JUDGMENT Mootham, C.J. - This is a petition Under Article 226 of the Constitution. 2. An election for members of the Municipal Board from Ward No. 4, Ujhani, in the district of Budaun, was held on 15-10-1957. Ward No. 4 is a three member constituency and as a result of the election the Appellant was third securing 490 votes and the third Respondent fourth with 480 votes. The Appellant was accordingly declared to be one of the three successful candidates. The third Respondent then filed an election petition in which he challenged the validity of the election of the Petitioner on a number of grounds; in particular he contended that certain votes in his favour had been wrongly rejected by the Returning Officer and that other votes counted in favour of the Petitioner ought to have been rejected. The Election Tribunal scrutinised the disputed ballot papers and came to the conclusion that on a correct count the Petitioner and the third Respondent had each secured 292 votes. The Tribunal further held that in these circumstances it had no alternative but to set aside the election of the Petitioner and to declare a casual vacancy and an order to this effect was made by the Tribunal on 2-12-1958. The Petitioner then filed the petition which is now before us. 3. The submissions made on behalf of the Petitioner are two in the first place it is contended that one or more of the votes counted by the Tribunal as a vote for the third Respondent ought to have been rejected; and secondly that, assuming that the Petitioner and third Respondent secured the same number of votes, the Tribunal should have decided the matter by drawing lots. 4. With regard to the first of these submissions, learned Counsel for the Petitioner ultimately abandoned his challenge to the correctness of the Tribunal's findings except as regards two ballot papers, Nos. 1322 and 403. Each of these ballot papers admittedly bore four marks and it is the Petitioner's contention mat in view of the provision of Rule 64 of the U.P. Municipalities (Conduct of Election of Members) Order, 1953, these ballot papers were necessarily invalid. That rule, so far as it is relevant, provides that-- 64. (1) The Returning Officer shall reject a ballot paper (f) if votes are given on it in favour of more candidates than there are members to be elected. That rule, so far as it is relevant, provides that-- 64. (1) The Returning Officer shall reject a ballot paper (f) if votes are given on it in favour of more candidates than there are members to be elected. (2) A vote recorded on a ballot paper shall be rejected if the mark indicating the vote is placed on the ballot paper in such manner as to make it doubtful to which candidate the vote has been given. 5. The Tribunal has held the ballot papers Nos. 1322 and 403 to be valid as in its opinion in each of them the voters' intention to vote for only three candidates was clearly expressed. Now, in our opinion the question whether these ballot papers were valid, or whether they were invalidated because the voters had voted for more than three candidates, is a question of fact for determination by the Tribunal. This Court in the exercise of its writ jurisdiction is not an appellate court and it can only quash the order of the Tribunal if it is satisfied that the Tribunal has misdirected itself on a question of law. The argument for the Petitioner is in substance that where, as in the present case, three candidates are to be elected, any ballot paper which bears marks against the names of more than three candidates is necessarily invalid and ought to be rejected. In our opinion this contention is not correct. Clause (f) of Sub-rule (1) of Rule 64 requires the rejection of a ballot paper if votes are given on it in favour of more candidates than there are members to be elected. It does not lay down that a ballot paper must necessarily be rejected if it contains more marks on it than there are members to be elected. The ballot paper must be examined for the purpose of ascertaining the intention of the voter and if a billot paper contains mare marks on it than there are candidates to be elected, but the Returning Officer is none the less satisfied on an examination of the nature and place of those marks that the voter intended to vote for three candidates and the candidates of his choice are sufficiently clearly indicated, then in our opinion the ballot paper is valid. Effect, in other words must always be given to the intention, of the elector if it is possible to ascertain with reasonable certainty what that intention is. 6. We need, we think, cite only two authorities. In Woodward v. Sarsons LR 10 CP 733 Coleridge, C.J. said at page 748: The result seems to be, as to writing or mark on the ballot paper, that...if there be marks indicating that the voter has voted for too many candidates...then the ballot paper is void and is not to be counted: or to put the matter affirmatively, the paper must be marked so as to show that the voter intended to vote for some one and so as to show for which of the candidates he intended to vote. It must not be marked so as to show that he intended to vote for more candidates than he is entitled to vote for, nor so as to leave it uncertain whether he intended to vote at all or for which candidate he intended to vote, nor so as to make it possible, by seeing the paper itself, or by reference to other available facts, to identify the way in which he has voted. If these requirements are substantially fulfilled, then there is no enactment and no rule of law by which a ballot paper can be treated as void, though the other directions in the statute are not strictly obeyed. 7. The principle laid down in this case was applied in Phillips v. Goft 17 QBD 805 where it was held that ballot papers, though not marked in the prescribed manner, ought to be counted if it could be ascertained with reasonable certainty for whom the voter in each case intended to vote, how many votes he intended to give and that he intended not to give more votes than there were members to be elected. The principles laid down in these cases are in our opinion as much applicable to Municipal Elections in India as they are to elections in England. 8. The learned Judge constituting the Tribunal has written a very careful judgment and has in our opinion correctly stated the principles by which he should be guided in deciding whether a ballot paper is valid or not. He has held ballot papers Nos. 8. The learned Judge constituting the Tribunal has written a very careful judgment and has in our opinion correctly stated the principles by which he should be guided in deciding whether a ballot paper is valid or not. He has held ballot papers Nos. 1322 and 403 to be valid as he was of opinion, on a scrutiny of these papers, that the intention of the voters to vote for three candidates was clearly indicated although in each case the ballot papers bore an additional mark. He has held, in other words, that neither of these ballot papers contained more than three votes. That is a finding of fact. It is not suggested that the Tribunal was influenced by any improper or indirect motive and in our opinion we cannot go behind the Tribunal's decision. We are accordingly of the view that there is no ground for interference with the Tribunal's decision that the Petitioner and the third Respondent, obtained an equal number of votes. 9. The second question which arises is whether in the circumstances the Tribunal is right in setting aside the election of the Petitioner and declaring a casual vacancy, or whether he ought to have decided the tie by drawing lots. We think he ought to have adopted the second course and that the matter is in effect concluded by the decision of this Court in Trilok Chand v. The Election Tribunal Meerut 1959 ALR 203 where it was held that an Election Tribunal constituted u/s 22 of the U.P. Municipalities Act, 1916 has the power to draw lots when it comes to the conclusion that the two rival candidates have secured an equal number of votes at the election. 10. In the result therefore this petition must be allowed. A writ in the nature of certiorari will issue quashing the order of the Tribunal dated 2-12-1958. The case will now go back to the Tribunal which will decide whether the Petitioner or the third Respondent is to be elected by drawing lots. As each side has succeeded in part we make no order as to costs.