KANIAPPA MUDALIAR Vs. BCHINNASWAMI CHETTIAR

JUDGEMENT

(1.) This revision petition arises m connection with the election of a councillor for ward No. 5, of the Conjeewaram Municipality in October last. The petitioner before me Mr. Mudaliar and the 1 respondent Mr. Chettiar were rival candidates. The latter got 2 more votes than the former and would in the ordinary course have been declared elected; but the, Chairman held 2 of his votes to be invalid on the ground that the ballot papers on which such votes were recorded, Exs. A and B, did not bear the initials of the polling officer as required by Rule 14, Clause (1) of the Rules framed by the Governor-in-Council for the conduct of Municipal elections and published in the Fort St. George Gazette as notification No. 1120, dated 23rd November, 1920. Having done so, he proceeded to act under Rule 28 and draw lots as the number of votes for the 2 candidates had become equalised; and as the drawing resulted in Mr. Mudaliar's favour he declared him duly elected. Thereupon Mr. Chettiar filed an election petition before the Subordinate judge of Chingleput claiming that the 2 votes in question were valid ones and were wrongly excluded. The learned Subordinate Judge has found as a tact that the 2 votes were actually given by 2 duly qualified voters who voted at the election and that the ballot papers Exs A and B themselves were the outer foils of 2 counter-foils in the voting paper book kept by the polling officer and that there could be no question that the votes were genuine votes recorded by 2 voters entitled to vote. The only objection urged to the reception of these votes was as already stated that they did not bear the polling officer's initials. No other rule or provision is said to have been infringed. In these circumstances the Subordinate Judge held that it was wrong to reject the votes as invalid and that they should be counted in Mr. Chettiar's favour. That made the number of votes in his favour larger than the number Mr. Mudaliar got. Consequently he set aside Mr. Mudaliar's election and declared Mr. Chettiar as properly elected. The revision is against that order.

(2.) From what is stated above it is clear that the question to be considered is whether a vote is to be treated as invalid and rejected on the sole ground that it does not bear the polling officer's initials even though it is proved that in all other respects it is a properly recorded vote by a duly qualified voter. The decision of the point is obviously material in the present case as the result of the election entirely turns on it.

(3.) The learned Vakil for the petitioner contends that the mere absence of the polling officer's initials on the ballot paper is sufficient by itself to invalidate the vote and he relies upon the ruling in Shyam Chand Basak V/s. Chairman, Dacca Municipality I.L.R. 47 C. 524, In that case the question was not one of the invalidity of a vote given at an election properly held as here but of the invalidity of the whole election itself on the ground of its having been held out of the proper hours fixed for it. There the election was begun later and continued later in the morning and begun earlier in the afternoon than the time fixed for it. The question before the learned Judges was whether that irregularity vitiated the election in toto. After an elaborate discussion of the case-law on the point the learned judges held that the condition infringed was not a mandatory one and that the election could be upheld if it was shown that its result was not affected by the error or irregularity committed, the burden to prove which was on the person supporting the election; but that if there was reasonable ground to believe that the result was affected by the irregularity the Court should set it aside. If I may say so respectfully I entirely agree with the views expressed in this case. Though the ruling is not strictly in point as we are dealing with a case of a vote being challenged and not the election itself the principles laid down may be applied to the present case and applying them it will follow that if nothing more appeared than that Rule 14 Clause (1) was infringed as regards the 2 votes that would be a prima facie ground for rejecting those votes; but if it is proved by evidence that the votes were given by duly qualified voters on ballot papers supplied to them by the polling officer they should not be rejected. In this case such evidence is forthcoming and the learned Subordinate Judge has found that the votes are genuine and I must accept that finding in revision; on that finding I am of opinion that Subordinate Judge's view that the votes should be counted is correct.