IMPORTANT POINTS
Recounting of votes can be ordered if election petitioner establishes his allegations in the election petition.
High Court can mould the direction issued by the Election Tribunal and instead issue declaration.

JUDGMENT :

A.M. KHANWILKAR, J.

1. Leave granted.

2. This appeal takes exception to the judgment and order dated 27.8.2019 passed by the High Court of Judicature at Patna (for short, ‘the High Court’), thereby setting aside the order of the learned single Judge, dated 6.3.2019 and orders passed by the Court of Civil Judge (Junior Division)-cum-Election Tribunal, Danapur, District Patna, Bihar (for short, ‘the Election Tribunal’), dated 11.10.2018 and 11.4.2019 in Election Case No. 08/2016. Consequently, the above numbered election case filed by the appellant challenging the election of respondent No. 1 as returned candidate for the post of Mukhia, Artyapur Gram Panchayat No. 8 under Naubatpur Block, came to be dismissed.

3. Briefly stated, the election for the post of Mukhia, Artyapur Gram Panchayat No. 8 under Naubatpur Block was held on 6.5.2016, in which the appellant and respondent No. 1 alongwith 11 others had contested as candidates and after counting of votes on 4.6.2016, the respondent No. 1 was declared elected. During the counting, however, the appellant had noticed that number of valid votes cast in his favour were being rejected, while even invalid votes in favour of respondent No. 1 were being accepted and counted. The respondent No. 1 was declared elected by a margin of 154 votes. In this backdrop, the appellant filed an election case before the Election Tribunal, seeking recounting of votes, setting aside election of respondent no. 1 and declaring him (appellant) elected. The appellant specifically alleged about the irregularities committed during the counting process including the one that swastika symbol pressed light ink was not being counted in favour of the appellant and despite grievance being made in that behalf, no heed was paid by the Returning Officer. At the same time, it was also noticed that some invalid votes cast in favour of respondent No. 1 were accepted and counted as valid disregarding the objection taken in that behalf. The election case proceeded for trial and after recording of evidence of the witnesses produced by the concerned parties, the Election Tribunal after due evaluation of the evidence, accepted the grievance of the appellant that the result sheet prepared by the election officer was not proper as the counting of votes was not done by the officials as per rules. The Election Tribunal proceeded to record finding of fact in favour of the appellant and answered the issue in the following words:-

“………

By perusal documentary evidences as well as plaint on record its appear that applicant has tried his level best to brought all material facts in his plaint and supported by his evidences, it is also appeared that as soon as plaintiff got knowledge that some irregularities is going on while counting votes and he came to know that his 216 valid votes has been rejected due light ink on the ballot but same type of has been counted in favour of returned candidate then immediately he has made an application to concerned officers for recounting which is marked Ex.1, same has been made in his plaint as well as supported by oral as well as documentary evidences. Plaint of this case make out a prima facie case with regard to the valid votes of the plaintiff rejected. In this case all the aforesaid conditions are fulfilled by the petitioner which are discussed above. Thus, in the light of the discussions made above this tribunal finds that there were irregularities in the counting of votes in the present case, the result sheet prepared was irregular, not proper and counting of votes by the officials not done as per rule. Thus, there issue goes in favour of the petitioner.”

Finally, the Election Tribunal proceeded to pass the following order:

“ORDER

In the light of the aforesaid issues it is clear that in the counting the Rule 79 of the Bihar Panchayat Election Rules were not followed by the counting authorities and hence on this sole issue the election petition is fit to be allowed, but as per the discuss