IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7071 of 2007 Brajesh Yadav, son of Upendra Prasad Yadav, resident of village- Belahi, Ward No. 6, Gram Panchayat- Raghunathpur, P.S. Murliganj, District- Madhepura…. Petitioner Versus 1. The State of Bihar 2. The District Magistrate-cum-District Election Officer, Madhepura 3. The Returning Officer-cum-Block Development Officer, Murliganj Block, P.S. Murliganj, District- Madhepura 4. Amol Kumar Alok, son of Late Surendra Yadav of village Belahi 5. Arun Yadav @ Anya Kumar, son of Late Mahabir Yadav 6. Dinesh Yadav, son of Nageshwar Yadav 7. Hari Kishore Yadav, son of Janardan Yadav 8. Bal Kishore Yadav, all of village Raghunathpur 9. Anoj Yadav, son of Balram Yadav 10. Sanjay Yadav, son of Late Ramakant Yadav, of village Belahi 11. Sanjay Das, son of Narayan Das 12. Tarni Mandal, son of Late Rameshwar Mandal 13. Sudhir Mandal, son of Late Sahdeo Mandal, all of village- Raghunathpur, P.S. Murliganj, Gram Panchayat- Raghunathpur, District- Madhepura….. Respondents ----------- For the petitioner: Mr. Ashok Kumar Keshari, Advocate For the State: Mr. Rakesh Kumar, JC to AAG 7 For the Respondents: M/s. R.C. Thakur & Kamal Kishore Singh, Advocates. ----------- 4. 06.08.2010 The petitioner seeks setting aside of the judgment dated 28.2.2002 passed in Election Case No. 2/2006 by Munsif, Madhepura and for a consequential direction for re-counting of the ballot papers of Raghunathpur Gram Panchayat for the post of Sarpanch and declaring the petitioner as validly elected Sarpanch of the said Gram 2 Panchayat and the election of respondent no. 4 as void. Shorn of unnecessary details the petitioner, the respondent no. 4 and others were candidates for election for the post of Sarpanch in Raghunathpur Gram Panchayat for which elections were held on 30.5.2006 and counting took place on 13.6.2006. After the conclusion of counting respondent no. 4 Amol Kumar Alok was declared elected on the post of Sarpanch having secured 412 votes as against the petitioner who secured 401 votes. It is alleged by the petitioner that he filed an application for recounting before the Returning Officer, respondent no. 3 but he did not take any action and recounting was not done. It is further alleged that the petitioner and his election agent prayed for recounting before the respondent no.2, the District Magistrate-cum- District Election Officer, Madhepura as also the Election Observer but they also refused to get the vote recounted. The petitioner also claims to have filed a petition for recounting before the State Election Commission, Bihar but to no avail. The allegation of the petitioner is that 15 rejected ballots of booth nos. 1 to 11 had been wrongly counted in favour of respondent no. 4 whereas 12 ballots 3 cast in favour of the petitioner were wrongly rejected. The petitioner filed election petition no. 02/2006 in which show cause was filed by the State of Bihar as also the respondent no. 4 who denied the assertions made in the election petition. The learned Election Tribunal on the basis of the materials on the record came to the conclusion that there is no specific allegation made in the election petition nor any particulars of any illegality in the election process have been mentioned. It further held that the petitioner had not filed any documentary proof to show that he had made any complaint against wrong counting to the Returning Officer or the Observer during the course of counting and before declaration of the result rather the documents filed only show that on 14.6.2006 the petitioner had sent a complaint through post to the Election Commission and the District Election Officer which are evidence of much later stage. On this ground it was held that the petitioner has failed to establish any case of arbitrariness in counting of the votes and for declaring the election of respondent no. 4 as illegal and accordingly dismissed the election petition. The present 4 writ petition has been filed assailing the judgment dated 28.2.2007 passed in the election petition. Learned counsel for the petitioner submits that Rule 79 of the Bihar Panchayat Election Rules, 2006 no where lays down that an objection for recounting will not be entertained just after counting and there is no provision that objection has to be made during the counting. It is submitted by learned counsel that the petitioner had raised objection against the counting and prayed for recounting immediately after the counting was over and due to the collusion of the Returning Officer, the same was not accepted and thus it was a fit case for directing recounting by the Tribunal. It is urged by learned counsel that Rule 79(4) only prohibits acceptance of objection after it has been entertained or rejected and not that it cannot be done after declaration of the result and thus in view of the allegation of the petitioner that 15 rejected ballots had been counted in favour of respondent no. 4 and 12 valid votes of the petitioner had been wrongly rejected and considering the narrowness of the margin, there being only a difference of 11 votes, the recounting ought to be allowed. In 5 support of his said stand, learned counsel relies upon a decision of a Division Bench of this Court in the case of Chandrika Prasad Yadav Vs. The State of Bihar & ors.: 2003(1) PLJR 1, in para-6 of which it has been held as follows:- “6. In the matter of Ram Rati (supra) the Supreme Court has observed that not only the fact that an application was made is to be pleaded but is also to be proved. The Supreme Court has observed that if the basic requirement is not proved then the Court would not be entitled to interfere with the secrecy of the ballots in directing recount of the ballots. In the present case undisputedly no evidence has been brought on record to show or suggest or to satisfy the judicial conscience of the court that such an application was made immediately after declaration of the result of the election or such an application was rejected unceremoniously and illegally.” He also relies upon a decision of a learned single Judge of this Court in the case of Rita Devi Vs. The State of Bihar & Ors. : 2007(3) PLJR 119. Learned counsel for the respondent no.4, on the other hand, submits that the Tribunal has given its judgment after considering the entire materials on the 6 record. It is urged by learned counsel that learned counsel for the petitioner has wrongly argued that on sole ground of objection not having been filed during the counting, prayer for recounting has been rejected. It is submitted that the petitioner himself as P.W. 5 has admitted that valid and invalid votes had been sorted out and evidently valid votes kept aside and counted. It is also urged by learned counsel that a false allegation has been made against the Returning Officer but nothing could be brought on the record by the petitioner to show that any written complaint against the Returning Officer had been made by him to the Observer and only after having lost the election the petitioner is making such allegation. It is also submitted by learned counsel that an application for recounting has to be filed stating the grounds for the same and only then the same can be accepted or rejected by the Returning Officer by giving reasons, whereas even in the subsequent belated complaints made by the petitioner no specific grounds indicating the details of the booth numbers of which the invalid votes had been counted in the votes of the respondent no. 4, are to be found. It is also urged that 7 there is nothing on the record to show that any written complaint was duly made or received before 14.6.2006 as the postal receipts of the petitioner are of the said date. In support of his stand learned counsel relies upon a decision of the Supreme Court in the case of Hoshila Tiwari Vs. The State of Bihar & ors. : 2008(4) PLJR 62 (SC), in paras 9 to 11 of which it has been held as follows: “9. It is an admitted fact that an application as required under Rule 79 of the Rules was not made at the required point of time. The learned counsel appearing for the 7th respondent submitted that as correctly held by the learned Single Judge it is open to the aggrieved party to satisfy the election tribunal as to why he could not make such application and how he was prevented from having filed such an application, and if that is done then the election tribunal is justified in allowing his request for recount. Rule 79. Recounting of votes.- (1) The candidate or in his absence his election agent or counting agent may file a written application to the Returning Officer or the Officer authorized by him for recounting of votes stating therein grounds of the same. (2) The returning Officer or the 8 Officer authorized by him may fully or partially accept or reject the application stating the reasons for the same. (3) If the Returning Officer or the Officer authorized by him accepts fully or partially the application under sub-rule (3) then he will get the ballot papers recounted and amend the result of the counting in the form prescribed in sub-rule (3) of Rule 76 and declare the result. (4) After that no application for recounting will be entertained again. 10. A reading of this Rule and sub- rule (4) together it is clear that making of an application is a mandatory requirement for ordering a recount and if the same is not made, the similar prayer cannot be entertained thereafter. This Court in the case of Chandrika Prasad interpreting the said rule held:- “20. It is well settled that an order of re-counting of votes can be passed when the following conditions are fulfilled:- (i) a prima facie case; (ii) pleading of material facts stating irregularities in 9 counting of votes: (iii) a roving and fishing inquiry shall not be made while directing recounting of votes; and (iv) an objection to the said effect has been taken recourse to.” 21. The requirement of maintaining the secrecy of ballot papers must also be kept in view before a recounting can be directed. Narrow margin of votes between the returned candidate and the election petitioner by itself would not be sufficient for issuing a direction for re-counting.” 11. From the above it is clear that making of an application under Rule 79 of the Rules is a mandatory requirement. The learned Single Judge of the High Court though correctly understood the law laid down by this Court in regard to the application of Rule 79 still distinguishing the same came to the conclusion that a prayer can be made even before the Election Tribunal provided the required ingredients to establish the course for not making the application by the election petitioner in the election petition is shown. Learned counsel appearing for the respondent referring para 25 of this Court’s judgment in Chandrika Prasad Yadav contended that even this Court has accepted the above position in law that making of a 10 request in election petition of re- counting is not totally excluded. As noted above we have no quarrel with this proposition provided in the election petition or in the subsequent prayer made by the aggrieved party produces sufficient explanation or material to show that in fact he was prevented by certain prevailing material situation for not making that application. In the present case we have examined the election petition carefully and we do not find any explanation offered by the election petitioner for not making an application as required under Rule 79 of the Rules. Learned counsel for the respondent points out that at a later stage a fax message sent to Chief Election Commissioner which in fact is disputed by the learned counsel for the appellant. Be that as it may, that fax cannot be treated as an application under Rule 79. Thus, though there may be an opportunity available for the aggrieved party to make a complaint before the election tribunal that he was prevented from making an application under Rule 79 for good reasons, in the instant case such a plea has not been raised before the election tribunal and the courts below had erred in granting relief made by the respondent.” I have considered the rival submissions of learned counsels for the parties. From a consideration of Rule 79 it is evident that a candidate or his election agent or counting agent is required to file a written application to 11 the Returning Officer or an authorized Officer for recounting of the votes which must state the grounds for the same. The Returning Officer/authorized Officer is thereafter required to pass a reasoned order whether fully or partially accepting or rejecting the said application. If the application is allowed then recounting will be made and the result of the counting as noted earlier would be amended and the result declared after which no further application for recounting can be entertained. It is clear from the decisions of the Apex Court that the provisions of Section 79 have been held to be mandatory and a prayer for recounting must be made immediately after the counting has concluded and not at any time thereafter. Failure to file an application for recounting before the Returning Officer immediately after the counting, although does not totally preclude the election petitioner from making the prayer before the Tribunal, but the same cannot be allowed as a matter of course, as he has to produce sufficient explanation or material to show that he was prevented by certain prevailing circumstances in not making the application. In the present case the petitioner has merely made allegations regarding the complicity of 12 the Returning Officer but has not brought anything on the record to show that as a matter of fact, he had filed a written application before the Returning Officer which was refused to be entertained by him. The subsequent complaints for which postal receipts of the next date of counting, i.e., 14.6.2006 have been produced, cannot be of any help to the petitioner. Even the election petition is woefully lacking in sufficient details or particulars to show that the invalid votes had, as a matter of fact, been counted in favour of respondent no. 4. This Court finds that the Tribunal has considered all aspects of the matter including the evidence of the witnesses and in its writ jurisdiction it is not for this Court to re-appreciate the same and arrive at its own conclusion. The impugned order of the Tribunal does not suffer from any illegality so as to call for interference by this Court. The writ application is accordingly dismissed. S. Pandey ( Ramesh Kumar Datta, J.)