- (1.) BY this petition under Arts 226 and 227 of the Constitution of India, the three petitioners pray that an appropriate writ or direction be issued declaring applicant No. 2 as validity elected to one of the two general seats and the order of the Opponent No. 6 declaring Opponent No, 1 as elected be quashed.
(2.) THE facts in brief are: an election was held for electing three representatives from Ward No, II of village Karjal in Taluka Akkalkot to a village panchayat by name Karjal-Halhauli Group Grampanchayat. Two out of the three representatives that were to be elected were for the general seats and one for the seat reserved for scheduled caste. For the two general seats four candidates contested, viz. , Dajiba Gurunath Gavane, Somshankar Shivlingappa Swami, petitioners Nos. 1 and 2 before us, and Sangappa Sharnappa Patil and Shivbasappa Shiddappa Tambrke, opponents Nos. 1 and 2 before us. Petitioner No. 3 Vithal Babu Hotkar and opponent No. 3 Irappa Sharanappa Ingale, were the two contesting candidates for one reserved seat reserved for the Scheduled Castes. Respondent No. 4, who had been the returning Officer, after counting he votes declared that Dajiba Gurunath Gavane petitioner No. 1 had secured 105 votes, Somshankar Shivilingappa Swami, petitioner No, 2 had secured 94 votes. Sangappa Sharanappa Patil, opponent No, 1 had secured 93 votes, and Shivbasappa Shiddappa Tambrke, Opponent No. 2 had secured 73 votes. He therefore, declared Dajiba Gurunath and Somshankar shivlingappa as having been elected representatives for the general seats. As regards the representatives for the reserved seat, the Returning Officer declared that petitioner No. 3 Vithal Babu Hotkar had secured 92 votes and Irappa Sharanappa Ingale, opponent No,. 3 had secured 86 votes. ON this basis he declared petitioner No. 3. Vithal Babu Hotkar, as successful candidate representing the reserved seat. It may be stated that at the counting of the votes 23 ballot papers were challenged on the ground that the voters had made on these ballot papers more than one mark against the same candidate. The contention was that by making more than one had cast more than one vote in favour of one candidate and that rendered the ballot paper void. It appears that this objection was sustained by the Returning Officer in respect of 18 ballot papers, but was rejected in respect of five ballot papers bearing Nos. 25, 47, 105, 146 and 189. The aforesaid result has been declared after rejecting 18 ballot papers on the aforesaid ground.
(3.) NOW opponent No. 1 alone challenged the election on various grounds. It is necessary to state that opponent No. 1 was a candidate only for the general seat. Though the election has been challenged by opponent No. 1 Sangappa Sharanappa on various grounds only on contention raised on his behalf had been accepted by respondent No. 6 who heard the election petition. In he recounting it was found that in the aforesaid five ballot papers, viz. , 25, 47, 105, 146 and 189 there were double marks put by the voters against one and the same candidate. the actual marking has been described in the following terms in paragraph 17 of the order of respondent No. 6: "the ballot paper No. 025 has double marks on three symbols namely bullock umbrella and bicycle. The voter has exercised votes for 3 candidates. The ballot paper No. 047 had double marks on three symbols namely lion, motor and tiger. There are no marks on other symbols. The ballot paper No. 105 bears single marks on symbols motor and tiger and double marks on symbol lion. The ballot paper No. 146 has single marks in the space of motor and tiger and double marks in the space of umbrella. The ballet paper No. 189 bears single marks on bullock and lion and double marks on motor. " It was contended on behalf of opponent No, 1 that these five ballot papers have been wrongly accepted to be double marks against the name of one candidate amounting to giving more than one vote to a single candidate, which was prohibited by law and that rendered the ballot papers invalid. It appears that this contention found favour with the learned Judge and he held that these five ballot papers were wrongly rejected. This is how the material part of respondent No. 6's order reads: ". . . . . It can also be said that the voter gave more than one vote to a single candidate, by making a double mark on each symbol. which is forbidden by R. 23 (i ). Moreover, every double mark has two distinct marks. It cannot be said that the first mark was indistinct and so the voter made the other mark on the same symbol. This holds good to all the ballot papers in question. Therefore, the Returning Officer has accepted and counted wrongly the ballot papers Nos. 025, 047, 105, 146 and 189, which should have been rejected. In my opinion these five ballot papers should be rejected and cancelled. " Respondent No. 6 also in support of his conclusion had observed: that rejection of the 18 ballot papers by the Returning Officer was on the very ground , viz. , that these ballot papers had double marks against the same candidate or on the symbol of the same candidate. According to respondent No. 6, there had been no distinction between these 18 ballot papers, which had been rejected by the Returning Officer and the aforesaid 5 ballot papers, which had been accepted by him. In the result in re-counting respondent No. 6 had rejected all 23 ballot papers. After rejecting these 23 ballot papers and on recounting the votes respondent No. 6 declared that the successful candidates from ward No. II were: Dajiba Gurunath Gavane (Petitioner No. 1 before us) and Sangappa Sharanappa Patil (Opponent No. 1 before us ). While Somshankar Shivlingappa Swami (Petitioner No. 2 before us) was declared to have been defeated at the election. In short the difference between the result declared by the Returning Officer, Opponent No. 4 and the result declared by Opponent No. 6 on recounting in the election petition, is that instead of petitioner No. 2 Somshankar Shivlingappa Swami, opponent No. 1 Sangappa Sharnappa Patil has been declared as a successful candidate. The original declaration of Dujiba Gurunath, being the successful candidate, was not in any way affected by the result declared by respondent No. 6. Thus this order of respondent No. 6 is being challenged by all the three candidates who had been originally declared successful by respondent No. 4 As we have already stated there was no challenge to the declaration of the successful candidate for the reserved seat, we are not concerned with the declaration of the successful candidate for the reserved seat. The only question we have to consider is whether more than one mark against the same candidate or on the symbol representing that candidate amounts to casting more than one vote in his favour. If that be the position then clearly the ballot paper is bad and void and must be rejected but on the other hand is putting more then one mark as aforesaid did not amount to casting more than one vote in favour of any one candidate then the ballot papers are good and valid and respondent No. 6 was clearly in error in rejecting the aforesaid 23 ballot papers. When the matter once came up for hearing at the request of the counsel for the parties all the aforesaid 23 ballot papers were sent for and they have been produced in Court.;