Y.V.CHANDRACHUD, J.

(1) NINETEEN persons contested the biennial elections to the Bihar Legislative council which were held on 29/03/1974 for filling II vacancies. The appellant. Anirudh Prasad, and respondent Nos. 1 to 10 were declared as the successful candidates.

(2) THE elections having been held by the system of proportional representation by a single transferable vote, votes were counted in accordance with the procedure prescribed in Part VII of the Conduct of Elections Rules, 1961 (hereinafter called the Rules), read with the relevant provisions of the Representation of the People Act, 1951 (hereinafter called the Act). The secretary of the Bihar Legislative Assembly who acted as the Returning Officer rejected 9 ballot papers and accepted the remaining 306 ballot papers as valid. Considering that II seats were to be tilled on the basis of votes cast in 306 ballot papers, the Returning Officer, by the application of Rule 76, fixed the minimum quota of votes sufficient to secure the return of a candidate at 2551. The technical arithmetical formulae were applied during counting from time to time, votes were likewise added and subtracted from one round to another of counting and the result of the none-too-simple procedure was entered by the Returning Officer in a form prescribed by the rules for that purpose.

(3) IN the first round of counting, respondent Nos. 1 to 5 were declared elected as they secured more votes than the fixed quota of 2551. In the second and third rounds of counting, respondent No. 6 (since deceased) and respondent No. 7 were declared successful on the basis of transfer of surplus votes. None of the candidates could be declared successful in the fourth round but in the fifth round, respondent Nos. 8 and 9 and in the sixth round, respondent No. 9, were declared elected. In the seventh round of counting respondent No. 18 (Indra Kumar) was eliminated and in the eighth round, which was the last round of counting, the appellant Anirudh Prasad and respondent No. 10 were declared as the successful candidates.

(4) RESPONDENT No. 18 filed an election petition in the Patna High court challenging the election of the successful candidates on the ground that the rejection of 3 ballot papers having first preference votes in his favour, the rejection of 2 ballot papers having first preference votes in favour of respondent No. 9, the illegal acceptance of one ballot paper having a first preference vote in favour of respondent No. 8 and a wrong counting of votes in the fourth round of counting had materially affected the result of the election. Out of the 3 ballot papers which according to respondent No. 18 were wrongly rejected by the Returning Officer, one was rejected on the ground that it contained a small horizontal line. another on the ground that it contained a faint mark and the third on the ground that the elector had scored through the fourth preference vote cast in favour of one candidate and had assigned it to another. The rejection of these 3 ballot papers which contained first preference votes in favour of respondent No. 18 was partly based on the view that while casting their votes, the voters connected with the particular ballot papers had resorted to devices by which their identity could be established. Respondent No. 18 prayed that the election of successful candidates or of the candidate receiving the smallest number of votes on recount be declared as void and that he himself be declared as duly elected. The rest of the 18 contestants were impleaded as respondents to the election petition.

(5) RESPONDENT Nos. 1 to 6,8 and 11 to 17 did not enter appearance in the High court. Respondent Nos. 7 and 10 appeared in the election petition and filed their written statements. But they took no further part in the proceedings.

(6) RESPONDENT No. 9, Nathuni Ram, filed a written statement as well as a recriminatory petition. He contended that the Returning Of