1. This Civil Writ petition under Articles 226 and 227 of the Constitution of India, has been filed under the following circumstances:--
2. The petitioner and respondents Nos. 3 to 11 contested the panchayat elections held on July 3, 1971 for membership of the Gram Panchayat of village Ikkas, Tehsil and District Jind. There was a tie between the petitioner and respondent No. 3 for the last seat of a panch, as both of them had polled 76 votes each. One of the votes, polled by the petitioner was, however declared to be invalid on the ground that it did not bear the official mark of the presiding officer, respondent No. 2 as required by Rule ' 34(b) of the Haryana Gram Panchayat Election Rules, 1971. The petitioner was, therefore, declared to have lost the contest for the last seat and respondent No. 3 was returned as the successful member of the Gram Panchayat. The petitioner filed an election petition, but it is has been dismissed by the prescribed authority respondent No. 1, by his order dated August, 8, 1972. (Annexure A to the writ petition). The petitioner, therefore, prays that the impugned order of respondent No. 1 should be quashed and the return of respondent No. 3, as a member of the Gram Panchayat should be set aside.
3. No one has put in appearance on behalf of any of the respondents. The main submission made by Shri Jain, the learned counsel for the petitioner, is that there should have been an express mandatory direction issued under Rule 16, that the ballot papers shall contain an official mark before a ballot paper could be rejected under Rule 34(b) of the Haryana Gram Panchayat Election Rules, 1971 on the ground of the omission or absence of that official mark. This submission can be properly appreciated only if we reproduce the pertinent rule, which runs as follows:--
'34. Rejection of ballot papers.
A ballot-paper contained in a ballot-box shall be rejected, if:--
(a) it bears any mark or writing by which the voter can be identified;
(b) in the case, where a direction has been issued under Rule 16 that the ballot-paper shall contain an official mark it does not contain, an official mark;
(c) the Presiding Officer or the Returning Officer as the case may be is satisfied that the ballot paper is spurious or that it has been so damaged or mutilated that its identity as a genuine ballot paper cannot be established.'
4. It is obvious from a reading of clause (b) of the above cited rule that a ballot paper could be rejected on the ground that it does not bear any official mark only if an express direction had been issued under Rule 16, that all ballot papers shall contain such an official mark. The averment made by the petitioner in the writ that no such direction had been issued under Rule 16 has gone uncontroverted. I have seen the impugned order passed by the prescribed authority, respondent No. 1 and this submission made by the petitioner may appear to have been by-passed or side-tracked on wholly unintelligible grounds. I, therefore, take it that no direction had been issued under Rule 16 that the ballot papers shall contain an official mark and that Rule 34(b) could not be invoked for rejecting on any such grounds, one of the ballot papers found in the petitioner's box. The tie resulting from the petitioner and respondent No. 3 having polled an equal number of votes each had, therefore to be resolved by draw of lots as provided in Rule 33. The petitioner may, therefore, appear to have been eliminated from the contest in disregard of the provisions of these rules.
5. The civil writ petition is accordingly allowed and orders passed by the respondents Nos. 1 and 2 are quashed and it is directed and the tie between the petitioner and respondent No. 3 should be resolved in accordance with the provisions of Rule 33 of the Haryana Gram Panchayat Election Rules, 1971. Shri Jain does not press for any order as to costs in this case.
6. Writ petition allowed.