T. Ramaprasada Rao, J.
1. In an election held for choosing the President of Mathalakkampatti Village Panchayat, the petitioner succeeded on the basis of the counting of votes made by the Returning Officer. According to the return, the petitioner obtained 496 votes, the contesting respondent 494 votes. The contesting respondent took up the matter before the election authority, which is the District Munsif of Periakulam who, after having been satisfied that there was considerable doubt about the propriety of the counting of the votes, directed a recount of the same. On such recount undertaken at the instance of the election authority, but in the presence of the parties, it was found that the petitioner secured 495 votes as against 496 votes obtained by the contesting respondent. The election authority, on the basis of such recount, declared the contesting respondent as having been duly elected and set aside the election of the petitioner. It is as against this, the present writ petition has been filed.
2. Various contentions were raised before the election authority. But the only ground on which the order is challenged is founded on the decision of the Election Court which rejected two votes marked for the petitioner. The election authority found and such a factual finding is not disputed that the two ballot papers in question bearing Nos. 863611 and 863585 contained marks on the backside, that they were not markings as required under the rules and that they did not contain any marking in the columns reserved for marking. In those circumstances, the election authority rejected the two votes. It is this decision of the lower authority that is challenged here.
3. Before adverting to the contentions, the relevant rules regarding the election in question may be briefly noticed. Under rule 14 of the Tamil Nadu Panchayat (Conduct of Election of President of Village Panchayat) Rules, 1970, a procedure is prescribed in the matter of issue of ballot papers and the voting by the voters. Sub-rule (2) of rule 14 therein says that the elector, on receipt of the ballot paper, shall forthwith proceed to the voting compartment, and there, with the aid of the instrument supplied for the purpose, make a mark on the ballot paper against the symbol of the candidate for whom he intends to vote and that the mark may be made anywhere in the compartment within which the symbol of such candidate is printed on the ballot paper. Rule 19 (2) (d) says that a ballot paper shall be rejected 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.
4. I have already adverted to the finding of the Election Court that the marking was on the reverse side of the ballot paper. That such a marking is not warranted under the rules is not disputed before me. But what is said is that in view of the prevalence of illiteracy in our country such a haphazard but a purposeful marking, though on the back of the ballot paper, but on the symbol which is visible even on its reverse, would amount to substantial satisfaction of the requirement of the rule in that the intention of the voter can easily be gathered and it cannot be said that in such circumstances there could be a doubt in the mind of any one concerned with the counting of such a vote that the voter did not exercise his vote in favour of the particular symbol or person. Though the argument is attractive, yet, it has to fail for the reason that the election and the process of election and the law relating to election are all creatures of the relevant provisions of statute, and the Courts cannot, for convenience or in the name of equity, substitute its own process for the procedure clearly set and defined under the particular Act of the rules governing the election. In the instant case under rule 14, the mode of voting has been clearly defined. As against the symbol or the name of the particular candidate, a compartment is provided. The voter is expected to mark within the compartment or as against the symbol the name. Even then he should keep within the periphery of the compartment. If, however, by accident he traversed beyond the border of the said compartment, but makes a mark on the face of the ballot paper, it is only in such a situation the scope for investigation as to the mind of the voter would arise. But in my view, such an investigation need not be undertaken in a case where the voter ignores the face of the ballot paper, but attempts to imprint the mark on the reverse or the back side of the ballot paper, which is quite opposite to the intent and directions prescribed in the rules governing the election. As a matter of fact, Lord Halsbury, in Halsbury's Laws of England, third edition, volume 14, at page 140 observes:
A ballot paper marked on the back only should not be counted, even though the mark shows through the paper on to the front.
The Law Lord has made it almost axiomatic that any attempt to mark a ballot paper on its reverse or on the back would not show or establish the intention of the voter and it would be idle to speculate upon such intentions if such - were the facts. This is not a case where it could be said reasonably that a doubt is entertainable by the Courts scrutinising the ballot paper as to whether the voter exercised his franchise in favour of one or the other of the contesting candidates. That situation will arise if the voter made the mark on the front of the ballot paper at or near the compartment or as against the symbol or near it and under such similar circumstances. But where the face of the ballot paper is ignored and the back of it is adopted as the base for marking, then, it is not a case where a doubt has crept on the record of the ballot paper for the appropriate authority to undertake an investigation as to the mind of the voter. As a matter of fact, the Bombay High Court in Kisan v. Anikumar : AIR1969Bom213 whilst considering a similar rule under the Maharashtra Municipalities Act and the rules framed for purposes of municipal election thereunder, categorically stated:
The intention of the rule is very clear in our opinion, and does not permit any infraction in its observance. The ballot paper is intended to be used as such by making a mark with the instrument supplied on the face of the ballot paper and not on the reverse.
I would add that if there is a purposeful departure from the normal prescriptions as to the mode of voting, in the absence of any explanation by the person concerned about such an infraction, then it follows that the ballot paper is one which has not been marked in accordance with the defined and well settled prescriptions governing the elections and, therefore, is one which has to be rejected in limine. The Rajasthan High Court in Dhanpat Lal v. Harisingh , while considering a more or less similar situation, took a different view. But on a further probe into the facts governing the case, I find that the manner of casting votes, which were governing the situation in that case, is different from rule 14 (2) of our Rules. Rule 30 of the Rules in the Rajasthan case, does not provide for the marking within the compartment provided for on the face of the ballot paper. It was in those circumstances, the learned Judges of that Court observed that where a ballot paper, which is translucent and the lines demarcating the compartments and symbols are clearly visible on the back side, is marked on the reverse by the voter, the paper is valid under rule 30 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules. That case is distinguishable because of the peculiar facts with which the learned Judges were faced. I agree with the dicta laid down by the Bombay High Court, which was considering a similar rule as that which is being interpreted by me. For the reasons stated above and as there is no error apparent or any error of jurisdiction in the order of the Election Court, this writ petition is dismissed. There will be no order as to costs.