HEMAN RAI Vs. STATE ELECTION COMMISSION

JUDGEMENT

(1.) ELECTION was held for the post of Mukhiya of Gram Panchayat Raj, musepur under Chapra Sadar Block in the district of Saran on 31-5-2006 and after election counting of votes was made and on 15-6-2006 the petitioner-appellant was declared elected by a margin of 114 votes. Respondent No. 5 Munna kumar on being dissatisfied by the result filed an election petition stating serious irregularity in counting of votes on booth Nos. 249 and 250 and prayed for re-counting of votes on these booths. The Election Tribunal looked into the alleged grievance and having found serious irregularity as per the materials brought on record that though 261 votes were polled on booth No. 249, 310 ballot papers were counted and on booth No. 250 though 400 votes were polled but only 376 ballot papers were found and counted, declared the result to be illegal and directed for holding of fresh poll on booth Nos. 249 and 250. Even though in re-poll the petitioner got more votes than the respondent no. 5 but having counted the total number of votes including votes of these booths after re-poll, respondent No. 5 got more votes than the petitioner. Aggrieved by the order of the Tribunal directing re-polling on the aforesaid two booths, the petitioner approached this Court in writ jurisdiction under Article 226 of the Constitution of India, which was also dismissed by the impugned order, against which the present appeal has been filed.

(2.) CONTENTION of the petitioner is that mandatory requirement of Rule 79 of the bihar Panchayat Rules have not been followed because there does not seem to be any material to show that a demand for recounting as envisaged under Rule 79 was actually made and, therefore, the order of the Tribunal directing for re-poll on booth nos. 249 and 250 was illegal. In support of his contention he has relied upon a decision of this Court in the case of Smt. Nagma khatoon v. The State of Bihar, 2008 (3) PLJR 87. The Said decision is clearly is not applicable to the fact situation of the present case as in that case matter involved was regarding recounting of votes whereas in the present case the matter involves is as to the discrepancy in number of votes because number of ballot papers does not tally the number of votes polled and counted. Counsel for the petitioner draws our attention to section 139 of the Bihar Panchayat Raj Act which provides grounds for declaring election to be void, which reads thus :

(3.) IT is contended that if the allegation made in the election petition regarding corrupt practices in counting of votes was not sufficient to affect the result, of election materially, the order of the Tribunal directing for re-poll cannot be sustained in the eye of law. He has also relied upon a decision of the single Judge of this Court in the case of janak Singh v. Ram Das Rai, 2004 (2) PLJR 581. The said decision is also of no help to the petitioner as in the said case the matter involved was as to the arithmetical error entered in Form No. 20 regarding two numbers of votes and 22 number of votes whereas in the present case matter involves is that at one booth ballot papers were found more than the votes polled and at another booth number of ballot papers were less than the votes polled and this difference of 73 votes cannot be said to be an arithmetical error.