JUDGMENT - DESHPANDE S.J., J.: - By this petition under Articles 226 and 227 of the Constitution of India, the petitioner challenges the order dated June 7, 1985, of the Honourable Minister of State, Urban Development (respondent No. 1 herein) by which he set aside the election of the petitioner and declared respondent No. 4 herein elected as President of the Osmanabad Municipal Council. This order was passed by respondent No. 1 under section 51(5) of the Maharashtra Municipalities Act in a dispute which was referred to him. 2. A few facts may be stated as follows: The election to the Osmanabad Municipal Council was held on April 25, 1985 and 33 Councillors were elected. The petitioner is one of the elected Councillors. It is said that the petitioner belongs to the Progressive Democratic Front which was in opposition to the Congress-I which was the party to which respondent No. 4 belongs. The contest in this petition is restricted to the petitioner and respondent No. 4 herein. The election to the presidentship was held on May 15, 1985. It is alleged by the petitioner that after he counting of the votes, respondent No. 2 declared the election wherein the petitioner polled 17 votes, respondent No. 4 herein had polled 16 votes. On the basis of the largest votes obtained by the petitioner he was duly declared elected as President. It is said that the petitioner also took charge. However, that is not very material for our purpose. 3. After the election was over respondent No. 4 who was aggrieved by this declaration approached the State Government under section 51(5) of the Maharashtra Municipalities Act ('Act' for short) challenging the said declaration of election on the ground that two of the elected Councillors whose names are (1) Raman Malharrao Dhotrikar and (2) Bhausaheb Ganpatrao Doke while depositing their ballots in the ballot-box have displayed their ballots to the Councillors present in the hall and thus violated the secrecy of voting contravening the relevant Rules to which we will refer later on. This is the main ground on which respondent No. 4 approached the State Government. It was stated that the oral objections were raised at the time of counting but they were overruled by the Presiding Officer respondent No. 2. This is the main ground on which respondent No. 4 approached the State Government. It was stated that the oral objections were raised at the time of counting but they were overruled by the Presiding Officer respondent No. 2. It was further stated that immediately after the oral objections were overruled written objection also was given but that was not taken into consideration by respondent No. 2 and it was also overruled. 4. The grounds which were put forth before the State Government show that respondent No. 4 who was appellant before it and one another Councillor namely, Shri Deokate had immediately objected for showing of the ballot papers orally as well as in writing. The memo of appeal mentions this fact specifically. It was stated in the concluding portion of the memo of appeal that the petitioner (respondent No. 1 before the State Government) had threatened the above named two Councillors that they should vote for him. As a result of that, the two Councillors voted for the petitioner. It is said in the memo of appeal that respondent No. 2 to this petition did not object to this conduct. The objection written as well as oral, as it is said, were overruled and it is said that the election is in violation of the basis rule of secrecy which is to be maintained in the matters of election. Therefore, it should be set aside. It appears that at the appellate stage no affidavit of the person namely, Shri Deokate seems to have been filed. The two persons who were named in the written objections namely, Raman Malharrao Dhotrikar and Bhausaheb Ganpatrao Doke were charged with this ill conduct of displaying the ballot papers at the time of conducting the election. They filed their affidavits before the State Government. The matter was heard by the Minister concerned and he was persuaded to take the view that the election which was conducted was in contravention of sub-rule (9) of Rule 6 of the Maharashtra Municipalities (President Election) Rule, 1981 (“Rules of 1981” for short) which govern the conduct of election of the President to the Municipal Council. The matter was heard by the Minister concerned and he was persuaded to take the view that the election which was conducted was in contravention of sub-rule (9) of Rule 6 of the Maharashtra Municipalities (President Election) Rule, 1981 (“Rules of 1981” for short) which govern the conduct of election of the President to the Municipal Council. It was observed by the Honourable Minister that it is true that there is no specific provision for rejecting a vote which is disclosed in a manner otherwise provided in Rule 6(9) of the Rules of 1981 but there is no reason to hold that such votes are to be treated as valid. He, therefore, held that these two votes are invalid. Ultimately two ballot papers which were displayed by the said two Councillors were treated as invalid votes and were excluded from counting and respondent No.4 herein who was appellant before the State Government was declared elected. It is this order which is being challenged before us. 5. It may be mentioned here that the Rules which govern the elections of the President are Maharashtra Municipalities (President Election) Rules, 1981. Sub-rule (5) of Rule 6 of the Rules of 1981 us relevant for our purpose and it reads: “(5) Each Councillor shall record his vote by making a mark of a cross (x) against the name of the candidate for whom he wishes to vote, fold the ballot paper so as to conceal his vote and insert the folded ballot paper into the box with a slit kept for the purpose at the place of the meeting. The ballot paper shall not be signed by the voter nor be marked by him in any other way that would reveal his identity.” The next relevant provision is sub-rule (9) of Rule 6 which provides the circumstances in which the Presiding Authority can reject the ballot paper. Sub-rule (9) of Rule 6 reads: “(9) the Presiding Authority shall reject any ballot paper. - (a) which is unmarked; (b) which has crossed marked against more names than one; (c) the marking on which is uncertain; (d) which bears the signature or any mark or writing by which in his opinion the voter can be identified.” These two sub-rules are relevant for our purpose in order to determine the validity of the ballot-papers and the election which was conducted in this case. 6. 6. The learned Counsel for the petitioner contended, that there is no basis to hold that the two voters or the Councillors have acted in such a manner in displaying their ballot papers to the knowledge of all the Councillors that their identity is revealed. He relied strongly on the affidavits filed by these two persons who were named by respondent No. 4. Respondent No.4 has charged these two Councillors with a specific allegation that they have been the persons who have violated the principle of secrecy and, therefore, their ballot-papers be treated as invalid. The actual grievance made by respondent No. 4 may be reproduced which is as follows: ßvkt ?ks.;kr vkysY;k v/;{kinkP;k ernkukr okMZ ua 24 ps uxj ifjÔn lnL; Jh- jeu eygkjjko /kks=hdj ;kauh loZ lHkkx`g nk[kowu ernku dsys vkgs- R;keqGs xqIr ernku i)rhr Ckk/kk ;sowu fuoM.kwd fu;ekpk Hkax >kysyk vkgs-Þ The English translation is that Shri Raman Malharrao Dhotrikar has displayed or shown or has voted after showing the ballot-paper to the voters present in the hall. That is why secret system of voting has been violated. 7. The other grievance which was made is expressed fully in the following: ßvki.kkl fouarh dh] Jh HkkÅlkgsc x.kirjko Mksds ;kauh lokZuk nk[kowu m?kM ernku dsY;keqGs rs er jí djkos gh fouarh-Þ The English translation is that Shri Bhausaheb Ganpatrao Doke has shown the ballot-paper to all and voted openly and so his vote be rejected. This has happened on May 15, 1985. 8. Looking to the actual grievance made by the petitioner and looking to the affidavits which are on the record we have to find now the exact scope of the device adopted by these two Councillors to stifle the election by indulging in the conduct of displaying their ballots so that the election may be held to be invalid. There is an affidavit filed by Shri Bhausaheb Ganpat Doke. In this affidavit the deponent has stated that he had not done anything as alleged against him. He stated that no fear or threat was given to him. He has specifically denied the allegation that any such threat was given to him or he has given his vote openly as stated. He had especially disputed that he ever intended to vote for respondent No. 1. He specifically stated that he did not show any ballot paper nor invalidated the proceedings. He has specifically denied the allegation that any such threat was given to him or he has given his vote openly as stated. He had especially disputed that he ever intended to vote for respondent No. 1. He specifically stated that he did not show any ballot paper nor invalidated the proceedings. The same words are repeated in the most identical terms by Shri Raman Malharrao Dhotrikar in his affidavit. 9. If these affidavits are taken on the record it is difficult to accept the case of respondent No. 4 that the two abovenamed persons whom he charged with the conduct of displaying the ballot papers to stifle the election on the present evidence which he has led. Respondent No. 4 did not file any affidavit before the State Government. He was satisfied only with making a grievance by way of appeal. It appears that written statement of respondent No. 2 was before the Honourable Minister explaining the circumstances in which this particular incident had happened to which we will refer later on. There are two main allegations which are made against these two deponents. The grievance before the State Government was that threats were given to them. No such evidence has been brought before us that they were prompted to behave in this fashion at the time of conducting the election. This appears to be only just after-thought. There is nothing on record to show that these voters threatened which was the main motive for them for indulging in such a conduct at the time of election. There is also nothing on record to show why their affidavits should not be accepted by this Court. It is true that we have no other evidence at this stage on the record. The issue itself is of a very delicate nature and it arises out of the circumstances which are almost very vague. It is said that the ballot papers were displayed in the house. It is not possible to locate the place where the voters were sitting and where thy displayed the ballot papers and whether they displayed immediately or after some interval. There is nothing on record to specify and locate the exact way in which this particular act of displaying the ballot papers to the whole house was made by these deponents. The deponents themselves denied this fact. There is nothing on record to specify and locate the exact way in which this particular act of displaying the ballot papers to the whole house was made by these deponents. The deponents themselves denied this fact. They are the persons who have come before the Court and gave their affidavits. The contents of the affidavits are of negative character. The facts which are stated and expressed in the written application are so cryptic that it is not possible to reply to these allegations except by way of denial. In our judgment, it is difficult to find out on facts that there must have been any displaying of ballot papers in the manner in which respondent No. 4 has alleged that it has happened. 10. In this Court the affidavit of respondent No. 2 Presiding Officer has been filed. He has tried to show the conduct of election. The learned Counsel for the respondents in this petition emphasised the fact that on the admission of the Presiding Officer himself that as oral objections were taken, he overruled them and this fact is self-evident that two councillors must have displayed their ballot papers and this evidence should be taken as conclusive. The learned Counsel further contended that this finding is a finding of fact and it should not be reviewed by this Court in its extraordinary jurisdiction. Ordinarily, this argument could have prevailed and we would have accepted it but in the matters of election where public interest is involved the extraordinary jurisdiction of the High Court is not limited to see the findings of fact in a mechanical way. Here is a case where election and declaration thereof has been challenged on the ground that two Councillors had displayed their ballot papers to such an extent that they disclosed their identity and, therefore, it should be set aside. It is against this background we have to consider this factual aspect in this argument. This is a finding recorded by the Presiding Officer which can be re-opened by this Court on the grounds of validity and the true basis of this finding made in this case. 11. It is against this background we have to consider this factual aspect in this argument. This is a finding recorded by the Presiding Officer which can be re-opened by this Court on the grounds of validity and the true basis of this finding made in this case. 11. The affidavit of the Presiding Officer in para 3 shows that the actual polling started at about 11.30 a.m. The two Councillors by name Bhausaheb Ganpatrao Doke and Raman Malharrao Dhotrikar when they went to voting compartment, recorded their votes on the ballot appears and they showed the marked ballot papers to the Councillors who were sitting in front of the place where the polling place was fixed. The rest of the Councillors were sitting at a distance not more than 20 feet from the place of the voting. The Councillors by name Bhausaheb Ganpatrao Doke and Raman Malharrao Dhotrikar inserted their marked ballot papers in the ballot box. After the polling was over, the votes were counted and it was found that the petitioner secured 17 votes and respondent No. 4 secured 16 votes. He, therefore, declared the petitioner elected as President of the Municipal Council, Osmanabad, immediately after the counting of the votes This description of the actual state and condition of the voting at 11.30 a.m. reflects three things. It does not specify the location of the ball, it does not give what was the space which was occupied by the Councillors, it does not show whether there was enclosure which was provided for marking the votes and to deposit it in the ballot-box and it vaguely mentions that the Councillors were sitting at a distance not more than 20 feet from the place of voting. It is against this background that we have to judge the controversy involved in this petition. Assuming for a while that these factors are correct, it was not shown adequately to infer that these Councillors present in the hall were in a position to know and locate the identity of the votes. 12. The principle of secrecy is well-settled. It is a basic principle in the democratic norms of conducting the elections but then under the Rules neither there is evidence provided nor our attention was invited to any provision that in such contingencies what is to be done. Rule 6 of the Rules of 1981 does not give any guidance or procedure. The principle of secrecy is well-settled. It is a basic principle in the democratic norms of conducting the elections but then under the Rules neither there is evidence provided nor our attention was invited to any provision that in such contingencies what is to be done. Rule 6 of the Rules of 1981 does not give any guidance or procedure. We are left with the ordinary norms of human conduct and behaviour in such matters. It must be assumed that the ballot box was kept at a distance near from the actual place which is referred to as the enclosure. If it were near the Councillors then in what manner they were sitting not shown to us. The size of the ballot papers is also not shown. We will have to assume that it may be of a normal size. But the question is whether the ballot papers were visible to the Councillors as such. 13. It is alleged that the ballot papers were seen by all the Councillors. If that be the position, then and there, it would have been possible for all the Councillors to have objected to the same. There is no affidavit to this effect. From thirty-three Councillors who are elected to elect the President not a single affidavit except the two has been filed or procured in order to give assurance to the so-called device which was adopted by these two deponents. In view of the vague reference to the place of the ballot box and the displaying of the ballot papers we are unable to accept the evidence of affidavit given by respondent No. 2 that this particular displaying of the ballot papers must have been taken to such an extent by the two Councillors that their identity could have been disclosed. We have to see the substance of the matter. It is not that the accidental or inadvertent act of a voter can be relied on to show that the conduct of the election has been affected. Here is a case where there is a specific allegation that these two Councillors had displayed their identity. Under sub-rule (5) of Rule 6 of the Rules of 1981 the important words are: “... Here is a case where there is a specific allegation that these two Councillors had displayed their identity. Under sub-rule (5) of Rule 6 of the Rules of 1981 the important words are: “... The ballot paper shall not be signed by the voter nor be marked by him in any other way that would reveal his identity.” The question is whether that revealing of his identity is a matter of accident. We are afraid that the way in which the displaying of the ballot papers is described and even admitted by the Presiding Officer in his affidavit does not go further that the act must have been committed by these Councillors deliberately or that the act was sufficient to reveal the identity of the voters. 13-A. The learned Counsel for the respondents contended before us that the act itself was performed quickly by these two Councillors. If that be the position then it is difficult for us to believe that these two Councillors who had displayed the ballot papers could have displayed and again put it in the ballot box so quickly that the Presiding Officer or any other Councillor could not have arrested this particular conduct. The manner in which this incident has happened and which is reflected by the parties is also very vague. In the absence of any direct evidence in this regard we are afraid that we cannot give much importance to the mere allegation that the ballot papers were displayed. 14. It is true that secrecy of the ballot is one of the essentials which should be maintained because it is so basic that in every election secret ballot should be there. Under the Rules of 1981 secret voting is provided which is to be followed by following these Rules. Sometimes there are elections which are held by show of hands. So the secrecy of election by ballot is only a safeguard against the corrupt practices, bribery and coercion or any threats. Voting must be a free voting. There must not be coercion. The voter must not be threatened in any way to exercise his free will so that the elector must express his free will and give his vote. It is for that purpose that secret ballot is used. 15. Voting must be a free voting. There must not be coercion. The voter must not be threatened in any way to exercise his free will so that the elector must express his free will and give his vote. It is for that purpose that secret ballot is used. 15. The learned Counsel for the respondents invited our attention to the judgment of the Madhya Pradesh High Court in (Jamuna Prasad Verma v. Satya Prakash Chaman Ram and others)1, A.I.R. 1963 M.P. 184. This decision arose out of an election petition. The validity of the election was challenged and one of the grounds was the violation of secret ballot. The learned Judge who decided this petition was dealing with the rule which is quoted in para 27 of judgment. Rule 20(8) of the Polling Rules provides that : “(i) the ballot paper shall not be signed by the voter nor be marked by him in any other way that would reveal his identity; and (ii) the use of different forms of voting paper, or any indication on a voting paper or other device, by which the name of the voter can be ascertained, shall amount to a violation of the secrecy of the ballot.” The Madhya Pradesh High Court was concerned with the interpretation of these Rules. The Rules provide guidance as regards the violation of secrecy of the ballot. In our Rules we have not been able to find out any such guidance given by the legislature that in what circumstances there is a violation of the rules of secrecy. No provisions are found under the Rules which govern the conduct of election to the presidentship. Even if we accept this argument on general principles as we have stated earlier the evidence in this regard is very scanty and very vague. It is vague because details are not given. It is vague because actual location of the ballot box and the councillors is not disclosed and in view of this infirmity in the evidence we are unable to give any sanctity to the finding of fact which has been the basis of the order of the State Government. 16. It should be remembered in this matter that the system of secret ballot is based on the principle that there must be free and full freedom to the voter. 16. It should be remembered in this matter that the system of secret ballot is based on the principle that there must be free and full freedom to the voter. The voters required to express his wish either by marking or signing on the ballot paper. The thrust of the rule seems to be that the voter has to mark the ballot paper and after folding it the voter has to deposit in the ballot box. Whatever has to be done in regard to the ballot paper is most important because the nexus is with the ballot and the mark or sign which he put on it and the act of depositing. The acts of going to the enclosure, marking or signing on the ballot paper and then depositing it in the ballot box are three important acts which a voter is supposed to do and it is such voting which is the basis for counting. Any other act which may be in derogation of these acts can be treated as an act not permissible by the Rules. If any act or device is used then Rule 5 of the Rules of 1981 itself provides that it must be to such an extent that the device or act which he does must ultimately reveal his identity. In view of the distance which is narrated by the Presiding Officer in his affidavit of 20 feet and in the absence of any size of the ballot paper, marks on the ballot paper and the exact location of sitting of the councillors, it is difficult how the Councillors might have noticed that these two voters have displayed their ballot papers so as to reveal their identity. On merits also we do not think that it is possible to hold that displaying the ballot papers has been responsible for revealing their identity. 17. There is no specific provision or any guidance in the Rules that in what circumstances the Rules of secrecy are violated which are governed by the general principles. There is one rider to this general principle. If a voter consciously acts in a manner or adopts a device when it is possible that an election can be stifled and can be destroyed by such acts. This cannot be permitted. There is one rider to this general principle. If a voter consciously acts in a manner or adopts a device when it is possible that an election can be stifled and can be destroyed by such acts. This cannot be permitted. We thing that surreptitious illegal means used by unscrupulous persons cannot be given undue importance in regard to such matters otherwise it would be very difficult to complete an election process as such. We are conscious that in this case there was a marginal contest, in the sense, that the contesting candidates had obtained 17 and 16 votes respectively. We give an illustration. In this case two Councillors have displayed their ballot papers. It is possible to imagine though we are not taking it into consideration for our conclusions that the voting was so marginal that if the contesting candidate thought that if these two candidates about whom a charge can be made of threat and their votes can be shown to be invalid, it is possible that he may be elected. This device by unscrupulous persons cannot be permitted to be used to stifle the election. In our judgment, this general principle of maintaining secrecy of voting by ballot is to be borne in mind. 18. There is a clear provision in the Rules and the authority is also empowered under sub-rule (9) of Rule 6 of the Rules of 1981 to reject the ballot papers on four grounds. The Clauses (a), (b), (c) and (d) do not show that violation of secrecy of voting is one of the grounds on which the vote can be treated as invalid. If the Legislature did not think either by providing any circumstance by which rule of secrecy is treated to be violated in the Rules itself or it did not mention one of the grounds in sub-rule (9) we do not think that we may import one of our own views and add something to the Rules which is impermissible for a Court of Law. There is no provision for rejecting the ballot paper on the ground of violation of secrecy. Therefore, we are unable to subscribe to the view taken by respondent No. 1 in this case. This additional and general ground is de hors to the Rules. This has also been noticed by respondent No. 1 while deciding the matter. There is no provision for rejecting the ballot paper on the ground of violation of secrecy. Therefore, we are unable to subscribe to the view taken by respondent No. 1 in this case. This additional and general ground is de hors to the Rules. This has also been noticed by respondent No. 1 while deciding the matter. He has specifically observed that there is no specific provision for rejecting the ballot paper on the ground of violation of secrecy of ballot if the law of election is to be followed as it is. If there is no provision we cannot import one and add one more provision to reject the ballot papers on the ground of violation of secrecy. 19. In the result, this petition is allowed. Rule is made absolute. We hold that the declaration in respect of these two ballot papers made by respondent No. 1 being invalid is incorrect and that is set aside. These two votes are quit valid and if they are treated valid the resultant consequence would be that the election of the petitioner will have to be upheld. The order of respondent No. 1 dated June 7, 1985, is hereby quashed by writ of certiorari. We declare the petitioner elected as President of the Osmanabad Municipal Council. No order as to costs. Leave to appeal to the Supreme Court was applied before us. We do not see that any substantial question of constitutionality of any provision of the Rules of 1981 is involved in this case. Leave is refused. Petition allowed. ------