D.V. Sehgal, J. - (1.) THE election to the offices of Sarpanch and Panches of Gram Panchayat, Makorar Sahib, was held on 24 -9 -1983. Ajmer Singh Petitioner and Jit Singh Respondent No. 3, were the two candidates for the office of Sarpanch. Respondent No. 3 was declared elected. The Petitioner who was defeated at the polls preferred an election petition on 11 -10 -1983 before the Executive Magistrate, Sunam, who was the Prescribed Authority, with a prayer that the election of Respondent No. 3 should be set aside and instead he should be declared elected. He levelled varied allegations of irregularities and illegalities which, according to him, were committed in the process of polling and counting of the votes It is not necessary to refer to all the allegations at this stage. The petition was contested by Respondent No 3 who denied the Petitioner's assertions During the pendency of proceedings in the election petition, the Petitioner moved an application dated 13 -10 -1983 before the Prescribed Authority with a prayer for recounting of the votes. He alleged in the application that the votes had been wrongly counted by the Returning Officer. While the total votes, according to the counting in the election for the office of Sarpanch, were found to be 1128, the votes actually issued and found on counting for the offices of Panches were 1098 only According to him, the differences of these 30 votes showed prima facie that the counting was not proper. Besides this, he made allegations that he and his representative objected to the manner of counting but such objections were rejected by the Returning Officer. The Prescribed Authority, Respondent No. 2, vide order dated 2 -1 -1984 allowed his application and directed recounting of votes. Respondent No. 3 being aggrieved against this order Annexure P. 1, filed C.W.P No 151 of 1984 in this Court which was, however, dismissed in limine by a Division Bench vide order dated 9 -1 1984 Annexure P. 2.
(2.) AS a result of recount, the Prescribed Authority found that Respondent No. 3 had secured 563 votes instead of 571 votes and the Petitioner had secured 565 votes instead of 557 votes The election of Respondent No 3 was consequently set aside and the Petitioner was declared elected by a margin of 2 votes by an order dated 18 -1 -1984, (Annexure P. 3) passed by Respondent No. 2. Respondent No 3 preferred an appeal under Section 13 -V of the Punjab Gram Panchayat Act, 1952 (hereinafter called 'the Act'). The grounds of appeal are contained in Annexure P. 4 This appeal was allowed by the learned Additional District Judge, Sangrur, Respondent No. 1, vide judgment dated 25 -1 -198; Annexure P. 5. He, inter -alia, held as under: - As required by the Supreme Court authorities reported in : AIR. 1964 SC 1249, : AIR 1970 SC 276 and : AIR 1975 SC 2117, the Prescribed Authority nowhere recorded his prima facie satisfaction that the inspection of the ballot papers and their recount was necessary for deciding the election dispute and doing complete justice between the parties. This Court in view of the combined and cumulative effect of what has been discussed and held hereinbefore is unable to uphold the order dated 18 -1 -1984 which is hereby set aside. Since the election petition filed by Ajmer Singh Respondent No. 1 has not been decided on merits on the allegations in his petition, the case is remitted to the Prescribed Authority (Executive Magistrate), Sunam, for deciding the election petition on merits after affording reasonable opportunity to the parties to lead such evidence as they would like to adduce . The Petitioner has challenged the judgment Annexure P. 5 of the learned Additional District Judge, Sangrur, through the present writ petition.
(3.) MR Ashok Bhan, learned Senior Advocate, appearing for the Petitioner, has contended that the judgment Annexure P. 5 adjudicates upon the order dated 2 -1 -1 -1984 Annexure P. 1 for recount of the votes passed by Respondent No 2 and holds that the said order was not valid in law. According to him, the order Annexure P 1 was challenged in this Court through CWP No. 151 of 1984, which was dismissed. He asserts that in view of the order Annexure P. 2 of this Court dismissing the writ petition of Respondent No. 3, the learned Additional District Judge as the Appellate Authority had no jurisdiction to go into the legality or otherwise of the order dated 2 -1 -1984 Annexure P. 1 of the Prescribed Authority. According to him, the following consequences flow from the order Annexure P. 2 of the Division Bench of this Court dismissing the writ petition of Respondent No 3: - (i) The order dated 9 1 1984 Annexure P. 2 of the Division Bench of this Court dismissing the writ petition of Respondent No. 3 challenging the order of recount dated 2 -1 -1984 Annexure P. 1 operates as res judicata Therefore, it could not be made subject matter of appeal before Respondent No. 1. (ii) The order of recount dated 2 -1 -1984 Annexure P.1. has merged in the order of the Division Bench of this Court dated 9 -1 -1984 Annexure P. 2. Respondent No. 1. at the Appellate Authority under the statute, therefore, could not sit on the judgment of this Court and under the grab of adjudicating upon the order of the Prescribed Authority Annexure P.1. could not set at naught the order of the Division Bench of this Court Annexure P.(sic) On going through the petition, the different orders as also the written statement. I find that on merits the only matter which shall require to be considered is whether Respondent No. 2 could order recount of votes as he did vide his order dated 2.1.1984 Annexure P. 1 in view of a catena of judgments of the Supreme Court, some of which have been relied upon by the Appellate Authority Respondent No. 1, I, therefore, deem it fit to decide whether the Appellate Authority could go into the legality or otherwise of the order of recount dated 2.1.1984 Annexure P. 1. keeping in view the law points raised by the learned Counsel for the Petitioner.;