Patna High Court
Bihari Lall And Ors. vs Bindeshwari Prasad And Ors. on 1 January, 1964
Equivalent citations: AIR1965PAT107
JUDGMENT Mahapatra, J.
1. An application under Articles 226 and 227 of the Constitution was filed by two Councillors and one tax-payer and voter of the Patna Municipal Corporation. On the 2nd April 1964, a meeting of the Councillors of the Corporation was convened at 5 O' Clock in the evening in the Corporation Hall at Bankipur Circle to elect a Mayor and a Deputy Mayor for the year 1964-65. Opposite party No. 1, Sri Bindeshwari Prasad, presided over and conducted the business of that meeting. Opposite party 2 and 5 were nominated as candidates for the office of the Mayor and opposite party 3 and 4 for that of the Deputy Mayor, Fifty-two Councillors were present in that meeting and participated in the election. After the ballot papers were received from the Councillors, the Presiding Officer (opposite party No. 1) counted the ballot papers. He declared opposite party No. 2, Sri Rameshwar Prasad Golwara elected as Mayor receiving 26 votes as against the other candidate, opposite party No. 5, Dr. Damodar Prasad, who received 25 votes. One ballot paper purported to have been given in support of Dr. Damodar Prasad was rejected by the Presiding Officer on the ground that the mark given by the Councillor-voter against the name of opposite party No. 5 was different from a cross (x) sign.
Petitioner No. 1 asserted in paragraph 14 of his application that he had put that mark on that particular ballot paper with the only intention to vote for opposite party No. 5. It was also urged by him that opposite party No. 1 acted illegally in rejecting that ballot paper and in not entertaining the objection raised at that time against such rejection Opposite party No. 3, who was declared elected as Deputy Mayor, was said to be disqualified for the election as he was in arrears of the Corporation dues. In short, the election of opposite party 2 and 3 as Mayor and Deputy Mayor was challenged and was sought to be quashed by the application.
2. Opposite party No. 2, Sri Rameshwar Prasad Golwara, made a return saying that the ballot papers were examined and counted in the meeting of the Councillors on the 2nd April 1964 in presence of the candidates and the Councillors in the meeting hall by the President who declared one of the ballot papers as invalid under the provisions of Rule 6(b) of the rules framed for election of the Mayor and Deputy Mayor. No objection was raised there against that rejection. Opposite party No. 1 also made a return refuting the charge by the petitioners that he was not properly elected to preside in the meeting on the appointed day. He pointed out that he had been proposed and seconded and was unanimously elected as President of that meeting, and that he conducted the election according to the rules framed for the purpose. In paragraph 7 of his return, he stated that ho had rejected one ballot paper as invalid under Rule 6(b), referred to above, as there was some other mark put on the ballot paper than the one specified under the rule. He also stated that no objection was raised against his rejection of the ballot paper. The elected Deputy Mayor, opposite party No. 3, in his return stated that he had no house or holding and was not at all liable for any tax to the Municipal Corporation and no notice had been served upon him under Section 18 of the Municipal Corporation Act. He asserted that he had been duly elected as Deputy Mayor. No return was filed on behalf of the other opposite parties, namely, opposite party 4 and 5, the defeated candidates for the offices of Mayor and Deputy Mayor, opposite party No, 6, the Chief Executive Officer of the Corporation and opposite party No. 7. the State of Bihar.
3. The election of the Deputy Mayor, opposite party No. 3, was challenged on the ground of his ineligibility. He refuted that in his return. Whether ho was liable to any tax and whether ho was in arrears of such tax arc questions which cannot be adequately decided in this proceeding without further enquiry and materials. The petitioners are thus not able to show any error in the election of the opposite party No. 3 as Deputy Mayor. The allegations against opposite party No. 1, who acted as President of the meeting of the Councillors, were not raised in argument.
4. Learned Council only contended that the rejection of a ballot paper by opposite party No. 1 on the ground that it contained a tick mark instead of a cross mark against the name of opposite party No. 5, who was the rival candidate for the office of Mayor was illegal and it materially affected the result of the election. If that vole was taken into account, then both the candidates would have secured 20 votes each, in which case the President would have drawn a lot to find out which of them should be declared elected as Mayor. From an affidavit filed in the case, it appears that opposite party Nos. 4 and 5 along with some others had instituted a suit in the first court of the Munsif at Patna (Title Suit No. 125 of 1964) against the present opposite party 1, 2, 8, 6, 7 and three others for a declaration that the election of the Mayor and Deputy Mayor as declared on the 2nd April 1964 was invalid, and that the present opposite party No. 5 may be declared as the elected Mayor. They asked for an order of injunction against the elected Mayor and Deputy Mayor restraining them from assuming office and also against the publication of the result of that election in the Gazette. The Court refused to grant an interim injunction though the suit is still pending. The present application under Articles 226 and 227 of the Constitution was filed thereafter by some other Councillors who were not plaintiffs in that suit. They also asked this Court for a restraining order against the publication of the result of the election in the official Gazette and against assumption of office by the two elected officers. This prayer was refused by this Court, the result being that opposite party 2 and 3 have been working as Mayor and Deputy Mayor.
5. The only question involved in this case for decision is whether a ballot paper in which a voter gives a mark other than a cross mark, as provided in the rules, is invalid and liable to be rejected. Section 19 of the Patna Municipal Corporation Act. 1952, provides:
"(1) The Corporation shall, at its first meeting, each year elect from amongst the Councillors, a Mayor and a Deputy Mayor to hold office until the first meeting in the next following year."
Section 540 authorises the State Government to frame forms for any proceedings of the Corporation and after previous publication make rules for the purpose of carrying into effect the provisions of the Act. Sub-clause (2) of that section has enumerated several matters for which the rules may provide; of these, (a) to (j) obviously relate to election of Councillors, Sub-clause (3) bears that out. On the 29th January 1959, the State Government, in exercise of the powers conferred under Section 540 and in supersession of the existing rules made new rules called the Patna Municipal Corporation Conduct of Business (Election of Mayor and Deputy Mayor) Rules, 1959. These rules are intended for the conduct of business at the meeting of the Councillors to elect the Mayor and the Deputy Mayor. They provide who should preside at such meeting and how he will call for nominations of candidates and how he will proceed to take poll by ballot if more than one candidate for any office is duly nominated. After the election, the President has to communicate in writing the result of the election to the Chief Executive Officer who will transmit the same to the State Government. Rule 6 is important and it lays down the manner in which the poll by ballot is to be taken. Its sub-clause read as below:
"(a) The president shall distributed or cause to be distributed to each Councillor present a ballot paper containing the names of all duly nominated candidates, remaining after withdrawal, for each office separately.
(b) Every Councillor (including the President) desiring to vote shall then proceed to record his vote by placing a cross mark against the name of the candidate for each office for whom he wishes to vote, but shall not sign, or make any mark on the ballot paper and shall, one after the other, place the marked ballot paper in the ballot box provided for the purpose within specified time. It a Councillor votes for more candidates than the number of vacancies, signs the ballot paper or make any other mark on it, his ballot paper shall be deemed to be invalid.
(c) The President shall count the valid votes recorded and announce the total number of votes secured by each candidate for that office and declare the candidate securing more than one-half of the total number of votes recorded to have been elected to that office. In case, however, no candidate secures more than one-half of the total number of votes recorded, the President shall declare the candidates securing the least number of votes to have been eliminated and a fresh poll shall be taken. The process shall be continued until a candidate for that office secures more than one-half of the total number of votes recorded whereupon he shall be declared to have been duly elected
(d) It on counting the votes under Sub-rule (o) the largest or smallest number of votes secured by each of two or more candidates are found to be equal, the President shall select the candidates for election or elimination, as the case may be by drawing lots among them".
6. Five examples about the manner of counting and drawing of lots have been given under this rule also. For our purpose, Clause (b) of Rule 6 is the determining factor. There, the voting Councillor is required to record his vote by placing a cross mark against the name of the candidate for whom he wishes to vote; he is prohibited from signing or making any mark on the ballot paper; he is required to place the marked ballot paper in the ballot box within the specified time. Thus we find that there is one requirement of him to record his vote by placing a cross mark and there is also a prohibition that he shall not sign or make any mark on the ballot paper. The consequences of his violating the prohibition Is provided in the last sentence of Clause (b), that is, his ballot paper shall be deemed to be invalid. The controversy between the parties relates to the mark of voting. The President rejected the disputed ballot paper because it contained not a cross mark (x) but a tick mark against the name of one of the candidates for the office of the Mayor.
It is contended for the petitioners that any mark put by a voter on the ballot paper against the candidate's name will he a valid voting as long as his intention to support to any particular candidate is made clear from the way in which the mark is put. There may be a direction about the shape of the mark that a voter should put on the ballot paper. In this case it was a cross mark but in spite of that, it was urged, if a voter puts any mark other than that, that will not invalidate the ballot paper. The purpose of poll by ballot is obviously to keep the matter of voting a secret so that it may not be known from the ballot paper itself who has voted for whom. This insurance against the disclosure of identity of the voter enables him to exercise his franchise in a free and fearless manner The eliminates the chance of any ill consequences from a rival candidate for whom he may not have voted or of any unlawful rewards from any candidate whom he thought fit to vote for. To keep the election free and fair the mode of poll by ballot has been introduced in a civilised society and administration. There is high authority for the view that as long as the intention of voting in respect of a particular candidate is made clear from the ballot paper, the presiding or counting authority will take such ballot paper into consideration,
7. The intention of the voter about a particular candidate at the voting has to be expressed and for that purpose, sometimes a direction is given for his guidance in the legal provisions that are made for a particular election. In such directions, he may be advised to put a particular mark on the ballot paper at a particular place so that his clear intention of support in favour of a particular candidate may be definitely ascertained. If there is any irregularity In a voter's giving such a prescribed mark, that may be overlooked as long as the ballot paper itself reveals for which candidate he Intended to vote. Such Irregularities may be of variant nature; for example, instead of putting one prescribed mark he puts more than one at the appointed place or he may put the prescribed mark not at the appointed place but at some other place which, however, would indicate the person for whom that mark is given; he may put not the prescribed but some other mark at the appointed place on the ballot paper. He may even put in addition to the prescribed mark at the appointed place some other mark. These kinds of irregularities would not affect the validity of the ballot paper, provided any such irregularity does not tend to disclose the identity of the voter, a thing which is sought to be avoided by the process of voting by ballot.
The irregularities may not, by themselves, lead to the disclosure of identity but coupled with other circumstances, about which there may be evidence, such as, an understanding with a particular candidate or his group about a particular way of irregularity that may be adopted in recording the vote on the ballot paper, may amount to a disclosure of identity of the voter, in which case the ballot paper becomes invalid. All these considerations and the like are permissible in an election provided the manner of voting, that is, which mark is to be put at which place in the ballot paper is prescribed by, way of a guidance to the voter. If such statutory provisions are directory in nature, it will be SUFFIcient if they are substantially fulfilled. It is not necessary that there must be an absolute and exact compliance with all the details that may be prescribed in such directory provisions. The Returning Officer, in such cases, is left with certain amount of discretion to find out if, in the case of a particular ballot, there has been a substantial compliance with the prescribed directions about the manner of voting. The Illustrations of irregularities I have referred to above may, in such cases, be pardoned and the ballot paper accepted
8. The case of Woodward v. Saraons, (1875) 10 CP 733 has been recognised, since 1875, as a leading case on this point. In the cases of Krishna Nandan Sahay v. Ravaneshwar Misra, AIR 1964 Pat 51 and Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233 the decision in the case of (1875) 10 CP 733 was referred with approval. That leading case related to the election in Birmingham Municipality. The Ballot Act which was applicable to that election, consisted of a principal part containing, several sections and two schedules, one of which contained the rules and the other forms Section 28 of the Ballot Act provided that "the schedules and the notes thereto and directions therein shall be construed and have effect as part of this Act"
With reference to this provision under Section 28, Lord Coleridge, C. J. observed that the rules and forms which were contained in the two schedules of the Act were to be construed as part of the Act but as containing "directions". He found, on a comparison of the sections and the rules in the Act, that for the most part, if not invariably, the rules pointed out the mode or manner of doing what the sections enacted to be done in Section 2, the provision was that, "the voter, having secretly marked his vote on the paper, and folded it up so as to conceal his vote, shall place it in an inclosed box"
This provision was taken, in that case, as the absolute enactment, by which the voter was required to mark his ballot paper secretly. How he was to mark it was not stated either in any of the sections or in any of the rules contained in Schedule 1. Rule 25 only said, "the elector, on receiving the ballot paper shall forthwith proceed into one of the compartments in the polling station, and there mark his paper and fold it up so as to conceal his vote, and shall then put his ballot paper so folded up into the ballot box."
The form of ballot paper was prescribed in Schedule 2 and a note was appended to that form saying "Form of directions for the guidance of the voter in voting " and "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"
The prescribed mark of voting, namely, a cross mark, only appeared in the prescribed form of ballot paper and that, as the note appended to the form indicated, was a direction for the guidance of the voter Another note in Schedule 2 of that Act stated that "the forms contained in this schedule, or forms as nearly resembling the same as circumstances will admit, shall be used." This left much laxity for the use of the prescribed ballot paper or some other ballot paper like that and the prescribed voting mark (x) was only by way of a guidance to the voter for secretly marking his ballot paper. It is in this context that Lord Coleridge, C. J. held that the absolute enactment (as made in Section 2) that the ballot paper should be marked secretly had to be obeyed exactly but it would be sufficient if the manner of marking the ballot paper as provided in the form of ballot paper in Schedule 2 of the Act was obeyed substantially. In examining whether the directory provision about the manner of marking on the ballot paper had been substantially fulfilled, his Lordship came to the conclusion that marks of voting other than a cross mark, or some other in addition to the cross mark were mere irregularities and if they were not of such nature as by themselves or in conjunction with other evidence led to the possibility of identification of the voter, those irregularities should be ignored and the ballot paper accepted.
in Section 2 of the Ballot Act it was also pro vided:
"any ballot paper which has not on its back the official mark, or on which votes are given to more candidates than the voter is entitled to vote for, or on which anything except the said number on the back is written or marked, by which the voter can be identified, shall he void, and not counted."
This was also a part of the absolute and mandatory enactment which was to be obeyed exactly; in other words, any writing or mark on the ballot paper by which the voter can be identified would result in the rejection of a ballot paper. The general rule is and that was also applied by Lord Coleridge, C. J., that an absolute enactment must be obeyed and fulfilled exactly, but it will be sufficient if a directory enactment is obeyed or fulfilled substantially.
This leads us to the necessary enquiry in the present case as to whether the manner of voting by putting a cross mark on the ballot paper as made in Rule 6(b) of the Patna Municipal Corporation Conduct of Business Rules, 1959, is a directory provision intended for the guidance of the voter or it is a part of the absolute enactment in which case it has to be obeyed or fulfilled exactly.
9. Section 19 of the main Act (The Patna Municipal Corporation Act, 1951) only provides that the Corporation shall, at its first meeting, each year elect from amongst the Councillors, a Mayor and a Deputy Mayor to hold office until the first meeting in the next following year. Section 25(2) authorises the Chief Executive Officer to call such meeting of the Corporation as soon as the election, appointment and selection of Councillors are notified. But how that meeting will be conducted, in what way candidates will be nominated, what will be the mode of election, in what manner the voting will be recorded and how and when the elected persons will assume office have not been stated in the section. By giving power to the Slate Government under Section 540 to make rules for the purpose of carrying into effect the provisions of the Act, the Legislature obviously left those essential matters to be determined by the rules. This kind of delegated authority has become a common feature of recent legislations. In the rules we find that all the necessary details about the election of a Mayor and a Deputy Mayor are given For electing a President for that meeting the Councillors have to give votes by show of hands (Rule 3) Candidates for the two offices are to be nominated in writing in serially numbered nomination papers signed by a proposing and a seconding Councillor (Rule 4). Then comes Rule 6 prescribing the election in case if there are more than one validly nominated candidate for each office. It says that the President shall announce the names of the nominated candidates, ask for written intimations of withdrawal, if any, and then, if necessary, proceed to take a poll by ballot in the manner provided in Clauses (a), (b), (c) and (d). Clause (a) provides for distribution of ballot papers containing the names of all duly nominated candidates. Clauses (c) and (d) provide for the counting of the valid votes and declaring the elected candidate.
Clause (b) which is most relevant for our purpose has three parts. The First part provides that every Councillor desiring to vote shall proceed to record his vote by placing a cross mark against the name of the candidate for whom he wishes to vote. This part actually authorises a Councillor to vote and in doing so, it prescribes the way in which the voting shall be marked. The cross mark prescribed for such purpose is an integral and inseparable part of the authorising provision. It is not a case where the right to vote by ballot is only prescribed in the substantive enactment and the manner of recording the vote is left to be indicated later, by way of a mere guidance for the voters, either in the shape of an instruction on the ballot paper or in some other secondary way. The distinction between this provision in Rule 6(b) and that in the English Ballot Act in regard to the mark of voting is very significant. There is no warrant in the instant case to think that this part of Clause (b) was intended to be a mere direction and not a mandatory provision. It will be illogical to conclude that one portion, which authorises a Councillor to record his vote is mandatory and the other portion saying that the recording shall be by placing a cross mark against the name of a candidate is directory. Both the things have been intermingled into one and the intention of the rule-making authority becomes unmistakably clear to the effect that they prescribed the particular manner in which the intention of the voting Councillor is to be expressed at the election of the Mayor and the Deputy Mayor The rules have the statutory force and will be deemed to be a part of the Patna Municipal Corporation Act. In that view, there is no room left for a conjecture that a Councillor could express his intention of voting by using any voting mark on the ballot paper other than that prescribed in Clause (b). It is well known that when the law prescribes that an intention should be expressed in a particular manner, that has to be followed exactly, An intention not duly expressed in that way is in the same position, in a court of law, as an intention not expressed at all. This proposition was reiterated by their Lordships of the Supreme Court in the case of (S) AIR 1955 SC 233 where, with reference to the object of Section 100 of the Representation of the People Act, 1951, it was argued that the intention of the majority of voters for the choice of a representative was to be kept in view and a vote though not in compliance with the formalities, should be taken into account. Their Lordships considered in that case the provisions under Rule 47(1)(c) of the Representation of the People (Conduct of Elections and Election Petitions) Rules 1951, which provided a ballot paper shall bo rejected if it bears any serial number or mark different from the serial numbers or marks on ballot papers authorised for use at the polling station. They held that that provision was mandatory and must be fulfilled exactly as prescribed. They upheld the rejection of the ballot paper and discountenanced the argument that the intention of voting having been made clear in that ballot paper should be sufficient to accept it, in spite of the discrepancy in the serial number or mark on that paper.
10. Whether a statutory provision is mandatory or directory in nature, depends upon the determining factor which is the intention of the Legislature or the rule making authority, as in the present ease. The several considerations that may be invoked by way of an aid to determine such character of a particular provision were elaborately discussed in the case of Julius v. Bishop of Oxford, (1880) 5 AC 214. The intention of the authority making the rule can best be gathered from the context in which the particular provision is made. Applying such tests and considerations to the present case, I can only conclude that the prescription of a cross mark for recording a vote at the election of a Mayor and a Deputy Mayor is mandatory and has to be obeyed, absolutely and exactly. Whether that mark is to be given by pencil, pen, charcoal or chalk has not been prescribed and to that extent, the voter is free but in whatever way the mark may be put, it has to be a cross mark. There again, the freedom to make the two lines cross at right angles or at different angles remains open. The rule says that the cross mark shall be placed against the name of a candidate. It does not say on which side. If the ballot paper indicates the place of voting to the right of the name of a candidate, ordinarily the voter shall place his mark at that place; but if he, however, places the cross mark on the left side of the name of the candidate, that will not invalidate the ballot paper, because the indications and directions given in the ballot paper will be of a directory nature, as such things are not provided in the absolute enactment part of the statutory provisions,
11. The two other parts of Clause (b) of Rule 6 lend support to the view I have taken on its first part. The second part prohibits the voter from signing or making any mark on the ballot paper and enjoins upon him to place the marked ballot paper in the ballot box within the specified time. Having asked for a cross mark to be put as an expression of intention of voting, the rule prohibits the signing or making any mark. It appears that with a view to emphasising upon the use of cross mark alone that this prohibition has been included as a warning to the voter. By providing for a poll by ballot, the authorities made it clear that there will be secrecy in voting and thereby all elements leading to the disclosure of the identity of the voting Councillor are to be eliminated during the election, These rules do not specifically provide that a ballot paper which bears any mark or writing by which the elector can be identified shall be rejected. Such provisions are there in the Representation of the People (Conduct of Elections and Election Petitions) Rules 1951, as well as in the English Ballot Act. That is an inevitable feature of a poll by secret ballot. Even if it is not specifically provided in the present rules, it has to be taken to be applicable, The prohibition contained in the second part of Clause (b) of Rule 6 against signature or making any mark cannot be taken as a substitute for the provisions like "the ballot paper which bears any mark in writing by which the elector can be identified shall be rejected." By excluding signature or any mark, all other kinds of writing by Which an elector can be identified are not excluded, therefore, it will not be logical to think that by prohibiting signature or any mark, the rule making authorities wanted to import thereby the elimination of chance of disclosure of a voter's identity As I have said before, that feature has to ho taken as implied when the rule said that the poll will be by ballot which means secret ballot. The second part of Clause (b) containing the prohibitfon, therefore, in my opinion, strengthens the mandatory prescription of the voting mark to used as a cross mark.
The third part of Clause (b) lays down certain consequences. It says that if a Councillor votes for more candidates than the number of vacancies (this was not included in the prohibition contained in the second part) and signs the ballot paper or makes any other mark on it, his ballot paper shall be deemed to be invalid. I notice the word "other" before the word "mark" has been used in this part though that word was not used in the prohibition contained in the second part. "Any other mark" in this part means any mark other than the prescribed cross mark, otherwise there was no purpose in introducing the word "other" here. The consequences provided in the last part of Clause (b) are categorical and mandatory and leaves no discretion to the presiding or counting officer. Like the signature, any mark other than a cross mark put on the ballot paper will render the vote invalid In view of these provisions the rejection of the disputed ballot paper by opposite party No. 1 on account of use of a tick mark instead of a cross mark was correct and justified and there was no error in it.
12. Learned counsel for the petitioners referred us to the case of AIR 1964 Pat 51 where a ballot paper used by a member of the Bihar Legislative Council in the election of a representative to the Senate of the Bihar University in accordance with Section 17 of the Bihar University Act, 1960, was rejected by the Returning Officer on the ground that it contained two cross marks and militated against the directions printed at the foot of the ballot paper. Against that rejection, an application under Article 226 of the Constitution was Filed. Neither Section 17 of the Bihar University Act nor any other statutory provision prescribed about the voting mark to be used in that election. The form of ballot paper that was used for that election contained two instructions; one of them was "Please place a mark thus X against the name of the candidate for whom you wish to vote." The ballot paper in question appeared to bear two cross marks. The affidavit in reply in that case stated that there was a double impression of the cross mark that was put by the voter on the ballot paper on account of the folding of the paper, The court, however, proceeded on the basis that two cross marks were used by the voter against the name of one candidate. It was held that in a case of that description, the principle to be applied was that a ballot paper should not be rejected as void merely because there were two cross marks in respect of a particular candidate, if the marks are placed in such a position in the ballot paper as to leave no doubt for whom the voter intended to vote. Their Lordships followed the view expressed in the case of (1875) 10 CP 733 and followed In Phillips v. Goff, (1886) 17 QBD 805. The very fact that the voting mark (X) was mentioned only in the instructions noted on the ballot paper could of but indicate that it was merely of a directory nature and if that direction was substantially carried out, the vote could not be rejected. By putting two such prescribed marks there was no tack of substantial compliance with the instruction That is why their Lordships observed that a case of that description called for the application of the principle laid down by the case of (1875) 10 CP 733. The present ease, as I have already pointed out, is not one in which the prescription of the voting mark was by way of instruction or guidance or a mere direction but it was a part of the mandatory enactment
13. For the petitioners, stress was also laid on the case of (1886) 17 QBD 805. There, the Court was invited to lay down a general rule whereby the General Order and the Rules therein made under the Elementary Education Act by the Education Department with respect to elections of school boards may be construed consistently with the provisions of the Ballot Act, 1872. Under the Elementary Education Act a General Order of the Education Department provided that the poll at elections of school boards in boroughs shall be conducted in like manner as the poll at a contested municipal election is directed by the Ballot Act, 1872, to be conducted, and the provisions of that Act shall, subject to the provisions of this Order, apply to elections of school boards, provided that the form of directions for the guidance of the voter in voting contained in the Ballot Act shall be limited to the extent that the voter may place against the name of any candidate for whom he votes the number of votes he gives to such a candidate in lieu of a cross.
Every voter was entitled to a number of votes equal to the number of the members of the school board to be elected, and could give all such votes to one candidate or could distribute them among the candidates as he thought fit. In other words, the votes could be cumulative. On some of the ballot papers used in the election the voters had put, instead of numericals indicating the number of votes exercised by them in favour of particular candidates, either a single cross mark or several cross marks or cross marks and figures or single strokes, one or more. The Court applied the principle of (1875) 10 CP 733 referred to above. On that basis, the different ballot papers not containing the numerical figures of votes but cross or other marks were examined, wherever the intention of the voter appeared to be that he used a cross mark for one vote it was so taken. Where it appeared that he had used single strokes to indicate one such vote, that calculation was adopted. Where cross signs and figures were used, the figures were ignored and the cross mark was taken as indication of one vote. One ballot paper in which only one cross mark was put against the name of one candidate only was left for the Commissioners to determine if that should be taken as one single vote or an indication that all the votes available (in that case 11 votes) were intended to be given by the voter for that candidate.
In short, because numerical figures were asked to be used on the ballot paper by the General Order of the Education Department instead of cross mark as provided by way of a direction, in the second schedule of the Ballot Act an exact obedience by the voter was not insisted upon. As in the (1875) 10 CP 733 that part of the general order was taken to be merely directory in nature. Since I have taken the view that Rule 6(b) is not directory but mandatory. I cannot justify the application of the principle followed in any of three cases (1875) 10 CP 733; (1886) 17 QBD 805 and AIR 1964 Pat 51 to the present case.
14. The result, therefore, is that the application is dismissed but in the circumstances of the case without any costs Tarkeshwar Nath, J.
15. I agree.