Judgment

BALAKRISHNA ERADI, J.:- At the conclusion of the hearing of this appeal arising out of an election petition filed finder Sections 80 to 83, 98, 100 (1) (d) (iii) and (iv) and Section 101 of the Representation of the People Act, 1951, we passed the following order announcing the decision arrived at by us :

"The appeal is dismissed with no order as to costs. All interim orders passed by this Court are vacated.

Reasons will follow."

2. We now proceed to state the reasons in support of the aforesaid conclusion.

3. In the General Elections to the Tamil Nadu Assembly held in May 1980, the Appellant had contested for the Ilayangudi Assembly Constituency seat, and the 1st Respondent was a rival candidate sponsored by the Communist Party of India. Respondents 2, 3 and 4 had also stood for election in the same constituency as independent candidates. The polling took place on the 28th of May 1980. The counting of votes was commenced at 10.00 a. m. on the 1st of June 1980 and at 5.00 p.m. after the postal ballot votes were also counted, the result of the election was announced by the Returning Officer, declaring that the appellant was duly elected on the ground that he had secured the highest number of votes among the contesting candidates. According to the results of the counting as announced, the appellant had secured 34,437 votes and the 1st respondent had polled 34,381 votes. The other three candidates secured only a very small number of votes and had forfeited their deposits. Thus, it was only by a narrow margin of 56 votes that the appellant was declared to have won the election.

4. The validity of the election was challenged by the 1st respondent by filing the election petition before the High Court of Madras praying for an order for the scrutiny and recounting of all the ballot papers cast in the election to the Ilayangudi Assembly Constituency held on 28-5-1980 and for a declaration that the election of the appellant to that constituency was void and that the 1st respondent had been duly elected in respect of that constituency. The main grounds urged in support of the prayer for setting aside the election of the appellant were threefold, viz., (1) improper rejection by the Returning Officer of valid votes case in favour of the 1st respondent; (2) improper reception of, invalid votes cast in favour of the appellant ; and (3) improper treatment of valid votes cast in favour of the first respondent and the 3rd respondent as votes cast in favour of the appellant. A further ground was also taken in the Petition that the procedure adopted by the Returning Officer in the counting of votes and the declaration. of the result of the election was not in accordance with the provisions of the Representation of the People Act (hereinafter called the Act), the rules and the instructions issued in that regard.

5. After a detailed discussion of the evidence adduced in the case, the learned single Judge of the High Court, who tried the election petition, found that there was no basis for the allegation made in the petition that the procedure adopted by the Returning Officer in the counting of votes was not in accordance with the relevant provisions of the Act, the rules and the instructions. It was further found by the learned Judge that the averment made in the petition that valid votes cast in favour of the 1st respondent and the 3rd respondent had been improperly treated as votes polled in favour of the appellant was devoid of factual foundation. However, on the issue relating to the question whether there had been improper rejection of valid votes cast in favour of the 1st respondent herein (petitioner in the election petition), the learned judge found that it was clearly established by the evidence that the Returning Officer had erroneously and illegally rejected as invalid ballot papers in which the marking had been done either on the demarcation line at the bottom of the 1st respondents column - the first respondents name was printed on t