JAGAT NARAYAN, J. - (1.) THIS is a petition under Article 226 of the Constitution by one Hari Singh challenging an order of Munsif. Dausa, acting as a Tribunal under R. 78 of the Rajasthan Panchayat and Nyaya Panchyat Election Rules, 1960, setting aside his election to the office of Sarpanch on an election petition filed by Dhanpat Lal respondent. The petition has been contested on behalf of Dhanpat Lal.
(2.) THE election was contested by Hari Singh and Dhanpat Lal. According to the counting made by the Returning Officer Hari Singh polled 397 votes as against 395 polled by Dhanpat Lab Harisingh was accordingly declared as duly elected. Dhanpat Lal challenged his election by means of an election petition inter alia on the ground that some of his votes were wrongly rejected and some votes of Harisingh were wrongly accepted. As a result of recount the Tribunal found that Dhanpat Lal had polled 401 valid votes as against 395 polled by Hari Singh. The main contention on behalf of the petitioner in this writ petition is that the Tribunal erred in rejecting ballot papers which were marked for the candidate at the back. Reliance was placed on a Division Bench decision of the Allahabad High Court in Swarupsingh vs. Election Tribunal (1 ). That case related to the election of a municipality in U. P. Paragraph 43 of the U. P. Municipalities (Conduct of Election of Members) Order 1953 provides that an elector shall "make a mark on the ballot paper opposite the name of the candidate or each of the candidates for whom he intends to vote" and clause (g) of paragraph 64 (1) provides that the Returning Officer shall reject a ballot paper "if no vote is recorded thereon". It was argued before their Lordships that the phrase "on the ballot paper" means on the face of the ballot paper. This contention was rejected on the ground that the mark by the elector on the back of the ballot paper is a mark "on the ballot paper" within the meaning of paragraphs 43 and 64 of the 1953 Order. Rule 30 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules prescribes that an elector shall mark his ballot paper by affixing a seal containing a cross mark (X) opposite the name and symbol of the candidate in whose favour he desires to cast his vote, and rule 39 provides that a ballot paper shall be liable to rejection if no vote is recorded thereon. The provisions of the Rajasthan Rules are therefore similar to the provisions of the U. P. Rules in this respect. On behalf of the contesting respondent it is argued that the Allahabad case is distinguishable on facts inasmuch as the ballot paper in that case appears to have been almost transparent so that it was difficult for an illiterate voter to distinguish between the front and the back of it. It was contended that the phrase "on the ballot paper" should be taken to mean on the face of the ballot paper. Reliance is placed on the following passage occurring in paragraph 240, page 140, volume 14, Halsbury's Laws of England, third edition: - "a ballot paper marked on the back only should not be counted, even though the mark shows through the paper to the front. A ballot paper marked both on the back and on the front may, however, be counted. " Three cases have been cited in support of the above proposition out of them the learned counsel for the respondent produced copies of the reports of two cases : (1) Me Laren vs. Home. It proved that the ballot paper had been marked by the voter on the back exactly against the name of the petitioner. It was so marked that it was possible to fold up the ballot paper so as to hide the mark. The court rejected this vote. (2) Sykes vs. Mc Arthur. A ballot paper had been rejected by the returning officer which had been marked upon the back opposite Mr. Sykes' name and it was contended by Mr. Charles that inasmuch as the mark could be seen through the paper without turning it over, it was a good vote. Mr. Baron Pollock held, "i have a very clear opinion that that will not do. If you take the whole context of the Act and read the direction, the voter is to place a cross on the right hand side opposite the name of each candidate for whom he votes, and that together with the other provision with regard to the returning officer, clearly indicates that it must be on the face of the paper. We think that the vote was properly rejected on the ground that a cross upon the back is not a compliance with the Act. " (3) In the English and Empire Digest, volume XX (1925 edition) several other cases are also cited at pages 112 and 113 in which the same view was taken. In the Canada Supreme Court Reports, 1883, volume 7, a case is reported at page 247, Jenkins vs. Brecken in which it was held that ballots with a cross in the right place on the back of the ballot papers instead of on the printed side are invalid. In Corpus Juris also the law on the subject is stated in the following words : - "a ballot marked on the back cannot be counted. " (Volume 20, (1920 Edition) page 158) I have carefully considered the arguments advanced by the learned counsel for the parties. With all respect to the learned Judges, who decided the Allahabad case I am of the opinion that the marking of a ballot paper which is printed on one side means marking on the face of it. The intention behind rule 30 thus is that the ballot paper should be marked on the face, and not on the back. In Ramdayal vs. Munsiff, Rajgarh (2) it was however held that rule 30 is directory and a ballot paper cannot be rejected if the intention of the voter can be clearly ascertained from it. The ballot papers in the case before me are not practically transparent. These are translucent. Even an illiterate voter can distinguish which is the face of the ballot paper and which is back of it. But the lines demarcating the compartments and the symbols are visible on the back side also. There are 5 ballot papers which bear only one mark each on the back side. The voters who marked them presumably came to vote for a particular candidate. From these five ballot papers it appear that they marked them on the back with the intention of voting for the candidate on the back of whose compartments the mark was affixed These ballot papers are in my opinion valid votes. Four of them are marked for Harisingh viz. ballot papers Nos. 534903, 534650, 534843 and 534875. The ballot paper No. 534668 is marked for Dhanpat Lal. The result is that Dhanpatlal gets 402 valid votes and Harisingh gets 403 of them. I accordingly allow the writ petition and set aside the decision of the tribunal. Harisingh's election to the office of Sarpanch is upheld. In the circumstances of the case I leave the parties to bear their own costs of this writ petition. . ;