Judgement

CHANDRACHUD, J.:- Six candidates contested the mid-term election to the Orissa Legislative Assembly from the Nilgiri constituency. The polling was held on February 26, 1974 and on March 1 the result of the election was declared. The appellant who contested the election on the ticket of the Communist Party of India (Marxists) was declared as the successful candidate. According to the results declared on March 1, the appellant secured 14346 votes while respondent 1 who contested the election on the ticket of the Bhartiya Lok Dal secured 14297 votes. The other contestants, respondents 2 to 5, secured votes ranging between 12,312. and 5961. Respondent 6 is the Returning Officer.

2. On April 13, 1974 respondent 1 filed an election petition under Section 81 of Representation of the People Act, 1951 (hereinafter called "the Act") challenging the election of the appellant and praying that, instead, he himself should be declared as the successful candidate. The appellant s election was challenged by respondent 1 on the ground, mainly, that through an error the Returning Officer did not enter the results of the second round of counting on Table No. 13 in Form No. 20, as prescribed by Rule 56 (7) of the Conduct of Election Rules, 1961. It was alleged that instead of incorporating the results of the second round of counting on Table No, 13 in Form No. 20, the Returning Officer wrongly incorporated the results of the second round of counting on Table No. 14 in the column meant for the corresponding count of Table No. 13. In other words, the allegation was that the results of the second round of counting on Table No. 14 were erroneously entered twice in Form No. 20, once as against the second round of Table No. 14 and once as against the second round of Table No. 13.

3. The appellant denied this allegation contending that he had secured the largest number of votes and that there was a clear difference of 49 votes between him and respondent No, 1. The appellant also raised several other contentions touching the maintainability of the election petition on the ground of noncompliance with statutory requirements.

4. On these pleadings, the learned Judge of the High Court of Orissa,Cuttack, who tried the election petition framed 8 issues but they were re-cast after the evidence was recorded. Issues Nos, 1 to 5 pertained to the maintainability of the election petition and on these issues the learned Judge found in favour of respondent 1. Those findings are not challenged before us and, therefore, we must proceed on the basis that the election petition as presented did not suffer from any illegality.

5. Issues Nos. 6 to 8 are the ones with which alone we are concerned in this appeal and those issues arise out of the contentions in regard to the entries made by the Returning Officer in Form No. 20. The ninth issue is consequential.

6. Respondent 1 examined himself and one Khagendranath Naik who was his Counting Supervisor on Table No. 13, on behalf of the appellant, an election agent and a counting agent of his were examined as witnesses. Neither party examined the Returning Officer nor indeed did the Returning Officer who was respondent 6 to the petition offer to give evidence on the question as to whether the results of the second round of counting of Table No. 14 were erroneously entered as against the corresponding column of Table No.13

7. During the hearing of the petition, the learned Judge inquired of the parties whether they were agreeable to a recount being taken of all the ballot papers. Counsel appearing for the appellant and respondents 1 and 2 agreed to the course suggested by the learned Judge. Respondents 3 to 5 who had contested the election but were defeated did not appear at the trial nor indeed did the Returning Officer. On February 3, 1975 the learned Judge passed an order directing that "the entire ballot papers should be recounted".

8. The ballot papers were accordingly sent for. Twenty-one sealed trunks were received by th