Pathak, J. - (1.) The petitioner and the fourth respondent contested an election to the Bihar Legislative Assembly seat from the Islampur Assembly Constituency in March, 1985. After the votes had been polled, the counting of votes was taken up on March 6, 1985. Pursuant to allegations made by the parties, the Election Commission of India ordered re-polling in sixty stations. On the conclusion of the re-poll the votes were counted and the petitioner was found to have secured more votes than the fourth respondent. The fourth respondent applied for a recount of the votes but the Returning Officer rejected the application and announced that the petitioner had been 'duly elected to the Assembly. A certificate of election in Form 22 under Rule 66 of the Conduct of Election Rules, 1961, was granted to the petitioner. It seems that the declaration in Form 21C was not prepared under Clause (a) of Rule 64 of the Conduct of Election Rules, 1961, and sent to the authorities required thereunder. The Returning Officer, on discovering that the ballot papers of one booth had not been counted, took those votes into account and thereafter issued a notice cancelling the election of the petitioner and declaring the fourth respondent to be the successful candidate. A declaration in Form 21C was then prepared declaring the fourth respondent to be the elected candidate, and a fresh certificate in Form 22 was issued.
(2.) The petitioner filed a writ petition in the Patna High Court challenging the declaration made in favour of the fourth respondent. A Division Bench of two Judges of the High Court heard the writ petition and on a difference between the two the case was referred to a third Judge of the High Court. The third Judge agreed with the view taken by one of the Judges of the Division Bench that the writ petition must fail because of the bar imposed by Clause (b) of Article 329 of the Constitution and that an election petition was the proper remedy.
(3.) In this petition for special leave against the majority judgment of the High Court, the only question is whether the bar enacted in Clause (b) of Article 329 operates against the writ petition. Learned counsel for the petitioner urged that the petitioner is entitled to maintain the writ petition and to contend that the returning officer had no power to cancel the election of the petitioner and declare the fourth respondent elected. It is submitted that the process of election was completed as soon as the counting of votes was concluded and a certificate of election in Form 22 was granted to the petitioner certifying that he had been elected, and therefore no question arose of the petitioner filing an election petition. What is challenged, says the petitioner, is the declaration by the returning officer thereafter that the fourth respondent, and not the petitioner stood elected. We see no force in this contention.;