Dave, J.—This is a first appeal under sec. 19(2) of the Rajasthan Town Muncipalites Act, 1951, (which will hereafter be referred to as the Act) against the judgment and order of the learned District Judge, Merta, dated 11th May, 1956.

2. Before coming to the question of law which has been raised in this appeal, it would be proper to set out a few facts which are no longer in dispute between the parties. The municipal election of ward No. 3 of Nagore town was held on 16.1.55. In that election petitioner Shri Aidan and non-petitioner, Shri Ramkrishna Kalla were rival candidates and there was a straight contest between the two. The result of the election was announced of 17-11 55 and non-petitioner was declared elected, since he secured 294 votes as against 137 votes polled in the petitioners favour. The total number of votes polled were 487 but 56 of them were rejected as invalid. After this election, the petitioner filed an election petition in the court of the District Judge, Merta and non-petitioners election was assailed on a number of grounds. The application was contested by the non-petitioner, whereupon 8 issued were framed, The learned Judge found that some of the allegations made by the petitioner were incorrect. At the same time it was found that the signatures of the voters were not taken on the counterfoils of the ballot papers, that in 459 ballot papers electoral roll numbers of the voters were written just below the numbers of the ballot papers and that these 459 ballot papers thus became invalid and should have been rejected. It was held by the learned Judge that only 28 votes polled were valid, but since 22 of these valid votes were cast in non-petitioners favour and only six were given in favour of the petitioner, the non-petitioner had still a majority of 16 and so he was rightly declared elected. According to the learned Judge, the result of the election was not materially affected even though 459 ballot papers were invalid. He, therefore, dismissed the petitioners application on 11.5.56. It is against this judgment that the present appeal has been filed.

3. Although learned counsel for the appellant has raised many grounds in the memorandum of appeal, only two grounds have been urged by him at the time of arguments. In the first place, it is contended that the polling officer did not obtain the voters signatures or marks on the counterfoils of voting papers and thus committed a breach of rule 28 (4) of the Rajasthan Town Municipal Election Rules, 1951 which will hereinafter be referred to as Rules. It is urged that the provision laid down in rule 28(4) was meant to avoid false impersonations, that the polling officer tailed to observe the mandatory provision, that on account of his failure to obtain the voters signatures or marks, it cannot be said how many cases of false impersonation took place during the course of this election and hence it must be held that the result of the election was materially affected.

4. His next contention is that according to rule 33 (e) of the said Rules every ballot paper which bears any mark whereby a voter may be identified must be rejected by the polling officer, that in the present case 459 votes had become invalid on account of the polling officers failure to observe the mandatory provision of this rule and for this reason also it must be held that the result of the election was materially affected.

5. To begin with the first contention it would be proper to reproduce here rule 28 (4) which runs as follows: —

"The Polling Officer shall dispose of any objections raised by candidates and when satisfied that the intending voter is entitled to vote and has not yet voted, shall initial the foil of a voting paper and after taking the voters signature or mark on the counterfoil and endorsing the paper across the junction of the foil and counterfoil with a seal, give the foil to the voter and admit him to the polling room."

According to this provision it is certainly necessary for the p

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