In the absence of a specific provision in the Andhra Pradesh Gram Panchayats Act or in the Rules framed thereunder enabling an Election court to decide by lot in the event of its decision resulting in an equality of votes between candidates, the Election Tribunal is correct in ordering a fresh election.

( 1 ) THE first point that calls for decision in this Writ Petition is whether the Election Tribunal was right in holding that three ballot papers marked as Exhibits A-2, A-3 and A-4, had been improperly rejected by the Election Officer. At the election for Thimmapuram Gram Panchayat, which was held on 29th may, 1964, the writ petitioner P. Venkateswarlu, and the first respondent Jampani raghavaiah, contested for membership of the second ward. After the poll and as a result of the counting, the Election Officer found that the petitioner had secured 82 votes while the first respondent had secured 79 votes. But this result was arrived at by the Election Officer rejecting some votes including the three ballot papers marked as Exhibits A-2, A-3 and A-4, which according to the first respondent, were cast in his favour. On the above reckoning, the Election Officer declared that the writ petitioner was duly elected to that ward. Issue No. 2 in the election petition was whether the rejection of four votes polled in favour of Jamjpani raghavaiah were invalid. It may be mentioned here that not only these three ballot papers, Exhibits A-2, A-3 and A-4 but also another ballot paper, Exhibit a-1, had been rejected by the Election Officer.

( 2 ) THIS question was essentially one of fact to be determined on an appreciation of the evidence adduced before the Tribunal. The Tribunal has discussed this question in paragraph 6 of its order and it reads as follows :"howeverthe point for consideration is whether the 4 rejected votes, Exhibits A-1 to A-4 were improperly rejected. Sri Basireddy (Election Officer) was not examined by either of the parties. He is not also made a party to the proceeding. By the feature of marking as we find on the ballot papers read in the light of rule 33 of the Gram Panchayat Rules and the instructions issued with regard to the counting we have to find out whether the ballot papers Exhibits A-1 to A-4 were improperly rejected. The broad principle deducible from these rules and the instructions is to see if by the position of the original mark the intention of the voter is clearly inferable and that if the intention of the voter is inferable, the ballot paper should not be rejected, even though it contains some other marks other than those from which the voter can be identified. Instruction 17 deals with the circumstances when a ballot paper should be rejected and when it should not be rejected. We have to scrutinise now closely the ballot papers in question. Out of the four ballot papers, in 3 ballot papers Exhibits A-2 to A-4 the original marks appear to have been clearly put in the column allotted to the petitioner. The original mark though filled with full ink is in a round shape denoting thereby that the voter intended to exercise his vote in favour of the petitioner. NO doubt, in these 3 ballot papers we find slight but unidentifiable marks with the same ink as that used for the original marking in the other column. But these marks occurred obviously in the handling of the ballot paper by the ignorant voter. The ridges of the thumb are not clear. Therefore they cannot be said to be identifiable marks. Therefore it must be held that the rejection of these 3 ballot papers was invalid. In the other ballot paper, Exhibit A-1, it is difficult to say where the original mark is intended to be put as we do not find a round shaped mark in either of the 3 places where the mark is put. The 3 marks are irregular in shape though no doubt, of the 3 marks one on the symbol of the petitioner is comparatively speaking not so irregular in shape. No doubt, it can also be said that on account of intake of excessive ink, the ink after putting the mark, might have spread to the sides making it irregular. In the same way the ink used for putting the mark in the column of the first respondent might have also spread so much so that it cannot be said definitely now as to what the intention of the voter wis. Therefore the r