Full Judgment
Chandramauli Kumar Prasad, J.
1. This application has been filed for quashing the order dated 20.12.2002 passed by the Munsif, Ist, Munger in Misc. Case (Election Petition) No. 21 of 2001 whereby it had directed for recounting of the votes.
2. Short facts giving rise to the present application are that the petitioner as also respondent No. 5 were candidates for. election to the office of the Mukhiya of Mokwa Gram Panchayat within Tarapur Block of Munger District, The election was held on 15.4.2001 in which the petitioner was declared elected and a certificate to that effect was given to him. Respondent No. 5 challenged his election by filing election petition before the Munsif which was registered as Misc. Case (Election Petition) No. 21 of 2001. During the pendency of the said election petition, Respondent No. 5, hereinafter referred to as the election petitioner, filed application for recounting of the votes. Petitioner, hereinafter referred to as the returned candidate, filed rejoinder and contested the prayer of the election petitioner. Out of some of the candidates who were impleaded as opposite party in the election petition, supported the election petitioner for recounting of the votes and the learned Munsif considering the same, directed for recounting of the votes holding that for expeditious disposal of the election petition and in conformity with the principle of natural justice same is necessary.
3. Mr. Ram Suresh Roy, Senior Advocate, appearing on behalf of the petitioner raises a very short point. He submits that the learned Munsif had directed for recounting of the votes in a mechanical manner.
4. JC to G.P. III as also Mr. Ajit Kumar Singh appearing on behalf of Respondent No. 5, however, contend that when the election petitioner as also many other candidates had prayed for recounting of the votes, the learned Munsif did not err in passing the impugned order.
5. Having considered the rival submission, I find substance in the contention of Mr. Roy. It is well settled that an order of recounting of the votes can be passed when the election petitioner satisfies and the Court holds that it has a prima facie case, pleading of material facts suing irregularities in counting of the votes and objection to that effect has been taken. Without recording any prima facie finding, the learned Munsif has passed the impugned order in a mechanical manner. The view which I have taken, finds support from the decision of the Supreme Court in the case of Chandrika Prasad Yadav v. The State of Bihar and Ors., AIR 2004 SC 2036 in which it has been held as follows.
'20. It is well settled that an order of recounting of votes can be passed when the following conditions are fulfilled :
(i) A prima facie case ;
(ii) Pleading of material facts stating irregularities in counting of votes ;
(iii) A roving and fishing inquiry shall not be made while directing recounting of votes ;
(iv) An objection to the said effect has been taken recourse to.
6. As the order passed by the learned Munsif does not conform to the requirement of law, same cannot be allowed to stand. However, in case, in future, after the evidence is led and the learned Munsif is of the opinion that the condition precedent for allowing recounting of votes is made out, the order passed today, shall not stand in the way of passing the fresh order for recounting of the votes.
7. In the result, the application is allowed. The impugned, order is set aside
with the observation aforesaid. No cost.