V.P. Tyagi, J.
1. This writ petition of Magharam is directed against the judgment of the learned Munsiff, Ratangarh dated 24-9-70 whereby the election petition of respondent No. 1 Shri Hanuwant Singh filed under Rule 6 of the Rajasthan Panchayat Samiti and Zila Parishads (Election Rules), 1959 challenging the election of the petitioner was accepted.
2. The facts giving rise to this petition are in a nut-shell, as follows:--
On account of the retirement of the two members from the Standing Committee (Finance, Tax and Administration) of the Panchayat Samiti, Sujangarh a special meeting of the Samiti was summoned on 2-8-68 for filling the aforesaid two vacant posts. The petitioner as well as non-petitioner No. 1 filed nominations and contested election. After counting of votes polled, it was found that both the petitioner and the respondent No. 1 polled equal number of votes. The petitioner was, however, declared duly elected after drawing lot. The election was challenged by respondent No. 1 by preferring an election petition before the learned Munsiff inter alia on the ground that the two votes cast in favour of the respondent No. 1 were erroneously rejected by the Presiding Officer.
3. The learned Munsiff opened the ballot papers and scrutinised the two rejected votes. On one of these two votes a mark zero (0) was put against the name of respondent No. 1, while' on the another ballot paper the voter had put a horizontal line in column 3 against the name of respondent No. 1. The Presiding Officer rejected these two votes on the ground that the voter did not express his preference for a candidate in accordance with Rule 10 (3) of the Rajasthan Panchayat Samiti and Zila Parishad (Election of Members of Standing Committee) Rules, 1959. The learned Munsiff, however, took a different view about these rejected votes and held that a voter could express his intention by putting any other mark except cross (X) in favour of a candidate as Rule 11 of the said Rules does not require such votes to be rejected by the Presiding Officer and, therefore, election petition was accepted by the learned Munsiff, Ratangarh and he declared the respondent No. 1 duly elected as a member of the said committee by declaring these two rejected votes as valid votes in favour of the respondent No. 1.
4. Nobody has appeared on behalf of the respondents.
5. The learned counsel for the petitioner urged that the voter can express his intention on a ballot paper only in the manner prescribed by rule and not in any other manner. According to him the voter is required to place a cross (X) mark in column No. 3 of the ballot paper, duly authenticated by the seal and signatures of the Pradhan against the name of a candidate for whom he wants to cast his vote and if the voter failed to put a cross (X) mark in column No. 3 and has put any other mark then such a mark cannot signify his intention to vote for a candidate in whose column such a mark has been put by a voter. It was strenuously urged by the learned counsel for the petitioner that Rule 10 (3) of the said Rules which prescribes the method of voting is mandatory and non-compliance thereof vitiates the ballot paper and it cannot be counted in favour of a person in whose column the mark other than the cross mark has been put by a voter. Reliance has been placed by the learned counsel in support of this argument on three Supreme Court authorities namely; (1) Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233: (2) Narbada Prasad v. Chhagan Lal, AIR 1969 SC 395; (3) Hari Vishnu Kamath v. Gopal Swamp Pathak, AIR 1970 SC 819).
6. In the case of Hari Vishnu Ka-math v. Ahmad Ishaque, AIR 1955 SC 233. The Presiding Officer supplied to the voters for parliamentary election ballot papers which were to be used for the election of assembly constituency. The voters cast their votes on those ballot papers. It was urged on behalf of the petitioner that as the object of the Election Rules was to discover the intention of the majority of the voters in the choice of a representative, and if an elector has shown his clear intention to vote for a particular candidate even though the vote might be bad for non-compliance with certain formalities, such votes should not be rejected. The Supreme Court while rejecting the plea of the learned counsel for the appellant observed as follows:--
'But when the law prescribes that the intention should be expressed in a particular manner, it can be taken into account only if it is so expressed. An intention not duly expressed is, in a Court of law, in the same position as an intention not expressed at all.'
7. In Narbada Prasad's case, AIR 1969 SC 395, who was an elector in a different constituency, and who did not produce the electoral roll of that constituency or a relevant part thereof or a certified copy of the relevant entry therein along with the nomination paper and produced simply a certificate from the Tehsildar showing that he was registered as a voter in the electoral roll in a different constituency, the nomination paper of Narbada Prasad was rejected by the Returning Officer because he refused to place any reliance on the certificate issued by the Tehsildar. The case when came up before the Supreme Court it was strenuously contended on behalf of the appellant that the provisions of Section 33(5) of the Representation of the People Act were substantially complied with by producing a certificate by the Tehsildar and, therefore, the rejection of the nomination paper could not be upheld. Their Lordships of the Supreme Court held that 'if the law requires particular thing to be done in a certain manner, then it must be done in that manner or not at all. Other modes of compliance are excluded.'
8. In AIR 1970 SC 819, in a subsequent case filed by Hari Vishnu the election of the Vice President was challenged on the ground that the nomination paper of Dr. Ram Sharan Dass was wrongly rejected by the Returning Officer on the ground that the nomination paper was not delivered in person.
9. Rule 4 of the Presidential and Vice Presidential Election Rules, 1952 provides only one delivery either in person by the candidate or by his proposer or seconder between hours of 11 in the forenoon and three in the afternoon, but Dr. Ram Sharan Dass Sakhuja sent his nomination paper by post. The Returning Officer refused to accept the nomination paper as valid nomination. The petitioner raised a plea before the Supreme Court that the nomination paper received by the Returning Officer through post which was complete in all respects, must be taken to be a valid nomination paper. Their Lordships of the Supreme Court rejected this plea of Mr. Kamath on the ground, that rule provides one method of presentation and that method of presentation must be followed. Their Lordships in this connection observed, 'as we have mentioned before, the rules contemplate only one method of presentation and if that method is not followed the nomination papers cannot be held to be validly presented and must be rejected outright'
10. These decisions of the Supreme Court leave no room for doubt that if aparticular method has been prescribed under rules to express the intention of a voter to prefer a particular candidate, then the intention must be expressed strictly in accordance with the procedure laid down by the rules, and if the intention is expressed in a method different from the one prescribed by the rule then that intention cannot be taken into account. Their Lordships have clearly said in 1955 SC 233 that, 'intention not duly expressed is in a Court of law, in the same position as an intention not expressed at all.'
11. Rule 10 (3) of the Rajasthan Panchayat Samiti and Zila Parishad (Election of Members of Standing Committee) Rules, 1959 clearly lays down that a voter can place a cross mark (X) in column 3 of the ballot paper duly authenticated by seal and signatures of the Pradhan against the name of the candidate for whom he prefers to vote. .... .These Rules also prescribe inAnnexure II a specimen of the ballot paper and therein it is mentioned that in column 3 a mark cross (X) shall be put by a voter. These provisions of the rules make it abundantly clear that the law requires a voter to express his preference for a candidate only by putting a cross mark in column 3 in the ballot paper and in no other manner. If the voter has put mark zero (0) or has drawn a horizontal line (--) in column No. 3 against any candidate then that mark cannot be taken as an expression of the voter's intention in favour of that candidate against whose name such a mark has been put by a voter.
12. While accepting the two rejected ballot papers the learned Munsiff placed reliance on the provisions of Rule 11 of the Rules. I feel that the trial Court has erred in incorrectly assessing the scope of Rule 11 which deals with certain conditions in which the ballot paper can be declared invalid. It has nothing to do with the marking of the ballot paper while expressing the intention of a voter in preference to any one of the candidates. The provisions of Rule 11, therefore, cannot be invoked to justify the acceptance of the two rejected ballot papers which were not marked in accordance with the provisions of Rule 10 (3).
13. If the cross mark (X) is placed against the name of candidate in a place different from the place ear-marked for that purpose then it does not create any difficulty in finding out the real intention of the voter. But if in place of cross mark (X) the voter had put any other mark on the ballot paper, then it is difficult to say that that indication was given by the voter to express his preference for the candidate. Out of the two ballot papers which were rejected by the Presiding Officer one contained a mark of zero (0) and the other a horizontal line (--) against the name of the respondent No. 1, but it is difficult to say whether these two marks were chosen by the voters to express their preference for the candidate. One cannot say as to how the mind of the voter was working when he put a horizontal line or zero in the ballot paper, In these circumstances it is difficult for the Court to infer that these marks gave indication of the mind of the voters to express their preference to respondent No. 1. These two ballot papers therefore, could not be accepted as valid ballot papers in favour of respondent No. 1.
14. The writ petition is, therefore, allowed and the impugned order of the learned Munsiff dated 24-9-70 is set aside.
15. As nobody has appeared to contest this petition, I pass no order as to costs.