ORDER 1. This petition raises question regarding the validity of one vote cast in favour of the petitioner. The said vote was rejected under Rule 11 of the M.P. Municipalities (President and Vice President) Election Rules, 1962. Rule 11 reads as under:- "11. Procedure upon opening each ballot box and counting of votes- The presiding officer shall then open the ballot box and proceed to scrutinise the ballot papers. If there is more than one cross against one name or there is any mark or sign, on a ballot paper, by which the voter can be identified, such ballot paper shall be considered invalid and shall not be counted. The decision of the presiding authority shall be final in this respect. The valid votes shall then be counted by the presiding authority and the ballot paper arranged in respect of each candidate." 2. The elections of Municipal Council, Gadarwara were held and the petitioner was elected councillor. The election to the post of President, Municipal Council was held on 29.12.94. The two candidates received ten votes each. Out of 21 councillors who had participated, one vote was rejected on the ground that it was invalid under Rule 11. There was a tie between the petitioner and the respondent No.4, having got 10 votes each under Rule 12 by draw of lots, the respondent was declared elected as President, Municipal Council, Gadarwara. It is not in dispute that after the elections, a notice to hold the first general meeting was called by the Collector to meet the President and Vice-President, on 29.12.1994 at 11 a.m. All 21 councillors had participated. Three nominations were filed, one by Radheshyam Jaiswal, second of Virendra Mahajan and third by Navneet Chachha. Navneet Chachha withdrew from the contest, as such, it became necessary to hold election for the post of President. As already stated, there was a tie on account of one vote being rejected. The submission of the learned counsel for the petitioner is that the rejection of one vote in favour of the petitioner was illegal inasmuch as the competent authority did not correctly interprete Rule 11 and failed to appreciate that it does not in any way disclose the identity of the voter. Had this been correctly counted, the petitioner would have been selected as President of the Council. 3. Had this been correctly counted, the petitioner would have been selected as President of the Council. 3. The argument of the learned counsel for the petitioner is that the competent authority did not apply the principles laid by the Supreme Court in Km. Shradha Devi v. Krishna Chandra ( AIR 1982 SC 1569 ). The law laid down by the Supreme Court does not say that merely because the seal placed on the ballot paper there is some other mark does not mean that it was deliberately placed to fix the identity of the voters. There should be some intrinsic and extrinsic evidence to identity of the voter. 4. It is submitted that the competent authority therefore committed an error in rejecting the vote and in adopting the procedure by draw of lots. There was no question of rejection of votes. The declaration of respondent No.4 as elected was therefore liable to be set-aside. 5. When the petition was filed, the declaration as contemplated under section 55 of the MP. Municipalities Act had not been issued. 6. The petitioner has sought relief in this petition to issue a writ in the nature of command or appropriate writ, order or direction, directing the respondent No.3/Presiding Officer-cum-Collector to produce the ballot papers and to quash the order dated 29.12.94 (Annexure-P/2) to the extent it declares the respondent No. 4 as duly elected President of Municipal Council, Gadarwara and also claims a declaration that he be declared as elected President. 7. The respondents who have entered appearance have filed objection and have raised preliminary objection that under Article 243 (ZG) of the Constitution, no election to the Municipal Council can be cancelled except by way of election petition. It is stated that section 20 of the Municipalities Act contemplates challenge to the election only by way of filing an election petition and as such it is alleged that reading of two provisions constitutional and other this petition is liable to be dismissed. 8. The question therefore is whether this petition could be dismissed on the ground of alternative remedy having not been availed. 9. From the narration of facts it is clear that the controversy is in a very limited campus, that is to say, whether the rejection of ballot paper under Rule 11 was proper and according to law. 8. The question therefore is whether this petition could be dismissed on the ground of alternative remedy having not been availed. 9. From the narration of facts it is clear that the controversy is in a very limited campus, that is to say, whether the rejection of ballot paper under Rule 11 was proper and according to law. The submission of the learned counsel for the petitioner is that the election of the President can be challenged only by a candidate at the election or by a councillor. 10. Shri N.C. Jain, learned counsel for the respondents submitted that the filing of the petition directly to the High Court would make provision under section 20 of the M.P. Municipalities Act redundant. Shri Jain, learned counsel very strongly relied on the judgment of the Supreme Court in Dr. Anup Singh v. Abdul Ghani ( AIR 1965 SC 815 ) at paras 10 and 11. It was submitted by him that the number of electors is very small, the possibility of the identity cannot be ruled out whereas Shri V.K. Tankha, learned counsel for the petitioner, submitted that some inadvertent marking as long as it is not made by some arrangement cannot be taken to establish the identity of the voter. We may refer to above judgment at para 10. The relevant rule considered in the said judgment was Rule 73 (2) (d). It has been held thus :- "This raises the question as to what the words by which the elector can be identified" appearing in Rule 73 (2) (d) mean. The contention of the appellant is that these words mean that the mark of writing should be such that the elector is actually identified because of them. On the other hand, the contention of the respondents is that it is not necessary that the elector is actually identified by the presence of the mark or writing. It is urged that it is enough if the elector might possibly be identified by such mark or writing or at any rate the mark or writing should be such as would make it reasonable and probable that the elector can be identified thereby. It is urged that it is enough if the elector might possibly be identified by such mark or writing or at any rate the mark or writing should be such as would make it reasonable and probable that the elector can be identified thereby. Thus, there are three possible interpretations of the words "by which the elector can be identified" appearing in Rule 73 (2) (d) namely-(i) any mark or writing which might possibly lead to the identification of the elector, (ii) such mark or writing scan reasonably and probably lead to the identification of the elector, and (iii) the mark or writing should be connected by evidence aliunde with an elector and it should be shown that the elector is actually identified by such mark or writing." 11. It has been stated by the Supreme Court that it may be necessary for the Tribunal or the Returning Officer or the Court to require some 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 his identification. It is also stated that generally evidence may not be forthcoming and it will be for the returning officer, the tribunal or the Court to decide on the ballot paper as it stands whether the mark or writing is such that the elector can be identified thereby. After discussion of the law, it was observed by the Supreme Court that it would depend on facts of each case. Whether looking at the writing or mark on the ballot paper, the returning officer Tribunal or the Court is able to come to conclusion that the mark or writing is such that the voter can be identified. We may refer to Km. Shradha Devi v. Krishna Chandra (supra). The petitioner has specifically invited attention to the para 14 of the judgment and the passage from Halsbury's Laws of England, 4th Edn., Vol. 15, para 634. It is quoted thus: . "634. Ballot papers rejected for marks of identification -- Any ballot paper on which anything is written or marked by which the voter can be identified, except the printed number on the back, is void and must not be counted. 15, para 634. It is quoted thus: . "634. Ballot papers rejected for marks of identification -- Any ballot paper on which anything is written or marked by which the voter can be identified, except the printed number on the back, is void and must not be counted. The writing or mark must be such that the voter can be, and merely might possibly be, identified." "As respects ballot papers which have names, initials, figures or other possible marks of identification on them by which it might be suggested that the voter could be identified, it has been said that the Court should look at the paper and form its own opinion whether what is there has been put there by the voter for the purpose of indicating for whom he votes; if the voter has not voted in the proper way (if for example he has made two crosses, or some other such marks which might have been intended for purposes of identification) but the Court comes to the conclusion on looking at the paper that the real thing that the voter has been doing is to try, badly or mistakenly, to give his vote, and make it clear for whom he voted, then these marks should not be considered to be marks of identification unless there is positive evidence of some agreement to show that it was so." In para, 16 of the judgment the court indicated free and fair election being the fountain course of Parliamentary democracy attempt of the Returning Officer and the Court should be not to chart the easy course of rejecting ballot papers as invalid under the slightest pretext but serious attempt should be made before rejecting ballot papers as invalid to ascertain, if possible, whether the elector has cast his vote with sufficient clarity revealing his intendment. 12. Bhushanlal Sahu v. Jamunadas ( 1983 JLJ 722 = 1983 MPLJ 743 ) was a case wherein it has been held that an election petition would lie to question election or selection of a councillor. The said case was not in respect of challenge to the election of the President. 12. Bhushanlal Sahu v. Jamunadas ( 1983 JLJ 722 = 1983 MPLJ 743 ) was a case wherein it has been held that an election petition would lie to question election or selection of a councillor. The said case was not in respect of challenge to the election of the President. Era Sazhiyan v. T.R. Balu and others ( AIR 1990 SC 838 ) was a case wherein the election to Rajya Sabha was challenged and under the rules article for making preference namely a ball point pen was provided in booth, the voter using pen but encircle, simple with green ink. It was said that the voter could be identified because of the encircling of the mark. 13. Having considered the relevant aspects of the matter, in view of the dictum of the Supreme Court, it was necessary to point out some previous arrangement or connection between the votes cast and the marking made. No such averment has been made in the return that such a marking was made with some previous arrangement. 14. The rejection of the vote by the competent authority was therefore illegal the vote ought to have been counted in favour of the petitioner. In view of the matter, the petitioner was liable to be declared elected. The petitioner is allowed and the declaration of election of respondent No.4 as President is quashed. There shall be no order as to costs.