Judgment :- Petitioner challenges the election of fourth respondent, as Honorary Treasurer of respondent - Sports Council. The election was held on 31-8-1991 and sixtyseven members of the Council were present, and they voted. Thirty-four votes were polled for petitioner, and thirty-three for fourth respondent. Petitioner objected to the reception of one vote obtained by fourth respondent. But, the objection was overruled. One vote polled by petitioner was invalidated on the ground that the ballot paper did not bear the signature of the Secretary though it bore the seal of the Council. Thus, each candidate secured thirty-three votes. Then, the President (who had not voted earlier), polled his casting vote in favour of fourth respondent, and he was declared elected. 2. Petitioner contends that a valid vote was invalidated improperly. He would contend further that the President could not have polled his casting vote, as a casting vote can only be a second vote. In answer, respondents would submit that the vote was in order, and that the President was within his rights in casting his vote. 3. The invalidated ballot paper did not contain the signature of the Secretary. Yet, in the absence of any fraud, it should not have been rejected - submits petitioner. There is no mandatory requirement regarding affixture of signature on the ballot paper. A vorter or candidate should not be penalised for the carelessness or folly of the Secretary who was to sign ballot papers, submits petitioner. In the view of respondents the rejection is valid because, the election is not something exclusively between a candidate and the Election Officer, but it is something concerning all the voters, and Rules must be strictly observed. 4. The election in question is not governed by statutory provisions. It is a domestic election. The position therefore is that, vice or validity should be determined on facts. Unlike elections governed by the Representation of People Act, or other statutory provisions, there is no question of legal consequences following a breach of law, except the general law. The counter affidavit states that the Secretary announced the procedure for election. It is stated in the counter affidavit of respondents 1 and 2 (paragraph 3). To the same effect are the statements in paragraph (4) of the counter affidavit of third respondent, and paragraph (4) of the counter affidavit of fourth respondent. The counter affidavit states that the Secretary announced the procedure for election. It is stated in the counter affidavit of respondents 1 and 2 (paragraph 3). To the same effect are the statements in paragraph (4) of the counter affidavit of third respondent, and paragraph (4) of the counter affidavit of fourth respondent. The directives of the secretary have no force of law, and they can be treated only as directory. Whether the election is vitiated, is a question of fact and not a question of law. The existence of certain facts or violation of certain provisions of law, may taint an election. Since no statutes regulate the election here, it must be decided only on facts by ascertaining whether there are vitiating circumstances. 5. To ascertain whether any malpractice had taken place, or whether there was any bogus voting, respondents 2 to 4 were allowed to file an affidavit by order dated 5.9.1991, clarifying certain aspects. Respondents 1 & 2 filed a counter affidavit. The question and answers contained in the counter affidavit are extracted below: "In obedience to the interim order of this Honourable Court dated 5-9-1991, the answer are stated as follows: a) whether a ballot paper was wrongly issued to anyone? No. b) whether there was any fraud involved in obtaining or using a ballot paper? The SECRETARY issued all the ballot papers with his initials. During the scrutiny after the polling of the votes, a ballot paper without the initials of the Secretary was found. This was not a proper ballot paper. The Council is not able to specifically point out whether any fraud has been committed or not. c) Whether he made a mistake regarding the identity of any member? No. d) Whether he permitted anyone to enter the hall and vote after the ball was closed, contrary to the note to the agenda? No. e) If an impropriety had been committed, why that was not minuted while other matters were minuted in extenso? It cannot be said that any impropriety had been committed by the Secretary. But, it is found that a ballot paper does not contain the initials of the Secretary. The said ballot paper was declared invalid. The invalidation of a ballot paper is minuted. It cannot be said that any impropriety had been committed by the Secretary. But, it is found that a ballot paper does not contain the initials of the Secretary. The said ballot paper was declared invalid. The invalidation of a ballot paper is minuted. f) The register kept for issue of ballot papers with acknowledgments of receipt will also be produced to ascertain, whether ballot papers were issued to 67 persons or less. If there is no register, such other record as may be available regarding such an important matter, will be produced: An attendance sheet was maintained for the General Body Meeting. 68 persons were present and 67 ballot papers were issued. No separate register kept for issue of ballot papers. No receipts also are obtained. The file containing attendance sheet and other connected records are produced herewith". 6. Respondents 1 & 2 would clearly say that: "(a) No ballot paper was wrongly issued. (b) No mistake was made regarding identity of any voter. (c) No person entered the hall or voted after the hall was closed. d It cannot be said that any had been committed, by the Secretary impropriety It is thus clear that no bogus vote was polled, no one who was not entitled to vote had voted, and that no one had entered the hall during the election process. It could only be a case of omission by the Secretary, to affix his signature. It is interesting to note the submissions of respondents 1&2 against querries (b) & (c). Respondents were asked to state whether there was "any fraud involved in obtaining or using a ballot paper" Elusively dodging the question, and trying to justify the action of the Secretary, the answer is that the Secretary issued all the ballot papers with his initials: During the scrutiny a ballot paper without the initial of the Secretary was found. This was not a proper ballot paper" The attempt it to make it appear that the Secretary acted right, without answering the question directly. This answer could not be correct, either. If the Secretary had initialled all the ballot papers, it eludes comprehension how one voter obtained a ballot paper without the Secretary's signature. The suggestion in the counter affidavit is that the Secretary did not commit any fraud, but that it was committed by a voter. This answer could not be correct, either. If the Secretary had initialled all the ballot papers, it eludes comprehension how one voter obtained a ballot paper without the Secretary's signature. The suggestion in the counter affidavit is that the Secretary did not commit any fraud, but that it was committed by a voter. The clear admission in the counter affidavit is that every voter was identified, and that there was no one in the hall during the election, other than the 67 members. 7. Counsel for petitioner relied on the decision in Baldev Singh v. Teja Singh Swatantra (AIR 1975 SC 693) to contend that an omission to sign on the reverse of a ballot paper, will not attract invalidity. Respondents would say that the decision was rendered with reference to rules 38 and 63 of the Conduct of Election Rules. They further relied on Era Seshiyanv. T.R. Baluand others (AIR 1990 SC 838) and argued that validity or invalidity, would depend on relevant provisions of Law. As noticed earlier, a vitiating circumstance may arise from the facts, or from contravention of provisions of Law. In the instant case, no provision of law governs issue of ballot papers or casting of votes. The election in question is not a statutory election, but a domestic election. Plainly the question is, whether any feature that invalidates an act in common Law, invalidates the vote. Features like fraud, coersion etc. are matters that imprint taint in these areas. It is nobody's case that fraud was practised by anyone, though respondents 1 & 2 while denying allegations, would vaguely suggest that some one other than them, did something wrong. There could be no fraud because, only sixtyseven voters entitled to vote and known to the Returning Officer, voted. Only sixtyseven ballot papers were issued. Nobody from outside entered the hall. There is no understandable reason, why any of the sixtyseven voters who could have obtained a genuine ballot paper, should have brought a forged one and voted, running the risk of invalidating his vote. In all probability, if not in all certainty, the Secretary omitted to sign on the reverse of the ballot paper in question. In the absence of any vitiating cause, the vote in question was valid and rejection is improper. Petitioner must hence to held to have secured thirtyfour votes. 8. In all probability, if not in all certainty, the Secretary omitted to sign on the reverse of the ballot paper in question. In the absence of any vitiating cause, the vote in question was valid and rejection is improper. Petitioner must hence to held to have secured thirtyfour votes. 8. Fourth respondent also has thirtyfour votes, including the vote of the President. The question then is, whether the President could have polled a casting vote. According to counsel for petitioner, a casting vote can only be a second vote and only after casting a vote, can a casting or determinative vote be polled. He relies on 'Guide for Meetings and Organisations' by M.E. Renton (page 91). The Author states that unless otherwise provided, the Chairman has a determinative vote. This suggests a second vote. Shackleton on 'The Law and Practice of Meetings" (Seventh Edition, Page 63) also advocates a similar view. Shri S. Narayanan poti appearing for fourth respondent, relied on 'The Conduct of Meetings' by T. Peter E. Curry (page 102) and submitted that a casting vote is a vote conferred on an Office, and there is no question of that being a second vote. The Authors expressed these opinions with reference to the facts of the cases noticed by them. On the facts, the authorities cited are not applicable. From the principles discernible, I do not think that there is any warrant for thinking that a casting vote can only be a second vote. This contention has to be rejected, and it has to be held that the President was justified in casting his vote. 9. The position therefore is that petitioner and fourth respondent have each secured thirtyfour votes. There is a stalemate. I am not unmindful of the argument of petitioner, that one vote secured by fourth respondent bears a tick mark instead of an X mark, and that it should be declared invalid. It cannot be, for the same reasons for which the one vote secured by petitioner, cannot be invalidated. 10. Since both contestants have secured the same number of votes, the election is set aside and respondents 1 to 3 are directed to hold a fresh election. They will ensure that every ballot paper is properly signed and sealed. It cannot be, for the same reasons for which the one vote secured by petitioner, cannot be invalidated. 10. Since both contestants have secured the same number of votes, the election is set aside and respondents 1 to 3 are directed to hold a fresh election. They will ensure that every ballot paper is properly signed and sealed. The secretary/returning Officer will also maintain a register for issue of ballot papers and will make a record of issue of ballot papers, indicating the name of the voters to whom ballots are issued. The returning officer will also ensure that no person is allowed to enter the hall, after voting commences. Original Petition is allowed as above. Parties will bear their costs.