ISHRAT JAHAN HAIDRY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The challenge in the present writ application is to the procedure adopted at the time of counting of the votes in the election held for the post of Mukhiya of Gram Panchayat Raj, Moro in the district of Darbhanga on 2/6/2016, by the Returning Officer, Hanuman Nagar.

(3.) The petitioner was a candidate for the post of Mukhiya of Gram Panchayat Raj, Moro and pursuant to election, the counting was also held on 2/6/2016. During the counting in the first round, as the difference between the candidate who appeared to have the maximum number of votes and the petitioner who was at number two, was only of three votes, on the joint representation of the petitioner and the other candidate, recounting was done for booths No. 1, 5, 7 and 14 to 16, pursuant to which the number of votes in favour of the petitioner and the other candidate became equal. At this stage, the Returning Officer went in for a 3rd round of recounting and it appears that the respondent no. 7, was shown to have polled 878 votes whereas the petitioner has been shown to have received 865 votes, and accordingly, the respondent no. 7 was declared elected. Learned counsel for the petitioner submitted that in terms of Rule 79 of the Bihar Panchayat Election Rules, 2006 (hereinafter referred to as the 'Rules') after the first counting, there can be a second recounting, but any application for further recounting after that shall not be entertained, which, in effect, bars any further recounting after only one recounting. Learned counsel submitted that the consequences are also provided for in Rule 80 of the Rules which takes care of such a situation where there is equality of votes and the same has to be resolved by draw of lots and it would be deemed that the person in whose favour the lot is drawn, has secured an additional vote. Learned counsel submitted that on the basis of the order passed by the Returning Officer (Panchayat), Hanuman Nagar, the respondent no. 5, who is also the Block Development Officer, Hayaghat, Darbhanga, copy of which has been annexed as Annexure- 5 to the writ petition dtd. 2/6/2016, a declaration of respondent no. 6 having been elected is totally perverse and directly in conflict with Rules 79 and 80 of the Rules and such action, besides being beyond jurisdiction, is clearly arbitrary and mala fide. Learned counsel submitted that though the petitioner has moved the Election Tribunal-cum-Munsif, Darbhanga in Election Petition No. 04 of 2016, against the election of respondent no. 6, but in the present case, on the basis of the admitted facts, which have been noted in the order impugned itself, not only the election is required to be set aside but action against the concerned officer should also be taken so that such blatant abuse and misuse of authority does not go unpunished.