' By order dated 14-9-2002 the learned Election Tribunal has A ordered the examination of record and recount, on an election petition filed by respondents Nos.2 and 3. This order was assailed through Writ Petition No,17499 of 2002 which petition has been dismissed by the learned Single Judge on 24-9-2002. The said order is sought to be assailed through this Intra-Court Appeal.
2. Learned counsel contends that there was no power with the Election Tribunal to have ordered the recount nor any justification was made by the respondents/election petitioners. It is pointed out that A although under rule 39(5) and rule 40(6) of Punjab Local Government Elections Rules, 2000 a Presiding Officer and the Returning Officer could undertake recount yet the Election Tribunal has no such power. Reference has been made to Muhammad Tayyab Tahir and another v. Muhammad Khalid Sardar and others 1999 SCM R 1126 and Zulfiqar Ali v. Election Tribunal/Civil Judge 1st Class, Kanpur and 5 others 2000 M LD 746 by him and to few unreported judgments.
3. We have considered the matter in the light of the contentions raised by the learned counsel and the material on the record but find ourselves unable to endorse his contentions inasmuch as in the Election Petition filed by respondents Nos.2 and 3 they had laid the premises assailing the correctness of the count and the result so prepared. On 22-9-2001 the election petitioners made a statement before Election Tribunal that they only wanted recount of votes by dropping rest of the allegations. It was in the light of such a prayer made by the Election petitioners that the learned Tribunal proceeded to pass order dated 14-9-2002, which order was passed after hearing the parties. On scrutiny of this record, it was found by the learned Tribunal that:-- "there exists sufficient justification for scrutiny and recounting of votes of the parties cast at various polling stations of the Union Council in question. The petitioners have taken specific and definite allegation in their election petition that there had been bungling in the scrutiny and counting of the votes by the Polling Staff of the different polling stations in the Union Council. Even, before the institution of their Election Petition and soon after the Election viz. 2-6-2001, they through their counsel filed application with the District Returning Officer for recounting of votes of the parties.
That application, as already observed, was not decided on merits by the learned District Returning Officer before consolidation of the results."
' It was on scrutiny of the matter by the learned Tribunal that it was satisfied that there exist justification for recount and he ordered so. We find that in the facts and circumstances of the case no illegality was committed by the Tribunal in ordering the examination of record and recount.
4. Insofar as, the contention of the learned counsel as to the power of the Tribunal about examination of the record and count is concerned, it may be observed that when such a power is conceded to the Presiding Officer in view of rule 39(5) and the Returning Officer under Order 40(6) of the Punjab Local Governnis,nt Elections Rules, 2000 such a power cannot be denied to the Election Tribunal who while hearing the Election Petition is empowered to declare the election as a whole to be void. Such a power is ancillary and incidental to the main jurisdiction of the Tribunal. It cannot be denied the exercise of such power nor denuded of the same. It may be observed that while dismissing Writ Petition No,10445 of 2001 concerning the same parties this Court had observed that such a question can be more effectively resolved through an election petition rather seeking the recount and examination by the Returning Officer. That petition was dismissed in view of such a remedy being available to the petitioner before the Election Tribunal. It also thus lends support to the view that Election Tribunal is vested with the power of ordering, examination of the record and recount. As observed above, the Tribunal has in the instant case in view of the allegations, considered it just and proper to examine the record in order to find out the correctness of the count.
5. It has rightly been observed by the learned Single Judge that the petitioner would have the opportunity of challenging the final decision, if ultimately it goes against him. The petitioner can vigilantly take part in the examination and scrutiny of the record to be undertaken by the learned Tribunal on 28-9-2002 and thereafter have resort to the remedy, if necessary.
6. we find no justification to interfere with the orders. The Intrar- ID Court Appeal is accordingly dismissed.