Patna High Court
Raj Kishor Shukla vs Banwari Yadav And Ors. on 22 January, 2008
Equivalent citations: 2008(1)BLJR1100, AIR 2008 (NOC) 1537 (PAT.), 2008 (3) AJHAR (NOC) 701 (PAT.)
Author: Barin Ghosh
Bench: Barin Ghosh
JUDGMENT Rajesh Balia, C.J. and Barin Ghosh, J.
Page 1100
1. Heard learned Counsel for the parties.
2. This appeal is directed against the order of the learned Single Judge dated 16th August, 2007 allowing the writ application filed by the respondent in an election matter. The appellant has contested the election of the Mukhiya from Gram Panchayat Raj Haradiya, under the Bhore Block, District Gopalganj. He has lost the election and respondent-petitioner was declared elected by the Returning Officer on 15.6.2006 by 15 votes. The appellant had moved on 16th June, 2006 an application before the Returning Officer for recounting. The application addressed to the Returning Officer for recounting reads as under:
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3. No order was passed on that application and the election result was declared despite the appellant claiming for the recounting of the votes and declaration of result on that premise.
Challenging the election of respondent petitioner election petition was filed by the present appellant claiming recounting.
4. The grounds for recounting by indicting the validity of the counting made by the Returning Officer were stated to be; firstly that the election petitioner before the counting were completed was ousted from the counting centre in order to make counting in his absence to favour the other candidate though at that time the objector was leading; Secondly it was stated that an application for recounting was moved on 15.6.2006 itself but the same was torn by the Returning Officer and was not accepted.
5. The Election Tribunal firstly, by holding a prima facie opinion in favour of recounting, directed for the production of the ballot boxes and then allowed the election petition by directing recounting on 17th July, 2006 and by recounting declared objector to the election petition elected as Mukhiya setting aside the election of the petitioner respondent.
6. The order of the Election Tribunal has been set aside by the learned Single Judge, inter alia, on the ground that no ground has been made out for ordering the recounting and the application claiming recounting made before the Returning Officer was not Page 1102 in accordance with law and no order of recounting had been given on that premise. Rules 79 of the Bihar Panchayat Election Rules, 2006 which lays down procedure of recounting requires that a candidate, and in his absence his election agent, at the end of counting can apply for recounting of the votes on the grounds stated in the application to be submitted in writing to the Returning Officer. It is thereafter for the Returning Officer to accept or reject the application by a reasoned order and if the prayer of recounting is accepted, fully or partly, the recounting should be held in accordance with the law and the election result shall be declared after recounting and no further application would be admitted.
7. The aforequoted application, has been submitted by the candidate before the Returning Officer in writing for recounting of ballots, challenges the validity of the counting. One does not have to go beyond the application to search for the reasons for which recounting is sought. As a matter of fact on the basis of the application no further steps of recounting was required to be taken much less such application would provide foundation to raise a ground for seeking recounting in an election petition. The vague allegation in the application could not be entertained for the purpose of ordering recounting. By ignoring the aforesaid cardinal principle in dealing with the election petition the Election Tribunal has entertained the prayer for recounting not on the ground on which recounting was sought from Returning Officer but on the grounds namely stated in the election petition. The application did not disclose any reason to hold counting already completed to be invalid. Why the counting is invalid so as to require recounting of votes. When no grounds were raised in application, which could be considered by Returning Officer to make a reasoned order. The grounds stated in election petition were not stated in application dated 16.6.2006. The procedure adopted by the Election Tribunal has not been countenanced by the learned Single Judge and that petition has been allowed by setting aside the order of the Tribunal. The conclusion of the learned Single Judge is in consonance with other reliefs, secondly we do not find any merit in this application and the same is hereby dismissed. There shall be no order as to costs.