The main legal point established in the judgment is the requirement to implead all contesting candidates as party respondents to the election petition when seeking to declare the election of the returned candidate as void and further praying to declare herself or any other contesting candidate as the duly elected candidate after recounting.

Aggrieved by the judgment and order dated 14.01.2013 passed by learned Sub-Judge-IV-cum-the Election Tribunal (hereinafter referred to as Election Tribunal) in Election Case No. 110 of 2011 (Annexure-1), the petitioner (respondent in the said Election Petition) has filed the present writ application seeking appropriate writ/order for quashing the entire election case pending before the Election Tribunal. According to the petitioner, continuance of the said proceeding is sheer abuse of the process of the law. By the said order, the Tribunal, on the consideration of the materials placed before it, both oral and documentary, came to the conclusion that the election petitioner, respondent no. 7 herein, had made out a case for recounting of the ballot papers and thus directed for recounting of the same in open Court in presence of the parties or their counsels.

2. The relevant facts briefly be noticed for appreciating the submissions of the parties.

3. The petitioner as well as Respondent No. 7 contested election for being elected Member of the Zila Parishad, Bettiah from Gaunaha Anchal of West Champaran. Apart from the petitioner and Respondent no. 7, eight other candidates had filed their nomination papers and contested the election. The voting had taken place on 09.05.2011 and the counting was made between 21.05.2011 to 23.05.2011. The result of the election was announced on 23.05.2011. The petitioner herein had secured 8524 valid votes whereas the Respondent no. 7 had bagged 8394 valid votes. Other candidates had also polled valid votes the details whereof is not necessary to be noticed. The petitioner was accordingly declared elected by a margin of 130 votes. The Respondent no. 7 thereafter filed the election petition before the Election Tribunal giving rise to Election Petition No. 110/2011. A copy of the election petition is enclosed as Annexure-5. The Respondent no. 7 prayed the following relief(s):

“It is, therefore, prayed that your honour would be pleased enough to allow this application with specific direction to election officials for re-counting the entire polled votes including the rejected votes of the member of Zila Parishad a fresh in the presence of either authorised agents or the parties and thereafter to declare the result a fresh and in the meantime this O.P. no. 6 may not be either allowed to take oath or from discharging any official work and to that effect a rule of law be passed in the manner not to destroy the ballot papers and to deposit the same in the court custody the matter is finally disposed off in accordance with law.”

4. On going through the election petition, it appears that an issue with regard to unfair counting of vote(s) was raised by the petitioner. In paragraphs 10 and 11 of the election petition, the Respondent no.7 asserted as under:-

“10. That after knowing the unethical, illegal and in most arbitrary manner of the Returning Officer in the matter of the Returning Officer in the matter of unfair counting of votes, the petitioner made protest before and after the election to election office; under the Act for taking an appropriate action in the matter of considering for recounting of votes but none of them entertained the petitioner’s request.

11. That the election officer turned down the petitioner’s request without giving any direction on the point of unfair counting of votes, giving rise to the instant case.”

5. It is further noted that in the election petition (Annexure-5), the Respondent no. 7 had only impleaded the returned candidate (the writ petitioner) as Respondent no. 6 besides the official respondents. Written submissions were filed by the petitioner as well as the official respondents. The Election Tribunal on appreciation of evidence found that the petitioner and/or her husband had in fact filed applications for recounting vide Exts. A and A/1 and in the light whereof recounting of certain booths were made by the Returning Officer and the petitioner showed her satisf