JAGAT NARAYAN, J. - (1.) THIS is a petition under Art. 226 of the Constitution by one Amar Singh whose election to the office of Sarpanch of Beru Panchayat was set aside by the Munsif, Jodhpur District, acting as a Tribunal under rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960. The petition has been contested on behalf of Radha Kishan.
(2.) THE election took place on 9. 1. 95. It was contested by Amar Singh petitioner and Radha Kishan respondent No. 2. According to the counting made by the Returning Officer Amar Singh obtained 514 valid votes and Radha Kishan got 511 of them. Amar Singh was declared as dulv elected as Sarpanch. Against his election two election petitions were filed, one by Radha Kishan and another by Khinyaram. Both of them were consolidated and were allowed. Radha Kishan was held to have obtained a majority of valid votes and was declared as duly elected by the Tribunal. Against this decision the present writ petition has been filed by Amar Singh. The first contention on behalf of the petitioner is that the Tribunal erred in re-counting the votes as no case for re-counting was made out and so its decision should be quashed. I am unable to accept this contention. In the election petition it was specifically stated that the Returning Officer wrongly accepted 14 ballot papers in favour of Amar Singh and wrongly rejected 25 ballot papers which had been marked for Radha Kishan. The contention on behalf of the petitioner is that this allegation made by the election petitioner was vague. In my opinion this is not a vague allegation, but is a specific allegation, which fulfils the requirement of rule 80 (1) which lays down that the petition shall contain a concise statement of the material facts on which the petitioner relies. As was held in Ram Rikh vs. The Munsif Dausa (S. B. Civil Writ Petition No. 524/1965, decided on February 10, 1966) the Tribunal may be prima facie satisfied on the averments made in the election petition that a case for re-count was made out. As a result of re-counting it was found by the Tribunal that 9 ballot papers counted for Amar Singh were wrongly accepted and 17 ballot papers marked for Radha Kishan were wrongly rejected by the Returning Officer. Moreover the difference in the votes polled by the two rival candidates was only three. In Bhim Sen vs. Gopali (l) in a petition to set aside the election of a candidate for the reserved seat in a double member constituency it was alleged inter alia that being a double member constituency it was incumbent upon the Returning Officer to go into each case of double voting in order to reject one of the two votes cast in contravention of sec. 63 (1) of the Representation of the People Act and that the Returning Officer having failed to discharge his duty of rejecting ballot papers in contravention of sec. 63, the petitioner "believes" that the respondents "could" receive many void votes. When the ballot box was oped it was found that 37 void votes had been counted in favour of respondent No. 1. It was held that in a case like this definite particulars about the number and nature of void votes that had been counted could only be supplied after inspection of the ballot papers; the election petition as originally presented must therefore be regarded as having given the material particulars. The conditions prevailing in a Panchayat election are different from those prevailing in a parliamentary election. In the latter the candidates are generally literate and are assisted by a number of agents most of whom are lawyers. In a parliamentary or assembly election therefore the election petitioner is in the position of giving much better particulars than in a Panchayat election. At the counting of votes in a Panchayat election only the candidate is allowed to be present vide rule 38 (3 ). Candidates for the office of Sarpanch possess the qualification of being barely literate in Hindi. They are not in a position to note down the serial number of any ballot paper, which has been wrongly accepted or wrongly rejected for the simple reason that these serial numbers are printed in English figures. The candidates for the office of Panch are mostly illiterate. If the Tribunal is satisfied on the basis of material before it that a prima facie case for re-count is made out, then this Court cannot interfere in the exercise of its writ jurisdiction with the decision of the Tribunal to re-count the votes. The particulars which can be furnished by an election petitioner with regard to the improper acceptance or rejection of votes naturally depend on the facts and circumstances of a particular case. The Tribunal has jurisdiction to inspect the ballot papers in view of the provision contained in rule 78 (d) (i ). This is further made clear by rule 42 (2 ). Under order 16, rule 6 C. P. C. the Tribunal can order the production of the ballot papers by the authority having custody of them. In disposing of an election petition the Tribunal is clothed with the powers of the civil court by virtue of rule 84. It is noteworthy that when the Tribunal proceeded to open the bundles containing the ballot papers no objection was taken on behalf of Amar Singh to the re-counting of votes. In view of this conduct it is hardly open to Amar Singh to raise an objection before this Court that the Tribunal should not have re-counted them. In the present case the particulars given in the election petition with regard to the improper acceptance and improper rejection of ballot papers were quite precise. Even in a case where such particulars are vague it is open to the election petitioner to furnish better particulars in his application praying for inspection of ballot papers. If an objection is not raised by the respondent to an election petition before the Tribunal then the election petitioner is placed at a disadvantage inasmuch as he has no opportunity of furnishing better particulars even where he is able to do so. In Purnaram vs. Chaturbhuj and another (S. B. Civil Writ Petition No. 358 of 1965, decided on 29. 9. 65) re-count was claimed in the election petition. An objection was taken in the written statement that sufficient particulars had not been furnished and the election petitioner was not entitled to a re-count. At the time of re-counting however no objection was taken on behalf of any party to the inspection of the ballot papers by the Tribunal. It was held that the petitioner having failed to take any objection to the re-counting of votes before the Tribunal he could not take any objection in the writ petition about it. I accordingly hold that the allegations made in the election petition with regard to the improper acceptance or rejection of ballot papers were not vague and that there was material before the Tribunal on the basis of which it could be prima facie satisfied that a case for re-count was made out. Further I hold that as the present petitioner raised no objection before the Tribunal to the re-count of the ballot papers at the time of re-counting he cannot be allowed to raise an objection about it in the writ petition. The next contention on behalf of the petitioner is that the Tribunal committed errors apparent on the face in scrutinising the ballot paper. All the ballot papers were scrutinised by the learned counsel for the parties and the following ballot papers are disputed : - Booth No. I A. Ballot papers counted for Amar Singh - 30 B. Ballot papers counted for Radha Kishan - 11 Booth No. II C. Ballot papers counted for Amar Singh - 63 D. Ballot papers counted for Radha Kishan - 102 I have scrutinised these ballot papers in the presence of the learned counsel for the parties and the result is as follows : - A. Twentynine of these are valid votes for Amar Singh. Some of these ballot papers have been marked with the wooden end of the seal and some bear blurred thumb-marks, but the intention of the voter to vote for Amer Singh is clear in each case. Ballot paper No. 037708 has been marked for Radha Kishan with the wooden part of the seal. There is a slight red mark in Amar Singh's compartment caused by the handling of the paper, which is of no consequence. This paper is therefore a valid vote for Radha Kishan. B. All these 11 ballot papers are valid votes for Radha Kishan. Some of them have been marked with the wooden part of the seal and some bear blurred thumb-marks, but the intention of the voter to vote for Radha Kishan is clear in each case. C. Sixty-two of these are valid votes for Amar Singh. Some bear marks of the wooden part of the seal and some bear blurred thumb-marks, but the intention of the voter to vote for Amar Singh is clear. Ballot paper No. 037794 bears two seal marks in the compartment of Amar Singh, but at the same time it bears a mark caused by the wooden part of seal in the compartment of Radha Kishan. This ballot paper is void for uncertainty. D. Ballot paper No. 037957. It bears two marks of seal. One mark is inside the compartment of Radha Kishan. The other mark is an impression of this seal mark caused by the folding of the ballot paper when it was wet and is to be ignored. Ballot paper No. 037434. This bears one seal mark in the compartment of Radha Kishan. There is another seal mark, the inter-section of which is on the upper line of Amar Singh's compartment. This ballot paper is void for uncertainty. Ballot paper No. 039799. There is a seal mark caused by the wooden part of the seal in Radha Kishan's compartment. There is another mark caused by wooden part of the seal in Amar Singh's compartment. This ballot paper is also void for uncertainty. Ballot paper No. 038030. There is a seal mark in Amar Singh's compartment. By folding the paper when it was wet an impression of it was caused in Radha Kishan's compartment. This is a valid vote for Amar Singh. Ballot paper No. 037942. This bears a mark caused by the wooden end of the seal in Radha Kishan's compartment and another mark caused by the wooden end in Amar Singh's compartment. This ballot paper is void for uncertainty. Ballot paper No. 038228. This bears a mark in Radha Kishan's compartment, which has been caused by the wooden end of the seal. It is a valid vote for Radha Kishan. Ballot paper No. 037677. This bears a seal mark part of which is in Radha Kishan's compartment, but the inter-section being outside his compartment, it is a valid vote for Radha Kishan. Ballot paper No. 037757. There is a mark in Radha Kishan's compartment and a mark in Amar Singh's compartment. One is a impression of the other. But it cannot be said which out of the two is the original mark. This vote is therefore void for uncertainty. Ballot paper No. 038007. There are two marks, one of which is the impression of other. By looking at the back of the ballot paper it is clear that the mark in Radha Kishan's compartment is the original mark as the mark of seal is visible on the back side. It is therefore a valid vote for Radha Kishan. Ballot paper No. 037981. 1 his bears marks in compartments of both the candidates. It is therefore void for uncertainty. Ballot paper No. 038081. This bears marks in both the compartments. It is void for uncertainty. Ballot paper No. 037635. This bears marks in both the compartments and is void for uncertainty. Ballot paper No. 037599. This bears marks in both the compartments and is void for uncertainty. Ballot paper No. 037507. This bears marks in both the compartments andis void for uncertainty. Ballot paper No. 037549. This bears marks in both the compartments and is void for uncertainty. Ballot paper Nos. 038550 & 037881. Both these ballot papers bear marks in both the compartments and are void for uncertainty. Ballot paper No. 037969. There is a mark of seal mark in Radha Kishan's compartment, but the inter-section being outside his compartment it is not valid vote for Radha Kishan. Ballot paper No. 037580. This bears seal marks in both the compartments. But the inter-section of the seal mark in Amar Singh's compartment is outside his compartment. It is therefore a valid vote for Radha Kishan. Ballot paper Nos. 037845 & 037925. These bear marks in both the compartments and are void for uncertainty. Ballot paper No. 038023. This bears a seal mark between the compartments of the two candidates. It is void for uncertainty. Ballot paper No. 037588. This bears seal marks in both the compartments and is void for uncertainty. The result of the scrutiny is as follows Booth No. 1. Amar Singh - 168 votes undisputed - 29 votes out of A 197 Radha Kishan - 186 votes undisputed 11 out of B 1 out of A 198 votes Boothno. II. Amar Singh - 263 votes undisputed - 62 votes out of C - 1 votes out of D 326 Radha Kishan - 250 votes undisputed 83 out of D 333 Total valid votes polled by Amar Singh - 197 + 326=523 Total valid votes polled by Radha Kishan - 198 + 333 = 531. Radha Kishan thus polled a majority of valid votes. In the result the writ petition is dismissed. In the circumstances of the case, I leave the parties to bear their own costs of this writ petition. . ;