S. Ramachandra Iyer, C.J.
1. This appeal which concerns the validity of an election to the office of the Chairman of Sircar Samakulam Panchayat Union Council, Coimbatore District reveals a perversity of procedure at the election. The appellant and the first respondent were the rival candidates for the Chairmanship of the Union Council, The election to that office was held at a meeting of the Council held on 24th April, 1962 under the presidency of the Revenue Divisional Officer, Coimbatore. The voting was by secret ballot and of the thirteen votes recorded one was found to be invalid, and the remaining twelve votes were equally distributed between the contesting candidates each securing six votes. Lots were drawn to decide the tie; the chit containing the name of the first respondent Was drawn. Nevertheless the Revenue Divisional Officer (who was the Returning Officer) declared the appellant as elected. This is somewhat a startling procedure which was sought to be justified on the ground that prior to the drawing of lots the Returning Officer had declared at the commencement of the process of drawing lots that the person in whose favour the lot fell should be eliminated and that he whose name was not drawn should be declared elected. It is the case of the appellant, and this is supported by an affidavit from the Revenue Divisional Officer that the latter before proceeding to draw the lots had announced that this was the procedure to be followed. We do not see how an affidavit of this kind could be treated as evidence. We are however prepared to assume for the purposes of this case that the appellant's version is correct.
2. The election was challenged by the first respondent who further prayed that as his name was drawn he should be declared as duly elected as Chairman of the Union Council. The Election Commissioner (District Munsif), Coimbatore, took the view that it was open to the Returning Officer who presided over the meeting convened for the purpose of election, to adopt any method he liked for ascertaining the result by casting lots; he held that the election was valid. This order was, however, quashed by Jagadisan, J., under Article 226 of the Constitution. The learned Judge gave a further direction to the Election Commissioner to restore the election petition to his file and dispose of it in accordance with law. The main point for consideration in this appeal is whether it will be open to the Returning Officer to adopt any procedure different from the accredited or prescribed one for ascertaining the result of the election where there is equality of votes between the rival candidates. Jagadisan, J., has explained the background of the procedure that is generally adopted in deciding the election in the case of equality of votes in the following words:
A tie between the candidates caused by equality of votes results in a stalemate. Neither of them can be declared elected. A fresh election would involve time, labour and money and there is no certainty that there will not be a tie again. Some device has to be adopted to declare one of them as elected. Invariably a special rule is prescribed to govern such a situation. The Returning Officer must forthwith decide between the tied candidates by lot and proceed as if the candidate on whom the lot falls had received an additional vote. In England under Section 2 of the Ballot Act, 1872 (now repealed) the Returning Officer could give a casting vote either orally or in writing when an equality of votes is found. But now under the present law, the decision has to be by lot. The candidate on whom the lot falls should be deemed to have received the additional votes.
To put it briefly, the decision of the result by mere count of votes having proved ineffectual to ascertain the verdict of the electorate, a law prescribes another mode, a decision by change to resolve the tangle. Casting of lots is a favourite device adopted in elections to secure the chance decision. Normally the person in whose favour the lot is drawn is given an additional vote which secures him thereby a superiority in the number of votes secured and enables him to win the election. In Parker's Election Agent and Returning Officer (5th edition) it was stated at page 214 thus:
Where an equality of votes is found to exist between any candidates and the addition of vote would entitle any of the candidates to be declared elected, the Returning Officer shall forthwith decide between the candidates by lot and proceed as if the candidate on whom the lot fell had received an additional vote. No particular method of deciding 'by lot' is prescribed and the Returning Officer may adopt any method of doing so that he considers suitable. The provision is mandatory and binding alike on the Returning Officer and the candidates.
It will be seen that under the principle set out above it is obligatory on the Returning Officer to declare the person who wins the lot as duly elected, though as to how the lot has to be drawn is a matter left to his discretion. That is to say it will be open to him to cast lots either by means of chits, or even by toss of the coin or by employing other objects or devices. The Returning Officer's discretion therefore exists only as regards the method of deciding the choice. So far as the choice is concerned the rule has always been that the person who wins the lot has to be declared as elected; it is not the other way about. In Simond's Halsbury's Laws of England (3rd Edition) (Vol. 14, page 142, paragraph 245) dealing with the case it is stated:
When, after the counting of the votes (including any recount) is completed an equality of votes is found to exist between any candidates, and the addition of a vote would entitle any of those candidates to be declared elected, the Returning Officer must forthwith decide between those candidates by lot and proceed as if the candidate on whom the lot falls had received an additional vote.
The footnote to this passage refers to case, Fryer v. Harris (1955) Times, 30th July where the Returning. Officer spun a coin to decide when the votes were equally divided between the candidates, the successful candidate. It was held that the method of deciding by lot was good. All that is consistent with what we have stated. It will be undesirable for any Returning Officer to inverse the usual procedure and eliminate the person who secures the lot in his favour. In our opinion, the rules regulating the election of the Chairman of the Panchayat Union Council are specific in the matter. An election is a creature of the statute; the process of election will have to conform strictly to rules in that behalf. Where there are specific rules in regard to any matter, there will be no room for any discretion being exercised or a new method being adopted by the Returning Officer. The Rules framed by the Government in the instant case prescribe how the decision by drawing lots has got to be arrived at. Rule 17 of the Rules under the Madras Panchayat Act, 1958 states:
(1) If the number of candidates is two, the candidate who obtains the largest number of votes shall be declared to have been duly elected. If there be an equality of votes between the two candidates and the addition of one vote to any one of such candidates will entitle him to be declared duly elected, the President of the meeting shall decide by drawing lots in the presence of the members to which one of such candidates such additional vote shall be deemed to have been given.
(2) If the number of candidates is three and if any one of them secures more than one-half of the number of votes he shall be declared to have been duly elected. If none of them secures more than one-half of the number of votes, the candidate who obtains the smallest number of votes shall be eliminated and a second ballot taken. If there is an equality of votes among all the candidates, the President of the meeting shall ascertain by casting lots in the presence of the members present which, of such candidates shall be eliminated. The second ballot shall be conducted and the result declared in accordance with the provisions of the said Sub-rule (1).
(3) If the number of candidates is more than three and if any of the candidates secures more than one-half of the number of votes, he shall be declared to have been duly elected. If none of the candidates secures more than one-half of the number of votes the first candidate who secures the largest number of votes and the second candidate who secures the next largest number shall be retained and the others eliminated and the second ballot taken. In the event of there being an equality of votes between more than one candidate affecting the determination of which one of them secures the second largest number of votes the President of the meeting shall draw lots in the presence of the members present and the candidate whose name is first drawn shall be deemed to have secured the second largest number of votes. The second ballot shall be conducted and the results declared in accordance with the provisions of the said Sub-rule (1).
Shortly stated the rule provides for three contingencies in the election for a single office:
(1) where there are two rival candidates and they secure an equal number of votes, the result of the election has got to be decided by drawing lots and the person in whose favour the lot is drawn will be entitled to an additional vote;
(2) where there are three candidates and none of them secures more than fifty per cent of the total votes recorded, then one person will have to be eliminated (the person with the minimum number of votes so as to confine the contest between the remaining two). There will then be a second ballot the result of which will have to be decided in accordance with the provisions of Sub-rule (1). How that person has to be ascertained where there is an equality of votes between the three persons is specified in the Sub-rule. Lots are drawn and he in whose favour it is. drawn is eliminated. It will be seen that this is not really the inverse of the rule set out in Sub-rule (1). Sub-rule (1) is enacted for the purpose of selecting the candidate and it prescribes that the person in whose favour the lot is drawn will be declared elected In Sub-rule (2) where there is an equality of votes the duty of the Returning Officer is first to eliminate one of the three; how to achieve that result Elimination is left to chance by casting lots and he who wins the toss or the lot is-eliminated.
(3) Where the number of candidates is more than three and none of them gets more than fifty per cent of the votes, the first two are retained for decision by a second ballot and the rest are eliminated. But if there is an equality of votes between the candidates for the second place the rule prescribed in Sub-rule (1) is followed. Rule 17 of the Rules, therefore, contemplates the decision of the result only in favour of the person who draws the lot, Sub-rule (2) being designed for the purpose of elimination of one candidate, applies the same process for deciding the matter outstanding, namely who is to be eliminated. There is, therefore, no scope for the Returning Officer to prescribe his own procedure for determining the decision by lots. Rule 17 prescribes a procedure which it will not be open to any Returning Officer to abandon. There is, thus, no rule by which in case of equality of votes between two candidates the additional vote can be given to the candidate who fails to win the lot. The procedure adopted in the present case by the Returning Officer is opposed alike to the rule which we have stated above and to the ordinary concept of deciding the dispute by the drawing of lots.
3. Mr. Mohan Kumaramangalam, however, contends that although the procedure adopted by the Returning Officer was the reverse of the normal one as it was done bona fide after duly apprising the candidates of his intention to declare that candidate as elected who fails in the lot, it should not be open to the first respondent who has acquiesced in the procedure to dispute the election afterwards. We are unable to regard the conduct of the Returning Officer as bona fide in that he did not act with due care and caution. Presumably he misread the Rules and tried to adopt the procedure prescribed by Rule 17(2) for a case coming under Sub-rule (1) and for a totally different purpose. Indifference to and imperfect understanding of statutory provisions can hardly be regarded as consistent with due discharge of the duties cast on a Returning Officer. The responsibility of the Returning Officer is all the greater where the electorate consists mainly of illiterate and half-literate persons and where there will be few who will be bold enough to correct him when he goes wrong. Evidently the two candidates in the present case were not themselves conversant with the Rules and, therefore, they accepted the Returning Officer's interpretation thereof. But that cannot regularise an election held in contravention of the Rules. There is also the fact that the result of the election has been affected by the irregularity. It cannot be accepted that the Returning Officer has any power to prescribe his own procedure contrary to Rules to ascertain the result of an election. For example he cannot say that in the event of a tie, he will select one who runs faster than the other. A declaration of result on that basis, will be no election in the eye of law. We, therefore, agree with Jagadisan, J. that the declaration of the result of the election by the Revenue Divisional Officer was wrong and has therefore to be set aside.
4. It has then to be considered whether the first respondent is entitled to be declared elected or whether there should be a fresh election; if so from what stage the process of election has to be recommenced. The learned Judge has not given any specific direction on that matter. We, however, consider that it is necessary that a clear direction is given to the Election Commissioner in that matter. Mr. Mohan Kumaramangalam contends that in view of our finding as to the invalidity of the declaration of the result of the election made by the Returning Officer, the entire election should be held to be vitiated and a fresh election should be ordered. We are unable to agree with this contention. Under the Rules the election of the Chairman has to be conducted at a meeting duly convened of the various members of the Panchayat Union Council. That the meeting was properly convened is admitted; that the votes were duly recorded at such meeting is also admitted. Having regard to the equality of the votes between the appellant and the first respondent, the decision of the Returning Officer to decide the result of the election by casting lots should also be held to be correct. There was nothing improper in the casting of lots which followed the usual pattern. But an error crept in in the announcement of the result. The first respondent in whose favour the lot fell was not declared elected, but he who failed to draw the lot, the appellant was erroneously declared as elected. The illegality therefore, consisted in the declaration of the result and not in the election up to that stage. That while casting the lots the different interpretation to the Rules, cannot alter the fact that under the Rules the first respondent alone should be regarded as duly elected. The first respondent will therefore, be entitled to have a declaration from the Election Commissioner that he was duly elected to the office of Chairman of the Panchayat Union Council. The appeal fails and is dismissed with costs.