Judgment G.N.Prasad, J. 1. Heard Mr. R. N. Bhagat for the petitioner. 2. This application is directed against the order of the Election Tribunal, Gram Panchayat, Khagaria, dated the 22nd September, 1970, whereby the election of the petitioner as Mukhiya of Malia Gram Panchayat has been set aside and the election-petitioner Sri Deo Narain Prasad Yadav (respondent No. 3) has been declared to be the successful candidate. 3. The controversy centres round seven ballot-papers, the votes recorded whereunder in favour of the election-petitioner were not counted by the Presiding Officer in his favour on the ground that those seven ballot papers were found in the ballot box meant for casting votes in favour of the Panches instead of having been inserted into the ballot box meant for casting votes for the office of the Mukhiya. It is not in dispute that except for the fact that these seven ballot papers were not inserted into the ballot box meant for the Mukhiya, there were no other defects therein. These seven ballot papers, therefore, contained what has been referred to in the present case as "otherwise valid votes" cast in favour of the election petitioner. The Election Tribunal has held and in my opinion, rightly that these seven ballot papers containing valid votes in favour of the election-petitioner should have been counted in his favour and not rejected as was done by the Presiding Officer. Before the Election Tribunal it was urged that these seven ballot papers were rightly rejected by the Presiding Officer on the ground of being spurious ballot papers within the meaning of Rule 51 (2) (e) of the Bihar Panchayat Election Rules, 1959. But the Election Tribunal, in my opinion, has rightly held that the seven ballot papers in question could not be treated as spurious on the mere ground that they were found inserted into the ballot box not meant for the Mukhia. A ballot paper would be spurious, if it is not the authenticated ballot paper meant for use at the election or bears faked distinctive marks or serial number as required under the rules or if it is shown to have been utilised by some person impersonating for the real elector. 4. Mr. A ballot paper would be spurious, if it is not the authenticated ballot paper meant for use at the election or bears faked distinctive marks or serial number as required under the rules or if it is shown to have been utilised by some person impersonating for the real elector. 4. Mr. Bhagat, however, argued that the votes evidenced by these seven ballot papers ought to have been deemed to have been thrown away on the ground that they were not inserted in the correct ballot box as required by Rule 40 (1) (e) of the Rules. But in my opinion, however, Rule 51 does not contemplate that a ballot paper can be rejected on any such ground. The expression in Clause (e) of Rule 40 (1) is "the ballot box and the voter is enjoined to insert the folded ballot paper therein. Clause (e) does not contemplate that the ballot paper must be inserted into "the ballot box concerned" or if this is not done then it will not be deemed to have been used at all. In my opinion, it is the intention of the elector concerned which is material in such cases. Where after obtaining a ballot paper a voter changes his mind and does not want to exercise his right of vote, there is provision in Rule 42 to deal with such a situation. Where a voter takes all steps indicated in Rule 40 except that he puts the folded ballot paper into a wrong ballot box, it would not be right, in my opinion, to hold that the voter did not intend to exercise his right of vote in the election. 5. Mr. Bhagat relied upon a Bench decision of the Madhya Pradesh High Court in Inayatullah Khan V/s. Diwanchand Mahajan, (AIR 1959 Madh Pra. 58) where the question which their Lordships had to deal with was as to the consequence of the ballot papers having not at all been inserted into the ballot box, not even partially, but left lying at the top of the boxes and thereafter picked up and inserted into the slits of the boxes by the Presiding Officer. Hidayatullah C. J.. as he then was pointed out that this was wholly insufficient to ascertain the intention of the voter. Hidayatullah C. J.. as he then was pointed out that this was wholly insufficient to ascertain the intention of the voter. Observed his Lordship at page 69 of the report; "If a voting paper is left on top of a box it cannot be said that the voter intended to insert it in that box. The intention of the voter can only be taken from the fact of his having started to insert the paper but not effectively." In the present case, the voter did insert the folded ballot paper into a ballot box though not in the correct ballot box indicating thereby that he did intend to exercise his franchise in the election of the Mukhiya having used the correct ballot paper meant for use at such election, and from the mere fact that through ignorance or by mistake he put the ballot paper into a wrong ballot box, I am unable to hold that the voters concerned had no intention to exercise their right of vote. The decision cited by Mr. Bhagat was one of total non-insertion of the ballot paper, which is not the position in the present case. 6 In my opinion, the decision of the Election Tribunal is correct and no interference is called for. The application is dismissed.