IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11971 of 2010 1. GANESH YADAV S/O MAHIPAL YADAV R/O VILL.- CHANDRAPURA, P.S.- SANGRAMPUR, DISTT.- MUNGER Versus 1. PANKAJ KUMAR SINGH S/O SHRI PRAN MOHAN SINGH R/O VILL.- LASKARA, P.S.- SANGRAMPUR, DISTT.- MUNGER 2. GANESH YADAV S/O MAHIPAL YADAV R/O VILL.- CHANDRAPURA, P.S.- SANGRAMPUR, DISTT.- MUNGER 3. RAMCHANDRA YADAV S/O BASUDEO YADAV R/O VILL.- CHHATA, P.S.- SANGRAMPUR, DISTT.- MUNGER 4. RANJAN KUMAR S/O RAMCHANDRA YADAV R/O VILL.- CHHATA, P.S.- SANGRAMPUR, DISTT.- MUNGER 5. JAIPRAKASH BHAGAT S/O RAMCHANDRA BHAGAT R/O VILL.- CHHATA, P.S.- SANGRAMPUR, DISTT.- MUNGER 6. KAMLESH KUMAR SINGH S/O LATE SITARAM SINGH R/O VILL.- LASKARA, P.S.- SANGRAMPUR, DISTT.- MUNGER 7. SANTOSH KUMAR SINGH S/O SRI PRAN MOHAN SINGH R/O VILL.- LASKARA, P.S.- SANGRAMPUR, DISTT.- MUNGER 8. RAMTAHAL PRASAD SINGH S/O LATE AMRIT MANDAL R/O VILL.- NONAJEE, P.S.- SANGRAMPUR, DISTT.- MUNGER 9. KRISHNANAND YADAV S/O LATE DAMODAR YADAV R/O VILL.- BHANDAR, P.S.- SANGRAMPUR, DISTT.- MUNGER 10. BISHUNDEO YADAV S/O LATE BUDHU YADAV R/O VILL.- BHANDAR, P.S.- SANGRAMPUR, DISTT.- MUNGER 11. ASHOK MANDAL S/O LATE DEEPNARAYAN MANDAL R/O VILL.- BHALGURI, P.S.- SANGRAMPUR, DISTT.- MUNGER 12. RAMDEO KUMAR BHARTI S/O DINESH MANDAL R/O VILL.- BHALGURI, P.S.- SANGRAMPUR, DISTT.- MUNGER 13. THE STATE OF BIHAR THROUGH COLLECTOR, MUNGER 14. THE COLLECTOR-CUM-DISTRICT ELECTION OFFICER, MUNGER 15. S.D.O., KHARAGPUR 16. BLOCK DEVELOPMENT OFFICER, TETIYA BUMBAR - CUM - ELECTION OFFICER FOR PANCHAYAT ELECTION 17. AMRENDRA KUMAR AMAR ASSISTANT RETURNING OFFICER FOR TETIYA BUMBER ANCHA For the Petitioner:- Mr. Ranjan Kumar Jha & Mr. Thakur Manish Mohan, Advocate For Respondent No.1:- Mr. Ashok Kumar Singh, Sr., Advocate & Mr. Prakash Kumar, Advocat For the State:- Mr. Sanjay Kumar, A.C. to S.C.-I ----------- 05. 24.01.2011 Heard learned counsel for the petitioner and learned counsel for respondent no.1. 2 The petitioner was the winning candidate in the Panchayat Election which was questioned by respondent no.1 in Miscellaneous Election Petition No. 12 of 2006 upon 19 of 2009 before the Munsif-I, at Munger. By the judgment dated 17.7.2010, the learned Munsif holding that the respondent no.1/Election petitioner had raised objections in writing under Rule 79 (1) of the Bihar Panchayat Raj Rules 2006 (hereinafter called the Panchayat Rule) with regard to the errors during counting of votes allowed the prayer for recounting of ballots. Learned counsel for the petitioner strongly relied upon the findings in the impugned order that the application under Rule 79 (1) was filed after the counting was over. He submit that the statutory requirement of filing such application during the counting was mandatory in absence of which the impugned order is unsustainable. He next submits that even in the application preferred under Rule 79 (1), if it could have been entertained after counting was over, no grounds have been spelt out for invocation for this extraordinary power interfering with the secrecy of the ballot. Leaned counsel for respondent no.1 strongly relied upon a decision reported in 2008 (4) P.L.J.R. 62 (SC) (Hosila Tiwari Versus State of Bihar). He submitted that mere non-filing of an application under Rule 79 (1) during 3 counting cannot defeat the claim for a prayer to recount the votes, if grounds are otherwise made out to the satisfaction of the Court concerned. He submits that the petitioner did file an application. In his pleadings he also demonstrated the circumstances under which he was unable to file his objections during the counting. Therefore under the findings recorded in paragraph-11 of the aforesaid judgment, the Munsif did not commit any material irregularity in directing counting of votes. It was not a mandatory requirement that under all circumstances the objection must be filed during the counting only. The law laid down in Hosila Tiwari (supra) primarily is that compliance with Rule 79(1) was mandatory. Quoting an extract from its own judgment reported in 2004 (6) SCC 331 (Chandrika Prasad Yadav Versus State of Bihar & others) at paragraph-20 and 21 of the same, the Supreme Court reiterated the legal positing with regard to Rule 79 (1) thus:-. “20. It is well settled that an order of re- counting of votes can be passed when the following conditions are fulfilled: (i) a prima facie case; (ii) pleading of material facts stating irregularities in counting of votes; (iii) a roving and fishing inquiry shall not be made while directing re-counting of votes; and (iv) an objection to the said effect has been taken recourse to. 4 21. The requirement of maintaining the secrecy of ballot papers must also be kept in view before a re-counting can be directed. Narrow margin of votes between the returned candidate and the election petitioner by itself would not be sufficient for issuing a direction for re-counting.” The conclusion recorded in the case of Hosila Tiwari (supra) at paragraph-11 is that in the event a candidate is able to demonstrate sufficient explanation or material to show that he was prevented from circumstances prevailing beyond his control from making such an application, in such circumstances it may become a question of fact whether the application under Rule 79 (1) can be entertained after the counting is over. But where opportunity was available to the aggrieved party to make a complaint, but he does not make such a complaint, the principle could not be applied in a standardized manner. The factual situation which fail for consideration before the Supreme Court arising out of a judgment from this Court related to an unruly situation created at the time of counting because of which for circumstances beyond his control the aggrieved is unable to file objection for no fault of his. Therefore, the mandatory requirement of Rule 79 (1) has been affirmed. What has been relaxed is to a limited extent provided the facts of the case justified the same and there is material on record to arrive at that reasonable 5 explanation and satisfaction. The respondent no.1 filed his application undoubtedly after the counting was over. The application only states that he had been made to loose by a narrow margin by committing irregularities. The counting was continuing and suddenly on conclusion of the counting he was told that he had lost and that he should leave. He asked for a detailed report which was not furnished indicative of foul intention. He therefore requested for appropriate action. It is apparent that in his application he did not even raise a whisper of suggestion of what irregularities were committed during counting much less any ground that he was prevented from complaining or that circumstances prevailing prevented him from complaint. In fairness to the respondent no.1, the Court shall also consider his plaint which has been brought on record by way of a supplementary counter affidavit. Crucial are paragraphs 15 to 20 of the same. Even therein he only makes a grievance that on certain tables the counting was done in absence of his representative. Ballot papers were wrongly taken into account and ballot papers in his favour wrongly rejected. He was not allowed entry of his Election Agent during counting. He along with his counting agent only was unable to oversee the counting since counting was taking place at eight tables and it was not possible for 6 the petitioner or his counting agent to be simultaneously present near all the tables. The petitioner even in his pleading does not make a whisper of a suggestion as to what were the circumstances beyond his control at the time of counting which prevented him from filing an objection of alleged irregularities during the counting process. On his own showing, he was inside the counting place along with his counting agent. Applying the principle laid down in the case of Hosila Tiwari (supra) with regard to acceptance of an application under Rule 79 (1) after the counting was over, the petitioner has not been able to make out a case to the satisfaction of the Court that he was prevented from filing objections for reasons beyond his control during the process of counting. On the contrary, the Court holds that the petitioner has been unable to place any material on record of any circumstances existing of a nature which obstructed the filing of an objection by him during the process of counting under Rule 79 (1) held to be mandatory in nature. The order dated 17.7.2010 is set aside. The application stands allowed. P.K ( Navin Sinha, J.)