S.R. BRAHMBHATT, J.

1. Rule. M/s. D.K. Puj, Shrey H. Dave & Dipen K. Dave, learned advocates waives service of notice of Rule on behalf of respondent nos. 1, 2 and 3 respectively. By consent of the parties, Rule is fixed forthwith.

2. The petitioner, who happened to the petitioner in Election Petition No. 1 of 2017 in the Court of Principal Civil Judge, Bhachau, has approached this Court by way of this petition under Article 226 of the Constitution of India, inter-alia seeking following relief’s :

“(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to quash and set aside the impugned judgment rendered by the learned Election Tribunal below Exh. 34 dated November 29, 2017;

(B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to direct that Election Tribunal shall taken up the hearing of the Election Petition forthwith in view of the provisions contained in clause (b) of sub-section (7) of Section 31 of the Gujarat Panchayats Act, 1993;

(C) Pending admission and final disposal of the present petition, be pleased to stay the implementation, operation and execution of the impugned judgment rendered by the learned Election Tribunal below Exh.34 dated November 29, 2017, and direct the learned Election Tribunal to take up hearing of the Election Petition No. 1 of 2017, forthwith;

(D) Be pleased to pass such other and further orders as may be deemed fit and proper.”

3. Facts in brief, as could be gathered from the memo of petition deserve to be set out as under :

3.1 The State Election Commission appointed Sub-Divisional Officer i.e. Prant Officer, Bhachau as the Election Officer in relation to elections of gram panchayat under his jurisdiction. The State Election authority vide its notification dated 5.12.2016 declared the election programme of 50 gram panchayats of Bhachau taluka. The election programme of the panchayat was declared at Sr. No. 7 in the said notification. As per said notification, the last date of notification of nominations was fixed on 10.12.2016; the date of scrutiny was 12.12.2016; the date of withdrawal was 14.12.2016, date of voting was 27.12.2017 and the date of counting was 29.12.2016. The petitioner as well as respondent nos. 1 and 2 submitted their nominations as per the schedule programme. The Returning Officer of Panchayat and Circle Inspector, Bhachau declared the list of contesting candidates vide his order dated 14.12.2016. As per the list of voters finally published by the competent authority, the total voters in the list of the said Panchayat is 4141, out of which 3193 voters cast their votes and counting was fixed on 29.12.2016. After telling of the votes or ballots, it was declared that they were separating the votes in favour of the candidates as well as the ballots of the voters who have exercised not to cast vote in favour of any of the candidates and exercised right of not to vote, popularly known as NOTA. It was also declared that the invalid ballots would also be separated and, therefore, there shall be a bunch of five categories. The votes cast in favour of each of three candidates would be consisted of three lots and one lot of NOTA and one lot of invalid ballots. It is stated that 326 ballots were declared as invalid votes and no such procedure was followed.

3.2 It is stated that Rule 60 of the Gujarat Election Rules, 1994 provides that Returning Officer shall reject the ballot papers on the circumstances mentioned in said Rule. It is case of petitioner that the Returning Officer has rejected more than 100 ballots illegally, which were valid ballots of the votes who cast their vote in favour of the petitioner.

3.3 It is case of petitioner that he lost the election by 8 (eight) votes when the counting was over at about 11.00 pm. and accordingly the petitioner demanded for recounting and after great persuasion, the Returning Officer