P MALAICHAMI Vs. M ANDI AMBALAM

JUDGEMENT

(1.) This appeal arises out of the election held in March 1971 to the Tamil Nadu Legislative Assembly to fill a seat from the Melur (North) constituency in Madurai district in which the appellant was declared elected by a majority of 127 votes receiving 37,337 votes as against 37,210 received by the respondent. 3,381 votes were held invalid. The respondent filed an election petition on 23-4-1971 not only questioning the election of the appellant but also claiming the seat for himself. He made various allegations in his petition which related to infraction of many of the rules regarding the conduct of election. But we may refer to four important matters, which he had referred to in his petition, the importance of which would become clear in due course. In paragraph (g) of his petition he has stated:

(2.) The appellant in his counter affidavit denied all the allegations in the petition. The respondent filed an interlocutory application for directing a scrutiny and recounting of all the votes. To this application no counter affidavit was at all filed by the appellant. Five witnesses including the petitioner were examined on his side and on the respondent's side also five witnesses including the Returning Officer, the Assistant Returning Officer as well as the successful candidate were examined at great length. The learned Judge after an elaborate, careful, thorough and meticulous examination, which are almost a model of judicial balance and propriety, passed an order for recount of the votes. We consider it unnecessary to set them out at length. It may be useful to set out the main grounds on which he ordered recount. These are found in paragraph 22 of his order.

(3.) The recount was ordered to be done by four advocates acting as tellers, two from each side out of a list of four furnished by each side. Both the parties and their respective counsel were permitted to be present along with four counting agents for petitioner as well as the respondent and an Assistant Registrar of the High Court was appointed to preside over the recount of the ballot papers and to be assisted by the members of staff dealing with election cases. He was ordered to submit his report within two days after the completion of the recounting. It was ordered that on receipt of that report an opportunity will be given to both parties to be heard on that report and necessary orders will be passed thereon. The Assistant Registrar submitted his reports on 19-2-1972, and on 23-2-1972, 24-2-1972, 25-2-1972 and 28-2-1972, the Judge himself took up for decision the validity or otherwise of the various votes which were disputed and dictated orders then and there. Even before him some concessions were made in respect of certain votes by both the parties and some the Judge decided by himself. The Assistant Registrar himself dealt merely with votes which were conceded by one side or the other as having been validly cast in favour of the opposite side. Before him out of the votes which were held invalid by the Returning Officer, 2583 were agreed as rightly held invalid but there was dispute about 804 votes (It thus appears that there was a mistake even in the counting of the invalid votes) From out of the votes counted in rounds 8 to 11, 11,301 votes in favour of the respondent were conceded as valid and 395 were disputed; 11,951 were conceded as valid in favour of the appellant and 567 were disputed. Thus the total of these disputed votes amounting to over 1700 were decided by the Judge himself in the presence of the parties and their advocates, some on the basis of concessions, some as decided by the Judge himself, as already mentioned. It is necessary to mention also that as in the recount from among the votes held invalid by the Returning Officer petitioner conceded 65 were valid votes cast for the respondent. He also conceded that 11 votes counted by the Returning Officer in his favour were valid votes cast for the respondent. 19 votes held by the Returning Officer as validly cast for the petitioner were conceded by him to be invalid. The total came to 95. Similarly 126 votes cast for the petitioner but rejected by the Returning Officer were found valid and 14 votes counted by the Returning Officer as cast for the respondent were found to have been really cast for the petitioner. These facts clearly establish large scale mistakes in counting. As a result of all this it was finally found that the appellant had got 37,372 votes and the respondent 37,297 votes. Thus the majority obtained by the appellant was reduced from 127 to 75.