Lakshmana Rao, J.
1. These applications arise out of a petition filed by respondent 1 in C.M.P. No. 4314 of 1933 to set aside the election of the petitioner therein as the president of the Taluk Board of Erode and declare himself to be the validly elected president, and the unquestionable facts are that the election was held in accordance with the rules for the election of Presidents of Local Boards, at a meeting of the Board specially convened for the purpose. The petitioner and respondent 1 were the only candidates and 21 votes were recorded. The petitioner obtained 12 votes as against 9 secured by respondent 1 but 11 of the former and 1 of the latter were marked by the president of the meeting according to the open directions of the concerned members who professed to be unable to make the mark and applied for his assistance. The president of the meeting had no option in the matter as Clause (3), Rule 5 requires him to mark the voting paper if the voter declares himself to be unable to read or to make a mark on the voting paper, and respondent 1 who objected in vain, filed the election petition out of which these applications arise, grounding it on the violation or circumvention of Clause (2), Rule 5 which provides that on receipt of the voting paper the voter shall proceed to the place set apart for the purpose and there place his mark against the name of the candidate for whom he -wishes to vote and then fold up the voting paper so as to conceal his vote and deposit it in a ballot box placed tin the view of the president of the meeting. It was not however alleged that the petitioner was responsible for the violation of the rule which was obviously pre-arranged, and though it was contended that the election cannot be set; aside unless it is proved that the result of the election has been materially affected by the breach of the rule; no inquiry was held about it. The election has been set aside on the ground that the violation of the rule must have materially affected the result of the election and a fresh election ordered-The petitioner in C.M.P. No. 4314 questions the jurisdiction of the election commissioner to set aside the election in the absence of any proof that the result of the election was materially affected by the violation of Rule 5, Clause 2, while besides attempting to support this part of the order on the ground that the votes m question are invalid, respondent 1 questions the propriety of the order for fresh election.
2. The rule for the election of Presidents of Local Boards do not, unlike the rules for the election of members of Local Boards, render the votes in question invalid and as pointed out in Ahmad Thambi Maracayar v. Basava Maracayar A.I.R. 1923 Mad. 254 , no breach of the rules whether mandatory or directory invalidates the election unless the result of the election has been materially affected by such breach. The result of the election must be affected in some other way than by the mere breach of the rule and it is a question of fact to be decided by the election commissioner. The breach of an election rule will not in itself justify the finding that the election is in valid and being pre-arranged it cannot be said in this case that the breach of the rule must in itself have resulted in and produced some other result which in itself has the effect of invalidating the election. It was therefore incumbent on the election commissioner to enquire and decide whether the result of the election was in fact materially affected by breach but this was not done. He has thus omitted to decide the one point in the case which gives him jurisdiction to set aside the election and it follows that his order is unsustainable. It is therefore set aside and he will be directed to dispose of the election petition in the light of the above observations after giving the parties an opportunity to adduce their evidence. The costs of these petitions will be costs in the cause and provided for in the final order.