ORDER
S.S. Subramani, J.
1. First respondent in Election O.P.No. 229 of 1996, on the file of Election Tribunal (Principal District Judge), Chengalpattu, is the revision petitioner.
2. First respondent herein filed the above election petition to declare that the election of the petitioner herein as President of Putheri Village Panchayat is void, and to direct the respondents 1, 5 and 6 in the election petition to pay costs of the proceedings; and also to grant other suitable reliefs.
3. In the election petition, it is averred that the election petitioner had contested for the post of President of Putheri Village Panchayat, Kancheepuram Taluk. He was allotted ‘Roller” symbol for the election held on 9.10.1996. Even though he had more prospectus for being elected as President of the Panchyat, they were spoiled by respondents 1, 5 and 6 in the election petition due to various acts, viz., (a) Even though there were only five contesting candidates in the election for the post of Panchayat President, in the ballot papers, there were six symbols as if there were six contesting candidates, which is against the provisions of the Tamil Nadu Panchayats Act, 1994 and Rules framed thereunder; (b) The 5th respondent-Returning Officer has not counted the postal ballot papers at all, as per Act and Rules; (c) The 1st respondent (petitioner herein) adopted corrupt practices as follows: (i) He gave bribery to voters to secure votes; (ii) He supplied liquor to the voters on 8.10.1998, requesting them to cast votes in his favour; (iii) He made publications in Government Office buildings and also in waterhead tanks against the Rules and circulars; (iv) He hired two Ambassador cars and a lorry for conveyance of the voters; (d) The 1st respondent (petitioner herein) spent more than Rs. 75,000 for the President election, which is contrary to the Act and Rules, (e) The request of the ejection petitioner to stop the election on the ground that the ballot papers were not correctly given, was arbitrarily rejected by the returning officer, in collusion with the first respondent; (f) There was impersonation, by casting the votes of dead persons and persons who were shifted to some other places, at the instigation of first respondent, (g) The user of improper ballot papers by fifth respondent-Returning Officer considerably reduced the votes in favour of election petitioner as it caused lot of confusion among the voters, who are illiterate; (h) First respondent has also taken advantage of the appointment of his close relatives i.e., G. Oraaji and M. Manohar, in the Mettu Nagar Booth, to secure votes in his favour against the wish and identification of symbols by the electors, and (i) Due to improper ballot papers, there were more invalid votes found in the boxes. For these reasons, election petitioner filed the election O.P. for the aforesaid reliefs.
4. A detailed counter statement was filed by petitioner herein, repudiating the allegations made by the election petitioner.
5. When the matter came for trial, election petitioner filed a memo before the tribunal below, stating that he is not pressing the other grounds in the election petition except the printing mistake in the ballot papers used during the election in the above case.
6. The memo was recorded. Thereafter, the tribunal below passed the impugned order. Petitioner did not think of adducing any evidence, and a decision was arrived at by the tribunal below, after marking Ex.B-1 and Ex.C-1. Ex.B-1 is a list showing the candidates who participated in the election for the post of President of Putheri Village Panchayat. Ex.C-1 is a specimen ballot paper issued to voters in that election.
7. By the impugned order, the tribunal below declared the election void. The same is challenged in this revision petition, under Article 227 of the Constitution of India.
8. Before the election tribunal, an argument was raised that so long as there is no evidence of any kind to show that the result of the election has been materially affected, the election petition can only be dismissed. The tribunal did not accept the said argument since it was of the view that prima facie by the improper printing of the symbol, the result of the election might have been materially, affected. If the symbols had been properly printed, election petitioner’s symbol must be in the third place where the lorry is printed. The roller is printed as the last one, and, therefore, the illiterate voters might have got confused.
9. When the matter came for admission, since the first respondent had entered appearance by filing caveat, I heard learned Counsel at the initial stage itself, who sought time to file counter. I also passed an order of interim stay. Thereafter also, learned Counsel for first respondent was seeking adjournments and the interim order was being extended from time to time. Subsequently learned Counsel who had filed the caveat withdrew from the case, and another learned Senior Counsel entered appearance.
10. Learned Counsel for petitioner submitted that the election petition ought to have been dismissed even before issuing notice to the petitioner herein. Main reason for taking such a contention is that there is no averment in the election petition that due to the reasons mentioned for setting aside the election or for getting the declaration sought for in the election petition, election petitioner has not averred that the alleged reasons have materially affected the result of the election. So long as there is no pleading as contemplated by the Statute, the election petition should have been dismissed.
11. As against the said contention, learned senior counsel for first respondent submitted that if it is found that there is an irregularity in the proceedings which likely to affect the result of the election, the mere lack of pleading should not stand in the way of granting the relief.
12. Section 258 of the Tamil Nadu Panchayats Act, 1994 deals with filing of election petition, and Section 259 deals with grounds on which election could be declared void. Relevant portion of Section 259 of the act reads thus:
259. Grounds for declaring elections to be void: (1) Subject to the provisions of Sub-section (2), if the District Judge is of opinion-(d) that the result of the election in so far as it concerns a returned candidate has been materially affected-
(iv) by the non-compliance with the provisions of this Act or of any rules or orders made thereunder.
The entire Section 259 of the Act is similar to Section 100 of the Representation of People Act under which election to a legislative assembly or Parliament could be declared void.
13. In Pandit Shree K. Selot v. K. Pujari , the question of lack of pleading was considered. In that case, at the last stage of the election, without permission of the Returning Officer, the place of voting was changed. An argument was advanced that was one of the reasons why the election petitioner in that case failed in the election. In paragraph 6 of the judgment, it was held thus:
…As regards the change of the polling booth, the High Court has found that the place of booth as Mudari Bujurg was changed to the new school about half a furlong away from the old school. But there is no allegation made in the election petition that due to the change of place of voting, the result, of the election so far as it concerned the respondent had been materially affected. According to Section 100 (i) (d)(iv) of the Act if there had been any non-compliance with the provisions of the Constitution or of the Act or any rules or orders made under the Act, the appellant must show that the result of the election in so far as it concerns the returned candidate has been materially affected, if he wants the election of the returned candidate to be declared void. There is no evidence on this point and even assuming that the polling booth was first fixed to be the old school and it was subsequently changed by Laxman Namdeo without the permission of the appropriate authority, the election cannot be held to be void in the absence of any proof that the result of the election was materially affected so for as it concerned the appellant.
[Italics supplied]
The finding of the High Court was confirmed by the Honourable Supreme Court.
14. In Charan Dass v. Surinder Kumar (1995) 3 S.C.C. (Supp.) 318, the counting procedure was challenged. But in that case, also, there was no pleading that the result of the election has been materially affected. The Punjab and Haryana High Court held that the election petition itself is vague and except for the general allegations, no materials have been pleaded. While considering the same, in paragraph 3, the Honourable Supreme Court held that ‘before proceeding further, a glaring omission in the petition may be noticed here, namely, that it has not been alleged that the result of the election has been materially affected by all or any of the alleged irregularities during counting’. The learned Judge of the Punjab and Haryana High Court held that in view of the lack of pleadings, election petitioner has not disclosed any cause of action and the omission to plead that the result of the election was one of the considerations taken by the learned Judge. The decision was confirmed by the Honourable Supreme Court in that case. According to me, the election petition in this case also should have been rejected at its very inception, since it does not disclose any cause of action. The argument of learned Counsel for revision petitioner in this regard is, therefore, to be accepted.
15. Even though various grounds were taken in the election petition challenging the election, subsequently by filing a memo before the tribunal, the only point that survived for consideration was ground (a), namely, even though there were only five contesting candidates in the election for the post of Panchayat President, in the ballot papers, there were six symbols as if there were six contesting candidates, which is against the provisions of the Tamil Nadu Panchayats Act, 1994 and Rules framed thereunder.
16. I have already said that no evidence was let in by either parties. The tribunal assumed many things which are not averred in the election petition. The only ground taken in the election petition is that six symbols were shown when there were only five contesting candidates.
17. In Mahadeo v. Udai Pratap , the symbol of a candidate was rightly printed, but his name was printed wrongly, This was taken as a ground for challenging the election. An argument was advanced that the mistake in printing the name of the candidate amounts to violations of the Rules and, therefore, that has affected the result of the election, In paragraph 16 of the judgment, their Lordships held thus:
…we are left with only one irregularity and that has been introduced by the misprinting of the name of respondent No. 1 on the ballot papers; and this irregularity can legitimately be treated as falling under Section 100(1 )(d)(iv) of the Act. Misprinting pf the name of respondent No. 1 on the ballot papers amounts to noncompliance with Rule 22 of the Rules; But the proof of such non-compliance does not necessarily or automatically render the election of the appellant void. To make the said election void, respondent No. 1 has to prove the non-compliance in question, and its material effect on the election. This latter fact he has failed to prove, and so, his challenge to the validity of the appellant’s election cannot be sustained.
[Italics supplied]
18. I have already extracted the pleading in the election petition. Even though petitioner alleged various other grounds, by filing a memo, even the allegation that he complained to the election officer and requested to stop the election, was also withdrawn. It follows, therefore, that during the course of the election, election petitioner did not have any complaint about the ballot paper. In this case, petitioner herein obtained 512 votes, and invalid votes are only 116. Election petitioner obtained only 213 votes. Even if all the invalid votes are added to the account of the election petitioner, it will be much less than the votes secured by petitioner herein. There were other candidates also. One Saravanan (3rd respondent in Election O.P.) obtained 412 votes, which is above the elections petitioner V. Varadarajan, 4th respondent, who was another candidate, also obtained more votes than the election petitioner. Election petitioner was in fourth or fifth rank, and, therefore, he cannot contend that the votes polled in favour of other candidates were intended for him. Even if all the invalid votes are considered due to the mistake in the printing of ballot paper and if all these votes are taken to the credit of the election petitioner, that is not going to materially affect the result of the election. The tribunal, after extracting Section 259(1)(d)(iv), in paragraph 10 has considered something which was not the case of even the election petitioner. In para. 10 the election tribunal has held that as per Rule 31 of the Panchayats (Election) Rules, the Returning Officer should prepare Form No. 9 after the expiry of the period for withdrawal of nomination papers. The said list shall contain the names in the order of Tamil alphabet and also their addresses as given in the nomination paper. As seen from Ex.B-1, the returning officer has prepared the list as prescribed in the Rules. Then, the tribunal, taking into consideration Rule 49(1), has said that the ballot paper should contain the names or symbols as given in Form 9 or in Form No. 14-B. The tribunal has further said that in this case the returning officer has prepared Form No. 9 as seen from Ex.B-1 and according to this Form, only five candidates were in the field and their symbols are, bulb, aeroplane, handroller, lorry, bow and arrow. Therefore, the ballot paper also should contain the symbols printed in the same series. But, as seen from Ex.B-1, bow and arrow, bulb, lorry, aeroplane, light house and handroller are printed one by one. It is said that contrary to the Rules framed under the Act, the ballot papers were printed and distributed at the time of election. The argument is that the election petitioner’s symbol ‘handroller’ should have been printed at the third place. Even the Election petitioner has no such case, and the only allegations is the six symbols were printed for five candidates. Therefore, according to me, the tribunal below has traversed far beyond the case of the election petitioner.
19. Learned Senior Counsel for first respondent submitted that the word used in Section 259 (1) of the Act is that if the District Judge is of ‘opinion’. The argument was that if the District Judge forms an opinion on the basis of the circumstances, it is not liable to be interfered with under Article 227 of the Constitution. It is well settled that the opinion of a tribunal, cannot be based on subjective satisfaction, but it must be based on necessary pleading and proof. He cannot form an opinion when there is no evidence and also based on surmises. In this case, tribunal has assumed many things beyond the case of even the election petitioner.
20. The tribunal assumed that because the electorate are mostly illiterate, there was confusion among them. This is also a matter for which there is absolutely no evidence, and the tribunal cannot assume something for granting relief, to which the election petitioner is not entitled. The tribunal also went wrong in holding that the voters thinking that the third symbol must be the symbol pf the election petitioner, would ha\e affixed the marking, and if so, definitely the election is materially affected. This is not the case of even the election petitioner. I do not find any averment in the election petition that the voters were misled by the mistake committed in printing the ballot papers. It is well-known that in election matters, the voters act more by the symbol than by the names of candidates, and illiterate people identify candidates only by the symbols. Again there is no statement in the Election petition that the third symbol must be that of the election petitioner, and the absence of the same in the third place, has created confusion in the mind of the voters. The tribunal, in my view, has exceeded its jurisdiction in granting a relief to the election petitioner.
21. Learned Senior counsel for first respondent further submitted that Article 227 of the Constitution should not be invoked when the finding of the election tribunal is based on material facts, and on those facts such a view could be taken.
22. The said submission also cannot be accepted. I hold that the finding of the election tribunal is based on no evidence, and in fact there was also no evidence for entering such a finding. The finding rendered by the election tribunal in this case is perverse, and that justifies this Court invoking its jurisdiction under Article 227 of the Constitution of India.
23. In the result, I allow the civil revision petition, and Election Petition No. 229 of 1996, on the file of Principal District Judge, Chengalpattu, will stand dismissed. It was brought to my notice by learned Counsel for petitioner that consequent to the order of the tribunal below. The District Collector of Kancheepuram has notified vacancy for holding fresh election. Such a notification was issued on 29.9.1998. Now that I have held that the tribunal’s decision is wrong, and I have set aside the same, the declaration by the District Collector also will have no effect. I hold that the petitioner herein continues as the duly elected President of Putheri Village Panchayat of Kancheepuram Taluk. Petitioner herein is entitled to his costs both before the election tribunal as well as before this Court. Advocate fee in revision is quantified at Rs. 3,0000 (Rupees three thousand). C.M.P.No. 14308 of 1998 for stay is closed.