JUDGMENT

R. Dayal, J. - This is a petition under Article 226 of the Constitution. Trilok Chand the petitioner and Shanti Prasad respondent No. 2 were candidates for election to a seat in Ward No. 2 of the Municipal Board, Hapur. Shanti Prasad was declared elected as he secured 730 votes as against 729 secured by the petitioner.

2. The petitioner then filed an election petition challenging the election of Shanti Prasad. The Election Tribunal came to the conclusion that one vote cast in the name of Ram Chandra was wrongly and improperly admitted and that therefore each of the two candidate, actually secured an equal number of votes, namely 729. The Election Tribunal further came to the conclusion that it had power in such circumstances to decide the issue by lot and to declare that candidate elected in whose favour the lot was drawn. A lot was drawn accordingly, and it was in favour of Shanti Prasad. The Tribunal therefore declared Shanti Prasad duly elected. It is this order which Trilok Chand, the petitioner, desires to be quashed.

3. The main contention of the petitioner is that the Election Tribunal had no jurisdiction to determine the result of the election by drawing lots and that it ought, in the circumstances, to have directed lots to be drawn by the Returning Officer.

The powers of an Election Tribunal are to be found in Sec. 24 of the Municipalities Act, which, so far as is relevant, provides that:

"24 (1). Unless it is otherwise provided by rule made in this behalf the Election Tribunal shall have the same powers and privileges as a judge of a civil court, .................

(2) ....................

Sec. 25 of the Act is:

"25 (1) If the Election Tribunal after making such enquiry as it deems necessary finds in respect of any person whose election is called in question by a petition, that his election was valid, it shall dismiss the petition as against such person and may award costs at its discretion.

(2) If the Election Tribunal finds that the election of any person was invalid, or that the nomination paper of the petitioner was improperly rejected, it shall either -

(a) declare a casual vacancy to have been created, or

(b) declare another candidate to have been duly elected, whichever course appears, in the particular circumstances of the case, the more appropriate, and in either case, may award costs at its discretion."

4. The contention for the petitioner is that the Election Tribunal can pass such orders only as are contemplated by sec. 25 of the Act. This need not be disputed. This section provides for the final orders which the Election Tribunal has to pass as a result of its enquiry. The question, however, is whether the Election Tribunal can hold, on coming to the conclusion that each of the two candidates obtained the same number of votes at the election, that the election of the candidate declared elected was valid or invalid. If it cannot say so it cannot pass any of the orders contemplated by sec. 25 on the mere finding that each candidates had secured an equal number of votes. It cannot possibly say, if the Returning Officer's drawing a lot. It follows therefore that the enquiry which an Election Tribunal is expected to make is not complete at the stage of holding that the votes cast for both candidates are equal and enquiry must proceed further to find which of the two candidates should be given an additional vote for the purpose of determining whether the election of the candidate declared elected was valid or not. This it can do only by the drawing of lots, and on the analogy of the provisions of Rule 67 of the U.P. Municipalities (Conduct of Election of Members) Order, 1953 by holding that the candidate on whom the lot falls had received an additional vote at the election.

In Hari Vishnu Kamath v. Ahmad Ishaque, A.I.R. 1955 S.C. 233 the following observations are to be found at page 248:-

"Rule 47 (4) is important. It provides that the decision of the Returning Officer has to the validity of a ballot paper.