Chandramauli Kr.Prasad, J.

1. This application has been filed for issuance of a writ in the nature of certiorari for quashing the judgment dated 14th of February 2003 passed by the Munsif, 2nd Gaya in election petition No. 3 of 2001 (Annexure-1) whereby it had set aside the election of the petitioner as Mukhiya of Dehuri Gram Panchayat. By the impugned judgment, the learned Munsif has further directed the District Magistrate-cum-District Election Officer, Gaya for holding a fresh election.

2. Shorn of unnecessary details facts giving rise to the present application are that petitioner Devendra Yadav, hereinafter referred to as the returned candidate, as also respondent No. 5 Md. Anwar Hussain, hereinafter referred to as the election petitioner, were candidates for election to the post of Mukhiya of Dehuri Gram Panchayat in the district of Gaya. In the said election Devendra Yadav was declared elected. The election petitioner challenged his election by filing an election petition u/s. 140 of the Bihar Panchayat Raj Act, 1993 inter alia alleging that the returned candidate had collected arms, musclemen and anti-social elements to terrorise the voters of booth Nos. 14, 15, 16 and 17. It was further alleged that on account of large scale violence at the aforesaid booths, the Presiding Officer reported the matter to the Returning Officer and gave report which led to registration of Atri PS Case No. 49 of 2001. It was further alleged that on account of large scale violence re-polling took, place on booth Nos. 15 and 16 but no re-polling was ordered at booth Nos. 14 and 17. It was further alleged that booth Nos. 14, 15, 16 and 17 were located at one place i.e. Elementary School, Dehuri and violence having taken place at all the booths, action of the Election Authority not to hold repoll at booth Nos. 14 and 17 was illegal which had materially affected the result of the election and accordingly, prayer was made to countermand the election.

3. The returned candidate filed written statement and denied all the allegations levelled by the petitioner and pleaded that no violence had taken place at booth Nos. 14, 15, 16 and 17 and the election was held in the peaceful manner. Plea of the returned candidates further was that on the day of election at booth Nos. 15 and 16, disturbance was created by the men of the election petitioner which led to registration of criminal case and accordingly, repoll was held on those booths on 11.5.2001. It was further alleged that at booth Nos. 15 and 16 total votes polled were 210 and 197 respectively. At booth No. 15 returned candidate got 160 votes and the election petitioner got five votes. At booth No. 16, 67 votes were cast in favour of the returned candidate whereas the election petitioner got 81 votes. The returned candidate denied all the allegation levelled by the election petitioner and, accordingly, prayed for dismissal of the election petition.

4. On the basis of the pleading of the parties the learned Munsif framed various issues which included the following issues :-

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"(iv) Whether any violence, corrupt and illegal practice was adopted by opposite party.

(v) Whether the election of opposite party as Mukhiya of Dehuri Gram Panchayat is fit to be set aside."

5. The party led evidence before the learned Munsif and the learned Munsif on appreciation of evidence held that fire, violence and bombing took place at alt four booths, namely, booth Nos. 14 to 17 but the order of re-election was only ordered at two booths, namely, booth Nos. 14 and 17. It accordingly observed that election held at booth Nos. 14 and 17 was not free and fair and accordingly set aside the election of the returned candidate and directed for holding a fresh election.

6. Mr. Ram Balak Mahto, Senior Advocate appearing on behalf of the petitioner i.e. returned candidate submits that violence at the polling stations is an election offence but in the absence of any evidence that booths were captured, the learned Munsif oug