Provisions of Rule 19(c) applicable.

This is an application under Article 226 of the Constitution to quash the decision of the Election Commissioner in O.P.No.32 of 1952. The facts are not in dispute. On 16th September, 1952, elections were held for the Municipal Council, Nandyal. The petitioner and the first respondent herein and two other candidates contested the seat for Ward No.12. The petitioner got 280 votes, the first respondent 240 votes and the other two candidates far less and accordingly, the petitioner was duly declared elected. Thereupon, the first respondent, filed O.P.No.32 of 1952 before the Subordinate Judge of Kurnool who is the Election Commissioner under the Act for setting aside the election on various grounds. We are concerned in this petition with only one of them, that the Polling-officer entered on the ballot-papers the names of the electors and their serial number in the electoral list. Rule 27-A(1)(a) of the Election Rules is as follows:

“A ballot-paper shall be rejected if it bears any mark by which the elector can be identified.”

The contention of the first respondent, before the Election Commissioner was that in marking the ballot-papers with the names and the serial number of the electors the Polling-officer had violated the mandatory provisions of Rule 27-A (1)(a), that those votes ought accordingly to have been excluded from the count and that the reception of these votes by the Election Officer constituted a material irregularity by reason of which the election was liable to be set aside. It is to quash this decision that the present application for a writ of certiorari has been filed. Mr.P. Rama Reddi, the learned Advocate for the petitioner, concedes that there has been a breach of Rule 27-A(1)(a), but he contends that there is no definite finding that the result of the election had been affected thereby and that in the absence of such a finding, the election should not have been set aside. He relied on Rule 10(c) which is as follows:

"If in the opinion of the Election Commissioner the result of the election has been materially affected by any irregularity in respect of a nomination paper or by the improper reception or refusal of a nomination paper or vote or by any non-compliance with the provisions of the Act or the Rules made thereunder, the election of such returned candidate shall be void."

The contention is that it was not sufficient merely to prove that there was a breach of the Rules, but that it must further be established that the result of the election had been materially affected by such breach. On behalf of the respondent, certain passages in the judgment were referred to as amounting to a finding on the evidence that the electors had voted in fear of the petitioner and that the result of the election was materially affected thereby. But the finding in fact is that there was no threat by the petitioner and the conclusion of the Election Commissioner rests solely on the ground that there had been a breach of Rule 27-A(1)(a).

I agree with the contention of the petitioner that a breach of Rule 27-A(1)(a) does not ipso facto render the election void and that before it could be set aside it must be established that the result of the election had been affected thereby. In Woodward v. Sarsons1a Polling-officer in charge of one of the booths marked on the ballot-paper the number of the voters in the electoral list. It was held that these papers should not be counted and if counted by the Election Officer, they should be struck out by the Election Commissioner on scrutiny. Then the Court proceeded to count the other valid votes recorded in the several booths and held that even excluding the invalid votes, the result of the election had not been affected. In Mahabaleswarappa v. Ramachandra Row2the facts were that 322 ballot-papers had been marked by the Polling-officer with the numbers of the voters on the electoral rolls. All these votes were rejected by the Election Officer. Out of the remaining votes, the successful ca