IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10045 of 2008 Bimla Devi, wife of Bipin Kumar @ Bipin Yadav, resident of village- Karbaili, P.S.-Kumarkhand, District-Madhepura. -Opposite Party/Petitioner. VERSUS 1. The State of Bihar. 2. The District Magistrate-cum-District Election Officer, Madhepura. 3. The Returning Officer-cum-B.D.O. Kumarkhand Block, District-Madhepura. -Opposite Party/Respondent 1st Set. 4. Anita Devi, wife of Ramchandra Mandal, village-Karbaili Panchayat- Baisadh, P.S.-Kumarkhand, District-Madhepura. 5. Rita Devi, wife of Ganesh Mandal, resident of village- Baisadh Panchayat, P.S.-Kumarkhand, District-Madhepura. 6. Anita Devi 2nd, wife of Binod Rai, resident of village-Panchayat Baisadh, P.S.-Kumarkhand, District-Madhepura. 7. Pramila Devi, wife of Anmol Yadav. 8. Meena Devi, wife of Sunil Yadav. 9. Rubi Bharti, wife of Lalan Kumar. 10. Bibha Devi, wife of Harbind Yadav. 11. Sudha Rani, wife of Birendra Kumar Bharti. 12. All residents of village- village-Karbaili Panchayat-Baisadh, P.S.- Kumarkhand, District-Madhepura. -Opposite Parties/Respondent 2nd Set. ----------- For the Petitioner : Mr. Ashok Kumar Singh. Mr. Vinay Kirti Singh. For the Respondent No.4 : Mr. K. Vishoka Nand. ----------- 10 17.02.2010 By this writ petition the petitioner has challenged the order dated 27.05.2008 passed by the Election Tribunal, Madhepura in Election Petition No.01 of 2006 by which the result declared in favour of the writ petitioner as a winning candidate for the post of Member, Panchayat Samiti has been set aside on an application filed by respondent no.4, the loosing candidate and recount has been ordered. The winning margin was two votes. Mr. Ashok Kumar Singh, learned counsel appearing in support of the writ petition submits that if the Election Tribunal was of the view that the result as declared stood vitiated because of - 2 - wrong declaration or declaration based on wrong figures then he could in law proceed to recount the votes and then declare the results, if they were different from the earlier results, but he could not first set aside the earlier results and then order recount. The election petitioner is respondent no.4 and has appeared. Parties have been heard at length and with their consent this writ petition is being disposed of at this stage itself. I have perused the impugned judgment. The impugned judgment proceeds on basis of two findings. The first finding is that the election petitioner (respondent no.4) had made written application for recount before results were declared, which evidence was accepted by the writ petitioner (O.P. No.4) in the election petition. Thus, there being written request in terms of Rule 79 of the Bihar Panchayat Election Rules, recount could be ordered. The second ground for ordering recount is that the Election Tribunal has reviewed the evidence brought on record in the shape of the statutory forms drawn up. It has found that in large number of these forms, there are large numbers of unexplained cuttings, over writings, additions and deletion etc. Official witnesses give no explanation justifying the said. The Tribunal has, thus, come to a finding that on such result sheet which has large number of unexplained cuttings, over writings etc., the result so declared inspires no confidence. He has gone to the extent of holding that these are corrupt practices done by officials to help the writ petitioner and thus on this finding he has ordered - 3 - recounting. But, while doing so he has set aside the results as declared. The criticism of this judgment is that if the results are dependent upon the recount to be made then the Tribunal should not cancel the results already declared but should have merely said that would be subject to a proper recount under orders of the Tribunal. Having considered the matter, in my view, so far as the first premise is concerned, the Tribunal’s finding may not be correct. In the deposition of the election petitioner’s representative (husband) P.W. 2 (wrongly referred as P.W.4 in the judgment), it is apparent that he did not specifically assert that he had given anything in writing requesting recount before results were declared and from deposition of O.P. No.4, it is also clear that she does not admit this fact, as noted in the judgment. Accepting this contention of the writ petitioner to be correct, the result would be that there being no application in terms of Rule 79 of the Rules, the Election Tribunal could not order recount on this ground alone. But, in my view, recount could still be ordered if as found by the Election Tribunal that there are several unexplained cuttings, over writings, additions and deletions in the tabulation sheet for declaring the result. That is an independent irregularity which vitiates the result as declared. These findings remain unchallenged by the writ petitioner and thus on this finding itself the order of the Election Tribunal ordering recount cannot be interfered with. Now, coming to the grievance that the result should not - 4 - have been declared invalid first. The petitioner may have some ground to make a grievance for in recount, she could still be declared elected or in any case the election petitioner would not get through. In my view, the difference is only of phraseology, the result remaining the same. The Election Tribunal has not said that on recount, the earlier declared winning candidate would not be or could not be declared to have won. That contingency is still to come because the Tribunal would declare the result on basis of recount in its presence in accordance with law. Whoever may be the winning candidate and it could very well be the writ petitioner herself. Thus, in my view, a clarification in this regard would suffice. If on recount, the writ petitioner, whose election was challenged, remains the winning candidate, she shall be so declared. As the judgment of the Election Tribunal was delivered on 27th May, 2008 and virtually two years have gone by, I, therefore, direct the Court below to immediately, within one month of production of copy of this order before it, recount the votes in accordance with law and declare the results accordingly. With the aforesaid observations and directions, the writ petition is disposed of. Trivedi (Navaniti Prasad Singh, J.)