Judgment :- 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. The petitioner was unsuccessful candidate in the election and he lost the election by a narrow majority of one vote. The contention of the petitioner in the election petition is that he lost the election due to improper rejection of three votes polled in his favour and improper reception of one vote in favour of the first respondent by the Returning Officer. He thus, filed the present election petition seeking the relief of scrutiny and recount of votes and sought for validation of three votes polled in his favour and rejection of one vote which was wrongly counted in favour of the first respondent. 3. I have already heard the learned counsel appearing for the parties on the specific issue whether the scrutiny and recount of votes can be ordered and passed an interim order dated 23.09.2011 in this election petition and held that by the pleadings and the evidence adduced in support thereof by the petitioner, the petitioner could be able to demonstrate the particulars of three disputed votes which according to him were improperly rejected by the Returning Officer and ought to have been considered validly cast in his favour. On being satisfied that the petitioner could be able to point out the irregularities committed by the Returning Officer during the course of counting and recounting of votes and considering that the procedure prescribed in Conduct of Election Rules, 1961 and Guidelines issued by the Election Commission of India in the form of Hand Book and Manuals supplied to the Election Officers were not adhered to, ordered scrutiny and recount of votes. 4. Against the said interim order on the aforesaid issue, the first respondent preferred SLP (Civil) No.29095 of 2011 and the Hon’ble Supreme Court by its order dated 20.11.2011 upheld the decision insofar as directing scrutiny and recount of votes is concerned, but modified the order to the effect that this court has to first of all determine the question relating to the validity of the three votes in question and thereafter to direct the general recount of all the ballots, if required. 5. 5. Then, with a view to examine the validity of three disputed votes, I picked up the three disputed votes in the presence of the parties and their counsel from the bundle of disputed votes, identified them with the assistance of the parties and their counsel for which there was no dispute. Thereafter, I obtained the Xerox copies of the three disputed ballot papers, furnished them to the parties and proceeded to hear on the sole question of validity of three disputed votes. 6. I have heard Sri P. Ramakrishna Reddy, learned counsel appearing for the petitioner, Sri B.Adi Narayana Rao, learned counsel appearing for the first respondent and the learned Government Pleader for General Administration for the respondent No.2. 7. The submissions made on behalf of the petitioner are as follows: The petitioner has set out material facts in respect of errors/irregularities in respect of improper refusal/rejection of 3 votes polled in favour of the petitioner and improper reception of ‘1’ vote in favour of the first respondent. On 30.03.2009 election was held and on 02.04.2009 the counting took place under supervision of second respondent-Returning Officer, and Election Observer. Out of total 706 votes, 701 were polled. Counting was made at 3 tables. In the process of counting at counting tables, petitioner and first respondent got 336 votes each. There are 29 doubtful votes. During the process of counting at the counting tables, the petitioner made an objection regarding ‘3’ votes polled in his favour which were put in the box of doubtful votes, namely: (a) One vote polled in favour of the petitioner by marking figure ‘1’ but, the same was doubted as it is looking like ‘7’. (b) One vote polled in favour of the petitioner by marking figure “1” was doubted as looking like dot “.” (c) One vote polled in favour of the petitioner by marking figure “1” was treated as doubtful vote on the ground there is writing on the ballot paper. The second respondent-Returning Officer scrutinized 29 doubtful votes. In the said scrutiny, one doubtful vote allegedly looked like “7” is validated in favour of the petitioner. After completion of scrutiny of 29 doubtful votes, petitioner got 337 votes and respondent No.1 336 votes. The second respondent-Returning Officer scrutinized 29 doubtful votes. In the said scrutiny, one doubtful vote allegedly looked like “7” is validated in favour of the petitioner. After completion of scrutiny of 29 doubtful votes, petitioner got 337 votes and respondent No.1 336 votes. While the Returning Officer was about to declare the result of the election, the first respondent made two applications vide Exs.P-4 and P-5 requesting for recounting and to reject one vote polled in favour of the petitioner. The petitioner filed an application vide Ex.P-7 opposing recounting on the ground that the first respondent has not made any specific allegation of irregularities and that the application is vague. However, notwithstanding the objection of the petitioner, the Returning Officer ordered recounting. During recounting, 2 votes earlier counted in favour of the petitioner were rejected on the ground that the said votes are doubtful, viz. (i) on one vote, mark figure “1” is put horizontally “_“ and (ii) the other vote mark figure “1” is looking like “7”. Thus, the total votes of the petitioner were reduced to 335 (i.e. 337 minus 2). In the result, 3 votes polled in favour of the petitioner were rejected as 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 properly put in favour of the petitioner. (c) Returning Officer held, one vote was doubtful on the ground that in the panel provided for the name of the petitioner there is writing on the ballot paper though the figure “1” mark was put properly in the box opposite to the petitioner’s name. It is crucial to notice that the first respondent also in his written statement in paras 3, 4, 7 and 10 has admitted categorically that some irregularities occurred in the process of count and recount of votes. But, he sought to justify the rejection of 3 votes which were said to have been polled in his favour according to the petitioner on the ground that the Returning Officer invalidated the said votes strictly in accordance with the Conduct of Election Rules and Guidelines issued by the Election Commission to the Returning Officers. But, he sought to justify the rejection of 3 votes which were said to have been polled in his favour according to the petitioner on the ground that the Returning Officer invalidated the said votes strictly in accordance with the Conduct of Election Rules and Guidelines issued by the Election Commission to the Returning Officers. 8. I have carefully examined the three disputed ballot papers and marked three Xerox copies of ballot papers as Exs.X-1 to X-3. 9. Before proceeding to scrutinize the three disputed ballot papers and decide their validity, I would like to refer to the following judgments of the Hon’ble Supreme Court wherein certain guidelines have been issued in this regard.(1) Km. SHRADHA DEVI v. KRISHNA CHANDRA PANT AND OTHERS (1982) 3 SCC 389(II)wherein the Supreme Court held in paras 14, 15 and 16 as follows: “As a corollary it is provided that if there is any mark or writing on the ballot-paper which enables the elector to be identified the ballot-paper would be rejected as invalid. But the mark or writing must be such as would unerringly lead to the identity of the voter. Any mark or writing of an innocuous nature or meaningless import cannot be raised to the level of such suggestive mark or writing as to reveal the identity of the voter. It would imply that there must be some casual connection between the mark and the identity of the voter that looking at one the other becomes revealed, therefore, the mark or a writing itself must reasonably give indication of the voter’s identity, it may be that there must be extrinsic evidence from which it can be inferred that the mark was placed by the voter by some arrangement. It must be remembered that every mark or writing does not result in invalidation of the vote. The mark or identification should be such as to unerringly reveal the identity of the voter and the evidence of prior arrangement connecting the mark must be made available. It must be remembered that every mark or writing does not result in invalidation of the vote. The mark or identification should be such as to unerringly reveal the identity of the voter and the evidence of prior arrangement connecting the mark must be made available. 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.” (2) InERA SEZHIYAN v. TR BALU AND OTHERS (1990 (Supp) SCC 322), the Supreme Court held as follows: “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. The ballot paper shall not be rejected as invalid if it is reasonably possible to gather a definite indication from the marking so as to identity the candidate in favour of whom the vote had been intended to be given.” 10. Let me first examine the disputed vote polled in favour of the petitioner which was rejected on the ground that the figure mark looked like “7” but not “1”. 11. Sri B.Adiarayana Rao, the learned counsel appearing for the first respondent would contend that when the rules prescribe that the figure “1” has to be marked with the instrument supplied to the voter at the time of voting, the ballot paper can be held to be valid only if the figure “1” is put and nothing else. According to the learned counsel since the mark appeared like figure “7” the Returning Officer is justified in invalidating the vote since the rules contemplate that only the figure “1” has to be marked.12. On the other hand, Sri P.Ramakrishna Reddy, the learned counsel appearing for the petitioner would contend that even assuming that figure “1” in the ballot paper appeared to be indistinct, in view of the principles laid down by the Supreme Court in the decisions above referred, it cannot be simply rejected and the intention of the voter is to be gathered. The learned counsel, however, submits that in fact only the figure “1” was put by the voter and it is not at all the figure “7” and the said view was erroneously taken by the returning officer. He supplied several computerized models of figure “1” in different forms and sought to explain to the Court that in fact, the voter had put only figure “1”. 13. I have carefully examined the figure put in the disputed ballot paper and also the model figures of “1” supplied by the learned counsel, arrived at a definite conclusion that the voter had put only the figure “1” but not “7” and the view taken by the Returning Officer is wholly erroneous.14. Another important point requires consideration in this context is that there are only two contesting candidates in the election and therefore, no voter would mark “7”. In the instant case, indeed the voter marked the figure “1” only but not “7” and the Returning Officer was clearly in error by holding that he marked “7”. The Returning Officer while invalidating the vote did not at all try to ascertain the intention of the voter and also he did not try to clearly examine the figure put by the voter and thereby erroneously invalidated the said vote cast validly in favour of the petitioner. Therefore, insofar as this doubtful vote is concerned I hold that the decision given by the Returning Officer is erroneous and is liable to be set aside. Accordingly, the decision of the Returning Officer that the figure looked like “7” is set aside and it is held that it is unerringly the figure “1” and it shall be validly counted in favour of the petitioner.15. The second disputed ballot paper relates to rejection of vote by the Returning Officer on the ground that the mark put by the voter looks like a dot (.) but not “1”. As to this, the learned counsel appearing for the petitioner would contend that the instrument/sketch pen supplied by the polling officers to the voters is pouring more ink than the normal pen, therefore, the figure “1” marked by the voter became broader and it was considered by the Returning Officer as liable to be rejected. Examination of the ballot paper would clearly reveal that the contention of the learned counsel for the petitioner is perfectly correct and totally justified. Examination of the ballot paper would clearly reveal that the contention of the learned counsel for the petitioner is perfectly correct and totally justified. A clear examination of the ballot paper does reveal that the mark is not a dot (.) but, in fact, it is “1”. The voter marked a small “1” width of which is more than the length. For that simple reason, it cannot be rejected as invalid on the pretext that it looked like a dot (.). Further absolutely there was no necessity for the voter to put a dot (.). In fact, the voter had put the figure “1” only, but it is lesser in height and a bit broader and therefore, there was an occasion for the Returning Officer to erroneously consider it as a dot (.). Here also it requires to be mentioned that no attempt was made by the Returning Officer to gather the intention of the voter. As already referred above, the law is well settled that merely because the figure put was somewhat indistinct, it cannot be rejected so long as it is possible for the Returning Officer to ascertain the intention of the voter. Therefore, I have no hesitation to hold that the Returning Officer was clearly wrong in his judgment in considering the figure as dot (.) and the said finding of the Returning Officer is liable to be set aside in respect of this vote also. Accordingly, the same is set aside. The figure put by the voter is considered by this Court as “1” and it is validated in favour of the petitioner.16. Further, in the Hand Book for Returning Officers for elections to the Council of States and State Legislative Councils issued by the Election Commission of India in the Guideline No.16(b), the other grounds on which the ballot paper not to be rejected are mentioned. Guideline 16(b) is as follows: “the figure ‘1’ has been marked more than once in the column of the same candidate”. Guideline 16(d) is as follows: “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”. 17. Guideline 16(b) is as follows: “the figure ‘1’ has been marked more than once in the column of the same candidate”. Guideline 16(d) is as follows: “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”. 17. In the present case, the above mentioned figures in respect of the disputed two votes were marked not in the column for marking, but in the panel of the candidate where the name of the candidate is printed. In fact, there is no much dispute about the place of marking in the ballot paper. However, as per guideline 16(b), the said marking is perfectly valid and it has to be upheld in favour of the petitioner. 18. Thus, on careful examination, I found that the figures are marked as ‘1’ but not ‘7’ or a dot (.) and the said figures being marked in the panel provided for the candidate, they are considered valid in favour of the petitioner. 19. Coming to the third and last disputed ballot paper, against the column meant for the petitioner in the ballot, the figure ‘1’ is clearly marked. But, in the panel where the name of the petitioner is printed in the ballot paper, the voter wrote that his vote is for “Venkat Ram Reddy” (the petitioner). This apart, he had put a tick mark in the column meant for marking the vote for the first respondent. This was rejected as invalid by the Returning Officer on the grounds namely there is a writing in the ballot paper and also there is a tick mark in the column meant for marking vote in favour of the first respondent. 20. In the light of the principles laid down in the judgments above referred rendered by the Supreme Court, merely because there is a mark or writing, the ballot paper shall not be rejected. It is also laid down by the Supreme Court that merely because the vote is indistinct or made more than once, if it is possible to gather the intention that the vote is for a particular candidate and it is not reasonably possible to gather a definite intention from the marking or writing that the voter can be identified, the ballot shall not be rejected. In this particular ballot paper, the voter had written that the vote was for “Venkat Ram Reddy” (the petitioner). From this what can be understood is that though he put a tick mark in the column meant for the first respondent, by putting ‘1’, in the column meant for the petitioner and writing therein that his vote is for the petitioner, he expressed his intention clearly that he voted for the petitioner only. This apart, from the said writing on the ballot paper, it is not possible to come to a conclusion that by writing as such, the voter had left a clear indication by which he could be identified. In Shradha Devi case (cited supra), the Supreme Court laid down that unless the writing or marking unerringly pointing in the direction of identity of the voter, it cannot be rejected merely because there is some mark or writing. In this case, therefore, it is obvious that the voters’ intention is to vote for the petitioner and he had put the figure ‘1’ clearly in the column provided for the petitioner and by writing that his vote is for “Venkat Ram Reddy” (the petitioner). It is not possible to hold that the said marking and writing were made so that the voter might be identified. What all can be gathered is he wanted to reaffirm his intention to vote for the petitioner only and never intended to vote for the first respondent. 21. In this context it is also relevant to refer to Rule 73(2)(d) of Conduct of Election Rules, 1961 which lays down that 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. Therefore, the Returning Officer did not follow the Rule 73(2)(d) while rendering decision on the disputed ballot paper No.3. The decision of the Returning Officer in regard to this ballot paper is also erroneous and is liable to be set aside. Accordingly, it is set aside and the ballot is counted valid in favour of the petitioner.22. For the foregoing reasons, the decision of the Returning Officer in respect of three disputed ballot papers is set aside. All the three disputed ballot papers are held to have been validly cast in favour of the petitioner. Accordingly, it is set aside and the ballot is counted valid in favour of the petitioner.22. For the foregoing reasons, the decision of the Returning Officer in respect of three disputed ballot papers is set aside. All the three disputed ballot papers are held to have been validly cast in favour of the petitioner. It is ordered that all the three disputed ballot papers shall be counted valid in favour of the petitioner. The interim order is thus passed in terms stated above upholding the contention of the petitioner in respect of three disputed ballot papers. Post the Recrimination Petition for hearing next week.