JUDGMENT : Narasimham, C.J. - This is an application under Article 226 of the Constitution by one of the defeated candidates at the recent ejections to Cuttack Municipality, challenging the validity of the elections on the ground that there was contravention of the relevant provisions of the Orissa Municipal Act 1950 (Act XXIII of 1950), (hereinafter referred to as the Act) and the Orissa Municipal Ejection Rules, 1951 (hereinafter referred to as the Rules). Opposite parties 4 to 31 are the successful candidates in the said elections, and they are now functioning as Municipal Councilors. 2. The facts which may be taken as admitted by both parties are a follows-The previous elections to Cuttack Municipality took place sometime in 1951 and the holding of fresh elections to the Municipality was under the active consideration of Government, and the Dist. Magistrate of Cuttack from the later part of 1957. The first step in the holding of the new elections was the division of Cuttack Municipality into several wards under Sub-section (2) of Section 12 of the Act. The State Government, in the Health (L.S.G.) Department notification No. 4800 L.S.G. dated the 21st December, 1957, divided the Municipality into 26 wards and also fixed the number of Councilors to be elected from each ward. The second step was the preparation of the preliminary electoral roll and its due publication, for the prescribed period, for the purpose of inviting claims and objections. For that purpose the Election Officer, namely the Additional District Magistrate of Cuttack, took as his basis the revised current Legislative Assembly Electoral roll for Cuttack City Constituency mainly because, the age qualification was the same for both. Thus for the Legislative Assembly every 'person who has attained the age of 21 years on a date known as the "qualifying date" (see Section 14(b) of the Representation of the People Act, 1950) is eligible to be a voter provided he possesses the other qualifications prescribed by the statute. The qualifying date is the 1st March of the year in which the electoral rolls are prepared 01' revised. In the Act however such a date was not fixed by the statute itself, but Section 13 stated that every person who is not less than 21 years of age "on such date as may be fixed in that behalf by the State Government" shall be entitled to be registered as a voter. In the Act however such a date was not fixed by the statute itself, but Section 13 stated that every person who is not less than 21 years of age "on such date as may be fixed in that behalf by the State Government" shall be entitled to be registered as a voter. The Assembly roll was finally published on the 21st September, 1957 and the 1st of March 1957 was taken as the qualifying date for that purpose. The District Magistrate seems to have assumed that the same date may be taken as the qualifying date for the purpose of the Municipal Electoral 1011, also even though there was no express order of Government u/s 13 of the Act to that effect. Accordingly he prepared a revised preliminary Electoral roll for all the 26 wards and got it published at various conspicuous places in each ward for the information of the public on the 23rd December, 1957. Simultaneously with the publication of the preliminary Electoral roll, a notice was given to all persons to file claims and objections within a period of 21 days from the date of such publication i.e. on or before the 12th January, 1958. On the 2nd January, 1958, the Government issued a notification, No. 10 L.S.G. and published the same in the Orissa Gazette dated the 10th January, 1958 stating that the first day of March 1957 would be taken as the qualifying date, for the Municipal electoral rolls in Cuttack and other places. Some claims and objections were received in due course & they were either allowed or rejected & the preliminary electoral roll was finally published from the 4th February, 1958 to the 11th February 1958. Then nominations were called for on the 25th February 1958, the date for scrutiny of nominations was fixed as the 28th February, 1958, polling took place on the 15th March, 1958, and the counting of votes was done on the 17th March, 1958. The elections appear to have hotly contested; and in many wards the successful candidates succeeded by very narrow margins. Thus, in ward No. X the difference in the number of votes between the rival candidates was only 11, similarly in Ward No. XVIII it was only 21 and in Ward No. XXIV it was only 20. 3. The elections appear to have hotly contested; and in many wards the successful candidates succeeded by very narrow margins. Thus, in ward No. X the difference in the number of votes between the rival candidates was only 11, similarly in Ward No. XVIII it was only 21 and in Ward No. XXIV it was only 20. 3. The validity of the elections has been challenged on the following two important grounds: (i) u/s 13 of the Act the qualifying date should be fixed by the Government prior to the preparation of the preliminary electoral roll. In the instant case this date was fixed after the preliminary electoral roll had been published, with the result that adequate time was not given to many persons to file claims objections in respect of the age qualification. (ii) Under Clause (3) of Rule 22 of the Rules there should be an interval of not less than 15 days between the date of scrutiny of the nomination papers and the date of the election. Here admittedly there was an interval of 14 days only between the two dates. Hence this rule was contravened. 4. It is necessary now to refer to some of the important provisions of the Act and the Rules. 5. Sections 13 of the Act says that every person who is, (i) a citizen of India, (ii) a resident within the Municipality and, (iii) not less than 21 years of age on such date as may be fixed in that behalf by the State Government, shall be entitled to be registered as a voter at a Municipal election. Sections 14 and 15 refer to certain disqualifications of an elector. Thus the proviso to Sub-section (3) of Section 14 says that a person who is of unsound mind, deaf-mute and who is a leprosy or tuberculosis patient shall not be entitled to vote. His name also cannot be registered as a voter. Sub-section (2) of Section 15 says that if a person is convicted of an offence, under Ch. Thus the proviso to Sub-section (3) of Section 14 says that a person who is of unsound mind, deaf-mute and who is a leprosy or tuberculosis patient shall not be entitled to vote. His name also cannot be registered as a voter. Sub-section (2) of Section 15 says that if a person is convicted of an offence, under Ch. IX-A of the Indian Penal Code (offences relating to elections) and sentenced to imprisonment for a term exceeding 6 months he shall not be registered as a voter for a period of three years from the date of conviction and, if registered, his name shall be removed there from Section 14 says that an electoral roll for every Municipality showing the names of person qualified to vote therein shall be prepared and published in the prescribed manner. Rules 3 to 14 contain detailed provisions for the preparation and publication of such electoral rolls. Rule 3 says that a preliminary electoral roll shall be prepared in form No. I for each ward. In column 4 of that form the age of elector is required to be noted. Under Rules 6 the preliminary electoral roll should be duly published along with the notice in form No. II calling upon all persons to file their claims and so as to reach the Election Officer within 21 days from the date of publication. Form II further says that claims and objections received after that date will be rejected. Rules 8, 9, and 10 to 13 deal with the procedure to be followed by the Election Officer in hearing claims and objections and Rule 14 says that the final electoral roll shall be duly published, for a period of not less than 7 days. Rule 22 says that not less than 30 days before the date of election the Election Officer shall prepare and publish a notice, specifying amongst other particulars the date of filing of the nomination, the date of scrutiny, and the date of holding the elections. Clause (3) of that Rule says that the date of scrutiny of the nomination papers shall be not less than 15 days before the date of the elections. 6. It is perhaps too elementary that the qualifications of electors must be known prior to the preparation of the preliminary electoral roll. Clause (3) of that Rule says that the date of scrutiny of the nomination papers shall be not less than 15 days before the date of the elections. 6. It is perhaps too elementary that the qualifications of electors must be known prior to the preparation of the preliminary electoral roll. The age qualification being the most important qualification, the qualifying date required by Section 13 of the Act should be fixed by the Government, prior to the preparation of the preliminary electoral roll. One cannot obviously say whether a person has completed 21 years or not, without first knowing the qualifying date with reference to which his age is to b computed. Moreover, in column 4 of form I of the electoral roll, the age of the elector is required to be noted and without knowing the qualifying date, this column cannot be filled in. Either due to gross negligence or any other cause, both the Election Officer and the State Government appear to have overlooked this obvious fact. The Election Officer prepared a preliminary electoral roll, by adopting the Assembly electoral roll, and got it published on the 23rd December, 1957 calling upon all persons to file claims and objections on or before the 12th January, 1958. The mistake appears to have been noticed sometime later and, in haste, a notification was issued on the 2nd January, 1958 and published in the Orissa Gazette dated the 10th January, 1958 fixing the qualifying date. Hence the public or Cuttack can be reasonably expected to know, only on the 10th January, 1958 that the qualifying date for the purpose of ascertaining the age of an elector was fixed as the 1st March, 1957. But the preliminary electoral roll had already been published on the 23rd December, 1957 and the last date for filing claims and objections had been fixed to be the 12th January, 1958. But the preliminary electoral roll had already been published on the 23rd December, 1957 and the last date for filing claims and objections had been fixed to be the 12th January, 1958. Hence, if a person wanted to object to the inclusion of a particular elector on the ground that he did not attain the age of 21 on the 1st March, 1957 or wanted to get his own name entered as an elector on the ground that he had attained that age on that date, he had hardly two days time, from the 10th to 12th January, 1958, to file such objection or claim-though under Rule 7 he was entitled to 21 days time for that purpose. Doubtless, if the Rule had conferred a discretion on the Election Officer, in appropriate cases, to extend the time, this defeat may not be material. But Clause (e) of Rule 7 says that claims and objections received after the said period shall be rejected and in the notice in form II, the substance of this rule was also quoted. The net result, therefore is that on account of the belated fixing of the qualifying date by the Government, the period for filing claims and objections in respect of the age of a particular elector was, in effect, curtailed to two days only, notwithstanding the statutory requirement of 21 days. 7. In my opinion, this is a serious contravention of Sections 13 and 14 of the Act read with Rules 3, 6 and 7 of the Rules and must invalidate the elections. As pointed out by the Supreme Court in Prem Singh and Others Vs. Deputy Custodian General, Evacuee Property and Others, : it is of the essence of the elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained, it is necessary that after the preparation of the electoral roll an opportunity should be given to the parties concerned to scrutinise whether the persons enrolled as electors possess the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged, and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned. The curtailment of the period for filing claims and objections from the statutory limit of 21 days to 2 days will, in essence, amounts to deprivation of the right, to file claims and objections which must be fatal to the elections. 8. The learned Government Advocate, fairly conceded that the qualifying date ought to have been fixed prior to the preparation of the preliminary electoral roll, but he urged that the fixing of the same and its publication in the official gazette on the 10th January, 1958 did not materially affect the filing of claims and objections and that consequently it was a mere irregularity which may be cured by virtue of Sub-section (2) of Section 18 of the Act. In support of this contention he relied on two affidavits filed by one Sri Birakishore Mohanty, Sub-Deputy Collector in charge of elections in the Cuttack Collectorate. From these affidavits it appears that the total number of electors in the Cuttack Municipality in 1951 was 48, 270 and the total number of electors in the preliminary electoral roll (on the basis of the Assembly electoral roll) was 55, 546. The total number of electors as shown in the final electoral roll as published on the 4th February, 1958, was 58, 835. This would show that 3289 claims were allowed after the publication of the preliminary roll and were included in the final electoral roll. This officer further stated that between the 27th December 1957 and 9th January, 1958 many Applicant of the ages of 21 to 23 filed claims for inclusion of their names in the electoral roll and further added that even between 10th January, 1958 and 13th January, 1958 several applications were received. 9. I my opinion, these affidavits of Sri Birakishore Mohanty do not improve the position at all. He has not stated in his affidavits the grounds on which such claims for inclusion in the electoral roll were made. 9. I my opinion, these affidavits of Sri Birakishore Mohanty do not improve the position at all. He has not stated in his affidavits the grounds on which such claims for inclusion in the electoral roll were made. I have described the various statutory qualifications and disqualifications for the electors from which it would be clear that before allowing any claim or objection, the Election Officer has to consider, apart from the age qualification, other factors such as, (i) citizenship of India, (ii) residence within Cuttack Municipality, (iii) absence of disqualifying diseases like tuberculosis or leprosy, etc. and, (iv) absence of a conviction for a period not exceeding 6 months for an offence described in Chapter IX-A, Indian Penal Code. Unless this Court knows the grounds on which the claims were made and eventually allowed, it cannot be said with certainty that most of the claims were made on the basis of the age qualification. Moreover, the affidavits are completely silent as to whether any objections were preferred at all on the ground that a particular person whose name was entered in the electoral roll did not attain the age of 21 years on the 1st March, 1957. Such objections could not possibly have been filed before 10th January 1958 because till that date nobody knew what the qualifying date was. Sufficient time should have been given for bonafide objectors to scrutinise the preliminary electoral roll, make enquiries, and find out whether some of the persons entered therein did not possess the requisite age qualification. For that purpose two days interval is grossly inadequate, especially when the statutory requirement is 21 days. 10. Hence, on the basis of the affidavits of Sri Birakishore Mohanty it cannot be held that no prejudice was caused as regards filing of claims and objections with reference to the age qualification. 11. On the other hand the Petitioner has filed an affidavit of a medical practitioner of Cuttack town Sri Patita Paban Misra who was an active member of the Citizens Committee which put up several candidates during the Municipal elections and was also a candidate supported by that Committee. He stated that he took an active part in getting new voters enrolled for the elections and that if he had known about the qualifying date 15 days earlier he could easily have enrolled about 1000 voters most of whom were supporters of his party. He stated that he took an active part in getting new voters enrolled for the elections and that if he had known about the qualifying date 15 days earlier he could easily have enrolled about 1000 voters most of whom were supporters of his party. His respectability seems to be beyond question and there is no challenge to the statement contained in his affidavit. The fact that in many wards the contest was very keen and the successful candidates won only by a narrow majority, coupled with the aforesaid affidavit of Sri Patita Paban Misra, leads to the reasonable inference that the results of the elections were materially affected by non-compliance with the provisions of the Act and of the rules by the State Government and the Election Officer. Apart from the affidavits the very nature of the infringement shows that prejudice must necessarily have been caused. It does not require any evidence to show that within such a short period as two days it is almost impossible for any person to scrutinise the preliminary electoral roll and file his claims or objections on the ground of age qualification. The mere fact that in the final electoral roll 3289 more voters were shown as compared with the figure shown in the preliminary electoral roll (which was based on the Assembly Electoral Roll) is itself sufficient to show that there were several omissions in the preliminary roll. It can therefore be reasonably inferred that if sufficient time had been given many more claims and objections would have been preferred and in all probability many of the objections might have been sustained. Following the aforesaid Supreme Court decision, it must be held that elections held on the basis of such an imperfect roll would acquire no validity. 12. The second point raised by the Petitioner also seems to be equally strong. Clause (e) of Rule 22 requires a period of not less than 15 days between the date of scrutiny of Domination and the date of the elections. The date of scrutiny was 28th February 1958 and the date of polling was 15th March, 1958. The interval between the two dates was thus only 14 days, and the statutory period had been abridged by one day. The date of scrutiny was 28th February 1958 and the date of polling was 15th March, 1958. The interval between the two dates was thus only 14 days, and the statutory period had been abridged by one day. There can be no doubt that the words "not less than 15 days" in Rule 22(a) required at least 15 days exclusive of the date of scrutiny of the nomination and the date of the election (See (1885) 29 Ch.D. 204 -(In re: Railway sleepers Supply Co). The learned Government Advocate did not challenge the correctness of this interpretation but urged that the curtailment of the period by one day, was only an irregularity and did not seriously prejudice any body, because all the candidates were equally affected by such curtailment. He also referred to some Madras decisions viz, (Vadamalai Tiruvanatha) Sevuga Pandia Thevar Avergal Vs. C. Srirama Desikam Aiyangar and Others, ; A. Palaniyappa Chettiar Vs. K.N. Krishnaswami Chettiar and Others and A.K.G. Ahamad Thambi Maraicair Vs. V.S. Basava Maracayar in support of his argument that mere breach of a rule is not sufficient to show that prejudice was caused. 13. It is indeed difficult to say whether a particular provision in a statute or statutory rule is mandatory or directory, but even if it be assumed that the provision in Clause (e) of Rule 22 of the Rules, about 15 days notice is only directory, the further question arises as to whether the Respondent has established that the results of the election have not been materially affected by abridging the period by one day. It is true that Sub-section (2) of Section 18 of the Act says that the election of any person as a Councillor shall not be questioned "(b) on the ground of non-compliance with this Act or any Rule or of any mistake in the forms required thereby, or of any error, irregularity or informality on the part of the officer or officers charged with carrying out the provisions of the Act, or of any Rules, unless such non-compliance, mistake, error, irregularity or informality has materially affected the result of the election". On whom does the burden lie to show that the results of the elections have not been materially affected by the admitted infringement of a statutory rule? On this question, there are English decisions which afford good guidance. On whom does the burden lie to show that the results of the elections have not been materially affected by the admitted infringement of a statutory rule? On this question, there are English decisions which afford good guidance. In the well known Islington case 17 T.L.R. 210-1900-1901, where there was admitted contravention of a statute regarding the hours during which the poll should be kept open, it was held, relying on Gribbin v. Kirker (1873) 7 I.R.C.L. 30, that the burden of proving that the irregularity did not affect the return of the candidate rested on the party who wanted to maintain the validity of the election notwithstanding such infringement. Those decisions were given under the provisions of The Ballot Act of 1872 which contained a provision (Section 13) very similar to Section 18(2)(b) of the Orissa Act. In the Representation of the People Act, 1949 (12, 13 and 14 Geo. 6 c. 68) also, there are similar provisions (Section 16(3), 37(1) and 54) and in the latest Edition, of Halsbury's Laws of England, III Edition, Volume XIV, note (u) at page 149 and note (d) at page 150, the present law is also stated to be the same. Mr. S. Misra for the Petitioner, however relied on Rye's case (Empire Digest Vol. 20, p. 48 (para 305) and contended that the curtailment of the period given for canvassing is an illegality and Dot a mere irregularity and that it would render the election void. But Rye's case was decided prior to the passing of the Ballot Act of 1872 and in view of the subsequent decision in the Islington case the Government Advocate is perhaps right in saying that the election cannot be held to be invalid if it is shown that the result has not been materially affected by the infringement of the Act or of the Rules. But the principles laid down in the English decisions regarding the burden of proof being on the Respondent would apply with full force in the instant case. But the principles laid down in the English decisions regarding the burden of proof being on the Respondent would apply with full force in the instant case. In Shyam v. Chairman Dacca Municipality 30 C.L.J. 270, the said rule about burden of proof was applied in India where there was a contravention of the provisions of the Bengal Municipal Act; and it was held that the onus rests on the Respondent to prove that the result of the elections, i.e., success of one candidate over the other, was not and could not be affected by the infringement of the rules". 14. It is therefore the duty of the Respondents to show that the curtailment of the period for canvassing from 15 days did not materially affect the results of the elections. This burden has not been discharged at all. No affidavit has been filed to show that 14 days time was sufficient for canvassing. The right of the rival candidates, to canvass is a very valuable right and where the rule provides at least 15 days interval for that purpose, any abridgement of that period would, prima facie, be prejudicial to some of the contesting candidates, especially in municipal elections where on account of the limited area intense canvassing for one extra day might materially affect the result. I would therefore hold that even if the contravention of Rule 22(e) be held to be an irregularity the Respondents have failed to show that-the results of the elections were not materially affected by such irregularity. 15. The learned Government Advocate thereupon contended that by virtue of Rule 61, the State Government or a Magistrate of a District has power, for special reasons to authorise the Election Officer to fix the dates and periods other than those specified by or under the rules, for all or any of the stages of the election proceedings and that the curtailment of the period for canvassing from 15 days to 14 days may be justified as having been made in exercise of this discretionary power. In support of this argument be relied on a letter of the Additional District Magistrate to the Executive Officer, No. 2418-Elec. dated the 23rd December, 1957 where it was clearly stated that the programme of election was approved by the Government. In support of this argument be relied on a letter of the Additional District Magistrate to the Executive Officer, No. 2418-Elec. dated the 23rd December, 1957 where it was clearly stated that the programme of election was approved by the Government. But it was no where stated, that the Government exercised their power under Rule 61 of the Rules and reduced the number of days from 15 to 14. Moreover that rule requires that such reduction of the period should be "for special reasons". No such special reasons were stated in any of the affidavits filed by the opposite parties. When a statutory rule confers a special power on the State Government and the District Magistrate to be exercised "for special reasons" the Court cannot presume, in the absence of any reference to that rule in the papers filed by the parties and in the absence of special reasons that the power was exercised. No officer of the Government has filed any affidavit to say that while approving the programme of the election, Government in exercise of the powers conferred by Rule 61, reduced the period of canvassing. 16. It was next contended that as the Petitioner was a defeated candidate he must be deemed to have acquiesced in the irregularities committed and that it was not open to him to challenge the validity of the elections on the ground of infringement of the rules. The principle of acquiescence has no application to the present case. The Petitioner had no option in the matter. Under the Act, he can challenge the election only by a regular petition to be filed before a Tribunal after the completion of the elections. He could not challenge the holding of the elections prior to that date and ask for stay until this question was finally decided. Doubtless he could have come up to this Court with an application under Article 226 of the Constitution on the 13th or 14th January 1958. But this Court would not have entertained such a premature application especially when he had a remedy after the elections were over. Hence the Petitioner was compelled to subject himself to the elections notwithstanding the infringement of the rules and his right to challenge the same cannot be questioned on the ground of acquiescence. 17. But this Court would not have entertained such a premature application especially when he had a remedy after the elections were over. Hence the Petitioner was compelled to subject himself to the elections notwithstanding the infringement of the rules and his right to challenge the same cannot be questioned on the ground of acquiescence. 17. It was next urged that this Court should not exercise its extraordinary jurisdiction under Article 226 of the Constitution in the present case and that the Petitioner should be directed to file a regular election petition before the District Judge, as permitted by Sections 18 to 21 of the Act. But those sections deal with the questioning of the election of an individual Councillor by an election petition. But here it is not the election of an individual Councillor which is in question but the entire elections are challenged as invalid. Moreover, there is no disputed question of fact to be ascertained by evidence. All the material facts are admitted by both parties and are based on public documents either of the Government or of the Election Officer, Cuttack, and the only question is the legal effect of the admitted non-compliance with the relevant provisions of the Act and the Rules. In such circumstances, I think, an application under Article 226 affords a proper remedy. 18. It is indeed unfortunate that after the functioning of the Municipality for a period of eight months the election of all the Councilors should be set aside thereby causing inconvenience to all concerned. The District Magistrate and the State Government should have carefully scrutinised the provisions of the Act and the Rules before preparing the electoral roll and finalising the programme. Again, when the State Government fixed the qualifying date and published it in the Gazette dated the 10th January, 1958 they should have issued directions to the District Magistrate to re-publish the preliminary electoral roll and to advance all other dates fixed for the various stages of the election so as to conform to the provisions contained in the statutory rules. Had this been done the unfortunate result could have been avoided. 19. Had this been done the unfortunate result could have been avoided. 19. For the aforesaid reasons, I would allow this petition, declare the elections held to the Cuttack Municipality on the 15th March 1958 to be invalid and issue a direction to the District Magistrate of Cuttack and the Election Officer and the State Government to hold fresh elections to the Municipal Council according to law. A further direction should issue to opposite parties 4 to 31 restraining them from functioning as Municipal Councilors on the basis of the said Municipal ejections. Both parties will bear their own costs. Das, J. 20. I concur 21. Petition allowed. Final Result : Allowed