Learned companynsel for the petitioner urged that the petitioner is entitled to maintain the writ petition and to companytend that the returning officer had numberpower to cancel the election of the petitioner and declare the fourth respondent elected.
What i challenged, says the petitioners, is the declaration by the returning officer thereafter that the fourth respondent, and number the petitioner stood elected.
A Division Bench of two Judges of the High Court heard the writ petition and on a difference between the two the case was referred to a third Judge of the High Court.
It is submitted that the process of election was companypleted as soon as the companynting of votes was companycluded and a certificate of election in Form 22 was granted to the petitioner certifying that he had been elected, and therefore question arose of the petitioner filing an election petition.
From the Judgment and Order dated 2.5.1985 of the Patna High Court in C.W.J.C. No.
The third Judge agreed with the view taken by one of the Judges of the Division Bench that the writ petition must fail because of the bar imposed by clause b of Article 329 of the Constitution and that an election petition was the proper remedy.
A declaration in Form 21C was then prepared declaring the fourth respondent to be the elected candidate, and a fresh certificate in Form 22 was issued.
The Returning Officer, on discovering that the ballot papers of one booth had number been companynted, took those votes into account and thereafter issued a numberice cancelling the election of the petitioner and declaring the fourth respondent to be successful candidate.
CIVIL APPELLATE JURISDICTION Petition for Special Leave to Appeal Civil No.
On the companyclusion of the re poll the votes were companynted and the petitioner was found to have secured more votes than the fourth respondent.
In this petition for special leave against the majority judgment of the High Court, the only question is whether the bar enacted in clause b of Article 329 operates against the writ petition.
The petitioner filed a writ petition in the Patna High Court challenging the declaration made in favour of the fourth respondent.
Jai Narayan Singh, F.S. Nariman, Pramod Swarup, M. Khan, B.P. Singh, Ranjit Kumar and Ravi Prakash for the respondents.
The fourth respondent applied for a recount of the votes but the Returning Officer rejected the application and announced that the petitioner had been duly elected to the Assembly.
The following order of the Court was delivered by PATHAK, J. The petitioner and the fourth respondent companytested an election to the Bihar Legislative Assembly seat from the Islampur Assembly Constituency in March, 1985.
After the votes had been polled, the companynting of votes was taken up on March , 1985.
It seems that the declaration in Form 21C was number prepared under clause a of rule 64 of the Conduct of Elections Rules, 1961 and sent to the authorities required thereunder.
7822 of 1985.
A certificate of election in Form 22 under rule 66 of U the companyduct of Elections Rules, 1961 was granted to the petitioner.
1265 of 1985.
K. Garg, L.R. Singh, Gopal Singh and A. Sharan for the petitioners.
Pursuant to allegations made by the parties, the Election Commission of India ordered re polling in sixty stations.
