RATAN SINGH Vs. MUNSIFF AND JUDICIAL MAGISTRATEDHOLPUR

JUDGEMENT

(1.) This is a writ petition filed by the Sarpanch of Gram Panchavat Koluwa. in district Dholpur. The election for the post Sarpanch were held on 17-12-1981 and the petitioner was declared elected, having obtained 586 votes, whereas respondent Shiv Singh secured 534 votes and respondent Shyam Lal secured 250 votes and 64 votes were rejected. An election petition was filed by Shiv Singh defeated candidate, under Rule 78 of the Rajasthan Pancha-yat & Nyaya Panchayat Election Rules, I960 with the allegations that 78 votes have been unauthorisedly counted, The allegations in the "petition were that only two ballot boxes were kept and when on initial counting it was found that Shiv Sngh has Hot 534 votes, whereas Ratan Singh has hot 503 votes. Another ballot box containing 78 ballot papers was opened and counted and the result was announced as given above. Some other allegations were also made about defect in counting. The petitioner as well as the Returning Officer filed reply to the election petition and asserted that there was no mistake in counting and that counting was absolutely proper and in accordance with law. Issues were framed and one of the issues No. 8 was as under :-

(2.) Thereafter,' evidence was recorded. Statements of Shiv Singh and Bhanwar Singh were recorded on behalf of the petitioner and Ratan Singh. Jaldeo Singh and Rajendra Singh were examined in defence. After hearing the arguments,the learned Munsiff & Judicial Magistrate, Dholpur decided issue No. 8 in favour of Shiv Singh byhis order dt. 10-1-1983 and ordered re-count. It is against this order that the present writ petition has been filed.

(3.) A preliminary objection was raised by Shri J. S. Rastogi, earned counsel for respondent No 3 Shiv Singh. He has submitted that this Court should decline to go into the merits of the writ petition as it is directed against an interlocutory order of the election tribunal which can bechallenged along with the final decision. The petition is still pending and it will be only after the re-count that the petition will be decided finally and only if the petitioner is aggrieved he can prefer a writ petition against that order. Reliance in this connection was placed on Brij Sunder Sharma v. Shri Ram Dutt (1964 Raj LW 98): (AIR 1964 Rai 99) and Achutha Menon v. Election Tribunal (AIR 1961 Ker 186). wherein it has been held that a writ is generally not issued under Article 226 of the Constitution of India where the impugned order is only interlocutory. Reliance has also been placed on another case of Kerala High Court reported in the same volume Kunju Raman v. Krishna lyer (AIR 1961 Ker 183), n which also It has been held that the High Court should not interfere with interlocutory order of ordering a re-count. Mr. Raslogi has also placed reliance on Rasik Lal v. Bhola Prasad AIR 1971 Pat 10) (FB) which was also a case of Election Tribunal ordering a re-count in Panchayat election, in which the case the High Court refused to interfere with an interlocutory order. He has placed reliance on a unrcported recent judgment of this Court in Surendra Kumar v. Bhagwan Sahai (S. B. Civil Writ petition No. 1621 of 1982, decided on 22-10-1082, by Honble G. M. Lodha J..) wherein the contention of Mr. Rastogi was rejected and the writ petition against the order of the Election Tribunal permitting inspection of the ballot papers in a Panchayat election was dismissed relying on an earlier decision of this Court reported in Ladam Singh v. The Munsiff & Judicial Magistrate, Beyana and others (S B. Civil Writ Petition No. 168/81. decided on 20th February. 1981).