The importance of maintaining the sanctity and purity of elections, and the need for an enquiry to determine if the election had been materially affected as per the relevant legal provisions.

Dipak Misra, J.

1. Defensibility of the order dated 16.12.2009 passed by the learned Single Judge in C.W.J.C. No. 17063 of 2008 is called in question in this appeal preferred under Clause-X of the Letters. Patent.

2. The facts which are necessitous to be exposited for adjudication of this appeal lie in a narrow compass. The first respondent had contested the election for the post of Mukhiya of Aurai Gram Panchayat, District-Madhepura in the year 2006 and had lost the election to the present appellant who had obtained 23 votes more than him. The appellant was declared elected by the Returning Officer. His election was assailed before the prescribed authority-cum-tribunal in Election Case No. 6 of 2006. The tribunal considering the material brought on record expressed the opinion that the election stood vitiated.

3. Being dissatisfied with the aforesaid order the present appellant preferred a writ petition forming the subject matter of C.W.J.C. No. 10714 of 2007 which was disposed of by order dated 13.2.2008 wherein this Court set aside the order of the tribunal and directed remit with specific direction to the tribunal to recount the ballot papers and pass a final order. The justifiability of the order passed by the Writ Court was challenged in L.P.A. No. 163 of 2008 which faced summary dismissal.

4. It is apt to note that the order passed by the Division Bench in appeal was challenged in Special Leave Petition before the Apex Court and their Lordships did not interfere. Thus, the matter relating to recount of votes and declaration of result attained finality.

5. On uncurtaining of facts in chronology, it is discernible the election tribunal recounted the votes and on recount it was found that there were 4099 valid votes and 301 invalid votes. The total number of the votes were counted was 4400. On recount of the said number of votes the appellant was declared elected by a margin of five votes. Ergo, the original result declared by the Returning Officer received the stamp of approval of the election tribunal.

6. Grieved by the aforesaid decision of the tribunal the first respondent herein invoked the jurisdiction of this Court under Article 226 of the Constitution assailing the pregnability of the order of the tribunal on the foundation that though the total number of votes polled were 4400, both valid and invalid votes yet 93 ballot papers were not available before the tribunal and there being a marginal difference of five votes on re-count, the entire process of election got vitiated.

7. The learned Single Judge, as is perceptible from the order, asked the State Government to file an affidavit to explain the discrepancy. After certain adjournments, eventually, an affidavit was filed stating, inter alia, that it had sent all the 4493 votes to the tribunal and the tribunal also counted 4493 votes. The learned Single Judge adverted to the order of the tribunal and came to hold that the tribunal had not received 93 votes. The learned Single Judge referred to the original Form No. 20 and held thus:

"The margin being only five votes on recount and 23 votes as originally counted, 93 votes are substantial specially when we feel that invalid votes were 229 on the earlier occasion and 301 on re-count. Thus, in my view, for this unexplained discrepancy, the results loose all authenticity and reliability. The only course i.e. left is to declare that the election result stands vitiated, as aforesaid and the only direction this Court, in such circumstances, can give is for holding re-election. It is only by that process the faith in democracy can be restored. I, thus, set aside the judgment of the Election Tribunal and ordered accordingly."

8. We have heard Mr. Rajehdra Prasad Singh, learned Senior Counsel alongwith Mr. Anant Kumar for the appellant and Mr. S.N.P. Sharma, learned Senior Counsel alongwith Mr. Ashok Kumar for respondent no. 1 and Mr. Ram Subhash Singh, learned counsel for the State and Mr. Sanjeev Nikesh, learned co