Ramachandra Iyer, J.
1. On 20th June, 1958, elections were conducted to the Panchayat of Pariyur, a minor Panchayat in the Coimbatore district. The Panchayat was divided into four wards, each one being entitled to return three candidates, thus making up a total of 12 members for the Panchayat Board. There were two factions in the village, one led by N.V. palani Gounder (Respondent's party to be referred to as N. V. party) and the other by N.K. Palani Gounder (Petitioner's party to be referred to as N.K. party). One T.M. Sivagurunathan was originally appointed as an Election Officer to conduct the elections for the four wards of the Panchayat. It is stated that, at the instance of the N.V. party, he was transferred, and in his place one L. Section Ramaswami was appointed to conduct the elections. N.K. party protested against the appointment of L.S. Ramaswami who, according to them, was a partisan and close associate of N.V. Palani Gounder. But the protest was of no avail. Elections were held as scheduled: but the results, which should have been announced on the very day of the counting, were not so done. The declaration of the results was made only on the following day, viz., 21st June, 1958. It was found that the candidates set up by N.V. party were successful and were declared elected. The defeated candidates, thereupon, filed petitions to set aside the elections before the Election Commissioner (District Munsif, Gobichettipalayam). In the petitions filed, several irregularities were mentioned. There were also charges of personation and other election offences. It is not material to refer to the several grounds, on which the elections were challenged, except one which I shall have to deal with. The Election Commissioner held that there was no proof of any corrupt practice though there were serious irregularities in regard to the issue of ballot papers and the polling of the votes. But, as he was of the view that the results of the election were not materially affected thereby, he dismissed the petitions. The validity of the orders is challenged by the four of the disappointed candidates in the four wards.
2. Before considering the ground on which the election is now challenged, it is necessary to set out certain facts. For the first ward, there were three seats to be filled up. Four candidates competed. The number of voters, as found by the Election Commissioner who obtained ballot papers, was 227. Each of them was given three ballot papers, as they were to elect three representatives for that ward. Therefore, the total number of votes which could have been recorded by the 227 voters would be 681, assuming that all of them utilised all the three votes. But the Election Officer actually issued 711 ballot papers and when the ballot boxes were cleared, it w as found that the number of votes recorded were 666. It will be seen that 45 ballot papers are missing, and there is no explanation by the Election Officer as to why there was any necessity for issuing more ballot papers than the number of voters required.
3. As regards the second ward, the number of ballot papers issued and number of votes polled tally, and no reference need be made to that ward any further.
4. For ward No. 3, there were four candidates for three seats. 582 ballot papers were issued; but, strangely enough, 588 votes were found in the ballot boxes. Thus, there were six votes more than the actual number of ballot papers issued.
5. For ward No. 4, there were four candidates for three seats. The number of ballot papers originally recorded as issued was 611. That number was later corrected as 612. The Election Commissioner has held that the correction must have been dishonestly made by the Election Officer. The reason for the correction is not far to seek. If each voter were to be given three ballot papers 611 ballot papers would not have been given, as that number is not divisible by three. The mistake was evidently realised, and the number was presumably corrected into the next higher multiple of three, namely 612. But, whatever that might be, the actual number of votes found in the ballot box exceeded that number. There were 660 votes. There is no explanation as to why out of 611 or 612 ballot papers issued in respect of that ward, 660 could be recorded. It will be idle to speculate whether the excess ballot papers issued for the first ward were utilised for the 4th ward, or duplicate ballot papers were printed and utilised for ward Nos. 3 and 4. Taking an over-all picture of the entire Panchayat, the position is that the total number of ballot papers issued was 2,532, while the total number of votes found recorded in the ballot boxes was 2,541, 9 votes being thus in excess of the ballot papers issued. There is no explanation by any body as to how it came to happen that there were more votes in the ballot boxes than the number of ballot papers issued.
6. In considering the election petition relevant to W.P. No. 381 of 1959, the Election Commissioner made certain observations about the way in which the Election Officer conducted himself. He stated:
We find from Exhibit A-13, which is a report sent by the Election Officer (R.W. 2) to the Election Authority (4th respondent herein) that the Election Officer has specifically stated that 611 papers were issued to the voters in Ward No. 4 and that there were 49 papers in excess inasmuch as 660 ballot papers were found in the boxes. In Exhibit A-10, which is the record of counting under Rule 11(3) for Ward No. 4, it is stated that 612 ballot papers were issued and that there was an excess of 48 ballot papers. While cross-examined R.W. 2 admitted that he first wrote 611 and 49 and then corrected the same as 612 and 48. But he further added that he made the corrections on 20th June, 1958 itself. On the back of Exhibit A-10 also we find that 611 is corrected to 612. Similarly, while totalling up he first arrived at the figure 2,531, which he later corrected as 2,532. I am presently going to show that this version of R.W. 2 is false. Exhibit A-13 is dated 21st June, 1958. On that date he has given the total number of votes issued as 611. That being so, his version that on the previous day itself be made the correction in Exhibit A-10 also cannot be accepted. Again, we find that in Exhibit A-13 R.W. 2 has stated that the excess papers were 49, whereas we find in Exhibit A-10 that they were only 48. This is also another indication to show that the correction in Exhibit A-10 was made only subsequent to 21st June, 1958. We do not know when exactly R.W. 2 has made this correction. I leave it to the Regional Inspector of Local Boards to satisfy himself about the conduct of R.W. 2 in thus having tampered with Exhibit A-13 after it reached his office. But, at this stage I would only like to observe that Exhibit A-10 is a very solemn document that has been attested both by the village munsif and the karnam of the village. This has also been signed by the contesting candidates, namely, the petitioner and respondents 1 to 3 in O.P. No. 25 of 1958. Such a document has been tampered with by R.W. 2 subsequently which act is very much open to objection.
Although the Election Commissioner found that there has been a serious irregularity in the conduct of the election, he declined to set it aside on the ground that the results of the election were not materially affected by the irregularity. It is necessary to consider that question now. Rule 4 of the Rules Relating to the Conduct of the Election of Members to the Panchayat, contained in G.O. Ms. No. 430, L.A., dated nth March, 1958 states:
The officer or person so presiding (hereinafter referred to as the Presiding Officer) shall keep order at the place of election, shall see that the election is fairly conducted, shall regulate the number of electors to be admitted at one time and shall exclude from the place of election all other persons.' (Rest of the rule omitted as unnecessary.)
It needs no saying that, for the proper conduct of an election, the Presiding or Election Officer should be honest, and should be fair to all the candidates. Where the Election Officer colludes with one side, and goes even further and participates in a fraud in the conduct of the election, the election so conducted would be a farce. The utility of representative institutions would then cease to exist. There can be no doubt that the irregularities to which I have made reference, namely, the issue of more ballot papers than necessary, recording of more votes than there are voters, are serious ones. Rule 11 of the Rules framed for the Decision of Election Disputes states:
If in the opinion of the Election Commissioner:
(c) the result of the election has been materially affected by any irregularity in respect of a nomination paper or by the improper reception or refusal of a nomination paper or vote or by any non-compliance with the provisions of the Act or the Rules made thereunder.
In the present case, there has been an improper reception of a number of votes, and there has been a non-compliance with the rules of the Act, in that the Election Officer has not been fair to the rival candidates.
7. The question then is whether it can be said that the results of the election has been materially affected by reason of such irregularities and illegalities. The Election Commissioner has come to the conclusion that the results of the election were not materially affected, as, according to him, there was only a difference of 9 votes between the number of votes issued and number of votes polled, when the entire panchayat is taken into consideration, and that having regard to the difference between the last of the successful candidates and the disappointed candidates, the results of the election could not be held to have been affected by the presence of nine extra votes. In coming to the conclusion, the learned Election Commissioner appears to have been influenced by the observations of Panchapakesa Aiyar, J., when the matter came up before him at an interlocutory stage. (In W.Ps. Nos. 596 and 597 of 1958 - N.V. Palani Goundar v. N.K. Kalianna Goundan) The learned Judge then observed:
No doubt, as Mr. Jagadisan (as he then was) points out, this is an extraordinary case where the number of votes cast has exceeded the number of ballot papers issued. Such a phenomenon is not at all uncommon in incipient democracies. Recently in a town it was observed that 9 times the votes were cast as the ballot papers issued. But however striking or strange such a thing may be, still it will be, in my opinion, against all law to decide that the election of these four persons is illegal on this one fact even before the petitions have been heard, evidence adduced and decision given.
It will be noticed that the learned Judge expressly stated that the matter could not be decided at that stage. But the observations of the learned Judge to support the view that the mere fact that the number of votes cast exceeded the number of ballot papers would not by itself entitle an election to be set aside. With great respect, I am unable to share that view particularly in a case where the polling officer is responsible for the illegality. In a case where it is proved that the Election Officer could not be acquitted of participating in the improper practice of issuing more ballot papers than there are voters, it will be difficult to say how many voters really voted and how many of the ballot papers were handed over to the successful candidate for being utilised in his own favour. If, for example, a number of ballot papers, more than the margin of votes polled between the rival candidates, were handed over to one side, there can be no doubt, that the results of the election were affected. But, where in a case it would be difficult to ascertain how many were improperly handed over, it could not be said that the results of the election were not affected, simply because it would be difficult to prove the extent of the fraud practised. In Islington Division case (1910) 5 OM. & H. 120, considering the transgressions of the rules it was observed at page 125:
If, on the other hand, the transgressions of the law by the officials being admitted, the Court sees that the effect of the transgressions was such that the election was not really conducted under the existing election laws, or it is open to reasonable doubt whether these transgressions may not have affected the result, and it is uncertain whether the candidate who has been returned has really been elected by the majority of persons voting in accordance with the laws in force relating to elections, the Court is then bound to declare the election void. It appears to us that this is the view of the law which has generally been recognised and acted upon by the tribunals which have dealt with election matters.
It was held in that case that, where there have been transgressions of the law without any corrupt motive by the Returning Officer or his subordinate in the conduct of an election, if nevertheless the election was really and in substance conducted in accordance with the law, and the result was not and could not have been affected by the transgressions the election would not be avoided. Even in regard to such a case a different view was expressed in Nagendra Nath v. Khulna District Board (1916) 32 C.L.J. 124. In that case three persons had to be elected by the Khulna Local Board to represent that Body in the District Board. Eleven members were present, of whom one was elected to preside. The President recorded votes by making marks in red pencil against the names of various candidates who stood for election. Three persons were duly declared elected. Thereafter, it was found that the total number of votes recorded by the President was 34, whereas it should have been only 32. The learned Judges observed at page 126:
The principle that when the number of votes recorded exceeds the maximum that can be given the election must be invalid and void seems to us a perfectly sound one, and one that cannot be controverted in the case of any elective body, especially where there are no rules as in this particular case providing for any such contingencies.
As I stated earlier, the contravention of the rules, in the present case could not have been an innocent one. In the context of things that happened, and on the findings arrived at by the Election Commissioner, it will be open to reasonable doubt whether the candidates who have been returned were at all candidates elected by the majority of persons. In other words, it is difficult to speculate as to how many of the ballot papers issued and utilised were given to the electors. In such a case, I am of opinion that the principle stated in Islington Division case (1910) 5 OM. & H. 120, would apply and the election in three of the four cases will have to be set aside.
8. Mr. T.M. Krishnaswami Iyer, who appeared for the respondent contended that the election rules should be strictly observed and if, in a case where the election petitioner is unable to prove that any irregularity in the reception of votes did not materially affect the results of the election, the Election Commissioner would have no jurisdiction to set aside the election. Reliance was placed on the decision of the Supreme Court in Jagannath v. Jaswant Singh : 1SCR892 , where Mahajan, C.J., observed that the statutory requirements of election law must be strictly observed, and that the election contest being purely a statutory proceeding unknown to the common law, the success of a candidate who won at the election should not be lightly interfered with and any petition seeking interference should strictly conform to the requirements of the law. In so holding the learned Judge made some significant observations, (page 212), namely:
It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices.
In Vashist Narain Sharma v. Dev Chandra : 1SCR509 , it was held that it was the duty of the election petitioner to adduce satisfactory evidence to enable the Court to find in his favour that the results of the election have been materially affected by reason of the irregularity. That was a case where it was held that the nomination of one of the candidates who had stood for election and obtained some votes, was improper. The question arose whether, on that finding it could be said that the results of the election were materially affected by the mere fact that the number of votes secured by the improperly nominated candidate was higher than the margin of difference between the successful and unsuccessful candidates. The Supreme Court held that the question, whether the results of an election had been materially affected, could not be judged by the mere increase or decrease of votes secured, but by proof of the fact that wasted votes (referring to the votes secured by the improperly nominated candidate) would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate. In that case, there was no infringement of the rules to such an extent as to make doubtful of the verdict of the electorate.
9. It is no doubt true that there is no presumption that the result would be affected when once an irregularity is committed. On that question the Supreme Court points out the difference between the law in England and the law in India clearly. But where the infringement of the rules is such that the officials conducting the election could not be acquitted of being parties to a fraud, I am of opinion that the principle stated in Islington Division case1, would apply.
10. As regards ward No. 1, there had been attempt to secure more ballot papers than there were voters. It is difficult to ascertain how many of the votes found in the ballot boxes were genuine ones. There is similar difficulty in regard to ward No. 3, where the number of votes polled is slightly higher than the number issued. The mere fact that the difference is only 6 cannot show that there was irregularity only in regard to 6 votes, particularly in the light of the finding of the Election Commissioner that there was an improper conduct of the election. Again, in regard to ward No. 4, more votes than issued have been polled. Election for these wards, namely, wards Nos. 1, 3 and 4, will have to be set aside. As regards ward No. 2, the number of ballot papers issued correspond to the number of votes polled. It may be that, even in that case, the same kind of malpractice took place. There is nothing to indicate that such malpractice took place as in the other cases where there is difference between the ballot papers issued and ballot papers utilised. To set aside the election in regard to ward No. 2 will be to act on suspicion, and not on evidence. I, therefore, make the rule absolute in regard to W.P. Nos. 378, 380 and 381 of 1959, and discharge the rule in regard to W.P. No. 379 of 1959. The petitioners in W.P. Nos. 378, 380 and 381 of 1959 will be entitled to their costs. Petitioner in W.P. No. 379 of 1959 will pay costs to the respondents (one set). Advocate's fee Rs. 100.