ARUMUGA MUDALIAR Vs. ESAKKIA PILLAI

JUDGEMENT

(1.) FOR electing the Vice President of Pulliyarai Panchayat in Tirunelveli District, an election was held in the prescribed manner and the President of the Panchayat was the Electoral who constituted the electoral college, exercised their franchise and the President of the Panchayat as Electoral Officer, while scrutinising the ballot papers found a mark other than the cross mark opposite the name of the first respondent in a ballot paper and, therefore, he rejected the said ballot paper as according to him to offended Rule 16 (c) of the Tamil Nadu Panchayats (Election of vice President) Rules, 1961. After rejecting this ballot paper, he found that both the petitioner and the first respondent secured equal number of voted. He, therefore, drew lots and ultimately in the process the petitioner came out successful. Therefore, the petitioner was declared elected as Vice President of puliyari Panchayat. The respondent filed an election petition as provided for under the Tamil Nadu Panchayats (Election of Vice President) Rules, 1961, before the election court which is the District Munsif of Shencottah. The petitioner alleged that the rejection by the Electoral Officer of the ballot paper which ex facie showed that the voter has cast his vote in his favour, was illegal in that it did not offend either Rule 16 (c) or any other rule prescribed for conduct of the election in question. Other points were also raised before the learned District Munsif. He framed the necessary issues for the purpose and held that the rejection of the ballot paper was improper and Rule 16 (c) had not been violated in any manner. In that view he held that the first respondent who secured one vote more than the petitioner is the proper person to be declared as having been duly elected to the office of Vice President of Puliyari Panchayat. It is as against this order of the learned District Munsif the present writ petition has been filed.

(2.) I have perused the ballot paper which has been produced on the issue of rule nisi. The contention of Mr. Martin, the learned counsel for the petitioner, is that the Electoral Officer rightly rejected that ballot paper, as it offended both the letter and spirit of Rule 16 (c) of the Rules mentioned above. Mr. Balasubramanian appearing for the first respondent would state contra that, even though there are who marks ex facie appearing in the ballot paper, the mark other than the cross mark, which is the normal to mark a ballot paper, appears inside the column in which the name of the contesting candidate appears, that it cannot be said that the other mark has been set opposite the name of the candidate, and that, therefore, there has not been strictly any violation of the prescription in Rule 16 (c ). The other matters dealt with by the District Munsif in his order are not canvassed before me and, therefore, it is unnecessary for me to deal with them.

(3.) THE only point, therefore, is whether the rejection of the ballot paper is proper or not. Rule 16 (c) of the Tamil Nadu Panchayats (Election of Vice President) Rules, 1961 (hereinafter referred to as the rules) applies to the election of Vice President in a Panchayat whether it relates to ordinary vacancy or a casual vacancy in respect of the concerned Panchayat in the State. Inter alia Rule 16 (c) of the Rules provides that a ballot paper shall be invalid on which a cross mark and some other mark are set opposite the name of the same candidate. The only question posed is whether "some other mark" which admittedly appears on the ballot paper can be said to have been set opposite the name of the candidate in question. No doubt, the ballot paper contains two compartments, one intended for disclosure of the names of the candidate and the other for the purpose of enabling the elector to make his choice and put the cross mark in the column provided for. The argument is that, as the other mark which appears on the ballot paper is one which is inside the column in which the name of the candidate appears, it cannot be said that it has been set opposite the name of the candidate. As to what ought to be the form in which a ballot should be issued, how many columns it should contain and what are the purposes have not been made clear in the rules. But in the instant case the Electoral Officer had adopted a form which is normally and conventionally used. No doubt, there appears two columns, one intended to show the name of the candidate and the other for the purpose of making a cross mark showing the preference of the voter. We are, however, concerned with Rule 16 (c) which says that no ballot paper should contain the usual cross mark and 'some other mark'. But obviously the prescription in the rule is that the cross mark and 'some other mark' should be set opposite the name of the same candidate. It would not matter if "some other mark" is put in the same column in which the name of the candidate appears, so long as for the normal eye it is clear that it appears opposite the name of the same candidate. Columns in the ballot paper are used more for the purpose of expediency and convenience and not by reason of any statutory prescription. Therefore, the problem has to be answered with reference to the facts and circumstances of each case. In the ballot paper under consideration, both the cross mark and "some other mark" do appear to have been set opposite the names of the same candidate. "opposite" is a word of common parlance and it has no distinctive signification and cannot be understood by considerations a priori. If the fact, as is seen from the ballot paper, appears to be that "some other mark" is set opposite the name of the candidate besides the cross mark which is normally intended for denoting the mind of the voter, then there is no substantial compliance of the prescription in Rule 16 (c ). I am unable to agree with the learned counsel for the first respondent that the word 'opposite' should be understood opposite not only to the name of the candidate but also to the column in which such name appears. That does not appear to be the intendment of the rule, for, if so understood, it would be straining the plain meaning of the rule. I am satisfied, on a perusal of the ballot paper, that there is, not only the usual cross mark but "some other mark" in it and both the marks are opposite the name of the same candidate. If this is the factual position, then the ballot paper shall be deemed to be invalid under Rule 16 (c ). This was the opinion which the Electoral Officer expressed at the time of scrutiny of ballot papers and in exercise of his jurisdiction he invalidated the ballot paper under Rule 16 (c ). The learned District Munsif was wrong in having entertained the suggestion that the word 'opposite' should be understood in the way contended by the learned counsel for the first respondent in this Court.