( 1 ) RULE. Mr. C. L. Soni, learned Counsel waives service of Rule on behalf of respondent No. 1 and Mr. Premal Joshi, learned AGP waives service of Rule on behalf of respondent No. 2.

( 2 ) WITH the consent of learned Counsel appearing for the parties, this petition is heard today finally.

( 3 ) THE petitioner, in this petition, has challenged the order dated 28th January 2003 passed by the learned Civil Judge (JD), Tharad, below application Exh. 10 in Election Petition No. 2 of 2002, whereby the said application was allowed and recounting was ordered during the pendency of the election petition.

( 4 ) THE general election of Krial Gram Panchayat was held on 23rd December 2001. After the election, the petitioner was declared elected as Sarpanch on a seat exclusively reserved for lady candidate by two votes. It is the case of the petitioner that respondent No. 1 was also a candidate for the post of Sarpanch of the Panchayat. The counting was scheduled on 26th December 2001. A total of 690 votes were cast and during the counting, the petitioner got 317 votes and respondent No. 1 got 326 votes and 47 votes were kept aside as doubtful votes for acceptance. It is further the case of the petitioner that immediately before declaration of the result by the Returning Officer, he gave an application for recounting of votes. The Returning Officer, in presence of both the candidates and their respective election agents, with the consent of both the candidates, recounted the votes which were kept aside as doubtful valid votes. It is averred in the petition that during the said recounting of the 47 doubtful votes, 15 votes were accepted in presence of both the candidates and their respective election agents and 32 votes were declared as invalid votes. Out of the said 15 votes, the petitioner got 13 votes and respondent No. 1 got 2 votes. At the end of the verification of the doubtful votes, the petitioner got 330 votes and respondent No. 1 got 328 votes and accordingly the petitioner was declared elected by a margin of two votes. It is further averred in the petition that, after declaration of the result by the Returning Officer, respondent No. 1, for the reasons unknown, gave an application to the Returning Officer, for recounting of votes by making false and baseless allegations and prayed for recounting of the votes which was rejected by the Returning Officer, as the result was already declared.

( 5 ) RESPONDENT No. 1 preferred Election Petition No. 2 of 2002 on 3rd January 2002 under Section 31 of the Gujarat Panchayats Act, 1993 before the learned Civil Judge (JD), at Tharad, challenging the result of the election in favour of the petitioner. On 11th January 2002, respondent No. 1 preferred an application at Exh. 10 praying for the detailed verification and recounting of votes in presence of the Tribunal. After hearing the parties, the Tribunal allowed application Exh. 10 by its order dated 28th January 2003 mainly on the ground that, considering the record of the case, respondent No. 1 has reasonable ground for doubting the recounting and therefore, it was proper to order recounting.

( 6 ) LEARNED Counsel Mr. Mehul Rathod appearing for the petitioner submits that the Tribunal has erred in not appreciating the settled legal position that the doctrine of implied power of the Tribunal to grant relief which is necessary for the purpose of granting the main relief, cannot be exercised at an interim stage, more particularly when Section 31 of the Gujarat Panchayats Act does not invest such power in the Election Tribunal and when no inquiry of the material facts and the evidence were conducted by the Tribunal and therefore the impugned order is liable to be quashed and set aside. On the other hand, learned Counsel Mr. Soni appearing for respondent No. 1 supported the order of the Tribunal in toto by contending that considering the difference of votes is too small, the Tribunal was justified in ordering recount of the vote