1. This is an application to revise the order of the Subordinate Judge of Tinnevelly dismissing the petition of the petitioner. The petitioner and the respondent contested a seat in the Palamcottah Municipality. The respondent was declared elected and the (petitioner filed an application before the Subordinate Judge, Tinnevelly, for declaring the election of the respondent illegal. The Subordinate Judge held that the election was vitiated by illegality and allowed the petition. An application was made to this Court by the respondent which came on for hearing before Curgenven, J. Umar Uduman Tharaganar v. Moideen Pillai : AIR1929Mad257 He held that he was bound by the decision of the learned Subordinate Judge on the question of illegality and remanded the petition to the Subordinate Judge for a fresh finding upon the issue,
whether the election was materially affected by the irregularity found
and for disposal accordingly. The Subordinate Judge has now found that the irregularities, if any, did not affect the result of the election. His finding is:
it is therefore not possible to say whether the inclusion of these votes has is any way materially affected the result of the election.
2. Mr. Krishnaswami Ayyar for the petitioner urges that the absence of the representative of the client before the polling officer vitiated the election inasmuch as the rules framed under the District Municipalities Act require the presence of the candidate or his agent before the polling officer. He relies upon Rule 9, the relevant portion of which is as follows:
The polling officer shall exclude all persons except his own clerks, the candidates or agents whom the candidates may have appointed in writing to appear in their stead at the polling station, the police on duty and such persons as may be admitted for the purpose of identifying the electors.
3. His contention is that this rule is imperative and the presence of the candidates or their agents before the polling officer is necessary in order to validate the election, when ignorant and illiterate voters go to the polling booth for the purpose of recording their votes. The rule as regards the marking of a ballot paper by illiterate people is Rule 15, which is as follows:
15 (1) ' If the voter is unable to read the ballot paper or to make a cross thereon, and applies for assistance in doing so, the polling officer shall read it for him and, if so required, mark the ballot paper according to 'he directions of the voter and give it to him to put in the ballot box,
(2) In the case of every voter whose ballot paper is marked in this manner by the polling officer, a note shall be made on the corresponding counterfoil of Form. No. 5 by the polling officer of the reason why it was so marked.
4. There is nothing in the judgment of the lower Court to show that Rule 15 was not complied with. What is complained of is that the candidate's agent not being allowed to be present before the polling officer at the time when the ignorant or illiterate voters asked the assistance of the polling officer for the purpose of marking a ballot paper vitiated the election. There is no rule 'which says that the candidate or his agent should be present before the polling officer at the time when an illiterate voter records his vote in the manner provided for by Rule 15. If the contention of the petitioner is to be upheld, it would amount to this, that an election may be illegal if a candidate purposely abstains from being present before the polling officer, or does not send his agent to be present before him at the time when an illiterate voter goes to record his vote. Supposing he is unable to send an agent owing to distance, is the election to come to a stop because neither the candidate nor his agent is present to see that the polling officer records the vote as required by the illiterate voters? [ may even go the length of saying that when a party finds that the election is going against him he might wilfully abstain or stay away from the polling booth and remove all his agents from the booth and send one or two illiterate voters for the purpose of recording votes and might afterwards contend that the whole election is bad because when the illiterate voters recorded their votes, neither the candidate nor his agent was present. I do not think that the rules contemplate any such presence as is contended for by the petitioner. We have to see whether Rule 17 has been complied with in this case. Rule 17 is as follows:
17(1) Any ballot paper which is not duly marked or on which votes are given to more candidates than there are members to be elected, or on which any mark is made by which the voters may afterwards be identified, shall be invalid.
(2) If more than one cross is placed against any candidate's name they will count only as one vote in his favour, provided that the voter has not placed crosses against more candidates than there are members to be elected.
5. Now the rule is imperative that a ballot paper shall be marked in the manner provided for by the rules and the way in which the ballot paper is to be marked is laid down in Rule 14 and as already observed in the case of the illiterate voters, Rule 15 is to be conformed to. There is nothing to show that Rule 15 was not conformed to in this election. The learned Subordinate Judge found that the polling officers were respectable men and that there was no suggestion that they did anything other than what was required by them by the illiterate voters.
6. Another contention raised by Mr, Krishnaswami Ayyar is that I am precluded from considering this question because it has already been considered by Curgenven, J. I cannot uphold this contention. When the matter came up on a previous occasion, no doubt the learned Judge in a way held that he could not interfere with the order of the Subordinate Judge. But the matter comes up before me on the ground raised by Mr. Krishnaswami Ayyar that Rule 15. was not complied with and therefore the election is bad and in considering this contention I am entitled to consider whether the rules have been conformed to and, if so, whether the election is good or bad. When I find that Rules 15 and 16 have been complied with, there is no ground for complaint that any order on a previous occasion has been interfered with. There is nothing in. the election proceedings to show that the mandatory provisions contained in the rules have been violated. There is no reason to interfere with the result of the election.
7. It is suggested that if there was counting of his votes the petitioner would: have succeeded. There is no reason to order counting because we have not come to that stage in this case. If it be found that certain votes were improperly cast and there was irregularity in the conduct of the election or some mandatory rule was not complied with, then it will be a question for the Court to consider whether it should do so. In this case we have not such a finding and therefore it is not necessary to consider this argument at any length. I hold that there is no reason to interfere with the order of the lower Court and dismiss 'the petition with costs.