(1.) BY this writ petition, the Petitioner has challenged the order passed by the District Judge, L.A.D., Gauhati, by which he affirmed the order of the Munsiff in a petition under Rule 72 of the Assam Panchayat (Constitution) Rules, 1960, as amended by the Assam Panchayat (Constitution) (Amendment) Rules, 1964, under Notification No. PDA. 678/63/Pt. I/dated 11th June, 1964.
(2.) THE Petitioner and the first Respondent were elected as additional members of the Pub Nalbari Anchalik Panchayat. In accordance with the provisions of the Assam Panchayat (Constitution) Rules, as amended, (hereinafter called the Constitution Rules), the Presiding Officer (Magistrate) fixed 10 -9 -68 for election of the Vice -President of the Pub Nalbari Anchalik Panchayat, inter alia. The Petitioner and the first Respondent were candidates for the office of the Vice -President. In the election, both the Petitioner as well as the first Respondent secured 23 votes each and the matter was decided by tossing a coin as prescribed by the Constitution Rules and the Petitioner was declared duly elected as Vice -President of the Anchalik Panchayat Thereafter the first Respondent filed a petition before the learned Munsiff under Rule 68 of the Rules. The contention of the Respondent No. 1 was that one of the ballot papers counted in favour of the Petitioner contained a mark other than a cross mark and that in spite of objection, the said ballot paper was counted in favour of the Petitioner in violation of the provisions of Rule 62(6) of the Rules. The Respondent No. l's further contention was that if the said ballot paper wrongly counted in favour of the Petitioner, would not have been done so, there would have been no occasion for resorting to the procedure laid down in Rule 39 and the Respondent No. 1 would have been validly declared elected as Vice -President inasmuch as he would have secured more votes than the Petitioner. The Petitioner filed objection to the petition and his contention was that there was no illegality or irregularity in his being elected as Vice -President and there was no violation of any provisions of the Assam Panchayat Act or the Rules framed there under.
(3.) MR . N.M. Lahiri, the learned Counsel appearing for the Petitioner, submitted that Sub -rule (6)(d) of Rule 62 of the Constitution Rules was directory and not mandatory. His submission was that if no cross mark was placed on the ballot paper but if the intention of the voter as to in whose favour he exercised his vote could be gathered from the surrounding circumstances, the ballot paper should be taken into consideration and it should not be declared invalid. He further submitted that the Returning Officer in the instant case found that though there was no cross -mark on the ballot papers, the votes were exercised in favour of the Petitioner and as such he took them into consideration., The learned Counsel further submitted that the learned Munsiff also held that probably the marks that appeared on the ballot papers were put by using the reverse of the marking stick and therefore it clearly indicated the intention of the voters that these votes were cast in favour of the Petitioner. As such it was contended that the orders of both the learned Munsiff and the learned District Judge were bad in law.