IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.373 of 2008 ANITA DEVI Versus THE STATE OF BIHAR & ORS ----------- Counsel for the Appellant:- Mr. Baxi Sinha,Advocate, Mr. Harendra Pd.Singh,Advocate and Mr. Satyeshwar Pd. Advocate Counsel Respondent No.11 :Mr. Y.V.Giri, Sr. Advocate & Mr. Raju Giri, Advocate Counsel for respondents7-10: Mr.Arun Kumar No.1 Counsel for the State : Mr.Abhinay Raj,Asst.Counsel to G.P.IX Counsel for the Commission:- Mr. K.B. Nath Advocate & Mr. Sanjeev Nikesh,Advocate 3 21-4-2009 Heard learned counsel for the appellant and learned counsel for the respondent/writ petitioner. The appellant lost the election of Mukhia by a narrow margin of four votes and filed an election petition with a prayer for recounting of votes. The learned Munsif, Gopalganj allowed the prayer by order dated 12-9-2007. Against that order the successful candidate preferred the writ petition in question bearing C.W.J.C No. 12456 of 2007 which has been allowed by the order under appeal dated 11-4-2008 and the order of the learned Munsif for recounting of ballots has been set aside. On behalf of appellant it was submitted that no doubt the required application for recounting of votes as per Rule 79 of the Bihar Panchayat Election Rules,2006 ( hereinafter referred to as the Rules) was not submitted by the appellant before the concerned Returning Officer but in paragraph-5 of the election petition an explanation was offered as to why the petition could not be filed. According to him in view of such explanation available on record the - 2 - Election Tribunal had the jurisdiction to order for recounting of ballot papers in view of judgment of the Apex Court in the case of Chandrika Prasad Yadav Vrs. State of Bihar, (2004) 6 SCC331 as well as a subsequent judgment in the case of Hoshila Tiwari Vrs. State of Bihar, 2008 (4) PLJR (SC) 62. On behalf of respondent/writ petitioner it was submitted that there is no quarrel with the aforesaid proposition of law but on perusal of paragraph-5 of the election petition, it would be clear that no specific case has been made out that a petition under Rule 79 of the Rules was prepared and was attempted to be handed over to the Returning Officer but was not accepted by him. It was further pointed out that as per pleadings there was no extra-ordinary situation or material impediment which could prevent the election petitioner from preferring the required application under Rule 79 of the Rules. We have considered the averments made in paragraph-5 of the election petition with care and find that only general and vague allegations have been made that the Returning Officer, respondent no.6 was in collusion with the successful candidate, respondent no.1 and as a result of such collusion the Returning Officer did not listen to protest by the agents of the election petitioner and no action was taken by him. The law is well settled by the Apex Court in the case of Chandrika Prasad Yadav (supra) that ordinarily, the statutory remedy to seek recounting provided under the Rules shall be availed of. If it is not done by the election petitioner, he has to state the reasons and - 3 - furnish sufficient explanation as to why such statutory remedy was not availed of. The explanation furnished in the present case as noticed above does not give particulars of the facts and circumstances which could show that the election petitioner was in fact prevented by those prevailing material situation from making the required application under Rule 79 of the Rules. In a catena of judgments it has been held that recounting of ballots is not to be ordered unless sufficient and good ground has been made out for the same. The reasons for seeking recounting of ballot papers are required under the rules to be mentioned in the application to be submitted to the Returning Officer under Rule 79. If such application could not be filed as in the present case the burden is upon the election petitioner to give reasons as well as sufficient explanation. No reason or explanation can be accepted as good and satisfactory unless it is based upon clear and specific pleadings which the court may accept or may not accept on the basis of materials on record. As noticed in the present case the reasons and the explanations are only in most vague terms that the protest made by the election petitioner were not paid heed by the Returning Officer because he appeared to be in collusion. On what materials collusion has been alleged is missing and even particulars of the conduct of the Returning Officer which could lead to an inference of collusion have not been stated in the concerned paragraph of the election petition. Only on clear and sufficient explanation by the election petitioner, the Election Tribunal could have looked into the reasons and grounds on which recounting of - 4 - ballot was sought for. For that also the law of clear pleading must apply. The reasons must be such which may require a Returning Officer to order for recounting in case an application had been made to him under Rule 79 of the Rules. No further discussion is required to be made when the judgment under appeal is upheld in view of earlier finding on perusal of the relevant pleadings in election petition. We do not find that the election petitioner has made out clear and good reasons and explanation for not preferring application under Rule 79 of the Rules. Hence, we find no good reason to interfere with the order of the writ court. The appeal is, therefore, dismissed. ( Shiva Kirti Singh,J) ( Dharnidhar Jha, J)