Judgment B.D.Singh, J. 1. This application under Articles 226 and 227 of the Constitution of India, has been preferred by the sole petitioner against an order dated the 14th June. 1969 (Annexure 3) passed by the Sub-Divisional Magistrate (Respondent No. 3), whereby he has set aside the order of the Returning Officer (Respondent No. 2) and has accepted the second nomination paper filed by Respondent No. 4. 2. In order to appreciate the point involved in this application, it will be necessary to state briefly the facts. The petitioner as well as Respondent No. 4 were candidates for the election of the Mukhiya of the Dhrubgama Gram Panchayat in the District of Darbhanga. Respondent No. 4 had filed two nomination papers. On scrutiny both the nomination papers were rejected by Respondent No. 2. Aggrieved by the said order. Respondent No. 4 moved the Sub-Divisional Magistrate (Respondent No. 3) under Rule 23 (4) of the Bihar Panchayat Elections Rules, 1959 (hereinafter referred to as the Rules). The Sub-Divisional Magistrate, as mentioned earlier, accepted the, second nomination paper of Respondent No. 4, a copy of which the petitioner has filed as Annexure 2 to his application. In the impugned order, the Sub-Divisional Magistrate was of the opinion that the defects in the second nomination paper were in the nature of clerical mistake and those could be overlooked under Rule 22 of the Rules, which reads as under:- - "22. On the presentation of nomination paper, the Election officer shall satisfy himself that the names and voters numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the voters list: (a) provided that the Election officer may permit any clerical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the voters list; and (b) Where necessary, direct that any clerical or printing error in the said entries shall be overlooked". 3. 3. Learned Counsel appearing on behalf of the petitioner has challenged the impugned order chiefly on two grounds, namely-- (i) The order, according to him, was bad, as the petitioner was already declared elected as Mukhiya, when the nomination paper of Respondent No. 4 was rejected by Respondent No. 2; (ii) According to him, the omissions or the mistakes in filling up the second nomination paper were not clerical mistakes, they were material defects and they could not have been cured under Rule 22 of the Rules. 4. I will take up for consideration the first contention of the learned counsel. In my opinion, this contention of the learned Counsel cannot be accepted. At that stage it could not be said that the petitioner was declared elected as Mukhiya. A reference may be made to Rule 26 of the rules, which reads as-- "26 Immediately after the expiry of the period for filing and disposal of the objection petition under Sub-rule (4) of Rule 23, the Election Officer shall, if the number of duly nominated candidates is equal to the number of seats to be filled, declare all such candidates to be duly elected to fill those seats." According to this rule, no declaration of the petitioner was possible, unless the Sub-divisional Magistrate (Respondent No. 3) had disposed of the application of Respondent No. 4 under Rule 23 (4) of the Rules. If he had rejected both the nomination papers of Respondent No. 4, certainly, in that situation, the petitioner would have been declared elected as Mukhiya, but, in the instant case. Respondent No. 3 had accepted the second nomination paper of Respondent No. 4 and had set aside the order of respondent No. 2, rejecting both the nomination papers of respondent No. 4. In that view of the matter, the contention of the learned Counsel under point No. (I) has got to be rejected. 5. Now I turn to the second submission of the learned counsel under point No. (ii). Learned Counsel has submitted that in the second nomination paper the signature or the thumb-impression of the proposer was not there, nor the date was there. Therefore, he submitted that the Sub-Divisional Magistrate in his order has committed error wherein he has held that there was thumb impression of the proposer. Learned Counsel has submitted that in the second nomination paper the signature or the thumb-impression of the proposer was not there, nor the date was there. Therefore, he submitted that the Sub-Divisional Magistrate in his order has committed error wherein he has held that there was thumb impression of the proposer. He urged that the omission of signature or thumb-impression of the proposer is a fatal one, and it cannot be cured under Rule 22 of the Rules. In my opinion, in the absence of the original record, it is difficult to concede to the submissions made on behalf of the petitioner. Whatever has been stated in the impugned order has got to be accepted as a question of fact. Besides, there is a counter-affidavit on behalf of the State of Bihar. In paragraph 2 (a) of the said counter-affidavit it is specifically stated that "in the other nomination paper names and L. T. I. appeared" and it has been submitted that the order passed by the Sub-Divisional Magistrate was valid one. The petitioner has further replied to the counter-affidavit filed on behalf of the State. The levant portion of the reply is paragraph 4, which reads thus: "That the petitioner re-asserts that the second nomination paper of Shri Ram Briksha Sahni Respondent No. 4 was invalid in rem and it could not be validly accepted nomination paper as prescribed in B. G. P. Election Rules". In this paragraph the petitioner makes a general allegation. He does not say specifically that in the second nomination paper also the thumb impression of the proposer was not to be found. In that view of the matter, it is difficult to disbelieve the facts stated by Respondent No. 3 in the impugned order. As between the affidavits of the petitioner and the facts stated in the impugned order, it has been consistent view of this Court to accept the facts stated in the impugned order, unless it is otherwise established by the original record of the case. In that circumstance also, in my opinion, the contention of the learned Counsel for the petitioner under point No. (ii) has got to be rejected. 6 In the result, the impugned order is upheld and the application is dismissed. In the circumstances, however, there will be no order as to costs. In that circumstance also, in my opinion, the contention of the learned Counsel for the petitioner under point No. (ii) has got to be rejected. 6 In the result, the impugned order is upheld and the application is dismissed. In the circumstances, however, there will be no order as to costs. The authorities will now proceed to take steps for holding the election of the said Gram Panchayat as soon as possible.