JAGAT NARAYAN, J.—This is a petition under Art. 226 and 227 of the Constitution by one Ramdayal whose election as Sarpanch of the Bileta Panchayat was set aside by the Munsif of Rajgarh acting as a Tribunal under Rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960, (hereinafter referred to as the Rules) on an election petition filed by Jagdish, respondent No. 2.

2. The election of the Sarpanch took place on 16-12-60. Ramdayal and Jagdish respondent No. 2 were the only two candidates. As a result of the election both of them polled equal number of votes. Thereupon the Returning Officer drew lots as provided under R. 40 and declared Ramdayal as duly elected. Against his election Jagdish filed an election petition. The learned Munsif held that ballot paper No. 10995 which had been counted as a valid vote in favour of Ramdayal petitioner was invalid as the mark on it against the name of Ramdayal was made with a seal containing the figure "8" instead of a cross mark. He was of the opinion that a ballot paper so marked was not in conformity with the Rules and was liable to rejection under R. 39(1).

3. Rule 30(1) which prescribes the manner of marking a ballot paper runs as follows:

"An elector shall,, on receiving the ballot paper issued to him under rule 28, forthwith proceed to the polling compartment, there mark his ballot paper by affixing a seal containing a cross mark(X) opposite the name and symbol of the candidate in whose favour he desires to cast his vote, fold up the ballot paper thus marked so as to conceal his vote and put the ballot paper, so folded up, into the ballot box which shall be placed within the view of the polling officer.

4. Rule 39 relating to rejection of ballot paper runs as follows: —

"Rejection of ballot paper—(1) A ballot paper shall be liable to rejection—

(i) if it bears any mark by which the elector can be identified,

(ii) if the number of votes recorded thereon exceeds the number of panchas to be elected,

(iii) if no vote is recorded thereon,

(iv) if the ballot paper or the vote recorded thereon is void for uncertainty, or

(v) if it is otherwise not in conformity with rules.

(2) No ballot paper shall be rejected other wise than on any of the grounds enumerated in sub-rule (1).

(3) The Returning Officer shall record on every ballot paper which he rejects a brief state ment of the reasons for such rejection.

(4) The decision of the Returning Officer as to the validity or otherwise of the ballot paper shall be final."

In my opinion only the first four sub-clauses of R. 39(1) deal with defects arising out of the marking of the ballot paper by the voter and sub-clause (v) does not deal with any defect in marking it, but deals with the defects in the ballot paper itself as issued to the voter by the Polling Officer. Rule 20(4) prescribes that the ballot paper shall be in Form III in Hindi written in Devnagri script and shall be serially numbered in books each containing one hundred serially Numbered ballot paper. If the ballot paper does not conform to the requirements laid down in this sub-rule then alone it can be said that the ballot paper is not otherwise in conformity with the Rules. If sub-clause (v) had been intended to cover all noncompliances with the Rules whether arising out of a defect in marking the ballot paper or not there would have been no necessity of adding sub-rule(2) of the Rule 39 which lays down that no ballot paper shall be rejected otherwise than on any of the grounds enumerated in sub-rule(1). The addition of this sub-rule makes it further clear that if the ballot paper itself is defective it shall be rejected, but if there is a defect in making it by the voter then it shall only be rejected if it falls under the first four sub-clauses of sub-rule 39(1), namely if it bears any mark by which the elector can be identified, if the number of votes recorded thereon exceeds the number of panchas to be elected, if no vote is recorded thereon or if the vote recorded thereon i

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