SHIV KISHAN Vs. RADHA KISHAN

JUDGEMENT

(1.) THIS is a petition under Art, 226 of the Constitution by Shiv Kishan whose election to the office of Sarpanch of Malar Panchayat was set aside by Munsif, Phalodi, acting as a Tribunal under R. 71 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960,, on an election petition filed by Radha Kishan respondent No. 1. The petition has been opposed on behalf of Radha Kishan.

(2.) THE election to the office of Sarpanch of Malar Panchayat was contested by Shiv Kishan and Radha Kishan. Shiv Kishan was declared as duly elected by the Returning Officer. According to the counting made by the latter Shiv Kishan polled 571 valid votes,, Radha Kishan polled 563 of them and 31 votes were rejected as invalid. On 25-1-65 Radha Kishan filed the present election petition challenging the election of Shiv Kishan inter alia on the ground that a number of invalid ballot papers were counted as valid votes in favour of Shiv Kishan. It was stated that these ballot papers were invalid because they bore seal marks against another candidate besides Shiv Kishan. Further it was stated that it was not possible to give the exact number of such invalid ballot papers, but they were approximately 13 or more. On this ground a prayer for recount was made in the petition. In his reply Shiv Kishan asserted that the allegations made about the invalidity of ballot papers counted in his favour were vague and no recount could be made on such vague allegations. Further it was denied that any mistake had been made in counting the ballot papers by the Returning Officer. Radha Kishan had not only prayed that the election of Shiv Kishan should be set aside, but he also prayed that he may be declared to be duly elected as according to him he received a majority of valid votes. THE following are the relevant issues framed by the Tribunal on the questions in controversy in this writ petition: Issue No. 7 - Whether invalid votes have been counted in favour of the non-petitioner? If so, what is the effect? Issue No. 9 - Whether re-counting of the votes cast cannot be made by the court on the grounds mentioned in para 11 of the petition. Issue No. 10 - Whether the petitioner is entitled to the declaration that he was duly elected as Sarpanch.