IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.32 of 2010 Smt. Siya Devi, Wife of Sri Satya Narayan Singh, Resident of Village Gagri, P.O. Gagri, Via- Chewarah, P.S. Sheikhpura, District Sheikhpura. ----------- Respondent-Appellant Versus 1. The State of Bihar. 2. The State Election Commission through the Election Commissioner, Bihar, Patna. 3. The District Magistrate-cum-District Election Officer, Sheikhpura. 4. Sir Upendra Kumar, Prakhand Vikash Padadhikari-cum-Election Officer, Sheikhpura-cum-Returning Officer, Sheikhpura Prakhand, District Sheikhpura. 5. Sri Ram Jeewan Singh, Block Agriculture Officer-cum-Assistant Returning Officer, Sheikhpura, P.S. Sheikhpura, District Sheikhpura. 6. Sri Rajendra Yadav, Son of Ballav Yadav, Resident of Village Akauna, P.O. Hasauri, P.S. Sheikhpura, District Sheikhpura. ---------- Respondents-Respondents 7. Sri Prabhat Singh, Son of Late Ram Autar Singh, Resident of Village Sultanpur, P.S. Sheikhpura, District Sheikhpura. --------- Petitioner-Respondent ----------- For the Appellant :- Mr. S.B.K. Manglam. Adv. For the Respondent No.7 :- Mr. Y.V. Giri, Sr. Adv. Mr. Sanjeev Kumar For the Respondent No.2 :- Mr. R.S. Pradhan, Sr. Adv. Mr. Rajeev Lochan, Adv. For the State :- Mr. Sunil Kumar Mandal (SC-15) Mr. Arjun Prasad, AC to SC-15) ----------- 4 03.02.2010 Heard Mr. S.B.K. Mangalam, learned counsel for the appellant and Mr. Y.V. Giri, learned senior counsel along with Mr. Sanjeev Kumar, learned counsel for the respondent no.7. The election for the post of Mukhiya of Gagri 2 Gram Panchayat situate in the district of Sheikhpura was held on 2.6.2006. The respondent-writ petitioner was declared elected. His election was called in question in Election Case No. 7 of 2006 before the learned Munsiff, Sheikhpura. The learned Munsiff placing reliance on Rule 79 of Bihar Panchayat Election Rules, 2006 (for brevity ‘Rule’) set aside the election on the ground that there was no scope for entertaining a second application for recounting by the Returning Officer. The learned Munsiff, as is evident from his order, declared the present appellant as the elected candidate. Being dissatisfied with the aforesaid order, the respondent-writ petitioner preferred C.W.J.C. No. 6786 of 2009 wherein the learned single Judge interpreting Rule 79 came to hold that successive applications for recounting is permissible before the Returning Officer till the result of the election is declared. Being of this view, he dislodged the order of the learned Munsiff and directed the writ petitioner to continue his full term as Mukhiya unless removed by law. Mr. Mangalam, learned counsel for the 3 appellant submits that the first application was submitted for singular booth on 6.6.2006 and the second application was submitted on 7.6.2006. It is urged by him that the Returning Officer should have announced the result immediately but instead of doing so, he kept waiting for an application to be filed. It is further submitted that the second recount took place behind the back of the present appellant. Mr. Giri, learned senior counsel for the respondent-writ petitioner submitted that if the language of Rule 79 is properly scanned, there can be no shadow of doubt that a second petition can be filed for recount. To buttress the said stand, he has placed heavy reliance on Sub-Rule 4 of Rule 79. It is urged by him that a rule has to be read in entirety, sentence by sentence and word by word to understand the purpose of the rule and on reading of the rule in that manner, it is crystal clear that filing of second application for recount is neither impermissible nor prohibited. It is also intended by Mr. Giri that the learned Munsiff has clearly gone wrong by not dwelling upon the evidence brought on record though 33 witnesses were 4 examined. Be it noted, in the first count, the present appellant had received more votes. When the first application for recount was filed, the position remained the same. After the second application for recount was entertained, the respondent-writ petitioner obtained 23 votes more than the present appellant and eventually declared elected. In course of hearing, after some debate took place with regard to the concept of second recount, the delay in publication of result and the recount having taken place behind the back of the present appellant, a suggestion was given whether the parties would agree for recount of votes by the Election Tribunal. Mr. Mangalam, learned counsel for the appellant and Mr. Giri, learned senior counsel appearing for the respondent-writ petitioner fairly stated that they have no objection if the votes are recounted before the Tribunal. Mr. R.S. Pradhan, learned senior counsel along with Mr. Rajiv Lochan, learned counsel for the State Election Commission, who is the custodian of the ballot 5 papers, fairly states that he would produce the ballot papers before the learned Munsiff. In view of the aforesaid concession given, we do not intend to interpret Rule 79 and keep the issue open and only modify the order of the learned single Judge to the effect that there should be a recount of votes of ballot papers by the Election Tribunal. The custodian of the ballot papers, namely, the State Election Commission shall produce the ballot papers before the learned Munsiff on 9th of March, 2010. The ballot papers shall be counted on the same date. The custodian of the ballot papers and both the parties or their representatives shall remain personally present at the time of recount. Needless to emphasize, the respondent-writ petitioner shall continue to remain in the office and shall be governed by the result of the case and any further order passed on the same. Accordingly, the order of the learned single Judge and that of tribunal are set aside. Needless to emphasize, both the parties would be at liberty to argue every aspect pertaining to the validity and determination of 6 ballot papers. Accordingly, this appeal stands disposed of. Let a free copy of this order be handed over to Mr. R.S. Pradhan, learned senior counsel for the State Election Commission. Rishi (Dipak Misra, CJ.) (Mihir Kumar Jha, J.)