A. K. MATHUR, J. - (1.) THE petitioner by this writ petition has challenged the order (Annex. 3) dated 3. 12. 1990 passed by the Munsif, Sri Karanpur District Sri Ganganagar.
(2.) THE brief facts, which are necessary for the convenient disposal of this writ petition are that the petitioner contested the election of Sarpanch, Gram Panchayat, Naggi, Tehsil Sri Karanpur and he was declared successful. Respondent No. 1 was a defeated candidate and after the election, he filed an election petition before the Munsif, Sri Karanpur on various grounds. One of the grounds was that there were irregularities in the counting. That petition is pending. However, during the pendency of the election petition the respondent No. 1 moved an application for recount of the votes. Copy of this application has been placed on the record as Annex. 2. THE learned Magistrate after hearing both the parties passed an order of recount and aggrieved against this order of recount dated 3. 12. 1990 the petitioner has filed the present writ petition challenging the same. The principal submission of the learned counsel is that an election petition has to stand or fall on the nature of the averments made by the petitioner in his election petition and recount cannot be ordered on the basis of the election's result. Learned counsel submitted that the necessary material particulars have not been given in the application warranting the order by the learned Munsif for recounting of votes. In support of this submission learned counsel has invited my attention to N. C. Zeliang vs. Aju Newmai (1), and Laxmi Narayan Nayak vs. Ramratan Chaturvedi A reply has been filed by the respondent and it has been pointed out that when the recount was done both of the candidates secured 800 votes each and three votes were found missing and the result was declared by the Returning officer by counting three votes in favour of the petitioner, whereas three votes should have been counted in favour of the respondent. It is submitted in the alternative that when these votes were found missing then the result should have been declared by way of toss. It is submitted that the averments mentioned in the petition and the reply filed by the respondent and the statement made by the petition during the election petition substantially support the case of the respondent. Therefore, the learned Munsif has rightly ordered for recount of the votes. In this connection, Mr. Garg, learned counsel for the respondent has made a distinction between the corrupt practices and material irregularity committed in the conduct of the election. Learned counsel has invited my attention to Rule 78 (d) (iii) of the Rajasthan Panchayat and Nyaya Up-Samiti Election Rules, 1960 (hereinafter referred to as 'the Rules of 1960 ). ' He has also invited my attention to decision of the Hon'ble Supreme Court in case of N. E. Horo. vs. Leander Tiru In order to appreciate the controversy raised by both the learned counsel, it is necessary to refer to the relevant portion of Rule 78 of the Rules of 1960. Rule 78 (d), which is relevant for our present purpose, reads as under:- " (b) that the result of the election or co-option, as the case may be, in so far as it concerns the returned candidate was materially affected: (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interest of the candidate by a person other than that candidate or by a person acting with the consent or connivance of such candidate, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which was void, or (iv) by any non-compliance with the provisions of the Act or of these rules, or. " Rule 78 lays down the manner of challenging an election. Clauses (a), (b) and (c) deal with the separate situations like that on the date of election a candidate was not qualified or became disqualified for such election; that corrupt practice was committed by a candidate or with his consent or connivance by any other person; and that any nomination was improperly rejected. But clause (d), which is relevant for our present purpose, says that the result of the election can be set aside if it is materially affected by improper acceptance of any nomination paper or on account of any corrupt practice committed in the interest of the candidate by a person other than that candidate or by a person acting with the consent or connivance of such candidate or by improper reception, refusal or rejection of any vote or the reception of any vote which was void or by non-compliance of any of the provisions of the Act or the Rules.
(3.) SO far as the present controversy is concerned, I have to see as to whether the result of the election is materially affected by improper reception, refusal or rejection of the votes or not. Now, in the present case, it has been submitted by the election petitioner respondent No. 1 in para (7) of the election petition (Annex. 1) that :- *********** Thereafter, the evidence was led by the petitioner and he examined himself as A, W. 5 in opposition of the election petition and in the cross-examination, he admitted the substantial portion of the election petition which reads as under:- *********** ;