ANITA DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the appellant and learned counsel for the respondent/writ petitioner.

(2.) THE appellant lost the election of Mukhia by a narrow margin of four votes and filed an election petition with a prayer for recounting of votes. The learned Munsif, Gopalganj allowed the prayer by order dated 12.9.2007. Against that order the successful candidate preferred the writ petition in question bearing C.W.J.C. No. 12456 of 2007 which has been allowed by the order under appeal dated 11.4.2008 and the order of the learned Munsif for recounting of ballots has been set aside. On behalf of appellant it was submitted that no doubt the required application for recounting of votes as per Rule 79 of the Bihar Panchayat Election Rules, 2006 (hereinafter referred to as the Rules) was not submitted by the appellant before the concerned Returning Officer but in paragraphs of the election petition an explanation was offered as to why the petition could not be filed. According to him in view of such explanation available on record the Election Tribunal had the jurisdiction to order for recounting of ballot papers in view of judgment of the Apex Court in the case of Chandrika Prasad Yadav V/s. State of Bihar, (2004)6 SCC 331 as well as a subsequent judgment in the case of Hoshila Tiwari V/s. State of Bihar, 2008(4) PLJR (SC)62.

(3.) ON behalf of respondent/writ petitioner it was submitted that there is no quarrel with the aforesaid proposition of law but on perusal of paragraph -5 of the election petition, it would be clear that no specific case has been made out that a petition under Rule 79 of the Rules was prepared and was attempted to be handed over to the Returning Officer but was not accepted by him. It was further pointed out that as per pleadings there was no extra ordinary situation or material impediment which could prevent the election petitioner from preferring the required application under Rule 79 of the Rules.