Judgment:
Narendra Mohan Kasliwal, J.
1. Brief facts of the case are that election for the office of Gram Panchayat, Rasili, Panchayat Samiti, Dudu, District Jaipur, was held on December 14, 1981. The petitioner and the respondents Nos. 2 to 4 contested the said election, According to the result declared by the Returning Officer, the total number of votes cast were 1727 out of which 95 votes were declared invalid. The petitioner and other candidates were declared to have received the votes as under:
(i)--Kana Ram (Petitioner) -- 630(ii)--Prabhu Dan -- 170(iii)--Shri Narain -- 190(iv)--Smt. Sushila -- 642
In view of the above result Smt. Sushila was declared elected having received the highest number of valid votes.
2. The petitioner, Kana Ram, filed an election petition in the Court of Munsif and Judicial Magistrate, Sambhar Lake (Election Tribunal) challenging the above election. The petitioner made a prayer for recount of the votes and for setting aside the election of Smt. Sushila and further prayed that the petitioner in fact having received the highest number of valid votes should be declared elected to the office of Sarpanch.
3. Election petition was contested by Smt. Sushila. After framing issues and recording evidence of the parties, learned Election Tribunal vide its order dated May 19, 1983, ordered for recount of the votes. Smt. Sushila aggrieved against the aforesaid order filed a writ petition before this Court, which was registered as S.B. Civil Writ Petition No. 2114/1983. In the said writ petition a stay application was filed on behalf of Smt. Sushila. This Hon'ble Court on the said stay application passed an order to the effect that the votes may be recounted by the Election Tribunal and after recount, the record be sent to this Court, without making any consequential order. In pursuance to the directions of this Court the votes were recounted on December 20, 1983 by the Election Tribunal in presence of interested parties and as a result of re-count of votes, the position emerged as under:
Name of the candidate No. of votes received as No. of votes received asper Returning Officer per result of recount(1) Kana Ram (Petitioner) 630 631(2) Prabhu Dan 170 217(3) Shri Narain 190 190(4) Smt. Sushila 642 595(5) Invalid votes 95 94----- ------1727 1727----- ------
Thus, after recount the position was that the petitioner Kana Ram received 631 votes while Smt. Sushila received only 595 votes. The record of recount was sent to this Court by the Election Tribunal. Thereafter, the writ Petition No. 2114/1983 filed by Smt. Sushila was dismissed.
4. The Election Tribunal thereafter decided the election petition by judgment dated March 14, 1986. The case of the petitioner is that though the Election Tribunal set aside the election of Smt. Sushila on the ground that she had not received the highest number of votes but without any ground did not declare the petitioner as having been elected Sarpanch of Gram Panchayat Rasili.
5. Mr. Sharma, learned counsel for the petitioner contended that after recount it was found that the petitioner had received 631 valid votes while Smt. Sushila had secured 595 valid votes, only and the Election Tribunal having recorded such finding, there was no valid reason not to declare the petitioner as elected Sarpanch of Gram Panchayat, Rasili.
6. Inspite of several opportunities given to the respondents no written reply has been filed on their behalf.
7. I have heard Mr. Sharma on behalf of the petitioner and Mr. Dhankar on behalf of respondent No. 2 Smt. Sushila.
8. There can be no manner of dispute that the recount was done in pursuance to an order passed by this Court on the stay application filed in S.B. Civil Writ Petition No. 2141/1983. After the aforesaid order 631 valid votes have been counted in favour of Kana Ram' and 595 valid votes in favour of Smt. Sushila. The Writ Petition No. 2141/1983 filed by Smt. Sushila challenging the order of recount passed by the Tribunal on May 19, 1983, was also dismissed by this Court by order dated September 3, 1985. Learned Election Tribunal also has recorded a finding that the petitioner, Kana Ram, had secured 631 votes while Smt. Sushila bad secured 595 votes. It is surprising that the Election Tribunal after recording the above finding gave a direction declaring the election of Smt. Sushila as invalid, but gave no further direction declaring the petitioner as elected Sarpanch without any rhyme or reason. Learned Election Tribunal thus committed a grave error in not granting the relief to the petitioner of having validly elected Sarpanch of Gram Panchayat, Rasili. It appears that the learned Munsif did not understand even the elementary principles in not granting the relief as prayed by the petitioner for declaring him as elected Sarpanch when the maximum number of valid votes were found to have been cast in his favour.
9. In the result, this writ petition is allowed, the order of the learned Munsif and Judicial Magistrate 1st Class, Sambhar Lake (Election Tribunal) dated March 14, 1986, is modified to the extent of granting relief and it is now directed that in the election of office of Sarpanch of Gram Panchayat, Rasili, which was held on December 14, 1981, the petitioner Kana Ram is declared as duly elected Sarpanch. The Collector Jaipur District, Jaipur, shall take steps forthwith for handing over the charge of Sarpanch of Gram Panchayat, Rasili to the petitioner Kana Ram. There will be no order as to costs.