1. This revision petition arises m connection with the election of a councillor for ward No. 5, of the Conjeewaram Municipality in October last. The petitioner before me Mr. Mudaliar and the 1st respondent Mr. Chettiar were rival candidates. The latter got 2 more votes than the former and would in the ordinary course have been declared elected; but the, Chairman held 2 of his votes to be invalid on the ground that the ballot papers on which such votes were recorded, Exs. A and B, did not bear the initials of the polling officer as required by Rule 14, Clause (1) of the Rules framed by the Governor-in-Council for the conduct of Municipal elections and published in the Fort St. George Gazette as notification No. 1120, dated 23rd November, 1920. Having done so, he proceeded to act under Rule 28 and draw lots as the number of votes for the 2 candidates had become equalised; and as the drawing resulted in Mr. Mudaliar's favour he declared him duly elected. Thereupon Mr. Chettiar filed an election petition before the Subordinate judge of Chingleput claiming that the 2 votes in question were valid ones and were wrongly excluded. The learned Subordinate Judge has found as a tact that the 2 votes were actually given by 2 duly qualified voters who voted at the election and that the ballot papers Exs A and B themselves were the outer foils of 2 counter-foils in the voting paper book kept by the polling officer and that there could be no question that the votes were genuine votes recorded by 2 voters entitled to vote. The only objection urged to the reception of these votes was as already stated that they did not bear the polling officer's initials. No other rule or provision is said to have been infringed. In these circumstances the Subordinate Judge held that it was wrong to reject the votes as invalid and that they should be counted in Mr. Chettiar's favour. That made the number of votes in his favour larger than the number Mr. Mudaliar got. Consequently he set aside Mr. Mudaliar's election and declared Mr. Chettiar as properly elected. The revision is against that order.
2. From what is stated above it is clear that the question to be considered is whether a vote is to be treated as invalid and rejected on the sole ground that it does not bear the polling officer's initials even though it is proved that in all other respects it is a properly recorded vote by a duly qualified voter. The decision of the point is obviously material in the present case as the result of the election entirely turns on it.
3. The learned Vakil for the petitioner contends that the mere absence of the polling officer's initials on the ballot paper is sufficient by itself to invalidate the vote and he relies upon the ruling in Shyam Chand Basak v. Chairman, Dacca Municipality I.L.R. 47 C. 524, In that case the question was not one of the invalidity of a vote given at an election properly held as here but of the invalidity of the whole election itself on the ground of its having been held out of the proper hours fixed for it. There the election was begun later and continued later in the morning and begun earlier in the afternoon than the time fixed for it. The question before the learned Judges was whether that irregularity vitiated the election in toto. After an elaborate discussion of the case-law on the point the learned judges held that the condition infringed was not a mandatory one and that the election could be upheld if it was shown that its result was not affected by the error or irregularity committed, the burden to prove which was on the person supporting the election; but that if there was reasonable ground to believe that the result was affected by the irregularity the Court should set it aside. If I may say so respectfully I entirely agree with the views expressed in this case. Though the ruling is not strictly in point as we are dealing with a case of a vote being challenged and not the election itself the principles laid down may be applied to the present case and applying them it will follow that if nothing more appeared than that Rule 14 Clause (1) was infringed as regards the 2 votes that would be a prima facie ground for rejecting those votes; but if it is proved by evidence that the votes were given by duly qualified voters on ballot papers supplied to them by the polling officer they should not be rejected. In this case such evidence is forthcoming and the learned Subordinate Judge has found that the votes are genuine and I must accept that finding in revision; on that finding I am of opinion that Subordinate Judge's view that the votes should be counted is correct.
4. I do not consider Rule 14 Clause (1) as a mandatory rule the infringement of which will render the vote necessarily invalid. The rule is evidently intended to identify the ballot paper as one given out by the polling officer. If as in this case the paper can be so identified by other evidence, the absence of the initials may, I think, be disregarded. The difficulty in any particular case will be. to prove such identity.
5. Rules 13, 14 and 15 show how votes are to be recorded. When a person presents himself to vote he is given under Rule 13 a signature slip on which his name and number in the electoral roll are entered and which he has to sign or put his thumb impression on, if he is illiterate. The polling officer files the slip if, as in this case, there is no question of the voter's identity. Under Rule 14 the voter is then given a ballot paper with the initials of the polling officer on its back and the polling officer has also at the same time to enter the voter's number on the electoral roll in the counter foil and put his initials against his name in the electoral roll. Under Rule 15 the voter who has got the ballot paper secretly puts a mark against the name of the candidate he votes for and folds and deposits the paper in the ballot box. These rules are evidently intended to enable a person who is a duly qualified voter to give his vote secretly and freely, on the ballot paper supplied to him by the polling officer, to the candidate he approves of. So long as this object is shown to have been attained in spite of the infringement of any rule, such infringement cannot I think justify the rejection of the vote; more particularly when the infringement is not by the voter but by the polling officer for whose default he cannot properly be held responsible.
6. Rule 17 provides what irregularities necessarily invalidate a vote; there is no reference in this rule to the failure on the polling officer's part to initial as required by Rule 14 as invalidating a vote. It is clear therefore that rule 14 is not a mandatory rule the non-compliance with any part of which would necessarily invalidate a vote. In the corresponding Ballot Act of 1872 in England there is a provision in Part 1 Section (2) which requires the ballot paper to be officially marked on both sides; and the 2nd paragraph of that section says that any ballot paper that has not the official mark on its back shall be void and not counted. A question arose in England whether the absence of the official mark on the front of the ballot paper would vitiate a vote or not, in the case of Ackers v. Howard (1886) 16 Q.B.D. 746. Their Lordships held that a ballot paper conforming in other respects to the requirement of the Ballot Act was not void because it has not the official mark on its face. That case is very similar to the one before us. In the Islington case (1901) 5, O'malley and Hardcastle page 125 it is observed by Kennedy, J., that 'an election ought not to be held void by reason of the transgressions of the law, committed without any corrupt motive by the returning officer or his subordinates in the conduct of the election where the court is satisfied that the election was notwithstanding these transgressions, an election really and in substance conducted under the existing election laws, and that the result of the election, that is, the success of the one candidate over the other, was not, and could not have been, affected by these transgressions.' It may be said with equal force and justice that a vote ought not to be held void on account of the mistake of the polling officer, in the conduct of the election, made without any corrupt motive where the Court is satisfied that the vote was really given in substantial accordance with the election rules by a duly qualified voter to a candidate.
7. For the above reasons I would hold that on his findings of fact the Subordinate Judge's view is correct and dismiss this C.R.P. with costs.