B.R. Arora, J. - (1.) This appeal is directed against the judgment dated 22-3-96 passed by the learned single Judge, by which the learned single Judge dismissed the writ petition filed by the petitioner and maintained the orders passed by the District Judge, Jaisalmer, by which the election petition filed by Smt. Soni was partly allowed and the order of recounting of the votes was passed and after the recounting, Smt. Soni was declared as duly elected Sarpanch of Gram Panchayat, Lawa.
(2.) The facts, which gave rise to the present controversy, in nut shell, are that the election to the post of Sarpanch, Gram Panchayat, Lawa (a reserved constituency for Scheduled Tribes (woman)) was held on 3-2-95. Smt. Pepo and Smt. Soni contested this election. The result of the election was declared on the same day after counting of the votes. The total votes polled were 1063. Both the candidates got 518 votes while twenty-seven votes were declared invalid. Since there was a tie as both the candidates got the equal number of votes, therefore, the decision was taken by Draw of Lot. The result went in favour of Smt. Pepo and, therefore, after the Draw of Lot, Smt. Pepo was declared as the elected Sarpanch of Gram Panchayat, Lawa.
(3.) Smt. Soni filed an election petition under Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994, calling in question the election of Smt. Pepo on various grounds given in the election petition. The election petition was contested by Smt. Pepo - the returned candidate. Smt. Soni, in support of her case, examined herself as AW 1 and examined her two election agents AW 2 Sangi Das and AW 3 Babu Lal. The returned candidate Smt. Pepo produced herself as DW1 and examined DW2 Chiranji Lal. The learned District Judge, Jaisalmer, after trial, came to the conclusion that the Returning Officer did not act fairly while counting the votes. As the impartiality was not observed by the Returning Officer at the time of counting, the learned District Judge, vide his judgment dated 13-2-96, ordered for the recount of the votes and fixed the date for recounting as 19-2-96 and directed the parties and their Advocates to remain present on that day. The Returning Officer was, also, directed to produce the ballot papers in the Court on 16-2-96. On 19-2-96 the envelop containing twenty-seven rejected ballot-papers was not received and, therefore, the recounting was adjourned to 22-2-96. On 22-2-96, the recounting was done and after the recounting, it was found that Smt. Soni got 517 votes in her favour while Smt. Pepo got 516 votes; and thirty votes were declared as invalid. Three votes out of which two were counted in favour of Smt. Soni and one in favour of Smt. Pepo by the Returning Officer, were rejected by the learned District Judge after recounting because these three ballot-papers did not bear any mark of the seal indicating the wish of the voters. On the basis of the recount, the District Judge, therefore, in place of Smt. Pepo, declared Smt. Soni as the duly elected Sarpanch of Gram Panchayat, Lawa.;