Periaswami v. Rangaswami and others — 1973 DIGILAW 533 (MAD)

Order:-The petitioner was elected as the president of the PudupalayamVillage Panchayat in the elections held on 28th July, 1970, respondents 1 and 2herein having been defeated. The first respondent herein preferred an electionpetition namely, O.P. No. 36 of 1970 on the file of the Court of the DistrictMunsif of Ariyalur to set aside the election of the petitioner. The ElectionTribunal by an order dated 16th June, 1972, set aside the election of thepetitioner filed a writ petition namely W.P. No. 1588 of 1972 (Periaswamy v.Rangaswamy and 2 others) on the file of this Court praying for the issueof a writ of certiorari to quash the same. The said writ petition wasallowed on 1st August, 1972 and the Original Petition No. 36 of 1970 itself wasremanded for fresh disposal. The said O.P. was the Principal District Munsif,Tiruchirapalli, and the said Election Tribunal by its order dated 1st February,1973, after recounting the votes came to the conclusion that the petitoiner andthe first respondent had obtained an equal number of votes and that therefore afresh election should be held. It is to quash this order that the present writpetition has been filed under Article 226 of the Constitution of India. 2. Mr. M.K. Nambiar, learned Counsel for the petitioner, contends thatthe rejection of some of the votes cast in favour of the petitioner by theElection Tribunal is clearly erroneous on the face of it and even if theElection Tribunal is found to have erroneously rejected one bellot paper cast infavour of the petitioner, that will put an and to the equality found by theElection Tribunal and make the votes obtained by the petitioner herein higher innumber than those obtained by the first respondent and consequently the electionpetition filed by the first missed. In support of this contention, the learnedCounsel places strong reliance on one ballot paper dealt with by the ElectionTribunal. That is the ballot paper bearing No. 926866. In support of this contention, the learnedCounsel places strong reliance on one ballot paper dealt with by the ElectionTribunal. That is the ballot paper bearing No. 926866. With regard to thisballot paper, what the Election Tribunal says is this: "In vote No. 926866, there is one seal on the Scissors and another a faint one, partly in the cage of Squirrel and partly on the border, It is clear that these votes have to be rejected." (b) if no vote is recorded thereon, or (c) if votes are given on it in favour of more than one candidate, or (d) if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the vote has been given, or (e) if it is a spurious ballot paper, or (f) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established ; or (g) if it bears a serial number, or is of a design, different from the serial numbers,or, as the case may be, design of the ballot papers authorised for use at the particular polling station, or (h) if it does not bear the distinguishing mark which it should have borne under the provisions of sub-rule (2) of rule 13, or (i) if it does not bear the signature of the Presiding Officer on the reverse side: Provided that where the Chief Presiding Officer is satisfied that any such defect as is mentioned in clause (g), clause (h) or clause (i) has been caused by any mistake or omission the ballot paper shall not be rejected merely on the ground of such defect: Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked." The case of the learned Counsel for the petitioner is that the second proviso extracted above clearly shows that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked. His further case is that the statement of the Election Tribunal with regard to vote No. 926866 extracted already shows that the said vote cannot be rejected and that as a matter of fact even the Election Tribunal has not recorded any finding with regard. to that vote that the same has to be rejected because the intention that the vote shall be for a particular candidate did not clearly appear from the way the paper is marked. A perusal of the order of the Election Tribunal shows that with regard to each one of the so-called doubtful votes, the Election Tribunal has referred to the manner of marking on the ballot paper and has recorded as finding with reference to the proviso extracted above, namely whether the intention clearly appeared from the way the paper was marked or not. On that basis, certain doubtful ballot papers have been counted in favour of the first respondent himself. As far as the ballot paper bearing No. 926866 is concerned, there is no finding by the Election Tribunal that from the way the paper is marked, it is not possible to gather the intention that the vote was for a particular candidate and therefore it has to be rejected. Simply after referring to the fact that one seal is on the Scissors and another, a faint seal, is partly in the cage of Squirrel and partly on the border, the Election Tribunal has chosen to reject the ballot paper. In my opinion, this action of the Election Tribunal is not in. accordance with the rules. 3. Mr. Nambiar in this context drew my attention to the relevant provisions of the English law as extracted at pages 198-199 of the Powers, Duties and Liabilities of an Election Agent and of a Returning Officer by Frank R. Parker, Sixth Edition and also the illustration found at page 313 of that edition. The said illustration is as follows:- LAWSON * HARRY LAWSON WEBSTER 1. LAWSON, Oakney Cottage, Taplow, in the * Country of Bucks, Esquire MASTER 2. THOMAS WILLIAM CHESTER MASTER, Junior The Abbey, Cirencester, Esquire Thus, it will be seen that in the above illustration, there is one clear mark against the name of Lawson and there is another mark on the border projecting into the column left for the other candidate Master. LAWSON, Oakney Cottage, Taplow, in the * Country of Bucks, Esquire MASTER 2. THOMAS WILLIAM CHESTER MASTER, Junior The Abbey, Cirencester, Esquire Thus, it will be seen that in the above illustration, there is one clear mark against the name of Lawson and there is another mark on the border projecting into the column left for the other candidate Master. With reference to such an illustration it was held: “If a good cross is added to that whose intersection is exactly on the line between the compartments of the paper, the former corrects the uncertainty of the latter (Cirencester, Jan. 1893)..” In my opinion, this illustration directly applies to the facts of this case. 4. Apart from the fact that the Election Tribunal has not recorded any finding with reference to the second proviso to rule 19 (2) extracted already that from the way the paper is marked it is not possible to hold that the intention was to vote for a particular candidate, the very statement with regard to the nature of the marking extracted already from the order of the Election Tribunal with reference to the ballot paper in question clearly shows that the intention of the voter was to vote for the symbol “Scissors”. 5. Therefore, looked at from any point of view, the rejection of the ballot paper bearing No. 926866 cast in favour of the petitioner herein by the Election Tribunal cannot be justified. If so, by virtue of this conclusion, the petitioner would have got more votes than the first respondent herein even after recount and consequently the election petition should have been dismissed. 6. The result is, the writ petition is allowed and the order of the Election Tribunal dated 1st February, 1973 in O.P. No. 46 of 1972 is quashed and. the said O.P. will stand dismissed. There will bo no order as to costs.