Venkatarama Ayyar, J.
1. This is an application under Article 226 of the Constitution to quash the decision of the Election Commissioner in O. P. No. 32 of 1952. The facts are not in dispute. On 16-9-1952 elections were held for the Municipal Council, Nandyal The petitioner and respondent 1 herein and two other candidates contested the seat for ward No 12. The petitioner got 280 votes, respondent 1st 240 votes and the other two candidates far less and accordingly, the petitioner wag duly declared elected. Thereupon, respondent 1 filed O. P. No. 32 of 1952 before the Subordinate Judge of Kurnool who is the Election Commissioner under the Act for setting aside the election on various grounds We are concerned in this petition with only one of them, that the polling officer entered on the ballot papers 'the names of the electors and their serial number in the electoral list. Rule 27-A(1)(a) of the Election Rules is as follows: 'A ballot paper shall be rejected if it bears any
mark by which the elector can be identified.' The contention of respondent 1 before the Election Commissioner was that in marking the ballot papers with the names and the serial number of the electors the polling officer had violated the mandatory provisions of Rule 27-A(1)(a) that those votes ought accordingly to have been excluded from the count and that the reception of those votes by the Election Officer constituted a material irregularity by reason of which the election was liable to be set aside. It is to quash this decision that the present application for a writ of certiorari has been filed. Mr. P. Rama Reddi, the learned advocate for the petitioner, concedes that there has been a breach of Rule 27-A(1)(a), but he contends that there is no definite finding that the result of the election had been affected thereby and that in the absence of such a finding, the election should not have been set aside. He relied on Rule 10(c) which is as follows :
'If in the opinion of the Election Commissioner 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 the election of such returned candidate shall be void.'
The contention is that it was not sufficient merely to prove that there was a breach of the rules, but that it must further be established that the result of the election had been materially affected by such breach. On behalf of the respondent, certain passages in the judgment were referred to as amounting to a finding on the evidence that the electors had voted in fear of the petitioner and that the result of the election was materially affected thereby. But the finding in fact is that there' was no threat by the petitioner and the conclusion of the Election Commissioner rests solely on the ground that there had been a breach of Rule 27-A(1)(a).
2. I agree with the contention of the petitioner that a breach of Rule 27-A(1)(a) does not 'ipso facto' render the election void and that before it could be set aside it must be established that the result of the election had been affected thereby. In --'Woodward v. Sarsons', (1875) L. R. 10 C. P. 733 (A), a polling officer in charge of one of the booths marked on the ballot paper the number of the voters in the electoral list. It was held that these papers should not be counted and if counted by the Election Officer, they should be struck out by the Election Commissioner on scrutiny. Then the Court proceeded to count the other valid votes recorded in the several booths and held that even excluding the invalid votes, the result of the election had not been affected. In -- 'Mahabaleswarappa v. Ramachandra Rao', AIR 1936 Mad 669 (B), the facts were that 322 ballot papers had been marked by the polling officer with the numbers of the voters on the electoral rolls. All these votes were rejected by the Election Officer. Out of the remaining votes, the successful candidates got 1208 votes and his rival 1092 votes. The Election Commissioner having set aside the election on the ground that the secrecy of the ballot box had been violated, it was held by Venkatasubba Rao and Cornish JJ. that the election could not be set aside merely because there had been a bresch of the rules and that it must further be proved that it had affected the result of the election. The position was thus stated by Cornish J.:
'The next Question was whether this non-compliance had materially affected the result of the election. Rule 10(c), which makes this the basis of the Commissioner's power to declare the election void, has been extracted from Section 13 of the Ballot Act. The words 'result of the election in the section have been held to mean the return of the candidate and not the amount of his majority. (See Rogers on Election, Vol. II, p. 41 and the cases there cited). The words must have the same meaning in the rule. So that if the number of ballot papers rejected by reason of non-compliance with the rules did not suffice to turn the scale against the elected candidate, though the extent of his majority might be affected, the result of the election could not be held to have been materially affected. This is made very clear by O'Brien J. in -- 'East v. Clare', (1892) 4O M & H 162 (C), where he said, 'I do not at all 'agree with the construction put upon that section by Grove J. in the 'Hackney case'. He there says that 'the result of the election' does not necessarily mean the return of the candidate, but means his return by the particular' number of votes. In his opinion therefore if the mistake or non-compliance with the rules produced a diminution of the votes by which the successful candidate was elected, although it might not be sufficient to destroy his majority, 'the result of the election' would be affected and recourse could not be had to Section 13. In my opinion that decision is entirely wrong. In -- (1375) L R 10 C P 733 (A)' no less than 294 votes were spoiled by the mistake of the presiding officer, but they would not, if admitted, have turned the scale against the successful candidate and therefore did not affect 'the result of the election'. It was held that this did not render the election invalid.'
3. The learned Judges then found that even if the rejected votes and the votes of those who did not go to the polls were counted in favour of the defeated candidate, the successful candidate had a comfortable majority and that, therefore, the result of the election was not affected. It must, therefore, be held that a mere violation of Rule 27-A (1)(a) is not sufficient to invalidate the election and that it must further be shown that the result of the election has been affected thereby.
4. It is next contended for the petitioner that as the polling officer had impartially marked all the ballot papers which had been cast into the box with the names of the voters and their serial number, the result of the election was not affected; because all the candidates were equally affected and their mutual position remained the same as the result of the marking of the ballot papers as without it. This contention has much in commonsense and justice to commend it. But it must fail on the principle of the matter. Rule 27-A(1)(a) requires that the ballot papers marked in such manner as to disclose the identity of the elector should be rejected, if all the ballot papers are marked so as to violate Rule 27-A(1)(a) all of them will have to be rejected and the result is there is no person who can be said to have been elected. In -- (1875) I. R 10 C P 733 (A)' and --AIR 1936 Mad 669 (B)' after rejecting the ballot, papers which were marked there were still others which were valid on which an election could be declared and then the only question was whether the result of the election had been affected. But where there is no vote at all recorded there is no election which could be declared and the question whether the result of the election had been affected does not even arise. On this ground, the declaration of the Election Officer should be set aside and a fresh election ordered.
5. It was argued for the petitioner with considerable force that it would be unjust to defeat the declared intention of the 'voters for a mistake committed by the polling officer over whose action the electors have no control. But Rule 27-A(1)(a) does not provide for any exception in such cases and in -- (1875) L R 10 C P 733 (A)' the marked ballot papers were rejected even though the mistake was on the part of the polling officer. In the 'Champaran case (Election cases India and Burma, Hammond, page 301)' it was found that a large number of ballot papers had been marked by the mistake of the polling officer. Those votes were rejected and a re-election ordered on the ground that a large section of the electorates had in effect been deprived of its franchise. See also -- 'Burdwan Division Second Case (Khanna's Indian Election Cases, Vol. IV page 94)'.
6. It is unnecessary in this view to consider whether the election is liable to be set aside on the ground that on the facts found it could not be said to have been held under the Act. In --(1875) L R 10 C P 733 (A)', Lord Coleridge C. J. observed on this aspect of the matter as follows: 'We think, though there was an election in the sense of there having been a selection by the will of the constituency that the question must in like manner be, whether the departure from the prescribed method of election is so great that the tribunal is satisfied, as matter of fact that the election was not an election under the existing law. It is not enough to say that great mistakes were made in carrying out the elections under those laws; it is necessary to be able to say that, either wilfully and erroneously, the election was not carried out under those laws, but under some other method. For instance, if during the time of the old laws, with the consent of a whole constituency, a candidate had been selected by tossing up a coin, or by the result of a horse race, it might well have been said that the electors had exercised their free will, but it should have been held that they had exercised it under a law of their own invention, and not under the existing election laws, which prescribed an election by voting. So now, when the election is so to be an election by ballot, if, either wilfully or erroneously, 'a whole constituency' were to vote, but 'not by ballot at all', the election would be a free exercise of their will, but it would not be an election by ballot and therefore not an election under the existing election law.'
It is arguable that as all the ballot papers had been marked, there had been no election by ballot under the Act and on that ground the election was liable to be set aside. But it is unnecessary to decide this point as the election must be set aside on the ground that there was in fact no vote recorded and that, therefore, there was no election.
7. In the result, this petition must be dismissed. In the circumstances of this case, the parties are directed to bear their own costs.