M.M. Ismail, J.
1. The petitioner was elected as the President of the Pudupalayam Village Panchayat in the elections held on 28th July, 1970, respondents 1 and 2 herein having been defeated. The first respondent herein preferred an election petition namely, O.P. No. 36 of 1970 on the file of the Court of the District Munsif of Ariyalur to set aside the election of the petitioner. The Election Tribunal by an order dated 16th June, 1972, set aside the election of the petitioner and declared the first respondent herein as the duly elected President. Against the said order, the petitioner filed a writ petition namely W.P. No. 1588 of 1972 (Periaswamy v. Rangaswamy and 2 others) on the file of this Court praying for the issue of a writ of certiorari to quash the same. The said writ petition was allowed on 1st August, 1972 and the Original Petition No. 36 of 1970 itself was remanded for fresh disposal. The said O.P. was numbered as OP. No. 46 of 1972 before the Principal District Munsif, Tiruchirapalli, and the said Election Tribunal by its order dated 1st February, 1973, after recounting the votes came to the conclusion that the petitioner and the first respondent had obtained an equal number of votes and that therefore a fresh election should be held. It is to quash this order that the present writ petition has been filed under Article 226 of the Constitution of India.
2. Mr. M.K. Nambiar, learned Counsel for the petitioner, contends that the rejection of some of the votes cast in favour of the petitioner by the Election Tribunal is clearly erroneous on the face of it and even if the Election Tribunal is found to have erroneously rejected one ballot paper cast in favour of the petitioner, that will put an end to the equality found by the Election Tribunal and make the votes obtained by the petitioner herein higher in number than those obtained by the first respondent and consequently the election petition filed by the first respondent herein would have to be dismissed. In support of this contention, the learned Counsel places strong reliance on one ballot paper dealt with by the Election Tribunal. That is the ballot paper bearing No. 926866. With regard to this ballot paper, what the Election Tribunal says is this:
In vote No. 926866, there is one seal on the Scissors and another a faint one, partly in the cage of Squirrel and partly on the border. It is clear that these votes have to be rejected.
It must be pointed out at this stage that the Scissors was the symbol of the petitioner, while the Squirrel was the symbol of the first respondent. Consequently, if the conclusion of the Election Tribunal is erroneous with regard to vote No. No. 926866 it will follow that that vote will be a valid vote cast in favour of the petitioner herein and therefore the petitioner's total number of votes will be higher than the votes obtained by the first respondent even after recount and hence the petitioner would have been validly elected as the President of the Panchayat. Counting of votes is provided for in Rule 19 of the Tamil Nadu Panchayats (Conduct of Election of President of Village Panchayat) Rules, 1970. Sub-rule (2) of Rule 19 states as to when a ballot paper shall be rejected. According to that rule,
A ballot paper shall be rejected-
(a) if it bears any mark or writing by which the elector can be identified, or
(b) if no vote is recorded thereon, or
(e) if votes are given on it in favour of more than one candidate, or
(d) if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the vote has been given, or
(e) if it is a spurious ballot paper, or
(f) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established; or
(g) if it bears a serial number, or is of a design, different from the serial numbers, or, as the case may be, design of the ballot papers authorised for use at the particular polling station; or
(h) if it does not bear the distinguishing mark which it should have borne under the provisions of Sub-rule (2) of Rule 13, or
(i) if it does not bear the signature of the Presiding Officer on the reverse side:
Provided that where the Chief Presiding Officer is satisfied that any such defect as is mentioned in Clause (g), Clause (h) or Clause (i) has been caused by any mistake or omission the ballot paper shall not be rejected merely on the ground of such defect:Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked.
The case of the learned Counsel for the petitioner is that the second proviso extracted above clearly shows that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than one?, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked. His further case is that the statement of the Election Tribunal with regard to vote No. 926866 extracted already shows that the said vote cannot be rejected and that as a matter of fact even the Election Tribunal has not recorded any finding with regard to that vote that the same has to be rejected because the intention that the vote shall be for a particular candidate did not clearly appear from the way the paper is marked. A perusal of the order of the Election Tribunal shows that with regard to each one of the so-called doubtful votes, the Election Tribunal has referred to the manner of marking on the ballot paper and has recorded as finding with reference to the proviso extracted above, namely whether the intention clearly appeared from the way the paper was marked or not. On that basis, certain doubtful ballot papers have been counted in favour of the first respondent himself. As far as the ballot paper bearing No. 926866 is concerned, there is no finding by the Election Tribunal that from the way the paper is marked, it is not possible to gather the intention that the vote was for a particular candidate and therefore it has to be rejected. Simply after referring to the fact that one seal is on the Scissors and another, a faint seal, is partly in the cage of Squirrel and partly on the border, the Election Tribunal has chosen to reject the ballot paper. In my opinion, this action of the Election Tribunal is not in, accordance with the rules.
3. Mr. Nambiar in this context drew my attention to the relevant provisions of the English law as extracted at pages 198-199 of the Powers, Duties and Liabilities of an Election Agent and of a. Returning Officer by Frank R. Parker, Sixth Edition and also the illustration found at page 213 of that edition. The said illustration is as follows:--
_________________________________________________________________________LAWSON* HARRY LAWSON WEBSTER1. LAWSON, OakneyCottage, Taplow, in the County of Bucks, Esquire* _________________________________________________________________________MASTER 2. THOMAS WILLIAM CHESTER MASTER, JuniorThe Abbey, Cirencester, Esquire_________________________________________________________________________
Thus, it will be seen that in the above illustration, there is one clear mark against the name of Lawson and there is another mark on the border projecting into the column left for the other candidate Master. With reference to such an illustration it was held:
If a good cross is added to that whose intersection is exactly on the line between the compartments of the paper, the former corrects the uncertainty of the latter (Cirencester, Jan. 1893)..
In my opinion, this illustration directly applies to the facts of this case.
4. Apart from the fact that the Election Tribunal has not recorded any finding with reference to the second proviso to Rule 19 (2) extracted already that from the way the paper is marked it is not possible to hold that the intention was to vote for a particular candidate, the very statement with regard to the nature of the marking extracted already from the order of the Election Tribunal with reference to the ballot paper in question clearly shews that the intention of the voter was to vote for the symbol 'Scissors'.
5. Therefore, looked at from any point of view, the rejection of the ballot paper bearing No. 926866 cast in favour of the petitioner herein by the Election Tribunal cannot be justified. If so, by virtue of this conclusion, the petitioner would have got mere votes than the first respondent herein even after recount and consequently the election petition should have beer dismissed.
6. The result is, the writ petition is allowed and the order of the Election Tribunal dated 1st February, 1973 in O.P. No. 46 of 1972 is quashed and the said O.P. will stand dismissed. There will be no order as to costs.