JUDGMENT

Y.K. Sabharwal, J.-The appellant was elected as a Member of the Karnataka Legislative Assembly by a margin of 138 votes. The total votes polled were 88,353. At the final counting it was found that the election petitioner (respondent No.1 herein) secured 40,280 votes whereas the appellant secured 40,418 votes. The ballot papers rejected as invalid were 3872.

2. Respondent No. 1 who was defeated by a margin of 138 votes challenged the election of the appellant in a petition filed in the High Court under Section 81 of the Representation of the People Act, 1951 (for short the Act ). A declaration was sought that the election of the appellant was void on the grounds of improper reception, refusal or rejection of votes as also for non-compliance of the provisions of the Act, the Rules and the orders made thereunder as set out in sub-clauses (iii) and (iv) of clause (d) of sub-section (1) of Section 100 of the Act. According to respondent No. 1, 59 ballot papers were also found to be missing. One of the allegations of respondent No.1 in the election petition was that the number of ballot papers rejected could have been counted in his favour and his counting agents were not provi