JAGAT NARAYAN, J. - (1.) THIS is an application under Articles 226 and 227 of the Constitution by one Ram Singh against the decision of Munsiff, Bundi, acting as a Tribunal under rule 78 of the Rajasthan Panchayat & Nyaya Panchayat Election Rules, 1960 (hereinafter referred to as the Rules ). The application has been contested on behalf of Hardeo, Kalyan and Birdi.
(2.) THE Election of the sarpanch of Bajor Panchayat was held on 13th December, 1960. Ram Singh and Hardeo contested the election. Ram Singh secured 473 votes and Hardeo secured 470 votes. Ram Singh was declared to be elected. Against this election, Kalyan and Birdi filed an election petition under rule 78 inter alia on the ground that seven of the voters, who had marked their ballots in favours of Hardeo, were not allowed to put them in the ballot box by the polling officer on the ground that they had not folded them as prescribed under rule 30 and the secrecy of the voting was thereby violated. It was asserted by the petitioner that the secrecy of the voting had, in fact, not been violated. Both parties were given an opportunity of adducing evidence on the question as to whether the secrecy of voting had, in fact, been violated. THE petitioners examined a number of witnesses who stated that the secrecy has not been violated. No evidence was produced on the point on behalf of Ram Singh, who contested the election petition. THE Tribunal did not record arty finding as to whether or not the secrecy of voting was, in fact, violated. But it held that the Polling officer was not authorised to prevent these seven voters from casting their votes in the ballot box. On account of this improper refusal on the part of the polling officer, the election was materially affected as Hardeo would have polled 477 votes if these 7 persons had been allowed to put their ballot papers in the ballot box. He accordingly set aside the election of Ram Singh and declared Hardeo to be duly elected. Against this decision, the present writ application has been filed. The first contention on behalf of the applicant is that the decision of the Tribunal that the Polling Officer was not competent to prevent a voter from casting his vote even though the secrecy of the voting might have been violated is erroneous. Reliance is placed on the underlined portion of the following passage in Parker's Election Agent and Returning Officer, Fifth Edition, at page 175: - "having received a ballot paper, the voter shall forthwith proceed into one of the compart ments in the polling station, and there secretly mark his paper (P. E. R. r. 38 (2)) with the pencil provided in the compartment, by placing a cross (x) on the right-hand side of the ballot paper opposite the name of the candidate for whom he votes (Appendix to P. E. R. , Directions to Voters, No. 45, post, p. 505 ). If, contrary to the provisions relating to secrecy, the arrangements of the station offer facilities to the voter to show his marked ballot paper to other persons, and he does not in fact avail himself of such facilities, the vote will not be bad, nor the election avoided (Drogheda, 2 O. M & H. 205); but if he does so avail, so that he cannot be said to have secretly marked his vote, it would seem that vote is a bad vote, and that, if a majority of the electors who have gone to the poll have similarly disregarded the provisions of P. E. R. , the election may be decla red void (see Woodward Vs. Sarsons, L. R. 10, C. P. 733 ). A voter who deliberately marks his ballot paper openly instead of secretly, violates P. E. R. r. 38 (2), and in a provision that is manda tory upon himself; and if this be done in view of the presiding officer or of his poll clerk, it is sub mitted that the latter should refuse to admit the ballot paper into the ballot box (see Thorn bury, 16 Q. B. D. 739; Pickering Vs. Jomes, L. B. 8. C. P. 489), and that unless the voter can satisfy the presiding officer that he had so inadvertently marked his ballot paper as that it has become a spoilt ballot paper within P. E. R. r. 42 the presiding officer should refuse to give the voter a second ballot paper. The only case in which a presiding officer is empowered to deliver a second ballot paper to the same voter is where the first ballot paper has become a spoilt ballot paper. " None of the decisions referred to in the above passage support the opinion expressed by the learned author that if a voter deliberately marks his ballot paper openly in the view of the presiding officer, the latter should refuse to admit that ballot paper into the ballot box. So far as the present case is concerned, the seven ballot papers were marked secretly inside the polling compartment as prescribed under rule 30. Only the voters did not fold the ballot papers when they brought them from the polling compartment to the ballot box which was placed within the view of the polling officer. It is, therefore, not a case where a ballot paper was either deliberately marked openly or where it was deliberately shown to other persons within the meaning of the above passage. On the contrary, the case is covered by the observation of the learned author that if the arrangement of the station offer facilities to the voters to show his marked ballot paper to other persons and he does not in fact avail himself of such facilities, the vote will not be bad. In the present case it has not been proved that the secrecy of these seven ballot papers was in any way violated. The polling officer was, therefore, not justified in not permitting these seven voters to put their ballot papers in the ballot box. On account of the refusal of these seven votes, the result of the election was materially affected. The Tribunal, therefore, rightly set aside the election of Ram Singh. It may be mentioned here that in Doabia's Election Cases, Volume II, p. 397, case No. 192, the Election Tribunal came to the finding that the secrecy of voting was violated but refused to set aside the election on the ground that it had not been shown that the violation of the secrecy had materially affected the result. In other words it amounted to holding that a vote was not invalidated by the violation of its secrecy. The next contention on behalf of the applicant is that the Tribunal could not have declared Hardeo to be duly elected under rule 85 by counting these seven ballot papers as these ballot papers not having been put in the box, could not be counted as voces. This contention must be upheld-Rule 30 provides that the elector shall after marking the ballot paper put it into the ballot box. Rule 36 lays down that at the close of the poll, the ballot boxes shall be sealed, and the following papers shall also be sealed into separate packets: - (a) the unused ballot papers, (b) the spoilt ballot paper, (c) the ballot papers returned and cancelled under rule 33, (d) the marked copy of the voters list, and (e) the counterfoils of the used ballot papers. The seven ballot papers in the present case do not fall under any of the above categories. Rule 3 3 provides for the return of such ballot papers which the elector decides not to use or to cast in the ballot box. Rule 38 relating to the counting of votes envisages the counting of ballot papers which have been put in the boxes by the electors. It is as a result of the counting of these ballot papers after rejecting such of them as are liable to rejection under rule 39 - that a candidate is declared elected. A candidate cannot be declared to be elected by the Tribunal on the basis of ballot papers which were not allowed to be put in the box by the error of the polling officer. I accordingly hold that the order of the Tribunal declaring Hardeo to be duly elected is erroneous and is set aside. The result is that the writ application is allowed in part as indicated above. The order of the Tribunal setting aside the election of Ram Singh is confirmed, but its order declaring Hardeo to be duly elected as Sar Panch is set aside. In the circumstances, I direct that parties shall bear their own costs of the application. . ;