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2012 DIGILAW 627 (AP)

Venkat Ram Reddy Reddygari v. Arikala Narsa Reddy

2012-07-20

R.KANTHA RAO

body2012
JUDGMENT 1. This election petition relates to the election of Member of Legislative Council from 18-Nizamabad 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 caste in favour of the respondent No.1 as invalid; d) To set aside the Election of the 1st 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 A.P., from 18 Nizamabad Local Authority Constituency in the Election held on 30-3-2009; f) Award costs of this petition. 4. I have heard Sri K. Ramakrishna Reddy, learned senior 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, initially, 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 first 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.P.4 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 is appearing like ‘7’ though figure ‘1’ was put properly by the voter in favour of the petitioner. b) Returning Officer held, one vote was doubtful on the ground that figure ‘1’ mark is appearing like dot ‘.’ Though 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 in fact, secured more votes and he ought to have been declared as elected to 18 – Nizamabad 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 identity 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 put-forth 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 contentions the first respondent sought to dismiss the petition. 20. Raising the above said contentions 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 ballet 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. 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. On the limited question whether the scrutiny and recount of votes can be ordered, this Court upon perusing the pleadings of the parties, evidence adduced during the course of enquiry and adverting to the contentions raised in the course of arguments addressed by the respective counsel held that the petitioner could be able to demonstrate the particulars of three votes which according to him were improperly rejected by the returning officer and having found that the petitioner could be able to prima facie made out the irregularities committed during the course of counting and recounting of votes and taking into account the fact that the material facts relating to the irregularities have been specifically pleaded in the election petition and that the returning officer did not follow the procedure prescribed in the Conduct of Elections Rules, 1961 and the guidelines issued by the Election Commission, ordered scrutiny and recount of votes by an interim order dated 23.09.2011. To arrive at the said decision, this Court felt that on account of the irregularities pointed out by the petitioner, there is likelihood of his election being materially affected. Further, considering the fact that victory of small margin by itself may not furnish a ground for scrutiny and recount of votes, it is one of the important factors which can be considered by this Court for ordering recount, this Court ordered scrutiny and recount of votes. 24. Aggrieved by the said order, the first respondent filed SLP (Civil) No.29095 of 2011 wherein the Hon’ble Supreme Court modified the order passed by this Court by issuing a direction to this Court to first of all determine the validity of three votes in question and thereafter to take up the general recount of all the ballots if required. Then in terms of the order passed by the Hon’ble Supreme Court in the above SLP, this Court ordered scrutiny and recount of three ballot papers in question. Against the said order also, the first respondent filed SLP (Civil) No.30975 of 2011 before the Supreme Court and the same was dismissed as withdrawn. Then in terms of the order passed by the Hon’ble Supreme Court in the above SLP, this Court ordered scrutiny and recount of three ballot papers in question. Against the said order also, the first respondent filed SLP (Civil) No.30975 of 2011 before the Supreme Court and the same was dismissed as withdrawn. Later, this Court upon scrutinizing three ballot papers in question marked Exs. X-1 to X-3 held that they have been validly cast and they shall be counted in favour of the petitioner. 25. Basing on the rival contentions in the election petition as well as in the recrimination petition, this Court upon hearing the counsel on either side passed an order that all the ballot papers be scrutinized and recounted for the purpose of deciding the issues involved in the election petition as well as in recrimination petition and absolutely there is no necessity to take up the trial in the recrimination petition. The said order was passed by this Court on 03.02.2012. The first respondent filed SLP (Civil) No.4728 of 2012 in the Supreme Court against the order dated 24.01.2012 validating the three votes Exs.X-1 to X-3 in favour of the petitioner. The Supreme Court dismissed the said SLP by observing that the dismissal of SLP will not prevent the first respondent from urging all the points at the time of final hearing of the election petition and the recrimination petition. 26. After passing of the said order, this Court scrutinized the ballot papers adverting to the contentions raised by both the parties. The scrutiny of the ballot papers was done in the presence of parties, their counsel and the returning officer. This Court picked up the following disputed ballot papers basing on the objections raised by the parties as to their validity or otherwise. i) 17 ballot papers Exs.Y-1 to Y-17 were picked up from rejected votes. ii) 2 ballot papers Exs.R-1, R-2 picked up from the valid votes cast in favouir of R-1. iii) 4 ballot papers Exs.P-16 to P-19 picked up from the valid votes cast in favour of petitioner. iv) Exs. X-1, X-2, X3 are already scrutinized and validated in favour of the petitioner vide order dated 24.01.2012. 27. In the election petition, the following issues were framed: 1. iii) 4 ballot papers Exs.P-16 to P-19 picked up from the valid votes cast in favour of petitioner. iv) Exs. X-1, X-2, X3 are already scrutinized and validated in favour of the petitioner vide order dated 24.01.2012. 27. In the election petition, the following issues were framed: 1. Whether the petitioner has got a prima facie case to an order of scrutiny and recounting of ballot papers as prayed for in the Election Petition? 2. Whether three (3) votes polled in favour of the petitioner as setout in paras 10 and 11 of the Election Petition are improperly refused or rejected? 3. Whether one (1) vote improperly received and counted in favour of the Returned Candidate as setout in para 10 of the Election Petition? 4. Whether the election of the returned candidate has been materially affected by improper refusal or rejection of three (3) votes polled in favour of the Election Petitioner and improper reception of one (1) vote in favour of Returned Candidate as stated in paras 10 and 11 of the Election Petition? 5. Whether the election of the respondent/returned candidate has to be declared as void? 6. To what relief? 28. However, since this Court rendered a decision directing scrutiny and recount of the votes and passed an order to the effect that in view of the contentions urged, absolutely there is no necessity to proceed with the trial of the recrimination petition and the said decision having been approved by the Hon’ble Supreme Court, this Court has now to decide the validity/invalidity of the ballot papers picked up for scrutiny, recount the ballot papers after scrutinizing them and then to give a decision on the question raised in the election petition and the recrimination petition. 29. Pursuant to the aforesaid order, this Court on 16.02.2012 took up the exercise of scrutiny and recount of all the ballot papers for the purpose of finally disposing of the election petition and the recrimination petition. The exercise was done in the presence of the parties, their counsel, the returning officer, and the officials of the registry of the Judicial Wing (High Court). The exercise was done in the presence of the parties, their counsel, the returning officer, and the officials of the registry of the Judicial Wing (High Court). When the first respondent was asked to pick up the objected votes which have been allegedly cast valid in favour of the petitioner, Sri B. Adinarayana Rao, the learned counsel appearing for the first respondent pointed out that they are in the bundles of valid votes, they can be identified only in the process of recount of ballot papers which were considered valid by the returning officer. Acceding to the submission, in the first instance, the votes in respect of which there is no dispute as to their validity have been separated by showing the votes to the parties, their respective counsel and the returning officer. The disputed votes have been separated from the valid votes of each candidate. At the recounting of votes when the disputed votes were excluded, the valid votes in favour of each candidate are as follows: Sri Sri Venkat Ram Reddy Reddygari, Election Petitioner - 334 votes Arikala Narsa Reddy - 331 votes First respondent. 30. In this context, I wish to make it clear that in respect of the above said valid votes, there is no dispute between the parties. 31. Then I took up the scrutiny and recount of the votes which were considered to be doubtful by the returning officer which are 30 in number. Basing on the objections raised by the respective candidates regarding the validity of the votes, 17 ballots were picked up from the bunch of doubtful votes and 4 + 2 respectively were picked up from the two sealed covers of valid votes cast in favour of the petitioner as well as the first respondent. The disputed votes whose validity has been already decided by this Court vide order dated 24.01.2012 in E.P. No. 2 of 2009 have been kept in ‘X’ series. They are Ex.X.1 to X.3. Thus, from the votes disputed by the respective parties, 4 votes put in a separate cover are from the valid votes of the petitioner declared by the returning officer and they are marked as exhibits in ‘P’ series. Whereas, two votes picked up from the valid votes from the sealed cover of valid votes declared by the returning officer in favour of the first respondent are marked as exhibits in ‘R’ series. Whereas, two votes picked up from the valid votes from the sealed cover of valid votes declared by the returning officer in favour of the first respondent are marked as exhibits in ‘R’ series. 17 votes which were picked up from the doubtful votes considered by the returning officer are marked as ‘Y’ series. 32. The Xerox copies of all the above 4 + 2 + 17 + 3 disputed votes have been furnished to both parties and their counsel and the others were kept with the Court. The matter was posted to 22.02.2012 for hearing on the question of scrutiny and recount of aforementioned disputed ballot papers. After marking the Xerox copies as exhibits, all the aforesaid original ballots were placed in a separate cover, sealed them and kept them in the trunk box which was sealed thereafter. 33. Before scrutinizing the disputed ballots and recounting them, it is essential to go through some relevant provisions of Conduct of Election Rules, 1961, the Guidelines provided in the Hand Book for Returning Officers issued by the Election Commission of India and some important judicial pronouncements. The contentions urged by the parties to the election petition obligates this Court to address two important questions namely, (1) when the returning officer holds that the figure ‘1’ was not put properly or when such figure does not appear to be ‘1’ according to the returning officer, whether the said ballot is liable to be rejected automatically or can this Court can make it’s endeavour to gather the intention of the voter to arrive at a final decision whether the figure marked is ‘1’ or not; (2) When the voter, apart from marking figure ‘1’ puts some mark or writes some words, whether such a ballot is liable for automatic rejection or whether the Court can have any discretion in that matter. 34. 34. Rule 73(2) of Conduct of Election Rules, 1961 reads as follows: “Scrutiny and opening of ballot boxes and the packets of Postal ballot papers.- (1) The returning officer shall - (2) A ballot paper shall be invalid on which - (a) the figure 1 is not marked; or (b) the figure 1 is set opposite the name of more than one candidate or is so placed as to render it doubtful to which candidate it is intended to apply; or (c) the figure 1 and some other figures are set opposite the name of the same candidate; or (d) there is any mark or writing by which the elector can be identified; 2[or] 3[(e) there is any figure marked otherwise than with the article supplied for the purpose: Provided that this clause shall not apply to a postal ballot paper: Provided further that where the returning officer is satisfied that any such defect as is mentioned in this clause has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected, merely on the ground of such defect.] 4[Explanation.-The figures referred to in clauses (a), (b) and (c) of this sub-rule may be marked in the international form of Indian numerals or in the Roman form or in the form used in any Indian language, but shall not be indicated in words.]” 35. The Election Commission of India in exercise of its statutory power under Article 324 of the Constitution of India issued certain instructions to the Returning Officers in the Hand Book. These instructions or Guidelines according to the learned counsel appearing for the petitioner having been issued basing on the Representation of People Act, 1951, the Conduct of Election Rules, 1961 and the Judgments of the Supreme Court, are binding on the Returning Officers. Chapter XII of Instruction 16 at page 191 of the Hand Book for Returning Officers states the other grounds on which ballot paper not to be rejected. It reads as follows: “16. Chapter XII of Instruction 16 at page 191 of the Hand Book for Returning Officers states the other grounds on which ballot paper not to be rejected. It reads as follows: “16. A ballot paper should also not be rejected simply because- (a) the figure 1' has been marked more than once in the column of the same candidate; (b) the figure 1' has been marked not in the column meant for marking the order of preferences but at some other place in the panel of candidate; (c) the original mark is patently in the column of one candidate but an impression or smudge thereof appears against the name of some other candidate due to wrong folding; (d) 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; or (e) there is a faint un-decipherable thumb impression or smudge impression left inadvertently by the elector on the ballot paper while handling it because of the presence of some ink on his thumb which was put thereon for the purpose of obtaining his thumb impression on the counterfoil of the ballot paper.” 36. The learned counsel appearing for the petitioner relied on SHRADHA DEVI v KRISHNA CHANDRA PANTH (AIR 1982 SC 1592) wherein the Supreme Court held as follows: “That the mark or writing which would invalidate the ballot paper must be such as to itself unerringly point in the direction of or reasonably give indication of the identity of the voter. There must be some casual connection between the mark and the identity of the voter that looking at one, the other becomes revealed. In the absence of such suggested mark or writing the ballot paper cannot be rejected merely because there is some mark or writing of an innocuous nature cannot be raised to the level of such suggestive mark or writing as to reveal the identity of the voter.” 37. Basing on the judgment afore-cited and as per the instruction No.16 of Hand Book for Returning Officers, the learned Senior Counsel appearing for the petitioner argued that the ballot paper cannot be invalidated merely because there is a mark or writing in the ballot paper. Basing on the judgment afore-cited and as per the instruction No.16 of Hand Book for Returning Officers, the learned Senior Counsel appearing for the petitioner argued that the ballot paper cannot be invalidated merely because there is a mark or writing in the ballot paper. In the perception of the learned Senior Counsel, the mark or writing must be of such a nature that it should establish the identity of the voter beyond doubt. The learned Senior Counsel also relied on RAM SUKH v DINESH AGARWAL (2009 (10) SCC - 541) and UTTAM RAO SHIVDAS JANKAR v. RANJIT SINGH VIJAY SINGH MOHITE PATH ( 2009(13) SCC 131 ) for the proposition that the instructions contained in the Hand Book for the Returning Officers are issued by the Election Commission in exercise of its statutory functions and are therefore binding on the Returning Officers. It is submitted that since the instructions have been issued in exercise of quasi-judicial power of Election Commission in terms of provisions of the Representation of People Act it was incumbent upon the returning officer to follow the instructions contained in the Hand Book. In the judgments 2 and 3 referred above relied upon by the learned senior counsel, the Hon’ble Supreme Court pointed out that the instructions are statutory in nature and therefore, they are binding on the returning officers. 38. On the other hand, Sri B. Adinarayana Rao, learned counsel appearing for the first respondent contended that the test as to the identity of the voter to be applied is that of unerring identity is contrary to the Constitution Bench judgment of the Hon’ble Supreme Court in Dr. ANUP SING v ABDUL GANI AND OTHERS 4 AIR 1965 AIR SC 815 and according to him, the judgment in Shradha Devi’s case (cited supra) was rendered without noticing the ratio laid down by the Constitution Bench in Dr. Anup Singh case. In Dr. Anup Singh’s case (cited supra), the Supreme Court held as follows: “It seems to us therefore that the second construction out of the three alternatives we have mentioned above is the real construction of these words. When the legislature used these words it was providing that any mark or writing by which the elector can reasonably and probably be identified would invalidate the ballot paper. When the legislature used these words it was providing that any mark or writing by which the elector can reasonably and probably be identified would invalidate the ballot paper. The words "can be identified" in our opinion imply something more than a mere possibility of identification; at the same time they do not in our opinion require that before the ballot paper is rejected the elector's identity must be actually established. Truly construed therefore the words mean that the mark or writing should be such that the elector can be identified thereby with reasonable probability. Thus it is not the mere possibility of identification which will invalidate the vote under R. 73(2)(d), nor is it necessary that there should be certain identification before the vote is invalidated. All that these words require is that there should be reasonable probability of identification by the mark or writing (other than that permitted by R. 37-A) and if there is such a reasonable probability of identification, the ballot paper would be invalidated.” 39. However, I do not think that the ratio laid down in SHRADHA DEVI case (cited 1 supra) is contrary to the ratio laid down in the Constitution Bench judgment of the Supreme Court in Dr. Anup Singh case (cited supra). I am not in agreement with the submission made by the learned counsel appearing for the first respondent that the judgment in SHRADHA DEVI (cited supra) being rendered without noticing the ratio in Constitution Bench decision in Dr. Anup Singh case (cited 1 supra) and has no binding efficacy. Both the judgments do not subscribe to the view that the mark or writing must be of such a nature that the elector should be certainly identified before the vote is invalidated. The words elector can reasonably and probably can be identified were used in Dr. Anup Singh’s case (cited 4 supra), whereas the words unerringly point out in the direction of reasonably giving indication of identity of the voter were used in SHRADHA DEVI case (cited 1 supra). The words reasonably give indication according to me are in accordance with the ratio laid down by the Hon’ble Supreme Court in Dr. Anup Singh’s case (cited supra). The words reasonably give indication according to me are in accordance with the ratio laid down by the Hon’ble Supreme Court in Dr. Anup Singh’s case (cited supra). Upon thoroughly considering both the judgments of the Apex Court, I would like to proceed on the basis that it is not necessary that by the mark or writing the elector should be actually identified but it is enough that such mark or writing furnishes a reasonable probability to identify the elector. At the same time, the mere possibility of identification of the elector is also not sufficient to reject the ballot paper. 40. One more important aspect requires to be noticed in this context is the extent of relevancy of secrecy of ballot paper in its object under the Representation of People Act, 1951. Sections 59, 94 land 128 of the 1951 Act were Amended by the Act 40 of 2003 with effect from 28.08.2003 by introducing open ballot system in Council of States. Correspondingly Rule 39-AA was inserted in the Conduct of Election Rules, 1961. The said rule empowers verification of vote belonging to a member of political party, by the authorized agent of that political party, before inserting the ballot paper in the ballot box. The validity of the aforesaid amendment was questioned before the Hon’ble Supreme Court in KuldipNayar Vs Union of India ( 2006(7) SCC 1 ). The Supreme Court recorded the contentions in para 434 of the judgment as under: “434. It is the submission of the learned counsel for the petitioners that the observations of the Ethics Committee on which the impugned amendment was brought about not only fail to justify the amendment but run counter to the constitutional scheme of conducting free and fair election which is necessary for preserving the democracy. On the other hand, the Attorney General submitted that since the bulk of the candidates are elected under the party system, the principle that a person elected or given the nomination of a party should not be lured into voting against the party by money power is wholesome and a salutary one.” 41. Rule 39-AA of Conduct of Election Rules which was introduced pursuant to the amendment to Sections 59, 94, 129 of Representation of People Act, 1951 by Act 40 of 2003 reads as under: "Information regarding casting of votes. Rule 39-AA of Conduct of Election Rules which was introduced pursuant to the amendment to Sections 59, 94, 129 of Representation of People Act, 1951 by Act 40 of 2003 reads as under: "Information regarding casting of votes. - (1) Notwithstanding anything contained in Rule 39-A, the presiding officer shall, between the period when an elector being a member of a political party records his vote on a ballot paper and before such elector inserts that ballot paper into the ballot box, allow the authorized agent of that political party to verify as to whom such elector has cast his vote: Provided that if such elector refuses to show his marked ballot paper to the authorized agent of his political party, the ballot paper issued to him shall be taken back by the presiding officer or a polling officer under the direction of the presiding officer and the ballot paper so taken back shall then be further dealt with in the manner specified in sub-rules (6) to (8) of Rule 39-A as if such ballot paper had been taken back under sub-rule (5) of that rule. (2) Every political party, whose member as an elector casts a vote at a polling station, shall, for purposes of sub-rule (1), appoint, in Form 22-A, two authorized agents. (3) An authorized agent appointed under sub-rule (2) shall be present throughout the polling hours at the polling station and the other shall relieve him when he goes out of the polling station or vice versa." 42. Adverting to the contentions urged the Supreme Court held: “Since Rule 39-AA is required to be read with Rule 39-A, the former is necessarily an exception to the general rule in all other elections conducted under the RP Act, 1951 by the Election Commission. The norm has been, prior to the impugned amendment, that the voting shall be by a secret ballot, in which all concerned, including the electors are expected to preserve the sanctity of the vote by keeping it secret. The norm has been, prior to the impugned amendment, that the voting shall be by a secret ballot, in which all concerned, including the electors are expected to preserve the sanctity of the vote by keeping it secret. But as already observed, the privilege to keep the vote secret is that of the elector who may choose otherwise; that is to say, he may opt to disclose the manner in which he has cast his vote but he cannot be compelled to disclose the manner in which he has done so, except in accordance with the law on the subject which ordinarily comes into play only in case the election is challenged by way of election petition before the High Court. The effect of the amended Rules, thus, is that in elections to the Council of States, before the elector inserts the ballot paper into the ballot box, the authorized agent of the political party shall be allowed to verify as to whom such an elector casts his vote. In case such an elector refuses to show his marked ballot paper, the same shall be taken back and will be cancelled by the Presiding Officer on the ground that the voting procedure had been violated. There is, therefore, a compulsion on the voter to show his vote. But then, the above rules are only in furtherance of the object sought to be achieved by the impugned amendment. Rather, the rules show, the open ballot system put in position does not mean open to one and all. It is only the authorized agent of the political party who is allowed to see and verify as to whom such an elector casts his vote. The prerogative remains with the voter to choose as to whether or not to show his vote to the authorized agent of his party. “ 43. In view of the law laid down in the case above referred, validating the Amendment Act 40 of 2003 to Sections 59, 94 and 128 and correspondingly to Rule 39-AA I accede to the submission made by the learned senior counsel appearing for the petitioner that the concept of secrecy of ballot paper and the identification of the voter has been diluted on account of development of law on the secret ballot. 44. 44. In the context of present case, it has necessarily to be understood that even where the mark or writing furnishes a clue to the identity of the voter, the ballot shall not simply be rejected on the said ground. In view of this, unless such mark or writing is of such a nature of furnishing information as to the prearrangement between the contesting candidate and the elector amounting to malpractice such as elector agreeing to vote for a particular candidate by receiving money or for having some benefit. It will be quite inappropriate to reject the ballot on the mere ground that there is possibility of the elector being identified. 45. The other crucial question to be considered is if the figure ‘1’ is not properly put, whether the ballot is liable for automatic rejection. 46. In Shradha Devi Vs Krishna Chandra Pant ( AIR 1982 SC 1569 ) the Supreme Court held as follows: “Free and fair election being the fountain source of Parliamentary democracy attempt of the Returning Officer and the Court should be not to chart the easy course of rejecting ballot papers as invalid under the slightest pretext but serious attempt should be made before rejecting ballot papers as invalid, to ascertain, if possible, whether the elector has cast his vote with sufficient clarity revealing his intendment. In this case we are satisfied that the Returning Officer has charted an easy course unsupportable by evidence and the High Court failed to exercise its jurisdiction of scrutiny of all ballot papers once a serious error has been pointed cut in respect of two ballot papers out of a total of 11 invalid ballot papers. Therefore, we find it difficult to accept the view taken by the High Court. Accordingly, this appeal is allowed and the judgment and order of the High Court are set aside and the matter is remanded to the High Court for further proceeding according to law. The High Court shall examine all invalid ballot papers, ascertain the reasons for the rejection, satisfy itself whether the reason is valid or unconvincing and decide the validity of the ballot paper as a whole or in part and direct computation of the votes over again. The High Court shall examine all invalid ballot papers, ascertain the reasons for the rejection, satisfy itself whether the reason is valid or unconvincing and decide the validity of the ballot paper as a whole or in part and direct computation of the votes over again. The High Court may bear in mind that the decision of the Returning Officer rejecting ballot papers as invalid is subject to review of the High Court in a proper election petition.” 47. A Division Bench of A.P. High Court in PYNDAH VENKATA NARAYANA v. G.V. SUDHAKAR RAO AND OTHERS (7) AIR 1967 AP 111 ) held as follows: “It must be remembered that all that Rule 73(2)(a) contemplates is that figure (1) must be marked. It does not specify further that this figure should be in the form of particular type of numerals nor does it state that the size and shape of the figure must exactly be the same as it is marked in the rule itself. The stress is not so much on the shape of the figure as on the figure itself which should be a recognized numeral and should be so marked as not to be mistaken for any figure other than (1).” 48. In S. SIVASWAMI v. V. MALAIKANNAN AND OTHERS (8) 1984(1) SCC 296 ) it is clarified that the ballot paper shall not be rejected merely on the ground that the mark indicating the voter 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. 49. In ERA SEZHIYAN v. T.R. BALU AND OHTERS (9) 1990 (Supp) SCC 322) it is held that the primary task of the court in a case where the question is whether the ballot paper is invalid is to ascertain the intention of the voter, must be applied. 50. Similarly in P.H. PUJAR v. DR. 49. In ERA SEZHIYAN v. T.R. BALU AND OHTERS (9) 1990 (Supp) SCC 322) it is held that the primary task of the court in a case where the question is whether the ballot paper is invalid is to ascertain the intention of the voter, must be applied. 50. Similarly in P.H. PUJAR v. DR. KANTHI RAJASHEKHAR KIDIYAPPA AND OTHERS (10) 2001(6) SCC 558 = 2012 (4) ALT 13.1 it is held as follows: “Paragraph 24(m) of Chapter XIV - B of the Hand Book for Returning Officers issued by the Election Commission, provides not to reject any ballot paper simply because "there is a faint undecipherable thumb-impression or faint smudge impression on the ballot paper left inadvertently by the elector on the ballot paper while handling it because of the presence of some ink on his thumb which was put thereon for the purpose of obtaining his thumb-impression on the counterfoil of the ballot paper". 51. The second proviso to sub- rule (2) of Rule 56-B of the Conduct of Election Rules stipulates that: "Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or make more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked". Thus, 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 afore-quoted proviso.” 52. The Supreme Court held that the returning Officer enjoined to find out intention of the voter from the way the ballot paper was marked and that having not been done, Returning Officer committed infirmity.” 53. From the relevant provisions and the judicial pronouncements above referred, the legal position is very clear that so long as the figure put by the elector resembles ‘1’ the returning officer or the Court as the case may be has to make its endeavour to gather the intention of the elector. There should not be any insistence on the form, size or mode of putting the figure ‘1’. There should not be any insistence on the form, size or mode of putting the figure ‘1’. However, if some other figure or mark is put which does not resemble the figure ‘1’ at all, the ballot paper may be rejected. It is illegal to reject the ballot by examining the figure put by the elector in a hyper-technical way and saying that it is not strictly in accordance with the figure ‘1’ in the perception of the returning officer or the Court. 54. It is in the light of the above principles which have been culled out, the scrutiny and recount of ballot papers has to be done in the present case. 55. For the purpose of scrutiny and recount of the picked up disputed votes as per Rule 73(2)(d)of Conduct of Election Rules 1961 and the instructions issued by the election commission contained in the Handbook for Returning Officer for Elections to the Council of State and State Legislative Councils and for the sake of convenience the ballots are categorized into three categories i.e. ‘A’, ‘B’ and ‘C’. CATEGORY ‘A’: 56. In this category the ballot papers, Exs.X.3, Y-13 and R.2 are required to be examined. 57. In Ex.X.3 a ‘tick’ mark was put in the column meant for the first respondent in addition to figure ‘1’ which was clearly put in the space meant for the petitioner. This apart, the voter wrote that his vote is for ‘Venkata Ram Reddy’ (petitioner). By the said writing, it is not possible to identify the voter. From the writing, it is also not possible to draw any inference that there was prior arrangement between the petitioner and the voter to write those words. It is also not possible to presume that the writing furnishes any reasonable or probable information or evidence to find out the identity of the voter. As regards the ‘tick’ mark since such mark is not contemplated by the rules it has to be ignored. For all these reasons, since the figure ‘1’ was clearly put by the voter, it has to be validated in favour of the petitioner. Accordingly, the same is validated in favour of the petitioner. 58. As regards Ex.Y3, it requires to be noticed that the figure ‘1’ was clearly and specifically put in the column meant for the petitioner. For all these reasons, since the figure ‘1’ was clearly put by the voter, it has to be validated in favour of the petitioner. Accordingly, the same is validated in favour of the petitioner. 58. As regards Ex.Y3, it requires to be noticed that the figure ‘1’ was clearly and specifically put in the column meant for the petitioner. However, the elector in the space provided for the petitioner for marking the figure put his signature apart from marking figure ‘1’. From the signature also it is not possible to trace out the identity of the voter and therefore, this vote also can be validated in favour of the petitioner and accordingly, it is validated in favour of the petitioner. 59. Insofar as Ex.R.2 is concerned, the voter put the figure ‘1’ clearly and also a ‘tick’ mark in the column meant for the first respondent. Putting tick mark in addition to marking figure ‘1’ does not in any way invalidate the vote cast in favour of the first respondent and therefore, this vote is held to be validly cast in favour of the first respondent. CATEGORY B: 60. In this category, the ballots, Exs.P.16, P.17, P.18, P.19, R.1, X1 and X.2 have to be examined. The common question requires consideration in respect of these ballots is whether the voter had put the figure ‘1’ or something else. Further, if the figure marked resembles ‘1’, as already pointed out while discussing the rules and the case law, this Court is under a duty to ascertain the intention of the voter to arrive at the conclusion whether it is figure ‘1’ or not. This Court further has to examine the question as to whether the Returning officer resorted to rejecting or validating the ballots mechanically. 61. In Ex.P.16, the figure ‘1’ was marked, on the top of it, there is triangular shape writing connecting to the figure ‘1’. As regards this ballot, the contention of the petitioner is that it is nothing but figure ‘1’ and the additional marking on the top of the figure happened automatically in the process of marking figure ‘1’, but the elector never thought of marking any other figure than ‘1’. As to this, the contention of the first respondent is that it looks like ‘9’ and therefore such vote ought to have been rejected by the Returning Officer, instead of accepting it as valid. As to this, the contention of the first respondent is that it looks like ‘9’ and therefore such vote ought to have been rejected by the Returning Officer, instead of accepting it as valid. On examination of the ballot Ex.P.16, I have no manner of doubt whatsoever that the figure ‘1’ was only put by the voter. The figure ‘1’ marked is long enough and on the top of the figure ‘1’ there is a thin triangular line adjoining the main figure ‘1’ which was thickly marked. There were only two contesting candidates in the election and absolutely there was no necessity for any voter to put the figures other than ‘1’ and ‘2’. In view of all these circumstances, I am of the considered view that the figure marked is nothing but ‘1’ and the Returning Officer is correct in validating the said vote in favour of the petitioner. 62. As regards Ex.P.17, the examination of the ballot paper clearly indicates that figure ‘1’ was correctly marked. On the top of the figure ‘1’ there is small extension towards left side. As to this, the contention of the first respondent is that it is looking like ‘7’, but not like ‘1’ and the same was wrongly validated by the Returning Officer in favour of the petitioner. I do not agree with the contention urged on behalf of the first respondent for the reason that the figure marked is clearly ‘1’ and merely because there is a small extension of the figure towards left, it does not become ‘7’. Further, as already pointed out, since there were only two contesting candidates, no voter would mark ‘7’. Therefore, I hold that the Returning Officer rightly counted the ballot in favour of the petitioner. 63. Coming to Ex.P.18 the voter marked figure ‘1’ in the column meant for the petitioner. However, there is small extension toward left side of the figure on the top and also a small extension on the right side of the figure at the bottom. It was objected on the ground that it is looking like English letter ‘z’, but not ‘1’, which is said to be visible to necked eye. The Returning Officer treated the same as ‘1’ and counted in favour of the petitioner. The argument on behalf of the first respondent is that the ballot is liable for rejection for writing English letter ‘z’. The Returning Officer treated the same as ‘1’ and counted in favour of the petitioner. The argument on behalf of the first respondent is that the ballot is liable for rejection for writing English letter ‘z’. As to this, I may state that from the figure marked by the voter, it would appear that an instrument like sketch pen was provided for marking and it was discharging more ink. For the purpose of marking ‘1’ the voters were adopting different styles and the question to be considered is whether in fact it looks like ‘1’ or not. It is not understandable as to why the voter writes ‘z’. Certainly it is not ‘z’ and for the necked eye it appears to be ‘1’ and therefore, in my view the figure marked is nothing but ‘1’ which was put by the voter in a different style. 64. In so far as Ex.P.19 is concerned, the objection raised by the first respondent is that it clearly looks like ‘7’ to the necked eye and nobody can claim that the said figure is ‘1’. On examination, I found that it is one of the forms of figure ‘1’ containing an extension on the left side on the top. The Returning Officer in my view did not commit any mistake in accepting the same as figure ‘1’ and considering it to be validly cast in favor of the petitioner. 65. As regards Ex.R.1, the elector clearly marked figure ‘1’ in the column meant for the first respondent. It was also objected to by the petitioner that it is looking like ‘7’ and was wrongly counted in favour of the first respondent. This objection was taken in the same fashion as that of the first respondent in respect of the aforementioned votes and there is no substance in the objection. The figure is clearly ‘1’ and the same is rightly accepted by the Returning Officer as valid vote cast in favour of the first respondent. 66. Coming to Ex.X.1 the figure ‘1’ is clearly marked by the voter in the panel meant for the petitioner in the ballot paper. Though, it was not in the space which is actually meant for marking figure ‘1’, since it is in the panel (space) provided for the petitioner, it has to be treated as valid. 66. Coming to Ex.X.1 the figure ‘1’ is clearly marked by the voter in the panel meant for the petitioner in the ballot paper. Though, it was not in the space which is actually meant for marking figure ‘1’, since it is in the panel (space) provided for the petitioner, it has to be treated as valid. This was also, however, objected to by the first respondent that it looks like ‘7’ and not ‘1’. But, it would clearly appear that the voter marked the figure ‘1’ and there is a small extension towards left of the said figure on the top. The learned counsel appearing for the first respondent would contend that the intention of the voter is absolutely no relevance since the rules specifically state that the figure ‘1’ has to be put. While discussing the rules and referring to the judicial pronouncements, I have already held that a duty is cast upon the Returning Officer as well as the Court to ascertain the intention of the voter. As long as the figure marked resembles ‘1’, it is illegal to reject the ballot mechanically whenever a doubt arises that the figure marked does not accord in all respects with the figure viewed by the Returning Officer or the Court. This ballot, however, clearly shows that the figure ‘1’ was specifically and correctly marked and therefore, the Returning officer rightly validated the said vote in favour of the petitioner. 67. The last one in this category is Ex.X.2. In this ballot, the voter marked figure ‘1’ in the panel meant for the petitioner. It was objected to by the first respondent that it looks like ‘dot’. On careful examination, I found that the voter in fact marked figure ‘1’, but it is short in length and the width appears to be more because of the discharge of more ink from the instrument supplied to the elector by the Returning Officer for the purpose of marking. According to me, this was improperly rejected by the Returning Officer saying that it looks like ‘dot’, but not one. By carefully examining the ballot paper unhesitatingly, I hold that the voter marked figure ‘1’ and it has to be validated in favour of the petitioner and accordingly, the same is validated for the petitioner. CATEGORY ‘C’ 68. In this category Exs.Y.1 to Y.12, Y.14 to Y.17, have to be examined. By carefully examining the ballot paper unhesitatingly, I hold that the voter marked figure ‘1’ and it has to be validated in favour of the petitioner and accordingly, the same is validated for the petitioner. CATEGORY ‘C’ 68. In this category Exs.Y.1 to Y.12, Y.14 to Y.17, have to be examined. Before proceeding to decide the validity of these ballots, I would like to say that if the figure marked resembles ‘1’ and if there is any doubt as to whether the figure ‘1’ was marked or not, the Court or the Returning Officer has to make their endeavour to ascertain the intention of the voter. But if it is a case where the figure ‘1’ was not marked at all, the question of gathering or ascertaining the intention of the voter does not arise. 69. In EX.Y.1 only a ‘tick’ mark was put and the figure ‘1’ was not marked in the column meant for the petitioner, therefore it is not valid. 70. In Ex.Y.2 a ‘dash’ was put in the column meant for the first respondent, therefore, the ballot is not valid. 71. In Ex.Y.3 a ‘dash’ was put underneath the name of the petitioner in the panel provided to the petitioner in the ballot paper. The figure ‘1’ not being put, this ballot is also not valid. 72. In Ex.Y4 in the panel meant for the first respondent, a ‘dash’ was put. The figure ‘1’, not being marked, it is not valid. 73. In Ex.Y.5 in the column meant for the first respondent, the letters ‘1’ were written in Telugu language. Since the rule mandates that the figure ‘1’ has to be marked and not letters, this ballot is also considered as invalid. 74. In Ex.Y.6 in the column meant for the first respondent a ‘dash’ was put and therefore, the same is held invalid. 75. In Ex.Y.7 a ‘dash’ was put across the name of the first respondent written in Telugu. Therefore, for the figure ‘1’ not being marked this ballot is also declared as invalid. 76. In Ex.Y.8, in the space meant for the petitioner a ‘tick’ mark was put, the figure ‘1’ was not marked and therefore, this vote is also considered invalid. 77. In Ex.Y.9 a ‘dash’ was put in the panel meant for the first respondent and therefore, this also held invalid. 78. 76. In Ex.Y.8, in the space meant for the petitioner a ‘tick’ mark was put, the figure ‘1’ was not marked and therefore, this vote is also considered invalid. 77. In Ex.Y.9 a ‘dash’ was put in the panel meant for the first respondent and therefore, this also held invalid. 78. In Ex.Y.10 a ‘tick’ mark was put in the column meant for the first respondent without marking figure ‘1’. Therefore, this ballot is considered to be invalid. 79. In Ex.Y.11, both the figures ‘1’ and ‘2’ were marked in the panel meant for the first respondent, thus this ballot is also declared invalid. 80. In Ex.Y.12 a ‘dash’ was put in the panel provided for the first respondent and thus this ballot is declared invalid. 81. In Ex.Y.14 a ‘dash’ was put in the panel provided for the petitioner and this ballot is declared invalid for not marking the figure ‘1’. 82. In Ex.Y.15 also a ‘dash’ was put in the column meant for the first respondent and this ballot is thus declared invalid. 83. In Ex.Y.16 a ‘dash’ was put in the column meant for the first respondent and thus this ballot is also considered to be invalid. 84. In Ex.Y.17 a ‘dash’ was put in the column meant for the petitioner and this ballot is also declared invalid. 85. In the election petition, the petitioner sought to set aside the election of the first respondent as the member of the legislative council 18-Nizamabad Local Authority Constituency, Nizamabad and to declare him as elected in the said election held on 30.03.2009. Whereas, in the recrimination petition the first respondent sought to dismiss the election petition and in case this Court comes to the conclusion that the election petition has to be allowed, sought to declare him as elected, taking into consideration the contentions urged in the recrimination petition. This court having gone through the rival contentions, decided to scrutinize and recount the ballots which decision was approved by the Hon’ble Supreme Court. Ultimately, this Court took up the exercise of recount of votes which is detailed in the foregoing paragraphs. This court having gone through the rival contentions, decided to scrutinize and recount the ballots which decision was approved by the Hon’ble Supreme Court. Ultimately, this Court took up the exercise of recount of votes which is detailed in the foregoing paragraphs. Now after scrutiny and recount of votes, the only question requires to be determined by this Court is to declare either the petitioner or the first respondent as elected as the member of the legislative council 18-Nizamabad Local Authority Constituency, Nizamabad basing on the majority of the valid votes. 86. In the process of recount of votes, initially this Court separated 334 votes validly cast in favour of the petitioner and 331 valid votes cast in favour of the first respondent. Basing on the objections raised and contentions urged 26 (4 + 2 +17+ 3) disputed votes have been picked up in the presence of the parties, their counsel and Returning Officer. They have been scrutinized and recounted in the manner as aforesaid. Out of the 26 votes, this Court declared 16 votes as invalid. In the recount by the Court, the petitioner got (8) eight (Ex. X.1, X.2, X.3, Y.13, P.16, P.17, P.18 and P.19) valid votes, whereas the first respondent got two (2) (Exs.R.1 and R.2) valid votes. The total number of valid votes secured by the petitioner is 334 + 8 = 342, whereas the first respondent secured 331+2 = 333 votes. Thus, the petitioner has secured majority of nine (9) votes over the first respondent. 87. In the result, the election of the first respondent as the Member of the Legislative Council 18-Nizamabad Local Authority Constituency, Nizamabad is set aside and the election petitioner is declared as elected in the said election held on 30.03.2009. The Election Petition is therefore, allowed and the Recrimination Petition is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.