PANWAR, J. - (1.) THESE appeals are directed against order of the learned Single Judge dated 27. 09. 2002 passed in Smt. Bhanwari vs. Smt. Madhu and Ors. Singh both these appeals arise out of one and the same order involving common question of law and facts, they are being disposed of together by this common judgment.
(2.) FACTS giving rise to both the appeals succinctly are that election for the post of Sarpanch of Gram Panchayat Dhabhar, Panchayat Samiti, Rohat, District Pali was held on 31. 01. 2000. Smt. Bhanwari (for short `returned candidate'); appellant in D. B. Civil Special Appeal (Writ) No. 687/2002, Smt. Madhu (for short `election petitioner') and respondent Smt. Tara contested the election for the post of Sarpanch. After completion of counting of the votes secured by respective contestants, it was revealed that the returned candidate secured 651 valid votes while the election petitioner and respondent Tara secured 650 and 449 votes respectively. Since returned candidate secured highest number of valid votes, the Returning Officer declared her duly elected for the post of Sarpanch. Election petitioner filed an election petition before the District Judge, Pali (for short, "the Election Tribunal") challenging the election of returned candidate claiming relief, inter alia, that the election of the returned candidate for the post of Sarpanch, Gram Panchayat, Dhabhar be declared void, recounting of votes be ordered and election petitioner be declared as duly elected Sarpanch. It was mainly averred in the election petition that the valid votes secured by election petition that the valid votes secured by election petitioner during the course of counting, were declared invalid by the Returning Officer; invalid votes were added to the pockets of the returned candidate and counted; and blank ballet paper was affixed with the symbol of returned candidate and counted in her favour. These irregularities were alleged during the course of counting and on these allegations, the election of returned candidate was sought to be quashed being void and it was prayed that re-counting of the votes be done and election petitioner be declared the returned candidate. Reply to the election petition was filed by the returned candidate specifically denying the allegations and averments made in the election petition and it was asserted that on correct counting of the votes, returned candidate secured 651 valid votes and having polled highest number of votes, she has rightly been declared as duly elected Sarpanch. Respondent Tara, who secured such less votes did not choose to contest the election petition. Before the Election Tribunal, the election petitioner appeared as applicant witness No. 1 and produced AW. 2 Hanuman Singh, an election agent of respondent Tara. The returned candidate herself appeared as NAW-1 and produced Mohan Lal, her election agent as, NAW2. After recording evidence of the respective parties as noticed above, the Election Tribunal, by exercising powers under section 151 of the Code of Civil Procedure, 1908 (for short, "the Code") by order dated 1. 06. 2002, ordered for inspection and recounting of votes secured by respective parties in the Chambers of the Election Tribunal in the presence of the parties. The parties were informed of the said order and the matter was posted for recounting of votes on 8. 07. 2002. At the request of one of the parties, the matter was adjourned to 10. 07. 2002. The recounting of the votes took place in the Chambers of Election Tribunal in the presence of counsel for the parties between 2. 15 P. M. to 4. 30 P. M. on 10- 7-2002. Fifteen packets of the votes secured by election petitioner were counted, which contained 650 votes and out of these 650 votes, six votes were found to be doubtful and, therefore, those six doubtful votes were kept in a sealed packet. The votes secured by the returned candidate, kept in 14 packets, were counted, which contained 651 votes and out of these 651 votes, 8 votes were found to be doubtful and, therefore, 8 votes alleged to be doubtful were kept in a separate sealed packet. 32 votes rejected by the returning officer were also checked and the Election Tribunal came to the conclusion that the Returning Officer has rightly rejected those 32 votes as being invalid votes. For rejection of those 32 votes, none of the parties raised any objection and rightly so because the invalidation and rejection was in accordance with law. Respondent Tara, in 10 packets, secured 449 votes and for validity of those 449 votes, none of the parties raised any objection and as such they were kept in the sealed packets. By the order dated 1. 08. 2002, the Election Tribunal decided the election petition filed by the election petitioner. The validity of 8 doubtful votes secured by the returned candidate was examined by the Election Tribunal in para 16 of its order. Out of 8 doubtful votes, 6 votes were found to be valid and counted in favour of the returned candidate. However, two ballet papers bearing No. 689975 and 690335 were found to be invalid and the same were rejected by the Election Tribunal. Thus, total votes secured by returned candidate were reduced from 651 to 649.
(3.) WHILE re-counting the votes, the Election Tribunal found six doubtful votes out of 650 votes secured by election petitioner Smt. Madhu. However, those six doubtful votes were not examined by the Election Tribunal on the ground that the returned candidate has not filed recrimination as envisaged under section 97 of the Representation of People Act, 1951 (hereinafter referred to as "the R. P. Act, 1951") and declared the election of the returned candidate as void and consequently election petitioner was declared as the returned candidate for the post of Sarpanch, Gram Panchayat, Dhabhar, vide order dated 1. 08. 2002. Returned candidate Smt. Bhanwari challenged the order of Election Tribunal dated 1. 08. 2002 by way of writ petition before this Court being S. B. Civil Writ Petition No. 2752/2002. The learned Single Judge, by order impugned dated 27. 09. 2002, set aside the order Annexure-9 passed by Election Tribunal and the writ petition filed by returned candidate Smt. Bhanwari was allowed. The order of the Election Tribunal declaring election petitioner Smt. Madhu as duly elected Sarpanch was set aside and the matter was remanded to the Election Tribunal with a direction to make a fresh decision on the point of election to the post of Sarpanch, Gram Panchayat, Dhabhar, Panchayat Samiti, Rohat, District Pali in respect of petitioner (returned candidate) Smt. Bhanwari and respondent (election petitioner) Smt. Madhu after taking into consideration 6 doubtful votes pertaining to election petitioner respondent Madhu as found by him in the order dated 10. 07. 2002 Annexure-8 and both the parties were directed to appear before the Election Tribunal on 10. 10. 2002. However, the request for setting aside the order dated 1. 06. 2002 Annexure-7, by which the Election Tribunal directed inspection and recounting of the votes, was rejected. Obviously, for reason that the order dated 1. 06. 2002 Annexure-7, directing inspection and recounting of the votes, was challenged by the returned candidate before the learned Single Judge by filing writ petition (S. B. Civil Writ Petition No. 2112/2002), which was withdrawn by returned candidate and as such it was dismissed as withdrawn without liberty to file fresh petition. Both the contesting parties, aggrieved by the order of the learned Single Judge dated 27. 09. 2002, filed these two appeals. We have heard learned counsel for the parties, perused the order impugned as also the order of Election Tribunal and the relevant documents annexed with the writ petition and the reply thereto. ;