( 1 ) THIS election petition was filed by one T. Venkataram Reddy against the respondents. It was averred by the election petitioner that in the biennial elections to the Council of States in 1998 from the Andhra Pradesh Legislative assembly for filling six seats on 27-3-1998, the petitioner herein and the respondents no. l to 6 contested for the same. The petitioner herein contested as a candidate from the Indian National Congress. Respondents 1 and 3 to 6 contested on behalf of the Telugu Desam Party. Respondent No. 2 herein contested on behalf of the Communist Party of India. Mr. C. Venkateshan, the 7th respondent herein was the Returning Officer.

( 2 ) IT is further stated that the petitioner herein got 41 first preferential votes. The 7th respondent, who is an activist of the telugu Desam Party after his retirement, as a Secretary to the A. P. Legislative Assembly, is obliged to the Telugu Desam Party, especially to the present Chief Minister who re-appointed him and extended his term atleast three times, apart from the 7th respondent having been earlier Secretary of the Telugu Desam Party. Hence, for all purposes, it must be deemed that the 7th respondent is a Telugu Desam Party functionary and consequently bent upon helping the candidate put up by the Telugu desam Party. Apart from the allegations made against the 7th respondent, many other allegations were made by the petitioner herein.

( 3 ) ON presentation of the election petition, notice was issued to the respondents. Respondents filed counter.

( 4 ) AFTER appearing, the 1 st respondent filed application No. 1346 of 1998 under order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure praying to strike out the pleadings in Paras 5 to 18 from the election petition. Then counter was filed to this application. On considering the rival contentions raised by the parties, this Court by an elaborate order dated 19-2-1999 struck out the pleadings for various reasons as narrated in the said order. The only point left out in the election petition was regarding the procedural irregularities alleged to have been committed by the 7th respondent herein. Therefore, the point for determination was framed as under:"whether the election petitioner proves that the procedure of counting the preferential votes as adopted by respondent No. 7 is illegal?"

( 5 ) ON this issue, parties were allowed to lead evidence. The petitioner examined himself and also examined one G. Venkata reddy as PW2 who was his counting agent. On behalf of respondent No. l, one j. Venkateswarlu who was the counting agent for the 1st respondent, gave oral evidence as RW1. One Ram Reddy, S/o. Narayana Reddy gave evidence as a witness for the 7th respondent.

( 6 ) AS stated earlier, the controversy is limited to the extent of the procedural irregularities alleged to have been committed by the 7th respondent and, therefore, the parties to the election petition led the evidence only to that extent.

( 7 ) THE evidence of T. Venkataram reddy discloses that he contested the election for the Council of States which was held on 27-3-1998 on Indian National Congress, whereas respondent Nos. l, 3, 5 and 6 contested the election on behalf of the telugu Desam Party. 2nd respondent contested the election with the ticket of cpk. , and the 7th respondent was the returning Officer. The total strength of the assembly was 294. The effective strength was 290. All the Members of the Assembly were to exercise their franchise. 1st respondent secured 40 votes. 2nd respondent secured 43 votes. 3rd respondent secured 41 votes. 4th respondent secured 42 votes. 5th respondent secured 41 votes. 6th respondent secured 40 votes. The petitioner secured 41 votes. One vote was declared invalid on the ground that it was initially marked in favour of the 5th respondent and scored out against in favour of the petitioner.

( 8 ) IT is further stated by the petitioner that 171 surplus points were found in the parcel of the 2nd res