ORDER

1. Heard learned counsel for the parties.

2. Leave granted.

3. In an election held for the post of Mukhiya of Parhi Gram Pancnayat the appellant and the seventh respondent polled equal number of votes and as required under Rule 80 of the Bihar Panchayat Election Rules, 1995 lots were drawn and in the result of the draw of lots the appellant herein was elected as the Mukhiya of the said Panchayat.

4. The said election came to be challenged by the seventh respondent herein on the ground that his request for re-counting of the votes was illegally rejected by the Returning Officer and in view of the fact that 3 votes polled in favour of the appellant (sic respondent) were wrongly rejected, the appellant was illegally declared as the winner.

5. Even though there was no application as required under Rule 79 of the Rules seeking for re-counting of the votes made by the seventh respondent, the Election Tribunal allowed the re-count. A challenge to the said order came up before a learned Single Judge of the patna High Court who after considering the judgment of this Court in the case of Chandrika Prasad Yadav v. State of Bihar1 came to the conclusion that apart from Rule 79 (supra) it is open to a candidate to challenge the refusal of the Returning Officer to re-count provided he showed grounds to establish that he could not make the required application under Section 79 of the Rules for good reasons. The learned Single Judge also came to the conclusion that from the material on record the seventh respondent had showed that he could not make the required application because of the "hungama" that prevailed at the time of counting of the votes.

. 6. Against the said order of the learned Single Judge an appeal before the Division Bench of the same High Court was filed. The Division Bench noticing the judgment referred to hereinabove and misreading the same came to the conclusion that the finding of the learned Single Judge affirming the order of the Tribunal was correct.

7. It is against the said judgments of the-courts below the appellant is before us.

8. It is argued on behalf of the appellant that Rule 79 being mandatory and there being no application filed by the seventh respondent immediately after the counting was over, it is not open to the Election Tribunal to entertain the request for re-counting.

9. It is an admitted fact that an application as required under Rule 79 of the Rules was not made at the required point of time. The learned counsel appearing for the seventh respondent submitted that as correctly held by the learned Single Judge it is open to the aggrieved party to satisfy the Election Tribunal as to why he could not make such application and how he was prevented from having filed such an application, and if that is done then the Election Tribunal is justified in allowing his request for re-count.

"79. Re-counting of votes.-(1) The candidate or in his absence his election agent or counting agent may file a written application to the Returning Officer or the officer authorised by him for re-counting of votes stating therein grounds of the same.

(2) The Returning Officer or the officer authorised by him may fully or partially accept or reject the application stating the reasons for the same.

(3) If the Returning Officer or the officer authorised by him accepts fully or partially the application under sub-rule (3) then he will get the ballot papers re-counted and amend the result of the counting in the form prescribed in sub-rule (3) of Rule 76 and declare the result.

(4) After that no application for re-counting will be entertained again."

10. From a reading of this rule and sub-rule (4) together it is clear that c making of an application is a mandatory requirement for ordering are-count and if the same is not made a similar prayer cannot be entertained thereafter. This Court in the case of Chandrika Prasadl interpreting the said rule held:

(SCC p. 337. paras 20-21)

"20. It is well settled that an order of re-coun