IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.11971 of 2010
1. GANESH YADAV S/O MAHIPAL YADAV R/O VILL.-
CHANDRAPURA, P.S.- SANGRAMPUR, DISTT.- MUNGER
Versus
1. PANKAJ KUMAR SINGH S/O SHRI PRAN MOHAN SINGH R/O
VILL.- LASKARA, P.S.- SANGRAMPUR, DISTT.- MUNGER
2. GANESH YADAV S/O MAHIPAL YADAV R/O VILL.-
CHANDRAPURA, P.S.- SANGRAMPUR, DISTT.- MUNGER
3. RAMCHANDRA YADAV S/O BASUDEO YADAV R/O VILL.-
CHHATA, P.S.- SANGRAMPUR, DISTT.- MUNGER
4. RANJAN KUMAR S/O RAMCHANDRA YADAV R/O VILL.-
CHHATA, P.S.- SANGRAMPUR, DISTT.- MUNGER
5. JAIPRAKASH BHAGAT S/O RAMCHANDRA BHAGAT R/O VILL.-
CHHATA, P.S.- SANGRAMPUR, DISTT.- MUNGER
6. KAMLESH KUMAR SINGH S/O LATE SITARAM SINGH R/O
VILL.- LASKARA, P.S.- SANGRAMPUR, DISTT.- MUNGER
7. SANTOSH KUMAR SINGH S/O SRI PRAN MOHAN SINGH R/O
VILL.- LASKARA, P.S.- SANGRAMPUR, DISTT.- MUNGER
8. RAMTAHAL PRASAD SINGH S/O LATE AMRIT MANDAL R/O
VILL.- NONAJEE, P.S.- SANGRAMPUR, DISTT.- MUNGER
9. KRISHNANAND YADAV S/O LATE DAMODAR YADAV R/O VILL.-
BHANDAR, P.S.- SANGRAMPUR, DISTT.- MUNGER
10. BISHUNDEO YADAV S/O LATE BUDHU YADAV R/O VILL.-
BHANDAR, P.S.- SANGRAMPUR, DISTT.- MUNGER
11. ASHOK MANDAL S/O LATE DEEPNARAYAN MANDAL R/O
VILL.- BHALGURI, P.S.- SANGRAMPUR, DISTT.- MUNGER
12. RAMDEO KUMAR BHARTI S/O DINESH MANDAL R/O VILL.-
BHALGURI, P.S.- SANGRAMPUR, DISTT.- MUNGER
13. THE STATE OF BIHAR THROUGH COLLECTOR, MUNGER
14. THE COLLECTOR-CUM-DISTRICT ELECTION OFFICER,
MUNGER
15. S.D.O., KHARAGPUR
16. BLOCK DEVELOPMENT OFFICER, TETIYA BUMBAR - CUM -
ELECTION OFFICER FOR PANCHAYAT ELECTION
17. AMRENDRA KUMAR AMAR ASSISTANT RETURNING OFFICER
FOR TETIYA BUMBER ANCHA
For the Petitioner:- Mr. Ranjan Kumar Jha &
Mr. Thakur Manish Mohan, Advocate
For Respondent No.1:- Mr. Ashok Kumar Singh, Sr., Advocate &
Mr. Prakash Kumar, Advocat
For the State:- Mr. Sanjay Kumar, A.C. to S.C.-I
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05. 24.01.2011 Heard learned counsel for the petitioner and
learned counsel for respondent no.1.
2
The petitioner was the winning candidate in the
Panchayat Election which was questioned by respondent
no.1 in Miscellaneous Election Petition No. 12 of 2006
upon 19 of 2009 before the Munsif-I, at Munger. By the
judgment dated 17.7.2010, the learned Munsif holding
that the respondent no.1/Election petitioner had raised
objections in writing under Rule 79 (1) of the Bihar
Panchayat Raj Rules 2006 (hereinafter called the
Panchayat Rule) with regard to the errors during counting
of votes allowed the prayer for recounting of ballots.
Learned counsel for the petitioner strongly relied
upon the findings in the impugned order that the
application under Rule 79 (1) was filed after the counting
was over. He submit that the statutory requirement of
filing such application during the counting was mandatory
in absence of which the impugned order is unsustainable.
He next submits that even in the application preferred
under Rule 79 (1), if it could have been entertained after
counting was over, no grounds have been spelt out for
invocation for this extraordinary power interfering with the
secrecy of the ballot.
Leaned counsel for respondent no.1 strongly
relied upon a decision reported in 2008 (4) P.L.J.R. 62 (SC)
(Hosila Tiwari Versus State of Bihar). He submitted that
mere non-filing of an application under Rule 79 (1) during
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counting cannot defeat the claim for a prayer to recount
the votes, if grounds are otherwise made out to the
satisfaction of the Court concerned. He submits that the
petitioner did file an application. In his pleadings he also
demonstrated the circumstances under which he was
unable to file his objections during the counting. Therefore
under the findings recorded in paragraph-11 of the
aforesaid judgment, the Munsif did not commit any
material irregularity in directing counting of votes. It was
not a mandatory requirement that under all circumstances
the objection must be filed during the counting only.
The law laid down in Hosila Tiwari (supra)
primarily is that compliance with Rule 79(1) was
mandatory. Quoting an extract from its own judgment
reported in 2004 (6) SCC 331 (Chandrika Prasad Yadav
Versus State of Bihar & others) at paragraph-20 and 21 of
the same, the Supreme Court reiterated the legal positing
with regard to Rule 79 (1) thus:-.
“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 counting of votes;
(iii) a roving and fishing inquiry shall not
be made while directing re-counting of
votes; and
(iv) an objection to the said effect has
been taken recourse to.
4
21. The requirement of maintaining the
secrecy of ballot papers must also be kept in
view before a re-counting 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.”
The conclusion recorded in the case of Hosila
Tiwari (supra) at paragraph-11 is that in the event a
candidate is able to demonstrate sufficient explanation or
material to show that he was prevented from
circumstances prevailing beyond his control from making
such an application, in such circumstances it may become
a question of fact whether the application under Rule 79
(1) can be entertained after the counting is over. But where
opportunity was available to the aggrieved party to make a
complaint, but he does not make such a complaint, the
principle could not be applied in a standardized manner.
The factual situation which fail for consideration before the
Supreme Court arising out of a judgment from this Court
related to an unruly situation created at the time of
counting because of which for circumstances beyond his
control the aggrieved is unable to file objection for no fault
of his.
Therefore, the mandatory requirement of Rule 79
(1) has been affirmed. What has been relaxed is to a limited
extent provided the facts of the case justified the same and
there is material on record to arrive at that reasonable
5explanation and satisfaction.
The respondent no.1 filed his application
undoubtedly after the counting was over. The application
only states that he had been made to loose by a narrow
margin by committing irregularities. The counting was
continuing and suddenly on conclusion of the counting he
was told that he had lost and that he should leave. He
asked for a detailed report which was not furnished
indicative of foul intention. He therefore requested for
appropriate action. It is apparent that in his application he
did not even raise a whisper of suggestion of what
irregularities were committed during counting much less
any ground that he was prevented from complaining or
that circumstances prevailing prevented him from
complaint. In fairness to the respondent no.1, the Court
shall also consider his plaint which has been brought on
record by way of a supplementary counter affidavit. Crucial
are paragraphs 15 to 20 of the same. Even therein he only
makes a grievance that on certain tables the counting was
done in absence of his representative. Ballot papers were
wrongly taken into account and ballot papers in his favour
wrongly rejected. He was not allowed entry of his Election
Agent during counting. He along with his counting agent
only was unable to oversee the counting since counting
was taking place at eight tables and it was not possible for
6the petitioner or his counting agent to be simultaneously
present near all the tables. The petitioner even in his
pleading does not make a whisper of a suggestion as to
what were the circumstances beyond his control at the
time of counting which prevented him from filing an
objection of alleged irregularities during the counting
process. On his own showing, he was inside the counting
place along with his counting agent. Applying the principle
laid down in the case of Hosila Tiwari (supra) with regard
to acceptance of an application under Rule 79 (1) after the
counting was over, the petitioner has not been able to
make out a case to the satisfaction of the Court that he
was prevented from filing objections for reasons beyond his
control during the process of counting. On the contrary,
the Court holds that the petitioner has been unable to
place any material on record of any circumstances existing
of a nature which obstructed the filing of an objection by
him during the process of counting under Rule 79 (1) held
to be mandatory in nature.
The order dated 17.7.2010 is set aside. The
application stands allowed.
P.K ( Navin Sinha, J.)