IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 4259 of 2009 Birendra Singh, son of Shyam Bihari Singh, resident of village – Samahuta, P O – Udaipur, P S – Sanjhauli, Dist – Rohtas -Petitioner 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- Collector, Rohtas 5 Subdivisional Officer, Bikramganj, District – Rohtas 6 Anchal Padadhikari –cum- Election Officer –cum- Returning Officer, Sanjhauli, District – Rohtas 7 Assistant Returning Officer, Sanjhauli, District – Rohtas 8 Vimal Kant Singh, son of Lal Bahadur Singh, resident of village – Samahuta, P O – Udaipur, P S – Sanjhauli, District – Rohtas 9 Amrender Singh, son of Ram Ashish Singh, resident of village – Gadura, P O & P S – Sanjhauli, District – Rohtas 10 Alakh Narain, son of late Sheo Gobind Singh, resident of village – Udaipur, P O – Udaipur, P S – Sanjhauli, District – Rohtas 11 Kamal Kishore Patel, son of Bechan Chaudhary, resident of village – Udaipur, P O – Udaipur, P S – Sanjhauli, District – Rohtas 12 Kameshwar Chaudhary, son of Nand Kumar Chaudhary, resident of village – Chaita Narvad, P O – Siyawank, P S – Sanjhauli, District – Rohtas 13 Guateshwar Singh, son of Kanhaiya Chaudhary, resident of village – Chaita Bahori, P O – Siyawank, P S – Sanjhauli, District – Rohtas 14 Gobind Chaudhary, son of late Rajaram Chaudhary, resident of village – Udaipur, P O – Udaipur, P S – Sanjhauli, District – Rohtas 15 Chandradeo Singh, son of late Jagnarayan Chaudhary, resident of village – Udaipur, P O – Udaipur, P S – Sanjhauli, District – Rohtas 16 Jawahar Choudhary, son of Ramdas Chaudhary, resident of village – Chaita Narvad, P O – Siyawank, P S – Sanjhauli, District – Rohtas 17 Dular Chand Ram, son of late Shio Nandan Ram, resident of village – Udaipur, P O – Udaipur, P S – Sanjhauli, District – Rohtas 18 Dhananjay Choudhary, son of Nathuni Chaudhary, resident of village – Chaita Narvad, P O – Siyawank, P S – Sanjhauli, District – Rohtas 19 Fulendra Kumar, son of Shiojee Ram, resident of village – Udaipur, P O – Udaipur, P S – Sanjhauli, District – Rohtas 20 Mahendra Chaudhary, son of late Ram Chandra Chaudhary, resident of village – Udaipur, P O – Udaipur, P S – Sanjhauli, District – Rohtas 21 Munni Devi, wife of Kaushal Kumar, resident of village – Udaipur, P O – Udaipur, P S – Sanjhauli, District – Rohtas 22 Mohan Chaudhary, son of late Ramdhani Chaudhary, resident of village – Udaipur, P O – Udaipur, P S – Sanjhauli, District – Rohtas 23 Yamuna Singh, son of Bishwanath Singh, resident of village – Gadura, P O – Sanjhauli, P S – Sanjhauki, District – Rohtas 24 Ram Subhag Singh, son of late Sahdeo Singh, resident of village – Barakhana Udaipur, P O – Udaipur, P S – Sanjhauli, District – Rohtas 25 Lakshman Singh, son of Musafir Chaudhary, resident of village – Chaita Bahori, P O – Siyawank, P S – Sanjhauli, District – Rohtas 2 26 Lalmuni Singh, son of late Babulali Singh, resident of village – Gadura, P O & P S – Sanjhauli, District - Rohtas 27 Binod Kumar Mishra, son of Chand Baleshwar Mishra, resident of village – Udaipur, P O – Udaipur, P S – Sanjhauli, District – Rohtas 28 Shio Muni Singh, son of Dhaja Singh, resident of village – Gadura, P O & P S – Sanjhauli, District – Rohtas 29 Sanjay Kumar Gupta, son of late Bhagwan Prasad Gupta, resident of village – Rohtas Rice Mill, Udaipur Road, Sanjhauli, P O & P S – Sanjhauli, District – Rohtas 30 Santosh Kumar Pandey, son of Mohan Pandey, resident of village – Chaita English, P O – Siyawank, P S – Sanjhauli, District – Rohtas -Respondents *** For the petitioner : Mr Y V Giri, Sr Advocate with M/s Raju Giri, Vikas Ratan Bharti, Jitendra Singh, Advocates For the Pvt respondent: Mr S B K Mangalam, Advocate For Election Commission: Mr Sanjeev Nikesh, Advocate For the S t a t e : Ms Pallavi Thakur, AC to GA 7 *** 9 19.05.2010 By this writ application, the order of the Election Tribunal in ordering recount is in challenge. Mr Y V Giri, learned Senior Counsel appears in support of the writ petition. Mr S B K Mangalam, learned counsel appears for the election petitioner at whose instance such an order was passed by the Election Tribunal. From the evidence available on record and appearing from the order of the Election Tribunal, it is clear that there was no application in terms of Rule 79 of the Bihar Panchayat Election Rules for recount or challenging the view of the Returning Officer in holding 25 votes to be invalid. There is no dispute that there were pleadings in the election petition that in respect of Booth No 58, 25 votes, which were in favour of respondent, the election petitioner were wrongly rejected as invalid and if they are treated as valid on recount then 3 it was the election petitioner who ought to have been declared elected rather than the writ petitioner. In course of trial, it stood established that the votes that were rejected were duly marked by the instrument as supplied by the Election Commission. The Returning Officer, in his deposition, admitted that as it did not bear the Swastic mark, votes were rejected. The Election Tribunal found that while the rejection of votes in other booths was only between 4 to 6%, for this booth, the rejection was as high as 81%. It was also established in trial that the Election Commission itself has lodged a criminal case against supplier of the voting instrument alleging that they were defective and got defaced quickly. On these facts, the Election Tribunal held that the facts justified a recount. When this case was taken up for disposal, both counsels agree that much would depend upon the outcome of a Letters Patent Appeal pending in relation to somewhat similar issue being Letters Patent Appeal No 118 of 2010. That judgment has since been delivered on 10.05.2010 and, as such, this case has been taken up for disposal. Mr Giri, learned Senior Counsel for the writ petitioner submits that, admittedly, there being no application for recount at pre result stage in terms of Rule 79 which is mandatory, no plea for recount could at all be permitted notwithstanding facts coming on record otherwise. On the other hand, Mr S B K Mangalam for the election petitioner, who is respondent here, submits that the Apex Court first considered the matter in the case of Ram Rati –Versus- Saroj Devi since reported in (1997) 6 Supreme Court Cases 66 wherein it was held that compliance with 4 similar rules as to Rule 79 being objection at pre result stage was mandatory for ordering recount. He then points out that this case was considered in the case of Sohan Lal –Versus- Babu Gandhi (2003) 1 Supreme Court Cases 108 which was a larger Bench and it clearly overruled the said judgment. The effect being that compliance of a pre result protest is not mandatory. The view expressed in Sohan Lal’s case (supra) has been accepted in the case of Chandrika Prasad Yadav – Versus- State of Bihar and Others since reported in (2004) 6 Supreme Court Cases 331 which specifically deals with Rule 79 of the Bihar Panchayat Election Rules wherein it has been held following Sohan Lal’s case (supra) that Rule 79 is not mandatory in the sense that in absence of an application in terms of Rule 79, there cannot be a plea for recount. In that view of the matter, he submits that the Division Bench judgment, in the case of Pappi Singh –Versus- The State Election Commission and Others in LPA No 118 of 2010 dated 10.05.2010 inasmuch it holds that compliance of Rule 79 is mandatory, may require reconsideration. Mr Mangalam further relies on the judgment of the Apex Court in the case of Sadhu Singh –Versus- Darshan Singh and Another since reported in (2006) 6 Supreme Court Cases 255. In my view, this Court is bound by the recent judgment of Division Bench in the case of Pappi Singh (supra) and that being so notwithstanding the facts as found by the Election Tribunal in absence of an application or a request in terms of Rule 79, I have no discretion in the matter but to hold that ordering recount was not in accordance with law. The writ petition is, thus, allowed and the order of the Election Tribunal 5 in Election Case No 13 of 2006 dated 26.03.2009 passed by the Munsif, Bikramganj is set aside. M.E.H./ (Navaniti Prasad Singh)