JUDGMENT : G.K. Misra, C.J. - The Plaintiff and opposite parties 1 to 7 were contestants in the election held on 16-11-1967 for the office of chairmanship of the Delang Punchayat Samity in the district of Puri. The Plaintiff was declared to be elected having secured the largest number of votes. He polled 60 votes as against 59 polled by opposite party No. 1. opposite party No. 1 filed an application u/s 44-D and 44(E) of the Orissa Parichayat Samiti and Zilla Parishad Act, 1959 (hereinafter to be referred to as the Act) challenging the election of the Plaintiff. The application was filed in the Court of the Munsif, Puri, who is the Election Commission u/s 41-B, Sub-section (2), Clause (b) of the Act. The application was registered &s a miscellaneous case No. 321 of 1967. opposite party No. 1 in paragraph 4 of the election petition averred that out of 60 votes polled by the Plaintiff, three of the ballot papers were defective and should not have been counted in his favour and should have been rejected as those ballot papers did not bear the required seal mark. In paragraphs 5 to 9 of the petition, various acts of corrupt practice materially affecting the results of the election, were alleged. The Plaintiff contested the election petition. The miscellaneous case was decreed by the learned Munsif, by his judgment dated 21.9.1968. The election petition was allowed and opposite party No. 1 was declared to have been duly elected as chairman of the Delang Punchayat Samity. This conclusion was reached on a finding that two of the ballot papers (Exts. 1 and 4) were invalid. If these two votes were deducted from the 60 votes cast in favour of the Plaintiff, then opposite party No. 1 secured one vote more and as such secured a majority of votes. The learned Munsif dismissed the allegation regarding corrupt practice. Opposite party No. 1 has not assailed that finding in this writ application. 2. The learned Munsif rejected exts. 1 and 4 on the ground that they did not bear the cross-marks required to be caused by affixing the seal correctly. The marks found on those exts were given with the reverse end of the seal and by these marks the voters can be identified. 2. The learned Munsif rejected exts. 1 and 4 on the ground that they did not bear the cross-marks required to be caused by affixing the seal correctly. The marks found on those exts were given with the reverse end of the seal and by these marks the voters can be identified. He rejected exhibits 1 and 4 on the basis of Rule 34(i) of the Orissa Panchayat Samity and Zilla Parishad (Conduct of Election) Rules, 1966 (hereinafter to be referred to as the Rules). Against this order the Plaintiff has filed this writ application under Articles 226 and 227 of the Constitution. 3. Mr. Ranjit Mohanty, on behalf of the Plaintiff, raised two contentions: (i) In the absence of any pleading on the basis of Rule 34(1) the election petition could not have been allowed on the finding that exts. 1 and 4 bore the marks by which the voters can identified. Further, from the makes given on these two exhibits the voters cannot be identified. (ii) Though the marks on exts. 1 and 4 were given with the reverse end of the seal which does not bear the cross-mark, those two ballot papers should not have been declared invalid as the intention of the voters was clearly expressed by affixing those marks against the symbol "tube well" assigned to the Plaintiff. Both the contentions require careful examination. 4. Before examining the aforesaid two questions of law, it would be necessary to give clear description of the nature of the marks put on exts. 1 and 4. The seal prescribed is a small rectangular piece of wood the base and apex of which are square shaped. To one of the square shaped ends a piece of rubber having a cross mark is affixed while there is no such rubber attached to the other end. The seal is put by using the end containing the rubber cross mark stamp. If the stamp is given, with ink, with the end of containing the rubber it would leave a crossmark on the ballot paper, if the stamp is given, with ink, with the reverse end it would leave the impression of square with no cross mark. 5. The symbol assigned to opposite party No. 1 was the banian tree. In exts. If the stamp is given, with ink, with the end of containing the rubber it would leave a crossmark on the ballot paper, if the stamp is given, with ink, with the reverse end it would leave the impression of square with no cross mark. 5. The symbol assigned to opposite party No. 1 was the banian tree. In exts. 1 and 4 the mark has been put against the symbol "tube well" and no mark has been given against any other symbol including the banian tree. In all there were 10 symbols in the ballot paper. There can therefore be no difficulty in gauging the intention of the voter in exts. 1 and 4 that he voted for the symbol "tube well". The seal however, has not been given with the rubber stamp bearing the cross mark, but has been given with the square reverse and which has merely left the impression of a single square in ext. 1 and two squares in ext. 4. In other words the stamp has been given once in ext. 1 and twice in ext. 4 with the reverse end. 6. In the aforesaid context we could now proceed to examine whether the two ballot papers are invalid. The relevant rules, to be considered in this connection, are Rule 28(0) and Rule 34. They are extracted below: 28(0) The polling shall then commence at the appointed hour. As each voter approaches the Presiding officer, he shall check up eligibility with reference to the working copy of the list of validly elected Members of Grama Panchayat furnished by the Election officer and shall issue a ballot paper to the voter for the office of Chairman of the Samiti, duly authenticated by the Election officer with his seal or signature or both. The Presiding officer shall clearly to each voter, the procedure to be followed in putting his mark. The voter shall then proceed along with the ballot paper to the enclosure and affix a paper secretly with the stamp provided for the purpose, or by any other method as may be decided by the Presiding officer against the symbol of the candidate for whom he wishes to vote. After affixing the mark the voter should fold the ballot papers to the inner side so as to maintain secrecy of the vote and deposit the same in the ballot box intended for the purpose. After affixing the mark the voter should fold the ballot papers to the inner side so as to maintain secrecy of the vote and deposit the same in the ballot box intended for the purpose. In case of difficulty, the voter shall proceed to the presiding officer who shall assist the voter in inserting the ballot paper in the appropriate ballot box. The voter shall then leave the polling station. 34. After the close of the polling, the Presiding officer shall proceed to take up for counting of the votes polled in the presence of the candidates or their polling Agent who may be present at the polling station. Each ballot paper shall be carefully scrutinised by the Presiding officer in the course of counting and a ballot paper shall be liable for rejection on one or more of the following grounds: (i) If it bears any mark or writing by which the voter can be identified. (ii) If no vote is recorded thereon. (iii) If votes are recorded ill favour of more than one candidate. (iv) If the mark indicating the vote is placed in such a manner so as to make it doubtful as to which candidate the vote has been given. (v) If the ballot paper is spurious. (vi) If it is so damaged or mutilated that is genuineness cannot be established. (vii) If it does not bear the authentication mark of the Election officer prescribed under Rule 28. The Presiding officer shall summarily decide at the time of scrutiny and in case of rejection shall endorse under his signature on the ballot paper itself. He shall also record the reasons for each ballot paper so rejected, in a separate pap r, when the Presiding officer in charge of the counting is satisfied that any such defect has been caused due to any mistake or failure on the part of the Presiding officer himself, the ballot paper shall not be rejected merely on the ground or such defect. Under Rule 28(a), the polling shall commence at the appointed hour. After checking up that a particular person is entitled to vote, the Presiding officer shall issue a ballot paper to the voter for the office of Chairman, Panchayat Samiti, duly authenticated by the Election officer with his seal or signature or both. Under Rule 28(a), the polling shall commence at the appointed hour. After checking up that a particular person is entitled to vote, the Presiding officer shall issue a ballot paper to the voter for the office of Chairman, Panchayat Samiti, duly authenticated by the Election officer with his seal or signature or both. The voter shall thereafter proceed along with the ballot paper to the enclosure and affix the cross mark (X) in column 3 of the ballot paper secretly with the stamp provided for the purpose. Thus, two important features of Rule 28 (a) are to be borne in mind. One is that the ballot paper issued to the voter just be duly authenticated by the Election officer and the second is that the voter shall affix a cross mark (X) with the stamp in column 3 of the ballot paper. As only one of the square ends bears the cross mark on the rubber and the other end does not bear any such rubber cross mark, it necessarily follows that the stamp is to be given with the square and containing the rubber cross mark. 7. The first part of Rule 28(a) namely that a duly authenticated ballot paper shall be issued is referred to in Rule 34(iii), but there is no reference in Rule 34 to the second part. The significance of this would be discussed at a subsequent stage. 8. Rule 34 prescribes that the ballot papers shall be liable to rejection on one or more of the grounds referred to therein. The first question for consideration is whether these grounds are mandatory or directory. 9. It will be useful, in this connection, to refer to Rule 47(1) of the Representation of the people (conduct of Elections and Election petition) Rules, 1951. They set forth certain grounds for rejection of ballot papers. They may be quoted: 47. The first question for consideration is whether these grounds are mandatory or directory. 9. It will be useful, in this connection, to refer to Rule 47(1) of the Representation of the people (conduct of Elections and Election petition) Rules, 1951. They set forth certain grounds for rejection of ballot papers. They may be quoted: 47. Grounds for rejection of ballot papers (1) A ballot paper contained in a ballot box shall be rejected if: (a) It bears any mark or written by which the elector can be indetified, (b) In the case where a direction has been issued under Rule 28 that the ballot paper shall contain an official mark, it does not contain the official mark, (c) If it bears any serial number or mark different from the serial numbers or marks of ballot papers authorised for use at the polling station or the polling booth at which the ballot box: in which it was found was used, (d) the Returning officer is satisfied that it is a spurious ballot paper or that it has been so damaged or mutilated that its identity as a genuine ballot paper cannot be established. In Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others the question arcse as to whether the provisions of the above rule were mandatory or directory. In paragraph 26 their Lordships observed that an enactment in form mandatory might in substance be directory and that the use of the word "shall" does not conclude the matter. In each case the true intention of the Legislature must be gathered and that must ultimately depend on the context. Then their Lordships examined each one of the clauses u/s 47(1) and came to the conclusion that each one of them was mandatory in character. The aforesaid Rule (1)(a)(c) & (d) correspond to Rule 34(i), (v), (vi) and (vii) of the rules. On parity of reasoning Rule 34 must be held to be mandatory. It is not necessary to repeat the reasons given in the Supreme Court decision. 10. It is necessary now to examine whether there was infringement of Rule 34(i). That Rule says that a ballot paper shall be liable to rejection "if it bears any mark or writing by which the voter can be identified". An identical provision came up for consideration in Anup Singh Vs. Shri Abdul Ghani and Another. 10. It is necessary now to examine whether there was infringement of Rule 34(i). That Rule says that a ballot paper shall be liable to rejection "if it bears any mark or writing by which the voter can be identified". An identical provision came up for consideration in Anup Singh Vs. Shri Abdul Ghani and Another. That was Rule 73(2)(d) of the conduct of Election Rules 1961 which ran thus: 73(2) A ballot paper shall be invalid on which (d) there is any mark or writing by which the elector can be identified. This Rule is almost identical in terms, with Rule 34(i). In construing the aforesaid Rule, their lordships observed that the works "any mark or writing by which the elector can be identified" imply something more than mere possibility of identification. This may happen when some pre-arrangement is either proved or the marks are so many and of such nature that in inference of pre-arrangement may be safely drawn without further evidence. In paragraph 13 of the judgment their Lordships observed thus: when the Legislature used these words it was providing that any mark or writing by which the electorate can reasonably and probably be identified would invalidate the ballot paper. The words 'can be identified' in our opinion imply something more than a mere possibility of identification, at the same time, they do not in our opinion require that before the ballot paper is rejected the elector's identity construed, therefore, the words mean that the mark or writing should be such that the elector can be identified thereby with reasonable probability. In paragraphs 14 their Lordships dealt with the question as to how such a conclusion would be arrived at. There is bound to be difference in the approach of the Returning officer. The Tribunal, and the Court when dealing with a mark as distinguished from a writing. So far as the mark is concerned by itself it has very little value for purposes of identification and therefore in the case of marks the Returning officer, or the Tribunal, or the Court may require evidence to show that there was arrangement between the elector and the candidate to put a certain mark on the ballot paper which would lead to his identification. But in the case of a writing the mere presence of the writing in certain circumstances would be sufficient to warrant the Returning officer or the Tribunal or the Court to say that the elector can be identified by the writing. Whether the elector can be identified by the writing would always be a question of fact in each case and in that connection, the extent of the writing on the ballot paper say have a bearing on the question whether the elector can be identified thereby. 11. It would thus be seen that in the case of a mark, without further evidence it cannot be said that from it the voter can be identified. The same reasoning would apply to the construction of Rule 34(1). In the present case there is no pleading, evidence or finding that there was some previous arrangement by which the voters were to put a mark with the reverse end of the wooden seal on the ballot paper. The learned Munsif therefore illegally exercised his jurisdiction and committed an error of law apparent on the face of the record in holding that there was infringement of Rule 34(1). The judgment of the learned Munsif on its own reasoning cannot be supported. 12. Mr. Srikanta Mohanty on the other hand contended that the two ballot papers are hit by Rule 34(ii). That rule says that a ballot paper shall be liable to rejection if no vote is recorded thereon, though with the reverse and, do indicate the intention of the voter that they wanted to vote in favour of the symbol "tube well". It cannot, therefore, be said that exts. 1 and 4 are ballot papers on which no vote has been recorded. 13. Mr. Srikanta Mohanty however argues that the vote that has been recorded in exts. 1 and 4 is in contravention of Rule 38(a) of the rules, whereunder the intention of the voters should be expressed by putting the seal with the end bearing the rubber cross mark and not in any other manner, and as no such cross mark has been put on exts. 1 and 4, it must be held that no votes have been recorded on those ballot papers. This contention requires careful examination. 14. Mr. Mohanty placed reliance on Hari Vishnu Kamath v. Ahmed Ishaque. 1 and 4, it must be held that no votes have been recorded on those ballot papers. This contention requires careful examination. 14. Mr. Mohanty placed reliance on Hari Vishnu Kamath v. Ahmed Ishaque. In paragraph 35 their Lordships observed thus: It is argued with great insistence that as the object of the election Rules is to discover the intention of the majority of the voters in the choice of a representative. If an elector has shown his clear intention to vote for a particular candidate, that must be taken into account u/s 100(2)(c) even though the vote might be bad for non-compliance with the formalities. But when the law prescribed in a particular manner, it can be taken into account only if it is so expressed. An intention not duly expressed is, in a Court of law, in the same position as an intention not expressed at all. The aforesaid passage prima facie supports the contention of Mr. Srikanta Mohanty. But on careful scrutiny it would be seen that the aforesaid observation was made in the context of a rule which was held to be mandatory. That was Rule 28 of the Representation of the People (Conduct of Elections and Election Petitions) Rules 1951, prescribed that "the ballot paper to be used for the purpose of voting at an election to which this chapter applies shall contain a serial number and such distinguishing marks as the election commissioner may decide". By virtue of Rule 47(1)(0) of those Rules was mandatory. In this context, their Lordships observed that if the intention was to be expressed in a particular manner as prescribed by the statute, it must be expressed in that manner only and in no other manner, and that if the intention is not so expressed it must be held that the intention has not been expressed at all. The aforesaid observation has therefore to be understood in the context of Rule 28 read with Rule 47(1)(0) of the Representation of the people (Conduct of Elections and Election Petitions Rules 1951). 15. In the present case however the position is different if Rule 28(a) and Rule 34 are read together. As has already been indicated Rule 28(a) is in two parts. 15. In the present case however the position is different if Rule 28(a) and Rule 34 are read together. As has already been indicated Rule 28(a) is in two parts. The first part prescribes that the ballot paper issued to the voter must have been duly authenticated by the Election officer with his seal, or signature, or both and non-compliance with that provision entails rejection of the ballot paper under Rule 34(vii) which is mandatory. The second part of Rule 28(0.) prescribing the fixing of a cross-mark in column of the ballot paper has not been referred to in Rule 34. There is no mandatory provision in Rule 34 that if the fixation of the mark is not done in the manner required by the second part of Rule 28(a) the ballot paper shall be rejected. Rule 34(h) prescribes for rejection of a ballot paper only if no vote is recorded thereon. It does not provide for rejection of a ballot paper if a vote is recorded though in a manner not prescribed in the second part of Rule 28(a). We accordingly hold that the second part of Rule 28(a) is Dot mandatory inspite of the fact that the work "shall" has been used. That the word "shall" may sometimes carry the connotation of being directory is well explained in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others. The same view has also been taken in R.B. Sugar Co. v. Rampur Municipality AIR 1955 S.C. 895, The majority view in that case was expressed in paragraph 7 and their Lordships said that the question -whether a particular provision of a statute which on the face of it appears mandatory in as much as it uses the work "shall" or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determine factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case, including the language of the provision, have an to be taken into account in arriving at the conclusion whether the particular provision is mandatory or directory. 16. Taking the aforesaid principles into consideration and the analysis given above, we are clearly of opinion that the second part of Rule 28 (a) is directory and non-observance of the same does not entail rejection of the ballot paper under Rule 34. On the contrary if there had been violation of Rule 34 (vii) as enjoined upon by the first part of Rule 28 (a), the ballot paper is liable to rejection. 17. On the aforesaid analysis, the observation in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others relied on by Mr. Srikanta Mohanty, is distinguishable on the facts of that case and has no application here. 18. We, therefore, reject the contention of Mr. Srikanta Mohanty that no vote was recorded in exts. 1 and 4. In fact, votes were record en thereon, by affixing the stamp with the reverse and as a result of which no cross mark but only a square mark was left, but there is no doubt about the intention of the voters in as much as those marks with the reverse and were put against the symbol of the candidate who was assigned "tube well". The second part of Rule 28 (a) being only directory, the votes recorded in such manner, can be taken into consideration in favour of the Plaintiff. The learned Munsif acted contrary to law in declaring Exts. 1 and 4 to be invalid. If exts. 1 and 4 are valid, then clearly the Plaintiff polled 60 votes and he was rightly declared to have been duly elected as chairman of the Samity by the Election officer. 19. On the aforesaid conclusion, we quash the impugned order dated 21-9-1908 by issuing a writ of certicrari. 1 and 4 to be invalid. If exts. 1 and 4 are valid, then clearly the Plaintiff polled 60 votes and he was rightly declared to have been duly elected as chairman of the Samity by the Election officer. 19. On the aforesaid conclusion, we quash the impugned order dated 21-9-1908 by issuing a writ of certicrari. The Plaintiff is declared to be the chairman of the Delang Punchayat amity from the date of declaration of the result by the election officer. 20. In the result, the application is allowed but in the circumstances without costs. Ray, J. I agree. Final Result : Allowed