GOLA NARASIMHALU Vs. KODI NARASIMHAM AND ORS.

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution to quash the decision of the Election Commissioner in O. P. No. 32 of 1952. The facts are not in dispute. On 16 -9 -1952 elections were held for the Municipal Council, Nandyal The petitioner and respondent 1 herein and two other candidates contested the seat for ward No 12. The petitioner got 280 votes, respondent 1st 240 votes and the other two candidates far less and accordingly, the petitioner was duly declared elected. Thereupon, respondent 1 filed O. P. No. 32 of 1952 before the Subordinate Judge of Kurnool who is the Election Commissioner under the Act for setting aside the election on various grounds We are concerned in this petition with only one of them, that the polling officer entered on the ballot papers 'the names of the electors and their serial number in the electoral list. Rule 27 -A(1)(a) of the Election Rules is as follows: "A ballot paper shall be rejected if it bears any

(2.) I agree with the contention of the petitioner that a breach of Rule 27 -A(1)(a) does not 'ipso facto' render the election void and that before it could be set aside it must be established that the result of the election had been affected thereby. In - -'Woodward v. Sarsons',, (1875) L. R. 10 C. P. 733 (A), a polling officer in charge of one of the booths marked on the ballot paper the number of the voters in the electoral list. It was held that these papers should not be counted and if counted by the Election Officer, they should be struck out by the Election Commissioner on scrutiny. Then the Court proceeded to count the other valid votes recorded in the several booths and held that even excluding the invalid votes, the result of the election had not been affected. In - - 'Mahabaleswarappa v. Ramachandra Rao',, AIR 1936 Mad 669 (B), the facts were that 322 ballot papers had been marked by the polling officer with the numbers of the voters on the electoral rolls. All these votes were rejected by the Election Officer. Out of the remaining votes, the successful candidates got 1208 votes and his rival 1092 votes. The Election Commissioner having set aside the election on the ground that the secrecy of the ballot box had been violated, it was held by Venkatasubba Rao and Cornish JJ. that the election could not be set aside merely because there had been a breach of the rules and that it must further be proved that it had affected the result of the election. The position was thus stated by Cornish J.:

(3.) IT is next contended for the petitioner that as the polling officer had impartially marked all the ballot papers which had been cast into the box with the names of the voters and their serial number, the result of the election was not affected; because all the candidates were equally affected and their mutual position remained the same as the result of the marking of the ballot papers as without it. This contention has much in commonsense and justice to commend it. But it must fail on the principle of the matter. Rule 27 -A(1)(a) requires that the ballot papers marked in such manner as to disclose the identity of the elector should be rejected, if all the ballot papers are marked so as to violate Rule 27 -A(1)(a) all of them will have to be rejected and the result is there is no person who can be said to have been elected. In - -, (1875) I. R 10 C P 733 (A)' and - -AIR 1936 Mad 669 (B)' after rejecting the ballot, papers which were marked there were still others which were valid on which an election could be declared and then the only question was whether the result of the election had been affected. But where there is no vote at all recorded there is no election which could be declared and the question whether the result of the election had been affected does not even arise. On this ground, the declaration of the Election Officer should be set aside and a fresh election ordered.