P.S. Kailasam, J.
1. This petition is filed by one Thanka Nadar, who was declared elected to the Agastheeswaram Panchayat, but whose election was set aside by the Principal District Munsif (Election Commissioner), Nagercoil, for the issue of a writ of certiorari to quash the order.
2. The petitioner was one of the contesting candidates for the election of members to the Agastheeswaran Panchayat. The other candidates who contested are respondents 1 to 5. On the counting of votes, it was found that the petitioner had polled 124 votes and the first respondent 123 votes. The first respondent herein preferred an application, O.P. No. 15 of 1965, under Section 178 of the Madras Panchayat Act challenging the election of the petitioner.
3. The election of the petitioner was challenged on three grounds, namely, (1) that there was improper reception of nomination papers and improper rejection of 15 votes by the Returning Officer, (2) that the Returning Officer had failed to scrutinise carefully the ballot papers to satisfy himself that there was no mistake in counting as the difference was only one vote between the petitioner and the first respondent and (3) that two persons Paul Thankam Nadachi and her husband Sankara Vadivu whose serial numbers are 95 and 96 in Achankulam ward, Ward Nos. 12 and 75 and 74 in Samathanapuram Ward, Ward No. 4, had voted in both the wards. Therefore it was contended that 'the election was materially affected.
4. Regarding the first two grounds, the Election Commissioner has found against the first respondent, and it is unnecessary to consider the same.
5. The only question that has to be considered is whether Paul Thankam Nadachi and Sankara Vadivu are listed in both the wards and whether they have voted in both the wards. The Election Commissioner has found that the names of both the persons appear in both the wards and this finding is not seriously questioned. The only point therefore is whether both have voted in both the wards. In order to substantiate the contention that both the persons voted in both the wards, the first respondent examined P.Ws. 2 to 6 and himself as P.W. 1. The evidence of P.W. 2 : and P.W. 3 is that Paul Thankam Nadachi and her husband voted in Samathanapuram Ward, Ward No. 4, at about 4-30 p.m. The evidence of P.W. 3 is that Paul Thangam and Sankaravadivu voted at Achankulam Ward, Ward No. 12, at 10 a.m. Paul Thankam Nadachi and Sankara Vadivu Nadar were examined by the first respondent as P.Ws. 4 and 5. They stated that they voted only at Samathanapuram Ward and not at Achankulam. Both of them were treated as hostile. P.W. 6 is the Special Revenue Inspector, who was the Polling Officer at Samathanapuram. He issued ballot papers Nos. 74 and 75. He also stated that he noted the ballot paper numbers against the two serial numbers. The petitioner was examined as R.W. 1 and he stated that Paul Thankam Nadachi and Sankara Vadivu had no votes in Ward No. 4.
6. On this evidence, the Election Commissioner came to the conclusion, accepting the evidence of P.W. 2 that Paul Thankam Nadachi and Sankara Vadivu voted at Samathanapurm and of P.W. 3 that the two persons voted at Achankulam, found that there had been material irregularity in the election. The first respondent examined the Polling Officer at Samathanapuram Ward. He stated that ballot papers were issued to serial numbers 74 and 75 in the voters list. But the first respondent had failed to examine the Polling Officer at Achankulam Ward to prove that serial numbers 95 and 96 had voted. The best evidence would be that of the Polling Officer at Achankulam to prove that the persons with serial numbers 95 and 96 had voted. In the absence of such evidence, it cannot be stated that the first respondent had succeeded in proving that there was double voting. The allegation that two persons have voted twice will amount to an election offence and has to be proved strictly as a criminal offence. P.Ws. 2 and 3 are interested persons and have given evidence for the first time before the Election Commissioner. The evidence of the two persons alleged to have voted twice is that they did not do so, but had only voted at Samathanapuram. No doubt they were treated as hostile.. But the evidence of P.Ws. 2 and 3 as already stated is interested and as the first respondent had failed to produce the best evidence that was available, the Election Commissioner was in error in accepting the contention of the first respondent and finding that P.Ws. 4 and 5 had voted twice. The first respondent was aware of the necessity of examining the Polling Officers and that was why he had examined the Polling Officer, for Samathanapuram Ward, P.W. 6. He has no explanation as to why the Polling Officer for Achankulam Ward was not examined; the Polling Officer* with the help of the list of persons that voted would have clearly proved whether persons with serial numbers 95 and 96 had voted or not. The finding of the Election Commissioner is perverse and cannot be accepted.
7. In the result, the first respondent has not succeeded in proving that the two persons, Paul Thankam Nadachi and Sankara Vadivu, had voted twice,. The petition is allowed, the order of the Election Commissioner is set aside and the election of the petitioner is restored. There will be no order as to costs.