IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2138 of 2009 SURENDRA BHUIYAN, SON OF LATE DHANNU RAM, RESIDENT OF VILLAGE – DHOPATHAL, P.O. – RAMRAI CHAK, P.S. SIRDALLA, DIST. NAWADA. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. DISTRICT MAGISTRATE NAWADA. 3. BLOCK DEVELOPMENT OFFICER CUM RETURNING OFFICER, SIRDALA BLOCK, UNDER DISTRICT NAWADA. 4. STATE ELECTION COMMISSION, BIHAR THROUGH ITS COMMISSIONER AT SON BHAWAN,R. BLOCK CHAURAHA PATNA. 5. KAMDEO DAS, SON OF JAGDISH DAS, RESIDENT OF VILLAGE JAMUNIA, P.O. RAMRAI CHAK, P.O. SIRDALLA, DISTRICT- NAWADA. 6. ARJUN BHUIYAN, SON OF LAXMAN BHUIYAN, R/O VILLAGE CHAUKIA, P.O. CHAUKIA, P.S. SIRDALLA, DISTRICT NAWADA. 7. UMA DAS, SON OF PANCHU DAS, RESIDENT OF VILLAGE BANJHORIA – KHURD, P.O. CHAUKIA, P.S. SIRDALLA, DISTRICT NAWADA. 8. KAMLESH RIKHIYASAN, S/O MAINU RIKHIYASAN, R/O HIRADIH, P.O. LCHAUKIA, P.S. SIRDALLA, DISTRICT NAWADA. 9. SMT. CHAMELI DEVI, W/O LATE RAM DAS RAY. 10. BHAGWAN DAS, S/O LATE SUKHI CHAND RAM. 11. SMT. SABO DEVI, W/O BASUDEO MANJHI, ALL THREE ARE RESIDENT OF VILLAGE JAMUNIA, P.O. RAMRAI CHAK, P.O. SIRDALLA, DISTRICT NAWADA. 12. DASRATH MANJHI, S/O MAHAVIR BHUIYAN, RESIDENT OF VILLAGE MURLI, P.O. CHAUKIA, P.S. SIRDALLA, DISTRICT NAWADA. 13. DINESH CHAUDHARY, S/O BARAN CHAUDHARY, R/O VILL. MOHANAKEWAL, P.O. CHAUKIA, P.S.SIRDALA DISTT. NAWADA.` 14. MAHENDRA CHAUDHARY, S/O BAIJNATH CHAUDHARY BOTH ARE RESIDENT OF VILLAGE MOHANAKEWAL, P.O. CHAUKIA, P.S. SIRDALLA, DISTRICT NAWADA. 15. BODHI BHUIYAN, S/O MOURAL BHUIYAN, RESIDENT OF VILLAGE BHOLADIH, P.O. CHAUKIA, P.S. SIRDALLA, DISTRICT NAWADA. 16.BHUNESHWAR BHUIYAN, S/O AMI BHUIYAN, RESIDENT OF JUGHATAR, P.O. CHAUKIA, P.S. SIRDALLA, DISTRICT NAWADA. 17.SURESH BHUIYAN, S/O PHAGUNI BHUIYAN, RESIDENT OF VILLAGE DHOPATHAL, P.O. RAMRAICHAK, P.S. - 2 - SIRDALA, DISTRICT NAWADA. ... ... RESPONDENTS. ----------- 4. 18.11.2009. This writ petition challenges the judgment and order passed by Munsif, Nawada in Misc. (Election) Case No.11 of 2006 dated 21.1.2009. The Munsif acting as an election tribunal on petition of Kamdeo Das, respondent no.5 to this writ petition has declared the election of petitioner as Mukhiya of Chaukia Gram Panchayat as void. Petitioner Surendra Bhuiyan was opposite party no.1 in the said election petition. In support of the writ petition challenging the said judgment it has been submitted that election petition itself was not maintainable in view of the fact that though through the election petition re- counting of votes was sought because of wrong counting as done by the Returning Officer, the election petition did not disclose that either at the time of counting or immediately thereafter before results were declared the election petitioner, Respondent no.5 ever made a request to the Returning Officer for re-counting pointing out irregularities. In - 3 - terms of Rule 79(4) of the Bihar Panchayat Election Rules, this is a mandatory condition precedent to raise such a dispute and not having been raised the election petition on that count alone had to be rejected. Secondly, it has been submitted that there being no averment in the plaint/election petition that any representation was made before declaration of result pointing to irregularities in counting, the election tribunal could not have permitted parties to lead evidence in support of any such non pleaded fact. Any evidence to the effect of establishing a fact not pleaded has to be excluded from consideration and if that is done, then there is no basis for the judgment. Reliance for the first is placed on the judgment of the apex court in the case of Hoshila Tiwari vrs State of Bihar & others reported in 2005(12)Supreme Court Cases 342 dealing with the same very Rule 79. On the other hand, learned counsel for the respondent no.5, the election petitioner submits that it was stated in the election petition and in particular paragraph-7 - 4 - thereof that protest were made by the election petitioner as to the irregularity of counting as such evidence in support of the said assertion could be led in course of trial. He further submitted that further applications were filed before the election tribunal later on specifically raising these factual issues. Thus, evidence could be lead in support thereof and were rightly considered by the election tribunal and election tribunal rightly ordered for re- counting. He further submits that petitioner’s election was declared void because the result was not certified in the proper format being Form-19 instead it was declared in Form-21. It is the correctness of basically these two issues that has to be decided by this Court. Pleadings being completed and parties have appeared. With consent, the matter was heard at length for final disposal at this stage. Coming to the second issue first, of declaration of result in Form-21 instead Form-19 that is a mere formality and would - 5 - not render the election itself to be void. All particulars that are required in Form-19 are to be found in Form-21 as issued by the Returning Officer. Moreover, use of a wrong form by the Returning Officer being a mistake of Returning Officer would not act to the prejudice of the winning candidate. It is well established that a mistake committed by a person cannot act to the detriment of another who has nothing to do with the said transaction. Petitioner has stated that, that happened because the statutory Form-19 was not available. Thus, this issue is decided in favour of the petitioner and as against the election petitioner. Now coming to the first and the major issue with regard to irregularities committed at the time of counting. In the case of Hoshila Tiwari vrs. State of Bihar & others(Supra), the Supreme Court has clearly held that compliance of Rule 79 of the Rules is mandatory. In absence of a protest made in accordance with Rule 79 and in particular Rule 79(4), the election tribunal cannot entertain the plea for re-count. This is the - 6 - N.H./ mandate of law as held by the apex court. If that be so then the election petitioner being respondentno.5 having not complied with the mandatory provisions of Rule 79(4), the plea of irregularity in counting and the relief of re-counting could not be granted to him. If no such relief could be granted to him, then he was precluded from leading any evidence in support thereof. In paragraph 7 of the election petition all that has been said is that protests were made long after the results were declared and not as required by Rule 79(4) before such declaration. The election tribunal should have stopped the election petitioner from leading any evidence in respect of fact which was not pleaded. This was elementary but had been forgotten by the learned Munsif. This in my view is sufficient to vitiate the judgment in entirety. Thus, the judgment of the learned Munsif in the said election petition cannot be sustained. It is set aside in toto. This writ petition is allowed. ( Navaniti Prasad Singh,J.) - 7 -