MADHU Vs. BHANWARI

JUDGEMENT

(1.) THESE appeals are directed against order of the learned Single Judge dated 27. 09. 2002 passed in Smt. Bhanwari vs. Smt. Madhu and Ors. 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 31. 01. 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.) 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 1. 08. 2002. Returned candidate Smt. Bhanwari challenged the order of Election Tribunal dated 1. 08. 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 27. 09. 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 10. 07. 2002 Annexure-8 and both the parties were directed to appear before the Election Tribunal on 10. 10. 2002. However, the request for setting aside the order dated 1. 06. 2002 Annexure-7, by which the Election Tribunal directed inspection and recounting of the votes, was rejected.