JUDGMENT

D.S. Mathur, J. - This is an appeal by Nanak Chand against the order of the District Judge of Etah dismissing with costs the election petition moved by him to challenge the election of Vachaspati as Adhyaksha of the Zila Parishad. 25-11-1963 was notified as the date for filing nomination papers, 28-11-1963 for the withdrawal of the nomination and 7-12-1963 for the poll. "Nanak Chand, petitioner, and Vachaspati and Jodh Singh, respondents Nos. 1 and 2, were the rival candidates for the office of the Adhyaksha. Counting of votes was done the same day, but the result was not immediately declared on account of a stay order passed by the High Court. It was on 3-1-1964, after the decision of the writ petition, that the result of the election was declared and Vachaspati, respondent No. 1, was declared elected. Respondent No. 1 had secured 34 first preference votes, the petitioner 30 first preference votes and respondent No. 2 four first preference votes. Respondent No. 2 having obtained the minimum number of first preference votes was excluded and the second preference votes of electors, namely the members of the Zila Parishad, who had voted for him, were transferred to the other candidates. One of these four members had not given his second preference, and hence his ballot paper was declared as exhausted. The other three second preference votes were transferred to the petitioner. In the ultimate result of the counting the petitioner secured 33 votes and respondent No. 1 34 votes. Consequently, Vachaspati, respondent No. 1, was declared elected.

In the election petition the petitioner prayed that the election of respondent. No. 1 be declared void and the petitioner he declared to have been duly elected as Adhyaksha of the Zila Parishad. The election of respondent No. 1 was challenged on two main grounds: firstly, that three invalid ballot papers which deserved to be rejected had been counted for him and secondly, that respondent No. 1 had indulged in many corrupt practices. Details of the corrupt practices shall be given later.

The petition was opposed by respondent No. 1, who denied all the allegations and naturally pleaded that there was no mistake in the counting, nor in the admission of the ballot papers.

From the facts brought to the notice of the Court it was evident that a vote of non-confidence was eventually passed against respondent No. 1 and he ceased to function as Adhyaksha and that thereafter there was fresh election of the Adhyaksha and Nanak Chand, petitioner, was in this election, declared to have been duly elected. His election has been challenged in another proceeding. The present appeal, in one way, became in fructuous, but the petitioner wanted the appeal to be heard on merits so that if the election petition was allowed and he was declared to have been duly elected, the subsequent proceedings including the second election and also the election petition pending may become in fructuous and he be in a position to function as Adhyaksha and no one may be able to challenge his election as such. In these circumstances, the Court considered it necessary to decide the appeal on merits.

The three ballot papers the validity of which had been challenged by the petitioner are ballot papers Nos. 32, 71 and 53. Rule 25 (3) of the Uttar Pradesh Zila Parishads (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1963. governs the rejection of ballot papers. This rule runs as below: -

"A ballot paper shall be rejected as invalid on which -

(a) the number 1 is not marked; or

(b) the number 1 is marked opposite the name of more than one candidate or is so marked as to render it doubtful to which candidate it is intended to apply; or

(c) the number 1 and some other numbers are marked opposite the name of the same candidate; or

(d) any mark is made by which the voter may afterwards be identified."

On ballot paper No. 32 the number 1 has been written in the appropriate column opposite the name of res