Sharfuddin Ahmed, J.
1. This miscellaneous appeal arises out of the order of Election Tribunal, Municipal Corporation, dated 13th July, 1966, made in E. P. No. 3 of 1964, whereby the Election Petition filed by the appellant herein under Section 71 of the Hyderabad Municipal Corporation Act, 1956, for declaring the election of 1st respondent in Constituency No 35 as void has been dismissed with costs.
2. The appellant claimed that he was one of the candidates for Single Member Constituency No. 35. Dhoolpet. Municipal Corporation, City of Hyderabad, along with the 1st and 2nd respondents The election was held on 28th June, 1964, the counting was done on the next day and the result of election declared on 29th June, 1964 The contesting parties received the following valid votes:
1st Respondent: 1124
2nd Respondent: 827
3. The appellant lost by a narrow margin as it was discovered at the stage ofcounting that the Returning Officer rejected394 votes for the petitioner 132 for the 1strespondent and 213 for the 2nd respondent atPolling Booth 35/3 as invalid under Rule 51of the Hyderabad Municipal CorporationElections and Election Petitions Rules. 1956(hereinafter railed the Rules) This was onthe ground that they did not bear the officialmark (distinguishing marks) in accordancewith the directions given by the Government under Rule 24. It was brought to the notice of the Returning Officer that this omission was due to negligence on the part of the Pre-siding Officer and the party should not be penalised on that account. The Returning Officer refused to accept this contention and declared that the 1st respondent was a successful candidate having obtained the highest number of valid votes.
4. The appellant thereupon filed an Election Petition contending that there was no direction by the Government for using a distinguishing mark as contemplated under the Municipal Corporation Act. Secondly, the Returning Officer was not justified in rejecting the votes as Rule 51 was only directory and not mandatory Thirdly, there was no indication of the official mark prescribed for this particular polling station and lastly that due to non compliance with the rules and non-observance of the directions given by the Government, the result of the election had been materially affected, which warranted setting aside the election of the 1st respondent.
5. The 1st respondent denied all these allegations made by the appellant the 2nd respondent filed a counter denying the allegations of the appellant but prayed that the election as a whole should be declared as void. The Election Tribunal on a consideration of the evidence adduced before it negatived all the contentions raised by the appellant and in that view dismissed the Election Petition. The appeal is directed against the said order
6. The learned Counsel for the appellant. Sri V. K Vaidva. has raised the same grounds before this Court as were urged before the Election Tribunal. His first contention is that there is no specific direction by the Government for the use of the official mark as contemplated under Rule 24 of the Election Rules. This argument, however, is not acceptable in view of the fact that a G. O. bearing Ms. No. 492 M A. dated the 10th April, 1964, was Issued by the Government in the Health. Housing and Municipal Administration Department on a reference by the Municipal Corporation. It authorised the Municipal Corporation to issue the ballot papers of the polling stations after affixing the official mark under Rule 24 as was done in the previous elections to the Municipal Corporation of Hyderabad Para (e), of the said G O contains a specific reference to the issuance of ballot papers after affixing the official mark. It runs as under :
'(e) Whether the ballot papers at the polling stations may be issued to the voters after affixing the official mark (i.e.) distinguishing mark under Rule 24 of the aforesaid rules as was done in the previous elections to the Municipal Corporation of Hyderabad ' The answer is in the affirmative, i.e.. the Government has authorised the Municipal Corporation to issue the ballot paper after affixing the official mark. The argument is that the Government has not specified the official mark, but this contention is not entitled to any weight for it has come onrecord in the evidence of the Presiding and Returning Officers and so also the Commissioner that '35/3' was the mark for this particular polling booth, No doubt there is no evidence to show that it was the same mark as had been used in the previous elections to the Municipal Corporation of Hyderabad for the said booth, but this objection was not specifically raised before the Election Tribunal. Further the direction was for affixing the same official marks as had been used in the previous elections and not for affixing the same official marks as had been used in the previous elections. Even otherwise. the Commissioner has stated that he had fully complied with the directions given in the G. O. which raised a presumption that even in regard to the allotment of official mark there has been no deviation on his part. The argument of the learned Counsel, therefore, that there was no direction by the Government as laid down under Rule 24 is not acceptable.
7. The second argument is that there is no evidence to show what was the official mark used for this particular polling station. Even in this respect, the contention is untenable It has been stated by the witnesses examined by the appellant himself that 35/8 was the rubber stamp which had to be affixed on the ballot papers before issuing them to the voters and which has not been done in the instant case
8. P.W. 5. the Presiding Officer has stated that it was a rubber stamp containing in it Booth No '35/3' which was supplied to him for affixing on the ballot papers, but by oversight he forgot to affix the stamp owing to the rush Even the Returning Officer has made it similar statement. It can therefore, be safely concluded that the official mark for this booth was '35/3'
9. The third objection raised by the learned Counsel for the appellant is that the provisions of Rule 51 (c) are not mandatory. The position is covered by a decision of the Supreme Court in Hari Vishnu Kamath v. Syed Ahmed Ishaq. : 1SCR1104 , which while dealing with analogous provisions in the Peoples Representation Act held that such a direction was of a mandatory nature. The learned Counsel therefore rightly did not press this point
10. The last submission on behalf of the appellant is that as the Presiding Officer had failed to comply with the directions contained in the Rules, the Election was liable to be set aside as the result of election was materially affected by such non-compliance This argument proceeds on the interpretation of Section 79(2) (c) of the Hyderabad Municipal Corporation Act, wherein if is laid down that:
'(2) Subject to the provisions of Sub-section (3) if the tribunal is of opinion-
(c) that the result of the election has been materially affected by the improper reception or refusal of a vote or by the reception ofany vote which is void, or by any non-compliance with the provisions of the Constitution or of this Act or of any rules relating to election or by any mistake in the use of any prescribed form;
(d)the Tribunal shall declare the election of returned candidate to be void.'
11. The learned Counsel for the appellant contends that the presiding officer in spite of the directions by the Government under Rule 24 has failed to affix the official mark (distinguishing mark) on the ballot papers. Thus, he has failed to comply with the specific provisions in this, behalf that is, Rule 24 of 'the Hyderabad and Secunderahad Municipal Corporations Elections and Election Petitions Rules, 1956' The result of such non-compliance has been that the votes cast by as many as 700 voters could not be taken into account for deciding the fate of the contesting parties
12. Sri Narasa Raju, learned Counsel appearing for the respondents has urged that the result of the election could only be gather-ed from the counting of the valid votes cast for the parties, as has been laid down by the Supreme Court in the cases of : 1SCR1104 ; and Jabar Singh v Genda Lal : 6SCR54 According to him once the votes have been rejected by the competent authority the Appellate Court was not competent to take them into consideration for the purposes of deciding whether the result of the election has been materially affected or not. If this is so, the question is how to ascertain whether the result of the election has been materially affected by non compliance with the provisions of the Constitution or of the rules in accordance with Section 79(2)(c) of the Act? The learned counsel contends that having regard to the decisions cited above, it is not possible to determine the effect of the non-compliance in such a case But if his argument is accepted, it would render the provisions of Section 79(2)(c) otiose The provision specifically mentions that the election has to be declared void if as a result of non-compliance with the provisions of the Constitution or of the Act or any rules relating to election or any mistake in the use of any prescribed form, the result of the election has been materially affected. Obviously this has to be ascertained only on examining the result. But it is possible to look at the result in two ways, one for the purposes of unseating the successful candidate and substituting the other in his place and the other for the purposes of declaring an election void As observed by their Lordships of the Supreme Court, it may not be possible to look into the rejected votes for the purposes of unseating a successful candidate but when it has to be ascertained what was the result of non compliance on the part of the presiding officer of any rule the totality of the votes discarded of account of his non-compliance can be taken into consideration to find out whether the result of the election has been materially affected or not. In the instant case,as already mentioned, the voles cast by as many as 700 voters have not been taken into account for any of the parties, as a result of the omission of the presiding officer to fix the official mark (distinguishing mark) for which neither the parties, nor the voters were in any way liable It seems to be a case on par with the failure of a presiding officer to open a booth or close the same at the scheduled time with the result that a number of voters were not able to exercise their right of franchise. It would certainly he a case for interference when it is found that a large number of voters, had not been able to exercise their right of vote due to the failure of the presiding officer to observe the prescribed rules, particularly so when the margin of difference between the returned candidate and the unsuccessful candidate is very meagre.
13. In the instant case, as stated above, the voles of 700 electors could not be looked into due to a mistake on the part of the pre siding officer for which the parties did not deserve to be penalised. This, to our minds has materially affected the result of the election and on that account the appellant is liable to succeed. We therefore, allow the appeal and set aside the election of the 1st respondent as void so far as the Dhulpel Constituency is concerned.
14. The appeal is allowed No order asto costs.