B.J. Divan, C.J.
1. This writ appeal is preferred by the original petition against the judgment and order of our learned brother, Gangadhara Rao, J. in Writ Petition No. 840 of 1975. In this judgment, we will refer to the appellants as the original petitioner and the respondents according to their array in the original petition.
2. The facts giving rise to this litigation are as follows: Election for the Agricultural Market Committee, Chittoor was held on August, 5, 1974. Seven persons contested the election. Two of the candidates got 138 and 131 votes and they were declared as duly elected. The petitioner, the 3rd respondent and one S. Srinivasulu Chetty got 96 votes each. Thereafter as provided by the relevant rules, lots were drawn and the petitioner was declared elected as a result of the drawing of the lots. Thereafter, the 3rd respondent filed an election petition before the Election Tribunal set up under the relevant rules and the petition was allowed. In the election petition, it was held by the authority concerned viz. the Election Authority and Director of Marketing, that the votes should be recounted and at the recounting of votes, the petitioner was declared to have received 91 votes, whereas the 3rd respondent was declared to have received 92 votes. On this finding, the Election Authority held that the petitioner should not have been declared as a successful candidate. He, therefore, set aside the election of this petitioner and ordered fresh election under R. 22(2) of the Andhra Pradesh Agricultural Produce and Livestock Market Rules, 1969 to the vacancy caused by the declaration of the election of the petitioner as void. The petitioner, thereafter, challenged this decision of the Election Authority in W. P. No. 840 of 1975 and this Writ Petition was dismissed by our learned brother, Gangadhara Rao, J. It is against this decision of our learned brother that the present writ appeal has been filed.
3. Both the Election Authority and our learned brother, Gangadhara Rao, J. have come to the conclusion that the mode of marking on the votes viz. by putting a mark 'X' was the only method of marking votes and that this provision of the rule was mandatory and that any vote which was marked otherwise than by mark 'X' as required by the rules should be declared as invalid. It is after interpreting the relevant rule as mandatory that the Election Authority held that the petitioner had got 91 votes, whereas the 3rd respondent had got 92 votes. Our learned brother, Gangadhara Rao, J. has accepted this interpretation of the relevant rule and has come to the conclusion that the decision of the Election Authority was correct.
4. On these facts, Mr. Venkatramaiah, the learned counsel for the petitioner, urged the following contentions before us :
'that the election petition before the Election Authority was not maintainable, because Srinivasulu Chetty who had also got 96 votes and the other two candidates, who had got 138 and 131 votes respectively, were not joined as parties to the election petition;
(2) that even though three candidates had received 96 votes each, the Election Authority scrutinised only the votes of two candidates viz. the petitioner and the 3rd respondent and did not consider exhaustively the votes of all candidates at the election;
(3) that it was held by the Election Authority that, since Srinivasulu Chetty had not been joined as a party to the election petition, it necessarily followed that 96 votes received by him must be held to be valid votes and in that eventuality, the order of the Election Authority directing a bye-election after declaring the election of the petitioner to be void was erroneous because there was no question of any by-election if 96 votes were found to have been obtained by Srinivasulu Chetty; and
(4) that, under Rr. 17 and 18 of the Andhra Pradesh Agricultural Produce and Livestock Market Rules, 1969 (hereinafter referred to as 'the rules'), no votes can be rejected if the intention of the voter is clear and hence the Election Authority erred in treating R. 17 as mandatory.'
5. In our opinion, our decision on the fourth contention is sufficient to dispose of this writ appeal and as this contention goes to the root of the matter, it is not necessary for us to consider the other three contentions urged by Mr. Venkataramaiah before us.
Rule 17 of the Rules is as follows: 'During the hours fixed for election the polling officer shall satisfy himself of the identity of every intending voter and the fact that his name is entered in the list of voters and shall initial the entry in token thereof. Every voter wishing to vote shall be furnished with a ballot paper. The voter shall proceed to one of the voting compartments and there inscribe a mark 'X' on the ballot paper on or near the symbol of the candidate for whom he desires to vote. If the voter is illiterate, the polling officer shall inscribe the cross mark on or near the symbol of the candidate to whom the voter desires to give his vote. The voter shall put the ballot paper in the ballot box.'
'Any ballot paper which contains the signature or any mark by which the voter can be identified or on which the mark is placed against more candidates than the number of vacancies or the back of which does not contain the initials of the election officer shall be invalid.'
6. It is clear that, so far as the invalidity of votes or the invalidity of ballot paper is concerned it is only when the ballot paper contains the signature or any mark by which the voter can be identified that it is to be treated as invalid and in addition to this, if on a particular ballot paper, the mark is placed against more candidates than the number of vacancies or if the ballot paper does not contain the initials of the election officer on the back, the ballot paper is to be treated as invalid. These are the only three contingencies contemplated under Clause (b) of R. 18 as rendering any ballot paper invalid. These are the only three contingencies contemplated under Clause (b) of R. 18 as rendering any ballot paper invalid. It is clear from the provisions of Clause (b) of R. 18 that expression of the desire of the voter as to the candidate for whom he desires to vote by placing a mark other than the mark 'X' on or near the symbol of the candidate concerned, does not render the vote or the ballot paper invalid. A distinction was sought to be drawn by the learned Government Pleader appearing on behalf of the Election Authority and Election Officer to the effect that an invalid ballot paper was different from an invalid vote. No such distinction is to be found in the rule themselves. On the contrary it must be borne in mind that there is no specific provision in the rules rendering the vote invalid, if the voter puts a mark other than the mark 'X'. It is well settled law that every use of the word 'shall' or 'must' in a particular rule or provision of law does not render that provision mandatory. A sound test for determining whether any particular provision is mandatory or not is to find out from the rules under consideration as to what are the consequences of non-compliance with this particular provision which is contended to be mandatory. If, as a result of the rules, non-compliance with any such provision said to be mandatory is not visited with any adverse consequences, the provision should be held not to be mandatory but only directory, even though expressed by 'shall' or 'must'. In these circumstances, according to the well-known canons of construction, the word 'shall' shall be read as 'may'.
7. Applying this principle of interpretation of the rule under consideration, it is obvious that, since marking of a ballot paper by any method of marking other than a cross mark 'X' is not visited with adverse consequences under the rules, it must be held that the provisions of R. 17 regarding the putting of the cross mark 'X' on the ballot paper as indicating the desire to vote for a particular candidate are merely directory and not mandatory. It is equally well settled that, if a particular provision is directory, substantial compliance with that provision will meet the requirements of law and it is from the point of view of substantial compliance that one has to consider this case. So long as the voter expresses his intention to vote for a particular candidate by putting any mark whether 'X' or any mark other than 'X' there would be substantial compliance with the provisions of R. 17, because by putting that particular mark, he expresses his desire to vote for that particular candidate and the underlined words in R. 17, which we have quoted above, go to show that it is the expression of the desire of the voter as to the candidate for whom he desires to vote that is material for the purpose of R. 17. If that desire is substantially expressed viz. by putting any mark whether 'X' or any mark other than the mark 'X' it must be held that R. 17 is compliant with. With great respect to our learned brother, Gangadhara Rao, J. we are unable to agree with his conclusion that the provisions of R. 17 are mandatory and that non-compliance with the provisions of that rule regarding the method of marking would render the vote invalid and not liable to be taken into consideration.
8. The learned Government Pleader appearing on behalf of respondents Nos. 1 and 2 and the learned Advocate appearing for the 3rd respondent placed very strong reliance on the provisions of R. 22 (2) which is these terms:
'As soon as may be after the receipt of election petition under sub-r. (1) the election authority shall make such inquiry as he considers necessary. If, after such enquiry the election authority is of the opinion that the election has been procured or induced by a correct or illegal practice or without complying with any of the rules applicable thereto and that thereby the result of the election has been materially affected, he may declare it void and order fresh election to be held and the said order of the election authorities shall be final.'
It is only when we hold that the there is non-compliance with the provisions of R. 17 that the question of election having been held without complying with any of the rules would arise; but since we find that there was substantial compliance with the provisions of R. 17, so far as the putting of the mark 'X' is concerned, by the ascertainment of the desire of the voter to vote for a particular candidate, there is no non-compliance with any of the rules so far as the election of the petitioner was concerned. Hence, with respect to our learned brother, we are unable to agree with his conclusion, which primarily stems from a reading of R. 17 as mandatory. The only mandatory rule which we find in this context is Cl. (b) of R. 18 and not R. 17.
9. Under these circumstances, we hold that the Election Authority was in error in treating any of the votes cast in favour of the petitioner or in favour of the 3rd respondent as invalid on the ground that the mark which was put was a mark other than the mark 'X' against a particular candidate. Since Rule 19 (a) provides that in the event of there being equality of votes among two or more candidates the election officer shall draw lots and the candidate whose name is first drawn shall be declared to have been elected and since the petitioner was declared to have been elected after the drawing of lots because the petitioner, the 3rd respondent and Srinivasulu Chetty got 96 votes each, the Election Authority was in error, in declaring that the petitioner was not properly elected. Once it is found that none of the votes, which were treated as invalid by the Election Authority on an erroneous interpretation of R. 17 was in fact invalid, it follows that the conclusion reached by the Election Authority and our learned brother, Gangadhara Rao, J. cannot be sustained. It must be held that the petitioner was properly declared elected at this particular election.
10. In the result we allow the writ appeal and the writ petition and set aside the decision of the Election Authority declaring that the petitioner was not duly elected and ordering a fresh election so far as this particular seat was concerned. We therefore, issue a writ quashing the decision of the Election Authority. There will be no order as to costs either in the writ appeal or in the writ petition. Advocate's fee Rs. 150/- in writ appeal.
11. Appeal allowed.