The challenge to an election must be based on specific statutory grounds and must establish that the irregularity materially affected the election result.

R.M.Doshit, J.

1. This Appeal preferred under Clause 10 of the Letters Patent arises from the judgment and order dated 22nd October 2008 passed by the learned Single Judge in above C.W.J.C. No. 9840 of 2008*.

2. The subject matter of dispute is the election of the appellant-writ petitioner as Mukhiya, Gram Panchayat Raj, Musepur, District-Saran held on 31 st May, 2006. The appellant won the said election over the respondent No. 5 by a margin of 114 votes.

3. Feeling aggrieved by the election of the appellant, the respondent No. 5 challenged the said election in Election Petition No. 21 of 2006 before the Election Tribunal at Chapra, District-Saran (hereinafter referred to as "the Tribunal"). The respondent No. 5 alleged that there was an irregularity committed in counting of votes at booth Nos. 249 and 250. At Booth No. 249 total votes cast were 261. However, while counting a total of 310 votes were counted. Similarly at booth No. 250 total votes cast were 400 but the votes counted were 376. In other words, there was an excess of 49 ballot papers at booth No. 249 and a deficit of 24 ballot papers at booth No. 250. But for this irregularity, the respondent No. 5 would have been elected.

4. The election petition was contested by the appellant. According to the appellant even if the 49 excess votes were ignored and 24 deficit votes were counted in favour of the respondent No. 5 it could not have materially affected the result of the election. The Election Tribunal, therefore, had no jurisdiction to entertain the Election Petition.

5. The Election Tribunal by its judgment and order dated 25th June, 2008 upheld the challenge to the election of the appellant. The Tribunal ordered re-polling at the above referred booth Nos. 249 and 250.

6. Feeling aggrieved the appellant filed above C.W.J.C. No. 9840 of 2008* before this Court.

7. We are informed that pending the above C.W.J.C. No. 9840 of 2008 the repolling at booth Nos. 249 and 250 was held on 20th July, 2008. The respondent No. 5 was returned as the elected candidate. Since then the respondent No. 5 is holding the post of Mukhiya, Gram Panchayat Raj, Musepur.

8. The learned Single Judge, by the impugned judgment and order dated 22nd October 2008, upheld the order of the Tribunal. The learned Single Judge has noted that after the counting of votes at the aforesaid booth Nos. 249 and 250 the respondent No. 5 had lodged a complaint to the District Magistrate and the State Election Commission and had demanded recounting as envisaged by Rule 79 of the Bihar Panchayat Election Rules, 2006 (hereinafter referred to as "the Rules"), but to no avail. The learned Single Judge also noted that the counting of the votes at the aforesaid booth Nos. 249 and 250 was not done in a proper manner and that it had given undue and illegal benefit to the appellant. The learned Single Judge noted that there was no infirmity in the order of the Tribunal in not setting aside the entire election and in ordering re-poll at the two booths Nos. 249 and 250 alone. The learned Single Judge also noted that after the re-poll at the aforesaid two booths the respondent No. 5 was declared elected. The learned Single Judge rejected the plea in respect of the maintainability of the Election Petition as technical plea not supported by the material or the evidence. The learned Single Judge was also pleased to note that the respondent No. 5 had, prima facie, established before the Tribunal that in the election, the counting had not been done in fair and proper manner.

9. Therefore, the present Appeal.

10. This Appeal was earlier heard and dismissed by the judgment and order dated 23rd March, 2009 [CORAM: J.B. Koshy, C.J. and Dr. Ravi Ranjan, J.]. The said judgment and order was recalled by order dated 7th April, 2010 made on Civil Review No. 106 of 2009 [CORAM: Dipak Mishra, CJ. (as he then was) and Dr. Ravi Ranjan, J.]. Since recall of the judgment the Appeal has come up for hearing before us.

11. Learned Advocat