JUDGMENT : Narasimham, C.J. - This is a petition under Article 226 of the Constitution, by a defeated candidate in the election to the office of Sarpanch of Khunta Grama Panchayat. The election was actually held by a Sub-Deputy Collector named Shri B.K. Parida, on 8-4-1963. There were two contesting candidates for the office of Sarpanch, namely the Petitioner Upendranath Mohanty and opposite party No. 2 Sarbeswar Mohanty. The report of the Election Officer to the Sub-divisional Officer, Kaptipada, shows that 19 members of the said Grama Panchayat were present at the election meeting and that one of the votes was rejected as the cross mark of the voter was not found in column 2 of the ballot paper meant for recording the vote and that the remaining 18 votes were cast equally in favour of the two candidates, namely 9 votes each. The Presiding Officer Shri B.K. Parida thereupon drew a lot in the presence of the two candidates and declared the Petitioner Upendranath Mahakud to be the successful candidate. As soon as he declared the election, the rival candidate Sarbeswar Mohanty filed an objection against the rejection of one of the ballot papers saying that it ought to have been coupled in his favour. This petition was however rejected. Then Shri Sarbeswar Mohanty filed an application before the Sub-divisional Officer, Kaptipada, under Rule 24 of the Orissa Grama Panchayat Rules challenging the order passed by the Sub-Deputy Collector. The learned Sub-divisional Officer registered it as Election Case No. 1 of 1963 and after perusing the relevant records (including the report of the Sub-Deputy Collector) and after scrutinising the ballot papers held that on of the ballot papers was wrongly declared invalid by the Presiding Officer and that it should have been counted in favour of the opposite party No. 2 Sarbeswar Mohanty. Hence according to him Sarbeswar got ten valid votes whereas the rival candidate, namely the Petitioner (Upendranath Mahakud) got only 9 votes. There was therefore no tie and no question of casting a lot. He therefore declared Sarbeswar Mohanty to be validly elected as Sarpanch of the said Grama Panchayat. 2. The sole contention urged by Mr. Hence according to him Sarbeswar got ten valid votes whereas the rival candidate, namely the Petitioner (Upendranath Mahakud) got only 9 votes. There was therefore no tie and no question of casting a lot. He therefore declared Sarbeswar Mohanty to be validly elected as Sarpanch of the said Grama Panchayat. 2. The sole contention urged by Mr. B. Mohapatra for the Petitioner is that in deciding an election dispute under Rule 24 of the Orissa Grama Panchayat Rules, the Sub-divisional Officer was acting as a Judicial Officer and that under the rules of natural justice, be should have given notice to the Petitioner and given him an opportunity of being heard before passing an order prejudicial to him. 3. There can be no doubt that while exercising powers under Rule 24 of the Grama Panchayat Rules the Sub-divisional Officer acts as a Judicial Officer. That rule says that all disputes shall be decided by the Sub-divisional Magistrate (Sub-divisional Officer here). The use of the words 'dispute' and 'decide' show clearly that the officer should act judicially. In fact the record itself shows that he purported to act in a judicial manner. He registered the petition of Sarbeswar Mohanty as Election Case No. 1 of 1963, opened a regular orders-sheet and passed orders saying at the end "pronounced in open court today (15-4-1963)". 4. It is too elementary that no judicial order can be passed so as to affect adversely the right of a party unless he is given a reasonable opportunity of being heard. Therefore we must hold that in this case the Sub-divisional Officer ought to have given notice to the Petitioner and heard him in full before allowing the election petition of the rival candidate. 5. But the question for consideration now is whether at this juncture it will be proper to interfere in exercise of our extraordinary jurisdiction under Article 226 of the Constitution and direct the Sub-divisional Officer to hear the Petitioner before passing any order. If, by such direction there is a reasonable probability that the decision of the Sub-divisional Officer may be changed, we would not have hesitated to pass such an order. We called for the original ballot papers and scrutinised the same with the assistance of Shri B.K. Parida who had conducted the election. If, by such direction there is a reasonable probability that the decision of the Sub-divisional Officer may be changed, we would not have hesitated to pass such an order. We called for the original ballot papers and scrutinised the same with the assistance of Shri B.K. Parida who had conducted the election. It has not been stated by the Petitioner that the original ballot papers have been tampered with in any way during this long period. We have carefully scrutinised the rejected ballot paper. The only ground for the rejection of that ballot paper was that the cross-mark was put by the voter not entirely in the column for voting against the name of the candidate, namely Sarbeswar Mohanty, but that it was put above that column. In such cases the principle to be followed by the Election Officer is to ascertain the true intention of the voter, and once the intention is clear the vote should not be declared invalid merely because the cross-mark is not wholly in the proper place. The Sub-divisional Officer rightly pointed out that though a major portion of the cross-mark is wholly outside the column meant for Sarbeswar nevertheless a small portion of the cross-mark is inside that column. Moreover it is wholly outside the column meant for the rival candidate Upendranath Mahakud. It was therefore open to the Sub-divisional Officer to hold that the voter, by putting the cross-mark unequivocally declared his intention not to vote for Upendranath Mahakud but only for Sarbeswar, though for some reason or other he allowed a major portion of the cross mark to be put in some other place. Even if the Petitioner had been given an opportunity of being heard he could not possibly have improved his case. The Sub-divisional Officer followed the principles for counting of votes as given in the brochure of the Government of India named 'Handbook for Returning Officers' which again is based on the (sic) known principles laid down in Parker's Election Agents and Returning Officers, Sixth Edition, page 119. In our opinion therefore the Petitioner's case would not be improved in any way even if the order of the Sub-divisional Officer is set aside and he is directed to rehear the parties. In our opinion therefore the Petitioner's case would not be improved in any way even if the order of the Sub-divisional Officer is set aside and he is directed to rehear the parties. Hence, without in any way minimising the force of our observation that orders under Rule 24 of the Orissa Grama Panchayat Rules are judicial orders, which should be passed only after giving the parties likely to be affected an opportunity of being heard, never the less in the peculiar circumstances of this case, we are not inclined to interfere with the order of the Sub-divisional Officer. The petition is accordingly dismissed, but there will be no order for costs. Misra, J. 6. I agree. Final Result : Dismissed