IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.968 of 2010 1. SMT.MEERA DEVI, W/O ASHOK PANDEY, R/O VILLAGE KARWATAHI, P.O. KARWATAHI, P.S. GOPALPUR, DISTRICT - GOPALGANJ. 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 ELECTION OFFICER , KUCHAIKOTE PRAKHAND,P.O. AND P.S. KUCHAIKOTE, DISTRICT GOPALGANJ. 6. DISTRICT PANCHAYATI RAJ OFFICER,GOPALGANJ. 7. SMT. SEEMA DEVI, W/O JITENDRA SINGH, R/O VILLAGE GULAURA, P.S. GOPALPUR,DISTRICT- GOPALGANJ. 8. SHAIL DEVI, W/O KRISHNAWTAR SINGH, R/O VILLAGE AHIYAPUR, P.O. RATANPURA, P.S. GOPALPUR, DISTRICT- GOPALGANJ. 9. SMT. ANITA DEVI, W/O BIRENDRA YADAV, R/O VILLAGE KARWATAHI, P.O. KARWATAHI, P.S. GOPALPUR, DISTRICT- GOPALGANJ. 10. KUMARI DEVI, W/O AMAR PANDEY, R/O VILLAGE KARWATAHI, P.O. KARWATAHI, P.S. GOPALPUR, DISTRICT- GOPALGANJ. 11. ADIYANTI DEVI, W/O KRISHNA PANDEY, R/O VILLAGE KARWATAHI, P.O. KARWATAHI, P.S. GOPALPUR, DISTRICT- GOPALGANJ. 12. NAIN DEVI, W/O BINDESHWAR TIWARY, R/O VILLAGE AHIYAPUR, P.O. RATANPURA, P.S. GOPALPUR, DISTRICT- GOPALGANJ. ----- For the appellant : M/S Y.V.Giri, Sr. Advocate with Raju Giri, Vikash Ratan Bharti, Pranav Kumar, Sanjiv Kumar and Mrigendra Kumar Singh, Advocates. For Respondent No. 7: M/S S.N.P.Sharma, Sr. Advocate with Ravindra Kumar Singh,Adv. For Election Commissioner: Mr. Sanjeev Nikesh, Adv. For State : Mr. Sanjay Kr. Jha, A.C. to S.C. 9 --- 3/ 06-08-2010 Heard learned Senior counsel for the appellant- writ petitioner, learned Senior counsel for respondent - 2 - no.7- Election petitioner as well as learned counsel for the State of Bihar and learned counsel for the Bihar State Election Commissioner. 2. By the order under appeal the learned Single Judge has dismissed the writ petition summarily after noticing the grievance raised by the writ petitioner that the Election Tribunal had allowed prayer of the election petitioner for recounting of votes without appreciating the effect of non-compliance of Rule 79 of the Bihar Panchayat Election Rules, 2006 (hereinafter referred to as “the Rules”). On behalf of the appellant it has been submitted that Rule 79 requires making of a written application to the Returning Officer or to the Officer authorized by him for recounting of votes stating therein the grounds for the same, but in the present case admittedly there was no written application filed by the Election petitioner or his election agent or counting Agent for recounting of votes. On the basis of law settled by a catena of judgments of this Court and by the Supreme Court fully considered in a recent judgment by a Division Bench of this Court in the case of Pappi Singh Vrs. State Election Commissioner & Ors, 2010 (3) P.L.J.R. 167, it was emphasized that an election petitioner has to show compliance of Rule 79 or else he/she has to state the reasons and furnish sufficient explanation as to why - 3 - such statutory remedy was not availed of. For this purpose the aforesaid judgment has relied upon decision of the Supreme Court in the case of Chandrika Prasad Yadav Vs. State of Bihar and others (2004) 6 SCC 331 and decision of the Supreme Court in the case of Hoshila Tiwari Vrs. State of Bihar and others, 2008 (4) P.L.J.R. SC 62 and also another Division Bench judgment of this Court in the case of Anita Devi Vrs. State of Bihar & Ors., 2010 (1) P.L.J.R. 93. Further, specific reliance was placed upon paragraph-6 of the judgment in the case of Anita Devi ( Supra ), which is extracted in paragraph-19 of the judgment in the case of Pappi Singh ( Supra). For further appreciation of the issue at hand, the aforesaid paragraph-6 is again extracted herein below : “The law is well settled by the Apex Court in the case of Chandrika Prasad Yadav (Supra) that ordinarily, the statutory remedy to seek recounting provided under the Rules shall be availed of. If it is not done by the election petitioner, he has to state the reasons and furnish sufficient explanation as to why such statutory remedy was not availed of. The explanation furnished in the present case as noticed above does not give particulars of the facts and circumstances which could show that the election petitioner was in fact prevented by those prevailing material situation from making the required application under Rule 79 of the Rules.” 3. On facts it was submitted on the basis of the contents of the election petition, which has been annexed - 4 - as Annexure-2 to this memorandum of appeal to point out that in the relevant paragraphs, i.e., paragraphs- 5 to 9, there is no explanation, much less an explanation with particulars of the facts and circumstances which could show that the election petitioner was in fact prevented by those prevailing material situation from making the application under Rule 79 of the Rules. It was further submitted that the learned writ Court erred in relying upon professed verbal protest mentioned in the written statement as a sufficient substitute for written application for recounting as required under Rule 79 of the Rules. 4. On behalf of respondent no. 7, learned Senior Advocate placed reliance upon several judgments of the Supreme Court, particularly those in the case of Shashi Bhushan Vrs. Balraj Madhok and others, A.I.R. 1972 SC 1251 and in the case of Ram Sewak Yadav Vrs. Hussain Kamil Kidwai and others, A.I.R. 1964 SC 1249 to advance an argument that in those cases the Supreme Court did not insist upon compliance with Rule 63 of the Conduct of the Election Rules, 1961 which is similar to Rule 79 of the Rules. 5. No doubt, in the aforesaid judgments of the Supreme Court Rule 63 of the relevant Rules was not an issue and decision was not for evaluating or - 5 - interpreting provisions of Rule 63, but for the same reason those judgments cannot be treated as relevant for the issue at hand. In the subsequent judgments cited on behalf of the appellant the scope of Rule 79 has been specifically dealt with as submitted by learned Senior Counsel for the appellant. 6. Since admittedly no application under Rule 79 of the Rules was preferred by the election petitioner, under the established law it was incumbent for the election petitioner to furnish sufficient explanation for not availing such statutory remedy. Learned counsel for respondent no.7 has placed reliance upon paragraphs- 5 to 8 of the election petition to submit that the contents of those paragraphs are sufficient explanation. We carefully perused those paragraphs and found that in those paragraphs the allegations have been made in respect of improper counting or rejection of votes and it has also been alleged that verbal protest was made but there is no explanation or averment as to why written application, as required under Rule 79 was not or could not be preferred. 7. In the facts of the case we find sufficient merit in the submissions advanced on behalf of the appellant that the order impugned in the writ court whereby the Election Tribunal ordered for recounting of - 6 - votes is contrary to law laid down by this Court in the case of Pappi Singh ( Supra ) and Anita Devi ( Supra ). In that view of the matter, the order under appeal is set aside, the order of the learned Election Tribunal, i.e., Prescribed Authority-cum-Munsif, Gopalganj, dated 05.03.2008 passed in Election Petition No. 13 of 2006 is quashed and this appeal is accordingly allowed. There shall be no order as to costs. ( Shiva Kirti Singh, J ) ( Birendra Prasad Verma, J) BTiwary/ AFR