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2. In all there were eight candidates in the field i..

the appellant and respondents No. 1 to 7 who contested the said election for the Legislative Assembly seat from 104 Kayamkulam constituency. The appellant was a candidate fielded by the Communist Party of India (Marxist). The respondent No. 1 herein was the candidate sponsored by the Indian National Congress which was a constituent party of the United Democratic Front. The total number of votes polled in the said election were 97,969 out of which 1,375 were rejected as invalid votes and 96,594 votes were received as valid votes. At the end of the final counting which took place on June 16, 1991 the result was declared and the respondent No. 1 was returned as a successful candidate by a margin of 33 votes against his nearest rival, the petitioner/appellant herein. The main contest was between the appellant and the respondent No. 1. The appellant had polled 46,649 votes while the respondent No. 1 had polled 46,682 votes and thus the respondent No. 1 had won the election by a margin of 33 votes over his nearest rival, the petitioner/appellant herein and, therefore, he was declared elected.

(iii) That invalid votes were counted in favour of the returned candidate respondent No. 1 and out of the total rejected votes of 1375 quite a large number of valid votes in favour of the appellant were rejected which materially affected the result of the election.

11. In order to appreciate the first contention advanced by the learned counsel for the appellant and referred to above it has to be seen whether the appellant has pleaded material facts and laid adequate foundation for a direction for inspection and recount. In this regard learned counsel for the appellant submitted that the pleadings with regard to the material facts for a direction for recount arc contained in paras 4 and 7 of the election petition. Briefly stated the allegations made in para 4 of the election petition arc that the counting of 104, Kayamkulam Assembly Constituency as well as the counting of Parliamentary election was simultaneously don in a Hall which had a length of 80 feet and width of 20 feet which was insufficient to properly accommodate the stag of the Returning Officer and the assistants as wIl as the counting staff, candidates and their counting agents by reason of which various irregularities wre either consciously committed by the counting staff or occurred on account of the hurried sorting out and putting the ballot papers into different compartments of the candidates or the compartments meant for the doubtful votes while bundling up the ballot papers of respective candidates into bundles of 50 each. It is stated that it was difficult for the agents of the petitioner/ appellant to carefully keep track of the sorting out or identifying the voters mark on the ballot papers before they were put into different compartments. It has been further alleged that a partisan attitude of the counting officers and supervisors was visible. The counting agents of the petitioner raised objection on several occasions and Shri M.R. Rajesekharan, election agent of the petitioner/appellant mentioned these facts to the Returning Officer who told him that it was up to the counting agents to watch the process and the whole count-

Knowing that there was irregularities and illegality in the matter of counting, my chief Agent has placed an application for re-counting.
The Returning Officer has declared hundreds of invalid votes as valid in favour of Shri Thachady Prabhakaran. My valid votes have been declared as invalid. About 300 postal ballot papers have been declared by the Returning Officer as invalid votes. For the reasons stated above, I request you to be good enough to take urgent steps to re-count the ballots as soon as possible.

20.We now come to the third ground advanced by the learned counsel for the appellant that invalid votes were counted in favour of the returned candidate respondent No. 1 and that out of the total rejected votes of 1375, quite a large number of valid votes in favour of the appellant were rejected, which materially affected the result of the election. Learned counsel for the respondent submitted that the appellant has not set forth the concise statement of material fact with regard to the allegation of counting invalid votes in favour of the respondent No. 1 nor has given any particulars of such invalid votes which are alleged to have been counted in favour of respondent No. 1 He also submitted that similarly there are no particulars with regard to the rejection of valid votes in favour of the appellant nor number of such votes in order to support the allegation that such rejection of valid votes in favour of the appellant materially affected the result of the election. In our opinion there is no substance in these submissions made by the learned counsel for the appellant. In fact the appellant has neither pleaded the details and the number of such invalid votes which were counted in favour of respondent No. 1 nor has given the particulars of the number of such valid votes in favour of die, appellant which were wrongfully rejected during the course of counting. This apart, the Returning Officer, Supervisors and other officials were also present in the counting hall throughout the process of counting and the observers also visited the counting hall, but neither the appellant nor any of his counting agents pointed out or objected either orally or in writing that invalid votes were counted in favour of the respondent No. 1 or valid votes in favour of the appellant were rejected. The evidence of the Returning Officer, PW 16 clearly goes to show that no such complaint was made by any one during the course of counting. In these facts and circumstances it is difficult to accept the allegations made by the appellant which seem to be only an after thought and without any evidence or material to support the same.