JUDGMENT : Narasimham, J. - This is an application under Article 226 of the Constitution by an unsuccessful candidate in an election to the Grama Panchayat of Bhanjanagar held on 25-4-51 in accordance with the Orissa Grama Panchayats Rules, 1949 made under the provisions of the Orissa Grama Panchayats Act, 1949 (Orissa Act XV of 1948). 2. The material facts are as follows: The Petitioner and two other candidates named Srinibas Das and K. Satyanarayan Patra contested the election to the Grama Panchayat in ward No. 4 of Bhanjanagar Grama Sabha and the date for the pole was fixed on 25-4-54 at 7.30 a.m. Two hours before the time fixed for the pole a telegram was received by the Presiding Officer from the, Government of Orissa to the following effect: State Express. Government desire permitting candidates or one of their agents duly authorised in writing to sill with the Presiding Officer inside the Polling Compartment while Recording the votes in Panchayat's Election. They are not allowed taking notes. In pursuance of this telegram the agents of the candidates were allowed to sit by the side of the Presiding Officer at the time of following. The Petitioner contended that by the allowing the agents of the candidates to sit by the side of the Presiding Officer, secrecy of ballot required by Rule 16 of the Orissa Grama Panchayats Rules was violated and undue advantage was taken of the same by the rival candidates. He urged that the instructions issued by the Government to the Presiding Officer were ultra vires and that consequently the election held in pursuance of the said instructions was also not and void. 3. Section 114(2)(ii) of the Orissa Grama Panchayats Act confers power on the State Government to make rules for the purpose of conducting election to Grama Panchayats. In the Orissa Grama Panchayats Rules, detailed provisions have been made for the preparation of voters list, scrutiny of the nomination and the holding of elections to the Grama Panchayats Rule 16 which is material for our discussion is as follows: The Presiding Officer shall then proceed to take a poll secretly for each candidate, recording the number of votes given for each candidate with his own hand. Under Rule 22, after the completion of the poll the Presiding Officer is required to declare a candidate to be duly elected who has polled the largest number of votes. Under Rule 22, after the completion of the poll the Presiding Officer is required to declare a candidate to be duly elected who has polled the largest number of votes. Rule 24 confers power on a Sub-Divisional Magistrate to decide disputes arising out of proceedings for an election and it further says that his decision shall be final and shall not be called in question in any proceeding whatsoever. Rule 25 also says that except as provided in Rule 23, (presumably a mistake for Rule 24) no election shall be invalidated on any ground whatever. Rule 29, however, confers general powers of supervision and control on the State Government in the following terms: Notwithstanding anything contained in these rules, in case of any irregularity in the conduct of election or in the preparation or finalisation of the register of population under these rules, the Provisional Government may make such order consistent with the Act, as may appear to them to be just and proper. 4. On the 17th April, 1954 the Government of Orissa issued a General Circular No. 2948 (13)-Gen/LV-53-53 giving, instructions for the conduct of Grama Panchayat Election. The first two paragraphs of that Circular deal with subjects which are not material for our present discussion. The last paragraph, however, may be quoted. In this connection, I am to invite your attention to Rule 16 of the Grama Panchayats Rules which says that the Presiding Officer should take a poll secretly for each candidate Recording the number of votes given for each candidate with his own hand. It appears that hitherto Presiding Officers have, in their anxiety to preserve the secrecy of the poll, interpreted this rule very rigidly and have not allowed anybody to be present by their Elide while Recording the number of votes. This has naturally given rise to a good deal of discontent amongst the candidates and some of them have made complaints casting suspicion on the honesty of the Presiding Officers. In order to remove all possibilities of allegations about the Presiding Officer's honesty, the State Government consider that one agent of each candidate or the candidate himself should be present by the side of the Presiding Officer at the time of Recording of the voting. The agent or the candidate himself can then see whether the Officer is placing the cross mark against the correct person and at the correct place. The agent or the candidate himself can then see whether the Officer is placing the cross mark against the correct person and at the correct place. The agent or the candidate present should not have or be allowed to take any notes of the proceedings in order to ensure that secrecy of voting as contemplated by the rules is not unnecessarily interfered with. In case there is any dispute during voting, the Presiding Officer should keep a separate note of he facts for future reference. I am to request you to instruct all Presiding Officers accordingly. The telegram from the Government received by the Presiding Officer at Bhanjanagar on 25-4-54 was issued in pursuance of the said paragraph of the General Circular presumably because the Circular did not reach must of the polling station before the dates fixed for the poll. 5. Mr. Das main argument is that by virtue of Rule 16, secrecy of ballot should have been preserved by the Presiding Officer and that the Government had no jurisdiction to issue instructions to the Presiding Officer on such terms as to destroy the secrecy of the ballot and that any election held on the basis of such instructs would also be null and void as contravening Rule 16. 6. The jurisdiction of this Court under Article 226 of the Constitution to interfere is appropriate cases, where there has been a clear contravention of law by a statutory authority even though the statute may give some sort of finality to the decision taken by the statutory authority, has not been seriously challenged. The finality referred to in Rules 24 and 25 of the Orissa Grama Panchayats Rules, cannot obviously effect the jurisdiction of this Court which is derived from Article 226 of the Constitution. We have therefore to see whether the instructions issued by the Government were in excess of the powers conferred on them by the rules and whether in consequence of such instructions the election itself was held against the provisions of the rules so as to become null and void. 7. The Learned Advocate-General rightly did not contend that the aforesaid instructions of the Government were issued in exercise of the powers conferred by Rule 29. 7. The Learned Advocate-General rightly did not contend that the aforesaid instructions of the Government were issued in exercise of the powers conferred by Rule 29. That rule in express terms says that where there is any irregularity in the conduct; of election in the preparation or finalisation of the register of population under the rules, the Government may make such orders as may appear to be just and proper. Here, there is no question of irregularity in the conduct o election or in the preparation of register of population. By conducting elections in accordance with Rule 16 and taking polls secretly, there could possibly be no irregularity in the conduct of election so as to justify the issue of any instruction by the Government under Rule 29. The learned Advocate-General therefore contended that the instructions were merely in the nature of construction of Rule 16 and that the said rule did not contemplate absolute secrecy of ballot as is observed in parliamentary elections but that secrecy contemplated therein was of a very qualified nature. He urged that the last two sentences of the instructions of the Government where the Preceding Officers were directed prevent the agents of the candidates from taking notes of the proceedings were sufficient to ensure that secrecy of voting as required by Rule 16 was substantially complied with. 8. We are, however, unable to accept this argument. It is true that secrecy of ballot contemplated in Rule 16 is not of such an absolute nature as is usually observed in Parliamentary elections. That rule says that the Presiding Officers shall with his own hand record the votes given for each candidate. Consequently, there can be no secrecy so far as he is concerned and he is bound to know to which candidate a particular voter gives his vote for this extend the election to a Grama Panchayat may differ from the Parliamentary elections. But the rules do not permit of secrecy being violated to a further extent. In the instructions given by the Government the agents of the candidates were directed to sit by the side of the Presiding Officer when the votes were being recorded by the voters If this practice is followed, the agent of every candidate will surely know to which candidate a particular later lived his vote. In the instructions given by the Government the agents of the candidates were directed to sit by the side of the Presiding Officer when the votes were being recorded by the voters If this practice is followed, the agent of every candidate will surely know to which candidate a particular later lived his vote. The mere prohibition of his taking notes would not ensure secrecy from him for a particular voter and consequently a voter may be embarrassed and sometimes even deterred from exercising his franchise as he likes, Panchayats are small units and a candidate or his agent is likely to know personally most of the voters and consequently even though he may not take notes at the time of polling it will not be difficult for him to remember to which particular candidate a voter gave his vote. The secrecy contemplated by Rule 16 seems to be secrecy as against the candidates or their agents. That is to say, they should not know to which candidate a voter gave his vote and this secrecy has been clearly violated by the instructions issued by the Government. 9. It was however urged that for conducting elections for small units like Grama Panchayats, elaborate machinery for ensuring secrecy of ballot cannot be easily devised and that a simple method as instructed by the Government would amount to substantial compliance with the rules. This argument also does not appeal to us. If there is any practical difficulty in maintaining secrecy of ballot as mentioned above, it is always open to the Government to amend Rule 16 after observing due formalities required by Section 114(3) of the Act. But so long as the rule requires secrecy of ballot it will not be legal to allow the agents of candidates to sit by the side of the Presiding Officer while votes are being recorded. 10. Hence, we are satisfied that the instructions issued by the Government cannot be justified either under Rules or on a construction of Rule 16. As the election was admittedly held in pursuance of the instructions it cases to be an 'election' as required by the rules: 11. 10. Hence, we are satisfied that the instructions issued by the Government cannot be justified either under Rules or on a construction of Rule 16. As the election was admittedly held in pursuance of the instructions it cases to be an 'election' as required by the rules: 11. We would, therefore, allow 'be petition, set aside the election for the Grama Panchayat from Ward No. 4 of Bhanjanagar Grama Sabha held on 25-4-54 and also the subsequent, notification under Rule 22 declaring Srinibas Das to be duly elected for the said Panchayat. The Petitioner should get costs of Rs. 100/- from the State of Orissa. Panigrahi, C.J. 12. I agree. Final Result : Allowed