(1) This petition under Arts. 226 and 227 of the Constitution of India is directed against the order of Shri R. S. Bhatia Magistrate 1st Class Narnaul setting aside the election of the petitioners.
(2) The petitioners contested the election to the Gram Panchayat Bhodi for the office of the Sarpanch in which his rival was the respondent Man Singh. The total number of votes polled in this Constituency were 254. Out of these votes, 130 were secured by the petitioners and 124 were secured by the respondent. Accordingly the petitioners was declared as the successful candidate. This led to an election petitioners by respondent Man Singh.
(3) A Large number of grounds were raised in this petitioners and the controversy that had to be decided by the Prescribed Authority would be apparent from the issues that fell for determination in the election petitioners. These issues are set out below:--
1. Whether the election programme was ever framed issued or published by any competent authority? If not what effect?
2. Whether any list of symbols was ever published according to law and rules by any competent authority? if not to what effect?
3. Whether the appointment of Returning Officer and Presiding Officers was made by any competent authority? If not what effect?
4. Whether the nomination paper of the respondent was notified according to law and the list was published according to rules? If so, to what effect?
5. Whether the voters list used at the time of election was not prepared and published according to law?
6. Whether the ballot papers used at the time of election were invalid and that they did not bear the prescribed official seal? If so, to what effect?
7. Whether the ballot papers used at the time of election were spurious and in a damage condition If so, to what effect?
8. Whether the ballot papers were validly issued and their numbers were noted in the voter's list according to rules? If not to what effect?
9. Whether ballot papers were not counted according to rules? If so, to what effect?
10. Whether any separate list of material irregularity was required to be attached with the election petitioners If it was no required what is its effect?
11. Whether the petitioners is false frivolous and respondent is entitled to compensate the costs if so, to what extent?
12. Whether any ballot papers issued for Sagarpur Panchyat Election have been used in the Panchayat Election of bhodi If so, to what effect?
13. Whether Rohtas and Khem Chand were up competent to exercise their right to vote?
All the issues exception issues Nos. 6 and 9 were decided in favour of the petitioners and against the respondent. Only issues Nos. 6 and 9 were decided against the petitioners. The sum total of the finding on both these issues is that the ballot papers were invalid as they did not bear the prescribed seal and therefore they should not have been counted according to rules.
 The contention of the petitioners is that at doubt the ballot papers did not bear the prescribed seal, but this omission was due to the fact that the instruction in this behalf under Rule 16 were not conveyed and therefore the omission of the prescribed seal will not render them as invalid and election of the petitioners to the office of the Sarpanch could not be set aside. This decision of the Prescribed Authority setting aside the petitioners election is being challenged in this petitioners.
(5) So far as the facts go there is no dispute. The matter relates purely to the constructions of rules 16 and 34 of the Gram Panchayat Election Rules 1963. These rules are in these terms:--
'16. The Director may direct that before any ballot-paper is delivered to a voter at a polling station it shall be marked with such official mark is may be specified by him in this behalf and the official mark so specified shall be kept secret.
34. 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 spurious or that it has been so damaged or mutilated that its identity as a genuine ballot-paper cannot be established.'
It will be apparent from the reading of rule 16 that the direction to mark the ballot-papers is not mandatory. It is open to the Director to give such a direction or to desist from giving such a direction. Once a direction is given in this behalf under rule 34(b) a ballot-paper which does not bear the mark require by rule 16 has to be rejected. In the present case the evidence led by the respondent clearly proves that the direction issued under S. 16 never reached the Presiding Officer. A direction to be effective under Rule 34(b) has to reach the position would be that then no direction. In the present case the Presiding Officer is also the Returning Officer. The State in its returned also admits that the direction issued under Rule 16 never reached the Presiding Officer. If the directions did not reach the officer concerned it cannot be said that there was a direction issued the non-compliance of which brings into play Rule 34(b).
The Prescribed Authority was aware of the fact that there were in fact no direction under Rule 16 which had been received by the officer concerned. However the prescribed authority on the basis of the certain decision proceeded to hold that irrespective of the fact that the direction did not each the Presiding Officer but had been issued therefore under Rule 34(b) the ballot-papers not bearing the required mark have to be rejected and in this case all of them. One of the decisions relied upon is a decision concerning in the identify of the voter. That decision stands on a totally different footing. Once the identity of the voter is disclosed the secrecy of the ballot is destroyed. It is fundamental to an election that the secrecy of a ballot should be maintained. If it is not the election would be void.
So far as the present case is concerned the non-marking of the ballot-paper has not in any manner materially affected the election or its result. The election has been fairly and properly held as is evidence from the fact that the reach between the two contestants has been neck to neck. There is no proof that the non-marking had caused any prejudice to any party to the election. The defect is merely formal and is not of a substantial character. It is also fundamental that no election should be lightly set aside. Particularly so when the fault in not marking the ballot papers is that of the higher authorities, who failed to communicate the directions within time. In this view of the mater I am clearly of the view that the Prescribed Authority has gone wrong in setting aside the election. The error is patent on the fact of the record. If correct construction had been placed on Rule 16 the election could not have been set aside.
(6) For the reasons given above this petitioners is allowed and the orders of the Prescribed Authority setting aside the election is set aside. There will be no order as to costs in this petitioners.
EL/LGC/D. V. C.
(7) Petition allowed.