(1.) Heard learned counsel for the parties.
(2.) The petitioner has moved the Court for quashing of letter of the Secretary, State Election Commission, Patna as contained in Letter No. 4956 dated 31.05.2016 by which he has directed the District Magistrate-cum-District Election Officer (Panchayat), Buxar to declare the result treating the number of votes polled at Booth No. 9, for the post of Mukhiya, to be nil.
(3.) Learned counsel for the petitioner submitted that he was also a candidate for the post of Mukhiya of Hakimpur Panchayat under Ithari Block of Buxar District and the poll was held on 06.05.2016 and counting took place on 29.05.2016. He submitted that during counting, it transpired that as per the note and entry made by the Returning Officer of the booth, only 457 voters out of a total number of 589 had cast their vote, but the number of ballot papers found, for the post of Mukhiya was 509 i.e., 50 more than the number of voters who had exercised their franchise. Learned counsel submitted that he had submitted a complaint on the same day to the Returning Officer, but no action was taken. He submitted that when the matter was referred to the State Election Commission, a report was called from the District Magistrate-cum-District Election Officer (Panchayat), who in turn had called for a report from the Returning Officer. Learned counsel submitted that the Returning Officer had found that there was grave irregularity for which both lodging of F.I.R. and initiation of departmental proceeding have been recommended against the Presiding Officer and three other officers managing the said booth. Learned counsel submitted that when such a situation existed, the State Election Commission was required to go for re-polling at the booth and not going ahead with declaring the result treating all the votes polled at Booth No. 9 for the post of Mukhiya to be nil. He submitted that 457 voters, who had exercised their votes, cannot be said to have not voted and their vote cannot be treated to be nil, as the statutory right of 457 persons cannot be abrogated or put to naught by the State Election Commission. He submitted that once the statute provides the right to vote, such votes have to be taken into account before any declaration of result is made. It was submitted that in the present case, by treating the entire votes as nil, even the 457 genuine voters, who had cast their votes, have been prejudiced, since in effect they have been treated as if they have not voted. Leaned counsel submitted that such action is in violation of the right of the voters concerned and has also caused prejudice to the petitioner inasmuch as, if the entire 457 voters were allowed to take part in re-polling, such number far exceeds the difference between the petitioner, who was placed no. 2 and the winning candidate, the margin being of 132 votes. Learned counsel finally submitted that the number 457 being much more than the difference between the winning candidate and the votes obtained by the petitioner, has materially affected the election and, thus, the impugned order deserves to be interfered with. Learned counsel submitted that the order impugned is in fact a nullity in the eyes of law, for the reason, that it is beyond jurisdiction, inasmuch as, the State Election Commission does not have the power to nullify the entire votes polled, which included votes which have not been rejected.