A SETHURAMA MUDALIAR Vs. MPMANGALA GOUNDAR

JUDGEMENT

(1.) In this petition the Subordinate Judge of Dindigul has found that the ballot papers at a Municipal election held in Palani Municipality are invalid under Rule 17 (1) of the Election Rules. The polling officer, when giving out the ballot papers to the voters, put not only the serial number upon the back of them but also the voters own number on electoral roll. Consequently, anyone seeing this number on a voting paper could, by a reference to the electoral roll which is available to everybody, identify the particular voter; and it has been held in Woodward v. Sarsons 10 C.P.D. 733 in an almost identical case, that the ballot papers were invalid; but in that case the electoral numbers were placed, not upon the back, but upon the face of the ballot paper. It is now argued that this makes a great deal of difference, because the back and the front of the paper cannot be seen at the same time. In Madras there is no rule like the English rule enjoining on the Returning Officer the necessity of keeping the ballot papers face upwards as far as possible, and it is not suggested that the backs of the ballot papers would not be visible when taken out of the box. Rule 17 (1) merely says that the paper is invalidated by any mark put upon it by which the voter may be afterwards identified. Considering the possibility and even the probability of the back of the voting paper being visible to the candidate or his agent, the fact that the electoral number is on the paper would afford a ready means of identification, and it is I think such a mark as is contemplated in Rule 17 (1). No doubt, at the present election these numbers were not particularly noticed at the time of the election and, as a matter of fact, the voters were not identified thereby; but the Rule does not require that the identification shall be made but merely that there is a possibility of such identification by reason of the mark. In fact, in the case already referred to, Woodward V/s. Sarsons 10 C.P.D. 733, the Court observed that in the case before it the numbers had not been identified; but as they could have been seen by the persons present at the counting of the ballot papers, it was held that the rule, which is similar in England to that in Madras, had been violated and the votes were invalid. It is argued for the petitioner that the decision in Wood ward v. Sarsons 10 C.P.D. 733 cannot be applied to India, because under Rule 17 (1), the mark by which identification may be had must be placed on the voting paper by the voter himself. Apparently the first part of the Rule does apply to marks put by the voter, but there is nothing in the latter part to show that it is the voter himself who must put the mark by which he may be identified; and in the absence of words restricting the meaning of the Rule, I see no reason why the view held in Woodward V/s. Sahons with reference to similar rule should not equally apply to Rule 17 (1). There is no restriction in the words of the rule and, consequently, no restriction could be read into it without adequate reason. It follows, therefore, that these votes are invalid under Rule 17 (1); and inasmuch as all the votes cast at the election are invalid, no proper election has been held and the petitioner has not been properly elected.

(2.) It is then argued for the petitioner that under Section 9 (1) of the Madras Municipalities Act V of 1920, the petitioner who is the retiring councillor must be deemed to have been re-elected. That section reads as follows: "If for any cause no councillor is elected at an ordinary election held under the previous section, the retiring councillor shall, if willing to serve, be deemed to have been re-elected. " The argument is that, as all the votes cast were invalid, there has been no election of a councillor and that, consequently, the provisions of Section 9 (1) apply. On the other hand, it is contended for the respondent that this section is only applicable to cases in which an election is held but no candidates are nominated for election or no voters vote for any of the candidates. The petitioner's contention has the support of the case, In the matter of the Specific Relief Act and In the matters of Sarafally Mamooji and Jaffer Jushib (1910) ILR 34 Bom 659, where Macleod, J., read a similar section in the Bombay Municipal Act as being applicable in the case of an invalid election. The point is not at all discussed in Macleod, J.'s Judgment and it does not appear whether there are rules framed in Bombay similar to those framed in Madras for the decision of disputes as to the validity of an election. From the Madras rules framed for this purpose it is quite clear that Section 9 (1) is not meant to apply to cases where an election has been held and is subsequently declared void, for Rule 12 states that the Judge, on declaring an election void, must proceed to declare some other party to the petition to have been duly elected, or must order a fresh election. It is suggested that the first portion of this Rule declaring any other party to the petition to be duly elected applies to the case of the retiring councillor who would generally be made a party. It does not follow, however, that a retiring councillor would necessarily be a party and I do not think that it is the intention of this Rule. If the section applied to all cases of invalid elections, there is no reason why it should not say so in terms but it purports to apply only to the case where no councillor is elected. When an election has been duly held and votes have been cast and a councillor has been declared duly elected, can it be said, when that election is declared void, that no councillor has been elected? I think not, for the councillor undoubtedly was elected and would remain in office as a councillor provided that no petition objecting to such election was put in. In this view, Section 9 (1) is not applicable to the present case and, consequently, a fresh election must be held and this petition dismissed with costs (two sets). Odgers, J.

(3.) I agree and have nothing to add.