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equal votes. The lot fell in favour of the revision petitioner and, accordingly, adding one additional vote in her favour, Smt.Rajeena, the revision petitioner was declared elected. Her election was impeached by the 1st respondent filing an election petition as O.P.(Election) No.3/05 before the Munsiff's Court, Perumbavoor. Among other allegations impeaching the election of the revision petitioner, it was contended that the Returning Officer removed one ballot paper in which vote had been cast in favour of the petitioner (1st respondent) and that it was on account of collusion and conspiracy with the 3rd respondent (revision petitioner) that respondent was declared elected after taking lots. It was further imputed that lots were taken after noticing of the missing of one ballot paper and discarding the mandatory provisions as to reporting of such missing of ballot paper before the election commission and awaiting further directions/orders in the matter for proceeding further with respect to the election :: 3 ::
held in that particular ward.

2. The revision petitioner, who was the 3rd respondent in the above original petition, filed a statement repudiating the allegations levelled in the petition impeaching her election. The 1st respondent in the petition, who was the Returning Officer also filed a statement traversing the allegations raised in the writ petition imputing partiality of favouring the 3rd respondent, the candidate who was declared elected. The learned Munsiff, after considering the materials produced and hearing the counsel on both sides, found merit in the case canvassed by the petitioner in the election petition that there was non-compliance of the mandatory procedural requirements covered by Section 78 of the Panchayat Raj Act {for short 'the Act'}, when a ballot paper was found missing during the counting of votes. In such a contingency on detection of missing of ballot paper and where equal votes had been obtained by two candidates in :: 4 ::

anything more, would not be sufficient to bring such a case within the sweep of Section 78 of the Act. At the most the detection of the missing of a ballot paper during counting of votes would indicate that such ballot paper was 'lost'. Section 78 of the Act specifically states when the ballot paper or papers are unlawfully taken from the custody of the Returning Officer or accidentally or intentionally destroyed or lost or tampered with, a report from the Returning Officer to the Election Commission is necessary. Missing of a ballot paper detected during counting, that alone, is not enough to hold that such ballot paper was accidentally or intentionally destroyed or lost or tampered with. The word 'lost' in the section is not to be read in isolation but with reference to the other circumstances mentioned - destroyed or tampered with - and that too caused accidentally or intentionally. Accident, no doubt, is the product of an unforeseen event. But a mere missing of a ballot paper at the time of counting with :: 8 ::
no circumstances presented as to how it happened does not cast an obligation, leave alone any mandatory requirement, on the Returning Officer to report the matter to election commission and await for further direction. The returning officer is the best judge to determine and analyse the situation whether the missing of such ballot paper comes within the ambit of 'lost' under Section 78 of the Act. After counting of votes the contesting candidates got equal number of votes and that being so, the missing ballot paper had much value, could not be the criteria or guiding factor in interpreting the provisions of Section 78 of the Act, which is applicable only under the circumstances or situations presented thereunder. A ballot paper was found missing during counting, and that alone, even where the contesting candidates secured equal votes, is not sufficient to hold that the returning officer was bound to follow the procedure under Section 78 of the Act. Each and every situation mentioned in the Section is not to :: 9 ::