Judgment :- 1. The petitioner was returned elected as Councilor of the Cochin Corporation from Division No. 34 in the election held on 15-9-1979. Respondents I and 2 were the other candidates who unsuccessfully contested the election from that Division. Each of them separately challenged the petitioner's election by Election Petitions 1 and 4 of 1979 on the ground that certain ballot boxes had been tampered with, and the Returning Officer failed to comply with the requirements of the law in such circumstances. The petitions were tried together. The learned District Judge, Ernakulam, the 3rd respondent, by his impugned order, Ext. P2, declared the petitioner's election to be invalid and ordered fresh election in Division No. 34. The petitioner's counsel, Sri. M. N. Sukumaran Nair contends that Ext. P2 is vitiated by errors of law. He says that it has been made contrary to the legal provisions; it is not reasonably supported by evidence; the judge has not taken into account relevant matters; and, he has taken into account irrelevant matters. 2. The learned judge relied on the evidence of pws. I to 3 and came to the conclusion that three of the ballot boxes in booth No. 7 of Division No. 34 had been tampered With as a result of which the polling was invalid. The Judge disbelieved the evidence of pw. 4 who was the Returning Officer (the Commissioner of the Corporation). pw. 4 stated that he was satisfied that the boxes in question bad not been tampered with; that he did not therefore stop the counting of the ballot papers; and, that, in his view, there was no ground to declare the polling to be void. The testimony of pw. 4 was totally inconsistent with what respondents 1 and 2 stated as pws.1 and 3 as well as with the evidence of pw. 2. who was the election agent of pw. 3. 3. Referring to the evidence of pw. 4, the learned judge says: "Pw. 4, no doubt has said that he was satisfied that there was no sort of tampering. But it is rather difficult to place complete reliance on his word of mouth especially when at this distance of time, one cannot expect him to remember everything in detail. It would have been far more helpful if pw. 4 had passed orders on Ext. But it is rather difficult to place complete reliance on his word of mouth especially when at this distance of time, one cannot expect him to remember everything in detail. It would have been far more helpful if pw. 4 had passed orders on Ext. P1 then and there At least, he ought to have noted on that petition what he now says, viz. what he observed with reference to the ballot boxes" According to the learned judge, pw. 4 ought to have recorded his finding on Ext. PI, filed by respondents 1 and 2 and others, complaining of foul play and fraud, and requesting the Returning Officer (Pw. 4) to suspend the counting till the dispute was resolved. In the absence of any written order rejecting Ext. Pi, the judge thought that the oral evidence of pw. 4 to the effect that there was no tampering with the boxes had no value. 4. The Judge further says that there was a probability that the three boxes in question had been opened in Division No. 31. The reason for saying this is that these three boxes were missing at the beginning when counting had just started. Noticing the absence of the three boxes, search was made for them. Three boxes were then brought. They were opened and counting started. It was then discovered that a tew of the ballot papers contained the symbol of the Marxist Party. But no Marxist candidate bad contested from Division No. 34. It was then realised that these boxes did not belong to Division No. 34, but to Division No. 31, where there was a Marxist candidate. Those boxes were therefore returned to Division No. 31 The correct boxes were ultimately traced. Those are the three boxes now in question. That was the evidence. There was no other evidence on that point. But the judge presumed that just as the three boxes of Division No. 31 happened to be opened in Division No. 34, the three boxes in question belonging to Division No. 34 bad also been likewise opened in Division No. 31, albeit by mistake. There was no plea to that effect, nor was there any evidence on the point. But the judge presumed that the three boxes in question had been opened and counted in Division No. 31, thereby adding to the possibility of tampering and foul play. There was no plea to that effect, nor was there any evidence on the point. But the judge presumed that the three boxes in question had been opened and counted in Division No. 31, thereby adding to the possibility of tampering and foul play. This was one of the factors which had been taken into account. 5. The power of the Election Tribunal to declare an election to be invalid is derived from S.55 of the Kerala Municipal Corporations Act, 1961. It reads: "55. Determination of validity of elections. (1) If, on the application made by a person referred to in sub-section (2) within the period specified therein, the District Judge, after such enquiry as he considers necessary, is satisfied (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the provisions of this Act; or (b) that the corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of this Act or of any rules made thereunder, the District Judge may, subject to the provisions of S.54 declare the election of such councilor to be invalid and such declaration shall be final: (emphasis supplied) It is admitted on all sides that this case falls exclusively under clause (d) (iv) of the above section and the relevant rules. It is important to note that an election can be invalidated in terms of clause (d) of the section only if the result, in so far as it concerns the returned candidate, has been materially affected owing to any one of the four reasons mentioned thereunder, which in the present case is what is stated in sub-clause (iv) namely, non-compliance with the law. I emphasise this fact, for the reason that the provisions of clause (d) are not identical in scope to those of clauses (a) to (c), for in the case of the latter there is no reference to the result of the ejection of the returned candidate having been materially affected as a condition for the exercise of power under S.55. On proof of any of the relevant facts referred to in clauses (a) to (c) of sub-section (1) of S.55, the judge has the power to declare an election invalid without going into the further question whether such fact has materially affected the result of the election. That means where a candidate was not qualified as stated in clause (a) or where there was corrupt practice as referred to in clause (b) or where the nomination was improperly rejected as in clause (c), the question whether the result of the election was materially affected is irrelevant. Upon proof of those disqualifying elements, the judge has the power to declare the election invalid, In a case such as the present which admittedly comes under clause (d) (iv), the power of the judge to invalidate an election depends upon two questions: d) Have the applicants (the election petitioners) proved the alleged facts to establish non-compliance with the Act or the Rules?, and, (2) If so, has such non-compliance materially affected the result of the election, in so far as it concerns the returned candidate ? Affirmative answers to both the questions are a condition precedent to an order invalidating an election. 6. The alleged non-compliance with the legal provisions is the failure on the part of the Returning Officer, namely, pw. 4, to comply with R.45 and 50 of the Kerala Municipal Corporations (Election of Councilors) Rules, 1963. I shall first read R.50: "50. Scrutiny and opening of ballot boxes. (1) The Returning Officer may have the ballot boxes used at more than one polling station opened and their contents counted simultaneously. (2) Before any ballot box is opened at a counting table, the counting agents present at that table shall be allowed to inspect the paper seal or such other seal as might have been affixed thereon and to satisfy themselves that it is intact. (3) The Returning Officer shall satisfy himself that none of the ballot boxes has in fact been tampered with. (3) The Returning Officer shall satisfy himself that none of the ballot boxes has in fact been tampered with. (4) If the Returning Officer is satisfied that any ballot box has in fact been tampered with, he shall not count the ballot papers contained in that box and shall follow the procedure laid down in R.45 in respect of that polling station." Sub-rule (3) refers to the satisfaction of the Returning Officer as to the absence of any tampering. On such satisfaction, the, counting will begin. This is the negative aspect of the satisfaction. But sub-rule (4) is positive in form when it refers to the satisfaction of the Returning Officer that tampering has in fact taken place. In both the provisions, the satisfaction must be based on facts and not on mere belief or suspicion. Under sub-rule (3) he has a duty to satisfy himself, by proper examination, that none of the boxes has infact been tampered with. This satisfaction is reached not on mere faith, but on verification. As a converse, he should likewise satisfy himself, by proper verification, that any one or more of the boxes have in fact been tampered with before he decides to stop counting the ballot papers in those boxes. This be shall not do upon mere suspicion, but only upon proper satisfaction. Sub-rules (3) and (4) refer to the mental state of the Returning Officer at two stages While the former satisfaction is about the absence of tampering, which is the condition precedent to counting, the latter is as to the occurrence of tampering which interdicts counting It is upon such satisfaction as sub-rule (4) provides, and not until then, that counting is prohibited, and the Returning Officer is, thereupon, enjoined to follow the procedure laid down in R.45 in respect of the polling station in question. 7. R.45 provides: "45. Fresh poll in the case of destruction etc., of ballot boxes. 7. R.45 provides: "45. Fresh poll in the case of destruction etc., of ballot boxes. - (1) If at any election, any ballot box used at a polling station is unlawfully taken out of the custody of the Presiding Officer or the Returning Officer, or is in any way tampered with or is accidentally or intentionally destroyed, lost or damaged, and the Returning Officer is satisfied that in consequence thereof the result of the poll at that polling station cannot be ascertained, he shall (a) declare the polling at that polling station to be void; (b) appoint a day, and fix the hours for taking a fresh poll at the polling station; and (c) notify the day, so appointed and the hours so fixed by him in the manner provided under R.S. (2) The provisions of these rules or orders made thereunder shall apply to every Fresh poll as they apply to the original poll." 8. This rule authorises the Returning Officer to do the things mentioned under clauses (a), (b) and (c) of sub-rule (I) on the happening of the events mentioned under the main part of the sub-rule, and subject to the condition mentioned therein. R.45 is of general application and is specifically referred to by R.50 for the particular purpose or the latter. The events mentioned under R.45(1) are unlawful removal of ballot boxes, tampering with them, destruction of the ballot boxes, or loss of or damage to them. On the happening of any one of these events the Returning Officer shall, subject to an important condition, do the things specified under clauses (a) to (c). That condition is that he is "satisfied that in consequence thereof the result of the poll at that polling station cannot be ascertained ". This is a significant condition. The mere happening of the events will not suffice to declare the polling to be void and to take the consequential steps (Clauses fa) to (c)), but the officer should reach the required satisfaction that, as a consequence of the events which have taken place, the result of the poll at the polling station in question cannot be ascertained. The relevant event mentioned under R.45(1) for the purpose of R.50 is the tampering of the ballot boxes. 9. The relevant event mentioned under R.45(1) for the purpose of R.50 is the tampering of the ballot boxes. 9. The combined effect of R.50 and 45 is that upon the Returning Officer duly satisfying himself that any ballot box has in fact been tampered with, he shall then proceed to consider and satisfy himself as to whether, in consequence of the tampering, the result of the poll at that polling station cannot be ascertained, and in the event of his being so satisfied, he shall declare the polling at that polling station to be void, as provided under clause (a), and adopt the other measures mentioned under clauses (b) and (c). In other words, the satisfaction referred to in R.50(4) is the condition precedent to have recourse to the procedure of R.45. Until the Returning Officer has specifically and deliberately recorded his satisfaction in terms of R.50 (4), R.45 is not invoked for the purpose of R.50. In the present case, no such satisfaction was recorded by the officer, and there was, therefore no question of his having recourse to R.45. 10. The respondents' counsel Shri. N. Raghava Kurup contends that the Returning Officer ought to have recorded his finding on the complaint in Ext P1. He says that, in the absence of any evidence to show that the Returning Officer was satisfied that there was no tampering, he should be presumed to have satisfied himself as to the validity of the complaint contained in Ext. P1, and it was then incumbent upon him to follow the procedure under R.45. Counsel further contends that R.45(1) is two-fold in nature. The main part of R.45 (I), counsel says, is the substantive part whereas clauses (a) to (c) of that sub-rule provide the procedure. The reference to "procedure" in R.50 (4) is to the procedure contained in clauses (a) to (c) of R.45 (1) and, therefore, the duty of the Returning Officer is to follow the procedure under clauses (a) to (c), without being burdened by the substantive part of R.45 (1). By this strenuous reasoning, counsel contends that, when dealing with a complaint, such as Ext. P1, it is unnecessary for the Returning Officer to consider the question whether, in consequence of the tampering, the result of the poll cannot be ascertained. 11. I cannot accept these contentions. By this strenuous reasoning, counsel contends that, when dealing with a complaint, such as Ext. P1, it is unnecessary for the Returning Officer to consider the question whether, in consequence of the tampering, the result of the poll cannot be ascertained. 11. I cannot accept these contentions. As I stated earlier, R.45 is not attracted to R.50 unless and until the Returning Officer has positively and deliberately reached the satisfaction mentioned under R.50 (4). Such satisfaction cannot be presumed. The fact that the Returning Officer did not record his satisfaction on the basis of Ext. P1, but proceeded to count the ballot papers, negatives any presumption of satisfaction on his part in terms of R.50 (4). Consequently, R.45 was not attracted. R.45 must be understood as a whole. The reference to "procedure" in R.50 (4) is to R.45 (1) as a whole, including the main part. The power of the Returning Officer, under/clause (a) of R.45(1). to declare the polling at a polling station to be void, is circumscribed by the main provisions of the sub-rule which precede clause (a). 12. This construction is consistent with the general scheme of the Act and the Rules. In the event of tampering, the legislative intent is to save the election, unless the result has been materially affected. That is the principle which in a case like the present, the Returning Officer has to bear in mind. This fact was lost sight of by the learned Judge. In the first place the judge thought that in the absence of any contemporaneous record as to lack of tampering, it should be presumed that there was tampering. That presumption does not arise from R.50. On the other hand the presumption is to the contrary. When the Returning Officer ordered the counting, notwithstanding Ext. P1, which he had apparently scrutinised with the necessary care, the presumption is that he was satisfied that the complaint was unfounded and there was no tampering. The judge disbelieved the Returning Officer only because he was speaking from memory and there was nothing to show what opinion he had formed in the absence of any written record. That conclusion was unwarranted. 13. The judge disbelieved the Returning Officer only because he was speaking from memory and there was nothing to show what opinion he had formed in the absence of any written record. That conclusion was unwarranted. 13. The Judge also lost sight of the fact that, even assuming that pws.1 to 3 were right when they stated that the seals of the ballot boxes were broken and the paper covers were missing, that fact by itself would not give any power to the Returning Officer to declare the polling void, unless the officer was also satisfied that the ballot boxes were tampered with and inconsequence thereof the result of the poll at that polling station could not be ascertained. There is no evidence to show that the Returning Officer had any such satisfaction. In the first place he spoke to the contrary. In the second place, there is no evidence whatever to suggest that there was reason to assume that the Returning Officer was satisfied that the result of the poll could not be ascertained. In such circumstances, the contention that the Returning Officer ought to have declared the polling void is totally unsustainable. The Judge was also not justified in drawing any inference, without plea or evidence, as to the probability of the boxes in question having been opened in Division No. 31. 14. The Judge came to the wrong conclusion that the election was invalid. His power to declare an election to be void, as I stated earlier, arises in cases like the present, governed by S 55 (d) (iv), only where he is satisfied that the result of the election in so far as it concerns the returned candidate, has been materially affected. There is no evidence on the basis of which he could have come to that satisfaction, nor has be stated that he came to any such satisfaction. There is nothing in Ext. P2 which shows that the judge had noticed this very important aspect of S.55. 15. In the circumstances, Ext. P2 is unsustainable for the reason that the judge erred in law in so far as he misconstrued the relevant provisions of the Act and the Rules; he took into account matters which he ought not to have done; and further more, he failed to take into account matters which he ought to have done. Ext. P2 is accordingly quashed. P2 is unsustainable for the reason that the judge erred in law in so far as he misconstrued the relevant provisions of the Act and the Rules; he took into account matters which he ought not to have done; and further more, he failed to take into account matters which he ought to have done. Ext. P2 is accordingly quashed. The Original Petition is allowed in the above terms. No costs.