1. The writ petitioner is the elected member, of the Kerala Legislature from the Tellicherry Constituency, in the elections held in the State on 1st February 1960. The votes polled in favour of the petitioner were 28,380 and in favour of the 1st respondent, the defeated candidate, 28,357. It will be seen that the 1st respondent lost by 23 votes and in consequence, the 1st respondent was declared to have lost the election by a margin of 23 votes.

2. The 1st respondent has filed an Election Petition No. 9/60 challenging the election of the writ petitioner and it is pending enquiry and adjudication by the election Tribunal, Tellicherry.

3. In the said Election Petition, the 1st respondent prays for a declaration that the election of the writ petitioner from the Tellicherry Constituency, is void and also asks for a further declaration that the 1st respondent has been duly elected from the Tellicherry Constituency.

4. Several allegations have been made in the Election Petition about various irregularities and illegalities. In brief, the case of the 1st respondent is that he has in fact, secured a majority of valid votes so as to entitle him to get the seat in the Assembly.

5. The Election Petition is opposed by the writ petitioner on several grounds.

6. Pending adjudication of Election Petition No. 9/60, the 1st respondent herein, filed I. A. 30/60 for directing a recount of the votes. The 1st respondent alleged that he has received a majority of valid votes and that the most important point regarding the factum or otherwise of the candidate declared elected having secured a majority of valid votes has to be established and for the purpose of establishing the same, the best means is by having a recount of the votes themselves. The 1st respondent relied upon the close margin of votes as announced by the Returning Officer by itself as a circumstance justifying a recount. The Election petitioner relied upon the provisions of R.64 of the Representation of People (Conduct of Elections and Election Petitions) R.1956 to show that recount can be had unless the demand for recount is frivolous or unreasonable. The 1st respondent also claims that the demand for recount was made before the Returning Officer and that it has been improperly refused without holding that the said demand is frivolous or unreasonable.

7. The 1st respondent further alleges that there is clear evidence to show that mistakes in counting might well have taken place and that in many instances, the total number of votes polled, do not tally with the number of ballot papers issued. Then he gave certain instances of what according to the 1st respondent, would be instances of such mistakes having occurred.

8. The 1st respondent also alleged that the Returning Officer did not adopt the procedure required by the rules and he also alleges that the arrangements made for counting of votes were totally inadequate and the facilities to watch the counting provided for the candidates, were also grossly inadequate. In view of all these circumstances the 1st respondent prayed for a recount of the votes.

9. The writ petitioner opposed the application on various grounds. It was contended that the 1st respondent is not entitled to have a recount. The allegation that the writ petitioner has not obtained a majority of valid votes was denied and the further allegation that there may have been mistakes in the counting or that there were any irregularities committed by the Returning Officer, were all denied.

10. The Election Tribunal has directed by its order dated 18th October 1960, a recount and scrutiny of the votes. But it has directed that there will be no scrutiny of ballot papers rejected by the Returning Officer.

11. It is this order of the Election Tribunal that is sought to be quashed by the writ petitioner, in these proceedings under Art.226 of the Constitution.

12. Though the 1st respondent appears to have contended that he is entitled as of right, to have an order for recount, th