IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2333 of 2009 HUSHNA BANO W/O MD. ANSAR R/O VILLAGE DHIMRA PO- CHIRAIYA, PS- AMARPUR, DISTT- BANKA-PETITIONER Versus 1. THE STATE OF BIHAR 2. THE BIHAR STATE ELECTION COMMISSION, PATNA 3. THE D.M.CUM-ELECTION OFFICER,BANKA 4. THE RETURNING OFFICER-CUM-S.D.O.BANKA 5. BANDANA DEVI W/O RAM AUTAR KUMAR, R/O VILLAGE- MANSARPUR, PS- LOGAIN, PS- AMARPUR,DISTT-BANKA--------- ------------------------------RESPONDENTS ----------- For the Petitioner: M/s.Abbas Haider & Syed Hussain Majeed, Advocates For Respondent no.5: Mr. A.K.Singh, Advocate For the Election Commission: Mr.S. Nikesh,Advocate For the State: Mr. A.K.Sinha, AC to GP-15 ---------------- 4 29.7.2009 Heard learned counsel for the petitioner, learned counsel representing respondent no.5 and learned counsel for the Election Commission. The order dated 9th January, 2009 passed in Election Petition No. 31 of 2006 by learned Munsif, Banka contained in annexure-1 is under challenge in the present writ application. Some of the facts which emerge from the records is that the petitioner was one of the contestants for the post of Mukhiya of Gram Panchayat in question. The post was reserved for woman candidate. Election was held on 27.5.2006, counting of the votes was done on 15.6.2006 and final results were announced on the same day. Petitioner lost the election by margin of three votes and this compelled her to file the election petition in question alleging many a things with regard to counting and declaration of the result against the official respondents. The primary contention of the petitioner before the - 2 - tribunal was that the Returning Officer had told the petitioner that she had led by ten votes and result had gone in her favour but when the final result was announced, after getting the counting hall vacated the petitioner had lost the election by a margin of three votes. Many submissions had been advanced by the petitioner before the tribunal for recounting of votes but the election tribunal after considering the evidence based on the issues formulated, came to a considered opinion that no case for recounting was made out. Not satisfied with the said decision the present writ application has been filed. Contention of the petitioner is that the margin of votes being so narrow it will be in the interest of the parties or at least the petitioner that recounting of the votes should have been ordered to be done by the election tribunal. It would give a fair assessment with regard to votes, the votes counted in a freer environment. She has alleged that intentionally the concerned authority manipulated the results in favour of the private respondent and i.e. the primary reason the recounting ought to be done. Learned counsel representing respondent no.5 however, submits that the allegation is only an after thought because on an oral request made by the petitioner recounting of particular booth had also been done before the final results were declared after maintaining the full tally. Merely because the margin was of three votes it does not mean that recounting have to - 3 - be done only to satisfy the petitioner. Any recounting is to be done according to the procedure and rules laid down under Bihar Panchayat Raj Act, 2006, specially Rule 79 of the Act. He further submits that it is a case where the allegation is made without supporting document or evidence in this regard. Not only this learned counsel for respondent no.5 has also brought on record the final chart and the documents where each and every vote cast in favour of various candidates, duly recorded in Form 20 with the counter affidavit. The submission is that the declaration of result is true reflection of the counting and merely because the petitioner has lost the election by margin of three votes he cannot be entitled for recounting since law does not allow fishing enquiry. Having perused the decision rendered by the election tribunal and the reasoning assigned therein, the basic allegation and ingredients for recounting have not been made out. The tribunal has rightly rejected the claim as well as the election petition. No legal infirmity is made out for interference in the matter. This writ application is dismissed. RPS (Ajay Kumar Tripathi,J.)