KAMALAKANT THAKUR Vs. ELECTION TRIBUNAL

JUDGEMENT

(1.) This application by the sole petitioner under Articles 226 and 227 of the Constitution of India is directed against the final order dated the 13th January, 1971, passed by the Election Tribunal (respondent No. 1) setting aside the election as Mukhiya of the petitioner and declaring Sri Ramasis Singh (respondent No. 2), as duly elected Mukhiya in place of the petitioner under Rule 82 (i) of the Bihar Gram Panchayat Election Rules, 1959 (hereinafter referred to as 'the Rules').

(2.) Learned counsel, Sri Satyanand Kumar, appearing on behalf of the petitioner has challenged the impugned order on various grounds including that the Tribunal on the facts and circumstances of the case could not have declared respondent No. 2 as duly elected in place of the petitioner. In my opinion, the other g rounds urged on behalf of the petitioner have no substance. The only ground which deserves consideration is the one that the Tribunal could or could not have declared respondent No. 2 as duly elected. Learned counsel has referred to paragraph 4 of his petition wherein it has been specifically stated that there were four candidates, who were contesting the said election of the Mukhiya of Ladari Gram Pan-chayat in Kewti Block in the district of Darbhanga. Those four candidates were the petitioner and respondents Nos. 2, 3 and 4. He submitted that the votes which were cast in favour of respondents Nos. 8 and 4 were not scrutinised by the Election Tribunal, nor respondent No. 2 led evidence before the Tribunal to establish that the votes which were declared invalid would have been cast in favour of respondent No. 2 alone. According to learned counsel a heavy onus lay upon him to establish that. In order to substantiate his contention he relied on a decision of the Supreme Court in the case of Vashist Narain Sharma v. Dev Chandra, AIR 1954 SC 513 wherein their Lordships while dealing with Section 100 (1) (c) of the Representation of the People Act, 1951 observed in paragraph 9 at pages 515 and 516 that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must not lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies on the petitioner. It will not suffice to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which portion of the votes will go to one or the Other of the candidates.

(3.) Learned counsel next referred to the case of Tanu Soren v. State of Bihar, 1903 BLJR 611 where a Bench of this Court while dealing with the provisions contained under Rule 83 (1) of the Rules observed in paragraph 4 at pages 613 and 614 thus:--