JAGAT NARAYAN, J.—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.

3. The Tribunal decided issue No. 9 in favour of the respondent. This finding is attacked on behalf of the petitioner. I am of the opinion that no interference can be made with this finding as the Tribunal was fully aware of the decision of their Lordships of the Supreme Court in Ram Sewak vs. H. K. Kidwai (1) and duly applied its mind to the relevant considerations. As was pointed out in Amar Singh vs. The Munsif-Magistrate, Jodhpur (S.B. Civil Writ Petition No. 413/1956 decided on 3-10-66) the conditions prevailing in a Panchayat election are different from those prevailing in a parliamentary or assembly election. In the latter the candidates are generally literate and are assisted by a number of agents most of whom are lawyers. They are in the position of giving much better particulars than a candidate at a Panchayat election. At the counting of votes in a Panchayat election only the candidate is allowed to be present vide R. 38(3). Candidates for the office of Sarpanch possess the qualification of being barely literate in Hindi. They are not in a position to note down the serial number of any ballot paper which has been wrongly accepted or wrongly rejected. If the Tribunal is satisfied on the basis of the material before it that a prima facie case for re-count is made out, after applying its mind to the relevant considerations then this Court cannot interfere in the exercise of its writ jurisdiction with the decision of the Tribunal to recount the votes.

4. So far as issue No. 7 is concerned the Tribunal was of the opinion that only the votes counted as valid votes for Shiv Kishan could be recounted for the purpose of setting aside the election of Shiv Kishan. It refused to recount the votes counted for Radha Kishan or th

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