M.C.Jain, J. - (1.) The petitioner and the respondents Nos. 1 to 4 contested the election of Sardar Shahar Assembly Constituency No. 19 of the Rajasthan Legislative Assembly. The polling took place on 28-5-1980 and the result was declared on 1-6-1980 in which respondent No. 1 Mohanlal was declared elected. The petitioner secured 21,428 votes and the respondent No. 1 secured 21,662 votes. Respondents Nos. 2, 3 and 4 secured 18,951, 888 and 1,180 votes, respectively. The petitioner has challenged the election of respondent No, 1 on number of grounds and prayed for scrutiny and recount of the entire ballot papers on the grounds stated in the election petition and further prayed for declaring the election of respondent No. 1 as void and for declaring himself as elected.
(2.) Reply to the election petition has been submitted by respondents Nos. 1, 3 and 4.
(3.) On the pleadings of the parties issues were framed. Issues Nos. 18 and 20 were heard as preliminary issues, which are as under :- "(18) Whether the recount of votes was illegal and without jurisdiction for the reasons stated in sub-paras (iii) and (vi) of para 7 of the Election Petition, if so to what effect? (20) Whether the allegations mentioned in sub-para (x) of para 4 are vague and tack in material facts and particulars in so far as the purpose for which the leaders of Naik Community are said to have collected and the purpose for which the alleged promise and payment have been made, if so to what effect?" My findings thereon are as under:--ISSUE NO. 18: In sub-paras (iii) and (vi) of the election petition, the petitioner has averred that when the counting was completed, the petitioner made an application for recount, on which the Returning Officer passed an order for recount on the ground that there were illegalities and irregularities. A big protest was made as a result of which the Returning Officer was forced to order recount. The Returning Officer ordered recount only of votes cast at 10% of the total booths and he arbitrarily selected the booths and made that recounting a farce. As a result of the recounting six votes in favour of respondent No. 1 were increased. Recounting of votes cast at 10% of total booths was wholly illegal and without jurisdiction and the Returning Officer could not choose the booths arbitrarily of his choice. He ought to have ordered a recount of votes cast at all the booths. In sub- para (vi) of para 7 the petitioner averred that the postal ballot papers were not counted at the time of recounting, so on this aspect also the recount was wholly illegal.;