The non-compliance with the statutory provisions of the Act and the Rules materially affected the results of the elections, and the burden of proof lies on the respondents to show that the results of the elections were not materially affected by the non-compliance.

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. 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