Letters Patent Appeal No.896 OF 2007 KARI DEVI----------------------------------------------(Appellant) Versus THE STATE OF BIHAR & ORS----------------------(Respondents) ------------- For the appellant : Mr. Yogesh Chandra Verma, Sr. Adv. Mr. Satish Kumar Singh, Adv. Mr. Javed Aslam, Adv. Mr. Manish Kumar, Adv. P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE C.M.PRASAD J U D G M E N T Barin Ghosh & C. M. Prasadd, J.J. After having had lost in the lottery, the appellant approached the Election Tribunal challenging the election where she lost. In terms of the law governing the subject, recounting can only be had from the Tribunal, when recounting had been asked for within the time prescribed by law and in the manner laid down therein, but refused. In terms of the law governing the subject, lottery can only be had when two of the candidates had secured equal number of votes and both of them agreed to take recourse to lottery for the purpose of announcing the winner. In the election petition, it was contended that no - 2 - consent was given by the appellant but the same was recorded in a white paper signed and handed over by the appellant to the Presiding Officer. It was pleaded in the election petition that the said blank signed paper was handed over for use at the time of visit by District Magistrate, but subsequently, the lottery was held. In view of such plea taken in the election petition, the consent in writing accorded by the appellant for holding lottery was a nonest factum did not become an issue. In the absence of an issue that the lottery was not consented by the appellant, an answer to that issue in favour of the appellant did not arise. The Election Tribunal called for the ballots for recounting. The decision of the Tribunal relating to the direction for recounting of votes was the subject matter of challenging before the Writ Court. The writ court having allowed the writ petition, the appellant is before us. Unless the consent given by the appellant for holding lottery could be avoided by her, she could not ask for recounting of votes. She could ask for recounting only if after counting, she had made a request for recounting within the time specified by law. In the absence of any the Tribunal could not issue a direction for recounting of the ballots. Both were absent, - 3 - Patna High Court, the 31st, July 2008 N.A.F.R./Ravi and accordingly, we are of the view, that learned Judge in allowing the writ petition and striking down that part of the order of the Election Tribunal directing recounting of the ballots, did nothing wrong. The appeal fails and the same is dismissed. (Barin Ghosh, J.) (C.M. Prasad, J.)