Tambe, Ag. C.J.
(1) By this petition under Arts 226 and 227 of the Constitution of India, the three petitioners pray that an appropriate writ or direction be issued declaring applicant No. 2 as validity elected to one of the two general seats and the order of the Opponent No. 6 declaring Opponent No, 1 as elected be quashed.
(2) The facts in brief are:
An election was held for electing three representatives from Ward No, II of village Karjal in Taluka Akkalkot to a village panchayat by name Karjal-Halhauli Group Grampanchayat. Two out of the three representatives that were to be elected were for the general seats and one for the seat reserved for scheduled caste. For the two general seats four candidates contested, viz., Dajiba Gurunath Gavane, Somshankar Shivlingappa Swami, petitioners Nos. 1 and 2 before us, and Sangappa Sharanappa Patil and Shivbasappa Shiddappa Tambrke, opponents Nos. 1 and 2 before us. Petitioner No. 3 Vithal Babu Hotkar and opponent No. 3 Irappa Sharanappa Ingale, were the two contesting candidates for one reserved seat reserved for the Scheduled Castes. Respondent No. 4, who had been the returning Officer, after counting he votes declared that Dajiba Gurunath Gavane petitioner No. 1 had secured 105 votes, Somshankar Shivilingappa Swami, petitioner No, 2 had secured 94 votes. Sangappa Sharanappa Patil, opponent No, 1 had secured 93 votes, and Shivbasappa Shiddappa Tambrke, Opponent No.2 had secured 73 votes. He therefore, declared Dajiba Gurunath and Somshankar shivlingappa as having been elected representatives for the general seats. As regards the representatives for the reserved seat, the Returning Officer declared that petitioner No. 3 Vithal Babu Hotkar had secured 92 votes and Irappa Sharanappa Ingale, opponent No,. 3 had secured 86 votes. ON this basis he declared petitioner No. 3. Vithal Babu Hotkar, as successful candidate representing the reserved seat. It may be stated that at the counting of the votes 23 ballot papers were challenged on the ground that the voters had made on these ballot papers more than one mark against the same candidate. The contention was that by making more than one had cast more than one vote in favour of one candidate and that rendered the ballot paper void. It appears that this objection was sustained by the Returning Officer in respect of 18 ballot papers, but was rejected in respect of five ballot papers bearing Nos. 25, 47, 105, 146 and 189. The aforesaid result has been declared after rejecting 18 ballot papers on the aforesaid ground.
(3) Now opponent No. 1 alone challenged the election on various grounds. It is necessary to state that opponent No.1 was a candidate only for the general seat. Though the election has been challenged by opponent No. 1 Sangappa Sharanappa on various grounds only on contention raised on his behalf had been accepted by respondent No. 6 who heard the election petition. In he recounting it was found that in the aforesaid five ballot papers, viz., 25, 47, 105, 146 and 189 there were double marks put by the voters against one and the same candidate. the actual marking has been described in the following terms in paragraph 17 of the order of respondent No.6:
'The ballot paper No. 025 has double marks on three symbols namely bullock umbrella and bicycle. The voter has exercised votes for 3 candidates. The ballot paper No. 047 had double marks on three symbols namely lion, motor and tiger. There are no marks on other symbols. The ballot paper No. 105 bears single marks on symbols motor and tiger and double marks on symbol lion. The ballot paper No. 146 has single marks in the space of motor and tiger and double marks in the space of umbrella. The ballet paper No. 189 bears single marks on bullock and lion and double marks on motor.'
It was contended on behalf of opponent No, 1 that these five ballot papers have been wrongly accepted to be double marks against the name of one candidate amounting to giving more than one vote to a single candidate, which was prohibited by law and that rendered the ballot papers invalid. It appears that this contention found favour with the learned Judge and he held that these five ballot papers were wrongly rejected. This is how the material part of respondent No. 6's order reads:
'. . . . .It can also be said that the voter gave more than one vote to a single candidate, by making a double mark on each symbol. which is forbidden by R. 23 (i). Moreover, every double mark has two distinct marks. It cannot be said that the first mark was indistinct and so the voter made the other mark on the same symbol. This holds good to all the ballot papers in question. Therefore, the Returning Officer has accepted and counted wrongly the ballot papers Nos. 025, 047, 105, 146 and 189, which should have been rejected. In my opinion these five ballot papers should be rejected and cancelled.'
Respondent No. 6 also in support of his conclusion had observed: that rejection of the 18 ballot papers by the Returning Officer was on the very ground , viz., that these ballot papers had double marks against the same candidate or on the symbol of the same candidate. According to respondent No. 6, there had been no distinction between these 18 ballot papers, which had been rejected by the Returning Officer and the aforesaid 5 ballot papers, which had been accepted by him. In the result in re-counting respondent No. 6 had rejected all 23 ballot papers. After rejecting these 23 ballot papers and on recounting the votes respondent No. 6 declared that the successful candidates from ward No. II were: Dajiba Gurunath Gavane (Petitioner No. 1 before us) and Sangappa Sharanappa Patil (Opponent No. 1 before us). While Somshankar Shivlingappa Swami (Petitioner No. 2 before us) was declared to have been defeated at the election. In short the difference between the result declared by the Returning Officer, Opponent No. 4 and the result declared by Opponent No. 6 on recounting in the election petition, is that instead of petitioner No. 2 Somshankar Shivlingappa Swami, opponent No. 1 Sangappa Sharanappa Patil has been declared as a successful candidate. The original declaration of Dajiba Gurunath, being the successful candidate, was not in any way affected by the result declared by respondent No. 6 . Thus this order of respondent No. 6 is being challenged by all the three candidates who had been originally declared successful by respondent No. 4 As we have already stated there was no challenge to the declaration of the successful candidate for the reserved seat, we are not concerned with the declaration of the successful candidate for the reserved seat. The only question we have to consider is whether more than one mark against the same candidate or on the symbol representing that candidate amounts to casting more than one vote in his favour. If that be the position then clearly the ballot paper is bad and void and must be rejected but on the other hand is putting more then one mark as aforesaid did not amount to casting more than one vote in favour of any one candidate then the ballot papers are good and valid and respondent No. 6 was clearly in error in rejecting the aforesaid 23 ballot papers. When the matter once came up for hearing at the request of the counsel for the parties all the aforesaid 23 ballot papers were sent for and they have been produced in Court.
(4) Mr. Albal contends that having regard to the manner in which ballot papers have been marked, though double marked, it cannot be said that voters have cast more than one vote. Mr. Lalit learned Counsel for the opponent, on the other hand contends that putting of more than one mark against the same candidate or on the symbol of that candidate amounts to casting more than one vote in favour of that candidate. He further contends that the compound effect of reading of Clause (1) of R. 23 and Cl (d) of R. 33 is that making of more than one mark against one candidate amounts to casting more than one vote in favour of that candidate and that being prohibited by law the ballot papers were invalid. Before we proceed to consider the question it may be stated that all these 23 ballot papers were examined by us along with the Counsel for the parties. There are two common features one is that each voter has put mark against three candidates, two contesting the the general seats and the third against the candidate contesting the reserved seat. The second common feature in these ballot papers, except three ballot papers, bearing Nos. 129, 159 and 167, is that the double marks put by the voters are not too distinct and separate marks divided by open space. On voting paper No. 129 the double marking is on the symbol cycle, which was the symbol of Patil Sangappa Sharanappa, who is opponent No. 1 before us. These two marks are on the two wheels of the cycle one on each wheel. These are two distinct marks separated by open space. On voting paper No. 159, the double marking is on the symbol lion which is the symbol of petitioner No. 1 Dajiba Gurunath Gavane. These two marks are also distinct and separate and divided by open space. The other double marking is on symbol tiger, which is the symbol of applicant No. 3. Vithal Babu Hotkar, the candidate contesting the reserved seat. As we are not concerned with it is not necessary to mention about it. On voting paper No. 167, the double marks are on symbols motor car, tiger and lion. These two marks are distinct and separate divided by open space, but the curious thing is that one out of the two marks does appear to have been made by official instrument. The official mark is a cross encircled by a circle. The other marks which has been put on these papers are patently different in appearance. It appears that the other mark which is distinct from the official marks which is generally seen on all the voting papers must have been made by an instrument other than that which had been supplied by the election officials to the voters. The voting paper No. 167 contained mark by instrument other than official instrument. The distinct mark also is likely to disclose the identity of the voter. This voting paper is clearly invalid voting paper and neither respondent Nos. 4 nor respondent No. 6 were in error in rejecting this voting paper. The question then that arises for consideration is whether on these facts and in the foresaid circumstances the double marks on the voting paper marked with two separate and distinct marks divided by open space against one and the same candidate or on the symbol of one and the same candidate amounts to casting more than one vote in favour of that candidate. We may at once say that there is no rule anywhere which states that putting more than one mark on symbol of a candidate or against the name of the candidate on voting paper would amount to casting more than one vote against that candidate or would render the ballot paper invalid. We may here state that as a matter of caution express provision has been made in respect of elections under Representation. of the People Act, cautioning the Returning Officer that he shall not reject the ballot paper merely on the ground that the mark indicating vote is indistinct or made more than once,, if the intention of the voter to vote for a particular candidate clearly appears from the way the ballot paper is marked. Of course the provision is in respect of another enactment and in that sence it has no direct application to the case before us. In our opinion, however, the provision indicates a general principle. Right to vote and elect a representative is a valuable right. The right of casting votes is conferred on persons who may even be illiterate; literacy is not a qualification for being a voter. The said right is not to be denied on flimsy and technical grounds. As Their Lordships of the Supreme Court have pointed out that what is to be ascertained is the intention of the voter as evidenced by the marking made by him on the ballot paper. If it clearly indicates that the voter wanted to vote for a particular candidate and has not done anything which law does not permit him to do, the mere fact that the mark indicating the vote is indistinct or made more than once would not invalidate the ballot paper. The question next arises if whether the combined effect of Clause (1) of R. 23 and Clause (d) of R. 33 is that if more than once mark is made by a voter against the name of a candidate or on the symbol of the candidate it invalidates the ballot paper. The material provisions of R. 23 for the purpose of this case is:
'23. Votes shall be recorded in accordance with the following provisions, namely:
(i) every voter shall be entitled to give as many votes as there are seats for filling which votes are to be taken in his ward, but no voter shall give more than one vote to any one candidate.
(ii) xx xx xx xx
(iii) xx xx xx xx
(iv) xx xx xx xx
(v) the voter shall make a mark on the voting paper with the instrument supplied for the purpose on or near the symbol of the candidate for whom he intends to vote so however that no part of the mark so made shall appear in the space provided for other candidates. The voter shall thereafter fold the marked voting paper so as to cancel his vote and insert the folded voting paper into the ballot box and without undue delay leave the polling room.'
Rule 33 provides the grounds for rejection of voting papers;
'33 (1) A ballot paper contained in a ballot box shall be rejected if ;
(a) xx xx xx xx
(b) xx xx xx xx
(c) xx xx xx xx
(d) a voter has recorded more votes than he is entitled to give or has recorded more than one vote for any one candidate.'
We are unable to see how on reading these provisions it emerges that making more than one mark against any one candidate tantamounts to giving more than one vote to that candidate. If the rule-making authorities wanted to say so they could have said so in clear terms. They have not said so, All that is prohibited is giving more than one vote to any one candidate and that alone would render the ballot paper invalid and therefore, liable to be rejected as recording of more votes than he is entitled to give. Now, here the voter was entitled to cast three votes, inasmuch as the voters from that ward had to be elect three candidates two for the general seats and one for the reserved seat. The voters were entitled to cast two votes, on for each candidate they desired to elect for the general seat and one for a candidate whom they wanted to elect to represent them for the reserved seat. What is prohibited is casting two votes for any one candidate for the general seat, or casting more than one vote for any one candidate who was contesting the reserved seat. Now here as we have seen in all impugned ballot papers the dates contesting the general seat & one candidate contesting the reserved seat. Of course, in respect of certain candidates there are more than one mark on his name or on his symbol. But looking at the voting papers it leaves no doubt that in making two marks the voters has not recorded more than one vote for that candidate. This is not a case where the voter has made more than one mark against the name of the symbol of one candidate leaving the paper blank. Such a circumstances may lead to an inference that the voter was casting more than one vote for any one candidate. The reason why in so many ballot papers more than one mark has been made appears to be the rule of recording votes contained in R. 5, Clause (3). The vote is to be recorded by making a mark with an instrument and the mark is to be made on or near the symbol of the candidate for whom the voter intends to vote. All the symbols are printed in darker shades. They are in black and white. In certain symbols the black shed is deep, for instance, symbols motor car and the cycle. On these symbols the voters are told to put marks with an instrument. For making the mark the voter has to put the instrument on the symbol. At times the print produced by the instrument is faint and at times incomplete and that appears to have led times incomplete and that appears to have led the voters to make another mark so that the marks made by them on the symbol should be distinctly seen. Perhaps had the manner of recording votes, been differently provided and the ballot papers slightly differently prepared, cases of this type may be less frequent. If the ballot papers are so printed as to leave sufficient open white space between the name and the symbol and the voters are told to make their marks in the open space between the name and the symbol near the symbol then instances of making more than one mark may be reduced. However, as we have stated making more than one mark against the name of any one candidate or on his symbol by itself does not amount or give rise to an inference that the voter has given more than one vote for that candidate. Respondent No. 6 was, in our opinion, in error in rejecting 22 out of 23 ballot papers which he had rejected for the reason that they were invalid because more than one mark had been made by the voter against the name or on the symbol of any one candidate. For reasons already stated the finding of respondent No. 6 that ballot paper No. 167 was invalid is correct. It is not for us to recount the votes on a footing that these 22 ballot papers are valid. The matter, therefore, will have to go back to respondent No. 6 for recounting.
(5) In the result, rule is made absolute, the order of respondent No, 6 is set aside. The case is sent back to respondent No. 6 for recounting the aforesaid 22 votes on the footing that the aforesaid 22 votes are valid votes and declare the result of the election afresh in respect of general seats only. Costs of this application shall depend on the result after recounting of votes as directed herein with advertence to the remarks made in this judgment. The ballot papers be sent to respondent No. 6
(6) Petition allowed.