DWARKA PRASAD,J. -
(1.)This appeal has been filed against an order passed by a learned single Judge of this Court dated December 3, 1982 allowing the writ petition filed by Mangtu Ram in the matter of election of Sarpanch under the Rajasthan Panchayat Act and the Rules made thereunder.
(2.)The appellant Palaram and the respondent Mangtu Ram were the two contesting candidates for the Office of Sarpanch of Gram Panchayat, Mahendrapura. The election for the said office took place on December 10, 1981. Out of 1862 votes cast at the aforesaid election, Mangtu Ram received 879 while Palaram appellant received 873 votes and 110 votes were rejected on the ground of being invalid. Mangtu Ram, having received more votes than Palaram, was declared to be duly elected as Sarpanch. Palaram appellant thereupon filed an election petition in the Court of Munsif, Nohar challenging the election of Mangturam to the office of Sarpanch. One of the main grounds taken in the election petition filed by Palaram was that 16 valid votes cast in his favour were improperly rejected by the Returning Officer during the course of counting of votes, while 12 valid votes which were actually cast in favour of Palaram were wrongly counted as votes cast in favour of the returned candidate. It was, thus alleged that Palaram had really secured 901 valid votes, whereas Mangturam got only 867 votes and, therefore, Palaram should have been declared elected as Sarpanch having secured majority of valid votes cast at the aforesaid election. The election petition was contested by the returned candidate, who denied the allegations made in the election petition."
(3.)The learned Munsif framed 9 issues, out of which issue No. 7 was to the effect as to whether the returning officer wrongly declared Mangturam elected as Sarpanch by a majority of 6 votes by erroneously rejecting 16 valid votes cast in favour of Palaram and by including 12 valid votes cast in favour of Palaram into the packet of the returned candidate. The election petitioner filed an application on July 14, 1982 before the learned Munsif requesting him to summon the record of the election containing the ballot papers for the purpose of recounting. On July 26, 1982, the learned Munsif passed an order on the aforesaid application, holding that the main dispute between the parties in the election petition related to improper rejection of valid votes. The learned Munsif held that in order to arrive at a just conclusion, it would be proper that the rejected ballot papers may be inspected, so that their validity may be examined. He, therefore, directed that the record of election containing the ballot papers may be summoned. Thereafter on July 31, 1982 the learned Munsif inspected the rejected ballot papers but all of them were found to be validly rejected and none of the valid ballot papers were found to have been improperly rejected. However, the learned Munsif then proceeded to inspect the ballot papers containing votes cast in favour of the returned candidate Mangtu Ram and sorted out therefrom 25 ballot papers, which in his view were of doubtful validity and kept them separately, as he was of the view that the question of their validity ought to be considered. The matter was then adjourned to August 6,1982. On the last mentioned date, the returned candidate submitted an application before the learned Munsif raising an objection regarding the inspection of ballot papers containing the votes cast in his favour. It was stated on his behalf that the court was not entitled to examine the ballot papers containing the votes cast in favour of the returned candidate as on July 26, 1982 the Court did not pass any order for inspection of votes cast in favour of the returned candidate; but the only order passed on that day was regarding the inspection of the rejected ballot papers. The learned Munsif, however, rejected the application filed by the returned candidate on August 6, 1982 on that very day, on the ground that on 31st July, 1982 an oral prayer was made by the learned counsel for the appellant for inspection of the votes cast in favour of the returned candidate and no objection in respect thereof was raised on behalf of the returned candidate. It was also observed by the learned Munsif that the order dated July 26,1982 did not preclude him from inspecting the ballot papers containing the votes cast in favour of the returned candidate, as the same was necessary in the interest of justice. The learned Munsif thereafter proceeded to scrutinise the 25 ballot papers which were considered by him doubtful and held that 9 votes out of the valid votes cast in favour of the returned candidate were invalid and were improperly accepted as valid votes by the returning officer. The result was that the votes cast in favour of the returned candidate were reduced to 870, as against 873 votes cast in favour of the election petitioner. Thus, on account of the inspection and scrutiny of the ballot papers of the returned candidate, the learned Munsif came to the conclusion that Palaram should be declared elected as Sarpanch while the election of the returned candidate should be set aside. The election petition was consequently allowed by the order of the learned Munsif dated August 7, 1982 and Palaram was declared elected as Sarpanch of the Gram Panchayat, Mahendrapura and the election of Mangturam was set aside.