JUDGMENT

FAZAL ALI, J.:— Civil Appeal No. 524 of 1978 has been filed by the appellant R. Narayanan who was the respondent before the High Court and in short would be referred to as the appellant. Civil Appeal No. 588 of 1978 has been filed by the appellant after obtaining special leave from this Court and is directed against that part of the order of the High Court which refused to entertain the recrimination petition filed by the appellant. The election petitioner before the High Court for the purpose of brevity will hereafter be referred to as the respondent.

2. Both the appellant and the respondent contested the election held on 11-5-1977. The appellant was a Congress candidate with the symbol of calf and cow whereas the respondent was put forward as a candidate of the All India Anna Dravida Munnetra Kgzhagam and contested with the symbol of "Two Leaves". There were 14 candidates in all whose nominations were found valid but out of them 7 withdrew. The appellant and respondents Nos. 1 to 6 before the High Court remained in the field as contesting candidates. The respondent filed an election petition in the High Court under Section 81 and 84 of the Representation of the People Act, 1951 (hereinafter referred to as the Act) for a declaration that the election of the appellant to the 85 Taramangalam Assembly Constituency of the Tamil Nadu Legislative Assembly was void under S. 100 (1) (d) (iii) and (iv) of the Act and further prayed that he may be duly declared to be elected under Section 101 of the Act. The other candidates who were in the field lost the election and could not be elected.

3. The sheet anchor of the case of the respondent was that there were number of errors in the counting of votes as a result of which number of votes were wrongly rejected or wrongly accepted. It was also alleged that the electoral roll was inaccurate as it contained the names of number of persons who were already dead who had supposed to have cast their votes. The main relief sought by the respondent was that a re-count should be ordered particularly because the margin by which the appellant succeeded was extremely narrow being only 19 votes and if the postal ballots are included then the difference would be only 9 votes. A number of allegations were made regarding the errors in thecounting of votes. The appellant denied all the allegations made by the respondent in his election petition and after filing his written statement sought a petition for recrimination on the ground that a number of persons had impersonated as the appellant (sic) as a result of which the respondent got a number of wrong votes otherwise the margin would have become larger. The High Court however found that the petition for recrimination was time barred, and, therefore, could not be entertained. The learned Judge who heard the election petition rejected the recrimination petition which is the subject matter of Civil Appeal No. 588 of 1978. In the view that we take in this case, it is not necessary for us to give any pronouncement regarding the validity of the order of the Judge rejecting the recrimination petition.

4. The counting of votes took place at St. Marys Girls High School, Mettur on 14-6-1977. The initial counting commenced at 11 a.m. and ended at 3 a.m. on the 15th June, 1977. The counting is alleged to have been done in three rounds. After the counting was over the respondent filed an application before the Returning Officer for a recount on the ground that there were a number of counting errors due to the shortage of staff and the tables on which votes were counted, paucity of light and the fact that the counting staff became absolutely exhausted and tired. The Returning Officer rejected the prayer of the respondent for recount and went ahead with the declaration of the results.

5. The appellants case was that there was sufficient space in the hall in which the counting took place and the polling agents of all the candidates were present when the counting was