BAL MUKUND ROY S/O LATE RAMDAS ROY Vs. STATE OF BIHAR THROUGH THE DISTRICT MAGISTRATE-CUM- ELECTION OFFICER, JAMUI

JUDGEMENT

(1.) Heard Mr. Chittaranjan Sinha, learned Senior counsel assisted by Mr. Sanjay Kumar Mishra, Advocate, for the appellant and Mr. Arun Kumar for the contesting respondent No. 2- election petitioner as well as Mr. Narendra Kumar, A.C. to G.P.XI for the official respondents.

(2.) Mr. Sinha while assailing the impugned order dated 14.10.2009 in C.W.J.C. No. 6475/2009 has submitted that the learned Single Judge in the process of dismissing the writ application filed by the appellant-writ petitioner has gone to affirm such an illegal order dated 6.5.2009 of the Election Tribunal regarding recounting of votes which cannot be countenanced in law. In this regard he has explained that the Election Tribunal has by the order dated 6.5.2009 had allowed the prayer of respondent No. 2, the election petitioner, for calling the ballot papers of Dabil, Amari and Raipura Gram Panchayat for inspection and verification only on the ground of meeting the ends of justice which in effect would mean recounting of votes for the purposes of relief sought for setting aside the result of election in favour of the appellant writ petitioner. Mr. Sinha has thus submitted that such mechanical order for recounting of votes in an election petition being wholly impermissible in law and unsustainable of fact ought to have been not affirmed by the learned Single Judge by dismissing the writ petition.

(3.) Per contra, Mr. Arun Kumar, learned Counsel appearing for respondent No. 2- election petitioner, has supported the order of the learned Single Judge and in this regard he has submitted that the appellant- writ petitioner was illegally declared to have been elected by the slender margin of 21 votes and such vitiated result of election was assailed by the respondent No. 2 in the election petition on several grounds including that more than 100 of his valid ballot papers cast in his favour were rejected illegally and about 100 ballot papers cast in his favour were mixed with the ballot papers of the appellant- writ petitioner and were counted in his favour. He has also submitted that the election petitioner had also specifically asserted in his election petition that a prayer for recounting was made by him on 11.6.2006 in course of counting but no orders thereon was passed by the Returning Officer and the result was declared on 13.6.2006 declaring the appellant- writ petitioner to be elected. He has, therefore, made a valliant effort to support the order of the Election Tribunal dated 6.5.2009 as with regard to production of the ballot papers of three Gram Panchayats, namely, Dabil, Amari and Raipura. He has also submitted that the said order dated 6.5.2009 of the Election Tribunal has been partly acted upon by recounting already done in respect of the ballot papers of one of the three Gram Panchayat wherein 9 votes actually polled in favour of respondent No. 2- election petitioner were found to have been wrongly counted in favour of the appellant- writ petitioner and as such, if the process of recounting for the remaining two other Gram Panchayat is allowed to be completed, there is every possibility of the election petition being allowed in favour of respondent No. 2- election petitioner declaring him to be the winner and therefore, he has submitted that this Court at this delicate and advanced stage should not interfere with the execution of the order of the Election Tribunal dated 6.5.2009, especially when the same has also been affirmed by the learned Single Judge while dismissing the writ application of the appellant- writ petitioner.