ORDER : INTRODUCTORY: The negligence and carelessness on the part of an Election Officer and his team of officials in counting the votes and their act of declaring several valid votes as invalid resulted in declaring a candidate, who got less votes, as the President of Vaali Nokkam Panchayat, Ramanathapuram District, and dragging the candidate to whom majority of voters have voted, from pillar to post and finally, to the Election Tribunal and thereafter, this Court. The Election Officer himself later admitted his serious mistake and helped this Court to adjudicate the issue raised by the defeated candidate. BRIEF FACTS: 2. The petitioner filed the Election Original Petition in E.O.P.No.2 of 2011 before the Principal District Court, Ramanathapuram, challenging the election of the first respondent. Before the Election Tribunal, the petitioner prayed for an order to declare the election of the first respondent invalid and re-counting of votes. The Election Tribunal dismissed the Election Petition, by order dated 07 October, 2014. 3. The election for electing the President of Vaali Nokkam Panchayat was held on 19 October, 2011. The petitioner and respondents 1 and 2 were the contestants. The third respondent functioned as Election Officer. 4. The Election Officer allotted "Scissors" symbol to the petitioner, "lock and key" to the first respondent and "Kai Urulai" to the second respondent. The first respondent was declared elected by a margin of 10 votes. 5. Before the Election Tribunal, the petitioner contended that even before the time earmarked for commencement of counting, 3 ballot boxes were opened and only the remaining 6 boxes were opened in her presence. The petitioner further contended that even before her arrival, the first respondent was there at the counting centre and in her absence, 3 ballot boxes were counted. Even though the petitioner submitted objection, with regard to the act of opening 3 ballot boxes before the prescribed time, the same was not seriously considered by the third respondent. 6. The petitioner further contended that the votes polled in her favour were declared invalid on the ground that the voters have not affixed the Swasthik mark. The petitioner has alleged collusion between the first respondent and third respondent and other election officials. It was contended that her request to direct recounting was rejected by the Election Officer. 6. The petitioner further contended that the votes polled in her favour were declared invalid on the ground that the voters have not affixed the Swasthik mark. The petitioner has alleged collusion between the first respondent and third respondent and other election officials. It was contended that her request to direct recounting was rejected by the Election Officer. The petitioner, therefore, requested the Election Tribunal to declare the election of the first respondent as invalid and direct re-counting of votes for the purpose of fresh evaluation. 7. The first respondent, in her counter-affidavit, denied the allegations made by the petitioner. According to the first respondent, the petitioner failed to give a representation within the prescribed period and as such, her request for re-counting was rightly rejected. The first respondent specifically denied the allegations made against her and the third respondent. 8. The third respondent filed a counter-affidavit, wherein it was stated that 87 votes were declared invalid. According to the third respondent, the petitioner secured 1684 votes as against 1694 votes polled by the first respondent. The second respondent got 24 votes. The first respondent was declared elected, as she got 10 votes more than the petitioner. 9. Before the Election Tribunal, the petitioner was examined as P.W.1. The petitioner, in her evidence, deposed that the marker was having Swasthik symbol only on one side and the other side was blunt. The petitioner deposed that the votes polled in her favour were declared invalid solely on the ground that the concerned voters failed to put the Swasthik symbol. 10. The first respondent was examined as D.W.1. The first respondent admitted that the marker was having Swasthik symbol only one side and the other side was blunt. 11. The Election Officer, the third respondent herein, was examined as D.W.2. D.W.2 denied the suggestion that votes, which do not bear the Swasthik symbol, but only the flat round end, would be declared invalid. According to D.W.2, those votes, which do not contain the Swasthik symbol but only the flat round end, would also be treated as valid votes. D.W.2 denied the suggestion that he failed to count the votes polled in favour of the petitioner with the back side of the marker without the Swasthik symbol. 12. The Election Tribunal framed four issues. The first issue relates to the opening of 3 ballot boxes before the prescribed time. D.W.2 denied the suggestion that he failed to count the votes polled in favour of the petitioner with the back side of the marker without the Swasthik symbol. 12. The Election Tribunal framed four issues. The first issue relates to the opening of 3 ballot boxes before the prescribed time. According to the Election Tribunal, acceptable materials were not produced by the petitioner to prove her allegation. 13. The second issue relates to the rejection of votes polled in favour of the petitioner on the ground that the voters have not affixed the Swasthik symbol. The contention was negatived by the Election Tribunal solely on the ground that the petitioner failed to mention the said fact in Ex.P.2 and Ex.P.3 submitted before filing the Election Petition. 14. The Election Tribunal finally held that the petitioner miserably failed to plead and prove that the election of the first respondent is invalid and that re-counting is absolutely necessary. SUBMISSIONS: 15. The learned counsel for the petitioner, by placing reliance on the evidence tendered by D.W.1 and D.W.2, and the relevant pleadings, contended that there are materials to show that the Election Officer opened 3 boxes even before the time stipulated for commencement of counting. The learned counsel contended that large number of votes polled in favour of the petitioner were declared invalid only on the ground that the voters failed to put the Swasthik mark against the symbol allotted to her, notwithstanding the fact that Swasthik mark was only on one side of the marker. 16. The learned counsel for the first respondent, on the other hand, contended that the petitioner failed to plead and prove that the third respondent, without any valid reason, declared the votes polled in her favour invalid. According to the learned counsel, in an Election Petition, it is the duty of the petitioner to prove that the election of the successful candidate was vitiated, on account of certain acts or in violation of the provisions of Tamil Nadu Panchayats (Election) Rules, 1995. DISCUSSION: 17. The petitioner has taken up several contentions in support of her claim that the election of the first respondent is vitiated. The primary contention appears to be the alleged act of opening 3 boxes in the presence of first respondent and even before the arrival of the petitioner. UNAUTHORISED OPENING OF BALLOT BOXES: 18. DISCUSSION: 17. The petitioner has taken up several contentions in support of her claim that the election of the first respondent is vitiated. The primary contention appears to be the alleged act of opening 3 boxes in the presence of first respondent and even before the arrival of the petitioner. UNAUTHORISED OPENING OF BALLOT BOXES: 18. The petitioner alleged that the Returning officer and his associates opened 3 boxes well before the time prescribed for commencement of counting. The petitioner alleged that out of 9 boxes, 3 have already been opened and only 6 ballot boxes were opened in her presence. 19. Even though the petitioner has stated so many things in her Election Petition with regard to the act of opening 3 boxes, she has not produced any material before the Election Tribunal, to prove the said allegation. The petitioner, in her Election Petition, stated that she was informed by Tmt.Uma Devi, engaged by the third respondent for counting that 3 ballot boxes were opened and stacked separately, pursuant to the orders of third respondent. However, the fact remains that the said Uma Devi was not examined by the petitioner before the Election Tribunal. I am, therefore, of the view that the petitioner miserably failed to plead and prove that the Election Officer opened 3 boxes even before the arrival of petitioner and stacked those votes separately. VALID VOTES DECLARED AS INVALID VOTES: 20. The next issue relates to the arbitrary act of declaration of valid votes as invalid votes. The petitioner as well as first respondent admitted that the marker was having Swasthik mark only on one side. The other side was blunt. The Election Officer was examined as D.W.2. The Election Officer very clearly admitted that even if marking is given with the blunt side and there is indication that the vote is polled in favour of a particular symbol/candidate, such votes would be valid, notwithstanding the fact that Swasthik mark was not affixed. 21. The second proviso to Rule 63(a) of the Tamil Nadu Panchayats (Election) Rules, 1995 reads thus: "Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is not distinct 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. 22. 22. The above quoted provision clearly shows that in case the intention of voter to vote in favour of a particular candidate could be ascertained with certainty, such votes shall not be declared invalid. In short, in case the intention of the voter is clear that he wanted to cast the vote in favour of a particular candidate, such vote shall be declared as valid, notwithstanding the fact that mark indicating the vote is not distinct. 23. The ballot paper shall be rejected only in case it satisfies the ingredients of Rule 63 of the Tamil Nadu Panchayats (Election) Rules, 1995. The Election Rules nowhere provided that in case the mark is not given with the Swasthik mark, such votes are liable to be declared invalid. 24. The evidence given by D.W.2 is in accordance with Rule 63 of the Tamil Nadu Panchayats (Election) Rules, 1995. It was only on account of the second proviso to Rule 63(a) of the Tamil Nadu Panchayats (Election) Rules, 1995, the third respondent, in his evidence, stated that even if the mark is given with the blunt side of the marker and without using the Swasthik mark, such votes should be declared as valid. 25. In view of the stand taken by the third respondent that even the votes polled in favour of a particular candidate with blunt side of the marker would be treated as valid, in case the intention is clear, I have passed an order, directing the third respondent to file an affidavit with respect to the following. The order dated 22 June, 2015, reads thus: "Thiru.Ganesan, Block Development Officer, Kadaladi Block, presently working as Additional Project Officer, Ariyaloor District, who was examined as D.W.2, is directed to file an affidavit in response to the following: i. In case, a voter casts his vote by affixing the blunt side of the marker given to him and there is no contra intention by putting the mark in the place earmarked for voting in favour of others, whether that vote would be declared as valid? ii. Whether the votes cast with the backside of the marker will be treated as valid? iii. In case there was no marking by marker, but the intention of the voter is clear on account of a specific marking, whether the vote will be declared as valid? 2. ii. Whether the votes cast with the backside of the marker will be treated as valid? iii. In case there was no marking by marker, but the intention of the voter is clear on account of a specific marking, whether the vote will be declared as valid? 2. The officer is directed to appear before this Court along with the affidavit at 10.30 a.m., on 29 June, 2015 for passing further orders." 26. The Election Officer, pursuant to the order dated 22 June, 2015 filed an affidavit. Paragraph No.3 of the affidavit is material, insofar as the issue regarding invalid vote is concerned. It reads thus: "3. I respectfully submit that likewise, when if swastik mark is not marked but at the same time, the round mark alone has been fixed in the proper earmarked place, that kind of votes are valid votes and liable to be counted. At the same time, in some situation the voters used some specific marking like 'Tick' mark and 'Thumb' mark etc., to poll their votes without using the swastik mark which is given to the voters authorisedly for voting. Such symbols are never taken into an account for counting as valid votes." 27. The Election Officer produced the invalid votes before this Court in a sealed cover. He has also produced the entire votes in sealed covers, notwithstanding the fact that there was no direction given by this Court to produce the valid votes. 28. When the Civil Revision Petition came up for hearing on 29 June, 2015, the Election Officer produced 87 invalid votes in a sealed cover. The Election Officer was directed to take few among the 87 invalid votes and to say as to whether those votes were correctly declared as valid or invalid. The Election Officer took some of the votes and on thorough verification, stated that those votes should have been declared as valid and it was inadvertently declared as invalid. I have prepared the minutes of the initial verification conducted by the Election Officer on 29 June, 2015 and it was duly signed by him. 29. The verification conducted by the third respondent on 29 June, 2015 prima facie proved that valid votes with a clear intention of the voter to vote in favour of a particular candidate, were rejected without any reason. 29. The verification conducted by the third respondent on 29 June, 2015 prima facie proved that valid votes with a clear intention of the voter to vote in favour of a particular candidate, were rejected without any reason. Since notice was not given to the petitioner and respondents 1 and 2 to appear before the Court and to witness the verification of invalid votes, I have not asked the Returning Officer to verify the entire invalid votes. 30. Since the Election Officer, on a verification of few invalid votes, reported that he committed a mistake and votes polled in favour of a particular candidate were declared as invalid inadvertently, I have, by order dated 29 June, 2015, directed the Election Officer to appear in person at 10.30 a.m., on 02 July, 2015, along with the entire records including the statutory forms, more particularly form 20, 22 and 23. The petitioner and the first respondent were also directed to appear before this Court along with their counsel to take part in the process of examination of invalid votes and to decide as to whether valid votes were declared as invalid without any valid reason. 31. The petitioner and first respondent along with their counsel appeared before this Court today. The Election Officer appeared along with the learned Government Advocate. 32. Thiru.V.Sitharanjan Das, learned counsel for the first respondent submitted that before proceeding further, the Court should identify the blunt side of the mark. According to him, normally, the marker would contain Swasthik mark on both sides. However, in the subject case, the Swasthik mark was found only one side. Because of this, it is necessary to identify the blunt side or round mark. 33. The Election Officer, in response to the contention taken by the learned counsel for first respondent, submitted that the votes polled with blunt side/round mark were also treated as valid votes. The Election Officer submitted that in case the cover containing the valid votes is looked into, it will prove his version. In view of the said submission, I have directed the Election Officer to open one set of valid votes to verify as to whether any of the valid votes contain marking with blunt side instead of Swasthik marking. 34. The Election Officer opened a sealed cover and took one bunch of valid votes. In view of the said submission, I have directed the Election Officer to open one set of valid votes to verify as to whether any of the valid votes contain marking with blunt side instead of Swasthik marking. 34. The Election Officer opened a sealed cover and took one bunch of valid votes. It was found that one ballot paper contained only marking with blunt side and it was treated as a valid vote cast in favour of first respondent. Similarly, another vote polled in favour of the first respondent contained both Swasthik symbol as well as a marking with blunt side of the marker. The two votes taken as sample clearly proved that the marker has Swasthik symbol on one side and the other side was blunt. The learned counsel for the petitioner, first respondent and the parties have, accordingly, identified the blunt side of the mark and satisfied with the explanation given by the Election Officer after demonstration. 35. The Election Officer thereafter with the consent of parties and their counsel opened the cover containing the invalid votes. The Election Officer counted the total number of votes and it was found 87. 36. Thereafter, the Election Officer has taken each of the 87 votes and re-examined it in the presence of parties and their counsel. Out of 87 invalid votes, it was found that 12 invalid votes were declared invalid, notwithstanding the fact that there was a clear indication that those 12 voters have cast their votes in favour of the candidate, who contested with "Scissors" symbol. Those 12 votes were shown to the petitioner, first respondent and their respective counsel. Since all these 12 votes should go to the petitioner, each of the 12 votes were examined separately by the learned counsel for the first respondent and his juniors in the presence of first respondent. The counsel for first respondent and her counsel agreed that those 12 votes are valid, as the voters have shown their preference clearly by affixing the blunt side mark on the symbol "Scissors". 37. There was a dispute with respect to one vote in addition to the 12 votes referred to above. Insofar as the said ballot paper is concerned, the blunt side was placed against the symbol "Scissors". However, the impression was also found against the symbol "lock and key", which is a symbol allotted to the first respondent. 37. There was a dispute with respect to one vote in addition to the 12 votes referred to above. Insofar as the said ballot paper is concerned, the blunt side was placed against the symbol "Scissors". However, the impression was also found against the symbol "lock and key", which is a symbol allotted to the first respondent. The Election Officer submitted that the object is found on another symbol also and as such, it should be treated as invalid. Accordingly, the said vote is declared invalid, notwithstanding the objection raised by the learned counsel for the petitioner. 38. The examination of votes clearly proved that the petitioner, who contested the election with "Scissors" symbol, is entitled to get 12 votes. Those 12 votes were declared invalid without any reason. The Election Officer pleaded that his subordinates have done this mistake and as such, he is not responsible. I am not here to fix the responsibility now. The scope of Election Petition is entirely different. VOTING POSITION: 39. The petitioner initially secured 1684 votes. She is now entitled to 12 votes more. Since the petitioner is entitled to another 12, the total votes secured by her is arrived at 1696. 40. The following is the table showing the votes secured by each of the candidates after the verification of invalid votes as indicated above: 41. The Election Officer, after verification of votes, prepared form 23, indicating that the petitioner is the successful candidate. Sl.No. (Name of the candidate) (The votes received by post) (The votes polled in the voting centre) (Total) 1. (A.Majitha Begum) 2 1692 1694 2. (S.Vahitha) - 1696 1696 3. (S.Fathima Kani) - 24 24 4. 5. 6. 7. 8. 9. (valid votes) 2 3412 3414 (Rejected votes) - 75 75 (Tendered votes) - - 2 3487 3489 CONCLUSION: 42. The factual matrix very clearly shows that the petitioner secured 2 votes more than the first respondent. The petitioner proved her contention taken in the Election Petition that the votes polled in her favour were declared invalid without any rhyme or reason and the same resulted in the election of first respondent. I am, therefore, of the view that the petitioner must succeed. DISPOSITION: 43. In the result, the Election Petition filed by the petitioner in El.O.P.No.2 of 2011 is allowed. The election of first respondent as the President of Vaali Nokkam Panchayat, is set aside. I am, therefore, of the view that the petitioner must succeed. DISPOSITION: 43. In the result, the Election Petition filed by the petitioner in El.O.P.No.2 of 2011 is allowed. The election of first respondent as the President of Vaali Nokkam Panchayat, is set aside. The petitioner is declared as the successful candidate in the place of first respondent. The Election Officer is directed to send the relevant statutory form to the District Collector and the Election Commission. The Election Commission is directed to publish the notification regarding the election of the petitioner as the President of Vaali Nokkam Panchayat, as expeditiously as possible and in any case, within a period of three days from the date of receipt of a copy of this order. 44. In the upshot, I allow the Civil Revision Petition. No costs. Consequently, the connected miscellaneous petition is closed.