CHEBROLU HONUMAYYA Vs. METTU CHINNA MALLA REDDI
HIGH COURT OF MADRAS
METTU CHINNA MALLA REDDI
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Govinda Menon, J. -
(1.) This is an application for the issue of a writ of certiorari to quash the order of the Election Commissioner, Guntur, dated 5-8-1953 in O. P. No. 114 of 1052. The petitioner before me hereinafter known as the "petitioner" was the first respondent in the court below and the contesting respondent hereinafter known as the "respondent" was the petitioner in the court below. There was an election to ward No. 2 of the Guntur municipality in which the petitioner and the respondent were the rival candidates. The petitioner secured 362 votes whereas the respondent secured only 351 votes. On an election petition filed by the respondent, the election commissioner found that 40 votes cast for the petitioner contained marks by which the elector can be identified and 6 votes cast in favour of the respondent similarly contained marks by which the elector can be identified. He held that these votes were hence invalid and should not be counted. Deducting them from the respective votes obtained by the candidates it was seen that the petitioner secured only 322 votes whereas the respondent secured 345. A further question was raised before him as to whether the respondent should be declared to have been duly elected. On that the learned election commissioner found that 40 votes cast in favour of the petitioner were invalid by reason of a mistake committed by the polling officer and as the majority of the voters in the constituency have voted for the petitioner it was his ill-luck that the polling officer committed this mistake. He therefore considered that the proper course was to order a fresh election and ordered accordingly.
(2.) It is cor tended by Mr. M.K. Nambiar for the petitioner that the order of the election commissioner is without Jurisdiction & that he should not have discarded the 40 votes on which there were marks. The main ground of attack is based upon the interpretation of Rule 27-A (1) of the rules for the conduct of elections of municipal councilors. Rule 27-A as at present reads as follows:
"(1) A ballot paper shall be rejected if it (a) bears any mark by which the elector can be identified: ...... (4) The decision of the Election Officer as to the validity of a ballot paper shall be final, subject only to reversal on an election petition."
(3.) The old rule which was supplanted by rule 27-A (1) was in the following terms:
"Any ballot paper which is not duly marked or on which is not duly marked or on which votes are given to more candidates than there are numbers to be elected or on which any mark is made by which the electors may 'afterwards be identified' shall be invalid". Mr. Nambiar contends that since the word afterwards in the old rule has been omitted there has been a material change in the legislative directive given for deciding the validity of the votes. He also argues that in the old rules the words used are "shall be invalid" which means that the invalidity can be found out at any time. But in the new rule the words used are "shall be rejected" which would mean that the act of acceptance or rejection should take place at the time of counting and not thereafter and this is made clear by Sub-rule (4) which is to the effect that "the decision of the election, officer as to the validity of a ballot paper shall be final." Prom these words, Mr. Nanibiar argues that objection as to the receiptability or otherwise of a Vote should be specifically raised at the time of counting and if that was not done, it cannot be raised at a later stage for if no objection is taken at the time of counting then the election officer is deprived of the opportunity of deciding the validity or otherwise' of the election and if he does not make any decision on a point by reason of the fact that it was not raised before him it could not be raised later on.;
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