Patent, and therefore a special jurisdiction, and so the provisions of cl. 15 will not be attracted. The provisions of cl. 44 support the view that amendments or alterations of the Letters Patent may be made only by Central Legislature. Where, therefore, jurisdiction is conferred by an Act of the Provincial Legislature, even if such jurisdiction can be considered to be in extension of or in addition to the ordinary civil jurisdiction of the High Court, there seems to he some force in the contention that it is a special jurisdiction outside cl. 11 of the Letters Patent and that no appeal will lie unless expressly given by the statute by which such jurisdiction Is conferred. 41. Another argument advanced on behalf of the Appellant was based on the decision of a Division Bench of this Court in Appeal No. 51 of 1918, Tara Pada Chatterjee v. Mowdad Rahaman Appeal No. 51 of 1918. Unreported, to the effect that there was a right of appeal under cl. 15 of the Letters Patent against the decision of the judge of the High Court exercising original jurisdiction under sec. 56 of the Calcutta Municipal Act, 1899. In view of the decision, it was contended that a presumption should be drawn that the Legislature, when framing sec. 46 of the Calcutta Municipal Act. 1923, intended that there should be an appeal against an order of the Court under that section, since no express provision was made to the contrary, In support of this argument, Mr. Sinha for the Appellants, cited a passage in Maxwell's Interpretation of Statutes, 8th Ed., p. 269 and referred, to the decision in (sic) Cathcart, Ex parte Campbell [1870] 5 CA 703. The value of this argument is however considerably lessened by the fact that there has been a change in the wording of sec.46 of the present Act, from that used in sec. 56 of the former Act. The value of this argument is however considerably lessened by the fact that there has been a change in the wording of sec.46 of the present Act, from that used in sec. 56 of the former Act. For the words "a Judge of the High Court exercising original jurisdiction" the words "the High Court" have been substituted. It has been argued that the words now employed support this contention, since they remove all possibility of argument that the Court is a persona designate. This contention has some force, but the presumption suggested does not seem to be justified. The decision of Appeal from Original Order No. 51 of 1918 was not reported and knowledge of that decision by the Legislature cannot he assumed. It is at least a possible explanation that the Legislature intended to make provision for the decision of election petitions by more than one Judge, or that the Legislature considered that a decision by the High Court as opposed to a decision by a Judge of the High Court exercising original jurisdiction would not be open to appeal. If the Legislature intended that an appeal should lie, there seems no apparent object in making the change at all. In any event, these are all matters of conjecture and would not, I think, justify the drawing of any definite presumption or altering the conclusions already reached that the appeals are incompetent. 42. Coming now to the merits, the following questions arise for decision in Appeal No. 39 of 1944:-- (1) Whether the nomination papers of the Petitioner were improperly rejected. (2) Whether such rejection was on account of non-compliance, with the provisions of any rule framed under sec. 30 of the Calcutta Municipal Act, 1923, of a mandatory nature. (3) If so, whether such rejection alone will justify the setting aside of the election. (4) If the answer to (3) be in the negative, whether the result of the election has been materially affected by such rejection. 43. On behalf of the Appellant, it has been contended that there was no non-compliance with the rules and that the nomination papers were rightly rejected. (4) If the answer to (3) be in the negative, whether the result of the election has been materially affected by such rejection. 43. On behalf of the Appellant, it has been contended that there was no non-compliance with the rules and that the nomination papers were rightly rejected. So far as Nomination Paper 14 is concerned, it is contended that on the face of it, the provisions of rule 14 (1) (iv) were attracted and that the Returning Officer had no option but to reject this paper when this objection was taken before him. In this nomination paper, the electoral roll number of the seconder Shawkatali was given as 12, whereas it is admitted that his correct number was 102, as appeared in Nomination Papers Nos. 10 and 12, and also in another Nomination Paper belonging to another candidate. The view taken by our learned brother Sen was that the provisions of rule 14 (1) (iv) were applicable only to cases in which there was a dispute regarding the identity of the candidate, proposer or seconder, with the person described as such in the nomination paper, and although it is somewhat difficult on a plain reading of the rule as it stands to exclude the other view, viz., that the nomination paper is liable to be rejected if the person whose electoral roll number is given in the nomination paper is not identical with the candidate, proposer or seconder, as the case may be, I respectfully agree with his construction. The provisions of rule 9 of the rules framed under sec. 30 of the Calcutta Municipal Act appear to be sufficiently wide to ensure that before the stage of scrutiny is reached, there shall not be any discrepancy between the name of the person appearing as candidate, proposer or seconder and his number in the electoral roll. The first part of rule 9 is mandatory that the Returning Officer shall, where necessary, direct amendments to be made so as to remove any discrepancy, and although it is urged that the second part of that rule gives power to the Returning Officer to alter or amend the names only, I do not think this power is really so restricted. It is true that the rule specifies only alteration or amendment with a view to ensuring accurate and adequate publication under rule 10 of the names of the candidates and of persons who have subscribed the nomination paper as proposer and seconder, but the rule empowers him to alter or amend any entry, and unless the names and the numbers are reconciled, it is difficult to see how accurate publication of the names can be secured. The provisions of cl. (4) of rule 14 prohibit the rejection of any nomination paper on the ground of a slight technical defect when the identity of such person is satisfactorily established and this seems to give further clear indication that rule 14 (1) (iv) relates to a substantial objection that the real candidate, proposer or seconder, as the case may be, is not in fact the person whose name and number appear as such in the nomination paper. In actual fact, it has never been suggested throughout these proceedings that there was any doubt with regard to the identity of Shawkatali and I agree therefore that this nomination paper was improperly rejected 011 this ground. 44. The other nomination papers were rejected under the provisions of rule 14 (1) (iii) because of the alleged failure to comply with rule 6. In other words, because either the proposer or seconder had subscribed more than one nomination paper, and there was only one vacancy to be filled. Cl. (b) of sub-sec. (2) of rule 14 however provides:-- Where a person has subscribed whether as proposer or seconder a large number of nomination papers than there are vacancies to be filled, those of the papers so subscribed which hare been first received, up to the number of vacancies to be filled, shall be deemed to be valid. 45. The main controversy is with regard to the question whether on the facts of the present case it can be said that nomination paper No. 9 or any other nomination paper of the Petitioner was "first received." 46. It is admitted that all 6 nomination papers of the Petitioner were delivered to the Returning Officer under rule 5 in a bunch, and it is not contended that these were made over separately. It is admitted that all 6 nomination papers of the Petitioner were delivered to the Returning Officer under rule 5 in a bunch, and it is not contended that these were made over separately. On behalf of the Appellants it is suggested that receipt and delivery are simultaneous and that, in any event, when nomination papers are received, as these were, it is impossible to say which was "received first" so as to get the benefit of cl. (b) of sub-sec. (2) of rule 14. The view taken by our learned brother Sen was that the paper which bore the earliest serial number was the paper which was "first received" and, with respect, I agree that this view is correct. The receipt contemplated by rule 10 of the rules framed under sec. 30 of the Act appears to be an act subsequent to the delivery of rule 5 or the presentation of rule 9, and, in my view, the receipt will not be complete until after the action contemplated by rule 9 has been taken, and the Returning Officer, after scrutiny and removal of manifest defects, enters thereon the serial number and the date and hour of delivery. It seems most reasonable to suppose that nomination papers will ordinarily be delivered in a bunch and it would be an unreasonable interpretation in view of rule 14 (2) (b) that all such papers which had been subscribed more than once by any person as proposer or seconder would be automatically rejected. The entry of the serial number prescribed by rule 10 is to be made on receiving the nomination paper, and it seems a reasonable view that when, as in the present case, a number of nomination papers are delivered together, the order of receipt for the purpose of rule 14 (2) (b) should be considered to be the order in which the serial numbers have been given. In that view of the matter nomination paper No. 9 was improperly rejected on the ground that the proposer Dr. K. Ahmed had subscribed Nomination Paper No. 14 which had already been rejected. 47. Having reached the conclusion that Nomination Papers were improperly rejected on grounds specified in rule 14 (1) (iii) and (iv), the question arises whether this should be held to be merely non-obedience of a direction given by a rule framed under sec. K. Ahmed had subscribed Nomination Paper No. 14 which had already been rejected. 47. Having reached the conclusion that Nomination Papers were improperly rejected on grounds specified in rule 14 (1) (iii) and (iv), the question arises whether this should be held to be merely non-obedience of a direction given by a rule framed under sec. 30 of the Calcutta Municipal Act, 1923, as contemplated by sec. 46 (1) (c) of that Act or non-compliance with some mandatory rule. In my opinion, the answer to the first part of the question must be in the negative and to the second part in the affirmative. It is true that rule 14, as framed, gives a discretion to the Returning Officer to reject or accept any nomination paper, but rejection under that rule can be only on certain specific grounds, and if, as has been held, the grounds on which the rejection was ordered did not exist, the rejection becomes not merely non-obedience of directions but positive non-obedience of mandatory provisions. In the view that we have taken of the facts, there has, moreover, been non-obedience of the mandatory provisions of rule 14 (4) that "the Returning Officer shall not refuse any nomination paper on the ground of a slight technical defect.....when the identity of such person is satisfactorily established" and also of rule 14 (2) (b) which provides that "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." 48. Perhaps the most difficult question is whether such improper rejection of a nomination paper or papers on account of non-compliance with the provisions of some mandatory rule or rules will enable the election to be set aside or declared null and void under sec. 46 (2) of the Calcutta Municipal Act without showing also that the result of the election has been materially affected as required by sec, 47 (1) (c) of that Act. In this connection, it has to be remembered that provisions corresponding to sec, 47 did not appear in the previous Municipal Act, and that the grounds mentioned in sec. 46 of the present Act were formerly considered sufficient for setting aside an election or declaring an election to be null and void. In this connection, it has to be remembered that provisions corresponding to sec, 47 did not appear in the previous Municipal Act, and that the grounds mentioned in sec. 46 of the present Act were formerly considered sufficient for setting aside an election or declaring an election to be null and void. Sec. 47 does not stipulate that the grounds therein mentioned shall be the only grounds on which an election shall be void or declared void, but provides merely that if the High Court is of opinion that certain facts are proved "the election of the returned candidate shall be void." It is significant that whilst some of the grounds mentioned in sec. 46, on which an election petition may be made, have been included also in sec. 47 as grounds on which, if established, the election shall be void, sec. 47does not include specifically any reference to a "dispute as to whether any person whose name is published under sub-sec. (8) of sec. 29 is qualified to be elected a Councilor" or to "the improper rejection of a nomination." It is conceded by the learned Advocate-General that improper rejection of a nomination paper will not be covered by the words "any irregularity in respect of a nomination paper" and that the latter words refer to the nomination paper of a candidate who has been elected, but he has contended that improper rejection of a nomination paper will be covered by "any non-compliance with the provisions of this Act or the rules made thereunder" So too would "improper reception or refusal of a vote " which has been included both in sec. 46 and in sec. 47 (1) (c), and it seems therefore hardly permissible to suppose that the omission of the words "improper rejection of a nomination" from sec. 47 (1) (c)was accidental or that the legislature intended that this specific ground should be included in the general provision of "non-compliance with the provisions . . . . of the rules made thereunder." I agree therefore with the conclusion reached by my learned brother that the legislature did not intend to include the improper rejection of a nomination in sub-sec. (1) (c) of sec. 47 of the Calcutta Municipal Act and consequently that the improper rejection of a nomination paper on account of non-compliance with some mandatory rule will alone justify the setting aside of the election. 49. (1) (c) of sec. 47 of the Calcutta Municipal Act and consequently that the improper rejection of a nomination paper on account of non-compliance with some mandatory rule will alone justify the setting aside of the election. 49. In view of the decisions already reached, I need only add that if the answer to the last question had been in the negative instead of in the affirmative, I agree that the Petitioner would have had to establish not only that the majority by which the successful candidate had been returned would have been affected, but that the successful candidate would not in fact have been elected, had it not been for such improper rejection. In my view too, the onus of establishing this fact would have been on the Petitioner, though I feel some doubt whether that onus would have been sufficiently discharged by such presumptions or inferences as could be drawn from the facts of the present case. It is not however necessary to decide that question, and, as already stated, I concur in the order that Appeal No. 39 of 1944 should be dismissed with costs to Respondent No. 1 and that Respondent No. 2 should bear his own costs. So far as Appeal No. 40 of 1944 is concerned, I agree with the conclusions and findings of my learned brother and that that appeal should also be dismissed but without costs.