JUDGMENT : Ahmad, C.J. - In the municipality of Dhenkanal there was an election held as provided in the Orissa Municipal Act,1950 and the rules made thereunder, for the election of Chairman and Vice-Chairman of Municipalities, on the 26th of December (sic), for the offices of Chairman as also for some other office then of. The Municipality had then, in all, thirteen Councillors all of whom were present on that day at the meeting held for this election. The then District Magistrate of Dhenkanal, who has been impleaded here as opposite party No. 1, was the president of the meeting. It is not disputed that at that meeting two of the Councillors, namely the Petitioner (Sri Natabar Debata) and opposite party No. 2 (Sri Narayan Jee) were duly nominated and seconded as the contesting candidates for the office of Chairman, and the votes of the Councillors had to be recorded accordingly for these two candidates. Rule 4 of the aforesaid rules relates to voting and result of elections. That rule inter alia provides that every Councillor wishing to vote shall be supplied with a voting paper on which the names of the candidates shall be printed, typed, or cyclostyled, or legibly written in the following form, both in English and Oriya: The only difference that this form had with the statutory form was that it had a ruled compartment for placing the cross mark (X), or in other words, for recording the vote by the voter. 2. Out of the thirteen Councillors, two being the candidates themselves were not entitled to participate in the ballot as t provided in the aforesaid Rule 5 and one of the remaining eleven candidates attained from taking part in the election. Thus, only 10 Councillors in fact participated in the polling. After the poll was over the ballot box was opened and the votes were counted by the Presiding Officer, namely opposite party No. 1. In the course of his counting the Presiding Officer found that two of the ballot papers put in the ballot box were blank, and three others according to his judgment, were invalid. Thus, the fate of the election hang on the remaining five ballot papers. Out of these five, three were found to have been cast in favour of Sri Narayan Jee (Opposite Party No. 2) and two in favour of Sri Natabar Debata. Thus, the fate of the election hang on the remaining five ballot papers. Out of these five, three were found to have been cast in favour of Sri Narayan Jee (Opposite Party No. 2) and two in favour of Sri Natabar Debata. Accordingly, Sri Narayan Jee was declared elected by the then Presiding Officer as the Chairman of Dhenkanal Municipality. These facts are not controverted and are all fully supported by the minutes that the president on that day, immediately thereafter, recorded, which forms Annexure II of his counter affidavit. Paragraph 10 of his minutes states that: Councillors cast their votes. Two votes were blank and in three other ballot papers the cross mark (X) was given against the candidate in the first column meant for the name of the candidate and not in column 2 which is meant for giving the cross mark as provided under Rule 4 of the Rules. As such these three votes were declared invalid. Out of the remaining five votes, three were cast in favour of Sri Narayan Jee and two in favour of Sri Natabar Debata, and Shir Narayan Jee was duly declared elected to the office of Chairman, Dhenkanal Municipality. 3. Now the claim made by Sri Natabar Debata who is the Petitioner in this Court is that of the three votes declared invalid by the Presiding Officer, one was cast in favour of Sri Narayan Tee and the other two in favour of the Petitioner and the only common in defect that all these three ballot papers suffered from was that in everyone of them the cross mark had been put against the name of the candidate and not within the ruled compartment provided therefor, in column 2 of the ballot paper. But notwithstanding that, it has been on committed that the intention of the voter being clear there was no justification on the part of the presiding officer to declare any of the three ballot papers invalid. Thus, it is said that the District Magistrate who presided over the election was wrong in law in declaring these three ballot papers invalid and that had these been declared valid and taken into consideration, or would have at least resulted in a tie; or in other words in equality of votes in which case lots was necessary to be drawn to ascertain the result. 4. 4. Accordingly, on these averments the Petitioner has obtained a the from this High Court calling upon the opposite parties to show cause why the aforesaid order of the District Magistrate dated the 28th December 1963 should not be quashed by grant of a writ in the nature of certiorari under Article 226 of the Constitution, and why a writ in the nature of mandamus should not be granted commanding him to give a declaration that the Petitioner Sri Natabar Dabata has been duly elected to the office of Chairman, Dhenkanal Municipality, or at least there had been a tie and therefore recourse should be had to drawing of lots as provided in Rule 4 of the aforesaid Rules. 5. This Court, by its order dated the 20th February 1964 bad called for "all the ballot papers including the three declared invalid by the District Magistrate". They are thus now all before us and we have carefully examined everyone of the three ballot papers which were, on the date of election, declared invalid by opposite party No. 1. 6. In our opinion the grievance made in this regard by the Petitioner is well founded. The only defect, if any, which all the three rejected ballot papers suffer from is that the cross marks that have been put in them stand against the names of the candidates and not within the ruled compartment specifically provided there for in column (2) of the ballot paper, and this fact is not challenged before us by any of the parties present in Court. It is therefore on these admitted and proved facts that the controversy in this case has to be disposed of. 7. Now the relevant rules as to the voting and result of elections in the aforesaid rules are to be found in Clause (2) of Rule 4. It provides that: the voter shall then proceed to the place set apart the purpose and there place a cross mark in column 2 against the name of the candidate for whom he wishes to vote he shall then fold the voting paper so as to conceal his vote and deposit the same in a ballot box placed in the view of the president of the meeting and 80 constructed that the paper may be placed therein, but not extracted therefrom, without the box being opened. To the same effect was the law incorporated in England under Rule 25 of the Ballot Act (35 and 36-v. Ch. XXXVIII) which may be usefully quoted here for analogy. It was in these words: An elector on receiving the ballot paper shall forthwith proceed into one of the compartments in the polling station, and there mark his paper and fold it up so as to conceal his vote, and shall then put his ballot paper folded up into the ballot box. It is true that this rule, as laid down, did not expressly provide where the mark on the ballot paper was to be put. But in Schedule 2 of that rule there was a form of ballot paper given, and to that form was appended a note which by Section 28 of the Ballot Act, was to be construed to have effect as part of that Act. This note contained a form of direction for the guidance of the voter in writing and stated that: the voter will go into one of the compartments, and with the pencil provided in the compartment, place a cross on the right hand side, opposite the name of the candidate for whom he votes, thus-X. The Court of Common pleas, while dealing with the effect and nature of the direction as laid down therein, in the leading case of Woodwards v. Barsons Law Reports 10 (1874-75) C.P. 733 laid down the law on the subject as follows: The result seems to be, as to writing or mark on the ballot paper, that if there be substantially a want of any mark, or a mark which leaves it uncertain whether the voter intended to vote at all, or for which candidate he intended to vote, or if there be marks indicating that the voter has voted for too many candidates, or a writing or a mark by which the voter can be identified 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 someone 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 setting the ballot 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. If these requirements are no t substantially fulfilled, the ballot paper is void and should not be counted; and if it is counted it should be struck out on a scrutiny. The decision in each case is upon a point of fact, to be decided first by the returning officer, and afterwards by the election tribunal, on petition. To the same effect is the law laid down in Pontardawe v. Rural Council Election Petition (1907) 2 K.B.D. 313. In fact, that case is very much on all fours applicable to the facts of the present case. Therein too what had happened was that the cross mark by the voter had been placed at some point outside the ruled compartment. The grievance made by the candidate in whose favour that cross 1 mark was given was that on that ground the ballot paper should not have been rejected. That contention was accepted by the Court and it was held that the ballot paper was not void by reason of the voter having placed his mark outside the ruled compartment on the paper, within which compartment it was intended that the voter?s mark should be placed, if the mark was in such a position opposite to the name of the candidate as to leave no doubt for whom the candidate intended to vote. In, Halsbury?s Laws of England, Third Edition, Volume 14, Pages 139-40, paragraph 240, both these English decisions have been expressly referred to as authorities on the subject and finally in paragraph 240 the law on the subject has been explained in these words: A ballot paper which is unmarked or void for uncertainty is void; and must not be counted; but a ballot paper on which a vote is marked elsewhere than in the proper place, or otherwise t an by means of a cross or by more than one mark, is not by reason thereof to be deemed to be void (either wholly or as respects that vote) if an intention that the vote shall be for one or the other of the candidates or-at a poll consequent on a parish meeting, for or against any question-clearly appears and the way the paper is marked does not of itself identify the voter and it is not shown that be can be identified thereby. The same again is the view reiterated by Rogers in his work on Elections (Volume II) and by Parker in his book on Election Agent and Returning Officer. Perhaps a passage from Roger?s book at page 106 may, in this connection be usefully quoted here. It states that.- where the cross was put on the right, outside the space intended for it, but opposite the name of the candidate, it was held a good vote for him. Likewise, Schofield also in his book on Parliamentary Elections has at page 370 expressed himself on this point in these words: A ballot paper should not be rejected because the mark is faint, if from any circumstances it can be inferred that the mark was intentionally made. If the paper is marked with a cross one part of which extends into the space opposite the name of the candidate, and the other into the space opposite then name of the other, the vote may be counted for the candidate opposite whose name the intersection of the cross is made. A ballot paper marked only with a cross upon the name of a candidate in such a way as to make it appear possible that the voter intended to strike the name out, should be rejected.... A ballot paper marked only with a cross upon the name of a candidate in such a way as to make it appear possible that the voter intended to strike the name out, should be rejected.... A cross in the same space as the name of the candidate or to the left of the name has been held to be good. 8. On principle, therefore, it is by now well established that a ballot paper should not be rejected merely because the cross mark is put in front of the name of the candidate, within the ruled compartment opposite the name of the candidate, provided the mark is placed in such a position on the ballot paper as to leave no doubt for whom the voter intended to vote. Applying this principle to the facts of the present case, we, on an examination of the three rejected ballot papers, find that two of them were clearly intended to be cast in favour of the Petitioner and the remaining one in favour of opposite party No. 2. That being so we hold that opposite party No. 1 in rejecting these three ballot papers on the ground of uncertainty, did not act in accordance with law; rather contrary to it. In other words these three ballot papers should not have been rejected on the ground of uncertainty, but instead should have been accepted as valid and counted for the party for whom as just stated they were cast. 9. That, however presents one difficulty namely that if all these three ballot papers are now accepted as valid-as we think they ought to-the votes secured by each of the contesting candidates would become equal namely four each, and therefore a declaration as prayed for by the Petitioner namely that he be declared as having been the successful candidate at the election cannot be given by this Court. On the other hand, the matter has to be sent back to the Returning/Officer, namely opposite party No. 1 for making a fresh declaration of the result in accordance with the procedure as laid down in Rule 4 of the aforesaid Rules for election of Chairman and Vice-Chairmen of Municipalities in Orissa. 10. On the other hand, the matter has to be sent back to the Returning/Officer, namely opposite party No. 1 for making a fresh declaration of the result in accordance with the procedure as laid down in Rule 4 of the aforesaid Rules for election of Chairman and Vice-Chairmen of Municipalities in Orissa. 10. For these reasons, it is directed that a writ in the nature of certiorari be issued for quashing the order of opposite party No. 1 and it is further ordered that a writ in the nature of mandamus be granted under Article 226 of the Constitution, calling upon opposite party No. 1 to accept all the aforesaid three rejected ballot papers as valid; and then to declare the results of the election in accordance with the procedure as laid down in Rule 4 of the Rules for the election of Chairmen and Vice-Chairmen of Municipalities. The application is accordingly allowed in terms as just stated, but in the circumstances there will be no order for costs. Barman, J. 11. I agree Final Result : Allowed