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