S.B. Sinha, J.

1. The extent of jurisdiction of election tribunal to direct recounting of votes is the primal question involved in this appeal which arises out of a judgment and order dated 18.11.2002 passed by a Division Bench of the High Court of Judicature at Patna in L.P.A. No. 1149/2002 dismissing the appeal arising out of an order dated 7.10.2002 passed in Writ Petition marked as CWJC No. 5004/2002 whereby and whereunder a learned Single Judge of the High Court allowed the writ petition filed by the respondent herein questioning an order of the election tribunal dated 20.10.2001.

BACKGROUND FACTS:

2. The private parties hereto contested an election for the post of Mukhiya of Raj Gamhariya, Gram Panchayat. The said election was held on 19.4.2001 and the votes polled therein were counted on 20.5.2001. The contention of the appellant was that the returning officer had informed him that he had secured 900 votes out of which 150 had been declared invalid and, thus, he got 670 valid votes whereas the respondent Mahendra Rai had secured only 622 votes. However, when the result was finally declared on 21.5.2001,the 4th respondent herein was declared elected by securing allegedly 32 more votes than the appellant herein. The total votes polled by the appellant was shown as 670 and votes polled by the 4th respondent was shown as 702.

3. The appellant allegedly moved an application for recounting of votes before the returning officer but the same was not entertained. The appellant thereafter filed an election petition questioning the election of the 4th respondent herein before the learned Munsif, Raxoul, East Champaran primarily on the ground of irregularities in counting of votes. Before the election tribunal, the parties adduced their respective evidences whereafter the learned Munsif by an order dated 20.10.2001 directed inspection and recounting of ballot papers; pursuant to or in furtherance whereof the Returning Officer, East Champaran was directed to produce the ballot papers.

4. Aggrieved thereby and dissatisfied therewith, a writ petition was filed by the 4th respondent herein which was, however, withdrawn. Recounting of the ballot papers was held on 23.3.2002 as a result whereof the appellant was said to have secured 671 votes; whereas the 4th respondent secured 667 votes. The Election Petition, therefore, thereafter was allowed by a judgment and order dated 6.4.2002. The 4th respondent being aggrieved by and dissatisfied therewith filed a writ petition before the Patna High Court which was marked as CWJC No. 5004/2002. By an order dated 7.10.2002, the said writ petition was allowed where against a Letters Patent Appeal was filed by the appellant herein which was dismissed by a Division Bench of the High Court. Hence this appeal by special leave.

SUBMISSIONS:

5. Mr. Amarendra Sharan, learned senior counsel appearing on behalf of the appellant would submit that the High Court committed a manifest error in passing the impugned judgment purporting to rely upon or on the basis of the decision of this Court in Ram Rati (Smt.) vs. Saroj Devi and others (1997) 6 SCC 66) wherein it has been held that it is mandatory for the election petitioner to file an application for recounting of votes before the returning officer in terms of the election rules, although the same has since been overruled by a 3-Judge Bench of this Court in Sohan Lal vs. Babu Gandhi and others (JT 2002(9) SC 474) : (2003) 1 SCC 108).

6. The learned counsel would urge that as in a democracy the rule of majority should prevail, the learned Munsif was within his jurisdiction to direct recounting of votes upon satisfying itself the necessity therefor and in that view of the matter the High Court should not have interfered with the said judgment.

7. Mr. Sharan would submit that the learned Munsif had assigned valid and cogent reasons in support of his order upon taking into consideration the pleadings of the parties and the evidences brought on records and in that view of t