BANWARI YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner successfully contested for the post of Mukhiya from Gram Panchayat, Raj Haradiya, under the Bhore Block, District Gopalganj. The rival candidate, respondent no. 7, questioned his election in Election Petition No. 8 of 2006, under Sec. 137 of the Bihar Panchayat Raj Act (hereinafter referred to as 'the Act ') before the Munsif, Gopalganj. The relief sought was for recount of ballots and thereafter set aside the election of the petitioner and declare the plaintiff/ respondent no. 7 as having been elected.

(2.) BY order dated 30.4.2007 the Court held that it was prima facie satisfied that a case had been made out for calling the ballot papers and recounting of votes. The consequential orders dated 6.6.2007 and 17.7.2007 came to be passed after recount on an equality of votes that the petitioner and respondent no. 7 had secured 906 votes each and 253 ballots were found invalid from the total of 3409 ballots counted when respondent no. 7 was declared elected as the Mukhiya and the petitioner was unseated. I.A. No. 3487 of 2007 was then filed assailing the orders dated 6.6.2007 and 17.7.2007. The I.A. application is allowed.

(3.) IN the event of equality of votes during counting of an election petition under the Bihar Panchayat Act, the Election Petition must fail. Alternatively it was urged that if the ballots be equal then the election itself has to be declared void. The petitioner originally got 911 votes which was reduced to 906 in Court in recount. If these five votes be added to the 869 votes originally secured by respondent no. 7 he gets a total of 901 votes only. The grant of 906 votes to him without a discussion from where the balance five votes came makes the order impugned unsustainable.