IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12801 of 2007 AMLA DEVI WIFE OF SRI RAMJIVAN YADAV, RESIDENT OF VILLAGE- KRANCHI, TOLA-SIRSIYA, P.O. & P.S. BITHAN, DISTRICT- SAMASTIPUR. …. PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER CUM SECRETARY, PANCHAYATI RAJ, BIHAR, PATNA. 2. STATE ELECTION COMMISSION, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA THROUGH CHIEF ELECTION COMMISSIONER. 3. DISTRICT ELECTION OFFICER, SAMASTIPUR. 4. BLOCK DEVELOPMENT OFFICER CUM ELECTION OFFICER, BITHAN, DISTRICT- SAMASTIPUR. 5. BLOCK WELFARE OFFICER CUM ASSISTANT ELECTION OFFICER, BITHAN, DISTRICT- SAMASTIPUR. …. RESPONDENT 1ST SET. 6. MALA DEVI WIFE OF SRI GAJENDRA PRASAD, RESIDENT OF VILLAGE- KRANCHI, TOLA SIRSIYA, P.O. & P.S. BITHAN, DISTRICT- SAMASTIPUR. …RESPONDENT 2ND SET. 7. NIJHAT PRAWEEN WIFE OF EKBAL AHMAD, RESIDENT OF VILLAGE-MANORWA, P.O. SOHMA, P.S. BITHAN, DISTRICT- SAMASTIPUR. 8. ISHRAT KHATOON WIFE OF TAUHID AHMAD, RESIDENT OF VILLAGE- MANORWA, P.O. SOHMA, P.S. BITHAN, DISTRICT- SAMASTIPUR. 9. RAHIMA KHATOON DAUGHTER OF GHULAM ABBAS, RESIDENT OF VFILLAGE- MANORWA, P.S. SOHMA, P.S. BITHAN, DISTRICT- SAMASTIPUR. 10. UMA DEVI WIFE OF MAHENDRA PRASAD SINGH, RESIDENT OF VILAGE- TELNI, P.O. PUSHO, P.S. BITHAN, DISTRICT- SAMASTIPUR. 11. URMILA DEVI WIFE OF SRI NIRAS MAHTON, RESIDENT OF VILLAGE- MANORWA, P.O. SOHMA, P.S. BITHAN, DISTRICT- SAMASTIPUR. 12. SHANTI DEVI WIFE OF RAJKUMAR YADAV, RESIDENT OF VILLAGE- KRANCHI, TOLA SIRSIYA, P.O. & P.S. BITHAN, DISTRICT- SAMASTIPUR. …RESPONDENTS 3RD SET. … RESPONDENTS. For the Petitioner: Mr. Ranjit Kumar Yadav, Advocate. For the State: Mr. Ranjeet Kumar Pandey, A.C. to G.P.-21 2 For the Respondent No.6: M/s. Bhupendra Narain Dubey & Shailendra Kumar. For the Commission: Mr. Sanjeev Nikesh, Advocate. ----------- 5. 3.2.2011 Heard learned counsel for the petitioner, State, State Election Commission and the counsel for Respondent No.6 whose election as Mukhiya has been upheld by election tribunal under orders dated 24.4.2007 passed in Election Petition No. 6 of 2006 by Civil Judge (Junior Division), Rosera. It appears petitioner questioned the election of Respondent No.6 on the ground that the votes polled in his favour without the Swastik Mark has not been counted and thereby Respondent No.6 has been allowed to steal a march over him and declared elected. It is also submitted on behalf of the petitioner that had the votes polled in favour of contesting candidate(s) including petitioner and Respondent No.6 with or without Swastik Mark counted petitioner would have polled more votes than Respondent No.6 and his election should have been set aside by the election tribunal. It is submitted on behalf of the Respondents that in compliance of the instruction of the State Election Commission votes polled without the 3 Swastik Mark were not counted and taking into account the valid votes private Respondent No.6 was declared elected. It is also submitted that the direction of the Election Commission not to count the votes polled without the Swastik Mark was affirmed by the Division Bench of this Court and relying on the said decision another Division Bench of this Court in the case of Pappi Singh Vs. The State Election Commission reported in 2010(3) PLJR 167 has upheld the election of the returned candidate that application for recounting having not been filed before the Returning Officer the election of the returned candidate could not be questioned subsequently on the ground that the votes polled without Swastik Mark should have been counted. 2. Petitioner having not requested the Returning Officer to recount the ballots Relying on the aforesaid two judgment(s) of the Division Bench, I dismiss the writ petition. Ibrar/- ( V. N. Sinha, J.)