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CASE NO.: Appeal (civil) 6543  of  1999

PETITIONER: VADIVELU

       Vs.

RESPONDENT: SUNDARAM AND ORS.

DATE OF JUDGMENT:       10/10/2000

BENCH: R.C.Lahoti, K.G.Balakrishna

JUDGMENT:

Balakrishnan, J.L.....I.........T.......T.......T.......T.......T.......T..J

     The  appellant contested the election for the post  of President  of  Vannavalkudi Village  Panchayat,  Pudukkottai District  in Tamil Nadu.  The respondent nos.  1, 2 & 3 were also the candidates for the same election.  The polling took place  on  12.10.96 and the votes were counted on  14.10.96. The  1st  respondent,  Sundaram secured 1011 votes  and  the appellant Vadivelu secured 1010 votes and the 1st respondent was  declared  elected.  The other respondents  had  secured only  lesser  number  of  votes.   The  appellant  filed  an Election  Petition  under  Rule  122   of  the  Tamil   Nadu Panchayats  (Elections)  Rules,  1995  before  the  District Judge,  Pudukkottai,  challenging  the election of  the  1st respondent.   In  the  Election   Petition,  the   appellant contended  that certain irregularities were committed  while the counting of votes was made.  According to the appellant, the  names  of  the dead persons were not deleted  from  the electoral  roll  and the first respondent took advantage  of this,  and despite the objection raised by the agents of the appellant,  impersonation  had  taken place at the  time  of polling.   The  appellant also alleged that at the  time  of counting,  a  number of valid votes polled in favour of  the appellant  were treated as invalid by the Returning  Officer and  though  the  appellant’s agents raised  objection,  the Returning  Officer  did not pay heed to it.   The  appellant further  alleged that the counting officers had no knowledge as  to which was valid vote and which was invalid one.   The counting  was  done in a hasty manner and the agents of  the appellant  were  not  allowed to closely peruse  the  ballot papers.   Certain ballot papers contained thumb  impression, but  they  were  rejected as invalid votes.   The  appellant filed a petition before the Returning Officer for recounting of  votes, but that prayer was not allowed and on the  above grounds,  the appellant filed Election Petition for  setting aside the election of the 1st respondent.

     The 1st respondent filed counter affidavit denying the allegations  in  the Election Petition.  The 1st  respondent contended  that the allegations in the Election Petition are vague  and  insufficient  to  set aside  the  election.   He contended  that no material particulars are furnished in the

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Election  Petition and only bald allegations have been  made and,  therefore,  the  Election Petition was  liable  to  be dismissed.   The  1st  respondent   also  alleged  that  the appellant  had not given any particulars regarding inclusion of  names of dead persons in the electoral roll.   According to  the  1st  respondent,  there   was  no  irregularity  or illegality in the counting of votes.

     Four  witnesses  were  examined  on the  side  of  the appellant.   On  the  respondent’s side, RW1  and  RW2  were examined.   The Election Tribunal held that no details  were available  as  to  how  many   votes  were  secured  by  the appellant-Election  Petitioner and the 1st respondent  after the first round of counting and that the appellant had filed an  application  for recount before the  Returning  Officer. Therefore,  the Election Tribunal ordered re-count of  votes and an Advocate-Commissioner was appointed for recounting of votes  and  he submitted a detailed commission  report.   On re-count made by the commissioner, the appellant had secured 1002 votes and the 1st respondent, Sundaram, had secured 975 votes.   Based  on  the  report  of  the  Commissioner,  the Election  Tribunal  declared the appellant-Vadivelu  as  the person  elected  as President of the District Panchayat  and the Election Petition was accordingly allowed.

     Aggrieved  by the order of the Election Tribunal,  the 1st  respondent, Sundaram, filed a Revision Petition  before the  Hon’ble  High  Court, Madras under Article 227  of  the Constitution  of India.  The learned Single Judge held  that the  Election  Tribunal  was not justified in  ordering  the recount  of votes as the appellant had not made out a  prima facie  ground for recounting.  The learned Single Judge held that  the Election Petition is bereft of any material  facts and   only  vague  allegations  have   been  made  and   the appointment  of the Commissioner for recounting of votes was illegal  and incorrect and, therefore, without jurisdiction. The  Revision was allowed and it was held that the  Election Petition would stand dismissed with costs.  Aggrieved by the above facts, the present appeal is filed.

     We  heard  the appellant’s Counsel Ms.  Indu  Malhotra and   the   Counsel  for  the   1st  respondent,   Mr.    R. Sundaravardan.  The main contention urged by the appellant’s Counsel is that the learned Single Judge seriously flawed in holding  that  the  Election Petition did  not  contain  the necessary  pleadings for seeking recount of the votes.   The appellant’s  Counsel also contended that the 1st  Respondent had  never  raised any objection when the  Commissioner  was appointed  by the Election Tribunal and the Commissioner had correctly conducted the recounting of votes and declared the appellant  elected.   The  Counsel for  the  1st  respondent contended that the Election Tribunal should not have ordered re-count  of  votes  and  there was  no  foundation  in  the pleadings  raised in the Election Petition.  It was urged by the  Counsel  for  the  1st  respondent  that  the  Election Petition  itself  was  liable to be dismissed  for  want  of necessary pleadings.

     It  was  also  argued  by  the  counsel  for  the  1st respondent   that  the  Commissioner,   who  conducted   the recounting,  wrongly rejected 31 ballot votes cast in favour of  the 1st respondent and according to the Counsel, in view of  the  Proviso  to Rule 63 of the Tamil  Nadu  Panchayat’s (Election)  Rules 1995, the Commissioner should have treated those  votes as valid votes even though they did not contain

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the distinguishing mark of the polling station.  Counsel for the   1st  respondent  further   argued  that  the  Election Petitioner  had filed the application for recount before the Returning Officer after the declaration of the result of the election  and  the failure to file a proper application  for recount  before  the Returning Officer would disentitle  the Election  Petitioner from making a similar prayer before the Election Tribunal.

     The  main arguments of Counsel on either side centered round  the question whether in the instant case the Election Tribunal   was  justified  in   ordering  a  recount.    The circumstances  under  which a recount could be ordered  have been  considered  by  this Court in  various  decisions.   A survey  of  at  least  some of the cases would  be  of  much assistance  to  know how this Court made  pronouncements  on this  legal  question  in the settings  of  various  factual background.

     In  Satyanarain  Dudhani  vs.  Uday  Kumar  Singh  and Others 1993 (Supp.) 2 SCC 8, it was held that the secrecy of the ballot papers cannot be permitted to be tinkered lightly and  an  order of recount cannot be granted as a  matter  of course.   Only when the High Court is satisfied on the basis of  material facts pleaded in the petition and supported  by the  contemporaneous  evidence,  that  the  recount  can  be ordered.  When there was no contemporaneous evidence to show any  irregularity or illegality in the counting, ordinarily, it  would  not be proper to order re-count on the  basis  of bare allegations in the Election Petition.

     In  Jitendra  Bahadur  Singh vs.  Krishna  Behari  and Others,  AIR  1970  SC  276,  the  election-petitioner,  who claimed  to  be  a counting agent  filed  Election  Petition alleging  that there was irregularity and illegality in  the counting of votes.  The learned Single Judge, who was trying the  Election  Petition permitted the petitioner to  inspect the  packets of the ballot papers containing the accepted as well  as the rejected votes of the candidates.  This  Court, while  allowing the appeal, held that the basic requirements to  be satisfied before the Election Tribunal can permit the inspection  of  ballot papers are that (1) the petition  for setting   aside  the  election   must  contain  an  adequate statement  of material facts on which the petitioner  relies in  support  of his case and (2) the Tribunal must be  prima facie  satisfied that in order to decide the dispute and  to do  complete  justice  between the  parties,  inspection  of ballot  papers is necessary.  The material facts required to be  stated  are  those  facts, which can  be  considered  as materials  supporting the allegations made.  In other words, they  must  be  such  facts as to afford  a  basis  for  the allegations made in the petition.

     In  D.   P.   Sharma vs.  Commissioner  and  Returning Officer  and  Others 1984 Supp.  SCC 157,  allegations  were made  in  the Election Petition that there  was  discrepancy between  the total number of ballot papers issued and ballot papers  taken  out and counted from the ballot boxes.   This Court  held that the discrepancies alleged in the statements prepared  under  Rule 45 and 56 of the Conduct  of  Election Rules,  1967 do not make out a case for directing a re-count of  votes  especially when the discrepancy is  marginal  and insignificant.   In Para 4 of the said Judgment, it was held that  in  order  to  obtain  re-count  of  votes,  a  proper foundation is required to be laid by the Election Petitioner

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indicating  the  precise material on the basis of  which  it could  be  urged by him with some substance that  there  has been either improper reception of invalid votes in favour of the  elected candidate or improper rejection of valid  votes in  favour  of the defeated candidate or wrong  counting  of votes  in  favour  of the elected candidate,  which  had  in reality been cast in favour of the defeated candidate.

     P.K.K.   Shamsudeen  Vs.  K.A.M.  Mappillai  Mohindeen and  Others (1989) 1 SCC 526 is a case where the  petitioner contested  the  election  for  the post of  President  of  a Panchayat  in  Tamil  Nadu.   In   the  election,  the   1st respondent   was  declared  elected   and   the   petitioner challenged  the election on the ground that while  counting, the  Returning Officer had wrongly treated some valid  votes cast  in  favour  of  the petitioner as  invalid  votes  and certain invalid votes were treated as valid votes which were cast  in favour of the 1st respondent and that the Returning Officer  had  not permitted the petitioner’s agents to  have scrutiny  of the ballot papers at the time of counting.  The Tribunal  after recording the evidence of all candidates and the  Assistant Returning Officer ordered re-count of  votes. On  recounting  of  votes, it was found that  there  was  no difference  in the number of votes secured by the petitioner but  insofar  as  the 1st respondent was  concerned  he  had secured  only  528  votes  as   against  649  votes  he  was originally  held  to  have secured.  121 votes cast  in  his favour  had  been found to be invalid votes.  Based  on  the figures  of  the  re-count,   the  Election  Petitioner  was declared  duly elected as he had secured 28 votes more  than the 1st respondent on recount.  This order was challenged by the  1st  respondent in Civil Revision Petition  before  the High  Court.  The learned Single Judge allowed the  Revision Petition  and held that the Tribunal had erred in ordering a recount  of the votes when the petitioner had not made out a prima  facie  case  for an order of recount of  votes  cast. This  Order  was challenged before this Court.   This  Court held in para 13 of the said Judgment as under:-

     "Thus  the  settled  position  of   law  is  that  the justification  for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes.  On the contrary, the justification  for  an order of recount of votes  should  be provided by the material placed by an Election Petitioner on the  threshold  before  an  order for recount  of  votes  is actually  made.   The reason for this salutary rule is  that the  preservation  of  the  secrecy  of  the  ballot  is   a sacrosanct  principle  which  cannot be lightly  or  hastily broken unless there is prima facie genuine need for it.  The right  of a defeated candidate to assail the validity of  an election  result  and  seek recounting of votes  has  to  be subject  to  the  basic principle that the  secrecy  of  the ballot  is  sacrosanct in a democracy and hence  unless  the affected  candidate  is able to allege and  substantiate  in acceptable  measure by means of evidence that a prima  facie case of a high degree of probability existed for the recount of  votes  being  ordered by the Election  Tribunal  in  the interests  of justice, a Tribunal or court should not  order the recount of votes."

     In  Ram Sewak Yadav vs.  Hussain Kamil Kidwai (1964) 6 SCR  238,  this Court held that an order for  inspection  of

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ballot   papers   can  be   granted  under   the   following circumstances:

     "An  order  for  inspection may not be  granted  as  a matter of course :  having regard to the insistence upon the secrecy  of the ballot papers, the court would be  justified in  granting an order for inspection provided two conditions are fulfilled :

     (i)  that  the petition for setting aside an  election contains  an  adequate  statement of the material  facts  on which the petitioner relies in support of his case;  and

     (ii)The  Tribunal  is  prima facie satisfied  that  in order  to  decide  the dispute and to  do  complete  justice between  the  parties  inspection of the  ballot  papers  is necessary

     But an order for inspection of ballot papers cannot be granted  to  support  vague pleas made in the  petition  not supported  by  material  facts or to fish  out  evidence  to support  such pleas.  The case of the petitioner must be set out with precision supported by averments of material facts. To  establish a case so pleaded an order for inspection  may undoubtedly,  if  the  interests  of  justice  require,   be granted.  But a mere allegation that the petitioner suspects or  believes  that  there has been  an  improper  reception, refusal  or  rejection  of votes will not be  sufficient  to support an order for inspection."

     In S.  Raghbir Singh Gill vs.  S.Gurcharan Singh Tohra & Ors.  1980 Supp.  SCC 53, in paragraph 31 of the Judgment, it was held as under:

     "True, re-count cannot be ordered just for the asking. A  petition  for  re-count after inspection  of  the  ballot papers  must contain an adequate statement on material facts on  which  the petitioner relies in support of his case  and secondly  the Tribunal must be prima facie satisfied that in order  to  decide  the dispute and to  do  complete  justice between  the  parties an inspection of the ballot papers  is necessary.   The discretion conferred in this behalf  should not be exercised in such a way so as to enable the applicant to  indulge  in a roving inquiry with a view to fishing  out materials for declaring the election void."

     In R.  Narayanan vs.  S.  Semmalai and Others (1980) 2 SCC  537, the Election Petitioner challenged the election on the  ground  that  there  were a number  of  errors  in  the counting  of  votes and that the electoral roll  itself  was inaccurate.   The petitioner sought for re- count of  votes. The  High  Court  ordered a re-count holding  that  although there  was no clear evidence of any irregularity in counting in  the  first  two rounds, there was a possibility  of  the counting staff being completely exhausted in the third round which  may  have  led to erroneous sorting and  counting  of votes.   In  ordering  a re-count the High  Court  was  also influenced  by  the  fact that the margin of  the  "returned candidate"  was only 19 votes.  The Order of the High  Court was  challenged before this Court.  This Court reversed  the order  passed  by High Court and after referring to  various decisions on this point, it was held as under:-

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     "The  court would be justified in ordering re-count of the ballot papers only where:

     (1)  The  Election  Petition   contains  an   adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;

     (2)  On the basis of evidence adduced such allegations are  prima  facie established, affording a good  ground  for believing that there has been a mistake in counting;  and

     (3)  The  court  trying the petition  is  prima  facie satisfied  that the making of such an order is  imperatively necessary  to  decide  the dispute and to  do  complete  and effectual justice between the parties."

     In  M.R.  Gopalakrishnan vs.  Thachady Prabhakaran and Others  1995  Supp.   (2) SCC 101, the  Election  Petitioner alleged  that  the  counting  was not done  in  a  congenial atmosphere.   The allegation was that counting was held in a small  hall  and  there were several tables and  chairs  and counting  agents  of  all the candidates  along  with  other officials  were  present in the hall;  therefore, it  became very  crowded  and sorting out of the bundles of the  ballot papers  was done hastily and, therefore, it was not possible for  the agents of the petitioner to carefully keep track of the  process  of  sorting-out and it was  alleged  that  the Returning Officer rejected many votes as invalid in spite of the  protest made by the petitioner.  On these  allegations, the  petitioner  sought for re-count of votes.  That  prayer was  rejected by the High Court and the same was  challenged before   this  Court.   After   referring  to  the   various decisions,  it  was  held that the demand  of  the  defeated candidate for re-count of votes has to be considered keeping in  view  that  secrecy  of the ballot is  sacrosanct  in  a democracy  and, therefore, unless the Election Petitioner is able  not only to plead and disclose the material facts  but also  substantiate the same by means of evidence of reliable character   that  there  existed  a  prima  facie  case  for re-count,  no  tribunal  or  court  would  be  justified  in directing a re-count.

     The  result  of the analysis of the above cases  would show  that  this Court has consistently taken the view  that re-count  of  votes  could  be ordered very  rarely  and  on specific  allegation  in  the   pleadings  in  the  election petition that illegality or irregularity was committed while counting.   The petitioner who seeks re-count should  allege and  prove  that  there was improper acceptance  of  invalid votes  or  improper rejection of valid votes.  If  only  the Court  is  satisfied  about the truthfulness  of  the  above allegation,  it  can  order re-count of votes.   Secrecy  of ballot has always been considered sacrosanct in a democratic process  of  election and it cannot be disturbed lightly  by bare  allegations of illegality or irregularity in counting. But  if  it  is  proved that purity of  elections  has  been tarnished  and it has materially affected the result of  the election  whereby  the  defeated   candidate  is   seriously prejudiced,  the Court can resort to re-count of votes under such circumstances to do justice between the parties.

     In  the  instant case, the appellant in  his  Election Petition  alleged  in  paragraphs 5 and 6  of  the  Election

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Petition as under:  ".............  The wrong electoral roll was  utilized  by the Presiding Officer.  The appellant  and his  agents  strongly protested against the wrong  electoral roll.   The  dead  persons names were not deleted  from  the electoral  roll, and other Panchayat Villagers names were in the  electoral roll.  The 1st respondent utilized the  same. The  appellant  and  his  agent strongly  objected  but  the Presiding  Officer,  has  not  taken   any  care  about  the electoral  roll and impersonation.  The said votes polled in favour  of the 1st respondent are void and therefore has  to be excluded.

     While counting of votes, the appellants and his agents represented  these facts and requested the counting officers and  the  Returning Officers both orally and in  writing  to reject  these  votes  polled  by these  persons.   But  they refused  to  consider the said objections.  Their such  acts are                                                  illegal .......................................................... The  Counting  Officers wantonly put the  appellant’s  valid votes to invalid vote box.  The appellant’s valid votes were added  in  the invalid votes.  The appellant and his  agents strongly  objected  but the Counting Officers and  Returning Officers  did  not care about the objections.  The  Counting Officers  counted  the  votes in favour of  1st  Respondent. "Furthermore,  the  Counting Officers did not know which  is valid  vote  and which is invalid vote.  During the  polling votes, the Booth Officers received the thumb impression from some  voters  and  gave  the   ballot  papers.   The   thumb impression  ink  marks available in the ballot papers.   The same  votes  were rejected and put into the  invalid  votes. The  Counting Officers were newly appointed.  They were  not properly  counting  the votes.  The Counting  Officers  were counting  the  votes  very fast and they had not  shown  the ballots to the agents, even when they raised objection.  The Counting  Officers threatened the Appellant’s agent and told him  that  they  are supreme authority for  counting  votes. ...............................    Finally,   the  Returning Officer  announced that the 1st Respondent had secured  1011 votes.   Appellant  secured 1010 votes.  The  difference  is only  one  vote.   More  than 100 votes were  added  in  the invalid  votes by the Counting Officers.  Some invalid votes were  included  to  the 1st Respondent which were  void  and which  ought  to have been rejected.  The Counting  Officers and the Returning Officers had not seen the intention of the voters in the ballot."

     From  the  above  pleadings, it is  evident  that  the appellant  has  not set forth material facts or  particulars required  for re-count of votes.  To justify his  contention that  there was irregularity or illegality in the  counting, except  making  some general and bald allegations, no  other details  are  given.   Though  an allegation  is  made  that electoral roll contained the names of dead persons, that the 1st  respondent  took advantage of the same, and  that  some persons  had  impersonated and cast votes in his favour,  no details  are  given as to who committed  such  irregularity. The  appellant  has also not mentioned as to how  many  such votes  had  been cast in favour of the 1st  respondent.   So also,  the  appellant  has  not alleged the  nature  of  the illegality  or  irregularity said to have been committed  by the  counting  officers.  How and in what manner  there  was improper  acceptance of invalid votes and improper rejection of  valid votes also is not explained by the appellant.   In

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short,  the  Election Petition is bereft of all details  and the  appellant, while examined as PW 1, could not supplement anything by way of evidence.

     The  appellant  has contended that an application  for re-count was made by him before the Returning Officer.  Rule 66  of  the  Tamil Nadu Panchayats (Elections)  Rules,  1995 states  that after the completion of counting and  recording in  Form  22  the  total  number of  votes  polled  by  each candidate  under  sub-rule  (2) of rule  64,  the  Returning Officer  shall announce the same.  After such  announcement, and  before the declaration of the result of the election, a contesting  candidate or in his absence, his election  agent may  apply in writing to the Returning Officer for a recount of  all  or  any of the votes already  counted  stating  the grounds  on which he demands such recount.  Sub-rule (2)  of Rule  66  further says that on such application being  made, the  Returning Officer shall decide the matter and may allow the  application  in whole or in part, or may reject  it  in toto  if it appears to him to be frivolous or  unreasonable. Therefore,  an application for recount shall be made  before the declaration of the result of the election, but after the completion  of the counting, when such result is entered  in part  II  of  Form  20.  This form is to be  signed  by  the Counting Supervisor and the Returning Officer.

     The appellant-Election Petitioner in this case has not stated  as to when did he file the application for re-count. He  has  stated  that  he had given an  application  to  the Returning  Officer  for recounting of votes and the  request for  recounting  was  not  accepted.  At  the  time  of  the evidence  also, the appellant has not stated as to when  did he  file  the application.  In cross-examination, he  stated that  at  about 10.00 p.m.  on 14.10.1996, it was  announced through loud speaker that the 1st respondent was elected and he  denied the allegation that the application for  re-count was  made at 11.45 p.m.  The 1st respondent was examined  as RW  1.   He  deposed  that the result of  the  election  was declared  at  10.30  p.m.   and   in  all  probability,  the appellant filed an application for re-count after the result of  the  election was declared.  Therefore, the  application for re-count was not filed in accordance with Rule 66 of the Tamil Nadu Panchayats (Elections) Rules, 1995.

     It  is  all  the  more  important  to  note  that  the appellant  sought  to  set  aside the election  of  the  1st respondent  and  in the Election Petition urged the  grounds under  Section  259(2)(d)(iii)  &  (iv) of  the  Tamil  Nadu Panchayats  Act,  1994 and the relevant provision is to  the following effect:-

     "259.   Grounds for declaring elections to be void. (1)  Subject  to the provisions of sub-section (2),  if  the District Judge is of the opinion

     (a) XXXXXX (b) XXXXXX (c) XXXXXX

     (d)  that  the result of the election in so far as  it concernes  a returned candidate has been materially affected --

     (i)-(ii) XXXX

     (iii)  by  the improper acceptance or refusal  of  any vote or reception of any vote which is void;  or

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     (iv) by the non-compliance with the provisions of this Act or of any rules or orders made thereunder,

     the  court shall declare the election of the  returned candidate to be void."

     But  in  the Election Petition, the appellant has  not stated that by the alleged improper acceptance or refusal of any  vote or reception of any vote, which is void, or by the alleged  non-compliance with the provisions of the Act or of any  rules  or  orders made thereunder, the  result  of  the election of the 1st respondent had been materially affected. The  appellant  was  examined as PW 1.  At the time  of  the evidence also, he had not stated that because of the alleged illegality  or irregularity, the result of the election  had been  materially  affected.   Grounds under  Section  259(2) could  successfully  be urged only if it is proved that  the election  of  the  returned candidate  had  been  materially affected.

     The  Counsel for the 1st respondent contended that the Commissioner  while counting postal ballot papers  illegally rejected  31  votes cast in favour of the 1st respondent  on the  ground  that  these ballot papers did not  contain  the signature  of  the Presiding Officer.  Three votes  cast  in favour   of  the  appellant  also   were  rejected  by   the Commissioner  on the same ground.  The Commissioner held the view    that    Rule   63(1)(h)    of   the    Tamil    Nadu Panchayat(Election)  Rules,  1995 requires that  the  postal ballot  paper  shall contain the signature of the  Presiding Officer  as  well as the distinguishing mark of the  polling station.  The procedure for issuance of postal ballot papers is  given  under Rule 51, which says that before any  ballot paper  is  delivered  to an elector, the  Presiding  Officer shall sign his name in full on the back of each ballot paper and affix the distinguishing mark of the polling station.

     The  relevant  portion  of  Rule   63  of  Tamil  Nadu Panchayat(Election) Rules, 1995 reads as follows:-

     "63.   Rejection  of  ballot papers.   (1)  A  ballot paper shall be rejected.-

     (a)-(g) XXXXXX

     (h)  if it does not bear both the distinguishing  mark and/or  the  signature  of the Presiding  Officer  which  it should  have  borne under the provisions of sub-rule (1)  of rule  51  or  the  words "elector on  election  duty"  under sub-rule(1) of rule 52, or (i) XXXXXX

     Provided that where the Returning Officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a  Presiding Officer, the ballot paper shall not be rejected merely on the ground of such defect.

     XXXXXX"

     The   rejected  ballot  paper   did  not  contain  the signature  of the Presiding Officer, though it contained the distinguishing  mark of the polling station.  Rule  63(1)(h)

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dealing  with  rejection of ballot papers provides  that  in order  to reject ballot papers it should be one not  bearing "both  the  distinguishing mark and/or the signature of  the Presiding Officer".  Therefore, a harmonious construction of Rule  51 and 63 would show that in order to reject a  postal ballot paper, the same should have lacked both the features, viz;   the signature of the Presiding Officer as well as the distinguishing  mark of the polling station.  In the instant case,   it   is  evident  that   due  to  some  mistake   or inadvertence,  the  Presiding  Officer did  not  sign  these ballot   papers.   The  absence  of  signatures  under   the circumstances  could not invalidate the ballot paper,  which bore  the  distinguishing  mark  of  the  polling   station. Therefore,  the  Commissioner went wrong in declaring  these votes  as  invalid.   That apart, it may be noted  that  had these  votes been treated as valid by the Commissioner, even on  re-count,  the  1st respondent would  have  secured  the highest number of votes.

     The appellant-Election Petitioner could not make out a case  for re- count of votes.  He filed the application  for re-count  before  the  Returning   Officer  only  after  the declaration  of result and that was rightly rejected by  the Returning  Officer.   The  appellant had no  case  that  the illegality or irregularity, if any, committed had materially affected the result of the election.  Taking all the aspects into  consideration,  we  are of the view that  the  learned Single  Judge  was perfectly justified in holding  that  the Election  Tribunal  erred in appointing a  Commissioner  and ordering  the  re-count  of  votes.   The  Counsel  for  the appellant  contended that the powers of the Revisional Court are  not  as wide as the powers of the Appellate Court  and, therefore,  the  learned  Single Judge should not  have  set aside  the order passed by the Election Tribunal.  We do not find  any force in this contention.  When there is error  of jurisdiction  or flagrant violation of the law laid down  by this  Court, by exercising the revisional powers, the  court can set aside the order passed by the Tribunal to do justice between  the  parties.   The  illegality  committed  by  the Election  Tribunal  has  been corrected  by  the  Revisional Order.   We find no merit in the present appeal and the same is dismissed.

     Having  regard  to the facts and circumstances,  there will be no order as to costs.