IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15530 of 2008 ABHASH KUMAR SON OF PARSURAM MANDAL RESIDENT OF VILLAGE CHINBARIA, P.O. ARBARIA, P.S. LAXMIPUR, DISTRICT- JAMUI ------------------ Petitioner Versus 1. THE STATE OF BIHAR 2. Bihar State Election Commission, Patna. 3. District Magistrate-cum District Election Officer (Panchayat), Jamui. 4. Shyam Sundar Mandal son of Late Durga Mandal resident of village Chinbaria, P.O. Arbaria, P.S. Laxmipur, District- Jamui 5. Doman Yadav son of Basudeo Yadav 6. Bachchu Yadav son of Ghutar Yadav. 7. Munnilal Yadav son of Faudi Yadav. All residents of village Chinbaria, P.O. Arbaria, P.S. Laxmipur, District- Jamui 8. Ramesh Murmu son of Babulal Hembram resident of village Marain Bathan, P.O. Arbaria, P.S. Laxmipur, District- Jamui 9. Rabindra Yadav son of Harihar Yadav resident of village Chinbaria tola Singhia P.S. Laxmipur, District- Jamui 10. Raj Kumar Yadav son of Baldeo Yadav resident of village Chinbaria, tola Singhia P.S. Laxmipur, District- Jamui 11. Satya Narayan Yadav son of Tulsi Yadav resident of village Chinbaria, P.O. Arbaria, P.S. Laxmipur, District- Jamui -------------- Respondents. ------------------ For the Petitioner :- Mr. S.N. P. Sharma, Sr. Adv. Mr. Amarndra Kumar , Adv. For the Commission :- Sanjeev Nikesh , Adv. For the State :- Jay Prakash Sharma, J.C. to S.C. VI ----------- 2. 20.11.2008 Heard learned counsel for the petitioner, learned counsels for the State and for the Bihar State Election Commission. The petitioner seeks quashing of the order dated 23.9.2008 passed by the Sub-Judge Ist, Jamui in Election Petition No. 4 of 2006 by which he has directed the officials to send the bundle of rejected ballot papers of Booth Nos. 29 and 31 concerning the election of a member of the Panchayat Samiti of Chinbaria Panchayat Samiti for inspection, scrutiny and also for re-examination and verification. The petitioner who is the candidate declared elected is - 2 - aggrieved by the said order on the ground that the election petitioner did not apply for recounting as per the provisions of Rule 79 of the Bihar Panchayat Election Rules nor any reason has been assigned in the election petition as to why he did not seek such recounting. In support of the said proposition learned counsel relies upon a decision of the Supreme Court in the case of Hoshila Tiwari vs. State of Bihar: 2008(4) PLJR 62 (SC). From a consideration of the facts of the case, it appears that the main issue raised in the present matter is regarding the fact that as many as 38 ballot papers were rejected on the ground that they did not contain the swastik mark whereas the case of the election petitioner was that one of the two instruments supplied for fixing the swastika mark did not contain the rubber stamp on the wood and it had fallen down or removed away. For the said reasons the marks had not properly come out. The case of the election petitioner is that 35 out of 38 votes were cast in favour of the petitioner and on account of the default of the election authorities he should not be penalised. Learned counsel for the petitioner states that the same is not permissible in view of the mandatory rules in this regard contained in the Bihar Panchayat Election Rules. Be that as it may, the present matter does not stand on the same footing prima facie as the facts in the case of Hoshila Tiwari and a very different issue appears to have been raised in the present matter. Hence this Court does not consider it fit that the same should be interfered with in its writ jurisdiction at this stage when the election - 3 - petition has not yet been finally disposed of. The writ application is, accordingly, dismissed. It is, however made clear that it would be open to the petitioner to raise all pleas with regard to the said matter as are available to him at the stage of final argument in the election petition. P. Kumar (Ramesh Kumar Datta, J.)