Tribunal has jurisdiction about recounting of votes after declaration of result.

S. RAMACHANDRA IYER, C.J. :- This is an appeal under S. 116-A of the Representation of the People Act, 1951 at the instance of a defeated candidate against the order of the Election Tribunal (District Judge) Tiruchirapalli, dismissing his application to have the election set aside.

2. At the recent general election to the Madras legislative assembly from Uppiliapuram constituency in Musiri taluk, Tiruchirapalli Dt. held on 19-2-1962, three candidates, namely, the first respondent, the appellant and the second respondent contested. The counting of votes took place on 25-2-1962. We give below the candidates, their party affiliation with the symbols relative thereto and the votes secured by them :

First respondent Congress Two bullocks

with a yoke on 29435 votes

Appellant D. M. K. Rising sun 29077 votes

Second respondent Independent Lion 3766 votes

Invalid votes 2663 votes

3. The first respondent who secured the highest number of votes, the majority over his nearest rival being 358 votes, was declared elected. The appellant then filed a petition to get the election set aside alleging various irregularities and illegalities in the conduct of the election. Several of them were however not pressed during the trial of the petition, and in this appeal the appellants case was confined to only ground of attack, namely, that relating to an alleged improper counting of votes. Before we proceed to state the precise ground on which that irregularity is rested, certain matters have to be mentioned.

3A. Simultaneously with the Assembly election an election for the Parliamentary seat for Tiruchirapalli district was also held. There were two Returning officers. One was Sri Subbaiyan, Revenue Divisional Officer, Musiri, who was designated as the Returning Officer and was in charge of the Parliamentary election, and the other the Assistant Returning Officer Sri Thiagarajan, who was put in charge of the election for the State Assembly. At the time of the counting of votes, nine counting agents were allowed for each candidate. Besides, the Election Agent of each candidate as also the candidates themselves had access to the place of counting.

The counting of votes commenced at about 9 a.m. on 25-2-1962. The ballot boxes were distributed amongst 16 tables, each table having two counting officers and a supervisor. The Returning Officer and the Assistant Returning officer were also present. The counting officers were drawn from various departments of the Government and although some suggestion was made before the Tribunal that they were under the thumb of the returning officer, that charge has not been made out or persisted in. The declaration of the result was made at about 9 p.m. that evening. The result shows that within a period of about 12 hours 64341 votes had been counted. It also reveals that there there were a large number of invalid votes. The margin of difference between the appellant and the first respondent the successful candidate, being small.

4. The case for the appellant is that there was a serious and deliberate irregularity committed at the time of the counting of votes, namely, that a large number of votes cast in favour of the 2nd respondent against the Lion symbol were improperly counted in favour of the first respondent, and further that certain invalid votes which contained markings in favour of the first respondent as well as the second respondent (that is, against the symobols of two bullocks under the yoke, as well as the lion) were counted in favour of the former. This case has been rejected by the Election Tribunal. There can be no doubt that if that case were made out, the return could not be regarded as accurate and there would be occasion for a recount and scrutiny of the votes.

5. The appellants case rests solely on the evidence of five witnesses examined on his side. The first of them was a counting agent. He has spoken to both the aspects of the appellants case and swore to the fact that the counting officer included