A. ESSUDDIN v. P. NEELAKANTAN — 1971 DIGILAW 2 (KER)

Judgment :- 1. This petition relates to the election to the Kazhakkuttam Assembly Constituency at which the first respondent who was the returned candidate and three others including the petitioner were the contesting candidates. 2. In the last mid-term election for the Kerala State Assembly the petitioner contested as a candidate of the Muslim League and the first respondent of the S. S. P. supported by the C. P. I. (Marxist). The second respondent was a candidate of the Congress under the Presidentship of Sri..Nijalingappa. The third respondent contested as an Independent. 3. The polling took place on September 17th last year and the counting on the succeeding day. It was at the Basic Training School at Attingal that the counting took place. 4. The total number of votes polled was 52,576. Of these 701 were declared invalid. The first respondent received 23,425 votes as against the petitioner the next candidate who got 23,314 votes. There was thus a majority of 111 votes in favour of the returned candidate. The second and third respondents received only 4,082 and 1,054 votes respectively. The result of the poll was declared on the 18th itself. The candidate who secured the second largest number of votes has preferred this election petition on October the 5th. 5. According to the petitioner the election of the first respondent is void. There was improper refusal and rejection of valid votes in his favour. There was also improper reception in favour of the first respondent of invalid votes. There was noncompliance of the provisions of the Constitution and the Representation of the People Act, 43 of 1951 hereinafter referred to as the Act, and the Rules framed under that Act, hereinafter referred to as the Rules. On account of all these the result of the election in so far as it concerns the returned candidate has been materially affected. 6. Some of the voters entered in the electoral rolls were below 21 as on the qualifying date of January, the first, 1970, and they voted in favour of the first respondent. Dead persons and persons outside stations were impersonated by others who voted for the first respondent. 7. Various irregularities were committed by the Returning Officer at the time of counting of votes. He allowed persons other than those appointed by him as Counting Assistants and Counting Supervisors to assist him in the counting of votes. Dead persons and persons outside stations were impersonated by others who voted for the first respondent. 7. Various irregularities were committed by the Returning Officer at the time of counting of votes. He allowed persons other than those appointed by him as Counting Assistants and Counting Supervisors to assist him in the counting of votes. Even peons of the Taluk Office, Trivandrum, were allowed to assist him in the counting of votes. 8. Persons other than the candidates and their election agents and counting agents were freely admitted inside the counting hall. The Tahsildar, Trivandrum, and the Sub Inspector of 'Police, Kazhakuttam, were present at the time of the counting. They were not on duty in connection with the election in the Kazhakkuttam Constituency. 9. The counting agents of the petitioner were denied access inside the counting hall. The Returning Officer arbitrarily and capriciously refused to recognise and receive duplicate of the appointment in Form 18 of the counting agents of the petitioner. 10. Many of the persons allowed to assist the Returning Officer were N. G. Os. having sympathies for C1P. (Marxist). 11. Counting was done in haste. Votes were misplaced by persons who took part in the counting. Mistakes were committed in tying up of bundles of fifty votes. Votes polled in favour of the petitioner were included in bundles of fifties made out for the first respondent. 12. No counting supervisor was appointed by the Returning Officer. In the Ballot Paper Accounts in Form 16 necessary entries were not made either by the counting supervisor of the Returning Officer. 13. The counting ball was insufficient to accommodate the persons inside. 14. The Returning Officer did not check the bundles of fifties taken to him by the Counting Supervisors. Not even random check was made by him to assure himself about the correctness of the count. The result of the election has been materially affected by all these irregularities. 15. Immediately after the Returning Officer announced the total number of votes olled by each candidate the petitioner requested him not to complete and sign the result sheet in Form 20 and declare the result because he wanted to apply for recount on the ground that several irregularities had taken place in the counting. 15. Immediately after the Returning Officer announced the total number of votes olled by each candidate the petitioner requested him not to complete and sign the result sheet in Form 20 and declare the result because he wanted to apply for recount on the ground that several irregularities had taken place in the counting. Before the petitioner could complete writing an application for recount which he had started doing in the presence of the Returning Officer the latter declared the result. Reasonable opportunity had not been afforded to the petitioner to apply for recount. 16. According to the petitioner it was he in fact who had received the majority of votes. He prayed for declaration that the election of the first respondent was void. He also prayed for declaration that he was duly elected after scrutiny and recount. 17. The first respondent alone contested the petition. The other respondents remained ex-parte. 18. According to the first respondent the petitioner is not entitled to any of the reliefs he has prayed for. Persons below 21 as on the qualifying date were not included in the electoral rolls and no such person voted in favour of the first respondent. Dead persons and persons out of station were not impersonated by others. At any rate the result of the election was not affected by any such irregularity. There was no improper reception, refusal or rejection of valid votes or reception of void votes. Unauthorised persons were not present in the counting hall when the counting took place. The Returning Officer had not allowed persons other than those appointed by him to assist him in counting. Class IV employees were inside the counting hall but they were there only for the purpose of carrying ballot boxes to and from the countiug tables. They were all persons duly appointed by the Returning Officer to assist him in the counting of votes. The allegation that N. G. Os. with sympathies for the CPI. (Marxist) were assisting the Returning Officer is not correct. There was sufficient space in the counting hall to accommodate the persons inside. The Returning Officer checked the bundles of fifty votes taken to him. Counting was made in the presence of counting agents of the candidates. The allegation that N. G. Os. with sympathies for the CPI. (Marxist) were assisting the Returning Officer is not correct. There was sufficient space in the counting hall to accommodate the persons inside. The Returning Officer checked the bundles of fifty votes taken to him. Counting was made in the presence of counting agents of the candidates. No objection of any sort was raised by the petitioner or his election agent or his counting agents about the method or manner of counting at any time when the counting took place. After announcing the total number of votes polled by each candidate the Returning Officer waited for not less than 10 minutes before he signed the result sheet in Form 20 and declared the first respondent as duly elected. The petitioner did not ask for recount before the Returning Officer declared the result. After signing the result sheet when the Returning Officer proceeded to fill up the certificate of election in Form 22 the petitioner went out of the hall. After the certificate was handed over by the Returning Officer to the first respondent and he gave acknowledgement of the same the petitioner came back to the hall and orally requested the Returning Officer for a recount. The Returning Officer declined that request as the result had already been declared. The petitioner then said that he would give a written application. Reasonable opportunity had been given to the petitioner to apply for recount and he had not availed of it. Counting Assistants had not misplaced ballot papers. Ballot papers marked in favour of the petitioner had not been included in the bundles of fifties made out for the first respondent. The first respondent contended that there was no valid ground for ordering scrutiny and recount. 19. The following issues were raised. 1. Whether persons other than those authorised by Rub 53 were present at the time of counting? 2. Whether the Returning Officer allowed them to assist him in counting votes? 3. Whether the Returning Officer refused to receive the duplicate of appointment in Form No. 18 of the counting agents of the petitioner and refused to recognise them? 4. Whether the counting agents of the petitioner were not allowed access to the counting hall and given proper facilities to perform their functions at the time of counting? 5. Whether N. G. Os. 4. Whether the counting agents of the petitioner were not allowed access to the counting hall and given proper facilities to perform their functions at the time of counting? 5. Whether N. G. Os. having sympathies for the Communist party of India (Marxist) were allowed to assist the Returning Officer in counting votes? 6. Whether votes polled in favour of the petitioner were included in the bundles of fifties made out for the first respondent? 7. Whether ballot papers were misplaced by persons who assisted in the counting of votes? 8. Whether there was miscount? 9. Whether valid votes polled by the petitioner were treated as invalid? 10. Whether invalid votes marked for the petitioner were counted as valid votes for the first respondent? 11. Whether the Returning Officer did not check the bundles of fifties taken to him by the counting officers? 12. Whether irregularities were committed by the Returning Officer at the time of counting as alleged by the petitioner? 13. Whether there was sufficient accommodation in the counting hall for proper che-cking and counting of votes? 14. Whether persons below 21 as on 111970 were included as electors in the electoral rolls? 15. Whether the petitioner is competent to impeach the validity of electoral roll? 16. Whether persons dead or out of station were impersonated by others at the time of voting? 17. Whether the petitioner informed the Returning Officer that he intended to apply for recount, requested him not to declare the result and complete and sign the result sheet in Form No. 20 and proceeded to write an application as mentioned in the petition? 18. Whether reasonable opportunities were afforded to the petitioner to file an application for recount before completing and signing the result sheet in Form No. 20? 19. Whether the result of the election was materially affected by improper reception, refusal or rejection of any vote or the reception of any vote which was void? 20. Whether the Returning Officer did not appoint counting supervisors under Rule S3 and whether they and the Returning Officer did not fill up and sign Part,11 of Form 16 as alleged in the petition? 21. Whether the result of the election was materially affected by non compliance with the provisions of the Constitution or Representation of the People Act or the Rules or orders made under that Act? 22. 21. Whether the result of the election was materially affected by non compliance with the provisions of the Constitution or Representation of the People Act or the Rules or orders made under that Act? 22. Whether the petitioner is entitled to a recount of all or any of the ballot papers? 23. Whether the election of the first respondent is void? 24. Whether the petitioner is entitled to a declaration that he has been duly elected? 25.To what reliefs, if any, is the petitioner entitled? 26. What is to be the order as to costs? 20. On behalf of the petitioner Pws.1 to 6 and on behalf of the first respondent Dws.1 to 3 were examined. Of them Pw.1 is the petitioner and Dw.1 the first respondent. Pws. 2 and 3 are respectively the Returning Officer and the Assistant Returning Officer. While Pw. 2 is an Assistant Excise Commissioner Pw. 3 is a Block Development Officer. Pw, 4 is a Village Man who was a Counting Assistant. Dw. 2 is a Revenue Inspector. He was a Counting Supervisor. Pws. 5 and 6 are two persons who are alleged to have gone to the counting place to act as the counting agents of the petitioner but were denied access inside the counting room. Dw. 3 who is an Advocate was the election agent of the second respondent. He is alleged to have been inside the counting room when the counting took place. 21. Issue Nos.1 and 2. The allegation is that persons other than those authorised by R.53 were present at the time of counting and that persons who were actually engaged in counting votes were not persons who had been appointed by the Returning Officer to assist him in counting votes. It is averred that the Tahsildar, Trivandrum, and the Sub Inspector of Police, Kazhakkuttam, were present in the counting hall at the time of counting and that they were neither counting assistants nor public servants on duty. 22. When this petitioner was heard counsel appearing for the petitioner submitted that the unauthorised persons inside the counting hall at the time of counting were only those mentioned in Schedule.11 in Ext. P1 and a Sub Inspector of Police and that the petitioner's objection was only about their presence at the time of counting. 23. Ext. PI is a copy of the order passed by Pw. 2 appointing the counting staff. P1 and a Sub Inspector of Police and that the petitioner's objection was only about their presence at the time of counting. 23. Ext. PI is a copy of the order passed by Pw. 2 appointing the counting staff. The persons included in Schedule II of it were government servants including some peons. Of the persons in it other than peons only one has signed against his name. Counsel for petitioner submitted that as the others in that category had not signed in it none of them had accepted his appointment and consequently they were unauthorised persons inside the counting room. Ext. P1 is tick-marked for the Tahsildars at Trivandrnm and Attingal. When it was shown to Pw. 2 he said that it was really a copy intended for the Tahsildar, Attingal, and that by mistake office copy happended to be sent to him and Ext. P1 happened to be retained in the office. There is nothing improbable in it. 24. It is for the Returning Officer to appoint the counting staff. The validity of their appointment is derived from his power to appoint them and not from their accepting it. Therefore even if there is nothing to show that all the persons mentioned in Ext. P1 signed in Ext. P1 in acknowledgment of their having accepted the appointment that does not mean that their appointment was invalid and consequently their presence inside the counting hall was unauthor-ised. Further the evidence of Pw. 2 shows that counting staff was appointed as per a list furnished to him by the Tahsildar and that he got the appointment order served on all the persons appointed through the Thasildar. 25. There were altogether 15 counting tables. 15 counting supervisors and 30 counting assistants were included in Schedule I. In Schedule II were included 15 persons to assist Pw. 2 in counting. R.53 (1) reads: "The Returning Officer shall exclude from the place fixed for counting of votes all persons except (a) such persons as he may appoint to assist him in the counting; (b) persons authorised by the Election Commission; (c) public servants on duty in connection with the election; and (d) candidates, their election agents and counting agents." Only persons mentioned in sub-clauses (a) to (d) are allowed to be present at the time of counting. All others are prohibited from being inside the counting hall. 26. All others are prohibited from being inside the counting hall. 26. Petitioner's counsel argued that the Returning Officer is competent to appoint only counting supervisors and counting assistants and that as the persons included in Schedule II were neither counting supervisors nor counting assistants they were unauthorised persons inside the counting room. "Counting assistant' is not defined in the Act or Rules. All persons appointed by Returning Officer to assist him in counting are really counting assistants. 27. It is not necessary that the Returning Officer himself should count all the votes. Under S.64 of the Act counting need only be done under his supervision and direction. The layout of the counting hall is given at page 129 of the Handbook for Returning Officers published by the Kerala Government in 1970 containing instructions issued by the Election Commission. In it for each counting table one counting supervisor and two counting assistants are provided That is consistent with the direction in 'instruction 6 (c) in Chapter VIII given at page 65 of the Handbook that there should be one counting supervisor and two counting assistants for each counting table. 28. It is not prudent to appoint only just that number which is sufficient for the counting tables. If there are 15 counting tables and 45 persons are appointed as counting supervisors and counting assistants for those tables and by accident some of them do not turn up on the counting date counting may become impossible. To avoid such contingencies by way of abundant caution additional persons are usually appointed to keep them in reserve. There is also nothing wrong in the Returning Officer appointing in his counting staff more persons than those necessary for the counting tables. , 29. There is restriction regarding the number of election agents and counting agents to be appointed by a candidate. Under S.40 of the Act he can appoint only one person as his election agent. Under R.52 he cannot appoint subject to general or special direction of the Election Commission, more than 16 counting agents. There is no corresponding restriction regarding the number of counting supervisors or counting assistants to be appointed by a Returning Officer. 30. I pause here to observe that as regards appointment of counting supervisors and counting assistants by the Returning Officer R.53 (1) which deals with it does not even insist on the appointment being in writing. There is no corresponding restriction regarding the number of counting supervisors or counting assistants to be appointed by a Returning Officer. 30. I pause here to observe that as regards appointment of counting supervisors and counting assistants by the Returning Officer R.53 (1) which deals with it does not even insist on the appointment being in writing. But the Election Commission has in instruction 6 (a) given at page 65 of the Handbook advised Returning Officers to make the order of appointment in writing. 31. In dealing with the procedure for counting in instruction 17 0) given at page 70 of the Handbook Returning Officers are told that when counting supervisors after sorting bring packets of ballot papers Returning Officers may ask counting assistants near them to receive and keep them in the pigeon-hole in the shelf. 32. One of the directions given in instruction 17 (p) given at page 73 of the Handbook is that entries in the Result Sheet in Form 20 may be made in loose-sheets so that the completed sheets can be totalled and checked up by one or two counting assistants then and there. For totalling and checking all the completed loose-sheets there should be assistants at the platform. 33. In the lay-out of the counting hall given in the Handbook provision is made for a clerk to be seated behind the Returning Officer on the platform itself. 34. Instruction 4 (b) given at page 64 of the Handbook is that stationery has to be provided at every counting table. The Returning Officer cannot be expected to carry them himself and place them on all the counting tables. 35. Instruction 6 (d) given at page 65 of the Handbook is that in addition to counting supervisors and counting assistants to be appointed for counting Class IV government servants should also be appointed as counting assistants to carry the ballot boxes to and from the counting tables. 36. All these instructions are in conformity with the provisions of the Act and the Rules. They only facilitate the smooth working of the Act. 37. S.128 of the Act insists tin persons performing duties in connection with recording and, counting of votes maintaining strict secrecy of the voting. Clerks and other persons are mentioned there as included-among such persons. 36. All these instructions are in conformity with the provisions of the Act and the Rules. They only facilitate the smooth working of the Act. 37. S.128 of the Act insists tin persons performing duties in connection with recording and, counting of votes maintaining strict secrecy of the voting. Clerks and other persons are mentioned there as included-among such persons. From all these it is clear that there can be inside the counting hall besides counting supervisors and counting assistants who perform duties of counting at the counting tables other counting assistants also and that the Returning Officer can appoint such persons also for his assistance in the counting hall. They are all counting assistants.] 38. The Tahsildar, Trivandrum, was a person appointed by the Returning Officer as a counting assistant. His name is included in Schedule II of Ext. P1. What was alleged in the petition was that the Sub Inspector of Police, Kazhakkuttam, was present in the counting room. What Pw.1 deposed was that it was the Sub Inspector of Police, Mangalapuram, who was present there. The evidence of Pw. 2 shows that the Sub Inspector was outside the counting hall. To that effect also was the evidence of Pws. 3 and 4 and Dws.1 and 2. It is unsafe to act on Pw. 1's statement that a Sub Inspector of Police was inside the counting hall. 39. Pw.1 mentioned the unauthorised persons who took part in the counting being clerks and peons of the Taluk Office. Some clerks and peons of the Taluk Office were appointed by Ext. P1 order. There is no evidence that any other clerk or peon in the Taluk Office took part in the counting. 40. Counting of votes for both Kazhakkuttam and Attingal Constituencies took place in the same building. While the counting for Attingal Constituency took place on the first floor that for the Kazhakkuttam constituency took place on the ground floor. On hearing that the rehearsal for the counting for the Kazhakkuttam Constituency was taking place on 15 91570 at the Basic Training School at Attingal Pw.1 went there that day and witnessed it. His complaint is that it was not the same persons who were then there that counted the votes for the Kazhakkuttam Constituency on 18 91970. The explanation for that can be found in the evidence of Pw. 2. His complaint is that it was not the same persons who were then there that counted the votes for the Kazhakkuttam Constituency on 18 91970. The explanation for that can be found in the evidence of Pw. 2. He was the Returning Officer for both the Kazhakkuttam and Attingal Constituencies. Rehearsal for the two Constituencies took place separately. Rehearsal for the Kazhakkuttam Consti-tuency took place not at the Basic Training School at Attingal but at the Excise Office at Trivandrum. Originally it was thought that one set of persons would be sufficient for the counting of votes for both the Constituencies but later that idea was changed and another set was appointed for the counting of votes for the Kazhakkuttam Constituency and rehearsal for them took place separately on 16 91960 in the Excise Office, Trivandrum. That accounts for the persons who took part in the counting of votes for the Kazhakkuttam Constituency being not those who took part in the rehearsal on 15 91970 at the Basic Training School at Attingal. It is clear from the evidence of Pws. 2 and 3, that no unauthorised person was inside the counting hall and that in the actual counting of votes no unauthorised persons took part. I believe them and find issues 1 and 2 against the petitioner. 41. Issue No. 20. According to the petitioner no Counting Supervisor was appointed by the Returning Officer and Part II of the Ballot Paper Accounts in Form 16 which should be filled up by Counting Supervisors and signed by them and also by the Returning Officer were not duly filled up and signed. Ext. P1 shows that Counting Supervisors were really appointed by the Returning Officer. Exts. P8 series 'and P5 and P7 are Ballot Paper Accounts for all the 82 Polling Stations in the Kazhakkuttam Constituency. Part II of all of them are seen to have been filled up and signed by the Counting Supervisors specified in Ext. P1. Except in one, Ext. P7, the Returning Officer or the assistance Returning Officer has also signed in them wherever necessary. As regards Part II of Ext. P7 Pw. 2 deposed that the omission to sign in it was a mistake on his part. But the concerned Counting Supervisor has signed in it. I find Pw. 2 has not signed in Ext. P7. P7, the Returning Officer or the assistance Returning Officer has also signed in them wherever necessary. As regards Part II of Ext. P7 Pw. 2 deposed that the omission to sign in it was a mistake on his part. But the concerned Counting Supervisor has signed in it. I find Pw. 2 has not signed in Ext. P7. In all other respects issue No. 20 is found against the petitioner. 42. Issues Nos.3 and 4. It is alleged that Pw. 2 arbitrarily and capriciously refused to recognise and receive duplicate of appointment in Form 18 of counting agents of the petitioner 'and that counting agents of the petitioner were denied access inside the counting hall. According to the first respondent counting agents of the petitioner were present at all counting tables. Pw.1 deposed that he got the original of the appointment of counting agents in Form 18 signed by all his counting agents and handed it over to Pw. 2 at Trivandrum on 16-9-1970. That is denied by Pw. 2. According to him none of the candidates had at any time given the appointment, either original or duplicate, of counting agents in Form 18. 43. Pws. 5 and 6 deposed that on 16 91970 at the election committee office of the petitioner they signed as the petitioner's counting agents in the appointment in Form 18. While Pw. 5 said that Krishnan Nair, the election agent of the petitioner, was present at that time Pw. 6 denied it. Pw. 5 could not say how many persons had signed it before he signed it. He is a member of the Muslim League and the petitioner is the President of the City Muslim League. Pws. 1, 5 and 6 deposed that Krishnan Nair was not present in the counting hall when the counting took place. Pw. 6 said that even on the 17th night Krishnan Nair had told him that he would not be able to attend counting as the settlement of the marriage of his niece had been fixed for the 18th and that he did not actually come also. But the evidence of Pws. 2 and 3 and Dws. 1 to 3 was to the effect that throughout the counting Krishnan Nair was present in the counting hall and that he was sitting just opposite to Pw. 2 on the plantform. All of them knew Krishnan Nair personally. Dw. But the evidence of Pws. 2 and 3 and Dws. 1 to 3 was to the effect that throughout the counting Krishnan Nair was present in the counting hall and that he was sitting just opposite to Pw. 2 on the plantform. All of them knew Krishnan Nair personally. Dw. 3 is the President of the Sreekaryam Panchayat and Krishnan Nair is a Member of that Panchayat. 44. "According to Pw.1 he went to the counting hall at 12.45 noon with his counting agents and the duplicate of their appointment in Form 18 but Pw. 2 refused to admit his counting agents-inside and receive from him the duplicate of their appointment, Then Pw.1 is said to have placed the duplicate of the appointment of counting agents on the table of Pw. 2 and unsuccessfully pleaded with him continuously till 2 PM. to accept the appointment of his counting agents and admit them inside the counting hall. According to him as none of his counting agents was admitted inside the counting hall and his election agent was also not present he was the only person inside the room to look after his interests there. He is an Advocate. He said that it was in the presence of several persons that he was pleading with Pw. 2 for over one hour. In these days when people are highly conscious of their rights in elections it is impossible to believe that if a Returning Officer arbitrarily and capriciously denies the legitimate request of a candidate to give access inside the counting hall to his counting agents candidates or their supporters would take it lying down. There would have been great commotion there if really Pw. 2 had taken up such an attitude. 45. Pw.1 admitted that Pw. 2 had no animosity towards him or his party and that he first saw him only on the date of the nomination. From the evidence of Pws. 2 to 4 and Dws. I to 3 it is clear that Pw. 2 came to the counting hall only after 2 PM. 'Pw. 6 admitted that the result of the Attingal Constituency was declared only after 2 PM. As Pw. 2 was the Returning Officer for that constituency also it was only likely that he would have come to the ground floor only after declaration of the result of the Attingal Constituency. 2 came to the counting hall only after 2 PM. 'Pw. 6 admitted that the result of the Attingal Constituency was declared only after 2 PM. As Pw. 2 was the Returning Officer for that constituency also it was only likely that he would have come to the ground floor only after declaration of the result of the Attingal Constituency. Ballot Paper Account in Form 16 for polling stations 1 to 6 were signed by Pw. 3 and not by Pw. 2. That is consistent with the version of Pws. 2 to 4 and Dws.1 to 3 that it was Pw. 3 who had really commenced the counting of votes for the Kazhakkuttam Constituency. 46. The case of the petitioner is that the Returning Officer was at the platform in the counting hall at 12.45 PM. that day, that he went to him and pleaded with him till 2 PM. to receive the duplicate of the appointment of counting agents in Form 18 and that the Returning Officer deliberately did not accept the same.. On the date of counting at 32 45 in the noon neither Pw. 2 nor pw. 3 was present in the counting hall. Pw.3 was sitting at the first floor. At 1.45 PM. the Election Deputy Commissioner reminded him that the counting of votes for the Kazhakkuttam Constituency had to be started punctually at 2 PM. itself. Pw. 2 could not then go from the first floor as the counting for the Attingal Constituency which had commenced in the morning had not been completed. Even at 10 A.M. that day Pw. 2 had given a letter to Pw. 3 authorising him to start the counting of votes for the Kazhakkuttam Constituency because it was thought that the counting of votes for the Attingal Constituency may not be over by 2 P.M. At 2PM. as the counting for the Attingal Constituency was not over Pw. 2 remained in the first floor. A short time before that Pw. 3 went to the ground floor and commenced counting of votes for the Kazhakkuttam Constituency. At that time he forgot to take the duplicate of appointment of counting agents in Form 18 from the contesting candidates. But the counting agents entered the counting hall with his permission and he made a verification of the counting agents of the candidates who were inside the hall. At that time he forgot to take the duplicate of appointment of counting agents in Form 18 from the contesting candidates. But the counting agents entered the counting hall with his permission and he made a verification of the counting agents of the candidates who were inside the hall. The omission to take from the candidates appointment of counting agents in Form 18 was noted only the next day. Pw. 2 deposed that he came from the first floor to the ground floor only by 3.30 PM, and that by that time counting had progressed to some extent. The evidence of Pw. 3 and Dws.1 to 3 was also to the effect that Pw. 2 came to the counting room only after the counting commenced. 47. Exhibits P3 and P4 are the applications filed by the petitioner for recount. Of them Ext. P-4 was filed first and Ext. P3 thereafter. Ext. P3 was filed about one hour after the declaration of the result. There is no complaint in Ext. P3 or Ext. P4 that Pw. 2 refused to accept the duplicate of the appointment in Form 18 of counting agents or that the counting agents of the petitioner were denied admission inside the counting hall. 48. The evidence adduced in the case shows that although the appointment of counting agents in Form 18 was not given by any of the candidates really counting agents of the petitioner and the first respondent were inside the counting hall, and that throughout the counting of votes they were effectively supervising it. Pw.1 was walking inside the room and watching what was taking place on the counting tables. Occasionally he went to the platform and watched the proceedings there. His election agent was sitting along with the first respondent opposite to Pws. 2 and 3 on the platform. Pw. 2 and Dw.1 gave the names of some of the counting agents of the petitioner who were present at the time of counting. The evidence of Pw. 4 and Dw. 2 shows that near their counting tables there were agents of the petitioner effectively participating in the counting and looking after his interests. The evidence of Dw. 3 also was to the effect that the election agent and counting agents of the petitioner were present inside the counting room and that they effectively participated in the counting. The evidence in this respect of Pws. The evidence of Dw. 3 also was to the effect that the election agent and counting agents of the petitioner were present inside the counting room and that they effectively participated in the counting. The evidence in this respect of Pws. 1, 5 and 6 is not reliable. I find Issues 3 and 4 also against the petitioner. 49. Issue 11. Beyond the interested evidence of Pw. 1, on which I find it difficult to place reliance, there is no evidence to show that the Returning Officer did not check the bundles of fifties taken to him by the counting supervisors. On the other hand, the evidence of Pws. 2 and 3 is to the contrary. I believe them and find Issue 11 against the petitioner. 50. Issue 12. The irregularities pointed out in the deposition of Pw.1 were that the card-board partitioning the compartments in the tray on the counting table were not properly fixed, that they frequently fell down and that votes in different compartments got mixed up. Another irregularity he pointed out was that in tying bundles of 50 votes for the respondents, votes cast for the petitioner were also included. Pw.1 deposed that on one or two occasions he really found the card-boards separating the compartments in the tray falling down, that on one occasion he found one of the votes cast for him kept in the bundles of fifties made out for the first respondent and that in spite of repeated requests on his part the Returning Officer did not check the bundles. Except his interested evidence on which I find it difficult to place reliance, there is no evidence to support these allegations. On the other hand the evidence of Pws. 2 and 3 and Dw.1 shows that those allegations are not true. Further none of these irregularities was pointed out either in Ext. P3 or in Ext. P4. 51. It was argued that entries in the result sheet in Form 20 were made by the Tahsildar, Trivandrum, and that that was in violation of R.56A (7) (b) of the Conduct of Elections Rules, 1961, which reads thus: "(7) After the counting of all ballot papers contained in all the ballot boxes used at a polling station has been completed (a) (b) the Returning Officer shall make the entries in a result sheet in Form 20 and announce the particulars." Pw. 2 admitted that the entries in the result sheet were made by the Tahsildar, Trivandrum, but the Tahsildar was none other than one of the counting assistants appointed by him. The Tahsildar made the entries to the dictation of Pw. 2. R.56A (7) (b) does not insist on the Returning Officer writing the entries in his own hand. There is nothing prohibiting him from getting them typed or getting them written on his dictation. In the context in which it appears the word 'make' in the Rule only means cause to exist or cause to bring about. Therefore there was no irregularity whatsoever in getting the entries in the result sheet made by the Tahsildar. This was not pointed out as an irregularity in Exts. P3 and P4 also. 52. Pw. 2 frankly admitted that some irregularities had been committed at the time of counting. One such was the omission to take appointment of counting agents in Form 18 from the candidates before counting agents were admitted inside the counting hall. The only other irregularity was the failure on the part of Pw. 2 to sign in Ext. P7. 53. I must say reviewing all the evidence that the only irregularities were that Pws. 2 and 3 did not take from the candidates appointments in Form 18 of their counting agents and that Pw. 2 did not sign in Ext. P. 7 54. Issues 17 and 18.- R.63 which requires the Returning Officer to afford sufficient opportunity to the candidates to enable them to apply for re-count reads: 63. (1) After the completion of the counting, the Returning Officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. (2) After such announcement has been made, a candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the Returning Officer to recount the votes either wholly or in part stating the grounds on which he demands such recount. (3) On such an application being made the Returning Officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if in appears to him to be frivolous or unreasonable. (4) Every decision of the Returning Officer under sub-rule (3) shall be in writing and contain the reasons therefor. (3) On such an application being made the Returning Officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if in appears to him to be frivolous or unreasonable. (4) Every decision of the Returning Officer under sub-rule (3) shall be in writing and contain the reasons therefor. (5) If the Returning Officer decides under sub-rule (3) to allow a recount of the votes either wholly or in part, he shall (a) do the recounting in accordance with rub 54A, R.56 or R.56A, as the case may be; (b) amend the result sheet in Form 20 to the extent necessary after such recount; and (c) announce the amendments so made by him. (6) After the total number of votes polled by each candidate has been announced under sub-rule (1) or sub-rule (5), the Returning Officer shall complete and sign the result sheet in Form 20 and no application for a recount shall be entertained thereafter: Provided that no step under this sub-rule shall be taken, on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (2)." About giving reasonable opportunity to the candidates and their election and counting agents to enable them to exercise the right to apply for recount of votes the direction given to Returning Officers in instruction 20, given at page 74 of the Handbook is that they should pause for a minute or two after the announcement of the total number of votes polled by each candidate. 55. After Pw. 2 announced the total number of votes polled by each candidate Pw.1 is said to have told Pw. 2 that he proposed to apply for recount and requested him not to declare the result until the application was filed. Thereafter Pw.1 proceeded to write an application for recount in the presence of Pw. 2. Before he could complete it Pw. 2 declared the result. The allegation in the Election Petition is that it was due to the influence of the Tahsildar, Trivandrum, that Pw. 2 did so. 56. Pw.1 deposed that before the result was declared he told Pw. 2 that there were irregularities in the counting of votes. He did not say that he specified at that time what those irregularities were. 57. The allegation in the Election Petition is that it was due to the influence of the Tahsildar, Trivandrum, that Pw. 2 did so. 56. Pw.1 deposed that before the result was declared he told Pw. 2 that there were irregularities in the counting of votes. He did not say that he specified at that time what those irregularities were. 57. The evidence of Pw. 2 shows that counting was over by 8 or 8.15 PM. Thereafter it took about 30 minutes for informing candidates as to how many votes each had received. The necessary entries were then made in the result sheet in Form 20. After that Pw. 2 waited for about five minutes. Thereafter when Pw.1 went to him and requested him to check up the adding up of the number of votes polled by each candidate Pw. 2 checked it up and found no mistake. It took 10-15 minutes for him to do that. After that Pw.1 did not say anything. In spite of that Pw. 2 waited for five minutes mare to see whether any person had any objection or wanted recount. Krishnan Nair, Dw. 3 and other election agents who were then there asked Pw. 2 whether he could not declare the result. It was only then that Pw. 2, after signing the result sheet in Form 20, declared the result. He was emphatic that the petitioner at no time told him that he proposed to apply for recount or that he wanted time to do it. 58. About five minutes after Pw. 2 declared the result and signed the result sheet Pw.1 took Ext. P4 to him and placed it on his table. Then and there Pw. 2 made an endorsement on it that it was actually presented only after he had declared the result. One hour after that Pw.1 took another petition, Ext. P3, to him. It is stated in it that Pw. 2 had asked Pw.1 to file an application for recount and that it was pursuant to it that Ext. P3 was filed. Pw. 2 deposed that that statement was false. The evidence of Pw. 3 was also to the effect that the application for recount was filed only after the declaration of the result. 59. The only grounds for recount mentioned in Ext. P3 was filed. Pw. 2 deposed that that statement was false. The evidence of Pw. 3 was also to the effect that the application for recount was filed only after the declaration of the result. 59. The only grounds for recount mentioned in Ext. P4 were that there was suspicion that counting was not properly done and that there was mistake in the addition of votes. At no time during the counting of votes did the petitioner or his election agent or any of his counting agents raise any objection that counting was not proper and if it was not proper in what respect. About the mistake in the addition of votes Pw.1 had orally pointed it out even before the declaration of the result and the evidence of Pw. 2 and Dw. 3 shows that when it was pointed out Pw. 2 checked it up before the result was declared. The evidence of Pw.1 that before declaration of the result he informed Pw. 2 that he proposed to apply for recount and requested Pw. 2 not to declare the result and sign the result sheet is not reliable. It is clear from the evidence of Pws. 2 and 3 and Dws.1 and 3r which I believe, that after the announcement of the total number of votes polled by each candidate Pw. 2 really waited for some time and gave reasonable opportunity to the candidates and their election agents and counting agents to exercise their right to apply for recount and none of them availed of it. I find Issues 17 and 18 also against the petitioner. 60. Issues 5 and 13 to 16. These issues were not pressed by the petitioner's advocate. I find them against the petitioner. 61. Issue 21. The only irregularities which have come out in evidence are that the Returning Officer had not received the appointment of counting agents in Form 18 from the contesting candidates and that he had not signed in Ext. P7, the ballot paper account for polling station No. 42. 62. S.128 of the Act emphasises the responsibility of counting agents and other persons present at the counting maintaining strict secrecy of the voting. R.54 says that the Returning Officer should read out the provisions of S.128 to persons present in the counting hall before commencement of counting. P7, the ballot paper account for polling station No. 42. 62. S.128 of the Act emphasises the responsibility of counting agents and other persons present at the counting maintaining strict secrecy of the voting. R.54 says that the Returning Officer should read out the provisions of S.128 to persons present in the counting hall before commencement of counting. S.47 of the Act empowers candidates or their election agents to appoint counting agents. When counting agents are appointed, the Section requires notice of it being given to the Returning Officer in the prescribed manner. R.52(2) has prescribed Form 18 for appointment of counting agents. One copy of it has to be given to the Returning Officer and another copy to the counting agent for production before the Returning Officer. Form 18 shows that the counting agents have to make a solemn declaration that they would not do anything forbidden by S.128 of the Act. All these safeguards have been made to ensure the secrecy of the ballot paper. 63. It was argued on behalf of the petitioner that as counting agents who were inside the counting hall had not been duly appointed in Form 18 R.52 (3) which reads thus: "No counting agent shall be admitted into the place fixed for counting unless he had delivered to the Returning Officer the second copy of his appointment under sub-rule (2) after duly completing and signing the declaration contained therein and receiving from the Returning-Officer an authority for entry into the place fixed for counting." had been violated and that as Pw. 2 did not sign in Part II of Ext. P7 R.56A 7 (a) which reads thus: "After the counting of all ballot papers contained in all the ballot boxes used at a polling station has been completed (a) the counting supervisor shall fill in and sign Part II Result of counting in Form 16 which shall also be signed by the Returning Officer;". had been violated. These are not grounds for recount mentioned in either Ext. P3. or in Ext. P4. 64. Has violation of these Rules affected the result of the election. The evidence of Pw. 3 shows that he really read out S.128 of the Act before counting commenced. Whether counting agents of the candidates are present or not, counting has to be done by the counting staff appointed by the Returning Officer under his supervision and direction. P4. 64. Has violation of these Rules affected the result of the election. The evidence of Pw. 3 shows that he really read out S.128 of the Act before counting commenced. Whether counting agents of the candidates are present or not, counting has to be done by the counting staff appointed by the Returning Officer under his supervision and direction. S.64 of the Act dealing with counting of votes reads: "At every election where a poll is taken, votes shall be counted by, or under the supervision and direction of, the Returning Officer, and each contesting candidate, his election agent and his counting agents, shall have a right to be present at the time of counting." Candidates and their election agents and counting agents have only a right to be present there. As observed in Abdul Majeed v. Bhargavan & Others 1962 KLJ. 810, their right is only to supervise and not scrutinise ballot papers. Their presence may ensure the fairness of the counting but the actual counting is made by others under the supervision and direction of the Returning Officer. 65. Part II of Form 16 has to be filled up and signed by the counting supervisor. The Returning Officer has also to sign in it. In Ext. P7 the counting supervisor has really signed. The omission of the Returning Officer to sign in it has nothing to do with the result of the election. 66. The procedure adopted at the time of the counting was described by Pw. 4, There were two trays on each counting table. In one tray were placed all the ballot papers taken from the ballot boxes. Thereafter from that tray ballot papers were taken up one by one and after scrutiny put in the separate compartments intended for each candidate in the other tray. There were altogether five compartments in that tray, four for the four contesting candidates and the fifth for placing doubtful votes. There were two counting assistants and one counting supervisor for each table. After one counting assistant counted the votes received by one candidate the other counting assistant also counted the same and got satisfied that the counting made earlier was accurate. The counting supervisor supervised the counting made by the two counting assistants at his table. If any ballot paper was found to be not clear he was always there to give advice. The counting supervisor supervised the counting made by the two counting assistants at his table. If any ballot paper was found to be not clear he was always there to give advice. There was thus throughout the counting, checking and supervision. It is also seen from the evidence of Pws. 2 and 3 and Dw. 2 that with regard to doubtful votes agents of the candidates always gave an agreed opinion and that the decisions regarding the same also were always in accordance with the same. 67. It is under S.100 (1) (d) of the Act which reads thus: "100. (1) Subject to the provisions of sub-section (2) if the High Court is of opinion (a) (d) that the result of the election, in so far it concerns a returned candidate, has been materially affected, (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception or any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void." that the election is sought to be set aside. It is comparable with S.16 (3) of the corresponding English Act, the Representation of the People Act, 1949 It reads: "No parliamentary election shall be declared invalid by reason of any act or omission by the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the parliamentary elections rules if it appears to the tribunal having cognizance of the question that the election was so conducted as to be substantially in accordance with the law as to elections, and that the act or omission did not affect its result." Dealing with the corresponding provision in S.13 of the predecessor Act of 1872, Grove, J. said in Hackney Case, Gill v. Reed and Holms: (1874) 39 J.P. 151; 2 OM. and H. 77 referred to at page 507 of the third Edition of Schofield on Parliamentary Elections. and H. 77 referred to at page 507 of the third Edition of Schofield on Parliamentary Elections. 'If 1 look to the whole and to the sense of it as a whole it seems to me that the object of the legislature in this provision is to say this an election is not to be upset for an informality or for a triviality, it is not to be upest because the clerk at one of the polling stations was five minutes to late or because some of the polling papers were not delivered in the proper manner or were not marked in a proper way. The objection must be some-thing substantial, something calculated really to affect the result of the election, I think that is the way of viewing it which is consistent with S.13 of the (1872) Act. So far as it seems to me the reasonable meaning of S.13 is to prevent an election from becoming void by trifling objections on the ground of informality, because the judge has to look to the substance of the case to see whether the informality is of such a nature as to be fairly calculated in a reasonable mind to produce a substantial effect upon the election." In Islington West Division Case, Medhurst v. Lough and Gauquet (17 TLR. 210, at p. 230; 5 OM. and H. 120 referred to at pages 508 and 509 of the same book). Kennedy, J. said: 'An election ought not to be held void by reason of transgressions of the law com-miffed without any corrupt motive by the returning officer or his subordinates in the conduct of the election where the court is satisfied that the election was notwithstanding those transgressions, an election really and in substance conducted under the existing election law, and that the result of the election, that is, the success of the one candidate over the other was not and could not have been affected by those transgressions. If on the other band the transgressions of the law by the officials being admitted, the court sees that the effect of the transgressions was such that the election was not really conducted under the existing election laws, or it is open to reasonable doubt whether these transgressions may not have affected the result, and it is uncertain whether the candidate who has been returned has really been elected by the majority of persons voting in accordance with the laws in force relating to elections the court is then bound to declare the election void. It appears to us that this is the view of the law which has generally been recognised and acted upon by the tribunals which have dealt with election matters. We may refer in regard to cases heard by Parliamentary Committees to the Warwick Case (1835), P. and K. 355), and the Roxburg Case (1838), F and F. 467) and in regard to the more important authority of Courts of law and the election judges, to the considered judgments of the Court of Common Pleas in Woodward v. Sarsons, which cites a number of authorities and contains express approval of the answer of Mr. Baron Martin, before a Committee of the House of Commons 'that he had discussed the matter with Mr. Justice Wills who thought that to what-ever extent the provisions of an Act of Parliament were wilfully violated which did not enact that the consequence of those acts avoided the seat, a person sitting judicially could not avoid the seat.'- We may also refer to the much more recent judgment by Mr. Justice O Brien and Mr. Justice Johnson in the Eastern Division of the Country of Clare case in 1892 (4 O'M and H. 162). And it is to be borne in mind by the tribunal which has to consider the validity of elections that it ought to act with great caution. 'I adhere' said Mr. Baron Martin in the Warrington Case (1869,) 1 O' M and H- 44) 'to what Mr, Justice Wills said at Lichfield that a judge to upset an election ought to be satisfied beyond all doubt that the election was void and that the return of a member is a serious matter and not lightly to be set aside'." 68. Baron Martin in the Warrington Case (1869,) 1 O' M and H- 44) 'to what Mr, Justice Wills said at Lichfield that a judge to upset an election ought to be satisfied beyond all doubt that the election was void and that the return of a member is a serious matter and not lightly to be set aside'." 68. Periodical poll is the foundation of democratic government which is government by consent and members of legislatures have to be consciously chosen by the electors. People cannot be allowed to get elected by flagrant breaches of law or corrupt practice. By general corruption or intimidation or by rioting and demolition of polling stations majority of the voters may be prevented from recording their votes. In such a case there is no real election. If the democratic process of election prescribed by ballot is not conducted according to the election laws or is conducted in violation of them it is illegal. But would that be sufficient to set aside the election of the returned candidate? It is after spending enormous public funds that elections are held. Candidates also spend large amounts. In terms of working hours spent by mass of voters going to the polls on the date of election the economic strain to the nation is incalculable. An election conducted after all that cannot be allowed to be upset on trivial grounds. An election petition is not a suit between the parties to it. It is not the candidates alone who are interested in it. The whole public is also interested in it. As is sometimes said "an election contest is not an action at law or a suit in. equity." Equitable principles have no application whatsoever in it. It is a purely statutory proceeding governed exclusively by the express terms of the statute. 69. The grounds for up-setting an election under S.100 (i) (d) of the Act are improper acceptance of any nomination, corrupt practice committed in the interests of the returned candidate, improper reception, refusal or rejection of any vote or the reception of any vote which is void and non-compliance with the provisions of the Constitution or the Act or of rules or orders made under the Act. All of them are illegalities in that they are violations of law: For the petitioner to succeed it is not sufficient if he merely shows that one or more of them existed. He has further to show that there was connection between them and the result of the election as cause and effect. It is not any kind of such illegality or any casual connection between it and the result of the election that is contemplated by the Section. Only such illegalities which materially affect the result of the election are contemplated. The result of the election affected should be so far as it concerns the returned candidate also. And what is the result of the election in so far as it concerns him? It is his success. Therefore to succeed under S.100 (1) (d) of the Act petitioner has to show not merely the existence of one or more of the illegalities contemplated by S.100 (1) (d) but also that the success of the returned candidate in the election has been substantially affected by reason of such illegality or illegalities. 70. I now pass on to certain decided cases where elections have been refused to be set aside on mere proof of irregularities or illegalities. In Reports on the Indian Election Petitions by Hammond, Vol. III, at page 76 a case is reported where the counting took place partly in one room and partly in another. There was a door of communication in between. There were 12 counting tables, seven in one room and the remaining five in the other. The Returning Officer was seated in one room quite close to the communication door and so he could see what was happening in the other room. Contrary to rule he admitted only one counting agent of each candidate to be present at the time of counting and that counting agent had to go from table to table during the counting. The election was held to be valid. 71. In Gopalan v. Kannan 1958 KLT. 388 the difference in the number of votes between the returned candidate and the petitioner was only 51. One of the allegations of the petitioner was that the petitioner lost nearly 100 votes as a result of the polling having commenced late and closed earlier than as promised by the Presiding Officer. 71. In Gopalan v. Kannan 1958 KLT. 388 the difference in the number of votes between the returned candidate and the petitioner was only 51. One of the allegations of the petitioner was that the petitioner lost nearly 100 votes as a result of the polling having commenced late and closed earlier than as promised by the Presiding Officer. Hours of poll published were from 7.30 A.M. to 4.30 P, M. with an interval of thirty minutes. In fact the polling started at the two stations only at 8.45 A. M. and closed at 5.10 P. M. Excluding the period of interval of thirty minutes, the total time provided for polling was only seven hours and fifty five minutes. Under the proviso to S.56 of the Act the total period allotted for polling should be not less than eight hours. That pro-vision had been violated in the conduct of the election in two polling stations. It was held that the non-voting of voters who did not vote in the two polling stations could not be traced to the non-compliance of the provisions of the Constitution or the Act. Consequently the petition was dismissed. 72. In Paokai v. Rishang AIR. 1969 SC. 663 polling centres in some cases were changed from the original buildings to other buildings without due notification. The allegation was that voters who went to the old polling booths had to go away without casting their votes. It was found that the election was in contravention of the provisions of the Act and rules but still the Supreme Court refused to set it aside on the ground that the election of the returned candidate had not been materially affected by it. The following observations there are relevant: "In our opinion, the decision of the learned Judicial Commissioner that the election was in contravention of the Act and the Rules was correct in the circumstances of this case; but that does not alter the position with regard to S.100 (1) (d) (iv) of the Act. That section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected. How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided. How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided. It is no doubt true that the burden which is placed by law is very strict; even if it is strict it is for the courts to apply it. It is for the Legislature to consider whether it should be altered. If there is another way of determining the burden, the law should say it and not the courts 73. In Mahadoe v. Udai Parian AIR. 1956 SC. 824 there was misprint of the name of the petitioner who challenged the election in the ballot papers. The election petition was dismissed as the petitioner had failed to prove that the misprint of his name in the ballot papers had materially affected the result of the election, 74. In Warrington case, Crazier v. Rylands (19 L. T. 812, referred to at page 511 of third Edition of Schofield on Parliamentary Elections) even though votes were lost through the incompetency of a poll clerk the election was held to be not void. 75. In East Kerry case ((1910), 6 O'M and H. 85 referred to in Schofield on Parliamentary Elections, third Edition page 5.12) the presiding officer failed to open the polling station at the proper time and placed the names on the ballot paper in incorrect order. There were also no facilities for preventing the marking of votes on the ballot papers from being over-looked. In spite of all that the election was held valid. 76. In Pembroke case (1908), 2 I. R.433 ballot boxes were not opened or shown to have been empty by the presiding officer to those present at the opening of the poll. Although it was a breach of the rules the election was held to be valid. 77. With regard to the irregularities found in the present case whether they are taken up separately or together they cannot be said to have affected the result of the election and much less materially affected it. I find issue 21 against the petitioner. 78. Issue 22. 77. With regard to the irregularities found in the present case whether they are taken up separately or together they cannot be said to have affected the result of the election and much less materially affected it. I find issue 21 against the petitioner. 78. Issue 22. R.63 (1) to (4) of the Conduct of Election Rules here quoted already in dealing with issues 17 and 18 can be compared with R.47 (1), the corresponding Rule in the English Parliamentary Election Rule given at page 728 of Schofield on Parliamentary Elections, Third Edition. It reads thus: "A candidate or his election agent may, if present when the counting or any recount of the votes is completed, require the returning officer to have the votes recounted or again re-recounted but the returning officer may refuse to do so if in his opinion the request is unreasonable." In England recount can be refused by the Returning Officer only if the request for the same is unreasonable. In India it can be granted only on valid grounds. While in England the request need not be in writing here there should be an application in writing for the purpose stating the grounds on which recount is claimed. After receiving the application the Returning Officer has to take a decision on the question of recount. That decision cannot be summary in nature or oral. It should be in writing and supported by reasons. Recount cannot be granted for the mere asking. 79. Returning Officer has a duty to see that votes are counted accurately. At the time of counting candidates and their election agents and counting agents have opportunities to tell the Returning Officer or the Counting Supervisors or Counting Assistants that the counting made is not correct. If they do not pay heed to the objection candidates and their election agents and counting agents can make a note of that objection and raise it as a ground in the application for recount. If that right has not been availed of by the concerned candidate or bis election agent or counting agent or if it was availed of but without success then on request made to Court in an Election Petition the Court can grant the request for recount. If that right has not been availed of by the concerned candidate or bis election agent or counting agent or if it was availed of but without success then on request made to Court in an Election Petition the Court can grant the request for recount. But the Court would grant it only when specific instances of illegality substantially affecting the result of the election so far as it concerns the returned candidate are pleaded and there is prima facie evidence to substantiate them. They are absent here. Issue 22 is found against the petitioner. 80. Issues 6 to 10 and 19. Counsel for petitioner conceded that these issues could be decided in his favour only if Issue 22 was found in his favour As that issue has been found against him these issues are also found against him. 81. Issues 23 to 26. This petition is dismissed with costs. Advocate's fee Rs. 250/ Dismissed.