The writ petitioner by invoking the extraordinary jurisdiction under Article 226 of the Constitution of India has questioned the judgment and order dated 12.1.2015 passed by the Civil Judge (Junior Division)-II–cum- Election Tribunal, Begusarai in Election Petition No.23 of 2011, whereby the court below has been pleased to set aside the election of the writ petitioner to the post of Mukhiya, Gram Panchayat Raj, Para under Birpur Block in the district of Begusarai.

Facts of the case are in very narrow compass. The election to the post of Mukhiya, Gram Panchayat Raj, Para in the district of Begusarai was held on 3.5.2011 in which the petitioner was declared elected. An election petition was filed on behalf of the respondent no.4 and which has been allowed, inter alia, on grounds that 75 votes polled at booth no.102 was invalid and thus on grounds of improper reception of votes/reception of void votes, the result drawn in favour of the writ petitioner was materially affected and stood vitiated. The returned candidate being aggrieved is before this Court.

Mr. S.B.K. Manglam, learned counsel has appeared for the returned candidate who is the writ petitioner before this Court. While the State Election Commission is represented through its counsel, the election petitioner is represented by Mr. Jitendra Kumar Roy and respondent nos.5 to 7 have appeared through counsel Mr. Shashi Bhushan Singh.

Mr. Manglam, learned counsel appearing for the writ petitioner submitted that the election to the post of Mukhiya was held on 3.5.2011 and the counting was carried out on 23.5.2011 in which the writ petitioner was declared elected by a margin of 53 votes. He submits that the election was free and fair and at no stage did the election petitioner raise any objection as to the illegal reception of votes. He thus submits that in absence of any objection filed by the election petitioner on the issue of improper reception of votes, the election petition itself was not maintainable on the principles of waiver. He submits that the election petitioner filed the election petition complaining of improper reception of votes at booth no.102, inter alia, on grounds that (1) dead persons had voted; (2) the voters whose names appear in two wards had voted; and (3) some of the persons had cast their votes twice and since the total number of improper reception of votes was 75 and the winning margin of the returned candidate was only 53 hence the results were declared materially affected by such improper reception of votes.

Mr. Manglam straightaway invited the attention of the Court towards the provisions underlying section 137 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act) which enables a person aggrieved to question any elected office of a Panchayat by way of an election petition which is to be filed before the Munsif. With reference to section 139 of the Act he submits that the circumstances under which an election can be declared void has been enumerated thereunder. With reference to section 139(1) (d) (iii) of the Act it was submitted that in so far as the present contest is concerned, it is taken care of by the said provision but any such declaration in such circumstances has to be with due care and caution and not routinely exercised. It was submitted that until such time that the Election Tribunal was satisfied that 75 votes polled at booth no.102 which were held invalid in its entirety had been cast in favour of the returned candidate, there was no occasion for declaring the entire election void since there were no complaint in respect of the other booths. It was contended that the admitted position is that 75 votes were cast by persons whose names did not figure in the voter list available with the Polling Officer. It is also an admitted position that a winning margin of the writ petitioner was 53. He submits that unless the Election Tribunal recorded satisfaction that the entire election had been materially affected b