CHANDRIKA PRASAD YADAV versus STATE OF BIHAR AND ORS.

Citation: [2004] 3 S.C.R. 834 · Decided: 05-04-2004 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
CHANDRIKA PRASAD Y ADA V 
V, 
STATE OF BIHAR AND ORS. 
APRIL 5, 2004 
B 
[V.N. KHARE, CJ., S.B. SINHA AND S.H. KAPADIA, JJ.] 
Election Laws: 
Bihar Panchayat Raj Act, 1993-Sections 140and121-Bihar Panchayat 
C Election Rules, 199j-Rule 79: 
Panchayat Elections-Defeated candidate filing application for recount 
of votes-Application not entertained by returning officer-However, in an 
election petition, Election Tribunal directing inspection and recounting of 
D votes, as a result of which defeated candidate declared elected-Candidate 
declared elected earlier challenging the order-Writ Petition allowed-Both 
Single Judge and Division Bench of High Court set aside the order of the 
Tribunal-On appeal Held: Order of the Election Tribunal did not satisfY the 
t 
statutory requirements-Election Tribunal failed to analyse the evidence and 
point out as to which averments made by defeated candidate could be accepted 
E as disclosing material facts for passing order of recounting-Thus, order of 
High Court justified. 
Rule 79-Application for recounting of votes-Held: Application filed 
either before the announcement of result or thereafter, is maintainable--
However, only because such application is not filed before the returning officer, 
F Election Tribunal is not precluded from issuing direction for recounting of 
votes--Thus, Rule 79 serves a salutary purpose. 
Elections were held for the post of Mukhiya of Gram Panchayat. 
Results were declared and respondent No. 4 was declared elected, having 
secured 37 votes more than the appellant. Appellant filed an application 
G for recounting of votes before the returning officer which was not 
entertained. He then filed election petition before the Election Tribunal 
challenging the election of respondent No. 4 on ground of irregularities 
J; 
in counting of votes. Munsif ordered recounting of ballot papers. Appellant 
H 
834 
C.P. Y ADAV v.STA TE 
835 
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was said to have secured 671 votes and respondent No. 4 secured 667 votes A 
and election petition was allowed. Aggrieved respondent No. 4 filed writ 
petition challenging the order of the Election Tribunal. Single Judge of 
High Court allowed the same. Appellant filed Letters Patent Appeal which 
was dismissed by the Division Bench of High Court. Hence the present 
appeals. 
B 
Appellant contended that the High Court erred in relying upon Ram 
Ra ti (Smt.) v. Saro) Devi's case that it is mandatory for the election 
petitioner to file an application for recounting of votes before the returning 
officer in terms of the election rules, although the same has since been 
overruled by a 3-Judge Bench of this Court in Sohan Lal vs. Babu Gandhi c 
and Ors. case; that Munsif was within his jurisdiction to direct recounting 
of votes upon satisfying himself of the necessity therefor; and that the 
Munsif had assigned valid and cogent reasons in support of his order upon 
taking into consideration the pleadings of the parties and the evidence 
brought on records and as such High Court erred in passing the impugned 
D 
judgment. 
Respondent No. 4 contended that High Court has rightly proceeded 
-f 
on the premise that the pleadings of the appellant being vague and general 
in nature, no case was made out for recounting of votes; that prayer for 
recounting of votes made by the appellant was on the basis that he had E 
filed a proper application before the returning officer but he failed to prove 
the said fact nor brought copy of the case on the records; that as regard 
the findings of the Munsif with regard to cutting and over-writing, no such 
case had been made out in the electiOn petition; that filing of an application 
before returning officer for recounting of votes may not be mandatory 
( 
but goes a long way to show that as to on what basis .the recounting was F 
~-
sought for; and that the order of the returning officer allowing or rejecting 
the same, would be of great assistance for the Election Tribunal to judge 
the correctness thereof. 
Dismissing·the appeal and the contempt petition, the Court 
G 
HELD: I. I. It is well-settled that an order of recounting of votes can 
"" 
be passed when the following conditions are fulfilled: a prima facie case; 
pleading of material facts stating irregularities in counting of votes; a 
roving and fishing inquiry would not be made while directing recounting 
of votes; and an objection to the said effect has been taken recourse to. H 
836 
SUPREME COURT REPORTS 
[2004] 3 S.C.R. 
A The 

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