Jurisdiction of Election Commissioner to declare a candidate elected by casting lots where there is equality of votes.

Elections were held for the 16th Ward of the Kancheepuram Municipality on 10th October, 1955. There were five candidates, the petitioner, the 1st respondent and respondents 3 to 5. The votes were counted on 12th October, 1955, by the Election Officer. The Election Officer held that the petitioner had obtained 320 votes as against 319 votes counted in favour of the 1st respondent. The Election Officer declared the petitioner duly elected. The 1st respondent challenged the validity of that declaration in O. P. No. 119 of 1955.

One of the questions at issue was, how the tendered votes should be treated. The Election Commissioner came to the conclusion that the votes tendered by P. Ws. 1, 4 and 5 should be counted, as they were the real voters. Of these, one vote went to the 1st respondent, with the resulting position of equality of votes between the petitioner and the 1st respondent, each with 320 votes.

The Commissioner thereupon proceeded to decide by casting lots who, as between the petitioner and the 1st respondent, should be declared elected. The 1st respondent won, and a declaration to that effect was issued. It was the validity of that declaration that the petitioner challenged by his application under Article 226 of the Constitution for the issue of a writ of certiorari.

The Election Commissioner purported to exercise an inherent power in the absence of any specific provision in the rules for the determination of election disputes. The Election Commissioner was of statutory creation, and, as his powers had to be sought within the four corners of the Statute and the statutory rules which brought the Tribunal into existence, the Election Commissioner could claim no inherent power and I do not understand the learned counsel for the 1st respondent to urge that apart from the rules any inherent power could be claimed by the Election Commissioner.

While rule 33 of the rules for the conduct of elections of Municipal Councils specifically provides for determination by lot to be cast by the Election Officer as to who should be declared elected, where there was an equality of votes, no such specific provision has been made in the rules for the determination of election disputes. Under rule 11 of the rules for the determination of election disputes the Election Commissioner has jurisdiction to declare the election of the returned candidate void. In this case it was the petitioner that had been declared elected on the basis, that he had secured more votes, one more vote than the 1st respondent. That basis failed, when the tendered votes were taken into account. As the petitioner had not secured a majority of votes, his election was liable to be set aside, and the Election Commissioner had jurisdiction to set it aside under rule 11(1).

Rule 11(2) no doubt empowers the Election Commissioner to declare any other party to the petition to have been duly elected. But that does not give the Election Commissioner the power to determine by lot who, as between the petitioner and the 1st respondent, should be declared elected.

Learned counsel for the 1st respondent urged that rule 33 of the rules for the conduct of elections was only a rule for counting votes. He relied upon the statutory principles embodied in sections 65 and 102 of the Representation of the People Act (XLIII of 1951), and said that casting lots would really mean adding one more vote and no more. It may not be permissible to import the specific statutory provisions in the Representation of the People Act into the statutory rules framed for the decision of election disputes under the District Municipalities Act. As I said, the Election Commissioner could claim no inherent, power. He could claim only the powers specifically conferred upon him, and these powers do not include the power to determine who should be declared elected by casting lots. I am unable to accept the contention of the learned counsel for the 1st respondent, that rule 33, which specifically empowered the Electi