- (1.) THIS is an appeal under sec. 19 (2) of the Rajasthan Town Municipalities Act, 1951 (hereinafter called the Act ). It relates to the municipal elections of the Rajgarh Municipality which took place on the 17th of July, 1957. Several candidates filed the nomination papers for ward No. 4 but ultimately only three candidates contested the election. They were Suganchand, Kesuram and Prahlad. The counting of the votes took place on the 8th of July, 1957. The result of the counting as declared by the Returning Officer was - Kesuram 226 votes Prahlad 70 votes Suganchand 224 votes Invalid Ballot papers 70 Missing Ballot paper 1 Kesuram was declared fleeted by the Returning Officer. On this Suganchand filed an election petition on the 16th of July, 1957 before the District Judge, Bikaner, claiming that the election of Kesuram be declared illegal and he be declared to be duly elected member. The main ground for his claim was that several ballot papers were declared invalid which should have been counted in his favour.
(2.) THE election petition was contested by Kesuram on several grounds. It was urged that Jitu Khan who had filed his nomination paper but has withdrawn was not made a party to the election petition and the election was liable to be dismissed for nonjoinder of necessary parties. It was also urged that there was no rejection of the valid nomination papers. Jitu Khan was later on made a party on the 15th of Jan, 1958. The learned District Judge held that 23 ballot papers which showed that the votes in them were cast in favour of Suganchand were wrongly rejected. Similarly eleven ballot papers which showed that the votes in them were cast in favour of Kesuram were also wrongly rejected. As a result of recounting he held that Suganchand had acquired larger number of votes than any other candidate. With this finding he accepted the election petition and set aside the election of Kesuram and declared Suganchand as duly elected member from Word No. 4 of the said Municipality. He also held that Jitu Khan was not necessary party. Kesuram has filed this appeal challenging the order of the learned District Judge on various grounds. Shri Chandmal Lodha who has appeared on his behalf has taken up the following three points :- - (1) That the order of the Returning Officer rejecting the ballot papers as invalid could not be questioned in the election petition and the learned District Judge was not empowered to declare valid the ballot papers which had been rejected by the Returning Officer as invalid. (2) That Jitu Khan was a necessary party to the election petition and as he was not impleaded within the period of limitation of ten days after the date of the declaration of the result as required under sec. 19 (1) of the Act, the election petition should have been dismissed, on that ground. (3) That there was no mistake in the counting by the Returning Officer and the learned District Judge has wrongly help invalid ballot papers as valid. I shall deal with these points seriatim. Corning to the first point reliance is placed on sec. 19 (3) (b) of the Act which runs as follows: - "if in any case to which clause (a) does not apply, the validity of an election, is in dispute between two or more candidates, the judge shall after a scrutiny and computation of the votes recorded in favour of each such candidate, declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected. Provided that for thy purpose of such computation no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person known or unknown in giving or obtaining it. " It is urged that the words 'recorded in favour of each such candidates' have reference to the votes which have been held to be valid by the Returning Officer and that votes which have been held to be invalid, cannot be scrutinised and computed at the time to the counting. It is urged that the word 'recorded' means recorded by the Returning Officer in the result declared by him and not the votes cast in favour of the candidate. 5. In my opinion this argument is without any substance. It is forgotten that the process of casting vote by a voter is called recording of the vote. This is clear from the procedure provided in the Rajasthan Town Municipalities Election Rules (hereinafter called the rules ). Rule 28 prescribes the procedure for recording vote. Sec. 19 (3) (b) of the Act has reference to the votes recorded by the voter in favour of each candidate and has nothing to do with the result declared by the Returning Officer. It is obvious that sec. 19 (3) (b) contemplates the scrutiny and computation of the votes. The scrutiny does not mean the scrutiny only of those votes which have been declared valid by the Returning Officer, but also means the scrutiny of those votes which have been declared as in-valid by the Returning Officer, otherwise the whole process of counting will become a farce. It will amount to this that while the learned District Judge can declare votes held valid by the Returning Officer as invalid, he cannot declare votes held invalid by him as valid. The first point urged on behalf of the appellant has got no worth and is rejected. Now coming to second point urged on behalf of the appellant, it is to be determined whether Jitu Khan was in case a necessary party. It is conceded that Jitu Khan had withdrawn before polling took place. Under Rule 16 (2) any candidate is authorised to withdraw his candidature by notice in writing to the Returning Officer at any time before the polling has commenced. It is urged that even though Jitu Khan might have withdrawn, yet he cannot be held to be a person who was not interested in the result of the election and for this reason he should have been made a party. It is also urged that under the Representation of the People Act, 1951, where a petitioner claims a declaration that he himself or any other candidate has been duly elected all the contesting candidates should be made party and that that law must be taken to be based on general principles and in the election petition filed by Suganchand, though it related only to the municipal election, Jitu Khan should have been made party and his withdrawal before the poll did not much matter. Neither in the Act nor in the rules there is any provision for making parties to an election petition filed under sec. 19 of the Act. In the absence of a statutory provision it is to be determined whether a person who had not contested the election and had withdrawn before the poll is a necessary party to the election petition. For the determination of this question it would be obviously wrong to draw any analogy from cases which have been decided under any statutory provisions of law relating to election petitions. It is obvious that in such cases it is the statute that will govern the case. As observed by their Lordships of the Supreme Court in the case of Kamaraja Nadar vs. Kunju Thevar (l), "an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. " Kamaraja Nadar''s case (l) was decided under sec. 82 of the Representation of the People Act, 1951. There a special provision is made that where a petitioner claimed a further declaration that he himself or any other person has been duly elected all the contesting candidates other than the petitioner should be made respondents. Except is cases where it has been specifically provided by the statute that even a person who has not actually contested the election should be made a party, it cannot be laid down that the persons who have withdrawn from candidature are necessary parties to the election petition. In the case of Line vs. Bromwich (2) it has been held that it was not necessary that all the successful candidates should be made respondents even though the ground of the petition is one affecting the validity of the election as a whole Learned counsel for the appellant has sought to distinguish this authority on the ground that in that case the petitioner was not claiming that he was elected, but this does not much matter so far as the general principles of law are concerned. I may in this connection also refer to the case of Lord Monkwell vs. Thompson (3): In that case at an election for a school board there were eight candidates for five sheets. The five highest on the poll, of whom the respondent in that case, was fifth, were declared by the returning officer to be elected. A petition was presented by the candidate who was sixth on the poll against the election of the respondent on the ground that certain votes given for the petitioner had been wrongly counted for the respondent or, for some other candidate, and the petitioner claimed the seat. A recount having been had of the votes given for the respondent and the petitioner, it appeared that the petitioner had a majority over the respondent. The votes of the other candidates were not recounted. Though the other candidates were not party to the proceedings, yet it was held that the petitioner was entitled to the seat. Both on principle and authority I do not find that Jitu Khan was a necessary party to the election petition filed by Suganchand. I reject the second contention urged on behalf of the appellant. Now I come to third contention. That relates to recounting The ballot papers were examined by me in the presence of the parties. A ballot paper in this case has got four columns. Column No. 1 is for the Serial Number. Column No. 2 is for the names of the candidates. Column No. 3 is the symbols allotted to the candidates and column No. 4 is left vacant for putting marks by the voters. Now the procedure provided under r. 28 for recording each voter's vote is that the voter, after making a cross in column of the voting paper against the names of any candidates for whom he wishes to vote and after folding and closing the voting paper put it into the ballot box. This shows that the cross marks should be placed against the name of the candidate for whom the voter wishes to vote. In this case it appears that the Returning Officer rejected several ballot papers in which the cross marks appeared in any other column except column No. 4. This was not proper and not in consonance with r. 28 (v ). Rule 33 provided that a ballot paper shall be rejected on any of the following grounds: - (a) if it has not the official marks: or (b) if there are marks against the names of more candidates than there are vacancies 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 intended to vote: or (e) if the ballot paper bears any mark by which the voter may be identified. If a mark is made in any column other than the fourth it cannot be said that the intention of the voter cannot be assertained because it may be clear from the position of the mark that a voter had made his mind clear as to in whose favour he wanted to vote. For example in this case there are several ballot papers in which the cross is placed in column 3 beside the symbol. Technically in such a case there was a cross mark in the column of the voting paper against the name of the candidate. Otherwise also there is a clear indication of the intention of the voter in such a case inasmuch as he was voting for the candidate who had that particular symbol. In my opinion the rejection of such nomination paper by the Returing Officer was not in accordance with r. 33 and it was not right even according to r. 28. Such ballot papers are 9 so far as Suganchand in concerned and 7 so far as Kesuram is concerned. They are valid and should not have been rejected by the Returning Officer. There are three ballot papers in which cross marks are placed in the very column in which the name of Suganchand appears but there are three similar ballot papers in which cross is placed in the column in which the name of Kesuram appears, but they need not be discussed as they cancel each other. For the purpose of this appeal they may be ignored. Learned counsel for the appellant concedes that if this test is applied for the scrutiny of the ballot papers Suganchand had obtained the greatest numbers of votes and was rightly declared to be duly elected by the District Judge. The appeal has got no force and is dismissed with costs. The stay order passed by this Court on the 6th of June, 1958 is also vacated. The collector, Churu may be informed. . ;