JUDGMENT : Barman, J. - These two writ petitions were filed by two rival candidates at the municipal election in Cuttack town in the single member constituency of Oriya Bazar Ward No. 10 of the Municipality in the circumstances hereinafter stated. 2. On December 14, 1963 the election was held in which Md. Yusuf Ahmed Rahim and Naresh Chandra Sarkar were the two candidates for the Oriya Bazar single member constituency. The total number of votes polled by Md. Yusuf was 577 while the total number of votes polled by Naresh Chandra Sarkar was, 575. Thus Md. Yusuf polled 2 votes more than his rival candidate. The Returning Officer rejected two ballot papers in the box of Md. Yusuf on the ground that they did not bear official stamp as required by Rule 52 (1)(b) read with Rule 38 of the Orissa Municipal Election Rules, 1951 framed under the Orissa Municipal Act (Act 23 of 1950). The Polling Officer is said to have stated that he inadvertently did not put stamp on these two ballot papers. In view of the equality of votes between the two candidates the Election Officer by drawing lots in the manner he did declared Naresh Chandra Sarkar as elected. 3. Thereafter Md. Yusuf filed an election case before the Municipal Tribunal, Cuttack in which he challenged the election of his rival on the grounds mentioned in the petition with a prayer to declare the election of his rival Naresh Chandra Sarkar from Ward No. 10 as invalid and illegal and to declare him (Md. Yusuf) as lawfully and duly elected in the place of the rival candidate. The Election Tribunal by its judgment dated July 13, 1964 declared the election of Naresh Chandra Sarkar as municipal councillor from Ward No. 10 invalid u/s 24(2) of the Act and further declared u/s 24(2)(a) that a casual vacancy hail been created in the municipal councillorship of the said Ward. u/s 24(3) of the Act the Tribunal directed the District Magistrate to take proceedings for filling up the said vacancy. 4. It is against this decision of the Election Tribunal that Mr. Yusuf filed a writ petition O.J.C. No. 137 of 1964 for issue of an appropriate writ declaring the provisions of Rule 52(1)(b) ultra vires and illegal and for declaring the Petitioner therein Md. Yusuf as elected councillor of the municipality. 4. It is against this decision of the Election Tribunal that Mr. Yusuf filed a writ petition O.J.C. No. 137 of 1964 for issue of an appropriate writ declaring the provisions of Rule 52(1)(b) ultra vires and illegal and for declaring the Petitioner therein Md. Yusuf as elected councillor of the municipality. The other rival candidate Naresh Chandra Sarkar also filed a writ petition being O.J.C. No. 139 of 1964 for setting aside the order of the Tribunal on the grounds mentioned therein. These two petitions Wife heard together. 5. Re: O.J.C.137 of 1964 filed by Md. Yusuf Ahmed Rahim. The main point urged by the Petitioner herein is that the Returning Officer should not have rejected the two ballot papers and that Rule 52(1)(b) is not mandatory. It was also contended that the rule is ultra vires the Act in that the rejection of the ballot papers for not bearing the official stamp would amount to disenfranchising the voters for no fault of theirs. It was submitted that the Petitioner was in no way responsible for the ballot paper not bearing the official stamp. 6. There is no doubt that it was due to the inadvertence of the officer in charge of the booth that the ballot papers in question did not bear the prescribed official stamp. This is also confirmed by the evidence of the Returning Officer. He was satisfied that the absence of stamp on these two ballot papers which he rejected was due to inadvertence of the officer in charge of the booth. The ballot papers were however rejected as the Returning Officer took the view that he had no other alternative as according to him Rule 52 is mandatory. 7. The question therefore is: Is Rule 52 (1)(b) mandatory or merely directory Rule 52(1), so far as material, is this: 52. Rejection of ballot papers: (1) A ballot paper shall be rejected if it (a) bears any mark by which the elector can be identified; (b) does not bear the official stamp prescribed in Rule 38; or (c) bears the mark belonging to a ward different from that of the ballot box which it is found: Rule 38 under which a ballot paper is required to bear official stamp prescribes this: 38. Ballot papers: -Ballot papers shall be in Form XI and shall have counterfoils attached to them. Ballot papers: -Ballot papers shall be in Form XI and shall have counterfoils attached to them. I They shall be serially numbered both on the foil and on, the counterfoil. One each ballot paper the polling officer shall affix a stamp across the perforation between the foil and the counterfoil. Where the poll is taken for more than one seat, everyone of the serial numbers shall be printed on as many ballot papers as there are seats the first of such ballot papers shall bear the number alone and the remaining ballot papers shall bear the number with the capital letters of the English alphabet' added after it in order. 8. It is undisputed position in law that the regulations for the conduct of elections under election statute are held to be so far only directory that an election is not invalidated by the non-observance of them unless the non-observance is of a character contrary to the principle of the statute or might have affected the result of the election. In support of his contention that Rule 52 is only directory the Petitioner relied on certain passages from Maxwell on Interpretation of Statutes (11th Edition, Pages 369-370). 9. The Supreme Court in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others on the question whether a corresponding rule being Rule 47(1) of the Representation of the People (Conduct of Elections and Election Petitions) Rules 1951 is mandatory did not accept a similar argument as urged on behalf of the Petitioner in the present case. Rule 47(1) which is almost the same as Rule 52(1) in the present case is this: 47. Rule 47(1) which is almost the same as Rule 52(1) in the present case is this: 47. Grounds for rejection of ballot papers -(1) A ballot paper contained in a ballot box shall be rejected if (a) it bears any mark or writing by which the elector can be identified; (b) in the case where a direction has been issued under Rule 20 that ballot paper shall contain an official mark, it does not contain the official mark; (c) if it bears any serial number of mark different from the serial numbers or marks of ballot papers authorised for use at the polling station or the polling booth at which the ballot box in which it was found was used; (d) the Returning Officer is satisfied that it is a spurious ballot paper of that it has been so damaged or mutilated that its identity as a genuine ballot paper cannot be established. 10. It is also to be noticed that corresponding to Rule 38 in the present case there is also Rule 20 in the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951 which is this: 20. Official mark on ballot papers-(1) The Election Commission may direct that before any ballot paper is delivered to an elector at a polling station it shall be marked with such official mark as may be specified by the Election Commission in this behalf, and the official mark so specified shall be kept secret. (2) When any such direction has been issued by the Election Commission, the Returning Officer shall provide at the polling station concerned instruments for stamping the official mark on the ballot papers. The spirit and intention of Rule 38 of the Orissa Municipal Rules and Rule 20 of the Representation of the People (Conduct of Elections and Election Petitions) Rules are the same. 11. The reasoning which ultimately weighed with the Supreme Court in holding that Rule 47(1)(c) of the Representation of the People (Conduct of Elections and Election Petitions) Rules is mandatory in Hari Bishnu Kamath's case was this: The practical bearing of the distinction between a provision which is mandatory and one which is directory is that while the former must be strictly observed, in the case of the latter it if sufficient that it is substantially complied with. How is this rule to be worked when the Rule provides that a ballot paper shall be rejected? There can be no degrees of compliance so far as rejection it is concerned and that is conclusive to show that the provision is mandatory. This clinches the matter against the Petitioner herein. In the judgment the Supreme Court deals with the English decisions as also the relevant passages from Maxwell on Interpretation of Statutes in the manner done which we do not propose to repeat herein. 12. There is also no force in the argument that Rule 52 is ultra vires. It is not that the rule takes away the right of franchise by rejecting ballot papers for breach of the rule. Rule 52 regulates the procedure and does not take away the right of franchise. 13. Thus when the rule lays down a penalty, namely that such ballot papers not bearing the official stamp as prescribed in Rule 28 shall be rejected the rule is clearly mandatory. 14. Re: O.J.C. No. 139 of 1964 filed by Naresh Chandra Sarkar. This writ is against the order of the Tribunal setting aside the election of Naresh Chandra Sarkar with a direction to hold fresh election proceedings. 15. The main grounds of this petition are these The Petitioner's rival Md. Yusuf is estopped from challenging the rejection of the two ballot papers and consequential declaration of ejection results by drawing lots. As he (Md. Yusuf) gave his consent endorsed on the notice served on him under Rule 57 he is said to have waived his objection to the declaration of results by drawing lots. It is also submitted that the result of the election has not been materially affected by the rejection of the two unstamped ballot papers. The material provisions of the Act are these: 18. (2) The election of any person as a councillor shall not be questioned (h) on the ground that any 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 this Act or any rules, unless such non-compliance, mistake, error, irregularity or informality has materially affected the result of the election. 24. 24. ( ) If the Tribunal finds that the election of any person was invalid, it shall either (a) declare a casual vacancy to have been created; or (b) declare another candidate to have been duly elected, whichever course appears, in the particular circumstances of the case, the more appropriate, and in either case, may award costs at its discretion. (3) In the event of the Tribunal declaring a casual vacancy to have been created, it shall direct the Magistrate of the district or other authority prescribed in this behalf to take proceedings for filling the vacancy. 25. Notwithstanding anything contained in the proceeding sections, if the Tribunal, in the course of hearing of an election petition, is of opinion that the evidence discloses (ii) the result of election has been materially affected by any non-compliance with this Act or any rules made thereunder or by any mistake in the forms required thereby or by any error, irregularity or informality on the part of any officer charged with or carrying out any duty under this Act or rules made thereunder; or It shall set aside the whole proceedings and pass an order to this effect and shall direct the Magistrate of the district or other authority prescribed in this behalf to take measures for holding fresh election proceedings and if the election is set aside for any cause which is the result of acts of a candidate or his agent, may declare that candidate to be disqualified for the purpose of such fresh election. In this connection it is to be noticed that under Rule 52(4) the decision of the Election Officer as to the validity of a ballot paper shall be final, subject only to reversal on an election petition. 17. The question is Has the result of election been materially affected in this case by any non-compliance with any rules made under the Act or by any mistake, error, irregularly or informality on the part of any officer charged with or carrying; out any duty under this Act or rules made thereunder? As hereinbefore discussed there is a clear breach of Rule 52(1)(b) which in our opinion is mandatory. The result of election has materially been affected by reason of the error on the part of the Polling officer as found by the Tribunal. As hereinbefore discussed there is a clear breach of Rule 52(1)(b) which in our opinion is mandatory. The result of election has materially been affected by reason of the error on the part of the Polling officer as found by the Tribunal. The material portion of the finding of the Tribunal on this point is this: there can be no room for doubt that in the instant case there was error on the part of the polling officer in not stamping the two ballot papers, which have been rejected. Such error has materially affected the result of the election because but for such error the Petitioner (Md. Yusuf) would have been declared elected by a majority of two votes. In other words, had the polling officer not omitted to stamp the two rejected ballot papers, the Returning Officer would have doubtless declared the Petitioner (Md. Yusuf) elected instead of taking recourse to the drawal of lots resulting in the election of the opposite party No. 1 (Naresh Chandra Sarkar) by drawal of lots. There is sufficient evidence which discloses that through inadvertance the two ballot papers had not at all been stamped. The evidence of the officer-in-charge of Gangamandir polling booth on this point is also confirmed by the evidence of the Returning Officer who said that he was satisfied that the absence of stamp in the two ballot papers which he rejected was due to inadvertance of the officer-in-charge of the booth. It is thus that the result of election has been materially affected by the error on the part of the polling officer. 18. The inescapable consequence of the result of election having been thus materially affected is laid down in Section 25 of the Act which provides that the Tribunal shall set aside the whole proceedings and give direction for holding fresh election proceedings. It is to be noticed that Section 18(2)(b) and Section 25(ii) are pari materia the same in that both the sections in substance provide as to the consequence of the result of election being materially affected for the reasons stated therein. 19. As regards alleged estoppel and waiver the position is this: In the notice to the Candidates under Rule 57 that the result of election shall be decided by drawing lots Md. Yusuf made the following endorsement (ext,. A/I): Seen. I give my consent. Md. 19. As regards alleged estoppel and waiver the position is this: In the notice to the Candidates under Rule 57 that the result of election shall be decided by drawing lots Md. Yusuf made the following endorsement (ext,. A/I): Seen. I give my consent. Md. Yusuf Ahmed Rahim, The point of the Petitioner Naresh Chandra Sarkar is that Md. Yusuf is thereby estopped from challenging the rejection of the two ballot papers. It is commented that Md. Yusuf subsequently challenged the election simply because he lost on the drawal of lots. Md. Yusuf is also said to have waived his objection to the error on the part of the Polling Officer in not putting stamp on the two ballot papers by mistake or inadvertance. 20. In our opinion there is no substance in any of these cotentions. There can be no estoppel against a statute. As regards waiver, Md. Yusuf had given his consent to the drawal of lots as endorsed on the body of the notice under Rule 57. Can it be said that he thereby voluntarily or intentionally relinquished his right to challenge the result of election by drawing lots? Our view is: No. The generally accepted connotation of 'wavier' is that to constitute 'waiver', there must be an incantational relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege. In the present case there is no legal relinquishments any right by Md. Yusuf by reason of his endorsing consent on the notice under Rule 57. That apart, under Rule 52(4) the decision of the Election Office as to the validity of a ballot paper shall be final, subject only to reversal on an election petition. It was therefore within the power of the Tribunal to decide the election petition on merits. The purity of election has to be maintained. The statute read with the rules thereunder forms the machinery to maintain this purity. In this view of the election law, the question of either estoppel or waiver does not arise. 21. In this case, the Tribunal was justified in setting aside the whole proceedings and directing fresh election proceedings. 22. In the result, therefore, both the writ petitions fail and are accordingly dismissed. There will be no order for costs in either of the writ petitions. Petitions dismissed. Misra, J. 23. 21. In this case, the Tribunal was justified in setting aside the whole proceedings and directing fresh election proceedings. 22. In the result, therefore, both the writ petitions fail and are accordingly dismissed. There will be no order for costs in either of the writ petitions. Petitions dismissed. Misra, J. 23. I agree. Final Result : Dismissed