IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.460 of 2009 BIRENDRA SINGH son of Shyam Bihari Singh resident of village Samahuta, P.O. Udaipur, P.S. Sanjhauli, District Rohtas Versus THE STATE OF BIHAR & ORS ----------- For the Appellant : M/S. Y. V. Giri, Sr. Advocate & Raju Giri For the Election Commission : Mr. Sanjeev Nikesh. ------ 2 16/04/2009 The appellant contested the election for the post of Mukhiya of Gram Panchayat Raj Udaipur under Block Sanjhauli in the district of Rohtas. In the said election he was declared elected. Respondent no. 8 in this appeal, namely, Vimal Kant Singh secured second highest vote in the said election. Respondent no. 8 filed an election petition being Election Case no. 13 of 2006 under section 137 of the Bihar Panchayat Raj Act, 2006 before the Election Tribunal (Munsif), Bikramganj, Rohtas and prayed for recounting of votes of booth no. 58. It is the case of the appellant that after the counting and before filing the election petition, respondent no. 8 had not filed any application under Rule 79 of the Rules before the Returning Officer for recount of the votes. It is also said that the election petition was not signed and verified in terms of Rule 108 of the Rules. He also submitted that the conditions laid down by the Hon’ble Supreme Court in Chandrika Prasad Yadav Vs. State of Bihar and others - 2 - reported in (2004)6 SCC, 331 and Hoshila Tiwari Vs. State of Bihar and others reported in 2008(4) PLJR, 62 (S.C.) was not followed and moreover the election petition is bad in law. When the writ petition being C.W.J.C. 4259 of 2009 was filed, the learned Single Judge issued notices to the respondents in the admission matter but the stay petition was refused. It is the contention of the learned counsel for the appellant that if the recounting is allowed to be done, the main case will become infructuous and, therefore, the recounting should have been stayed. When the learned Single Judge found that there is a prima facie case and issued notices in the admission matter of the writ petition and the interim relief was not granted till the disposal of the writ petition, an irreparable loss will be caused to the appellant. We are not hearing the writ petition filed against the order of the Election Tribunal and merits of the case cannot be gone into in appeal filed against an interim order. It is true that the Election Tribunal ordered recounting of votes on the basis of the facts that were placed before it and the learned Single Judge did not consider that the stay should be issued immediately. Considering the facts and circumstances of the case, we order that even if recounting of votes is done, its result shall not be declared by the Tribunal or the Returning Officer till the final hearing of the writ application and at the time of hearing of the writ petition regarding correctness of the order of recounting of votes should be considered and only then the result of the counting should be declared. - 3 - With the above observation, this appeal is disposed of. (J. B. Koshy, CJ.) (Dr. Ravi Ranjan, J.) AMIN