IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4895 of 2010 1. REETA DEVI W/O SRI INDRA MOHAN SINGH R/O VILL.- ANDAMA, P.S. BAHADURPUR, DISTT.- DARBHANGA Versus 1. THE STATE OF BIHAR 2. ELECTION COMMISSION, GRAM PANCHAYAT ELECTION, BIR CHAND PATEL MARG, PATNA-1 3. THE DISTRICT ELECTION OFFICER-CUM- COLLECTOR, GRAM PANCHAYAT ELECTION 2006, P.S. LAHERIA SARAI, DISTT.- DARBHANGA 4. SRI AMAR NATH SAH, BLOCK DEVELOPMENT OFFICER-CUM-RETURNING OFFICER, BAHADURPUR BLOCK, DISTT.- DARBHANGA 5. SRI BIRENDRA KUMAR MISHRA, ELECTION COUNTING OFFICER, BAHADURPUR DISTT.- DARBHANGA 6. SRI N.K.SINGH, ELECTION COUNTING OBSERVER, BAHADURPUR, DISTT.- DARBHANGA 7. SARO DEVI W/O SRI RAM NARESH SAH R/O VILL.- BIUNI, P.S. BAHADURPUR, DISTT.- DARBHANGA 8. KAMLESHWRI DEVI W/O NIKET SINGH R/O VILL.- ANDAMA, P.O. KUSHOTHAR, P.S. BAHADURPUR, DISTT.- DARBHANGA 9. KANTI DEVI W/O HARE RAM MANDAL R/O VILL.- ANDAMA, P.O. KUSHOTHAR, P.S. BAHADURPUR, DISTT.- DARBHANGA 10. NIRMALA DEVI W/O MAHENDRA SINGH R/O VILL.- ANDAMA, P.O. KUSHOTHAR, P.S. BAHADURPUR, DISTT.- DARBHANGA 11. NUTAN DEVI W/O SANJAY SINGH R/O VILL.- ANDAMA, P.O. KUSHOTHAR, P.S. BAHADURPUR, DISTT.- DARBHANGA 12. PHOOL KUMARI DEVI W/O MITHILESH LAL DEV R/O VILL.- BIUNI, P.O. KUSHOTHAR, P.S. BAHADURPUR, DISTT.- DARBHANGA 13. SAVITA DEVI W/O RAM NARESH LAL DEV R/O VILL.- BIUNI, P.O. KUSHOTHAR, P.S. BAHADURPUR, DISTT.- DARBHANGA 14. SIYA DEVI W/O SOTI LAL YADAV R/O VILL.- BARNAR, P.O.- MAHAPARA, P.S. BAHADURPUR, DISTT.- DARBHANGA 15. SUDHA DEVI W/O SRI BRAJENDRA KUMAR SINGH R/O VILL.- ANDAMA, P.O. KUSHOTHAR, P.S. BAHADURPUR, DISTT.- DARBHANGA 16. SUNITA DEVI W/O SRI RAMNDESH MUKHIYA R/O VILL.- BHATANI, P.O. KUSHOTHAR, P.S. BAHADURPUR, DISTT.- DARBHANGA ----------- 2 For the Petitioner :Mr. Vishwanath Pd. Singh, Sr. Adv. and Mr. Yugal Kishore For respondent no.7 : M/s B.N.P.Singh & Bijendra Kr. Singh For the State : Mr. Bibhakar Tiwary A.C. to G.P.19 For the Commission : Mr. Sanjeev Nikesh. 2 4.5.2010 Petitioner was elected as Mukhiya of Panchayat Raj Beuni Andama under Bahadurpur, District- Darbhanga. The candidate, who has come second and lost by only seven votes, filed an election petition, as contemplated under Bihar Panchayat Raj Act, 2006 being Election Petition No. 6 of 2006 before the learned Munsif, Darbhanga. By the election petition she, inter alia, challenges the manner in which certain votes were declared invalid and prayed for recounting. The learned Munsif has acceded to that request by judgment and order dated 5.3.2010 and ordered that there should be re-count of votes polled at booth no. 225 and on basis thereof the result would be declared. By this writ application, this order was challenged. During the pendency of the writ petition , recounting was done and on re-counting respondent no.7 was declared elected by eight votes over the petitioner. By interlocutory application, which is allowed, the same has also been challenged. Respondent no.7 has appeared. With the consent of the parties, the writ petition has been heard for disposal at this stage itself. On behalf of the petitioner, it is submitted that no evidence has been brought on record to show that respondent no.7, the election petitioner had made any written protest , as contemplated 3 under Rule 79 of the Bihar Panchayat Election Rules, 2006 and that being so learned election tribunal erred in accepting the plea for re- count and consequently actions taken in pursuant thereto are invalid in law. On the other hand, learned counsel for respondent no.7 with reference to pleading and evidence brought on record points out that the election petitioner’s case was that while counting was going on , finding a large number of votes rejected as invalid, she protested in writing but the respondents did not take note thereof or acknowledge the same. In course of evidence, it was brought on record that while counting was going on , the Returning Officer had sought clarification from the Election Commission with regard to the manner in which certain votes were cast. On the next day, the Election Commission clarified and acting pursuant to that counting was completed and result declared. On behalf of respondent no.7, the election petitioner, it is stated that while votes were being cast in booth no. 225, the election officer, present there , instead of issuing Swastik seal, he supplied his own seal to the voters and as such all votes polled at that booth was marked with the Election Officer’s seal. It is in this respect, the Returning Officer had sought clarification from the Election Commission, who by their letter, which has been duly brought on record in trial clarified that as the mark affixed on the votes was not by the seal supplied by Election Commission, all those votes should be rejected as invalid. The Tribunal relying on various 4 judgments including the judgment of the Apex Court held that where the votes were affixed with mark, as supplied by the Election Officer, those votes could not be rejected . It was not the case that few votes had different mark but the fact was that all votes of that booth had similar mark. This persuaded the election tribunal to order re-count of all votes polled at booth no. 225. It is legality and proprietary of this that is under challenge. So far petitioner’s contention with regard to non compliance of Rule 79 is concerned, prima facie the petitioner is correct. If no protest is made while counting is being done then the counting cannot be challenged. This matter has been extensively dealt with in a very recent judgment of the Apex Court in the case of Kattinokkula Murali Krishna –v- Veeramalla Koteswara Rao & ors. since reported in 2010 (1) SCC 466 but each decision has to be seen on the facts of the case. Here , it is not in dispute that the entire votes polled in respect of booth no. 225 were declared invalid only on the ground that it did not bear Swastik mark instead all of them bore the mark of election officer at the booth. This fact is not disputed. It is also not disputed that votes polled in that booth were in favour of one party or the other. They were distributed in favour of different persons. It is thus apparent that voters of that booth had used the mark as was supplied to them without exception. In my view the judgments of the Apex Court in the case of T.H. Musthaffa-v- M.P. Varghese & ors. Since reported in AIR 5 2000 SC 153 , Era Sezhiyan Vrs. T.R. Balu & ors. since reported in AIR 1990 SC 838 and Hari Shankar Prasad vs. Shahid Ali Khan & ors. Since reported in AIR 2003 SC 1302 squarely apply. Those votes, on the facts, as found by the tribunal rightly could not be declared as invalid. These are the facts, which were brought on record and were well established .The Election Officer or the Returning Officer had not favoured any party but the question was whether the votes duly polled could be rejected on that ground, which in view of the Supreme Court judgment that the votes have to be marked by the mark supplied and if the instrument supplied was defective then those votes could not be rejected. Effectively it is the advice given by the Election Commission that was challenged. Thus, being the evidence on record , in my view, the judgment and order of the election tribunal cannot be interfered with. Notwithstanding no application in terms of Rule 79 having been brought on record in that respect. In that view of the matter, the order of the election tribunal does not call for any interference. The writ petition is accordingly dismissed. Singh (Navaniti Prasad Singh, J.)