Result of election held illegal.

S. Ramachandra Iyer, C.J.

1. This appeal which concerns the validity of an election to the office of the Chairman of Sircar Samakulam Panchayat Union Council, Coimbatore District reveals a perversity of procedure at the election. The appellant and the first respondent were the rival candidates for the Chairmanship of the Union Council, The election to that office was held at a meeting of the Council held on 24th April, 1962 under the presidency of the Revenue Divisional Officer, Coimbatore. The voting was by secret ballot and of the thirteen votes recorded one was found to be invalid, and the remaining twelve votes were equally distributed between the contesting candidates each securing six votes. Lots were drawn to decide the tie; the chit containing the name of the first respondent Was drawn. Nevertheless the Revenue Divisional Officer (who was the Returning Officer) declared the appellant as elected. This is somewhat a startling procedure which was sought to be justified on the ground that prior to the drawing of lots the Returning Officer had declared at the commencement of the process of drawing lots that the person in whose favour the lot fell should be eliminated and that he whose name was not drawn should be declared elected. It is the case of the appellant, and this is supported by an affidavit from the Revenue Divisional Officer that the latter before proceeding to draw the lots had announced that this was the procedure to be followed. We do not see how an affidavit of this kind could be treated as evidence. We are however prepared to assume for the purposes of this case that the appellant's version is correct.

2. The election was challenged by the first respondent who further prayed that as his name was drawn he should be declared as duly elected as Chairman of the Union Council. The Election Commissioner (District Munsif), Coimbatore, took the view that it was open to the Returning Officer who presided over the meeting convened for the purpose of election, to adopt any method he liked for ascertaining the result by casting lots; he held that the election was valid. This order was, however, quashed by Jagadisan, J., under Article 226 of the Constitution. The learned Judge gave a further direction to the Election Commissioner to restore the election petition to his file and dispose of it in accordance with law. The main point for consideration in this appeal is whether it will be open to the Returning Officer to adopt any procedure different from the accredited or prescribed one for ascertaining the result of the election where there is equality of votes between the rival candidates. Jagadisan, J., has explained the background of the procedure that is generally adopted in deciding the election in the case of equality of votes in the following words:

A tie between the candidates caused by equality of votes results in a stalemate. Neither of them can be declared elected. A fresh election would involve time, labour and money and there is no certainty that there will not be a tie again. Some device has to be adopted to declare one of them as elected. Invariably a special rule is prescribed to govern such a situation. The Returning Officer must forthwith decide between the tied candidates by lot and proceed as if the candidate on whom the lot falls had received an additional vote. In England under Section 2 of the Ballot Act, 1872 (now repealed) the Returning Officer could give a casting vote either orally or in writing when an equality of votes is found. But now under the present law, the decision has to be by lot. The candidate on whom the lot falls should be deemed to have received the additional votes.

To put it briefly, the decision of the result by mere count of votes having proved ineffectual to ascertain the verdict of the electorate, a law prescribes another mode, a decision by change to resolve the tangle. Casting of lots is a favourite device adopted in elections to secure the chance decision. Normally the