JUDGMENT M. Madhavan Nair, J. 1. This is a petition under S.100(1)(d)(iii) and (iv) and S.100(1)(a) of the Representation of the People Act, 1951 hereinafter the Act. 2. 'Petitioner and respondents 1 to 3 contested for a seat in the Kerala Legislative Assembly from Wadakkancherry Constituency at the General Elections held on 20th February 1967. After scrutiny and counting on the next day the 21st, the Returning Officer rejected 2590 ballot papers as invalid, announced the petitioner and the respondents 1 to 3 to have polled 22173, 23857, 1099 and 962 votes respectively and therefore declared the 1st respondent to have been duly elected. The petitioner challenges it on the allegations, (1) "The counting supervisors rejected as invalid many votes which were validly marked for the petitioner (though they) have no authority to take decisions on the validity of votes. (2) many votes which were polled in favour of the 2nd and 3rd respondents were bundled up along with the votes polled in favour of the 1st respondent, (3) the petitioner's counting agents could not object to it (the above) in many cases because there was only one counting agent at each table where three counting supervisors and assistants were sorting and counting votes for the different candidates, (4) in bundles on the top of which votes polled in favour of the 1st respondent were placed there were below votes polled in favour of the petitioner, (5) there is every reason to suspect that ballot papers have been removed from the counting table, (6) the votes of those persons who tendered their votes later were cast earlier by those (who) personated them, (7) each elector while entering the polling booth was given two ballot papers, one for the Parliament and another for the Assembly, (and) this new method was responsible for a higher percentage of invalid votes in Kerala than in other States in India (and) a larger number of invalid votes than during the last elections, and (8) the result of the election has been materially affected by improper reception and rejection of votes and by a reception of votes which were void and by non compliance of laws;" and prays (i) that the votes be re-examined and recounted, (ii) that the election of the 1st respondent be declared void, and (iii) that the petitioner be declared as duly elected. 3. 3. The 1st respondent has by a written statement denied the allegations made against his election but has not recriminated under S.97 of the Act. The following 13 issues have been set for trial. 1. Who decided the invalidity of rejected votes, and has he authority to do so ? 2. Was any ballot paper that has been duly marked for the petitioner rejected as invalid 3. Has any ballot paper marked for the petitioner been counted for the 1st respondent ? 4. Has any ballot paper marked for the 2nd or 3rd respondent been counted for the 1st respondent? 5. Has any ballot paper been removed from the counting table? If so, what is the number thereof and has it affected the result of the election? 6. Was any vote given by false personation? Are the tendered votes valid? 7. Was the system of giving two ballot papers, one for the State Legislative Assembly and the other for the Parliament, simultaneously not lawful? Was it discriminatory and violative of Art.14 of the Constitution? Has it caused invalidity of votes? If so, what is the extent thereof and has it affected the result of the election? Can these questions be gone into in an Election Petition? 8. Has the result of the election been materially affected by improper reception and rejection of votes or by non compliance of the laws and rules? 9. Is the petitioner entitled to a recount of all the votes? What is the effect of his not having made a written request under R.63(2) of the Conduct of Election Rules, 1961 ? 10. Is the election of the 1st respondent void? 11. Is the petitioner entitled to be declared as duly elected ? 12. Has the petitioner complied with the requirements of S.83(1)(c) of the Representation of the People Act, 1951 ? If not, is the petitioner entitled to urge corrupt practices in the counting of votes ? 13. To what relief is the petitioner entitled? 5. The petitioner examined 4 of his counting agents as pws. 1 to 4 and himself as Pw.5, and the 1st respondent examined the Returning Officer as R.W.I md himself as R.W. 2 and marked the relevant result-sheet as Ex. R-1. 6. 13. To what relief is the petitioner entitled? 5. The petitioner examined 4 of his counting agents as pws. 1 to 4 and himself as Pw.5, and the 1st respondent examined the Returning Officer as R.W.I md himself as R.W. 2 and marked the relevant result-sheet as Ex. R-1. 6. I must acknowledge the large assistance given and the excellent arguments presented by counsel on both sides and pay a tribute to them both, and in particular to Mr. Kalathil Velayudhan Nair for his able presentation of the petitioner's case. 7. As counsel for petitioner argued, the main point in the case is issue No.9: "Is the petitioner entitled to a recount of all the votes." The contention is that the petitioner was allowed only one counting agent for each table where 3 officers one counting supervisor and two counting assistants were simultaneously sorting and counting ballot papers, which made it physically impossible to watch and see the sorting and counting of all ballot papers and therefore the petitioner is led to believe that many a miscount or wrong acceptance of votes in favour of the 1st respondent must have escaped unnoticed and that therefore a general inspection of ballot papers and recount of votes has to be ordered to ascertain the true result of the poll. In support of this contention counsel cited Brij Sunder Sharma v. Sri Ram Dutt AR 1964 Raj. 99, Hukam Singh v. Banwari Lal Bipra AIR 1965 All. 552 and Bhim Sen v. Gopali 22 ELR 288. 8. Brij Sunder Sharma v. Shri Ram Dutt AIR 1964 Raj. 99 was decided long before the Supreme Court pronouncements in Jabar Singh v. Genda Lal AIR 1964 SC 1200 and Ram Sewak Yadav v. Hussain Kamil Kidwai AIR 1964 SC 1249 and the material grounds on which a recount was ordered in that case were (1) discrepancy between ballot papers issued and ballot papers counted of certain polling stations which prima facie indicated miscounts and (ii) the Returning Officer's deliberate avoidance of an application for recount which he knew was being prepared for presentation to him under R.63(2) of the Conduct of Election Rules, 1961 hereinafter the Rules by a hasty declaration of the result of the election. The difficulty to watch the counting that was done a 15 tables, with a supervisor and two assistants at each, by six counting agents which were asked to be seated behind the supervisors and were not allowed to move about from their seats is adverted to therein only as a justification for not giving particular of the ballot papers alleged to have been improperly received, refused or rejected In the present case though the deposition of the Returning Officer as R.W.I is "Less than 5 minutes before the result-sheet was signed I announced the total number of votes polled by each candidate and also the total number of invalid votes", then is no allegation that he did so in undue haste or that the petitioner wanted to apply for a recount but was prevented by the hasty declaration of the results of the election by the Returning Officer. It has been averred in para 6 of the election petition "The total number of ballot papers issued were not found at the time of counting.' Petitioner, as Pw.5, said there was such a deficiency, but no material fact is giver as to the polling stations where the discrepancy was found and the extent of the deficiency noted. The relevant Ballot Paper Accounts are not called. Even though the Returning Officer has been cited and examined, he has not been questioned as to the existence of any such discrepancy. Even in para 6 of the election petition the allegation is only that such discrepancy gives room "to suspect that ballot papers have been removed from the counting table," which bears no proof in this case. Though normally, such a deficiency may be ground to infer that ballot papers stuck to one another at the time of counting and caused miscount thereby, as the primary fact of existence of deficiency in ballot papers counted has not been proved it cannot avail the petitioner as a ground for a general recount. In the Rajasthan case AIR 1964 Raj. 99 the High Court has reiterated and followed certain observations of the Supreme Court in Bhim Sen v. Gopal 22 ELR 288 which was subsequently reconsidered by a Constitution Bench of the Supreme Court in Ram Sewak Yadav v. Hussain Kami Kidwai AIR 1964 SC 1249 and held not to be general statements of law. 9. In Hukam Singh v. Banwari Lal Bipra AIR 1965 All. 9. In Hukam Singh v. Banwari Lal Bipra AIR 1965 All. 552 both the petitioner and the 1st respondent (the returned candidate) moved the same day for inspection of ballot papers which was immediately allowed by the Election Tribunal even though the 1st respondent had not then filed his written statement, probably because both the parties were anxious to see the contents of the ballot boxes as they were allowed only 2 counting agents to watch the counting done at 12 tables. The Court held that both parties were equally guilty in fishing evidence by inspection (vide: para 14 of the AIR report) and that in the circumstances of the case no case was made out for rejecting the evidence in respect of the ballot papers which had come on record of the case (vide: para 15). "The question whether the petitioner was entitled to a recount" is considered in paras 16 and 17 of the judgment and it is held: "....a candidate who seeks a declaration that the election of the returned candidate was void and that he (the petitioner) was duly elected on the ground that if the votes had been properly counted he would have got majority of votes, is not entitled to have a recount of the votes as a matter of absolute right but a recount can be ordered only if he makes out a prima facie case that if the votes had been properly scrutinised and counted he would have got a majority votes." In that case the Election Tribunal had found that in the Ballot Paper Account and in the Result Sheet the 1st respondent has been credited with 151 votes at Polling Station No. 84, while the bag of his votes in that Polling Station contained only 100 ballot papers, and that the Returning Officer was right in saying that "there could be no possibility of any mistake in the count of ballot papers noted in the Forms Nos. 16 and 20 which rested on a checking and rechecking... .(but) there could be possibility of mixing up of the ballot papers of one Polling Station with the ballot papers of other Polling Station or with the ballot papers of other candidates", and the Court held these facts made out a prima facie case for a general inspection and recount, particularly as "the margin of difference was only 47" votes. .(but) there could be possibility of mixing up of the ballot papers of one Polling Station with the ballot papers of other Polling Station or with the ballot papers of other candidates", and the Court held these facts made out a prima facie case for a general inspection and recount, particularly as "the margin of difference was only 47" votes. (Vide- paras 18 and 19) None of the grounds that made out a case for inspection and recount of ballot papers in the above two cases is available in the present case. 10. Now I come to Bhim Sen's case 22 ELR 288 decided by the Supreme Court. Bhim Sen polled 28548 votes, but was defeated by Gopali by a majority of 8 votes, in the election in a double-member constituency (since then abolished). Under Section 63 of the Act, as it originally stood, every elector in a double-member constituency had two votes, but he should not give them both to one candidate and it was incumbent upon the Returning Officer at counting to go into each case of double voting in order to reject one of the two votes given for the same person. Bhim Sen alleged in the election petition that by the Returning Officer's failure to scrutinise double votes he believed that Gopali could receive many void votes. Bhim Sen's application for inspection of the void votes was allowed by the Election Tribunal and it was discovered that 37 voters had cast double votes for Gopali. Bhim Sen then applied for amendment of his election petition to add a specific statement that 37 void votes' had been counted in favour of Gopali, with particulars of those votes in a separate annexure to the petition. The Tribunal allowed the amendment in spite of opposition, and on its basis deducted 37 votes from the votes counted for Gopali; and, rejecting an application for inspection for a like defect in Bhim Sen's ballot papers, declared Gopali's election void and Bhim Sen to have been elected. On appeal, the Allahabad High Court reversed the amendment and dismissed the election petition. On appeal, the Allahabad High Court reversed the amendment and dismissed the election petition. Gajendragadkar J., with concurrence of Das Gupta C J., reversed the High Court and restored the order of the Election Tribunal, observing, "....the appellant had specifically averred that the failure of the returning officer to discharge his duty under S.63 of the Act had inevitably resulted in the fact that double votes had been obtained by respondent 1 ................ In this connection it must be borne in mind that particulars in regard to the allegation of this kind could be more definitely supplied only g after the ballot box is opened and not till then. R.138(now R.93) provides for the production and inspection of election papers. Until the said papers are produced and inspected as provided by the said rule it would be difficult, if not impossible, for, any party to allege affirmatively how many void votes had been counted in favour of the candidate ........" Apart from the fact that, when a Judge's mind is pre-occupied by the case before him, his thoughts and expressions would be bounded by the facts and circumstances of that case which he is deciding, and the rule therefore that every observation in a judgment has to be read Secundum subjectam materiam, it is clear from the expression of the above observation that it is limited to allegations of a particular kind, viz., allegations of double voting for a candidate in a double-member constituency which the Supreme Court held, cannot be detailed except after an inspection of the ballot papers, and has no relevance to allegations as in the present case of improper reception, refusal, or rejection of votes. The observation of the Rajasthan High Court in Brij Sunder Sharma v. Shri Ram Dutt AIR 1964 Raj. 99 . "..... the above observations are in our opinion applicable to all cases where the Tribunal finds that it is difficult for the election petitioner to give fully particulars of the ballot papers improperly rejected, improperly accepted or wrongly sorted out without inspecting the ballot papers." cannot be accepted in the light of the pronouncement to the contrary of a Constitution Bench of the Supreme Court in Ram Sewak Yadav v. Hussain Kamil Kidwai5 to which both the learned Judges who made the observation were parties which will be referred to immediately. The tribunal's refusal of Gopali's prayer to counter check Bhim Sen's votes was upheld by the Supreme Court by the observation: "It is true that after it was discovered that he had received 37 void votes respondent 1 attempted to make an allegation that the appellant may likewise have received similar void votes, but it was too late then, because the time for making such an allegation by way of a recriminatory proceeding had elapsed and respondent 1 had failed to furnish the security of Rs. 1,000 as required by S.97(2) of the Act". The above two dicta in Bhim Sen v. Gopali 22 ELR 288 came up for consideration by Constitution Benches of the Supreme Court when the latter dictum was affirmed in Jabar Singh v. Genda Lal AIR 1964 SCC 1200 and much of the sap of the former dictum as a general proposition was washed away in Ram Sewak Yadav v. Hussain Kamil Kidwai AIR 1964 SC 1249 11. In Jadar Singh v. Genda Lal 22 ELR 288 Gajendragadkar J. (as he then was) speaking for a majority of four of the five learned Judges , observed: "... When an election petition is filed before an Election Tribunal challenging the validity of the election of the returned candidate, prima facie,...the voting papers which have been counted are...presumed to be valid. The election petition may challenge the validity of the votes counted .........; that is a matter of proof. But the enquiry would commence in every case with prima facie presumption in favour of the validity ......... of the voting papers which have been counted. It is necessary to bear in mind this aspect of the matter in dealing with the question about the scope and nature of the enquiry under S.100 and 101 of the Act. ..... (W)e take a simple case of an election petition where the petitioner makes only one claim and that is that the election of the returned candidate is void ....... what the Tribunal has to consider is ........ whether any votes have been improperly cast in favour of the returned candidate, or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not ................... whether any votes have been improperly cast in favour of the returned candidate, or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not ................... There are, however, cases in which the election petition makes a double claim: it claims that the election of the returned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected .... If the returned candidate does not recriminate as required by S.97, then he cannot make any attack against the alternative claim made by the petition ..... If the returned candidate has recriminated and has raised pleas in regard to the votes cast in favour of the alternative candidate or his votes wrongly rejected, then those pleas may have to be tried after a declaration has been made under S.100 and the matter proceeds to be tried under S.101(a) .... the enquiry which is governed by S.101(a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under S.97(1). ... .the High Court was disposed to take the view that the enquiry under S.101(a) was wider and that in making its finding under the said provision, it was open to the Tribunal to scrutinise the votes and determine whether in fact, the petitioner or some other person had received a majority of the valid votes. As we have already indicated, this would be the position only if the returned candidate had recriminated; in the absence of recrimination, it would not be open to the Election Tribunal to allow the returned candidate to challenge the validity of votes cast in favour of the petitioner or any other candidate in whose favour a declaration is claimed by the Election petition or to contend that any of his votes were improperly rejected." Ultimately the learned Judge concluded: "..... .in holding an enquiryeither under S.100(1)(d)(iii) or under S.101, where S.97 has not been complied with, it is not competent to the Tribunal to order a general recount of the votes preceded by a scrutiny about their validity." Counsel for petitioner pointed out that there was no challenge in that case to the recount made at the instance of the petitioner to check improper rejection of petitioner's valid votes (for which the bundle of invalid votes only was to be inspected)-and improper acceptance of votes in favour of the 1st respondent (for which the bag of the 1st respondent's valid votes only was to be inspected), and that such a partial inspection of ballot papers and recount of votes might be done on an election petition independently of any recrimination by the returned candidate, while an inspection of the petitioner's valid votes and a scrutiny of invalid ballot papers to find valid votes of the returned candidate which were improperly rejected by the Returning Officer, or a general recount which will include the above cannot be ordered in the absence of recrimination by the returned candidate. I think counsel is right and what he said is the correct import of the Supreme Court dictum. 12. In Ram Sewak Yadav v. Hussain Kamil Kidwai AIR 1964 SC 1249 the Election Tribunal had rejected an application for inspection made by the petitioner on the ground that facts have not been 'brought to its notice making out a primafacie case disclosing that errors were committed in reception, refusal or rejection of votes at the time of counting'. But the Allahabad High Court reversed it and remanded the Election Petition for a fresh trial after inspection of the ballot papers by both the parties. But the Allahabad High Court reversed it and remanded the Election Petition for a fresh trial after inspection of the ballot papers by both the parties. Shah J., speaking for a Constitution Bench which included the learned Judges who decided Bhim Sen v. Gopali 22 ELR 288, reversed the High Court and observed: "An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled: (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly. if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection." After reading the rules relating to counting in the Conduct of Election Rules, 1961, his Lordship continued, "There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes, and to demand a recount. Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a recount. He has also opportunity of inspecting rejected ballot papers, and of demanding a recount. It is in the light of the provisions of S.83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a recount that the application for inspection must be considered. In the petition filed by Kidwai the material allegations in support of the claim that there had been improper reception, refusal or rejection of votes were .... that numerous ballo-papers cast in favour of the petitioner were wrongly included in the 'bundles of the respont dents', .... that due to a ' deficiency in the supply of sealing ink, marks on ballot papers though not quite clear, yet the marks clearly indicating the intention of the voters, were wrongly rejected as invalid by the returning officer'... .that 'the petitioner is confident that if the votes actually cast in favour of the petitioner are counted as votes of the petitioner and if the improperly accepted votes which have been counted in favour of other respondents are taken out, and if the ballot papers are correctly sorted, counted and bundled, the respondent No. 1 will be found to have polled less votes as compared to petitioner, '.... (and) that 'the result of the Election has been materially affected by the improper acceptance and refusal of votes by the incorrect sorting, counting and bundling of ballot papers'. These averments in the petition for setting aside the election on the ground of improper acceptance or rejection of votes were vague, and did not comply with the statutory requirements of S.83(1)(a). Para.12 is deficient in the recital of material facts which must be deemed to be within the knowledge of the petitioner and merely asserts that if the votes actually cast in favour of the petitioner are counted, the total number of valid votes found in his favour would exceed the number of votes received by Yadav. Having regard to this infirmity the Tribunal was justified in declining to make an order for inspection of the ballot papers unless a prima facie case made out in support of the claim. Having regard to this infirmity the Tribunal was justified in declining to make an order for inspection of the ballot papers unless a prima facie case made out in support of the claim. The Tribunal has undoubtedly to exercise its discretion if it appears to be in the interests of justice, but the discretion has manifestly to be exercised having regard to the nature of the allegations made-The Tribunal would be justified in refusing an order where inspection is claimed with a view to fish out materials in support of a vague plea in the case set out in the petition. ....The allegation of Kidwai that he was satisfied that on inspection and scrutiny of ballot papers he would be able to demonstrate that there had been wrong counting on account of improper reception, refusal or rejection of votes was wholly insufficient to justify a claim for inspection He had to place before the Tribunal evidence prima facie indicating that an order for inspection was necessary in the interests of justice, which he failed to do." Referring to the dictum in Bhim Sen's case 22 ELR 288 His Lordship observed: "Reliance was placed both before this court and the High Court, upon the decision of this Court in Bhim Sen v. Gopali, 22 Ele. LR 288 (SC) in support of the plea that mere absence of particulars will not furnish a ground for declining to grant inspection and that a defeated candidate is entitled to establish his case that void votes had been counted and included in the votes of the successful candidate from the evidence collected from inspection of the ballot papers ........We do not think that Bhim Sen's case lays down any general principle that a party is entitled without making allegations of material facts in support of his plea to set aside an election, to claim an order for inspection of the ballot papers and seek to supply the lacuna in his petition by showing that if all the votes are scrutinized again by the Tribunal it may appear that there had been improper reception, refusal or rejection of votes at the time of counting. To support his claim for setting aside the election the petitioner has to make precise allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge. To support his claim for setting aside the election the petitioner has to make precise allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge. The nature of the allegations must of course depend upon the facts of each case. But if material facts are not stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot papers. In Bhim Sen's case, the Court was primarily concerned with the question whether amendment of the petition to set aside an election should be granted. It was alleged by the defeated candidate that there had been contravention of the provisions of S.63(1) of the Act by the Returning Officer and the election was materially affected on that account. The applicant had stated that he believed that the respondents had received many votes which were void. When the ballot box was opened it was found that among the votes credited to the successful candidate were 37 votes which were void. Thereafter the applicant applied to substitute the words 'alleges ' for 'believes' and 'did' for'could'. In that case the Court was not concerned to decide whether the order for inspection was properly made. The propriety of the order granting inspection does not appear to have ever been questioned. The principal question raised in the appeal was whether the amendment of the petition should, in the circumstances, be granted and the observation of the Court that 'definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers' was not intended to be a general statement of the law that whenever an allegation is made in a petition to set aside an election that void votes have been included in the counting of votes received by a successful candidate, definite particulars with regard to the said void votes may only be supplied after the ballot papers are inspected and that a defeated candidate may claim inspection of the ballot papers without making any specific allegations of material facts and without disclosing a prima facie case in support of the claim made." 13. Dr. Dr. Jagjit Singh v. Giani Kartar Singh AIR 1966 SC 773 is a recent decision of a Division Bench of three learned Judges of the Supreme Court on an election petition where inspection of ballot papers and recount of votes was claimed on the allegations that a very large number of votes purported to have been cast in favour of the petitioner had been improperly rejected, that a large number of votes which were invalid had been improperly accepted in favour of the 1st respondent, and that the Returning Officer disclosed a partisan attitude, and the counting and examination of the votes was done in a very irregular manner (See. para 34 of the AIR report). The appellant pleaded that he had let some evidence regarding the misconduct of the Returning Officer at the time of counting and so a prayer was made that the ballot papers may be allowed to be inspected in order to enable the appellant to establish his case regarding both the improper rejection and reception of ballot papers and non compliance with the rules under the Act on the part of the Returning Officer which have materially affected the result of the election in so far as respondent No. 1 was concerned. The Tribunal found that the evidence let in by the appellant prima facie justified his prayer for inspection of the ballot papers and, as a result of the recount made by it, found the petitioner to have polled more votes than the 1st respondent allowed the election petition and declared him to have been duly elected. On appeal the Punjab High Court reversed it and dismissed the election petition. On further appeal, Gajendragadkar C. J., speaking for the Court, observed: "..... the High Court was right in holding that no case had been made out by the appellant for the inspection of the ballot boxes at all. That being so, it is unnecessary to enquire what would be the result if the objections raised by the appellant are considered and the votes are recounted ..................... .... Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which S.83(1) (a) has in mind. That being so, it is unnecessary to enquire what would be the result if the objections raised by the appellant are considered and the votes are recounted ..................... .... Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which S.83(1) (a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interest of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements' of justice, care must betaken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void ........... (After adverting to the Rules) We have referred broadly to the scheme of these Rules to emphasise the point that the election petitioner who is a defeated candidate, has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly overruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that S.83(1) of the Act has to be applied to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts. It is in the light of this background that S.83(1) of the Act has to be applied to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts. ...We have carefully considered the allegations made by the appellant in his election petition as well as those made by him in his application for inspection, and we are satisfied that the said allegations are very vague and general, and the whole object of the appellant in asking for inspection was to make a fishing enquiry with a view to find out some material to support his case that respondent No. 1 had received some invalid votes and that the appellant had been denied some valid votes. Unless an application for inspection of ballot papers makes out a proper case for such inspection, it would not be right for the Tribunal to open the ballot boxes and allow a party to inspect the ballot papers, and examine the validity or invalidity of the ballot papers contained in it. If such a course is adopted, it would inevitably lead to the opening of the ballot boxes almost in every case, and that would plainly be inconsistent with the [scheme of the statutory rules and with the object of keeping the ballot papers secret. That is why we are satisfied that the High Court was right in coming to the conclusion that the appellant had failed to make out a case for the inspection of the ballot boxes in this case." It is in the light of these weighty pronouncements of the Supreme Court that the ' petitioner's claim here has to be considered. 14. That an election court has the power to order production of the ballot papers for its inspection cannot be doubted. It is inherent in the very nature of the jurisdiction in an election dispute. But, on account of the secrecy of vote guaranteed as a safeguard to the freedom in voting, the Court would require adequate reason to exercise that power. It is inherent in the very nature of the jurisdiction in an election dispute. But, on account of the secrecy of vote guaranteed as a safeguard to the freedom in voting, the Court would require adequate reason to exercise that power. Counsel for the petitioner urged vehemently that the very purpose of allowing counting agents for candidates to watch the scrutiny and counting of the ballot papers is to convince the candidate and through him the electorate that the majority has been correctly ascertained and that therefore whenever a possibility of error in the scrutiny and counting of votes is disclosed the election Court has to order an inspection and recount of the ballot papers, particularly so if the counting agents had no opportunity to oversea the marks on every ballot paper at the time of the scrutiny and counting. No doubt such a step might assure confidence in the result of the poll and help to put out any misunderstanding in the electorate; but it has to be remembered that an election contest is "not an action at law or a suit in equity but is purely statutory proceeding" as observed by the Supreme Court in Jagan Nath v. Jaswant Singh AIR 1954 SC 210 C. B. and that it is an "error" to think that the election court is "an authority charged with the duty of investigating the validity of votes for and against the petitioning and returned candidate or for a matter of that any other contesting candidate" as observed in Jabar Singh v. Genda Lal AIR 1964 SC 1200 . T presume that the expression "statutory proceeding" in the context implies a proceeding to see that the statutory requirements of the election law have been strictly observed in an impugned election. But the law may not require a strict compliance and tolerate a violation thereof except when it has materially affected the result of an election.. As an election dispute is not 'an action at law or a suit in equity' the normal readiness of the Court to inspect documents material to the controversy between the parties would not extend to election disputes. 15. As an election dispute is not 'an action at law or a suit in equity' the normal readiness of the Court to inspect documents material to the controversy between the parties would not extend to election disputes. 15. Counsel for petitioner contended that, with one counting agent to attend a table, where three officers a counting supervisor and two assistants were simultaneously sorting and counting ballot papers and keeping off some ballot papers as doubtful, it was physically impossible for the counting agents to oversee the entire ballot papers, and that at best one counting agent could oversee the work of one officer only at a time, and urged that one counting agent should have been allowed to the petitioner for every officer engaged in counting. There is no case that the petitioner was allowed lesser number of counting agents than were allowed to other candidates. S.47 of the Act says that the number of counting agents appointed by a candidate should not exceed the maximum prescribed by the Rules, and S.169 of the Act provides for rules to be made by the Central Government, after consulting the Election Commission, and placed before each House of Parliament while it is in session for a period of 30 days, and amended if so required by the Parliament. The Conduct of Election Rules, 1961, made under the above provision has therefore the positive approval of the Parliament. R.52 of the Rules limit the number of counting agents that a candidate may appoint to 16, whatever may be the number of counting officers engaged. The corresponding rule in the Parliamentary Elections Rules in the Second Schedule to the (English) Representation of the People Act, 1949, reads: "31. R.52 of the Rules limit the number of counting agents that a candidate may appoint to 16, whatever may be the number of counting officers engaged. The corresponding rule in the Parliamentary Elections Rules in the Second Schedule to the (English) Representation of the People Act, 1949, reads: "31. (1) Each candidate may, before the commencement of the poll, appoint polling agents to attend at polling stations for the purpose of detecting personation and counting agents to attend at the counting of the votes: Provided that the returning officer may limit the number of counting agents, so however that the number shall be the same in the case of each candidate and the number allowed to a candidate shall not (except in special circumstances) be less than the number obtained by dividing the number of clerks employed on the counting by the number of candidates." Till the present general election (1967) the rule in India was in tune with the above provision as may be seen from para 5 of Chap.8 of the Hand-book for the 1962 general election , which run thus: "5. (a) The number of counting agents that a candidate can appoint is the number ascertained by dividing the total number of counting supervisors plus counting assistants by the total number of candidates (Parliamentary and Assembly) plus one additional counting agent to supervise subject to a maximum of 16. For instance, assuming there are 16 tables, there will be in all 48 counting supervisors and counting assistants. Assuming further there are 3 candidates for the parliamentary election and 3 candidates for the assembly election the number of counting agents a candidate may appoint will be 48+6+1=9." The present fixation of one counting agent for a candidate at each counting table appears certainly to be more liberal. Suffice it to say here that it is not unwarranted under the current election law or that it involves no breach of the law as laid in the Act and the Rules. Pw.2 has sworn: xxx xxx xxx (When the sorting of 5-6 ballot papers by a supervisor is found right I would attend what another supervisor does) (This witness was referrring to the counting supervisors and the counting assistants by a general term 'supervisors'). This is as it ought to be, and I am certain that same must have been what every counting agent did. 16. This is as it ought to be, and I am certain that same must have been what every counting agent did. 16. Counsel for petitioner alleged that sufficient facility was not given to the counting agents to see all the ballot papers and the mark thereon being scrutinised, sorted and counted by the officers at the counting tables. The complaint is that those officers were busy in sorting-and-counting as if it was their own business, without showing the ballot papers, after unfolding, to the counting agents. No provision in the election law, either in the Act or in the Rules, has been shown to me which requires every ballot paper to be shown to the counting agents, or for a matter of that even to the candidates, at the time of counting. S.47 of the Act allows a candidate to appoint counting agents not exceeding the number prescribed by the Rules "to be present.... at the counting of votes." S.49(2) concedes that a counting agent may perform such functions in connection with the counting of votes as are authorised by or under the Act to be performed by a counting agent. S.64 says that each contesting candidate, his election agent and his counting agents shall have a right " to be present at the time of counting." R.53(3) of the Rules empowers the Returning Officer to decide which counting agent or agents shall "watch the counting" at any particular counting table or group of counting tables. R.55(2) commands that before any ballot box is opened at a counting table, the counting agents present at that table shall be allowed "to inspect the paper seal or such other seal as might have been affixed thereon and to satisfy themselves that it is in tact." R.56(3) requires a Returning Officer to allow each counting agent present a reasonable opportunity to inspect every ballot paper before it is finally rejected as invalid. Obviously this applies only to papers about to be rejected as invalid and not to those being counted as valid votes. This limitation implies, under the rule expressio anius exclusio alterius, that ballot papers which are accepted as valid votes need not be particularly shown to the counting agents. R.54(12) and 57 allow a counting agent to affix his seal on all packets of valid ballot papers and rejected ballot papers. This limitation implies, under the rule expressio anius exclusio alterius, that ballot papers which are accepted as valid votes need not be particularly shown to the counting agents. R.54(12) and 57 allow a counting agent to affix his seal on all packets of valid ballot papers and rejected ballot papers. By virtue of the powers of superintendence, direction and control of the conduct of elections to the Parliament and the State Legislatures under Art.324 of the Constitution, the Election Commission has been issuing instructions in the form of a Hand-book for Returning Officers hereinafter the Hand-book before every general election. Chap.8 of the Hand-book for the general elections, 1967, gives the following instructions regarding counting, namely: "5. (c) Each counting agent .... should keep seated near the tables and should not be allowed to move about all over the hall. The extra counting agent may sit and watch the pro-ceedings at your (Returning Officer's )table. In the absence of both the candidates and his election agent, this counting agent may be allowed to go round to any part of the hall. (d) The candidates and their election agents will be free to go round to any part of the hall. ................................................................. 14. (a) As soon as a ballot box has been placed on the counting table, allow the counting agents for the table to satisfy themselves that the seals on the ballot box are in tact and have not been tampered with ............................ (b) As each ballot box is opened, allow every candidate or his counting agent attending the ballot box to check the identity of the box ........... (d)(ii) Allow the counting agents to satisfy themselves that all ballot papers have been taken out from the boxes and that they are empty. ............................ 17(D) At each counting table will be seated a supervisor on one side and two counting assistants on the other. The counting agent of each contesting candidate may be seated facing the counting assistants ............................ ............................ (k) ..... scrutinise each of the ballot papers in the 'doubtful' bundle. ............................ 17(D) At each counting table will be seated a supervisor on one side and two counting assistants on the other. The counting agent of each contesting candidate may be seated facing the counting assistants ............................ ............................ (k) ..... scrutinise each of the ballot papers in the 'doubtful' bundle. (1) Reject a ballot paper only (i) When there is no mark at all, on the front, or the mark is made by an instrument other than that provided for the purpose; or (ii) when the mark is in blank area, that is to say, at the back or entirely in the shaded area; or (iii) when there are marks against two or more candidates; or (iv) when there is any writing or mark by which the voter can be identified; or (v) when the ballot paper is mutilated beyond recognition; or (vi) when the ballot paper is not genuine. Before finally rejecting any ballot paper give a reasonable opportunity to the candidate or his agents present at your table to inspect it. (m) Dot not reject any ballot paper simply because (i) more than one mark has been made in the column of one candidate; or (ii) besides a clear mark in the column of not more than one candidate, there are marks on the back or inside the shaded area; or (iii) the mark is only partially within the column of one candidate and the rest of the mark is in the blank area; or (iv) the Original mark is patently in the column of one candidate but an impression due to wrong folding appears in the column of another candidate; or (v) there is a mark in the column of one candidate, but a smudge appears against that of another candidate; or (vi) there is no distinguishing mark, provided you are satisfied that the omission has been due to any mistake or failure on the part of the Presiding Officer or Polling Officer; or (vii) the mark indicating the vote is indistinct or made more than once, if the intention that the vote is for a particular candidate clearly appears from the way the paper is marked". Thus, except in the case of ballot papers to be rejected finally, the election law nowhere contemplates a counting agent being shown as such the ballot papers at the counting which is more or less an official business. Thus, except in the case of ballot papers to be rejected finally, the election law nowhere contemplates a counting agent being shown as such the ballot papers at the counting which is more or less an official business. The counting agents are expected only to make best use of the facility afforded to them to be present at the table where the counting takes place to see that no error occurs in the process. The complaint that the counting agents were not given sufficient facility to inspect every ballot paper is not warranted under the election law as set out in the Act and the Rules. 17. Counsel contended that the amenities given to the counting agents at the counting place were so inadequate that the counting agents could not check miscounts which might have affected the majority to the petitioner's prejudice. His witnesses Pws.3 and 4, who were his counting agents, testified that the counting agents' seat was a low bench behind the counting assistants and facing the counting supervisor. In the general election of 1962, as seen from para 15 of Chap.8 of the relevant Handbook, every supervisor was seated on one side of the table, with the counting assistants on the other side, and counting agents were to sit behind the counting supervisor. Placing the counting agents behind the two counting assistants, is a better amenity that would enable them to see better the handling of the ballot papers, their scrutiny, sorting and counting. The complaint made on the allocation of the seats to the counting agents has therefore little substance. That they were "not allowed to move about all over the hall" is only consistent with the maintenance of order and discipline in the counting place. The chief counting agent, the one who sits near the Returning Officer's table, is, by para 5(c) of Chap.8 of the Handbook, allowed in the absence of the candidate and his election agent to go round to any part of the hall and therefore to all the other counting agents, who themselves are not prohibited from going out of the counting hall and returning any time. The Returning Officer and the Assistant Returning Officer had been present in the hall throughout the counting time. The Returning Officer and the Assistant Returning Officer had been present in the hall throughout the counting time. That the counting agents were asked to be seated and that the bench given to them to sit on was low do not appear to me material as there was no objection to their standing at their places to oversee the ballot papers. pw. 2 has sworn: xxx xxx xxx (Counting supervisors did not object to our standing close by or watching) All counting agents of the petitioner, who have been examined in the case and they are four in number have testified unanimously that they had been standing most of the time and sat only for some rest at intervals. The instruction to keep seated in a particular place, in the context, meant only that they should remain at a definite place assigned to them, so that inconvenience to orderly counting may not be caused. When one counting agent is allowed to be present at every table, there can be little legitimate need for any counting agent to go to another table. The restriction not to move about all over the hall does not appear to have caused any prejudice to the petitioner. 18. It is alleged that the counting officers used to sort many a valid ballot paper as invalid in spite of objection by the counting agents. They might have been right in doing so; for the instructions given to them by the Election Commission was to assert doubtful papers with invalid papers, leaving the final decision on invalidity to the Returning Officer. They might have been right in doing so; for the instructions given to them by the Election Commission was to assert doubtful papers with invalid papers, leaving the final decision on invalidity to the Returning Officer. Though para 17(a) of Chap.8 of the Handbook directs the Returning Officer to "utilise the first hour in training the counting assistants in disposing of doubtful ballot papers so that an unnecessarily large number is not kept in the doubtful group", the specific instruction in para 7 of the Instructions to Counting Supervisors and Assistants is to "Put a ballot paper in the place marked 'D' which stands for doubtful only (i) when there is no mark at all, or the mark is made by an instrument other than that provided for the purpose, or (ii) when the mark is in the blank area.that is to say at the back or entirely in the shaded area, or (iii) when there are marks against two or more candidates, or (iv) when there is any writing or mark by which the voter can be identified, or (v) when the ballot paper is mutilated beyond recognition, or (vi) when the ballot paper is not genuine, or (vii) when the original mark is patently in the column of one candidate, but an impression due to wrong folding appears in the column of another candidate, or (viii) when there is a clear mark in the column of one candidate, but a smudge appears against that of another candidate." It is pertinent to note that in the Instructions (cited in para 16 above) to the Returning Officers on rejection of ballot papers, the last two (vii) and (viii) above are to be counted as valid. But when the ballot is doubtful or suspicious, the decision must be by the Returning Officer and not by the assistants. Thus, where the original mark is patently in the column of one candidate but an impression due to wrong folding appears in the column of another candidate, the counting agent is right in assorting the ballot paper to be valid; but as it is primafacie doubtful or suspicious, the counting assistants are instructed to assort it with the invalid ballot papers and to place them all before the Returning Officer. When they are afterwards scrutinised by the Returning Officer, paper by paper, he is instructed to include such ballot paper among the valid votes of the concerned candidate. The fact is that the counting supervisors and assistants were not sorting out the invalid ballot papers to be finally rejected, but were sorting out the doubtful papers and invalid papers to be scrutinised by the Returning Officer who alone -has the power to reject a ballot paper as invalid. The complaint that the counting assistants and counting supervisors used to sort many a valid ballot paper as invalid in spite of objection by the counting agents is obviously based on a misunderstanding of the functions of those officers. The counting agents of the petitioner examined in this case have sworn that at the Returning Officer's table the petitioner had two agents Sri. Moidu, a counter agent, and Sri. Krishnankutty, the election agent. But neither has been cited to say what took place at the Returning Officer's table-The complaint against sorting valid ballot papers as invalid by the counting supervisors and assistants has therefore little merit. 19. It is clear from the procedure adopted in counting, that the counting agents got the opportunity to oversee the ballot papers when they are sorted into different compartments as votes of the different candidates and doubtful papers, and a second opportunity, when they are counted and bundled, to verify whether invalid papers have been sorted as valid or A's papers have been credited to B. The same opportunities are available to the counting agents at the Returning Officer's table when he sorts out valid votes from among the doubtful papers. As regards the ballot papers which are finally rejected as invalid the counting agents are allowed to inspect each paper before its rejection. The opportunities for check, first at sorting and then again at counting, are apt to minimise the possibility of escape of errors unnoticed. The counting officers themselves, while counting and bundling, recheck the correctness of their former sorting. It cannot be said that the opportunity afforded to counting agents to oversee the counting is not fair or reasonable. The opportunities for check, first at sorting and then again at counting, are apt to minimise the possibility of escape of errors unnoticed. The counting officers themselves, while counting and bundling, recheck the correctness of their former sorting. It cannot be said that the opportunity afforded to counting agents to oversee the counting is not fair or reasonable. Anyhow, visualizing the possibility of small errors in spite of the above facilities for recheck and supervision, a third opportunity for the same is provided in recount which can be availed by any counting agent in the absence of the candidate if the poll ran neck and neck. Sub-s.(5) of S.63 of the Act and para 20 of the instructions on counting in the Handbook are clear that the recount is not a "merely physical recount of ballot papers which have been sorted into bundles at the stage of counting, but a re-scrutiny and recount of each of the ballot papers in respect of which the candidate properly demands a recount, in order to see whether it is valid vote, and if so, for which candidate." Thus, even if the complaint that the allowance of one counting agent for one table, where three officers are counting, is not adequate has any force, it is well compensated by the three opportunities for check afforded to each counting agent in the process of counting. Conversely, it may be said that since three opportunities are afforded at different stages of the counting, the allowance of one agent to watch three officers working on the same table appears reasonably adequate. So far as imagination knows no bounds, suspicion cannot be wholly eradicated by any procedure; but suspicions and surmises cannot be substituted for facts on which alone a court can act. In the light of the facts and circumstances discussed above the limitation in the number of counting agents does not make an adequate ground to order a general inspection and recount of the ballot papers in court. In the above view, the latter part of the issue No. 9 does not materially arise. However, I may observe that the absence of an application for recount under R.63(2) will not be a legal bar to a motion before the election court for a recount if adequate proof is given that the counting has been materially affected by miscounts. 20. However, I may observe that the absence of an application for recount under R.63(2) will not be a legal bar to a motion before the election court for a recount if adequate proof is given that the counting has been materially affected by miscounts. 20. Issues 3 and 4 relate to miscount of votes for the 1st respondent. The petitioner has examined four of his counting agents as pws. 1 to 4. pws. 2 to 4 have not spoken of any case of miscount. Their evidence relates solely to their inability to watch the counting of 3 officers at a time. Pw.l has spoken of one case of miscount at bundling, of four ballots of the 1st respondent having been placed above 46 ballots of the petitioner and all bundled together as the 1st respondent's ballots. He admits that it was rectified immediately even before he could call the chief counting agent to see it. The petitioner has sworn that his election agent did not complain to the Returning Officer on that miscount as he thought it to be the solitary instance of such an error. None has spoken of discovery of any other error in counting, except the petitioner who has spoken generally to all allegations in the election petition. He admits that he was not present at the counting and all the information that he had was hearsay from his counting agents and election agent conveyed after declaration of the result of the election. Not much value can be attached to such hearsay evidence. Issues Nos. 3and 4 bear no proof and as such have to be found against. 21. Issue No. 5 which relates to removal of ballot papers from the counting table is borne by no proof. In the election petition and in his testimony the petitioner gave the ground for his belief in such removal as the discrepancy between the ballot papers issued and ballot papers counted in respect of certain polling stations. No proof of such discrepancy has been adduced. The concerned Ballot paper Accounts have not been called. Even when the Returning Officer was examined no attempt was made to bring out the existence of any such discrepancy. The issue has only to be found against as been unproved. 22. Issue No. 6 relates to voting by false personation. No attempt was made to examine the persons who had to give tendered votes. Even when the Returning Officer was examined no attempt was made to bring out the existence of any such discrepancy. The issue has only to be found against as been unproved. 22. Issue No. 6 relates to voting by false personation. No attempt was made to examine the persons who had to give tendered votes. The presumption of law is that all the voting papers which have been counted by the Returning Officer are valid. The burden is on the petitioner to adduce proof to counter it. As that burden has not been discharged by him the issue has to be found against him. 23. Issue No.7 relates to simultaneous issue of two ballot papers, one for the Parliament and one for the Assembly, to the electors as they entered the polling booth. It is admitted that the ballot papers were of distinct colours. The Handbook shows that the Assembly ballot papers were pink and the Parliamentary ballot papers white. It is alleged that no instruction was given to the electors as to how they should record their votes on those ballot papers and that was the cause for a large number of invalid votes at this election. The Handbook shows that one polling officer was posted at every polling station to give the inked rubber stamp to the electors and to explain to them how to record their votes on the ballot papers. The petitioner admits that he knew of the simultaneous issue of two ballot papers two or three days before the date of poll. The 1st respondent says that such information was given to the candidates and the electorate much earlier. The petitioner admits that his party had 6 polling agents at every polling station. It was then easy for him, even if information reached him only two days before the poll, to have communicated it to the electorate and to give them the necessary instructions in the matter. The petitioner's symbol was the well known 'two bullocks with yoke on'. Admittedly both the ballot papers carried that symbol. It is difficult to imagine how the simultaneous issue of two ballot papers bearing that mark could have confused the voters and caused wrong marking votes which would not have occurred if the ballot papers were given to them separately. The 1st respondent does not complain that the simultaneous issue had caused confusion to the voters. It is difficult to imagine how the simultaneous issue of two ballot papers bearing that mark could have confused the voters and caused wrong marking votes which would not have occurred if the ballot papers were given to them separately. The 1st respondent does not complain that the simultaneous issue had caused confusion to the voters. No voter has been examined to tell the confusion he felt or the way in which he happened to mark the vote wrongly because of the simultaneous issue of Parliamentary and Assembly ballot papers. That the experiment of simultaneous issue of Parliamentary and Assembly ballot papers was made in the Kerala State alone in this general election does not appeal to spell a discrimination within the meaning of Art.14 of the Constitution. Equality does not presuppose or mean that every individual in the country should be treated like every other individual for every purpose. Classification is a constituent element of a rational doctrine of equality. For many purposes children have to be treated differently from the adults, rich from the poor, educated from the ignorant, advanced classes from backward classes etc. Nature, history, custom economic and social re-orientation, the standard of literacy and political consciousness, etc. may require different treatments for different purposes among the community. The introduction of this new procedure in this State, which has a reputation for a high standard of education and political consciousness, cannot be said to have been made with an evil eye or uneven hand; and nothing is made out to prove that it has in fact caused any prejudice to anybody, much less to the petitioner in this case. The impugnment covered by the issue is not substantiated and the issue has therefore to be found against the petitioner. 24. Issue No. 1 reads: "who decided the invalidity of rejected votes, and has he authority to do so?" The petition alleges that it was the counting officers who decided the invalidity of ballot papers; and the same has not been squarely met by the 1st respondent's written statement Para 3 of the election petition reads: "While counting the votes, the counting supervisors rejected as invalid,many votes which were validly marked for the petitioner. When the counting agents raised objection and requested the counting supervisors to get the matter decided by the returning officer, without doing that the counting supervisors themselves decided the validity of the votes. When the counting agents raised objection and requested the counting supervisors to get the matter decided by the returning officer, without doing that the counting supervisors themselves decided the validity of the votes. The counting supervisors have no authority to take decisions on the validity of the votes when the same is questioned." The answer in the written statement (para 3) runs thus: "No votes which were validly marked for the petitioner were rejected as invalid by the Counting Supervisors. All objections raised on the spot were decided on the spot by the Returning Officer, and not by the Counting Supervisors. In fact at the time of counting there were no objections at all raised regarding the validity of the votes and therefore also there was no question of the Counting Supervisors having to take the decisions". The under the law the Returning Officer alone which expression by virtue of S.22 of the Act would include the Assistant Returning Officer who is made competent to perform all the functions of the Returning Officer is the authority to reject ballot papers as invalid is not disputed. 2590 ballot papers had been rejected as invalid at the counting and the Returning Officer, examined as R. W. I. has spoken of bundles of doubtful and invalid papers sorted out by the counting supervisors and assistants having been taken to him for scrutiny and disposal under R.56(2) of the Rules. The deposition of the 1st respondent as R.W.2 runs thus: "Who rejected the invalid ballot papers (Q). The Returning Officer (A). The procedure adopted was that the Returning Officer would look into every invalid ballot paper and initial himself before rejecting it as invalid ....... I noticed the Returning Officer initialling the invalid votes ....... What is the name of the Returning Officer who did it (Q). Mr. N. Krishnan Nair (A)." It was Mr. Krishnan Nair, the Returning Officer, who has been examined as R.W.I His deposition is: "The Returning Officer was scrutinising the Parliamentary ballot papers and the scrutiny of the Assembly ballot papers was done by the Assistant Returning Officer under the supervision of the Returning Officer. Who finally rejected Assembly ballot papers as invalid (Q). The Assistant Returning Officer (A)." It is then clear that the rejection of invalid Assembly ballot papers was not done by the Returning Officer, but was done by the Assistant Returning Officer. Who finally rejected Assembly ballot papers as invalid (Q). The Assistant Returning Officer (A)." It is then clear that the rejection of invalid Assembly ballot papers was not done by the Returning Officer, but was done by the Assistant Returning Officer. What the Assistant Returning Officer did, R. W. I has not detailed. Clear it is that he disowned to have rejected any invalid ballot paper for the assembly election. As he was busy with the Parliamentary ballot papers, the doubtful Assembly ballot papers were placed before the Assistant Returning Officer for scrutiny and final disposal. Law requires that before rejection, the Assistant Returning Officer has to give opportunity to the counting agents to inspect the ballot papers, and has , to state the ground for rejection on the ballot paper itself with his initial subscribed thereto. The Assistant Returning Officer has not been cited to tell what he did in the matter, nor anybody who had seen his work. 25. The rejection of ballot papers as invalid is a serious matter. The authority of a majority to hold government of a democratic Republic and to legislate for the State where all are independent, lies in the fact that every citizen is allowed to participate in the formation of that majority. The right to vote conceded to every citizen is thus the basic principle of democracy; and the rejection of a ballot paper on which he attempted to record his vote is a negation of that basic right to him and has therefore to be viewed as a serious infraction of an important constitutional right. Such an infraction to be tolerated must satisfy the safeguards of the right set by law, one of which is that it will be done only by superior officers of the rank and status and therefore of the responsibility of a Returning Officer for the election. Officers below that rank, as counting supervisors are, cannot be delegated to do it. That is why the law that allows counting of valid votes to be done by counting assistants and supervisors under the supervision exercised by a random check of the Returning Officer, requires the Returning Officer himself (which expression would include Assistant Returning Officer also) to scrutinise doubtful ballot papers, to allow each counting agent a reasonable opportunity to inspect them before rejection, and to decide their invalidity recording his reasons therefor over his initials. When challenged in an election dispute the Court has to be satisfied particularly that these elementary but essential safeguards have been observed strictly before it can endorse the denial of suffrage to the citizens concerned. There is no material on the evidence now on record to show that the rejection of 2590 ballot papers, in which an even number of citizens have apparently tried to exercise their right of participation in the formation of majority for the governance of the State, has been done in accordance with the law. I would therefore order the production of all ballot papers which have been rejected as invalid in the concerned election for inspection by the Court. The Returning Officer will be addressed to produce them before the 17th August 1967. The case will be heard further after inspection of those papers. Call on August 18, 1967. 26. As per the direction in the preliminary Judgment dated August 8, the Returning Officer has produced the rejected ballot papers. After scrutiny of the seals in the presence of counsel on either side, the packet was opened and the papers scrutinised. I may observe at once that all the rejected ballot papers in the packet, excepting the postal ballot papers whose packet has not been opened bear the initials of the Assistant Returning Officer and a seal showing the reason for the rejection of each. It is then evident that the final rejection of the ballot papers was by the Assistant Returning Officer and not by the counting supervisors or assistants. Issue No. 1 has therefore to be found against the petitioner. 27. Issues Nos. 2 and 3. The rejected ballot papers called for inspection, except the postal ones among them, were scrutinised by counsel on both sides in open court, subject to S.128 of the Act, Counsel for petitioner picked out 88 ballot papers and counsel for 1st respondent selected likewise 87 ballot papers for Court's consideration. 27. Issues Nos. 2 and 3. The rejected ballot papers called for inspection, except the postal ones among them, were scrutinised by counsel on both sides in open court, subject to S.128 of the Act, Counsel for petitioner picked out 88 ballot papers and counsel for 1st respondent selected likewise 87 ballot papers for Court's consideration. Of the ballot papers taken by the former, 4 have indistinct marks in the column of the petitioner with no mark elsewhere, 17 have the original mark obviously in the column of the petitioner with another impression or smudge evidently due to wrong folding in the column of the 2nd respondent, 56 have the seal on the reverse of the column of the petitioner, and 11 have a mark in the column of the petitioner and another in the column of the 2nd respondent which latter, on refolding the paper along the fold mark, is found to be not an impression caused by such folding before. Counsel for petitioner conceded that the rejection of the last mentioned 11 ballot papers was right. The first mentioned 4 and 17 ballot papers have to be counted as valid votes of the petitioner in order to give effect to the intention of the voters which is clear thereon. As regards the 66 ballot papers with marks at the back of the paper, counsel has a contention, based on observations in George v. District Munsiff, Kanjirappally 1965 KLT 819 and Swarup Singh v. The Election Tribunal, Municipal Board, Aligarh AIR 1960 Allahabad 66 that they are valid; but he utlimately conceded that the question need not be decided in this case and that the packet of rejected postal ballot papers, which as Ex. R-l the Result Sheet, shows, contains only 32 ballot papers need not be opened, as even if they are all counted as valid the petitioner will not have majority of votes since the present difference in favour of the 1st respondent is above 1700. The question of validity of votes recorded on the back of the ballot papers is therefore left open here. Though counsel for the 1st respondent has also picked out 87 ballot papers for inspection by Court, he did not press for an inspection; and the observations made in the preliminary judgment stand. 28. Issue No.12. No corrupt practice, as defined in the Act, has been alleged in the election petition. Though counsel for the 1st respondent has also picked out 87 ballot papers for inspection by Court, he did not press for an inspection; and the observations made in the preliminary judgment stand. 28. Issue No.12. No corrupt practice, as defined in the Act, has been alleged in the election petition. The question is not pressed by counsel for the 1st respondent at whose instance it was raised. The issue will stand struck off. 29. Issues Nos. 10, 11 and 13. These issues relate to the relief that the petitioner is entitled to. On the finding recorded above on the other issues, the petitioner is not entitled to any relief. These issues also are found against the petitioner. 30. In the result, this Election Petition fails and has to be dismissed. The 1st respondent is entitled to his costs, which fix at Rs. 500/-. Judgment accordingly.