R.R.YADAV,J. - (1.) THE petitioner by filing the present writ petition questions the order impugned dated 20.7.96, anx. 1 to the writ petition, passed by learned Civil Judge (Sr. Division), Raisinghnagar, District Sriganganagar directing recounting of votes in an election petition filed by respondent No. 1 Subhash against him on the sole ground that the order impugned has been passed by the learned Election Tribunal against the mandatory provisions of estoppel as envisaged under Sub -rule (6) and under Sub -rule (7) of Rule 49 read with Rule 51 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (in short 'the Rules of 1994') framed by the State Government in exercise of its power under Section 102 read with Section 17(5) of the Rajasthan Panchayati Raj Act, 1994 (in short 'the Act of 1994').
(2.) THE brief facts leading upto filing of the present writ petition are that the election for the office of Pradhan of Panchayat Samiti Raisinghnagar, Ward No. 9, took place on 20.1.95 and counting commenced on 22.1.95. In counting, Subhash, respondent No. 1, obtained 1225 votes, Mangilal, petitioner obtained 1220 votes, Surjeet Raj obtained 13 votes and Mewa Singh obtained 17 votes. It is alleged that at the instance of petitioner Mangilal, Returning Officer ordered recounting of ballot papers of Subhash and Mangilal. After recounting of votes it was found by the Returning Officer that both, the petitioner and the respondent No. 1, polled equal number of votes i.e. 1218 votes each. When it was found by the Returning Officer that there is equality of votes in favour of Subhash and Mangilal, he decided to declare the result for office of Pradhan by drawing lot. Destiny smiled on Mangilal petitioner and he was declared elected Pradhan of Panchayat Samiti Raisinghnagar of Ward No. 9 by Returning Officer by drawing lot in the manner which he thought proper.
(3.) AGGRIEVED against declaration of the result for the office of Pradhan of Panchayat Samiti Raisinghnagar of Ward No. 9 by the Returning Officer by drawing of lot, respondent No. 1 Subhash filed an election petition under Section 43 of the Act of 1994 read with Rule 80 of the Rules of 1994 on the ground inter -alia that he received majority of valid votes in comparison to Mangilal but by taking recourse of recounting by the Returning Officer, his seven valid votes were illegally and wrongly rejected while two votes of Mangilal were reduced in order to give a true colour to recounting.;