BY THE COURT-This. is a special appeal under sec. 18 of the High Court Ordinance, 1949 against the judgment of a learned single Judge dated 22nd July, 1966 passed in S. B. Civil Writ Petition No. 882 of 1965.

2. The facts giving rise to this appeal may be stated as follows—

The election for the office of Sarpanch Gram Panchayat, Nanagal Raja-watan, District Jaipur, took place on 1-1-1965. Initially three persons filed their nomination papers but the nomination paper of one Badri was rejected with the result that Dhanpat Lal appellant and Harisingh respondent remained in the field. Dhanpatlal secured 395 votes whereas Harisingh secured 397 votes and 55 votes were declared to be invalid. Consequently Harisingh was declared duly elected by the Returning Officer. Thereafter Dhanpatlal and Chhajuram filed separate election petitions in the Court of Munsif-Magistrate, Dausa under R. 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 (hereinafter called "the Rules") challenging the validity of the election of Harisingh. Chhaju Ram withdrew his election petition and therefore the election petition filed by Dhanpat Lal was proceeded with. The main ground, taken in the election petition was that Dhanpatlal had secured more votes than Harisingh. His contention was that some of the votes which had been cast in his favour had been wrongly rejected by the Returning Officer and so also a few votes had been wrongly counted in favour of Harisingh. The learned Munsif recounted the votes and found that Dhanpatlal had got 401 valid votes as against 399 secured by Harisingh. Thus the learned Munsif allowed the election petition set aside the election of Harisingh and declared Dhanpatlal to have been duly elected as Sarpanch.

3. Aggrieved by the decision of the Election Tribunal i.e. the learned Munsif, Dausa, Harisingh filed writ petition before this Court for getting the order of the Tribunal quashed.

4. The only point which was agitated before the learned single Judge was that 5 ballot papers Nos. 543903, 534650, 534843, 534843, 534875 and 534668, out of which the first four had been marked for Harisingh and the last one in favour of Dhanpatlal, had been wrongly rejected. The learned single Judge after considering the arguments pro and con came to the conclusion that the aforesaid five ballot papers even though marked on the reverse were valid and came to the conclusion that Harisingh had secured 403 votes as against 402 votes secured by his rival Dhanpatlal. In this view of the matter he set aside the order of the Tribunal and held that Harisingh had been rightly declared by the Returning Officer as Sarpanch. Dhanpat Lal has, therefore, filed this appeal.

5. The question of law for our determination is whether the marking on the back of the five ballot papers mentioned above is against law and therefore these ballot papers should not have been taken into consideration.

6. For a correct decision of this question, it would be necessary to refer to the relevant provisions of law on the subject. R. 30 of the Rules deals with the manner of casting votes. It runs as under —

"30. Manner of casting votes:—(1) 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 or on the name or 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.

(2)....... ......

Rule 39 Rejection of ballot papers:

(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 v

Click Here to Read the rest of this document