CHEBROLU HONUMAYYA Vs. METTU CHINNA MALLA REDDI

JUDGEMENT

(1.) This is an application for the issue of a writ of certiorari to quash the order of the Election Commissioner, Guntur, dated 5-8-1953 in O. P. No. 114 of 1052. The petitioner before me hereinafter known as the "petitioner" was the first respondent in the court below and the contesting respondent hereinafter known as the "respondent" was the petitioner in the court below. There was an election to ward No. 2 of the Guntur municipality in which the petitioner and the respondent were the rival candidates. The petitioner secured 362 votes whereas the respondent secured only 351 votes. On an election petition filed by the respondent, the election commissioner found that 40 votes cast for the petitioner contained marks by which the elector can be identified and 6 votes cast in favour of the respondent similarly contained marks by which the elector can be identified. He held that these votes were hence invalid and should not be counted. Deducting them from the respective votes obtained by the candidates it was seen that the petitioner secured only 322 votes whereas the respondent secured 345. A further question was raised before him as to whether the respondent should be declared to have been duly elected. On that the learned election commissioner found that 40 votes cast in favour of the petitioner were invalid by reason of a mistake committed by the polling officer and as the majority of the voters in the constituency have voted for the petitioner it was his ill-luck that the polling officer committed this mistake. He therefore considered that the proper course was to order a fresh election and ordered accordingly.

(2.) It is cor tended by Mr. M.K. Nambiar for the petitioner that the order of the election commissioner is without Jurisdiction & that he should not have discarded the 40 votes on which there were marks. The main ground of attack is based upon the interpretation of Rule 27-A (1) of the rules for the conduct of elections of municipal councilors. Rule 27-A as at present reads as follows:

(3.) The old rule which was supplanted by rule 27-A (1) was in the following terms: