JAGAT NARAYAN, J. - (1.) THIS is an appeal by one Mannalal Kumawat against a decision of the District Judge, Partabgarh, acting as a Tribunal under section 34 of the Rajasthan Municipalities Act, 1959, dismissing his election petition filed against the election of Mannalal Doshi respondent.
(2.) BOTH the appellant and the respondent stood for election to ward No. 7 of the Partabgarh Municipality. According to the counting done by the Returning Officer Doshi polled 10 more votes than Kumawat. 76 votes were rejected by the Returning Officer. The election petition was filed on the ground that a number of valid votes were wrongly rejected by the Returning Officer. The petition was dismissed. Against that decision the present appeal has been filed on the same ground. I have perused the ballot papers. Eleven ballot papers bore thumb-marks or finger marks. All of them were rejected by the Tribunal as invalid. Out of them ballot papers Nos. 243, 73, 167, 202, 174, 141 and 109 bear clear thumb-impressions of the voters. Ballot paper No. 118 bears a blurred thumb-impression of the voter. Ballot papers Nos. 35, 65, and 143 bear marks caused by marking ink with the help of fingers. As for these three ballot papers it cannot be said whether these marks were caused merely by the handling of the ballot paper or they were affixed with the intention of marking the vote. So far these three ballot papers are concerned it cannot be said that the intention of the voter is clear. So far as ballot paper No. 118 is concerned the thumb-mark on it is so blurred that the voter cannot be identified by it. This ballot paper is therefore a valid vote in favour of the appellant. As for the seven other ballot papers which bear clear thumb-marks of the voters I am of the opinion that they are invalid under clause 53 (1) (e) of the Rajasthan Municipalities Election Order, 1960, which runs as follows: - "a ballot paper shall be rejected: - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (e) if the ballot paper beats any mark or writing by which the elector can be identified;" In Balia Ram vs. Sedu Ram & others (S. B. Civil Mise. Appeal No 83/62 decided on 22. 1. 63) it was held that a ballot paper bearing a clear thumb-mark of a voter is invalid as he can be identified by it. The following three reported decisions on the point were considered in that case : - Raja Ghazanfar Ali vs. Ch. Bahawal Bux (1), Lala Buddhi Mal v. Seth Achal Singh (2), V. S. Muhammed Ibrahim vs. Abbas Ali Khan (3 ). The learned counsel for the appellant has not been able to draw my attention to any other reported case. His argument however is that a thumb impression cannot be identified without the aid of a microscope and without comparing it with another thumb-impression of the voter and so it should not be held that the voter can be identified by it. In Woodward vs. Sarsons and Sadler (4) Lord Coleridge, G. J. observed as follows : - "it (ballot paper) must not be marked. . . . . . . . . . . . . . . so as to make it possible by seeing the paper itself, or by reference to other available facts, to identify the way in which he (the voter) has voted. If these requirements are not substantially fulfilled, the ballot paper is void and should not be counted. . . . . . . . . Applying these views to the votes in question before us. . . . we disallow Nos. 844 and 889. There is no cross at all; and we yield to the suggestive rule that the writing by the voter of the name of the candidate may give too much facility, by reason of the handwriting, to identify the voter. " A ballot paper which bears a clear thumb-impression falls under the mischief of the above rule as well as under clause 53 (i) (e) of the Election Orders as the voter can be identified by his thumb-mark even though it may be necessary to compare the thumb-mark on the ballot paper with a thumb-impression of the voter with the aid of a microscope. Clause 53 (i) (e) lays down that the ballot paper shall be rejected if it bears any mark by which the elector can be identified. It does not say that it should be possible to identify the voter by a bare look at the paper with the naked eye. Similarly Lord Coleridge also observed that it should not be possible to identify the ballot paper either by seeing it or by reference to other available facts. The latter expression covers comparison with a thumb-impression of a voter. A voter can certainly be identified by a clear thumb-impression made by him on the ballot paper. Seven ballot papers were rejected on the ground that the mark was not in the column ment for putting it. Out of these seven ballot papers, paper No. 232 bears two cross marks, one in the compartment of Kumawat and other outside it below the compartment of Doshi. So far as this ballot paper is concerned it is not clear for whom the voter intended to vote. But the other six ballot papers Nos. 180, 270, 506, 93, 49 and 347 bear marks in the compartment of Kumawat although not in the column provided for putting the mark. These are valid votes as the intention of the voter to vote for a particular candidate in each of these ballot papers is clear. In the same way the Tribunal had rejected three ballot papers validly marked tor Doshi. They are ballot paper Nos. 315, 97 and 338. They bear marks in the compartment of Doshi but not in the column meant for putting the mark. The intention of the voter to vote for Dosi is however clear in all these three ballot papers. The result is that seven votes are added to the votes counted for Kumawat and three votes are added to the votes counted for Doshi. Doshi still remains the successful candidate. For reasons given above, the appeal is dismissed. In the circumstances of the case, I direct that parties shall bear their own costs of this appeal. . ;