SWARUP SING Vs. ELECTION TRIBUNAL MUNICIPAL BOARD ALIGARH

JUDGEMENT

(1.) I agree that this petition must be dismissed. The question is whether the five ballot papers which had been marked on the back are valid. The circumstances in which the question arises are, it is to be hoped, most unusual. On the face of these ballot papers are printed four vertical columns headed respectively (in Hindi) Serial number; Names of candidates with party affiliation, if any; Facsimile of symbols assigned; and Space for marking. On the back of the form is printed the number of the form and the instructions for voters. In the case of each of these ballot papers, with the doubtful exception of ballot paper No. 140, the ink used for impressing on the face of the ballot paper the vertical and horizontal lines, the names of the candidates and the symbols has penetrated the ballot papers with the result that everything printed on the face of the ballot papers appears also on the back of it, although of course the order of the columns, the symbols and the names of the candidates are reversed. The symbols are perfectly clear, but the names of the candidates cannot be read as each letter is reversed. A literate voter would therefore be able to distinguish between the front and the back of the form, but an illiterate voter might well be in doubt.

(2.) Now paragraph 43 of the U. P. Municipalities (Conduct of Election of Members) Order, 1953, provides that an elector shall "make a mark on the ballot paper opposite the name of the candidate or each of the candidates for whom he intends to vote", & Clause (g) of paragraph 64(1) provides that the Returning Officer shall reject a ballot paper "if no vote is recorded thereon". The argument is that the phrase" on the "ballot paper" means, and means only, on the face of the ballot paper. It is therefore contended that as the electors in the case of these five ballot papers have marked their choice on the back, the ballot papers were rightly rejected by the Returning Officer and ought not to have been counted by the Election Tribunal. There is however a presumption that every voter who applies for a ballot paper intends to vote for one or more candidates. Each of the marks made on these five ballot papers is opposite the reversed symbol assigned to a candidate, and I do not think that there can be the slightest doubt with regard to the candidate or candidates for whom the elector was voting It is true that the marks made by the votes are not! opposite the names of the candidates for the printing of these names, being reversed, is not legible. But I understand that the whole purpose of assigning a symbol to a candidate is to substitute something easily recognizable by a voter who owing to his illiteracy is unable to read the names of the candidates. The symbol, in other words, must be treated as taking the place of the name. For all practical purposes, so far as illiterate voter is concerned, a mark opposite an assigned symbol is a mark opposite a name, and in the peculiar circumstances of this case J am of opinion that the mark made by the voter on the back or the ballot paper is a mark "on the ballot paper" within the meaning of paras 43 and 64 of the 1953 Order. I have some, hesitation in holding that the Election Tribunal was right in counting the votes recorded on ballot paper no. 140, but as the exclusion of this ballot paper would not affect the result, the matter is not of importance.

(3.) I agree with the order proposed by my brother. Dayal, J.