The Rules 39 (2) (b) and 56 (2) (b) of the Conduct of Election Rules, 1961 are mandatory, but when the marking of the ballot papers is made by an instrument other than the one supplied for the purpose, it will not invalidate the ballot papers if the instrument was supplied by the Polling Officer or any member of his staff.

Judgment

RAJENDRA BABU, J.

( 1 ) ELECTIONS were held on 27/04/1996 to the Kerala Legislative Assembly. The appellant and respondents Nos. 1 to 19 contested in the said election from Kunnathunadu No. 78 Assembly Constituency. Counting took place on May 8 and 9, 1996. Appellant secured 49,974 votes, while respondent No. 1 secured 50,034 votes. Thus respondent No. 1 was declared elected by a margin of 60 votes. Before the declaration of the result the appellant made an application for recount on several grounds. The Returning Officer rejected the said application. The appellant filed another application styled as "review Application" which was also rejected. The appellant, thereafter, filed an Election Petition before the High Court of Kerala. The High Court dismissed the said Election Petition. Hence, this appeal.

( 2 ) THE principal allegations raised by the appellant in the Election Petition are as follows :- (I) Votes cast by 36 persons (a list of names and other particulars of the said 36 persons was produced as Annexure-5 to the election petition) voted twice in either the same Constituency of Kunnathunadu or other constituencies. The votes cast by them are void under S. 62 (3) and (4) of the Act. All the 36 persons have voted for the respondent. (II) In addition to the above 36, 17 persons have voted in two polling stations. Their names appeared in electoral rolls of two polling stations of the same Kunnathunadu Constituency. A list of the names and other particulars of the said 17 persons was attached as Annexure-5 (a) to the Election petition. (III) 12 persons (whose names and particulars were given Annexure-6) are not voters of this constituency, their names having been deleted from the final voters list but they have voted in Polling Station Nos. 195 and 158 taking advantage of the fact that their names found a place in the original voters list. (IV) Annexure-7 is a list of the names, addresses etc. of 56 persons who are employees of Kitex Ltd. , an industrial unit in the constituency and who are voters in Booth Nos. 194, 195 etc. in the constituency. They are natives of far away places and were not in Kunnathunada Constituency during the election including the polling day so as to cast their votes due to the long day off of the factory. However their votes are seen as cast by impersonation. These votes are invalid under S. 62 (1) of the Act. (V) About 300 votes are cast in violation of Rules 39 (2) (b) and 56 (2) (b) of the Conduct of Election Rules, 1961, in as much as in the polling booths at Puttannoor school and Varikoli school etc. in Vadavucode-Puthencruz Panchayat about 300 voters voted using an instrument other than the arrow cross mark stamp prescribed by the Election Commission. The said votes are invalid. (VI) 5633 votes were wrongly declared invalid, majority of which were cast in favour of the Election Petitioner, and (VII) There are various other irregularities in mixing, sorting and bundling of the ballot papers contrary to Rules and instructions issued by the Election Commission.

( 3 ) RESPONDENT No. 1 in the written statement raised certain preliminary points as to non-compliance of S. 81 (3) of the Representation of People Act, 1951 (hereinafter referred to as the R. P. Act ). He also raised objections as to the manner in which the signature has been put and the verification made in the petition in violation of S. 83 (1) and (2) of the R. P. Act. He contended that the entire counting process had been conducted legally, regularly and correctly. He denied the allegation that the Counting Supervisor and the Counting Assistants were pro-left minded and indulged in manipulations. He contended that the facilities provided in the Counting Centres were adequate with full opportunity to the counting agents of the candidates to observe or scrupulously watch the scrutiny of the ballot papers. He claimed that the ballot papers in favour of the candidates were accurately bundled with 25 ballots in each of the bundl