JUDGMENT 1. - The petitioner was elected as Sarpanch of village Panchayat Jahangirpur, tehsil Nadbai, district Bharatpur in the elections held on December 14, 1981. Out of the total votes polled 1612, the petitioner secured 541 votes and the respondent Bhagwan Sahay secured 540 votes. As the petitioner secured the highest votes, as such he was declared elected. Bhagwan Sahay (hereinafter referred to as the respondent) filed an election petition on January 13, 1982 in the court of Munsif and Judicial Magistrate, Bharatpur (Rajasthan Panchayat and Nyaya Panchayat Election Tribunal) (for 'short the Tribunal'). The election petition was filed under R. 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 (which will, hereinafter for the sake of brevity, be referred to as 'the Election Rules'). The Tribunal, on the basis of the pleadings of the parties, framed 18 issues. The parties produced oral and documentary evidence before the Tribunal. The Tribunal, by its order (Anx. 12) dad July 22, 1983, allowed the election petition; declared the election of the petitioner as invalid and further held that as the respondent Bhagwan Sahay had secured four valid votes more in comparison to the petitioner, as such declared the respondent as elected Sarpanch. 2. The petitioner, in these circumstances, filed the present writ petition. 3. The Tribunal had framed issue No. 4, as under: " vizkFkhZ la0 6 us vizkFkhZ la0 1 dks fot;h ?kksf"kr djus ds mn~ns'; ds ikap ,sls er i=ksa dks tks voS/k o vLohd`r fd;s tkus ;ksX; Fks dks oS/k ekudj vizkFkhZ la0 1 ds gd esa xyr rkSj ij fxuk x;kA " In deciding the above issue, the Tribunal took into consideration six ballot papers marked Exs. 11, 13, 14, 15, 16, and 17. 4. After taking into consideration the oral evidence and perusing the original ballot papers,. the Tribunal held that the ballot papers marked Exs. 11, 13 and 14 were invalid and wrongly counted in favour of the petitioner, as the identity of the voters could he ascertained. As regards Ex. 15, it was held that there was no invalidity and the same was rightly counted in favour of the petitioner. As regards Exs. the Tribunal held that the ballot papers marked Exs. 11, 13 and 14 were invalid and wrongly counted in favour of the petitioner, as the identity of the voters could he ascertained. As regards Ex. 15, it was held that there was no invalidity and the same was rightly counted in favour of the petitioner. As regards Exs. 16 and 17, it was held that these ballot papers contained two seals against the columns of the candidates Udaisingh and Surendra Singh (petitioner) and as such it was not possible to ascertain the intention of voters and the same were declared invalid. As a result of the above finding, it was found that the petitioner Surendrasingh secured 536 valid votes while the respondent Bhagwan Sahay had secured 540, votes, i. e., four votes more than the petitioner and as such declared the respondent as elected Sarpanch. 5. The petitioner had taken the plea of recrimination, for which issue No. 1 7 was framed as under: " vk;k vizkFkhZ la0 1 tokc ;kfpdk dh en ua0 15] 16] 17] 18] o 19 ds vk/kkj ij fjsdhes'ku }kjk vuqrks"k ikus dk vf/kdkjh gS\ " The Tribunal considered issue Nos. 8 to 15 and 17 together and held that the learned counsel for the petitioner did not want to press these issues and accepted the argument of the learned counsel for the respondent that there was no provision in the Panchayat Act for recrimination; as such decided these issues against the petitioner. 6. Mr. Dhankar, learned counsel for the petitioner, vehemently contended that the Tribunal wrongly observed that issue Nos. 8 to 15 and 17 were not pressed by the learned counsel for the petitioner. The petitioner was present throughout the final arguments in the election petition. Learned counsel for the petitioner made no concession before the Tribunal on any of the issues. The petitioner was represented by an experienced and senior counsel Shri Satya Kam Garg, aged 60 years. The petitioner also filed an affidavit of Shri Satya Kam Garg, Advocate in support of the above contention. It was further submitted in this regard that the petitioner had taken a clear plea regarding the recrimination in his reply to the election petition in para Nos. 16, 17, 18 and 19. It was also submitted that the petitioner had also led evidence, but the Tribunal altogether ignored the plea of recrimination. It was further submitted in this regard that the petitioner had taken a clear plea regarding the recrimination in his reply to the election petition in para Nos. 16, 17, 18 and 19. It was also submitted that the petitioner had also led evidence, but the Tribunal altogether ignored the plea of recrimination. The view taken by the Tribunal that there was no express provision for recrimination. as such the plea of recrimination was not available to the petitioner, was patently erroneous and unsustainable. 7. Mr. Dhankar placed reliance in support of the above contention on (1) Narana Ram v. Munsif & Judicial Mag. Jhunjhunu (1980 RLW 626) . It was submitted that in the above case, G.M. Lodha, J., had clearly taken a view that elected candidate can plead by way of counter claim that the petitioner could not be declared elected on grounds of corrupt practices committed by him. The ground of recrimination can be taken as ground of defence under O. VIII, R. 6, C. P. C. 8. On the other hand, it was contended by the learned counsel for the respondent that respondent No. 2 was also present at the time of arguments of the election petition. The advocate for the petitioner Shri Satya Kam Garg, had clearly stated in the arguments that he did not press the issue of recrimination. Shri Satya Kam Garg, Advocate, though had filed an application for staying the operation of the impugned order of the Tribunal, but in that application also, it was not asserted that no concession was made by Shri Satya Kam Garg, Advocate. No review petition on this ground was filed before the Tribunal and the plea now taken for the first time in the writ petition, is dearly an afterthought. It was also argued that in any case, there is no provision for recrimination in the Election Rules and in the absence of such power given by the statute, no such ground can be taken by way of counterclaim in the written statement. Reliance was placed on Banwari Das v. Sumerchand ( AIR 1974 SC 1032 ) , in support of the above contention. 9. The question whether any concession was made or not by Shri Satya Kam Garg, Advocate of the petitioner before the Election Tribunal, is a disputed question of fact. Reliance was placed on Banwari Das v. Sumerchand ( AIR 1974 SC 1032 ) , in support of the above contention. 9. The question whether any concession was made or not by Shri Satya Kam Garg, Advocate of the petitioner before the Election Tribunal, is a disputed question of fact. Both the parties have taken altogether different stands and have filed affidavits and counter-affidavits in this regard. It is difficult for Court in the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India to decide the disputed questions of fact. Be that as it may, I am clearly of this view that the point in controversy is fully covered by the decision of their Lordships of the Supreme Court in Banwaridas's case (2), wherein, the Supreme Court, while dealing the provisions of the Delhi Municipal Corporation Act (No. 66 of 1957), held as under: "In an election petition for getting an election declared void and for a further declaration that the petitioner was duly elected, the returned candidate is not entitled to plead and prove that the election petitioner himself was guilty of corrupt practice and was therefore not entitled to be declared as duly elected. The prayer of the returned candidate to plead and prove the corrupt practice committed by the election petitioner is, in substance, one of recrimination of the type mentioned in Section 97 of the Representation of the People Act, 1951. But there is no such provision in the Delhi Municipal Corporation Act, nor can such a right be legitimately spelled out of Section 9 (1) (d). The Court also cannot bridge the gap or supply this apparent omission in the Corporation Act. A right to file an election petition or recriminatory petition which, in substance, is a counter election petition, being the mere creature of a statute, unknown to common in law, the returned candidate, in the absence of a clear statutory provision, is not entitled to recriminate on any of the grounds mentioned in Section 17." It was clearly held in the above case that a right to file an election petition or recriminatory petition, which, in substance, is a counter election petition, being the mere creature of a statute, unknown to common law, the returned candidate, in the absence of a clear statutory provision, is not entitled to recriminate on any of the grounds mentioned in section 17. Admittedly, there is no provision contained in the Election Rules, applicable in the present case, for recrimination and in the absence of any statutory provision, the petitioner in the present case is also not entitled to take the plea of recrimination. The Tribunal as such, has rightly decided this point in favour of the respondent. It is correct that G. M. Lodha, J., in Narana Ram's case took the view that the recrimination can be filed by elected candidate as ground of Reference under O. VIII, r. 6. C.P.C. G. M. Lodha, J. also placed reliance on an earlier decision of this Court reported in Shiv Kishan v. Radha Kishan (1968 RLW 30) . I am constrained to observed that the Banwaridas's case was not cited before G. M. Lodha, J., and the same escaped notice of the learned Judge. As Banwaridas's case (2) decided by the Supreme Court. is the direct authority on the point in question, the view taken by G. M. Lodha, J., in Narana Ram's case, being not correct, no assistance can be sought on the basis of that authority. 10. Mr. Dhankar, learned counsel for the petitioner, then, submitted that the view taken by the Tribunal with regard to the ballot papers: Exs. 11, 13, 14, 16 and 17, is not correct. It was submitted that these ballot papers were not liable to be rejected under R. 39 of the Election Rules and the same ought to have been counted in favour of the petitioner. 11. I see no force in the above contention of Mr. Dhankar. The Election Tribunal has carefully examined each ballot paper and has recorded its finding by giving cogent reasons. Mr. Dhankar was unable to point out any mistake in the order of the Election Tribunal in this regard. The Tribunal has clearly found that in the ballot paper (Ex. 11), the seal put in the column of the petitioner had been cut and, thereafter, the name of the petitioner had been written by pen-ink. Similar kind of irregularity was noticed in the ballot paper (Ex. 13). In ballot- paper (Ex. 14), apart from ink, provided for putting the mark, there was a mark of thumb-impression in the column of the petitioner and there were other marks of red-ink on the ballot paper. Similar kind of irregularity was noticed in the ballot paper (Ex. 13). In ballot- paper (Ex. 14), apart from ink, provided for putting the mark, there was a mark of thumb-impression in the column of the petitioner and there were other marks of red-ink on the ballot paper. It was, thus, rightly held that the above irregularities made on the ballot papers, were sufficient to identify the voter and as such, such ballot papers were invalid. So far as ballot papers Exs. 16 and 17 are concerned, the same contained the marks of seal in the column of two candidates, viz., Udaisingh and Surendra Singh (petitioner). It was, thus, not possible to find out the intention of the voters as to in whose favour, they wanted to cast the votes. The Election Tribunal has, thus, rightly held that the above-mentioned live ballot papers were wrongly counted in favour of the petitioner. There is no manner of dispute that if the above five ballot papers are not counted in favour of the petitioner. then, the valid votes, counted in his favour, come to 536 and the respondent Bhagwan Sahay having secured 540 valid votes in his favour, becomes entitled to he declared as elected Sarpanch. 12. The argument that the Rajasthan Panchayat Act, 1953 did not contain any provision to challenge the election of a Sarpanch of a Gram Panchayat, as section 17 of the Panchayat Act only provides for vacation of seats by removal of a Panch, Sarpanch, & Up-sarpanch & that such power cannot be exercised by the State Govt. by making election Rules, was not pressed by Mr. Dhankar, as the same has already been decided in Ranjit Ram v. The Munsif and Judicial Magistrate, Shahpura, District Jaipur and others (S.B. Civil Writ Petition No. 1351 of 1983, decided on November 3, 1983 , to which I was a party). It has already been held in the above case that the State Government was fully empowered to make such Rules in exercise of its powers given in clause (XXXVIII-d) and (e) of section 89 of the Act. 13. As a result of the above findings, I find no force in this writ petition and it is accordingly, dismissed with no order as to costs. 14. In view of the writ petition having been dismissed, the stay order passed in this case, shall stand automatically vacated.Petition dismissed. *******