B.J.SHETHNA,J. - (1.) PETITIONER Smt. Pura, who was declared elected Sarpanch of Gram Panchayat, 9, L.M. (B) (12), of Panchayat Samiti, Anupgarh, has filed this writ petition and challenged the order of re -counting dated 1.7.1996 (Annex.2), memo of re -count dated 26.7.1996, order dated 30.8.1996 restoring the election petition to its original number, judgment dated 4.10.1996 (Annex.4) and the proceedings of the draw of lots and declaration of result dated 4.10.1996 and the ex parte order dated 13.10.1995.
(2.) LEARNED Counsel Shri Shishodia, however, has assailed the order dated 1.7.1996 (part of Annex.2) and judgment and order dated 4.10.1996 (Annex.4) passed by the learned Civil Judge (Senior Division), Anupgarh (Sri Ganganagar). Mr. Shishodia firstly submitted that in absence of any application for re - count, no order of re -count could have been passed in view of Rule 49 (6) of the rajsthan Panchayati Raj (Election) Rules, 1994. He has placed reliance upon the Supreme Court judgment reported in Smt. Ram Rath v. Saroj Devi and Ors. : [1997]3SCR1050 . Mr. Shishodia then submitted that impugned order of re - count was laconic and without application of mind. He submitted that the secrecy of ballot was not maintained by passing the impugned order of re -count. In support of his submission, he has placed reliance upon two decisions of Single Bench of this Court report in Atma Ram v. Mana Ram and Ors. WLR 1996 Raj. 552 and jagdish v. Chandgi and Anr. 1998 (2) WLC (Raj.) 11 and on Supreme Court judgment reported in P.K.K Shamsudeen v. K.A.M. Mappillai Mohindeen and Ors. : AIR1989SC640 .
(3.) MR . Shishodia further submitted that in view of Rule 51 only Returning Officer was empowered for draw of lots when equal votes are there but the learned Judge has no power of draw of lots. In this case, the learned Judge by calling a child of aged about ten years for draw of lots, wrongly declared the respondent No. 1 as elected.;