JAGAT NARAYAN, J. - (1.) THIS is an appeal by one Mohammad Ismail whose election to the Kotah Municipality was set aside by the District Judge, Kotah, on an election petition file by 10 electors under sec. 19 of the Rajasthan Town Municipalities Act, 1951.
(2.) THE general election to the Kotah Municipality took place on 26. 7. 59. THE nomination papers of four candidates who stood for election from the Chandghate South Ward were accepted by the Returning Officer. THEse candidates were Mohammad Ismail Kishanlal, Insaf Ali and Mohammad Hussain. Kishanlal subsequently withdrew from the contest. According to the result of the election declared on 27. 7. 59 Mohammad Hussain polled 408 valid votes and Mohammad Ismail polled 411 valid votes. Mohammad Ismail was accordingly declared elected. Against his election the present election petition was filed by 10 of the electors under sec. 19 of the Rajasthan Town Municipalities Act 1951. THE four candidates were impleaded as respondent Nos. 1 to 4. Mohammad Ismail contested the petition. THE learned District Judge allowed the petition holding that six ballot papers Nos. 1142, 1272, 1279, 1313, 1332 and 1333 were improperly rejected by the Returning Officer. THE ballot papers were counted as valid votes for Mohammad Hussain who was accordingly declared as duly elected. Against the decision of the learned District Judge the present appeal has been filed. It has been contested by Mohammad Hussain. Several grounds were taken in the election petition. Only the following two grounds are related at this stage : (1) that ballot papers of six electors named above who had voted for Mohammad Hussain were improperly rejected. (2) that the nomination paper of Mohammad Ismail which was admittedly less than 15 clear days before the date fixed for election was improperly accepted by the returning officer in contravention of R. 15 of the Rajasthan Town Municipal Election Rules 1951 and that the result of the election was materially affected thereby. Taking the first point first the name of Insaf Ali appeared on the top of the ballot paper followed by the names of Mohammad Ismail and Mohammad Hussain. There were ruled horizontal compartments provided on the ballot paper for each candidate. These compartments were divided into four columns, Column No. 1 contained the serial number of the candidate, column No. 2 contained his name, column No. 3 contained his symbol and column No. 4 was left blank for putting the voter's mark. In the instructions printed on the ballot paper the voter was required to place a cross mark in column No. 4 against the name and symbol of the candidate for whom he wanted to vote. These horizontal compartments were open on both sides. But they were closed towards the top and the bottom by lines. In four of the ballot papers which were counted by the learned District Judge as valid votes for Mohammad Hussain there was a mark outside the compartment of Mohammad Hussain below the column in which his symbol was printed. In two of them there was a cross mark outside Mohammad Hussain's compartment below the column provided for marking the vote. The reasoning given by the learned District Judge for counting these ballot papers as valid votes for Mohammad Hussein is in these words: - "in my opinion the position of the mark on the ballot paper is not material and even where the cross is put outside the space intended for it, it is a good vote so long as there is clear indication that the elector intended to vote for a particular candidate. . . . . . . . . . . If the cross mark made in the present case is examined it would be clear that the cross mark in the four ballot papers appears below the compartments provided for Mohammad Hussain. There is no other compartment of any other candidate by the side or below or adjacent to the cross mark made by the elector. In these circumstances what could be the intention of the maker of the mark exce pt that he intended to vote for the candidate below whose compartment he had put the mark. " Similar reasoning was given by the learned District Judge for the other two ballot papers in which instead of a cross mark the voters had made different marks. Extracts from the Rajasthan Town Municipal Election Rules 1951 relevant to the point now under consideration are given below: - Rule 28 - "the procedure for recording each voter's vote shall be as follows:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (v) The voter after making a cross in column of the voting paper against the names of any candidates for whom he wishes to vote. . . . . . (shall) put it into the ballot box; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " Rule 33 - "a ballot paper shall be rejected -. . . . . . . . . . . . . . . (b) if there are marks against the names of more candidates than there are vacan cies to be filled; or (c) if no mark is made against the name of any candidate; or (d) if, for any reason, it is not certain for which candidate or candidates the elector in tended to vote; or. . . . . . . . . . . . " A reading of R. 33 shows that cls. (c) and (d) are not mutually exclusive and a ballot paper cannot be rejected for any irregularity in marking it if it is certain for which candidate the elector intended to vote. But if the elector puts a mark below or above the compartment of the candidate, in my opinion it cannot be said with certainty that he intended to vote for the candidate below or above whose compartment he puts the mark. Mohammad Hussain's name happens to be last name on the ballot paper. If any candidate had put a mark below the compartment of Mohammad Ismail his vote would have been counted as a vote for Mohammad Hussain, the mark being in his compartment. It could not have been argued that because the mark was below the compartment of Mohammad Ismail it should be treated as vote for Mohammad Ismail. This shows that the reasoning of the learned District Judge that because the mark was below the compartment of Mohammad Hussain the voter should be treated as having intended to vote for Mohammad Hussain is fallacious. As has been pointed out by me above there is a line below and above the compartments of all the candidates and any voter putting a mark above or below the lines enclosing the candidate's compartment towards the top or towards the bottom cannot be treated as having intended to vote for the candidate. At any rate it cannot be said with certainty that he intended to vote for the candidate above or below whose compartment he puts the mark. Some English cases are referred to in Rogers on Elections Vol. II. Rule 36 of the Ballot Act 1872, provided for the rejection of a ballot paper which was void for uncertainty. The statutory direction for marking the ballot papers was in these words; "the voter will go into one of the compartments, and, with the pencil provided in the compartment, place a cross on the right hand side, opposite the name of each candidate for whom he votes thus 'x'. It was held that the provisions as to marking the ballot paper were directory only, and that ballot paper so marked as to show for whom the voter intended to vote ought to be counted, however much directions contained in the Ballot Act were contravened. In several cases referred to where a cross was placed on the top or bottom of the ballot paper, that is outside the candidate's compartment, the vote was held to be bad. The learned counsel for the respondents was unable to cite any case in which a contrary view might have been taken. He relied on Pontardawe (1907) 2 K. B. 313 in which a cross was put on the right outside the space intended for it but opposite the name of the candidate. It was held to be a good vote for him. The learned Judges to whom a reference was made expressed their opinion as follow: - Ridley J.- "i think that as long as the mark is opposite the name of the candidate, so as to make it clear that the voter intended to vote for him, the vote lis good. If the mark were above or below the name it would not be clear, and the paper would be void for uncertainty. " Phillimore J.- "i agree. The effect of placing the mark outside the printed space may be to make it more difficult to decide for whom the vote was given. But here there is admittedly no difficulty in so deciding. A mark put directly opposite the name of a particular candidate is to my mind a good vote. " The statutory direction under the Ballot Act was to place a cross on the right hand side, opposite the name of the candidate for whom he votes. The direction did not say any thing about placing it inside the ruled space. As the mark was towards the right hand side opposite the name of the candidate even though outside the compartment it was a good vote under the Ballot Act. Ridley J. pointed out in the above case that if the mark were above or below the name it would not be clear for whom the candidate intended to vote and the paper would be void for uncertainty. Phillimore J. agreed with him. In the present case the marks on the six ballot papers which were counted by the learned District Judge are below the compartment of the candidate. Even according to the observations made in Pontar-dawe's case these ballot papers are void for uncertainty. In Buddhi Mal Vs. Seth Achal Singh reported as case No. 1 in Hammond's Election Cases ballot papers in which the cross was placed below the compartments of all the candidates were treated as invalid. I accordingly hold that the learned District Judge erred in counting the above six ballot papers as valid votes for Mohammad Hussain. Mohammad Hussain was therefore rightly declared to have polled only 408 votes as against 411 votes polled by Mohammad Ismail.
(3.) COMING now to the second point that Mohammad Ismail's ballot paper was accepted in contravention of Rule 15 of the Rajasthan Town Municipal Election Rules 1951 and that as he was the returned candidate the result of the election was materially affected a preliminary objection was taken on behalf of the appellant that the respondents having given up the point in court below it is not open to them to agitate it in appeal. In my opinion this preliminary objection has no force. The election petition was filed when the Rajasthan Town Municipalities Act, 1951 was in force. During the pendency of the election petition that Act was repealed and was replaced by the Rajasthan Municipalities Act 1959 and the present petition was decided under the Act of 1959. Sec. 41 (3) of the latter Act runs: - "except so far as may be otherwise provided by this Act or by any rule made thereunder, the procedure provided in the Code of Civil Procedure, 1908 (Central Act V of 1908) in regard to the trial of suits shall, so far as it is not inconsistant with this Act or any rule and so far as it can be made applicable, be followed in the hearing of election petitions;" Section 49 of the Act of 1959 further provides that an election petition may be withdrawn only by leave of the Judge, and that no application for withdrawal shall be granted if in the opinion of the Judge such application has been induced by any bargain or consideration which ought not to be allowed. The above provision goes to show that an election conte5t under the Act of 1958 is not like an ordinary suit but is a purely statutory proceeding for conducting which the court has to bear in mind that it is not a contest in which the only persons interested are the candidates but that public are also substantially interested in it. Neither the Election Tribunal nor the court of appeal is precluded from going into a question which is expressly given up by one of the parties to the petition. In the present case the learned District Judge does not appear to have applied his mind at all to the objection of the petitioners with regard to the election being materially affected by the improper acceptance of the nomination paper of Mohammad Ismail which was filed beyond the period prescribed under R. 15. The learned District Judge has written in his judgment that the issue with regard to it was not pressed by the learned counsel for the petitioners on the ground that there existed no evidence on record to substantiate it. It was specially pleaded in the petition in para 6 (d) that Mohammad Ismail has filed his nomination paper on 11. 7. 59, that the election was held on 26. 7. 59, that it was not filed "not less than fifteen days before the date fixed for election" as required by R. 15, that the Returning Officer improperly accepted his nomination paper and the result of the election was materially affected thereby. The reply of Mohammad Ismail to this paragraph was that the allegations were not admitted and that R. 15 was directory. There was no specific denial of the filing of nomination paper or the date of election. A certified copy of Mohammad Ismail's nomination paper was also filed in the case (paper No. C/21/1 ). The necessary facts were thus proved by the pleadings of the parties. ;