Judgment

VENKATARAMA AYYAR J. : The appellant and respondents 1 to 5 herein were duly nominated for election to the House of the People from the Hoshangabad Constituency in the State of Madhya Pradesh. Respondents 4 and 5 subsequently withdrew from the election, leaving the contest to the other candidates. At the polling the appellant secured 65,201 votes, the first respondent 65,375 votes and the other candidates far less; and the Returning Officer Accordingly declared the first respondent duly elected. The appellant then filed Election Petition No. 180 of 1952 for setting aside the election on the ground inter alia that 301 out of the votes counted in favour of the first respondent were liable to be rejected under Rule 47(1) (c) of Act No. 43 of 1951 on the ground that the ballot papers did not have the distinguishing marks prescribed under Rule 28, and that by reason of their improper reception, the result of the election had been materially affected. Rule 28 is as follows:

"The ballot papers to be used for the purpose of voting at an election to which this Chapter applies shall contain a serial number and such distinguishing marks as the Election Commission may decide".

Under this rule, the Election Commission had decided that the ballot papers for the Parliamentary Constituencies should bear a green bar printed near the left margin, and that those for the State Assembly should bear a brown bar.

2. What happened in this case was that voters for the House of the People in polling stations Nos. 316 and 317 in Sobhapur were given ballot papers with brown bar intended for the State Assembly, instead of ballot papers with green bar which had to be used for the House of the People. The total number of votes so polled was 443, out of which 62 were in favour of the appellant, 301 in favour of the first respondent, and the remaining in favour of the other candidates. Now, Rule 47(l)(c) enacts that

"a ballot paper contained in a ballot box shall be rejected if it bears any serial number or mark different from the serial numbers or marks of ballot papers authorised for use at the polling station or the polling booth at which the ballot box in which it was found was used."

In his election petitions, the appellant contended that in accordance with this provision the ballot papers received at the Shobapur polling stations not having the requisite mark should have been excluded, and that if that had been done, the first respondent would have lost the lead of 174 votes, and that he himself would have secured the largest number of votes. He accordingly prayed that he might be declared duly elected.

3. The first respondent contested the petition. He pleaded that the Returning Officer at Sobhapur had rightly accepted the 301: votes, because Rule 47 was directory and not mandatory, and that further the votes had been accepted as valid by the Election Commission, and the defect, if any, had been cured. He also filed a recrimination petition under Section 97 of Act No. 43 of 1951, and therein pleaded inter alia that at polling station No. 299 at Malkajra and at polling station No. 371 at Bammangaon ballot papers intended for use in the State Legislature election had been wrongly issued to voters to the House of the People by mistake of the polling officers, that all those votes had been wrongly rejected by the Returning Officer, and that if they had been counted, he would have got l17 votes more than the appellant. He accordingly challenged the right of the appellant to be declared elected.

4. The Election Tribunal held by a majority that Rule 47(l) (c) was mandatory, and that the 301 ballot papers found in the box of the first respondent bearing the wrong mark should not have been counted; while the third Member was of the opinion that that rule was merely directory, and that the Returning Officer had the power to accept them. The Tribunal, however, was unanimous in holding that the result of the election had not been materially affected by the e