PERIASWAMI Vs. RANGASWAMI

JUDGEMENT

(1.) THE petitioner was elected as the President of the Pudupalayam Village Panchayat in the elections held on 28th July, 1970, respondents 1 and 2 herein having been defeated. The first respondent herein preferred an election petition namely, O.P. No. 36 of 1970 on the file of the Court of the District Munsif of Ariyalur to set aside the election of the petitioner. The Election Tribunal by an order dated 16th June, 1972, set aside the election of the petitioner and declared the first respondent herein as the duly elected President. Against the said order, the petitioner filed a writ petition namely W.P. No. 1588 of 1972 (Periaswamy v. Rangaswamy and 2 others) on the file of this Court praying for the issue of a writ of certiorari to quash the same. The said writ petition was allowed on 1st August, 1972 and the Original Petition No. 36 of 1970 itself was remanded for fresh disposal. The said O.P. was numbered as OP. No. 46 of 1972 before the Principal District Munsif, Tiruchirapalli, and the said Election Tribunal by its order dated 1st February, 1973, after recounting the votes came to the conclusion that the petitioner and the first respondent had obtained an equal number of votes and that therefore a fresh election should be held. It is to quash this order that the present writ petition has been filed under Article 226 of the Constitution of India.

(2.) MR . M.K. Nambiar, learned Counsel for the petitioner, contends that the rejection of some of the votes cast in favour of the petitioner by the Election Tribunal is clearly erroneous on the face of it and even if the Election Tribunal is found to have erroneously rejected one ballot paper cast in favour of the petitioner, that will put an end to the equality found by the Election Tribunal and make the votes obtained by the petitioner herein higher in number than those obtained by the first respondent and consequently the election petition filed by the first respondent herein would have to be dismissed. In support of this contention, the learned Counsel places strong reliance on one ballot paper dealt with by the Election Tribunal. That is the ballot paper bearing No. 926866. With regard to this ballot paper, what the Election Tribunal says is this:

(3.) APART from the fact that the Election Tribunal has not recorded any finding with reference to the second proviso to Rule 19 (2) extracted already that from the way the paper is marked it is not possible to hold that the intention was to vote for a particular candidate, the very statement with regard to the nature of the marking extracted already from the order of the Election Tribunal with reference to the ballot paper in question clearly shows that the intention of the voter was to vote for the symbol "Scissors".