Guman Mal Lodha, J.
1. Petitioner, Devi Ram, a defeated candidate in the Election of Sarpanch to the Gram Panchayat, Ahmedpur; has filed this writ petition, after an unsuccesssful attempt to unseat elected candidate Shri Khuda Bux, respondent No. 2, who won by a margin of 145 votes. Mr. Purohit, learned Advocate for the petitioner, has submitted that the Election Tribunal has committed serious illegality in deciding Issue No. 3 against the petitioner. Issue No. 3 reads as under:
Kya chunava Adhikari ne niyamo men availna ki Tatha Galat Tour se Gangan ki
The principal contention of the petitioner in respect of this issue, is that the time for counting was fixed at 8 p.m. but the votes were counted at 11 p.m. and that the petitioner was not allowed to enter the premises, where the counting took place.
2. The Tribunal has discussed the evidence on this point and disbelieved the evidence of the petitioner.
3. Even on the assumption that the petitioner's evidence can be believed or may be believed, the crucial question which is to be considered, is that, what should be its effect. Under Rule 78 of the Rajasthan Panchayat & Nyaya Panchayat Election Rules, 1960 (hereinafter called to be as 'the Rules, of 1960'), an election can be set aside on the ground that it has been materially affected by any non compliance with the provisions of the Act or of these Rules. Rule 78(d)(iv) reads as under:
78. Manner of challenging an election or co-opted under Rules.-The election or co-option of any person as the Panch of a Panchayat or the election of any person as the Sarpanch or Up Sarpanch of a Panchayat or as the member or Chairman of a Nayaya Panchayat may be called in question by presenting a petition to the Munsif, or, where there is no Munsif, to the Civil Judge, within whose jurisdiction the place of Head quarters of the Panchayat or the Nayaya Panchayat, as the case may be, is situated, within thirty days from the date on which the result of such election or co-option is declared, on any one or more of the following grounds:
(d) that the result of the election or co-option as the case may be, in so far as it concerns the returned candidate was materially affected:
i) (not relevant)
ii) (not relevant)
iii) (not relevant)
iv) by any non compliance with the provisions of the Act or of these Rules.
4. In view of the above, even if the petitioner is actually able to prove that the counting started as 11 p.m. instead of 8 p.m., originally fixed, and that he was not allowed to remain present in the premises where the counting took place, and when the counting was being conducted, then he is further required to plead and prove that the result of the election has been materially affected.
5. The only point pressed by Mr. R.S. Purohit learned Advocate for the petitioner, is that since the petitioner was not allowed to enter the counting apartment, the result has been materially affected because if he would have been declared elected. Inspite of my best efforts, I have not been able to appreciate the above submission. There is no allegation regarding any mistake or irregularities in. the counting, nor there is any, prayer either in the election petition or by a separate application, that since the petitioner was not allowed to enter the counting apartment, ballot papers should be recounted, in his presence. In the absence of such an application and a prayer, the Tribunal could not have directed recounting of the votes. The re-counting would only have shown whether result has been materially affected or not
6. In the matters of re-counting, it is only wrongful acceptance or wrongful rejection, of the ballot papers or wrong, counting of numbers of ballot papers, which can, tilt the balance of the result of the election. There is not even a remotest allegation about any one of them. In view of this, from the mere fact that the allegation has, been made that' counting commenced at 11 P.M. instead of 8 P.M., originally fixed and that the petitioner was not permitted to enter the counting apartment, no legal presumption can be drawn that the result of the election has been materially affected.
7. Under Rule 78(d) of the Rules of 1960, in order to challenge the election on the basis of non compliance with the provisions of the Panchayat Act or these Rules, it is necessary that the petitioner should allege and prove that the result of the election', in so far as it concerns the returned candidate was materially affected. This having not been done in the instant case, the Tribunal was justified in rejecting the election petition, though the Tribunal has not dealt with this aspect of the case at all.
8. The result is that this-writ petition fails and is hereby dismissed without any order as to costs.