JUDGMENT

NATARAJAN, J.:— This special leave petition, to seek leave to appeal under Article 136 of the Constitution has been filed against the order of the Madras High Court in Civil Revision Petition No. 704 of 1988 filed by the 1st respondent herein. After hearing the arguments of the counsel for the. petitioner and the 1st respondent (Caveator) we are not persuaded to grant special leave and are dismissing the petition for the reasons given below.

2. For an election held on 23-2-1986, the votes were counted on 25-2-1986 and the 1st respondent was declared elected, having secured 649 votes for the post of the President of the Keelpaguthi Panchayat, Kulithalai Taluk, Tamil Nadu. The petitioner and the 2nd respondent who were the other contestants were declared to have secured only 556 votes and 8 votes respectively. Besides the votes secured by the contestants, 55 votes were declared to be invalid votes.

3. Two days after the results were declared i.e. on 27-2-1986, the petitioner sent telegrams and registered notices alleging irregularities in the counting of the votes. Thereafter, he filed an election petition O.P. No. 7/86 under Section 178 of the Tamil Nadu Panchayats Act before the Election Tribunal (District Munsif), Kulithalai for setting aside the election of the 1st respondent as the President of Keelpaguthi Panchayat. He alleged in the petition that the Returning Officer (3rd respondent) had wrongly treated some valid votes cast in his favour as invalid votes and a certain number of invalid votes as votes validly cast in favour of the 1st respondent and that the third respondent had failed to permit him and his agents to have scrutiny of the ballot papers at the time of counting. He, therefore, sought the reliefs of (a) setting aside the election of the first respondent, (b) ordering of re-count of votes and (c) a declaration that he had been duly elected.

4. The first respondent opposed the election petition and filed a counter statement denying all the allegations contained in the election petition.

5. The Tribunal, after recording the evidence of all the candidates and the Assistant Returning Officer came to the conclusion that "the petitioner is entitled to ask for recount of votes" and ordered recounting and called for the ballot papers. In para 7 of the order wherein the Tribunal has accepted the plea of the petitioner for recounting of votes, the Tribunal has merely set out the evidence adduced by the petitioner on the one hand and respondents 1 and 2 and the Assistant Returning Officer on the other and without any discussion whatever upon the merits and demerits of the evidence of the parties, has given a cryptic finding as follows:- "I accept the evidence given by the petitioner that he (Returning Officer) has sided the first respondent in the election." The Tribunal has then stated as follows "immediately after the election- results were anounced on 25-2-86 he has sent notice Ex. A1 on 27-2-86 stating that the counting is not correct. Further he has deposed that on the date of counting he objected to the counting and requested for recounting. Even though the petitioner has not given any petition in writing for recounting on the counting date, he has right to approach the Tribunal for recounting. The petitioner has filed this petition within the stipulated time. The petitioner prays for recounting of votes and the petition may be admitted on the basis of recounting. If recounting is ordered, no prejudice will be caused to the respondents. Because their argument is that the votes were counted according to law. Therefore I decide that the petitioner is entitled to ask for recounting. Recounting is ordered."

6. In the recount of votes it was found that there was no difference in the number of votes secured by the petitioner viz. 556 votes but in so far as the first respondent is concerned he had secured only 528 votes as against 649 votes he was originally held to have secured. The excess of 121 votes were found to