Order 1. This election petition relates to the election of Member of Legislative Council from 18Nizamabad Local Authority constituency, Nizamabad and it is filed under the Representation of People Act, 1951. 2. Reddygari, Venkat Ram Reddy, the petitioner herein, who lost the election by one vote, filed the present election petition. 3. In the election petition the petitioner prayed for the following reliefs: a) To declare the election of respondent No.1 to the Legislative Council 18-Nizamabad Local Authority Constituency, Nizamabad held on 30.03.2009 as illegal and void; b) To direct Recounting and scrutiny of the ballot papers and validate three votes cast in favour of the petitioner; c) To declare one vote cast in favour of the respondent No.1 as invalid; d) To set aside the Election of the first respondent as the member of the Legislative Council from 18-Nizamabad Local Authority, constituency; e) To declare the petitioner as elected to the Legislative Council of the State of Andhra Pradesh from 18-Nizamabad Local Authority, constituency in the Election held on 30.03.2009. f) To award costs of the petition; 4. I have heard Sri K. Ramakrishna Reddy, learned counsel appearing for the petitioner, Sri Movva Chandrasekhar Rao, Sri B. Adinarayana Rao, learned counsel appearing for the first respondent, learned Government pleader for General Administration for the respondent No.2. 5. Since the recount and scrutiny of the ballot papers was sought for in the election petition by the petitioner and was opposed by the first respondent, I have heard the arguments of the learned counsel only on the point as to whether recount and scrutiny of the ballot papers can be ordered? 6. The contentions of respective parties on the limited question of scrutiny and recount of the ballot papers may be stated as follows: 7. The petitioner, who was unsuccessful in the election with a narrow margin of one vote submitted that due to improper rejection of three votes polled in his favour and by improper validation of one vote in favour of the first respondent, he is seeking the relief of scrutiny and recount of votes for the purpose of validation of three votes polled in his favour and rejection of one vote counted in favour of the first respondent. 8. 8. He submitted that the election for 18-Nizamabad Local Authority, Constituency to Member of Legislative Council, Nizamabad of Andhra Pradesh was held on 30.03.2009 and the counting of votes took place on 02.04.2009 under the supervision of the second respondent-Returning Officer whereat election observer was also present. Against 706 total votes polled counting was done at three tables. 9. In the process of counting at the counting tables, petitioner and respondent No.1 got 336 votes each and 29 votes were considered to be doubtful. 10. The version of the petitioner is that during the process of counting of votes at the respective tables he raised objection regarding three votes polled in his favour which were in the box of doubtful votes. He furnished the particulars of the votes which are as follows: a) One vote was polled in favour of the petitioner by marking figure ‘1’, but the same was doubted as it looked like ‘7’ and was kept under doubtful votes. b) One vote which was polled in favour of the petitioner by marking figure ‘1’ was doubted on the ground that it looked like ‘dot’. c) One vote which was polled in favour of the petitioner by marking figure ‘1’ was treated as doubtful vote on the ground that the name of the petitioner, the contesting candidate was written on the ballot paper. 11. It is further submitted by the petitioner that the second respondent-Returning Officer after scrutinizing ‘29’ doubtful votes validated one vote which looked like ‘7’ in favour of the petitioner. Thus, according to the petitioner, after the scrutiny was completed, he got ‘337’ votes, whereas the second respondent got ‘336’ votes. Nextly, it is submitted that while the Returning Officer-second respondent was about to declare the election, the first respondent filed two applications vide Exs.P4 and P.5 requesting recount of votes and to reject one doubtful vote which was declared as valid in favour of the petitioner. The petitioner filed an application vide Ex.P.7 opposing the recount on the ground that the first respondent has not made any specific allegation about the irregularities and that the application was vague. 12. It is further submitted that despite the objection raised by the first respondent, the second respondent-Returning Officer ordered recount. The petitioner filed an application vide Ex.P.7 opposing the recount on the ground that the first respondent has not made any specific allegation about the irregularities and that the application was vague. 12. It is further submitted that despite the objection raised by the first respondent, the second respondent-Returning Officer ordered recount. During the said recount, two votes earlier counted valid in favour of the petitioner were rejected on the ground that the said votes were doubtful, one vote was rejected on the ground that the figure ‘1’ was horizontal and the other vote was rejected on the ground that the figure ‘1’ looked like ‘7’. After the said recount of votes, the total votes of the petitioner were reduced to ‘335’ [337-2] and eventually three votes polled in favour of the petitioner were considered doubtful votes as under: a) Returning Officer held, one vote as doubtful on the ground figure ‘1’ mark as appearing like ‘7’ though figure ‘1’ was put properly by the voteer in favour of the petitioner. b) Returning Officer held, one vote was doubtful on the ground that figure ‘1’ mark is appearing like dot ‘.’ Thought figure ‘1’ was put properly in favour of the petitioner. c) Returning Officer held, one vote was doubtful on the ground that name of the petitioner is written on the ballot paper though the figure ‘1’ mark was put properly in the box opposite to the petitioner’s name. 13. The petitioner, therefore, urges this Court to order scrutiny and recount of the votes on the ground that the procedure for recount of votes adopted by the second respondent is illegal, arbitrary and contrary to the conduct of Election Rules, 1961 and that the result of the election is materially affected due to improper reception of one vote which in fact, is void in favour of the first respondent and improper rejection of three votes polled in favour of the petitioner which are in fact valid and that the petitioner infact, secured more votes and he ought to have been declared as elected to 18Nizamabad Local Authority Constituency as Member of Legislative Council, State of Andhra Pradesh. 14. Apart from controverting the averments of the election petition in general, the first respondent-Arikala Narsa Reddy, who was declared as elected in the election petition contended in the written statement filed by him as follows: 15. 14. Apart from controverting the averments of the election petition in general, the first respondent-Arikala Narsa Reddy, who was declared as elected in the election petition contended in the written statement filed by him as follows: 15. He admitted that in the first instance, the second respondent announced that the petitioner and the first respondent got ‘336’ votes each and ‘29’ votes were held doubtful/rejected. But according to the first respondent, there will not be any votes like doubtful votes, they are in fact, rejected, but they are wrongly described as doubtful votes in the entire election petition. According to him, two ballot papers containing ‘dot’ and overwriting with the name of the petitioner were rejected at the counting table without any objection by any party. One vote containing the figure ‘7’ was illegally treated as “1” by the Returning Officer, in spite of protest made by the first respondent. It is further contended that the Returning Officer-second respondent is the sole authority to decide whether the particular ballot paper is valid or not and the ballot paper containing the over writing with the name of the petitioner is invalid since it discloses the identity of the voter. It was alleged that the petitioner had purchased number of votes and instructed the said voters to put some mark on the ballot paper in a particular manner, so that he can verify whether the voters who promised, voted for him or not. Thus, the version of the first respondent appears to be that putting dot and writing the name of the petitioner on the ballot paper are with a view to reveal the identify of the voter to the petitioner. 16. It is further contended by the first respondent that the petitioner never secured 337 votes as pleaded by him and he got only 336 votes after the counting was over, two more ballot papers counted earlier in favour of the petitioner as valid were rejected at the time of counting the votes. Out of two votes rejected, one vote containing the horizontal like figure and another ballot paper containing figure ‘7’ was rightly rejected at the time of recount of votes. Therefore, his version is that after recount the petitioner secured total number of ‘334’ valid votes. Out of two votes rejected, one vote containing the horizontal like figure and another ballot paper containing figure ‘7’ was rightly rejected at the time of recount of votes. Therefore, his version is that after recount the petitioner secured total number of ‘334’ valid votes. While the first respondent secured ‘336’ votes and 29 votes were rejected, but the second respondent incorrectly held that the petitioner secured ‘335’ votes and three votes were rejected. Thus, according to the first respondent, it is accidental slip in noting the said number of votes. 17. It is contended by the first respondent that despite the fact seven candidates were not contesting the election, the decision of the second respondent treating one ballot containing the figure ‘7’ as invalid can not be questioned and it is not open for the petitioner to contend that the second respondent should have treated the same as valid one. He submitted that according to Rule 73(2) of the Conduct of Election Rules every ballot paper which does not contain figure ‘1’ has to be rejected. 18. Similarly he contended that any vote containing over writing on the ballot paper has to be rejected according to Rule 73(2) of the Conduct of Election Rules and the second respondent rightly rejected the ballot paper which contained the over writing of the name of the petitioner, who is one of the contesting candidates. 19. He further contended that the objection taken by the petitioner for validating the vote in favour of the first respondent which contained tick mark has no substance and the decision of the Returning Officer on this vote is correct and further contended that the petitioner never raised any such objection at the time of recount. Another contention putforth by the first respondent is that one valid ballot in his favour was illegally rejected on the ground that though the figure ‘1’ was marked on the ballot paper that figure was followed by figure ‘2’ in the same column allotted to the first respondent and according to law the first figure only has to be taken into consideration and the subsequent figure has to be ignored, but the same was not considered by the second respondent. Raising the above said contention the first respondent sought to dismiss the petition. 20. Raising the above said contention the first respondent sought to dismiss the petition. 20. The second respondent filed written statement denying the allegations made against him and contending as follows: The second respondent strictly followed the procedure of counting as per the instructions of the Election Commission of India. On the petitions for recount of votes by the contesting candidates, after recount and verification, 30 votes were rejected and first respondent was declared elected since he secured 336 valid votes as against 335 votes secured by the petitioner and the same was reported to the Election Commission of India. It is denied that an invalid vote was given to the first respondent. The second respondent rejected two ballot papers as doubtful. In one of the ballot papers there was a horizontal mark and the other mark was doubtful as to whether it was ‘1’ or ‘7’. Hence, he prayed to dismiss the election petition. 21. The petitioner filed rejoinder to the written statements filed by the respondents and denied the averments. The two ballot papers referred to by the second respondent have according to him been rejected illegally. The said votes clearly indicate that they have been cast in favour of the petitioner and that the said mark ‘1’ was written in column earmarked for the petitioner in the ballot paper. 22. The first respondent filed additional written statement in response to the written statement filed by the second respondent. It is denied that both the contesting candidates have given petitions for recount of votes and stated that he alone had given two petitions for recount, but the petitioner vehemently opposed those two petitions. 23. Since the question to be decided in the first instance is as to whether scrutiny and recount of votes can be ordered or not, I do not want to examine the merits of contentions relating to the validity or otherwise of the challenged votes. But, I wish to examine only whether there are any valid grounds to grant the prayer for scrutiny and recount of votes. 24. In R. F. NARAYANA v S. SEMMALAI AND OTHERS ( 1980(2) SCC 537 ) it was laid down by the Supreme Court that “mere fact of small margin of victory not sufficient ground for Court to order re-count. The relief of re-count cannot be accepted merely on the possibility of there being an error. 24. In R. F. NARAYANA v S. SEMMALAI AND OTHERS ( 1980(2) SCC 537 ) it was laid down by the Supreme Court that “mere fact of small margin of victory not sufficient ground for Court to order re-count. The relief of re-count cannot be accepted merely on the possibility of there being an error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence. The fact that the margin by which the appellant succeeded was very narrow was undoubtedly an important factor to be considered but that would not by itself vitiate the counting of votes or justify recounting by the court”. 25. In MAHANT RAM PRAKASH DAS v RAMESH CHANDRA AND OTHERS ( 1999 (9) SCC 420 ) the Supreme Court held as follows: “Application for recount should contain valid precise grounds. The election petitioner has to make out a prima facie case regarding error in counting of such magnitude that result of election of the returned candidate may be affected. Though mere fact that the petitioner was defeated by a small margin of votes by itself is not a sufficient ground for re-count but that fact assumes significance if prima facie case as to error in counting is made out.” It was further held as follows: “A candidate or his agent has an opportunity to ask for re-count at two stages; the first, before election result is finally declared, and the second, by way of election petition before the High Court.” 26. In KM. SHRADHA DEVI v KRISHNA CHANDRA PANT AND OTHERS ((1982) 3 SCC 389 (II)) the Supreme Court held as follows: “When a petition is for the relief of scrutiny and re-count on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a re-count can be ordered. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and re-count because of miscount, petitioner must furnish prima facie proof of such error. If proof is furnished of some errors in respect of some ballot-papers, scrutiny and re-count cannot be limited to those ballot-papers only. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and re-count because of miscount, petitioner must furnish prima facie proof of such error. If proof is furnished of some errors in respect of some ballot-papers, scrutiny and re-count cannot be limited to those ballot-papers only. If the re-count is limited to those ballot-papers in respect of which there is a specific allegation of error on the correlation is established, the approach would work havoc in a parliamentary constituency where more often we find 10,000 or more votes being rejected as invalid”. “Even at the cost of repletion it must be said that it is not the requirement of law that in respect of each ballot-paper rejected as invalid a specific averment must be so made as to identify the ballot-paper and only those that can be correlated to the allegations in the petition specifically and not generally shall be re-counted. That is contrary to the requirement of the Act and the Rules.” 27. In V.S. ASCHUTHANANDAN v P.J. FRANCIS AND ANOTHER ( (2001) 3 SCC 81 ) the Supreme Court held as follows: 1. The secrecy of the ballot is sacrosanct and shall not be permitted to be violated lightly and merely for asking or on vague and indefinite allegations or averments of general nature. At the same time purity of election process has to be preserved and therefore inspection and re-count shall be permitted but only on a case being properly made out in that regard. 2. A petition seeking inspection and re-count of ballot-papers must contain averments adequate, clear and specific making out a case of improper acceptance or rejection of votes or non-compliance with statutory provisions in counting. Vague or general allegations that valid votes were improperly rejected, or in valid votes were improperly accepted would not serve the purpose. 3. The scheme of the rules prescribed in Part V of the Conduct of Election Rules, 1961 emphasises 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 over-ruled, 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. 4. The election-petitioner must produce trustworthy material in support of the allegations made for a re-count enabling the Court to record a satisfaction of a prima-facie case having been made out for grant of the prayer. The Court must come to the conclusion that it was necessary and imperative to grant the prayer for inspection to do full justice between the parties so as to completely and effectually adjudicate upon the dispute. 5. The power to direct inspection and re-count shall not be exercised by the Court to show indulgence to a petitioner who was indulging in a roving enquiry with a view to fish out material for declaring the election to be void. 6. By mere production of the sealed boxes of ballot-papers or the documents forming part of record of the election proceedings before the Court the ballot papers do not become a part of the court record and they are not liable to be inspected unless the court is satisfied in accordance with the principles stated hereinabove to direct the inspection and re-count. 7. In the peculiar facts of a given case the court may exercise its power to permit a sample inspection to lend further assurance to the prima-facie satisfaction of the court regarding the truth of the allegations made in support of a prayer for re-count and not for the purpose of fishing out materials. 28. In RAM AUTAR SINGH MADHAURIA v RAM GOPAL SINGH AND OTHERS ( AIR 1975 SC 2182 ) it has been held that: “General scrutiny and recount of ballot papers is unjustified, the enquiry into allegations in the case falling under Section 100(1)(d)(iii) is limited to see whether election of returned candidate has been materially affected.” 29. 28. In RAM AUTAR SINGH MADHAURIA v RAM GOPAL SINGH AND OTHERS ( AIR 1975 SC 2182 ) it has been held that: “General scrutiny and recount of ballot papers is unjustified, the enquiry into allegations in the case falling under Section 100(1)(d)(iii) is limited to see whether election of returned candidate has been materially affected.” 29. In P.H. PUJAR v DR KANTHI RAJASHEKHAR KIDIYAPPA AND OTHERS ( (2001) 6 SCC 558 ) it was held by the Supreme Court as follows: “Clearly the main object seems to be to find the intention of the voter and where the intention of the voter to vote for a particular candidate is evident from the way the ballot paper is marked by him, it shall not be rejected merely on the ground stated in the second proviso to Rule 56-N(2).” 30. In the light of the principles laid down by the Supreme Court in the above referred judgments, it has to be decided whether the scrutiny and re-count of votes can be ordered in the instant case. 31. From the details which were furnished by the petitioner referred to in the foregoing paragraphs it is obvious that he had set out material facts relating to the errors/irregularities in respect of improper refusal/rejection of ‘3’ votes polled in favour of the petitioner and improper reception of one vote in favour of the respondent No.1. The contentions which the petitioner urged in the election petition had also been raised by him before the Returning Officer in the form of objections. It is also required to be noticed that the Returning Officer failed to give any specific finding as to the validity or invalidity of three votes polled in favour of the petitioner but treated them as doubtful. It clearly reveals that the Returning Officer did not form any opinion about the said three votes. It is further to be noticed that the first respondent also admitted in the written statement in paras 3, 4, 7 and 10 that there were some irregularities and illegalities in the counting. 32. From the manner in which the objections raised by the petitioner were disposed of by the Returning Officer, it is evident that the Returning Officer has not assigned any valid reasons for his decision and does not appear to have referred to the guidelines furnished by the Election Commission in the hand books and manuals. 33. 32. From the manner in which the objections raised by the petitioner were disposed of by the Returning Officer, it is evident that the Returning Officer has not assigned any valid reasons for his decision and does not appear to have referred to the guidelines furnished by the Election Commission in the hand books and manuals. 33. In S. SIVASWAMI v V. MALAIKANNAN AND OTHERS ( (1984) 1 SCC 296 ) referring to Rule 56(2)(d) of Conduct of Election Rules, 1961 the Supreme Court held as follows: “If the mark indicating the vote thereon is placed in such a manner as to make it doubtful to which candidate the vote has been given”. The essence of the principle incorporated in the rule is that so long as the ballot-paper bears a mark made with the instrument supplied for the purpose, the ballot-paper shall not be rejected as invalid, if it is reasonably possible to gather a definite indication from the marking as to the identity of the candidate in favour of whom the vote had been given.” 34. It was also clarified that a ballot-paper shall not be rejected merely on the ground that 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. 35. Further under Rule 73(2)(d) of Conduct of Election Rules, 1961 unless the mark or writing on the ballot paper is such that by which the elector can be identified, the ballot paper cannot be rejected, because the name of the petitioner is written or a tick mark is put since it cannot be said that it furnished the identity of the voter, who had cast his vote in favour of the petitioner. 36. From the facts pleaded in the election petition and the evidence adduced during the course of enquiry, the petitioner could be able to demonstrate the particulars of three votes, which according to him were improperly rejected by the Returning Officer and ought to have been considered as validly cast in his favour. He also had spelt out the manner in which they were rejected by the Returning Officer and pointed out the irregularities committed during the course of counting and recounting of votes. He also had spelt out the manner in which they were rejected by the Returning Officer and pointed out the irregularities committed during the course of counting and recounting of votes. In the same manner he also explained as to how one vote which according to him ought to have been rejected was considered valid in favour of the first respondent. The allegations mentioned in the election petition and the evidence let in, in support there of on the issue of recount of votes is neither evasive nor vague. The irregularities allegedly committed in the process of recount of votes have been specifically pointed out by the election petitioner. The election petitioner also could be able to show prima facie that in the process of recount of votes and in considering the validity or otherwise of the above mentioned votes, the procedure prescribed in the conduct of Election Rules, 1961 and the guidelines issued by the Election Commission in the form of Hand Book and manuals supplied to the Election Officers were not adhered to. The petition insofar as it relates to scrutiny and recount of votes contains reasonable, valid and precise grounds. This Court is of the opinion that in the light of the errors and irregularities in the recount pointed out by the petitioner there is likelihood of his election being materially affected. Though the victory of small margin by itself will not furnish a ground for scrutiny and recount of votes, it is one of the important factors which can be considered by this Court while ordering recount. In the instant case, the first respondent was declared elected by a margin of only one vote. In view of the principles laid down by the Apex Court in the above referred decisions, I am of the considered view that it is a fit case to order scrutiny and recount of votes. 37. Accordingly, I direct the Registrar (Judicial), High Court of Andhra Pradesh to recount at all ballot papers in the presence of the parties and their counsel. Recounting shall be done as per the provisions of the relevant Rules and Regulations, Instructions and Guidelines issued by the Election Commission and submit a report to this Court within a period of one month from the date of this order, as to the result of the recount in a sealed cover. 38. Recounting shall be done as per the provisions of the relevant Rules and Regulations, Instructions and Guidelines issued by the Election Commission and submit a report to this Court within a period of one month from the date of this order, as to the result of the recount in a sealed cover. 38. After receiving the report from the Registrar (Judicial), making further enquiry into the Election Petition and also in the recrimination petition and after hearing the learned counsel appearing for the parties, the Election petition will be disposed of answering all issues. After receiving the report from the Registrar (Judicial) the date of final hearing will be fixed in the Election Petition as well as in the recrimination petition. 39. The interim order is thus passed in terms stated hereinabove allowing the prayer of the petitioner for scrutiny and recount of votes.