Judgment

ALAGIRISWAMI, J.:- This appeal arises out of the election held in March 1971 to the Tamil Nadu Legislative Assembly to fill a seat from the Melur (North) constituency in Madurai district in which the appellant was declared elected by a majority of 127 votes receiving 37,337 votes as against 37,210 received by the respondent. 3,381 votes were held invalid. The respondent filed an election petition on 23-4-1971 not only questioning the election of the appellant but also claiming the seat for himself. He made various allegations in his petition which related to infraction of many of the rules regarding the conduct of election. But we may refer to four important matters, which he had referred to in his petition, the importance of which would become clear in due course. In paragraph (g) of his petition he has stated:

"The mixing of the papers, with rapid counting, has resulted in large number of votes polled in favour of the petitioner erroneously added and bundled in the votes polled by the respondent. This has also resulted in wrong counting."

In paragraph (1) he has stated:

"Therefore the petitioner submits that the ballot papers may be directed to be arranged according to the serial number and then counted. The petitioner submits that this will reveal the introduction of unauthorised ballot papers, if any, and use of different inks for marking.

Paragraph (n) runs as follows:

"The petitioner states that a number of votes have been declared invalid without any justification whatsoever. Many of the votes declared invalid were cast in favour of the petitioner. In the counting, some of the invalid votes were taken in favour of the first respondent. In view of the mixing of the ballot papers counting was done hastily and rapidly without any opportunity to candidate or his agent to supervise the counting. In fact, some of the numbers of counting were wrongly mentioned and went to the respondent instead of counting in the name of the petitioner. If recount has been taken the petitioner would have been declared elected."

In paragraph (s) it is stated:

"The petitioner also states that at the time of counting the votes in favour of the petitioner were bundled in the bundles containing the votes in favour of the respondent and they were counted for the first respondent. Number of ballot papers were found outside the counting place."

Finally, he prayed to the Court to:

(a) direct recounting of the votes;

(b) declare the petitioner duly elected;

(c) declare the election of the 1st respondent to Melur North Constituency void, and

(d) ......."

2. The appellant in his counter affidavit denied all the allegations in the petition. The respondent filed an interlocutory application for directing a scrutiny and recounting of all the votes. To this application no counter affidavit was at all filed by the appellant. Five witnesses including the petitioner were examined on his side and on the respondent s side also five witnesses including the Returning Officer, the Assistant Returning Officer as well as the successful candidate were examined at great length. The learned Judge after an elaborate, careful, thorough and meticulous examination, which are almost a model of judicial balance and propriety, passed an order for recount of the votes. We consider it unnecessary to set them out at length. It may be useful to set out the main grounds on which he ordered recount. These are found in paragraph 22 of his order.

"22. From the foregoing discussion, the following facts emerge:

i. Over-worked and tired personnel were employed for the counting. There are reasonable grounds to think that the counting was not done properly.

ii. When the counting was in progress, the petitioner admittedly complained about the hasty counting, and there are reasonable grounds to think that on account of the hurry and haste, in which counting was done, the counting was not likely to be correct or proper.

iii. The unlawful entry of Mr. O. P. Raman into the counting hall when the counti