MEERA DEVI Vs. STATE OF BIHAR AND OTHERS

JUDGEMENT

(1.) Heard learned Senior counsel for the appellant-writ petitioner, learned Senior counsel for respondent No. 7 Election petitioner as well as learned counsel for the State of Bihar and learned counsel for the Bihar State Election Commissioner. By the order under appeal the learned Single Judge has dismissed the writ petition summarily after noticing the grievance raised by the writ petitioner that the Election Tribunal had allowed prayer of the election petitioner for recounting of votes without appreciating the effect of non-compliance of Rule 79 of the Bihar Panchayat Election Rules, 2006 (hereinafter referred to as "the Rules). On behalf of the appellant it has been submitted that Rule 79 requires making of a written application to the Returning Officer or to the Officer authorized by him for recounting of votes stating therein the grounds for the same, but in the present case admittedly there was no written application filed by the Election petitioner or his election agent or counting Agent for recounting of votes. On the basis of law settled by a catena of judgments of this Court and by the Supreme Court fully considered in a recent judgment by a Division Bench of this Court in the case of Pappi Singh v. State Election Commissioner & Ors, 2010 3 PLJR 167, it was emphasized that an election petitioner has to show compliance of Rule 79 or else he/she has to state the reasons and furnish sufficient explanation as to why such statutory remedy was not availed of. For this purpose the aforesaid judgment has relied upon decision of the Supreme Court in the case of Chandrika Prasad Yadav v. State of Bihar and others, 2004 6 SCC 331 and decision of the Supreme Court in the case of Hoshila Tiwari v. State of Bihar and others, 2008 4 PLJR(SC) 62 and also another Division Bench judgment of this Court in the case of Anita Devi v. State of Bihar & Ors., 2010 1 PLJR 93. Further, specific reliance was placed upon paragraph-6 of the judgment in the case of Anita Devi ( Supra ), which is extracted in paragraph-19 of the judgment in the case of Pappi Singh ( Supra). For further appreciation of the issue at hand, the aforesaid paragraph-6 is again extracted herein below :

(2.) On facts it was submitted on the basis of the contents of the election petition, which has been annexed as Annexure-2 to this memorandum of appeal to point out that in the relevant paragraphs, i.e., paragraphs- 5 to 9, there is no explanation, much less an explanation with particulars of the facts and circumstances which could show that the election petitioner was in fact prevented by those prevailing material situation from making the application under Rule 79 of the Rules. It was further submitted that the learned writ Court erred in relying upon professed verbal protest mentioned in the written statement as a sufficient substitute for written application for recounting as required under Rule 79 of the Rules.

(3.) On behalf of respondent No. 7, learned Senior Advocate placed reliance upon several judgments of the Supreme Court, particularly those in the case of Shashi Bhushan v. Balraj Madhok and others, 1972 AIR(SC) 1251 and in the case of Ram Sewak Yadav v. Hussain Kamil Kidwai and others, 1964 AIR(SC) 1249 to advance an argument that in those cases the Supreme Court did not insist upon compliance with Rule 63 of the Conduct of the Election Rules, 1961 which is similar to Rule 79 of the Rules.