Mootham, C.J. - (1.) THIS is a petition Under Article 226 of the Constitution.
(2.) AN election for members of the Municipal Board from Ward No. 4, Ujhani, in the district of Budaun, was held on 15 -10 -1957. Ward No. 4 is a three member constituency and as a result of the election the Appellant was third securing 490 votes and the third Respondent fourth with 480 votes. The Appellant was accordingly declared to be one of the three successful candidates. The third Respondent then filed an election petition in which he challenged the validity of the election of the Petitioner on a number of grounds; in particular he contended that certain votes in his favour had been wrongly rejected by the Returning Officer and that other votes counted in favour of the Petitioner ought to have been rejected. The Election Tribunal scrutinised the disputed ballot papers and came to the conclusion that on a correct count the Petitioner and the third Respondent had each secured 292 votes. The Tribunal further held that in these circumstances it had no alternative but to set aside the election of the Petitioner and to declare a casual vacancy and an order to this effect was made by the Tribunal on 2 -12 -1958. The Petitioner then filed the petition which is now before us. The submissions made on behalf of the Petitioner are two in the first place it is contended that one or more of the votes counted by the Tribunal as a vote for the third Respondent ought to have been rejected; and secondly that, assuming that the Petitioner and third Respondent secured the same number of votes, the Tribunal should have decided the matter by drawing lots.
(3.) WITH regard to the first of these submissions, learned Counsel for the Petitioner ultimately abandoned his challenge to the correctness of the Tribunal's findings except as regards two ballot papers, Nos. 1322 and 403. Each of these ballot papers admittedly bore four marks and it is the Petitioner's contention mat in view of the provision of Rule 64 of the U.P. Municipalities (Conduct of Election of Members) Order, 1953, these ballot papers were necessarily invalid. That rule, so far as it is relevant, provides that - - 64. (1) The Returning Officer shall reject a ballot paper (f) if votes are given on it in favour of more candidates than there are members to be elected. (2) A vote recorded on a ballot paper shall be rejected if the mark indicating the vote is placed on the ballot paper in such manner as to make it doubtful to which candidate the vote has been given.;