M.S. Menon, J.
1. This is an appeal under Section 116-A of the Representation of the People Act, 1951. The appealis directed against the order of the Election Tribunal, Trichur, dated the 28th February, 1961, in Election Petition No. 14 of 1960.
2. The election was it fill three seats in the Council of States. There were seven candidates, the appellant (petitioner) and respondents 1 to 6. Of these, respondents 4, 5 and 6 did not secure any vote at all in the election. Respondents 1, 2' and 3 were declared elected.
3. The petition is directed against the election of the 1st respondent. The contention of the appellant is that he and not the 1st respondent should have been declared elected. There is no attack as far as the election of respondents 2 and 3 is concerned
4. The entire controversy centres round two ballot papers, Exts. P7 and P8. The Returning Officer accepted Ext. P7 as valid and rejected Ext. P8 as invalid. According to the appellant the Returning Officer should have- rejected Ext. P7 as invalid and accepted Ext. P8 as valid. The Election Tribunal agreed with the Returning Officer and dismissed the petition.
5. Exhibit P8 which was rejected by the Returning Officer as invalid contains only the mark X. That mark appears against the name of the appellant and his contention is that as no other mark appears on the ballot paper it should be considered as an effective vote in his favour.
6. Rule 116 (1) (a) of the Representation of the People (Conduct of Elections and Election Petitions;) Rules, 1956, provides that ''a ballot paper shall be invalid on which the figure 1 is not marked', and as the figure 1 does not appear anywhere in Ext. P8 the action of the Returning Officer in rejecting that ballot paper as invalid was certainly in order and has to be sustained. .
7. Exhibit P7 contains the figure 1 against the name of the 2nd' respondent, the figure 2 against the name of the 3rd respondent and the figure 3 against the name of the 1st respondent. There are no markings against the names of either the appellant or respondents- 4, 5 and 6. If those figures were the only entries in the cages against the names of respondents 1, 2 and 3, there would have been no room for controversy.
8. After the figures 1, 2 and 3, however, the mark X also appears in the three cages. The question for determination is whether the conclusion of the Returning Officer and the Election Tribunal that the mark X after the figures 1, 2 and 3 does not invalidate Ext. P7 is correct or not.
9. Rule 116 (1) (c) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956, provides that 'a ballot paper shall be invalid on which the figure 1 and some other figures are set opposite the name of the same candidate'. The contention of the appellant is that the mark X appearing after the figures 1, 2 and 3 fn Ext. P7 represents the Romam numeral for ten. We find it impossible to accept this contention. As far as we can see the mark represents the St. Andrew's cross, that constant and familiar symbol of selection in democratic institutions.
10. It is also not possible to say that the 'other figures' contemplated in Rule 116 (1) (c) will include anything other than the Indian numerals in rite international form. That only such numerals ace visualised by the rules will also be clear from Rules 73 and 101. As a matter of fact the Roman numerals made with the letters of the alphabet have no place at all in view of Article 343(1) of the Constitution which specifically provides that ''the form of numerals to be used for the official purposes of the Union shall be the international form of Indian numerals.'
11. Rule 116 (1) (d; of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956 provides that 'a ballot paper shall be invalid on which any mark is made by which the elector may afterwards be identified'. The third and final contention of the appellant is that the mark after the figures 1, 2 and 3 in Ext. P7 is a mark of identification and that the ballot paper should be rejected on that ground.
12. It is settled law that a ballot paper is liable to be rejected in such cases only if the mark itself affords an indication of the voter or there is extrinsic evidence from which it can be inferred that it was placed in pursuance of a prior arrangement. This' was settled as early as the leading case of Woodward v. Sarsons and Sadler, (1875) 32 LT 867, in which a provision similar to Rule 11-6 (1) (d) : 'If the voter. ....places any mark on the paper by which he may be afterwards be identified, hisballot paper will be void and will not be counted ........ came up for consideration. See also SolianLal v. Abinash Chander, 4 ELR 55, a decision of the Election Tribunal, Ludhiana.
13. In the language of Halsbury -- 3rd Edition Vol. 14, page 139-
If 'the court comes to the conclusion on looking at the paper that the real thing that the voter has been doing is to try, badly or mistakenly, to give his vote, and make it clear for whom he voted, then these marks should not be considered to be marks of identification unless there is positive evidence of some agreement to show that it was so.'
Our conclusion on an examination of Ext. P7 is that the voter was apparently under the mistaken impression that it was not enough if he ........ or she........ recorded his order of preference by engrossing the figure 1 against the name of the 2nd respondent, the figure 2 against the name of the 3rd respondent and the figure 3 against the name of the 1st respondent; but that he should also add after those figures the normal symbol of voting under the ordinary system of election. In ether words, he was not as familiar as he should have been with the rules for voting under a scheme of proportional representation by the single transferable vote.
14. Shah Sankalchand Motilal v. Shukla Damubhai Chhaganlal, 12 ELR 184, a decision of the Election Tribunal, Ahmedabad, has been of assistance to us. Many of the arguments advanced before us were also advanced before that Tribunal.
15. Our attention, was drawn, to the difference in the wording of Rules 57 (2) (a) and 116 (1) (d).Under Rule 57 (2) (a) a ballot paper has to be rejected 'if it bears any mark or writing by which the elector can be identified' and under Rule 116 (1) (d) a ballot paper has to be rejected if 'any mark is made by which the elector may afterwards be identified'. The emphasis was on the use of the word 'can' in Rule 57 (2) (a) and of the word 'may' in Rule 116 (1) (d). It is true that the word 'can' may indicate that the mark must carry with 'in itself a sufficient power or ability of identification whereas the word 'may' may require only a possibility, a probability or a contingency of identification. In either case it is a question of fact to be determined on the evidence on record, and the further and final question for consideration is whether there is any positive evidence to show that the elector who put the mark X in Ext. P-7 did so in' pursuance of a previous arrangement.
16. This aspect of the case is dealt with in paragraphs 20 to 26 of the Order of the Election Tribunal, In (paragraph 20 it dealt with the averments in the petition and came to the conclusion that the pleadings were 'vague and indefinite'. In paragraphs 21 to 26 it dealt with the evidence adduced, and said :
'I think the vague and indefinite evidence adduced by the petitioner cannot be acted upon to come to a conclusion that the cross marks in Ext. P7 might have been put by any elector under any previous arrangement that he might be identifies, later on.'
17. The evidence to which our attention has been drawn consists of the testimony of Pws. 1, 2 and 6 and Rws. 1 and 2. (Then after discussing evidence His Lordship held:) (18-23) The Election Tribunal has chosen to accept the denials of Rws. 1 and 2 and has refused to find any prior arrangement on the basis of the evidence of Pws. 1, 2 and 6. We have been taken through the entire testimony of these five witnesses and we are not prepared to say that the conclusion reached by the Election Tribunal should be reversed or modified.
(24) No other point which has any material bearing on the result of the election or this appeal was urged or arises for consideration. And in the light of what is stated above the appeal must fail and has to be dismissed. We do so. The appellant will pay the costs of the 1st respondent, advocate's fee Rs. 250/-.