H.R. Panwar, J.
1. These appeals are directed against order of the learned Single Judge dated 27th September, 2002 passed in Smt. Bhanwari v. Smt. Madhu and Ors. (1). Singh both these appeals arise out of one and the same order involving common question of law and facts, they are being disposed of together by this common judgment.
(2). Facts giving rise to both the appeals succinctly are that election for the post of Sarpanch of Gram Panchayat Dhabhar, Panchayat Samiti, Rohat, District Pali was held on 31st January, 2000. Smt. Bhanwari (for short 'returned candidate'); appellant in D.B. Civil Special Appeal (Writ) No. 687/2002, Smt. Madhu (for short 'election petitioner') and respondent Smt. Tara contested the election for the post of Sarpanch. After completion of counting of the votes secured by respective contestants, it was revealed that the returned candidate secured 651 valid votes while the election petitioner and respondent Tara secured 650 and 449 votes respectively. Since returned candidate secured highest number of valid votes, the Returning Officer declared her duly elected for the post of Sarpanch. Election petitioner filed an election petition before the District Judge, Pali (for short, 'the Election Tribunal') challenging the election of returned candidate claiming relief, inter alia, that the election of the returned candidate for the post of Sarpanch, Gram Panchayat, Dhabhar be declared void, recounting of votes be ordered and election petitioner be declared as duly elected Sarpanch. It was mainly averred in the election petition that the valid votes secured by election petition that the valid votes secured by election petitioner during the course of counting, were declared invalid by the Returning Officer; invalid votes were added to the pockets of the returned candidate and counted; and blank ballet paper was affixed with the symbol of returned candidate and counted in her favour. These irregularities were alleged during the course of counting and on these allegations, the election of returned candidate was sought to be quashed being void and it was prayed that re-counting of the votes be done and election petitioner be declared the returned candidate.
(3). Reply to the election petition was filed by the returned candidate specifically denying the allegations and averments made in the election petition and it was asserted that on correct counting of the votes, returned candidate secured 651 valid votes and having polled highest number of votes, she has rightly been declared as duly elected Sarpanch.
(4). Respondent Tara, who secured such less votes did not choose to contest the election petition.
(5). Before the Election Tribunal, the election petitioner appeared as applicant witness No. 1 and produced AW. 2 Hanuman Singh, an election agent of respondent Tara. The returned candidate herself appeared as NAW-1 and produced Mohan Lal, her election agent as, NAW2. After recording evidence of the respective parties as noticed above, the Election Tribunal, by exercising powers under Section 151 of the Code of Civil Procedure, 1908 (for short, 'the Code') by order dated 1st June, 2002, ordered for inspection and recounting of votes secured by respective parties in the Chambers of the Election Tribunal in the presence of the parties. The parties were informed of the said order and the matter was posted for recounting of votes on 8th July, 2002. At the request of one of the parties, the matter was adjourned to 10th July, 2002. The recounting of the votes took place in the Chambers of Election Tribunal in the presence of counsel for the parties between 2.15 P.M. to 4.30 P.M. on 10- 7-2002. Fifteen packets of the votes secured by election petitioner were counted, which contained 650 votes and out of these 650 votes, six votes were found to be doubtful and, therefore, those six doubtful votes were kept in a sealed packet. The votes secured by the returned candidate, kept in 14 packets, were counted, which contained 651 votes and out of these 651 votes, 8 votes were found to be doubtful and, therefore, 8 votes alleged to be doubtful were kept in a separate sealed packet. 32 votes rejected by the returning officer were also checked and the Election Tribunal came to the conclusion that the Returning Officer has rightly rejected those 32 votes as being invalid votes. For rejection of those 32 votes, none of the parties raised any objection and rightly so because the invalidation and rejection was in accordance with law. Respondent Tara, in 10 packets, secured 449 votes and for validity of those 449 votes, none of the parties raised any objection and as such they were kept in the sealed packets.
(6). By the order dated 1st August, 2002, the Election Tribunal decided the election petition filed by the election petitioner. The validity of 8 doubtful votes secured by the returned candidate was examined by the Election Tribunal in para 16 of its order. Out of 8 doubtful votes, 6 votes were found to be valid and counted in favour of the returned candidate. However, two ballet papers bearing No. 689975 and 690335 were found to be invalid and the same were rejected by the Election Tribunal. Thus, total votes secured by returned candidate were reduced from 651 to 649.
(7). While re-counting the votes, the Election Tribunal found six doubtful votes out of 650 votes secured by election petitioner Smt. Madhu. However, those six doubtful votes were not examined by the Election Tribunal on the ground that the returned candidate has not filed recrimination as envisaged under Section 97 of the Representation of People Act, 1951 (hereinafter referred to as 'the R.P. Act, 1951') and declared the election of the returned candidate as void and consequently election petitioner was declared as the returned candidate for the post of Sarpanch, Gram Panchayat, Dhabhar, vide order dated 1st August, 2002. Returned candidate Smt. Bhanwari challenged the order of Election Tribunal dated 1st August, 2002 by way of writ petition before this Court being S.B. Civil Writ Petition No. 2752/2002. The learned Single Judge, by order impugned dated 27th September, 2002, set aside the order Annexure-9 passed by Election Tribunal and the writ petition filed by returned candidate Smt. Bhanwari was allowed. The order of the Election Tribunal declaring election petitioner Smt. Madhu as duly elected Sarpanch was set aside and the matter was remanded to the Election Tribunal with a direction to make a fresh decision on the point of election to the post of Sarpanch, Gram Panchayat, Dhabhar, Panchayat Samiti, Rohat, District Pali in respect of petitioner (returned candidate) Smt. Bhanwari and respondent (election petitioner) Smt. Madhu after taking into consideration 6 doubtful votes pertaining to election petitioner respondent Madhu as found by him in the order dated 10th July, 2002 Annexure-8 and both the parties were directed to appear before the Election Tribunal on 10th October, 2002. However, the request for setting aside the order dated 1st June, 2002 Annexure-7, by which the Election Tribunal directed inspection and recounting of the votes, was rejected.
(8). Obviously, for reason that the order dated 1st June, 2002 Annexure-7, directing inspection and recounting of the voles, was challenged by the returned candidate before the learned Single Judge by filing writ petition (S.B. Civil Writ Petition No. 2112/2002), which was withdrawn by returned candidate and as such it was dismissed as withdrawn without liberty to file fresh petition. Both the contesting parties, aggrieved by the order of the learned Single Judge dated 27th September, 2002, filed these two appeals.
(9). We have heard learned counsel for the parties, perused the order impugned as also the order of Election Tribunal and the relevant documents annexed with the writ petition and the reply thereto.
(10). Mr. S.G. Ojha, learned counsel appearing for election petitioner Smt. Madhu contended that in absence of recrimination application, as envisaged under section 97 of the R.P. Act, 1951, by the returned candidate, even the votes secured by the election petitioner cannot be counted what to say about the examination of their validity. In support of his contention, learned counsel for the election petitioner has relied on the judgments in N.E. Horo v. Leander Tiru and Ors. (2), Amar Jeet Singh v. Shri Sampuran Singh (3) and Jagdish v. Chandgi and Anr. (4).
(11). Learned counsel appearing for election petitioner Smt. Madhu contended, that the provision of Section 97 of the R.P. Act, 1951, applicable for the election of Lok Sabha and State Legislative Assembly, is equally applicable for the election of Sarpanch and, therefore, in absence of recrimination as envisaged under Section 97 of the R.P. Act, 1951, even votes polled in favour of election petitioner cannot be questioned what to say of examination of their validity. He further contended that the learned Single Judge failed to appreciate this aspect of the matter while remanding the matter to the Election Tribunal. It was further contended that Rule 85 of the Rajasthan Panchayati Raj (Election) Rules, 1994 makes the applicability of the provisions of Code for hearing of election petition and, therefore, even if Section 97 of the R.P. Act, 1951 is not applicable, nevertheless the counter-claim as envisaged under Order 8 Rule 6-A of the Code can be filed. In the instant case, the returned candidates has not filed any counter-claim challenging the votes secured by the election petitioner and in the absence of counter-claim validity of 6 doubtful votes secured by the election petitioner cannot be examined.
(12). Per contra Mr. Vijay Bishnoi learned counsel appearing for returned candidate raised two-fold argument before us. Firstly, he contended that the learned Election Tribunal committed manifest illegality in ordering the inspection and recounting of the votes on vague and indefinite averments made in the election petition. He further contended that for ordering inspection and recounting of the votes, the election petition must contain concise statement of all the material facts forming basis of alleged irregularity or illegality. He further contended that in the election matters, rule of pleading is required to be strictly followed. According to him, in the election petition, the election petitioner has made vague pleas, not supported by material facts, and has tried to fish out evidence to support such vague plea and, therefore, the order of Election Tribunal for inspection and recounting of votes is erroneous. Secondly, he contended that the election for the post of Sarpanch is governed and regulated by Rajasthan Panchayat Raj Act, 1994 (hereinafter referred to as 'the Act of 1994') and Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter referred to as 'the Rules of 1994') and as such the provision in the election of Sarpanch. Mr. Vijay Bishnoi relied on a judgment of Hon'ble Supreme Court in Banwari Dass v. Sumer Chand and Ors. (5) and Single Bench decision of this Court in Surendra v. M.J.M. Bharatpur and Ors. (6).
(13). From a plain reading of language of proviso to Section 97 of the R.P. Act, 1951 makes it clear that returned candidate or such other party shall not be entitled to give such evidence unless he has, within 14 days from the date of commencement of the trial given notice to the High Court of his intention to do so and has also given the security and further security referred to Sections 117 and 118 respectively. Thus, the requirement of filing the recrimination and leading evidence in support thereto is to give notice to the High Court within 14 days from the date of commencement of the trial. The expression 'High Court' would not include District Court. Thus, on careful reading of the whole of the section, it indicates that Section 97 of the R.P. Act, 1951 applies to the election petition to the High Court. Thus, Section 97 of the R.P. Act, 1951 has no application for the matters of election disputes in respect of Rajasthan Panchayat Raj Institutions governed by Act of 1994 and Rules of 1994 which are to be tried by the District Judge under the provision of Rule 80 of the Rules of 1994.
(14). Moreso, while directing inspection and count of the votes by the order dated 1-6-2002 (Annx. 7), the Election Tribunal, in clear and specific terms, ordered to inspect and count the votes secured by the parties, meaning thereby that not only the votes secured by the returned candidate but also by the election petitioner and other candidate, viz. Tara, were ordered to be inspected and counted. The election petitioner had no grievance to this order dated 1-6-2002 (Annx. 7) which is obvious as the election petitioners has not challenged this order. The inspecting and counting of votes on 10-7-2002 was in furtherance and compliance of this order dated 1-6-2002. This order, so far as election petitioner is concerned, has become final as no challenge was made by the election petitioner to this order. Therefore, it was not open for the election petitioner to raise any objection for inspection, recounting and re-examining the votes pertaining to her.
(15). In N.E. Horo v. Leander Tiru (supra), the Apex Court observed as under:-
'There may not be any specific allegation in the pleadings in respect of such ballot papers. But the absence of specific averment in the pleading is no bar to inspect such ballot papers. When illegality is noticed upon inspection, it must be corrected. Invalid votes, if any, should be excluded. That is precisely the purpose of inspection of ballot papers.'
(16). Thus, on the factual matrix of the instant case, the judgment relied upon by the learned counsel for the election petitioner are of no help to the election petitioner.
(17). In Chapter XIII of the Rules of 1994, there is no provision alike Section 97 of R.P. Act, 1951 for recrimination or counter election petition and, therefore, in our opinion, the Election Tribunal fell in error in not examining six doubtful votes pertaining to the election petitioner on recounting. In S. Baldev Singh v. Teja Singh Swantgas (dead) and Ors. (7), the Supreme Court held that where margin of difference is minimal, the request for fresh counting is to be made to Returning Officer when the election process was still continuing and if there was any counting error, the same could be rectified before election process was complete. This, however did not apply to the court while dealing with an election petition because if recount is ordered at that stage then the election process has to be restarted afresh. In the instant case, the Election Tribunal once ordered for inspection and recounting of votes polled then it restarted an election process afresh and once the Election Tribunal restarted an election process afresh then it was not open for the Election Tribunal to only inspect, examine and recount the votes pertaining to returned candidate but should have inspected, examined and recounted the votes pertaining to election petitioner also and therefore, the order of Tribunal refusing to examine the validity of 6 doubtful votes pertaining to election petitioner is unsustainable and the learned Single Judge set aside the same, and in our view rightly so. Moreso, to permit or not to permit inspection and recount of the vote is a question involving jurisdiction of the Court/Election Tribunal, but once inspection and recount have been allowed, the Court/Election Tribunal cannot refuse to examine the validity of votes and shut its eyes on the validity and result of recount on the ground that it is at variance with the pleading and evidence of parties. Once the jurisdiction of inspection and recount is exercised then its result has to be given effect to.
(18). A power vesting in Election Tribunal seized of an election dispute to order for inspection and recount of the ballot papers, has been considered time and again by the Hon'ble Supreme Court in catena of judgments as also by this Court. A Division Bench of this Court in Pala v. Mangtu Ram and Anr. (8), held that an order for inspection of ballot papers or recounting of votes could only be passed if two conditions are satisfied, i.e. (i) That the petition for setting aside an election contains an adequate statement of material facts on which the petitioner relies in support of his case; and (ii) That the Court or Tribunal trying the election petition is prima facie satisfied that in order to do complete justice between the parties inspection of ballot papers is necessary. It was further held that an order for inspection of ballot papers or for recounting of votes could not be made on the basis of vague pleas made in the petition unsupported by the material facts. Merely because there is a suspicion or the petitioner believes that there has been an improper reception, refusal or rejection of votes, it would not be proper to pass an order of inspection of ballot papers. The case of the petitioner must be 'set out with precision supported by material facts in order to establish a case for inspection of ballot papers or recounting of votes. The importance to be attached to the secrecy of ballot papers cannot be lightly over- looked and inspection of ballot papers can only be made when the Court is satisfied that a prima facie case exists and court can be satisfied only on the basis of proof and not on the basis of mere allegations.
(19). In Kripal Singh v. Darshan Singh (9), a question came to be considered as to whether the rigor of law with regard to pleadings should be strictly followed in the election matter or can be relaxed. This Court held that the election petition should contain adequate statement of fill material facts on which the petitioner relies. Rule 82 of the Rules of 1994 which is applicable in the instant case provides that the election petition shall contain a concise statement of material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, for verification of the pleadings.
(20). In M.R. Gopalakrishnan v. Thachady Prabhakaran and Ors. (10), Hon'ble Supreme Court held that the Tribunal or the court trying an election petition has power to direct inspection and recount of votes if the material facts and particulars are pleaded and adequate grounds are found to exist for directing such recount in the interest of justice. Their Lordships restated the principles as under:-
'1. The secrecy of the ballot is sacrosanct and shall not be permitted to be violated lightly and merely for asking or on vague and indefinite allegations or averments of general nature. At the same time purity of election process has to be preserved and therefore inspection and re-count shall be permitted but only on a case being properly made out in that regard.
2. A petition seeking inspection and re-count of ballot- papers must contain averments which are adequate, clear and specific making out a case of improper acceptance or rejection of votes or non-compliance with statutory provisions in counting. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted would not serve the purpose.
3. The scheme of the rules prescribed in Part V of the Conduct of Election Rules, 1961 emphasises the point that the election petitioner who is a defeated candidate has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly overruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that Section 83(1) of the Act has to be applied to the petitions made for inspection must contain a concise statement of the material facts.
4. The election petitioner must produce trustworthy material in support of the allegations made for a re-count enabling the court to record a satisfaction of a prima facie case having been made out for grant of the prayer. The court must come to the conclusion that it was necessary and imperative to grant the prayer for inspection to do full justice between the parties so as to completely and effectually adjudicate upon the dispute.
5. The power to direct inspection and re-count shall not be exercised by the court to show indulgence to a petitioner who was indulging in a roving enquiry with a view to fish out material for declaring the election to be void.'
(21). Court would always insist upon a high standard of proof of grounds as would impel it to direct recount of votes and recheck the election result. It is only after the election petitioner is able to demonstrate before the court by leading satisfactory evidence that there was serious flaw in the counting procedure which had materially affected the result of election inasmuch as it is well settled that such allegations must not only be clearly made but also proved by cogent evidence. The fact that the margin of votes by which the successful candidate was declared elected was very narrow, though undoubtedly an important factor to be considered, would not by itself vitiate the counting of votes or justify recounting by the Court. In N. Narayanan v. S. Semmalal and Ors. (11), the Apex Court held that the Court would be justified in ordering a recount of the ballot papers only where; (i) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (ii) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting, and (iii) the court trying the petition is prima facie satisfied that making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.
(22). In Vadivelu v. Sundaram and Ors. (12), Hon'ble Supreme Court observed as under :-
'The result of the analysis of the above cases would show that this Court has consistently taken the view that recount of votes could be ordered very rarely and on specific allegation in the pleadings in the Election Petition that illegality or irregularity was committed while counting, the petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do justice between the parties.'
(23). In Ram Sewak Yadav v. Hussain Kamil Kidwai and Ors. (13), a Constitution of Bench of the Supreme Court held that an election petition must contain a concise statement of material facts on which petitioner relies in support of his case. It was further held that an order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled, i.e. (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.
(24). But an order for inspection of ballot paper cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there had been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. Proceeding on the same premises, the Apex Court followed the law in Dr. Jagjit Singh v. Giani Kartar Singh and Ors. (14). Therefore, in every case where a prayer is made by petitioner for inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which Section 83(1)(a) has in mind.
(25). Rule 49(6) of Rules, 1994 provides that any candidate present at the counting may, at any time during the counting of votes, request the Returning Officer in writing, to recount the ballot papers relating to the ward and Returning Officer may for the reasons to be recorded either reject the request or order recounting of votes. Rule 56 of Rules 1994 deals with the elections of Sarpanch. Sub-rule 3 of Rule 56 provides that Rules 23 to 54 so far as may be, apply mutatis mutandis to such election except nomination paper of Sarpanch. The Hon'ble Supreme Court, in Smt. Ram Rati v. Saroj Devi and Ors. (15), while dealing with the provisions of Rule 76 of M.P. Panchayat Election Rules, 1994, held as under :-
'It is difficult to give acceptance to the contention that the respondent made an application to the Returning Officer and the Returning Officer had not recounted. In the light of the mandatory language of Rule 76 of the Rules, it is incumbent upon a candidate or an agent, if the candidate was not present, to make an application in writing and give reasons in support thereof, while seeking recounting. If it is not done, then the Tribunal or the court is not empowered to direct recounting even after adduction of evidence and consideration of the alleged irregularities in the counting. The essential condition-precedent is that an application in writing should be made and the Returning Officer should pass an order with reasons in support thereof either to recall the order of otherwise, the writing. The fact that the officer had not passed any order in writing would indicate that the respondent had not made any application .... An application in writing must be made at the first instance and the fact that no such application has been placed before us does indicate that no such application had been made on the date of the declaration of the result. The allegation of an application having been made, would be an afterthought. The Tribunal, therefore, committed manifest error in directing recount.'
(26). In Jagdish v. Chandgi and Anr. (supra), this Court held that inspection of ballot papers cannot be and should not be granted to support vague pleas or to fish out evidence in support such pleas. The relevant election rules contain provision to apply in writing to the Returning Officer for recount of votes either wholly or in part, stating grounds on which such demand is made. Though, at that stage, the Returning Officer should be liberal as election process still continues and if there is any counting error, it may be rectified before the election process was complete. However, this rule cannot apply to the Courts while dealing with an election petition, because, if recount is ordered while deciding election petition, then the electoral process has to be restarted afresh. The fact of not raising objection or making a demand for recount at the time of counting of votes can be taken a strong circumstance to deny a recount of votes in an election petition.
(27). Thus, for recounting of votes there must be a request in writing to the Returning Officer. In the instant case, no such request in writing was made by the election petitioner before the Returning Officer when the election process was still continuing and as such the election petitioner cannot be allowed to make a demand for recount as it would amount to re-start the electoral process. Indisputably, in the instant case, the election petitioner has not made any request in writing to the Returning Officer for recounting of votes while the election process was continuing, as envisaged under Rule 49(6) of the Rules, 1994. So also, the election petition does not contain a concised statement of material fact, on which election petitioner relies, as envisaged under Rule 82 of the Rules, 1994. Rule 82 of the Rules, 1994 is analogous to Section 83(1)(a) of the R.P. Act, 1951.
(28). Be that as it may, in the light of the principle enunciated hereinabove, whether the case of the returned candidate can be tested on the touch-stone of the facts and circumstances of the instant case in view of the absolute bar against entertainment of subsequent writ petition when earlier writ petition, challenging the very cause, was dismissed as withdrawn without liberty to file fresh writ petition. The returned Candidate challenged the order of Election Tribunal dated 1st June, 2002 (Annexure-7) by filing a writ petition being S.B. Civil Writ Petition No. 2112/2002, which was dismissed as withdrawn at that stage by the counsel for the returned candidate on 5th July, 2002 without liberty to challenge that order in a subsequent writ petition. A question came up before Full Bench of this Court in Hanuman Singh and Ors. v. Board of Revenue and Ors. (16), whether subsequent writ petition after withdrawing earlier writ petition without liberty to file fresh petition operates as an absolute bar. The Full Bench held that the decision of the Supreme Court in Sarguja Transport Service's case (17), operates as an absolute bar against entertainment of another subsequent writ petition when an earlier petition has been withdrawn without reserving liberty to file fresh writ petition and second writ petition cannot be entertained by the High Court on the same subject-matter, except in petitions in the nature of habeas corpus for which exception has been carved out in the said decision of the Supreme Court.
(29). In Sarguja Transport Service's case (supra), the Hon'ble Supreme Court observed as under:-
'But we are of the view that the principle underlying Rule 1 of the Order XXIII of the Code should be extended in the interest of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reasons in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of the writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition . We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open.'
(30). The challenge to inspect and recount of the votes by order of Election Tribunal dated 1st June, 2002 cannot be entertained and it has to be rejected. Accordingly, we reject the challenge of order dated 1st June, 2002 (Annexure-7).
(31). The order of Election Tribunal, however, suffers from glaring error and illegality inasmuch as the Tribunal has not pronounced the judgment on all issues framed by it. Rule 2 of Order 14 of the Code mandates that notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2) pronounce judgment on all the issues. Rule (2) starts with a non-obstante clause and as such the compliance of which is mandatory. Rule 85 of the Rules, 1994 provides that the procedure provided in the Code of Civil Procedure, 1908, in regard to suits, shall, so far as it can be made applicable, may be followed in hearing of the election petition. Rule 86 of the Rules, 1994 further provides that the Judge hearing a petition, shall have the same powers and privilege as a Judge of a civil court is having while trying a suit.
(32). In Fakhre Alam v. Bhagwan Singh and Ors. (18), the Allahabad High Court held that the provisions of Order 14 Rule 2 of the Code, none the less apply to the proceedings under the Representation of People Act, 1951. It was further held that judgment has got to be pronounced on all issues under Order 14 Rule 2 of the Code simultaneously. It will amount to an illegality in exercise of jurisdiction if the procedure envisaged under Order 14 Rule 2 of the Code is not followed.
(33). In Bijoshree Rout Roy v. Madhusudan Panigrahi and Ors. (19), it was held that Order 14 Rule 2 of the Code is applicable to the election petition. There is no provision in the Representation of People Act, 1951 which is inconsistent with the provisions of Order 14 Rule 2 of the Code, which contemplate that the judgment in election petition should, therefore, be pronounced on all the issues.
(34). In the instant case, the Tribunal framed as many as 5 issues and burden to prove all those 5 issues was placed on the shoulder of the election petitioner. On careful scrutiny of the judgment of the Election Tribunal under challenge dated 1st August, 2002, it appears that Election Tribunal (District Judge, Pali), even after recording the evidence of both the parties, has not pronounced the judgment on any of the issues framed by it. The provision of Rule 2 of Order 14 of the Code, which mandates the Court to pronounce judgment on all issues, it fully applicable in election law. We express our strong disapproval to the approach of the District Judge, Pali in handling the election petition in a casual manner.
(35). As noted hereinabove, the returned candidate had earlier filed a writ petition No. 2112/2002, which was withdrawn by the returned candidate without seeking liberty to file fresh writ petition or, in explicit term, to reagitate the question. In view of Apex Court pronouncement on this score in Sarguja Transport Services case (supra), the returned candidate no longer can avail further opportunity of reagitate the question after having once withdrawn writ petition earlier filed by her.
(36). By order impugned, the learned Single Judge set aside the order Annexure-9 dated 1st August, 2002 passed by learned District Judge, Pali and remanded the matter to the District Judge, Pali with a direction to make a fresh decision. In view of the observations made hereinabove, we do not find any error, infirmity or illegality in the order of learned Single Judge.
(37). In view of the aforesaid discussion, both the appeals lack merit and, therefore, they are dismissed. However, there shall be no order as to costs.