Wanchoo,c. J. - (1.) THIS is an application by Shankerdeo Bharti for a writ of certiorari to set aside the order of the Collector of Bhilwara, by which he allowed the election petition of Shri Ghisulal against the election of the applicant as Sarpanch of the Panchayat at Asind.
(2.) THE applicant's case briefly is that an election was held at Asind on the 22nd of December, 1955. He was a candidate for the post of Sarpanch and was elected to that office in the election conducted by the Tehsildar. THEreafter, Ghisulal made an application on the 4th of January, 1956, under rule 19 of the Rajasthan Panchayat Election Rules challenging the validity of the election of the applicant. Such an application has to be made to the Collector and the Collector may either himself enquire into the petition or may forward the same to the Sub divisional Magistrate for enquiry and report. THE applicant further says that this petition was forwarded to the Sub-divisional Magistrate for enquiry and report. His main grievance is against the manner in which the Sub-divisional Magistrate conducted the enquiry. He has other grievances also, but we do not think it necessary to deal with them for purposes of this case, for we have come to the conclusion that there is force in what the applicant alleges so far as the procedure of the enquiry by the Sub-divisional Magistrate is concerned. The applicant contends that it is the duty of the Sub-divisional Magistrate, when he proceeds with such a petition received from the Collector for enquiry and report, to give a hearing and if witnesses are to be examined, to take their evidence on oath and to permit parties to cross-examine each other's witnesses so that truth might be elicited. The applicant alleges that in this case the witnesses were examined by the Sud-divisional Magistrate without administering oath to them and that the applicant was not allowed to cross-examine the witnesses. Consequently, he contends that the enquiry was not a proper enquiry and that the report of the Sub-divisional Magistrate to the Collector was not a proper report in the eye of law and the Collector had no jurisdiction to act upon it. The Panchayat Election Rules do not provide the manner in which the Sub-divisional Magistrate or the Collector will hold the enquiry. It is however, common knowledge that in all other election tribunals, the enquiry is held as a quasi-judicial enquiry at which parties are heard and evidence of witnesses is recorded on oath and there is opportunity for cross-examination of witnesses. We are of opinion that the enquiry contemplated by rule 19 of the Panchayat Election Rules is of a similar nature. The person who holds the enquiry is either the Collector or the Sub-divisional Magistrate. These two officers are entitled to administer oath. It is to our mind clear that when an enquiry of this nature has to be held, notice must be given to the parties of the date, place and time of the enquiry and the parties heard. If any party wants to produce witnesses, the witnesses have to be examined. The examination should, in our opinion, be on oath so that witnesses may tell the truth and if necessary, be prosecuted lor any perjury. The oath can be administered to them by the Collector or the Sub-divisional Magistrate who holds the enquiry. It is also obvious that if witnesses are examined, the other party must be at liberty to cross-examine them. After the evidence is over, the parties must be given some hearing before the Collector makes up his mind as to what he should decide. This is our opinion, is the minimum which is required of the Collector or the Sub-divisional Magistrate when he is making enquiry under rule 19 of the Rajasthan Panchayat Election Rules. In this case, the applicant tells us that no oath was given to the witnesses, nor was he permitted to cross examine them. There is no contradiction of this statement of fact made by the applicant. In these circumstances, we must hold that the enquiry held by the Sub-divisional Magistrate was not an enquiry contemplated by rule 19 of the Panchayat Election Rules as the witnesses examined by him were not administered oath and no cross-examination was permitted. In these circumstances the application must be allowed and a proper enquiry made on the lines indicated above. We, therefore, allow the application, set aside the order of the Collector and send the case back for proper enquiry on the lines indicated above. As the Mate has not contested the application and as Ghisulal has not appeared, we order parties to bear their own costs of this application. .;