Order:- This is a petition under Article 226 seeking to have the order of the District Munsif’s Court (Election Court) Cuddalore, made in O.P. No. 64 of 1960 before it, brought up and quashed. Under section 7 of Act XXXV of 1958, provision was made for the constitution of Panchayat Unions. Section 11 provided that a Panchayat Union Council shall be constituted for each Panchayat Union with effect from such date as may be specified in the notification issued in that behalf by the Government. The Panruti Panchayat Union was so constituted by a notification made on 2nd October, 1960. Under section 12 of the Act, every Panchayat, being a component part of a Panchayat Union, shall elect one person from among its members to the Panchayat Union Council. The persons so elected are to be members of the Panchayat Union Council and these members have to elect in accordance with section 36 of the Act a Chairman and a Vice-Chairman for the Panchayat Union Council. Act XXXV of 1958 came into force on the 30th January, 1959, and in so far as reconstitution of the Panchayats and the first constitution of the Panchayat Union Council are concerned, section 190 of the Act enacted some transitional provisions laid down in Schedule IV to the Act. These rules provide that the members of the Panchayat holding office on the date of the notification under section 11 (1) of the Act constituting the Panchayat Union Council shall be deemed to be the elected members of the Panchayat under the New Act, that is, Act XXXV of 1958. Rule 8 further provided that the President and the Vice-President of a Panchayat holding office on such date shall, subject to the provisions of the Act, continue to hold office as such President or Vice-President, subject to the further conditions laid down in rule 5. For the first Panchayat Union to be constituted, the Government enacted Act XVII of 1960 which contains special provisions in that regard. For the first Panchayat Union to be constituted, the Government enacted Act XVII of 1960 which contains special provisions in that regard. While section 12 and section 36 of Act XXXV of 1958 contemplated the election of members by the constituent Panchayats to the Panchayat Union Council and the election by these members of a Chairman and Vice-Chairman of the Panchayat Union Council, section 2 of Act XVII of 1960 provided that in the case of a Panchayat Union Council constituted for any Panchayat Union for the first time, the membership of such Panchayat Union Council shall consist of the Presidents of the Panchayats in the Panchayat Union “who, on the date specified in the notification issued under sub-section (1) of section 11 of the said Act constituting the Panchayat Union Council, are holding office as such Presidents” so that the Presidents of the various component Panchayats who were holding office as such Presidents on the notified date were to be members of the first Panchayat Union Councils, who would form the electorate for the election of the Chairman and the Vice-Chairman of the Panchayat Union Council. As has been stated, the Panruti Panchayat Union Council was constituted on 2nd October, 1960. One of the constituent Panchayats is the Sirugramam Village Panchayat. The President of this Panchayat had died on 22nd September, 1960. By 2nd October, 196o, the notified date, there had been no election to the office of President of this Panchayat which had fallen vacant by reason of the death of the President. Chinnathambi Padayachi who was the Vice-President was exercising the functions of the President on the notified date. It appears also that an election or the office of President of Sirugramam Panchayat was held and Chinnathambi Padayachi was elected as President of that Panchayat on 10th October, 1960. The election of the Chairman of the Panruti Panchayat Union Council was held on 12th October, 1960, and at this election, Chinnathambi Padayachi purported to exercise his franchise as a member of the Panchayat Union Council. The competing candidates for the office of the Chairman of the Council were the petitioner and the first respondent. Each of them polled 19 votes with the result that the final choice for the election of the Chairman had to be made by the casting of lots. As a result of the casting of lots, the petitioner was chosen as the Chairman. Each of them polled 19 votes with the result that the final choice for the election of the Chairman had to be made by the casting of lots. As a result of the casting of lots, the petitioner was chosen as the Chairman. Thereupon, the 1st respondent filed an election petition O.P. No. 64 of 1960 before the District Munsif, Cuddalore, challenging the election. He claimed that Chinnathambi Padayachi was not holding office as the President of Sirugramam Panchayat on 2nd October, 1960, and that the acceptance of his vote at the election of the Chairman of the Panruti Panchayat Union Council amounted to an improper reception of a vote. He also claimed that Chinnathambi voted for the petitioner and that but for the acceptance of his vote, he, the respondent would have been elected as Chairman. The learned District Munsif examined the question and held that Chinnathambi was not holding office as President of Sirugramam Panchayat on the relevant date, that, is, 2nd October, 1960, and that he was therefore not competent to figure as member of the Panchayat Union Council at the election of the Chairman. The learned District Munsif went further and held that the evidence was sufficient to establish that the acceptance of the vote of Chinnathambi Padayachi had materially affected the result of the election. He accordingly set aside the election and ordered a fresh election to be held for the Chairmanship of the Panchayat Union Council. It is in these circumstances that the petitioner who had succeeded in the election has filed the present petition seeking to have the order of the Election Court quashed. Section 2 of the Act XVII of 1960 clearly stipulates that the members of the Panchayat Union Council shall consist of the Presidents of the component Panchayats who hold office as such Presidents on the date specified, that is, on 2nd October, 1960 in the present case. If Chinnathambi was not holding office as President on the date, he could not have functioned as a member of the Panchayat Union Council at the election of the Chairman of the Union and the recording of his vote would accordingly amount to the improper acceptance of vote. If Chinnathambi was not holding office as President on the date, he could not have functioned as a member of the Panchayat Union Council at the election of the Chairman of the Union and the recording of his vote would accordingly amount to the improper acceptance of vote. I may at once state that the election of Chinnathambi as the President of Sirugramam Panchayat on 10th October, 1960 has no effect whatsoever and would not amount to his holding of office as President on 2nd October, 1960. The first question is therefore whether Chinnathambi, who was the Vice-President of Sirugramam Panchayat, and who under the provisions of the Act was exercising the functions of the President in the vacancy caused by the death of the President of that Panchayat, can be said to be holding office as such President. On a careful examination of the relevant provisions of the Act, it seems to me that Chinnathambi cannot be held to be holding office as President of the Panchayat till the date of his actual election which took place on 10th October, 1960; that is to say, he was not holding office as President of the Panchayat on the notified date that is, 2nd October, 1960. Under the Act, ‘President’ means the President of the Panchayat. Section 29 of Act XXXV of 1958 provides for a President and a Vice-President. A Vice-President as such has not been defined in the Act. The President ceases to hold office as such on the expiry of his term of office as member or on his otherwise ceasing to be a member. Section 33 of the Act sets out the functions of the President. Section 34 deals with the devolution and delegation of the President’s functions and filling up of vacancies in the office of President. It provides by sub-section (1), “When the office of President is vacant, the Vice-President shall exercise the functions of the President until a new President is declared elected and assumes office.” Undoubtedly, a vacancy in the office of President of Sirugramam Panchayat was caused when the previous President died on 22nd September, 1960, and it was by virtue of section 34 (1) of the Act that Chinnathambi Padayachi became competent to exercise the functions of the President. On behalf of the petitioner it is contended that when under the statute Chinnathambi Padayachi became competent to function as President, he must be deemed to be the President for all purposes and that therefore on the notified date 2nd October, 1960, he was holding office as President. It seems to me that there is considerable difference between holding office as President and exercising the functions of the President. Learned counsel for the petitioner has relied upon Public Prosecutor v. Narayanaswami1That was a case where the question arose whether a Temporary President of a Panchayat appointed under section 25 (3) of Act X of 1950 was competent to file a complaint under section 103 of that Act. The learned Judge came to the conclusion that under the provisions of that Act, when the office of a President is vacant, the functions of the President devolve on a member of the Panchayat appointed by the Inspector in that behalf. The complainant in that case was the Temporary President who became empowered to exercise the functions of the President, and though he is styled Temporary President in section 25 (3) of the Act, his functions are no less than those of the President. On this reasoning, the learned Judge held that the complaint by the Temporary President was a valid one. I am unable to see what help this decision affords for the determination of the point now in issue. The question is whether a Vice-President upon whom the functions of the President devolve by reason of section 34 (1) of the Act can be described as President holding office as such. The above decision does not touch upon this point. The person who by virtue of section 34 (1) exercises the functions of the President is, still only the Vice-President. He holds office as Vice-President and it is only on the occurrence of a vacancy in the office of the President that he becomes so empowered to exercise the functions of the President. If the intention of the Legislature was that a Vice-President assuming such powers shall be regarded as the President for all purposes, the statute would have clearly said so. But the expression that is used is far different and I am unable to equate the exercising of the functions of a President in a stated contingency as amounting to the holding of office of the President. But the expression that is used is far different and I am unable to equate the exercising of the functions of a President in a stated contingency as amounting to the holding of office of the President. The phrase “as such” came in for consideration in 0’ Grady v. Wilmot2, where the House of Lords had to interpret the expression “the property which does not pass to the executor as such.” Lord Buckmaster said: “I do not think that property which passes to the executor as such is necessarily the same as property received by the executor as executor or which he might, but for his wilful default, have received. Section 9, sub-section (1), deals with the actual transition of the estate, and the words as ‘such’ are in my opinion equivalent either to the phrase ‘qua executor’ or ‘virtue official’, and in neither of these capacities does personal property subject to an exercised power by will pass to the executor, if it passes at all.” It seems to me therefore that the expression ‘holding office as such President’ that occurs in section 2 of Act XVII of 1960 emphasised the real character of the office held and not of the mere functions that happened to be discharged by any person. It accordingly follows that Chinnathambi Padayachi was not a person holding office as President of the Sirugramam Panchayat on 2nd October, 1960 and was not competent to take part in the proceedings for the election of Chairman of the Panruti Panchayat Union Council on 12th October, 1960. The fact that Chinnathambi Padayachi happened to be elected as the President of the Sirugramam Panchayat on 10th October, 1960 has no relevance whatsoever; if he did not hold office as President of the Panchayat on 2nd October, 19,60, he ceased to have the capacity to function as a member of the Panchayat Union Council. It is no doubt true that certain contingencies as the present one have not been provided for by the statute. It may be that in the election of the Chairman of the Panruti Panchayat Union Council, the Sirugramam Panchayat might have no representation by reason of the fact that on 2nd October, 1960 there was no President holding office (as such) of Sirugramam Panchayat in existence. It may be that in the election of the Chairman of the Panruti Panchayat Union Council, the Sirugramam Panchayat might have no representation by reason of the fact that on 2nd October, 1960 there was no President holding office (as such) of Sirugramam Panchayat in existence. Learned counsel for the petitioner has pointed to the anomaly that is created by a component part of the Union being unrepresented to the election of the Chairman of the Union and urges that such an anomaly would be avoided if the Vice-President exercising the functions of the President is also regarded as President for purposes of the provision. I am unable to agree. Even in Schedule IV containing transitional provisions which are also operative in so far as the first constitution of the Panchayat Union is concerned, there is an Explanation to rule 9. Rule 9 deals with vacancies in the office of President or Vice-President which are in existence on the date of the notification or which occur before the date referred to in Rule 5. The Explanation reads: “For the purpose of this rule, the office of the President, Vice-President or member of a Panchayat, to which no person had at any time prior to the said date been elected, shall be deemed to be vacant on the said date.” The said date for our present purpose is 2nd October, 1960. The office of the President had fallen vacant prior to the said date and no election of the President had at any time prior to the said date been held. The Explanation accordingly lays down that the office of such President shall be deemed to be vacant on the said date. To accept the argument of the learned counsel that an anomalous situation will be created and Panchayats might happen to be unrepresented on the Panchayat Union unless a Vice-President exercising the functions of the President is regarded as the President for the purpose of section 2 of Act XVII of 1960 is to run counter to the Explanation to Rule 9 contained in Schedule IV to Act XXXV of 1958. The Legislature was not unaware that occasions might arise when either on the said date or between the said date and the date of the election of the Chairman of the Union, vacancies in the office of Presidents of component Panchayats might occur. The Legislature was not unaware that occasions might arise when either on the said date or between the said date and the date of the election of the Chairman of the Union, vacancies in the office of Presidents of component Panchayats might occur. It was a situation which could not be met in all contingencies and the Legislature was apparently content that such unusual situations could not be provided for with an adequate remedy. To my mind, this Explanation practically emphasises the position that where on the said date there was a vacancy in the office of the President, the Vice-President exercising the functions of the President cannot be regarded as the President for the purpose of the section. This view taken by the District Munsif is correct, and there is no error of law which requires to be corrected. The next question that has been urged is that even if Chinnathambi Padayachi improperly recorded his vote at the election of the Chairman of the Union, there is no evidence that the improper reception of his vote materially affected the result of the election. Some evidence was let in before the learned District Munsif to show that Chinnathambi Padayachi was a partisan of the respondent and that he took part in the election proceedings and that his conduct both before and after the election justified the inference that he should have voted for the petitioner. It was not however possible for the learned District Munsif to come to any definite conclusion as to how Chinnathambi Padayachi exercised his vote, whether in favour of the petitioner or the respondent. But he took note of the fact that but for his participation, the result of the election would not have been a tie and that in that view, the improper reception of his vote had resulted in a situation calling for the casting of lots and that it could reasonably be held that it had materially affected the result of the election. It is this conclusion of the learned District Munsif that is attacked by the petitioner and it is claimed that in coming to this conclusion the learned District Munsif had no material before him. Several cases have been cited before me. It is this conclusion of the learned District Munsif that is attacked by the petitioner and it is claimed that in coming to this conclusion the learned District Munsif had no material before him. Several cases have been cited before me. The case of Vashist Narain Sharma v. Dev Chandra1emphasises that the onus rests upon the person challenging the election to prove that the wasted votes would have been distributed in such a manner as would have altered the result of the election and that unless the objector discharges this burden, the election must be allowed to stand. That was a case where the improper acceptance of a nomination was in question. The difference between the first two candidates was 1872 votes. The votes secured by the candidate whose nomination was challenged as having been improperly accepted were 1983. Taking over 1872 of these votes to the second candidate and equalising the votes of the first and the second candidates, the question arose how the extra 111 votes secured by the improper nomination were to be dealt with. Their Lordships of the Supreme Court observed: “The number of wasted votes was 111. It is impossible to accept the ipse dixit of witnesses coming from one side or the other to say that all or some of the votes would have gone to the one or the other on some supposed or imaginary ground. The question is one of fact and has to be proved by positive evidence. If the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand. Such a result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but neither the Tribunal nor this Court is concerned with the inconvenience resulting from the operation of the law.” It is not necessary to refer to other cases. In the present case, a total of 38 votes were recorded for both the candidates, each polling 19. It is the case of only one vote that is in question before me, viz., that of Chinnathambi Padayachi who was not competent to vote at this election. In the present case, a total of 38 votes were recorded for both the candidates, each polling 19. It is the case of only one vote that is in question before me, viz., that of Chinnathambi Padayachi who was not competent to vote at this election. It seems to me that the present case differs from the cases that have come up before Courts. There is no doubt whatsoever that but for the acceptance of the improper vote of Chinnathambi Padayachi, the result of the election would have been perfectly clear and would have displayed the will of the electorate in a decisive manner. The acceptance of the improper vote has resulted in this position, viz., that it is no longer the result of an election by the electorate, but a choice by the casting of lots. Under these circumstances, it is unnecessary to my mind to enquire for whom Chinnathambi Padayachi cast his vote. The improper reception of Chinnathambi’s vote has placed the chances of a candidate for the election at the hazard of the casting of a lot. This to my mind is sufficient to lead me to hold that the result of the election has been materially affected. In the view that I take, I am unable to agree with the learned counsel that there was no material on the basis of which the learned District Munsif could come to the conclusion that he reached. The result is that the rule will stand discharged and the petition dismissed with costs. Counsel’s fee Rs. 150. V.S. ------------- Rule discharged.