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Ratan Singh Vs. Munsiff and Judicial Magistrate, Dholpur and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberWrit Petn. No. 205 of 1983
Judge
Reported inAIR1984Raj103; 1983()WLN112
ActsConstitution of India - Article 226; Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 - Rule 78
AppellantRatan Singh
RespondentMunsiff and Judicial Magistrate, Dholpur and ors.
Appellant Advocate S.R. Joshi, Adv.
Respondent Advocate J.S. Rastogi, Adv.
DispositionPetition dismissed
Cases ReferredLadam Singh v. The Munsiff
Excerpt:
.....exceptional circumstances--held, high court cannot interfere with an in interlocutory order in exercise of extraordinary jurisdiction.;this court cannot interfere in its extaordinary writ jurisdiction for siting aside and quashing an interlocutory order of the election tribunal and stay its proceedings in such matters. no exceptional circumstances exist in the present case requiring interference with an interlocutory order.;writ dismissed - - 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..........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.....
Judgment:
ORDER

S.N. Bhargava, J.

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 :--

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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).

4. On the other hand, the learned counsel for the petitioner has submitted that the Election Tribunal had no jurisdiction to order for inspection or recount as the allegations in the petition were very vague, and since the petition does not contain a concise statement of the material facts, the Tribunal had no jurisdiction to order for inspection and recount. Vague or general allegations that valid votes were improperly rejected or invalid votes were improperly accepted would not give jurisdiction to the Tribunal to order for inspection and recount. The Court cannot allow a roving and fishing inquiry, into the ballot boxes so as to justify their claim that the returned candidate's election is void and has relied on a number of Supreme Court decisions which have been referred to by the Tribunal in its judgment in this connection.

5. I have given my thoughtful consideration to the arguments of the learned counsel for the parties and have also perused the election petition, its reply, evidence adduced and the judgment of the Tribunal and I am of the view that this Court cannot interfere in its extraordinary writ jurisdiction for setting aside and quashing an interlocutory order of the Election Tribunal and stay its proceedings in such matters. No exceptional circumstances exist in the present case requiring interference with an interlocutory order. Interference can only be made against the decision of an interlocutory order if the order goes to the very root of the case challenging the very jurisdiction of the Tribunal, or the reversal of the order is necessary to prevent extraordinary inconvenience in the conduct of the case. If the learned Tribunal has, after going through the pleadings and evidence, come to a finding that it is in the interest of justice that inspection of the ballot paper should be allowed and the recount should be done. I am not inclined to interfere with the order passed by the Tribunal.

6. The writ petition is. therefore, reieeted summarily without expressing any opinion regarding the merits of the case and the petitioner will be entitled to urge this point against the final judgment of the Tribunal if any occasion arises. The writ petition is dismissed with no orders as to costs.


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