The need for substantive evidence to demonstrate the impact of ineligible voters on the election outcome.

1. Heard Mr. Rakesh Kumar Jha, learned counsel appearing for the petitioners, learned counsel for the State and Mr. Shashi Kant Kumar, learned counsel appearing for the private respondent no.7 who was the election petitioner before the prescribed authority. Though served, the other respondents have not chosen to appear.

2. With the consent of the parties this writ petition has been heard and is being finally disposed of at the stage of admission itself.

3. Whereas the petitioner no.1 is the Chairman of Keshopharka Primary Agriculture Credit Cooperative Society operating under Sono Block in the District of Jamui, the petitioner no.2 is a Member of the Managing Committee so elected. The petitioners along with the respondent 3rd set have been unseated from their respective post by virtue of the order dated 13.6.2015/29.6.2015 passed by the Joint Registrar, Cooperative Societies, Bhagalpur Division, Bhagalpur in Election Dispute No.15 of 2015. The prescribed authority by the impugned order has declared the entire election to constitute the managing committee of the society as void on grounds of corrupt practices as well as on grounds of infirmity in the voter list.

4. The facts of the case briefly stated is that the election petitioner i.e. the respondent no.7 herein along with petitioner no.1 and some others contested for the post of Chairman of the society in question in which the petitioner no.1 returned as the Chairman and being aggrieved the respondent no.7 filed the election dispute in question which has been allowed by the impugned order declaring the entire election to constitute the managing committee of the society as void and being aggrieved the Chairman and one of the members of the Managing Committee are before this Court.

5. Mr. Jha, learned counsel appearing for the petitioners has questioned the impugned order on the following grounds:

(a) The respondent no.7 himself being a candidate to the post of Chairman and having taken a calculated risk of contesting the election, he cannot turn around to question the election on grounds of infirmity in the voter list;

(b) The respondent no.7, never raised any objection on the voter-list and thus is stopped from raising any such grounds to question the election; and

(c) An election cannot be upset simply on grounds of infirmity in the voter-list until such time that it is demonstrated by leading evidence that the alleged ineligible voters have contributed to the success of the returned candidate in the light of the statutory provisions underlying section 12(1) (d) (iv) of the Bihar State Election Authority Act, 2008 (hereinafter referred to as ‘the Election Authority Act’) and ‘the Rules’ framed thereunder.

6. While the learned State Counsel has simply supported the impugned order, the argument on behalf of the respondent no.7 is led by Mr. Shashi Kant Kumar to support the impugned order. He submits that the Block Development Officer is a party to the illegal grant of membership to 281 persons without following the prescribed procedure. In support of his submission Mr. Shashi Kant Kumar has referred to Annexure-R/10 to the counter affidavit which is a letter addressed to the Returning Officer in respect of membership granted to 281 members of the society as well as the representations enclosed therewith questioning grant of membership to 281 persons without following the procedure. According to Mr. Shashi Kant Kumar, since the mandatory procedure provided under the Bihar Cooperative Societies Act, 1935 (hereinafter referred to as ‘the Act’) and ‘the Rules’ framed thereunder as regarding grant of membership to these 281 persons has not been followed hence their entry to the membership of the society as well as their inclusion in the voter-list, was not correct and such illegality is fully covered under the provisions of section 12 (1) (d) (iv) of ‘the Election Authority Act” and ‘the Rules’ framed thereunder. Mr. Shashi Kant Kumar in support of his submission has relied upon