P.S. Kailasam, J.
1. This petition is filed by the successful candidate in Ward No. 7, Town Panchayat of Thottiam in Musiri Taluk in Tiruchi District for quashing the order of the Election Tribunal, the District Munsif, Kulittalai, declaring the election to Ward No. 7 as void and directing fresh elections to that Ward.
2. The elections to the Thottiam Panchayat took place on 2nd February, 1965. For Ward No. 7, three persons contested, viz., the petitioner and respondents 1 and 2. The petitioner obtained 130 votes as against the first respondent who obtained 129 votes and the 2nd respondent who obtained one vote. The petitioner was declared elected. The first respondent filed an election petition challenging the validity of the election of the petitioner. Several objections were raised before the Election Tribunal, but it is unnecessary to state all of them. The Tribunal found that one Angammal was improperly refused a ballot paper and if a ballot paper had been given to her, the result of the election would have been materially affected. The petitioner raised the contention that the first respondent was disqualified to be a member on the ground that he had an interest in a subsisting contract with Srinivasanallur Panchayat Board. The Election Tribunal while holding that the first respondent had a subsisting contract with the Srinivsasanallur Panchayat Board, found that as the election was for the Thottiam Town Panchayat, he was not disqualified.
3. In this petition, Mr. Selvaraj, learned Counsel for the petitioner contended that the Election Tribunal was in error in holding that the vote of Angammal ought not to have been rejected. He further submitted that a person having a subsisting contract in any Panchayat is disqualified from being a member of any other Panchayat.
4. Regarding the vote of Angammal, the Election Tribunal found that an irregularity had been committed by the Assistant Polling Officer in treating Angammal's vote as a tendered vote and as such, it has materially affected the election results. Summing up the evidence on the point, the Tribunal observed:
It is not the case and the evidence of the respondents that Angammal herself once came in the morning, exercised her franchise and the ballot paper issued against her name had been entered as against her name correctly and she presented herself at the Polling Booth for the Second time and again demanded a Ballot paper... So looking from any point of view it is obvious an irregularity has been committed by the Assistant Polling Officer, probably under pressure of work which has resulted in treating the ballot paper given to Angammal as tendered one and that has materially affected the result of the election.
5. The provision as to tendered vote is found in the Rules for the Conduct of Election of Members of Town Panchayat Rules, 1964. Rule 27(4) provides that the elector after marking a tendered ballot paper in the voting compartment and folding it shall, instead of putting in into the ballot box, give it to the Polling Officer who shall place it in a cover specially kept for the purpose. Proviso to Rule 37 Sub-rule (1) provides that no cover containing the tendered ballot papers shall be opened and no vote recorded in such paper shall be counted. There is no provision in the rules which enables a Returning Officer for dealing with the tendered votes. Rule 42 provides that the Returning Officer shall not open the sealed packets containing tendered ballot papers or the marked copy of the electoral roll and Rule 43 requires the Returning Officer to retain the custody of tendered ballot papers and that the packets shall not be opened and the contents shall not be inspected or produced except tinder the orders of an election or other competent Court.
6. The Andhra Pradesh High Court in Ramiah v. Koteswara Rao (1965) 2 A.W.R. 179, had held that the Election Tribunal has power to count the tendered votes. It is unnecessary to consider this question any further as this case can be decided without taking into consideration the tendered vote. It has been found that an entry was made erroneously in the register against the name of Angammal that a ballot paper had been issued and when Angammal presented herself, her vote was taken as the tendered 'vote. But for this irregularity, Angammal would have voted and it is not disputed that her vote might have materially affected the result of the election as the first respondent has obtained 129 votes as against the 130 votes secured by the petitioner. On this ground alone, the election is liable to be set aside.
7. It was submitted on behalf of the petitioner, that even if Angammal's vote is counted in favour of the first respondent, he would have got only 130 votes and as both the petitioner and the first respondent had secured only 130 votes each, the result ought to have been decided by casting of lots. The procedure of drawing of lots cannot be adopted in this case. Rule 12 of Notification No. 10 made by the Government in exercise of its powers under Section 178, Sub-section (2), Clause (ii) of Act XXXV of 1958 empowers the election tribunal at the conclusion of the enquiry to declare whether the election of the returned candidate is void under Rule 11 or if the Election Court declares the election of the returned candidate as void, it shall declare that any other party to the petition who has claimed the seat under the rules as duly elected, or order a fresh election. It will be seen that Rule 12 does not enable the Election Court to direct drawing of lots. But it was contended by the learned Counsel for the petitioner that the drawing of lots is a power that is necessary for disposing of the election petition and should be presumed even in the absence of a specific power. This question also need not be decided as in any event a fresh election has to be ordered in this case.
8. The petitioner contended that the first respondent was disqualified to become a member as he had a subsisting interest in Srinivasanallur Panchayat. The Tribunal held that the first respondent had interest in a subsisting contract with Srinivasanallur Panchayat, but as Srinivasanallur Panchayat did not come within the Thottiam Panchayat Unit, he was not disqualified to stand as a candidate. It was not brought to the notice of the Election Tribunal that Section 25(2)(c) had been amended by amending Act XVIII of 1964 which came into force on 2nd September, 1964, to the effect that a person shall be disqualified for election as a member, if on the date of nomination or election, he has interest in a subsisting contract or with any work done for any Panchayat or any Panchayat Union Council. After the coming into force of this amendment, the first respondent would be disqualified, if he had any interest in a subsisting contract in any panchayat. The view of the election tribunal that the 1st respondent was not disqualified is wrong as the first respondent was suffering from a disqualification on the date of the election. It is not the case of the parties that the electors were aware of the disqualification of the first respondent and they threw away the votes. In the circumstances, the votes polled by the first respondent cannot be treated as invalid votes. The election was contested by three candidates, one of whom secured one vote. In Gopala Ayyangar v. Mohammed Ibrahim Rowther : (1925)49MLJ606 , a Full Bench of this Gourt following the principles laid down in Hobbs v. Morey L.R. (1904) 1 K.B. 74, held that when the votes were given in ignorance of the disqualification under which the candidate of his choice was in fact labouring, it would be inequitable to allow the votes to be thrown away for that reason and the only proper course was to order a fresh election. This view had been followed by a Bench of the Andhra Pradesh High Court in the decision reported in T. Jalayya v. N. Venkataswara Rao (1956) A.W.R. 1026 : A.I.R. 1957 A.P. 658. The Supreme Court in Keshav Lakshman Borkar v. Dr. D.L. Anande (1960) 21 E.L.R. 466, held that the question of throwing away votes cannot arise in the absence of some special pleading that particular voters had cast their votes with knowledge or notice that the candidate for whom they had voted was not eligible for election and that consequently, they had deliberately thrown away their votes in favour of a disqualified person. In this case, no such allegation has been made. The presence of the 2nd respondent makes it impossible to predict the results of the elections. In the circumstances, the order of the Election Tribunal directing fresh elections will have to be upheld, though for different reasons.
9. The petition is dismissed. No order as to costs.