The burden of proof is on the petitioner to establish grounds for declaring the election void.

1. Challenging the order, dated 01.08.2008 made in E.O.P.No.310 of 2006 on the file of the Principal District Munsif Court, Coimbatore, this Civil Revision has been preferred.

2. The petitioner and the respondents 1 to 3 herein contested in the local body election for the post of President of Ambothi village panchayat, Avinashi Taluk within the Annur Panchayat Union. The first respondent herein was declared elected by the Election Officer, P.W.4. Challenging the same, subsequently, the petitioner herein filed the petition under Sections 258 and 259 of the Tamil Nadu Panchayats Act 1994 r/w Rules 122 and 123 of the Tamil Nadu Panchayat Election Rules, 1995.

3. Mr.R.Jayaprakash, learned counsel appearing for the petitioner submitted that the first respondent, Tmt.Muthuselvi Ravikumar was declared as winning candidate securing 496 votes, while the petitioner herein, according to the Election Officer, secured only 495 votes. Learned counsel for the petitioner further contended that the first respondent was declared elected by one vote in excess of the votes secured by the petitioner herein. The main ground raised by the learned counsel appearing for the petitioner is that as per record, 250 voters were polled in Ward No.3, however, while counting 249 votes alone were found, though that was brought to the notice of the fourth respondent, Election Officer, no action was taken by him. The petitioner as well as the first respondent raised their objection, but the Election Officer, without intimating the same to the fifth respondent, District Collector, declared the first respondent as winning candidate. Learned counsel appearing for the petitioner also drew the attention of this Court to Section 259 (1) (b) of the Tamil Nadu Panchayats Act, 1994 (herein after referred to as Act) and rule 62 of the Rules framed thereunder and contended that the election officer had not followed the mandatory provisions.

4. It is seen that Section 259 (1) of the Act stipulates the grounds for declaring election to be void for violation of certain mandatory provisions of the Act and the Rules. As per Section 259 (1) (d) (iv), subject to the provisions of sub-section (2), if the District Judge is of the opinion that the result of the election in so far as it concerns a returned candidate has been materially affected by the non-compliance with the provisions of this Act or of any rules or orders made thereunder, the court shall declare the election of the returned candidate to be void.

5. According to the learned counsel appearing for the petitioner, the fourth respondent, Election Officer has not followed the mandatory procedures, as contemplated under Rule 62 of the Act, relating to destruction or loss of ballot papers at the time of counting. He has further contended that as per Rules 62 (1) and (2) (a), if at time before the counting of votes as completed, ballot papers used at a polling station were unlawfully taken out of the custody of the Returning Officer or accidentally or intentionally destroyed or lost or damaged or tampered with to such an extent, the result of the polling station could not be ascertained, the Returning Officer shall forthwith report the matter to the District Election Officer and the State Election Commission. There upon, the District Election Officer shall take all material circumstances into account and the counting of votes be stopped or declare the poll at the polling station void, appoint a date and hour for conducting fresh poll for the polling station and notify the date so appointed and hour so fixed in such a manner as he may deem fit.

6. Per contra, Mr.Govi Ganesan, learned counsel appearing for the first respondent submitted that there was no illegality or material irregularity in the procedure being followed by the respondents 4 to 6 declaring the first respondent herein as the winning candidate in the election.

7. Learned counsel appearing for the first respondent submitted that Rules 62 (1) and 2 (a) a