The election petition must contain material facts alleging irregularities and corrupt practices, and the burden of proof lies on the party alleging irregularities. Clear and specific evidence is required to prove corrupt practices.

(Per: HONOURABLE MR. JUSTICE NAVIN SINHA)

We have heard counsel for the Appellant, State and for Respondent no.8.

2. The present Appeal arises from order dated 16.1.2013 dismissing CWJC No. 23350 of 2012 affirming the judgment/order dated 3. 12. 2012 of the Munsif–cum-Election Tribunal, Gopalganj in Election Petition no. 11 of 2011, filed by respondent no.8. The Learned Munsif set aside the election of the Appellant to the post of Mukhia of the Tivirwa Gram Panchayat, District Gopalganj, and ordered repoll at specified booths.

3. The Learned Single Judge held that the Appellant had been declared as the winning candidate by counting of illegal votes. The Tribunal rightly ordered for repoll on Booth Nos. 136, 140, 141, 141 “k” and 142 in view of the irregularities detected at the said booths.

4. The Tribunal held that only 436 votes were polled at booth 136 but the ballot box returned 444 votes. Likewise 306 votes were polled at booth 140 but 296 ballots were recovered. Similarly 197 votes were polled at booth 141 but 196 ballots had been found. 152 ballots were polled at Booth 141”k” but 151 ballots were recovered. 252 votes were polled at booth 142 but 262 ballots were recovered. The returning officer did not furnish any explanation with regard to the same. Relying on an order passed in CWJC 9840/08 the Learned Munsif simply for the difference in ballots held that it was prima facie evidence of tampering with ballot boxes. Directions have been given for repoll at the aforesaid booths after setting aside the election of the Appellant and results to be declared after fresh counting.

5. Learned counsel for the Appellant submitted that in the Election petition, no allegation of the elections not being fair had been made. There were no allegations that the ballot boxes had been tampered or the number of candidates who had polled at a booth. The prayer made was for recount and not repoll. No relief to set aside the election of the Appellant had been made. The learned Munsif committed gross error by directing repoll beyond the pleadings. The election petition did not plead any corrupt practice committed by the appellant or her agents materially affecting the election including improper reception, refusal or rejection of any vote or reception of any vote which is void as required under section 139 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act) for declaring an election to be void. It was not denied that counting of votes was done in presence of respondent no. 8. No application under Section 79 of the Bihar Panchayat Election Rules, 2006 (hereinafter referred to as the Rules) was filed by respondent number 8 either during counting or before issuance of the declaration of results under Rule 81 of the rules and the election certificate in favour of the appellant issued under Rule 82. Reliance was placed on 2002(1)PLJR (Samsul Haque v. State of Bihar) in support of the submission that unless a corrupt practice was alleged, the election of the appellant could not be set aside. Further reliance was placed on 2007(4)PLJR 169 (Banwari Yadav v. State of Bihar) to submit that the sanctity of the election process cannot be lightly interfered with and repoll ordered in the manner done.

6. Learned Senior Counsel for respondent no. 8 submitted that the election petition alleged that many ballots had been soaked in water and were incapable of being counted. The respondent had objected at the time of counting but was threatened and her objections in writing rejected. She had been informed that at Booth number 137, she had secured 58 votes and the Appellant only 11. Likewise at booth number 138 she had secured 86 and the Appellant 25. At booth number 137 she was informed to have secured 11 votes and at booth number 132, 25 votes. In this manner 1069 votes were alleged to have been polled in her favour and 1096 in favour of the appellant leading to her being declared as the winning candidate. At booth number 133, 286 vo