The court upheld the Election Tribunal's decision to order a fresh poll based on the evidence and material presented during the trial, and found no material irregularity or illegality in the decision.

1. The present writ application is directed against the judgment and order dated 25.6.2008 passed by the learned Civil Judge, Junior Division No.-II, Chapra in Election Petition No. 21 of 2006. By virtue of the impugned order the Election Tribunal was pleased to direct holding of fresh polling on booth Nos. 249 and 250 of Gram Panchayat No. 18 of Musepur, in the district of Saran after setting aside the election of the petitioner. It also directed that the final result would be declared based on the fresh poll on the two booths.

2. Based on a notification dated 31.5.2006 issued by the State Election Commission, election for filling up the post of Mukhiya was conducted in the State of Bihar. The present matter relates to Musepur Gram Panchayat which falls under Chapra Sadar Block, in the district of Saran. The election was held. The result declared which went in favour of the petitioner. Petitioner thereafter took over as a Mukhiya of the Gram Panchayat in question but it seems that the result of the election did not satisfy respondent No. 5 namely, Munna Kumar. During counting of votes he lodged complaint with the Returning Officer, District Magistrate, as well as the State Election Commission stating large scale irregularities in the process of counting itseif. But then since nothing came out of it, he decided to file election petition before the court of competent jurisdiction which was registered as Election Petition No. 21 of 2006.

3. The election petition has been brought on record as Annexure-1 to the writ application. The matter was duly contested by the present petitioner and the Election Tribunal formulated 9 issues to be decided. The trial of the election petition resulted in a decision dated 25.6.2008. The decisions of the Election Tribunal based on the finding that there was serious irregularity in so far as booth nos.249 and 250 were concerned because as per the records though 261 votes were polled on booth no. 249, 310 ballot papers were counted by the Returning Officer. With regard to booth no. 250, 400 votes were polled but only 376 ballot papers were found and counted and there were no serious explanation on this issue. Based on the evidence and the material which came during the trial the Election Tribunal declared the result in question to be illegal and directed holding of fresh poll on the two booths namely, 249 and 250 and the Election Commission was directed to declare the result based on the outcome of the fresh poll on two booths. It is this basic decision against which the petitioner approached the High Court by filing the present writ application.

4. Some of the submissions which have been made on behalf of the petitioner is that the order in question is illegal and the Tribunal erred in coming to the conclusion and interfering with the election result itself. According to him no material facts have heen either stated or pleaded by the respondents in the election petition. In absence of the same there was no occasion for the Tribunal to direct holding of repoll on two booths. There was no prayer for repolling made in the election petition and therefore the Tribunal has exceeded its jurisdiction. The mandatory requirements 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. Some other objection on the impugned decision is that there was no proper verification or affidavits in support of the pleadings in the election petition and this ought to have been good enough for the tribunal to reject the petition itself. Yet another submission on behalf of the petitioner is that even if the allegation of some wrong doing on the two booths is accepted then the discrepancy in the number of votes polled and the number of ballots counted adds up 72 votes only. The margin of the victory in question was 114 votes. Even for the sake of argument, if those 73 votes are pres