M. C. JAIN, J. - (1.) IN the above two writ petitions a common preliminary objection as to the maintainability of the writ petitions has been raised, so I propose to dispose of that objection by this order.
(2.) BY these writ petitions, the elections of Pradhans of Panchayat Samitis have been challenged and it is prayed that the respondent No. 2 in both the writ petitions namely; Narendrasingh in Civil Writ Petition No. 7 of 1982 and Tej Singh in (Civil Writ Petition No. 80 of 1982 may be declared elected as Pradhan of Panchayat Samiti, Bali and Balotra respectively and the elections of respondent No. 1 namely; Raghunath Parihar in he first writ petition and Narpatkaran in the second writ petition may be declared invalid. I may briefly advert to the material facts of the first writ petition. The petitioner in that petition was elected as a Panch from Ward No. 5 of Gram Panchayat, Boya Tehsil Bali. The elections, whereof, were held on December 10,1981. The petitioner was a voter for the office of Pradhan of Panchayat Samiti as Gram Panchayat, Boya, Tehsil Bali was its constituent. The' election for Panchas and Sarpanch were held simultaneously. Shri Arjun Singh, respondent No. 3 came to be elected as Sarpanch of Ward No 7 of village Panchayat Beda. Being a Sarpanch, he is a member of the Panchayat Samiti, Bali. The election for the office of Pradhan, Panchayat Samiti, Bali was held on December 26, 1981. Shri Narendra Singh respondent No. 2, Sarpanch of Gram Panchayat, Bijapur was one of the candidates and the other candidate was the respondent No. 1 Raghunath Parihar. He was neither a Panch nor a Sarpanch of any Gram Panchayat. In all 440 votes were cast, out of which one was declared illegal. Shri Raghunath Parihar (respondent No. 1) secured 220 votes, whereas, Shri Narendrasingh (respondent No. 2) secured 219 votes. Consequently, Shri Raghunath Parihar was declared elected. The petitioner's case in that writ petition is that the name of third respondent Shri Arjunsingh was shown in the electoral roll, published in Form No V as per rule 16 of the Rajasthan Panchayat Samitis and Zila Parishads (Election of Pradhan and Pramukh) Rules, 1979 (for short 'the Rules' ). Shri Arjunsingh chose to cast his vote twice over purporting to have done so, once as a Sarpanch and then as a Panch. He being a Supporter of Congress (1) and Shri Raghunath Parihar being a candidate of Congress (I), the two votes cast by Shri Arjunsingh must have gone to Shri Raghunath Parihar. When Shri Arjunsingh was called upon to cast his vote for second time, a protest was raised by the second respondent Shri Narendrasingh by an application made in this behalf but the Returning Officer rejected the same on the ground that Shri Arjunsingh is entitled to vote twice over as his name is placed in the electoral roll at two places; at one place as a Panch and at another place as Sarpanch of Gram Panchayat, Beda. The ground of challenge is that Shri Arjunsingh under the scheme of the Rules and the Act cannot hold office both of Panch and Sarpanch simultaneously and so, he was not entitled to cast votes twice and thus, the votes cast by him have been rendered void and so Shri Raghunath Parihar cannot but be deemed to have secured 218 as against 219 votes secured by the second respondent under the Rajasthan Panchayat Act, a Panch is elected from a ward whereas the Sarpanch is elected by the entire electorate of the Gram Panchayat and on being elected as Sarpanch, he ceases to be a Panch unless he chooses to demit the office of Sarpanch. Simultaneously he cannot hold two offices of a Panch and a Sarpanch. The petitioner has challenged the election in his capacity as elector for the office of Pradhan and in the capacity of a tax-payer and a resident of the area falling within the jurisdiction of the Panchayat Samiti, so is deeply interested in the proper constitution of Panchayat Samiti and as such, he has a right to challenged the election of the first respondent. The petitioner averred that he cannot prefer an election petition as terms of Section 13 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (herein after referred to as 'the Act') it is only a member of the Panchayat Samiti, who can file an election petition, which the petitioner is not. Thus, there is no alternative remedy available to the petitioner. In the second writ petition, the petitioner was elected as a Panch from Ward No. 4 of Gram Panchayat, Parlu, a constituent of Panchayat Samiti, Balotra and as such, the petitioner was a voter for the office of Pradhan. Shri Prahladram (respondent No. 2) came to be elected as Sarpanch and Panch from Ward No 2 of Gram Panchayat, Kalewa. On being elected to two offices, he submitted his resignation on December 24, 1981. which was accepted on the same day and was duly notified by the Deputy District Development Officer, Barmer vide Annexure 1 The election of Pradhan was held on December 30, 1981. In all 411 votes were cast out of which 3 votes were rejected. Of the remaining 408 votes, Shri Narpatkaran first respondent secured 205 votes, whereas, Tejsingh second respondent secured 203 votes In the electoral roll, the name of Shri Prahladram appears twice, although he had resigned from the post of Panch In a small electoral roll, the inclusion of even one name readers the electoral roll fundamentally defective. According to the petitioner, Shri Prahladram being the supporter of first respondent, he must have cast his votes for the first respondent, regarding which, an objection was preferred by Shri Tejsingh (respondent No. 2) but the Returning Officer passed no order and if both the votes are excluded, then the respondent No 1 and the respondent No. 2 will secure aqual votes. It was urged that a vote in the name of one Shri Nenuram was cast by somebody else. When Shri Nenuram later on appeared and sought to exercise his vote, the vote cast by Shri Nenuram was taken as tendered vote and was not accepted in the counting of the votes. Nenuram has cast his vote in favour of the second respondent. In respect of this tendered vote, the petitioner took the ground that the tendered vote is required to be counted amongst the votes validly cast and that vote should be excluded, which was cast in the name of Shri Nenuram by somebody else If, two votes of Shri Prahlad Ram are excluded and if the tendered vote is counted in favour of the respondent No. 2, then he has to be declared elected and respondent No. 1 is clearly an usurer of the office of Pradhan. The writ petition has been presented in the same capacity like the petitioner in the first writ petition. Reply to the show cause notice of the writ petition has been filed, in which, an objection has been raised that the election of the Pradhan can be challenged only under the provisions of the Act and under the provisions of the Rajasthan Panchayat Samitis and Zila Parishads (Election Petition) Rules, 1959 (hereinafter referred to as 'the Election Petition Rules' ). The election of a Pradhan can be challenged only by way of an election petition. The writ petition is wholly mis-conceived. The remedy of challenging election is not a common law right but it is a right given by a Statute and can be exercised according to the mode provided under the Statute itself and by the persons to whom the right has been given. There being an alternative remedy, so the writ petition is not maintainable. It was alleged that the election petition has already been filed in both the cases by the defeated candidates i. e. respondent No. 2 and an allegation has also been made that both the writ petitions have been got filed at the instance of the defeated candidates. A plea of disputed question of fact has also been raised and it has not been admitted that the respondents Shri Arjunsingh and Shri Prahladram had cast votes twice over.
(3.) IN both the writ petitions, rejoinders to the replies of the first respondent have been filed. It was reiterated that the petitioner in his various capacities has a right to maintain the writ petition and as regards the disputed question of fact, it was alleged that no investigation is required to be made except to look into the documents and the ballot-papers and this Court may call for the record and make scrutiny thereof. It was alleged that the filling of the election petition by the defeated candidates would not came in the way of the petitioner in maintaining the writ petition. IN rejoinder, the allegation regarding filling of the writ petitions at the instance of the defeated candidates was not controverted. Even when, the writ petitions were heard, that allegation was not controverted. But, after the hearing was over, additional affidavits were filed by the petitioners controverting that allegation. I have heard Mr. Mridul, learned counsel for the petitioners and Mr. H. M. Parekh, learned counsel for successful candidates (respondent No. 1) in both the writ petitions. Mr. Parekh raised the preliminary objection with all emphasis at his command that the writ petitions are not maintainable, as the elections can only be challenged by way of an election petition in the manner provided under the Act and under the Election Petition Rules. Numerous authorities of this Court and of the Supreme Court have been cited by him in support of his above contention. The question has been hotly contested by the learned counsel for the parties. Mr. Mridul too, countered the argument with equal vehemence, placing reliance on various decisions and distinguishing the cases, cited by Mr. Parekh in support of his contention. I shall be referring to the catena of decisions cited by both the learned counsel for the parties. But before that, it is necessary to refer to the relevant provisions of the Act and the Election Petition Rules. Section 13 of the Act reads as under: - "sec. 13 - Dispute as to election under section 12- (1) The election of a Pradhan or Up-Pradhan of a Panchayat Samiti may be called in question by any member thereof by presenting in the prescribed manner to the Judge, a petition in this behalf on the prescribed grounds and within the prescribed period. (2) A petition presented under sub-section (1) shall be heard and disposed of in the prescribed manner and the decision of the Judge thereon shall be final. " Rule 3 of the Election Petition Rules is as under: - "r. 3 - Grounds on which election may be called in question - The election of Pradhan, Up-Pradhan, Pramukh or Up Pramukh may be questioned by any member of the Panchayat Samiti or the Zila Parishad, as the case may be, by an election petition on one or more of the following grounds, namels: - (a) that such person had committed during or in respect of the election proceedings a corrupt practice as specified in rule 4; (b) that such person was declared to be elected by reason of the improper rejection or admission of any nomination or for any other reason was not duly elected by a majority of lawful votes; or (c) that such person was disqualified for election as Pradhan, Up-Pradhan, Pramukh or Up-Pramukh, as the case may be, under the provisions of the Act. (d) that the result of the election in so far it concerns returned candidate, has been materially affected- (i) by the improper reception, refusal or rejection of any vote or the reception of any vote, which is void, or (ii) by any non-compliance with the provisions of the Act or any rules made thereunder. " It would appear from the provisions of Section 13 of the Act that a member of the Panchayat Samiti alone has a rights to call in question, the election of a Pradhan or Up-Pradhan of a Panchayat Samiti and that can be called in question by presenting the petition in the prescribed manner, on the prescribed grounds and within the prescribed period. The grounds on which the election can de-challenged, find mention in rule 3 of the Election Petition Rules. One of the grounds of challenged is provided in Clause (d) of rule 3 of the Rules. That ground is that the result of the election, in so far it concerns the returned candidate, has been materially affected:- (i) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or (ii) by any non-compliance with the provisions of the Act or any rules made thereunder. It is not in dispute that the grounds, on which, the election has been challenged in the present writ petitions can be agitated in an election petition But the petitioners' case is that as they are not the member of the Panchayat Samitis, so they have no right to call in question, the election of Pradhan under Sec. 13 of the Act or under rule 3 of the Election Petition Rules. So, they have no alternative remedy by way of an election petition. The petitioner being voters for the office of Pradhan and being tax-payers and residents of the area of Panchayat Samitis and as such, they are very much interested in the proper constitution of the Panchayat Samitis and they have a further right to challenge the usurpation of office by the respondent No. 1 by seeking issuance of writ of quo-warranto. ;