IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15182 of 2007 DHARMENDRA KUMAR SON OF DHRUV SHARMA, RESIDENT OF VILLAGE- CHAUCHAKA, PARGANA-KUADI, P.O. SASAMUSA, P.S. KUCHAIKOTE, DISTRICT GOPALGANJ. ……….Petitioner Versus 1.THE STATE OF BIHAR 2. THE STATE ELECTION COMMISSION, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA THROUGH THE ELECTION COMMISSIONER. 3.THE ELECTION COMMISSIONER, STATE ELECTION COMMISSION, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA 4. DISTRICT ELECTION OFFICER CUM DISTRICT MAGISTRATE, GOPALGANJ 5. ANCHAL PADADHIKARI CUM PRAKHAND ELECTION OFFICER, KUCHAIKOTE PRAKHAND, P.O. AND P.S. KUCHAIKOTE, DISTRICT GOPALGANJ. 6. WAKIL YADAV SON OF LATE MUSAFIR YADAV, RESIDENT OF VILLAGE- HEMBARDAHA, PARGANA-KUADI, P.O. MANIARA KOTI, PARKHAND KUCHAIKOTE, P.S. KUCHAIKOTE, DISTRICT GOPALGANJ. 7. SUDISH YADAV SON OF LATE BIPAT YADAV, RESIDENT OF VILLAGE- BANGAL KHAND, PARGANA-KUADI, P.O. SASAMUSA, P.S. KUCHAIKOTE, DISTRICT GOPALGANJ. 8. LALAN YADAV SON OF LATE SUKHLAL YADAV, RESIDENT OF VILLAGE-BANGAL KHAND, PARGANA-KUADI, P.O. SASAMUSA, P.S. KUCHAIKOTE, DISTRICT GOPALGANJ. 9. RAVINDRA SINGH SON OF LATE MUKHTI NATH SINGH, RESIDENT OF VILLAGE-CHAK HASNA, PARGANA-KUADI, P.O. SASAMUSA, P.S. KUCHAIKOTE, DISTRICT GOPALGANJ. 10. BABAN OJHA SON OF LATE RAMANAND OJHA, RESIDENT OF VILLAGE BELWAN, PARGANA-KUADI, P.O. SASAMUSA, P.S. KUCHAIKOTE, DISTRICT GOPALGANJ. 11. LAL BABU BAITHA SON OF RAMCHANDRA BAITHA, RESIDENT OF VILLAGE BELWAN, PARGANA-KUADI, P.O. SASAMUSA, P.S. KUCHAIKOTE, DISTRICT GOPALGANJ. 12. BRAJ KISHORE SAH SON OF TUKAR SAH, RESIDENT OF VILLAGE BELWAN, PARGANA-KUADI, P.O. SASAMUSA, P.S. KUCHAIKOTE, DISTRICT GOPALGANJ. 13. NARAD OJHA SON OF RAJROSHAN OJHA, RESIDENT OF VILLAGE- KAITHWALIA, PARGANA-KUADI, P.O. SASAMUSA, P.S. KUCHAIKOTE, DISTRICT GOPALGANJ. 14. BACCHAN PRASAD SON OF SUKHDEO PRASAD, RESIDENT OF VILLAGE- KAITHWALIA, PARGANA-KUADI, P.O. SASAMUSA, P.S. KUCHAIKOTE, DISTRICT GOPALGANJ 15. ASHOK KUMAR SRIVASTAVA SON OF THAKARLAL, RESIDENT OF VILLAGE- HEMBARDAHA, PARGANA-KUADI, P.O. SASAMUSA, P.S. KUCHAIKOTE, DISTRICT GOPALGANJ. ………..Respondents ----------- 2 For the Petitioner : Mr. Y.V.Giri, Sr.Advocate Mr.Raju Giri, Advocate For the respondents: Mr.Sanjeev Nikesh, Advocate Mr.Y.P.Sinha, Advocate 10 17-2-2010 The petitioner prays for quashing the order dated 21.11.2007, contained in Anexure-3, passed by the Munsif cum Prescribed Authority, Gopalganj in Election Case No.19 of 2006, by which he has directed to bring all the ballot boxes containing ballot papers of Gram Panchayat, Raj Bengal Khar and other related papers for purposes of verification and re- counting. The Panchayat election was held on 15.5.2006 for post of Mukhiya of Gram Panchayat, Raj Bengal Khar situated in Kuchaikot Block in the district of Gopalganj. The petitioner along with respondent nos. 6 to 15 contested the election for the post of Mukhiya. The counting of votes was done on 19.6.2006. The total number of votes cast in the election was 3056, out of which 414 votes were declared invalid. Out of total votes of 2638, the petitioner secured 829 votes and respondent no.6 secured 520 votes. The petitioner was thus declared winner by margin of 309 votes and was declared elected under Rule 81 of the Bihar Panchayat Rules, 2006 (hereinafter referred to as „the Rules, 2006‟). He was granted election certificate in Form 22 as per Rule 82 of the Rules 2006. The petitioner submits that respondent no.6, the defeated candidate, filed an election petition bearing 19/06 under section 37 of the Bihar Panchayat Raj Act, 2006. According to him, the respondent no.6 for the first time in the election petition alleged that the petitioner in connivance with respondent no.5 namely Anchal Padadhikari cum Prakhand Election Officer, Kuchaikot Prakhand detached Swastik mark from the wooden 3 stamp at booth no.415. He submits that respondent no.6 alleged that 210 valid votes at booth no.415 cast in his favour was declared invalid and 144 valid votes was illegally added to the tally of the petitioner. Respondent no.6 alleged that some of his other valid votes were distributed amongst other candidates. The petitioner has assailed the impugned order dated 21.11.2007 passed by the Munsif cum Prescribed Authority, Gopalganj directing recounting of votes in teeth of Rule 79 of 2006 Rules. Counsel for the petitioner submits that unless a petition for recounting is immediately made before the Returning Officer or the authorities that may be, subsequently he cannot make prayer for recounting in election petition. In support of his contention, he relied upon decisions reported in the case of Chandrika Prasad Yadav Vs State of Bihar, reported in 2004(6)SCC 331; Hoshila Tiwari Vs State of Bihar, reported in 2008(4) PLJR SC 62; Ram Rati Vs Saroj Devi, reported in 1997(6)SCC 66; Mahendra Rai Vs State of Bihar & Ors, reported in 2003(1)BLJ 143 and in the case of Anita Devi Vs State of Bihar & Ors, reported in 2010 (1)PLJR 93. He further contended that election petition was defective as all material facts were not disclosed and thus should have been rejected. In support of his contention, learned counsel relied upon decision rendered in the case of Birendra Nath Goutam Vs Satpal Singh, reported in 2007(3)SCC 615. He states that the learned Munsif failed to appreciate that the mandatory provisions of Rule 108 was not followed by the respondent no.6 and the pleadings have not been verified in terms of order 6 Rule 15 of 4 CPC. He submits that verification of election petition would be a very important aspect, which cannot be ignored, while deciding the correctness of averments made in the election petition. In support of his contention, learned counsel relied upon a decision in the case of Baldeo Singh Vs Shinder Pal Singh, reported in 2007(1) SCC 341. Counsel for the contesting respondent no.6 states that the order passed by the learned Munsif is proper and just. He submits that the pleadings have been duly verified in accordance with terms of the Rule 108. He submits that the election Judge came to a finding that the respondent no.6 was prevented for good and sufficient reasons for not being able to avail statutory remedy under rule 79. He submits that besides this, the court has found that respondent no.6 has made a prima facie case for recounting as well. It is well settled by the Apex Court in the case of Chandrika Prasad Yadav (supra) that a statutory remedy to seek recounting under Rule 79 must be availed first, before one seeks such prayer in election petition. In case if the same has not been confirmed to, by the election petitioner, he has to state the reasons and furnish sufficient explanations as to why such statutory remedy was not availed of. The candidate filing the election petition is required to give the particulars of facts and circumstances which could show that he was in fact prevented by the prevailing material situation from making the required representation under Rule 79 of 2006 Rules. Rule 79 of 2006 Rules relates to counting of votes. Rule 79(1) provides that a candidate or in his absence, his election agent or counting agent may file a written application to the Returning Officer or to officer 5 authorized by him for recounting of votes stating therein grounds of the same. Sub-Rule (4) of Rule 79 states that no application for recounting will be entertained again thereafter. The Apex Court in the case of Chandrika Prasad Yadav observed as follows: “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.” In the case of Hoshila Tiwari (Supra), the Apex Court observed that making an application under Rule 79 of 2006 Rules is a mandatory requirement. However, Hon‟ble Supreme Court also observed that a prayer can be made even before the Election Tribunal provided the required ingredients to establish the course for not making the application by the election petitioner in the election petition is shown. It was further observed that the party failing to make an application under Rule 79 should provide sufficient explanation or material to show that in fact he was prevented by certain prevailing material situation for not making such application. The Apex Court found that the petitioner of that case did not raise any such plea in the election petition and thus set aside the order for recounting. 6 In backdrop of the law laid down by the Apex Court, it has to be now seen whether election petitioner (respondent no.6) has made out a prima facie case for recounting or whether he had offered sufficient explanation for not being able to make any application for recounting. It has specifically been pleaded by respondent no.6 in paragraph 7 of the election petition that as he went to give an application for recounting before the Returning Officer (Respondent no.2), the respondent no.3 along with his supporters created a chaos, which in turn resulted in lathi charge upon petitioner and his supporters. Respondent no.6 further pleaded that people had lined up on booth no.415 to cast votes in his favour. Seeing this, the petitioner in connivance with the Presiding Officer got detached the Swastik mark from the wooden stamp. Respondent no.6 as well as his polling agent made a protest before the Presiding Officer. The Returning Officer, respondent no.2 came and assured that vote castes without the Swastik symbol would be counted. When such votes cast in favour of respondent no.6 were declared invalid, he tried to file a written petition for recounting, but was prevented from doing so by the petitioner and his goons. The Election Judge noted in paragraph 19 of his judgment that D.W.1 Nagendra Sharma, the witness of the petitioner stated during the course of his cross-examination that people had caste votes by wooden stamp which did not have Swastik mark. Nagendra Sharma again in paragraph 3 of his cross-examination stated that 216 votes were casts in favour of the election 7 petitioner without the Swastik mark. Again one Ashok Kumar, D.W.2 who was examined by the petitioner also stated that those ballot papers which did not bear the Swastik mark were not counted. Even the Returning Officer himself during the course of cross-examination admitted that vote casts by the wooden stamp which did not bear Swastik mark were noted counted. In paragraph 20, the Election Judge further observed that in another case it appears from the newspaper cuttings that State Election Commission has admitted that many valid votes have been declared as invalid due to detachment of Swastik mark and for such defective seals, a direction was issued for lodging the F.I.R. against the manufacturing company. In view of the depositions of DWs and Returning Officer, the learned Munsif cum Prescribed Authority found that respondent no.6 has made out a prima facie case for recounting which would also forms one of the grounds for recounting of votes as observed in the case of Chandrika Prasad Yadav (Supra) by the Hon‟ble Apex Court. Apart from this, in the instant case the election petitioner had made specific pleadings that the Returning Officer assured that votes cast even without Swastik symbol would be counted. Unlike in the case of Hoshila Tiwari (supra), the election petitioner had made specific pleadings in paragraph 7 of the election petition that when he tried to hand over the representation to the Returning Officer for recounting, he was lathi charged, engineered by the writ petitioner and his goons. In the back drop of the aforesaid findings, I am of the view that 8 KHAN A.F.R. election petitioner has made out a prima facie case for not being able to make a representation for recounting of votes, and as such the learned Munsif has rightly issued a direction for recounting of votes. For the reasons stated above, I do not find any infirmity in the order of the Munsif cum Prescribed Authority, Gopalganj directing for recounting of votes and as such the instant writ petition is accordingly dismissed. The learned Munsif would further proceed with the election matter in accordance with law. (Samarendra Pratap Singh,J)