IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2159 of 2009 SABINA KHATOON, wife of Badruddih Ahmad, resident of village- Kurmathu, P.S.-Amas, District-Gaya. ………Petitioner Versus 1. Renu Devi, wife of Navin Singh, resident of village-Nima, P.O.-Shyam Nagar Nima, P.S.-Amas, District-Gaya. 2. Kusum Devi, wife of Mathura Prasad Ravidas, resident of village- Akauna, P.O.-Sherghati, P.S.-Amas, District-Gaya. 3. Zubaida Khatoon, wife of Munshi Nayeemuddin, resident of village- Baida, P.O.-sherghati, P.S.-Amas, District-Gaya. 4. Durgawati Singh, wife of Satyendra Kumar Singh, resident of village- Nima, P.O.-Shyam Nagar Nima, P.S.-Amas, District-Gaya. 5. Nazrina Khatoon, wife of Afroz Khan, resident of village-Supai, P.O.- Shyam Nagar Nima, P.S.-Amas, District-Gaya. 6. Punam Devi, wife of Ashok Kumar Singh, resident of village-Nima, P.O.-Shyam Nagar Nima, P.S.-Amas, District-Gaya. 7. Babita Devi, wife of Laxman Manjhi, resident of village-Supai, P.O.- Shyam Nagar Nima, P.S.-Amas, District-Gaya. 8. Madhuri Devi, wife of Arun Kumar Maurya, resident of village-Akauna, P.O.-Sherghati, P.S.-Amas, District-Gaya. 9. Shahnaz Khatoon, wife of Neyaz Ahmad Khan, resident of village- Supai, P.O.-Shyam Nagar Nima, P.S.-Amas, District-Gaya. 10. Shahnaz Bano, wife of Md. Khaliqur Rahman, resident of village- Baida, P.O.-Sherghati, P.S.-Amas, District-Gaya. 11. Shanti Devi, wife of Rajeshwar Singh, resident of village-Nima, P.O.- Shyam Nagar Nima, P.S.-Amas, District-Gaya. 12. Shobha Devi, wife of Sharvan Kumar, resident of village-Akauna, P.O.-Sherghati, P.S.-Amas, District-Gaya. 13. Salma Khatoon, wife of Md. Irshad Ansari, resident of village- Akauna, P.O.-Sherghati, P.S.-Amas, District-Gaya. 14. Sufi Khatoon, wife of Khairuddin Ahmad, resident of village Kurmathu, P.O.-Shyam Nagar Nima, P.S.-Amas, District-Gaya. 15. The State of Bihar through the Principal Secretary, Panchayati Raj, Government of Bihar, Patna. ……..Respondents. ----------- 06. 03.02.2010 Heard Mr. Mangalam, learned counsel in support of the writ petition and Mr. Sharma, learned senior counsel appearing for respondent No. 1 whose election was questioned and the election petition was dismissed. - 2 - Both the learned counsels agreed that the Trial Court has found that after votes were counted, the Returning Officer carried out a recheck of votes when parties were not present. He accordingly corrected Form 20 and later declared result on that basis. Election petition has been dismissed on the sole ground that as required by Rule 79 of the Bihar Panchayat Election Rule 2006, petitioner had not given any application for recount and not having done so, his prayer for recount in the election petition could not be entertained. In my view the judgment can not be sustained. As noted above, the fair stand of both the counsels is that once counting was completed, the Returning Officer reverified the votes. This obviously was unknown to anyone. Where was the occasion for any party to file application for recount ? An application in terms of Rule 79 of the Rules can only be filed if a party is aware of certain facts. Admittedly in the present case, till declaration of result no one was aware that the Returning Officer had suo-motu recounted/re-verified the votes and made certain deduction, thus materially altering the results. It is, therefore, specifically prayed in the election petition that the Court must order a recount. In my view, the finding of the learned Judge that the prayer of recount can not be entertained in absence of - 3 - an application in terms of Rule 79 is unsustainable in the facts of the present case. If that be so then the judgment can not be sustained. Accordingly, I set aside the judgment of Additional Munsif, Sherghati, Gaya in Election Petition No. 01/2006/01/2007 and direct that the learned Court below would re-hear the arguments and proceed in accordance with law to deliver judgment. As no fresh evidence has to be recorded, only arguments to be heard, it is expected that the learned Additional Munsif would expedite and conclude the matter preferably within a period of three months from today. The writ application is accordingly allowed. Shageer (Navaniti Prasad Singh, J)