GANESH YADAV Vs. PANKAJ KUMAR SINGH

JUDGEMENT

(1.) Heard learned counsel for the petitioner and learned counsel for respondent no.1. 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

(2.) 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.

(3.) Leaned counsel for respondent no.1 strongly relied upon a decision Hosila Tiwari Vs. State of Bihar., 2008 4 PLJR(SC) 62 He submitted that mere non-filing of an application under Rule 79 (1) during 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.