JUDGMENT :

1. Heard learned counsel for the petitioner and learned counsel for the State.

2. This application under Article 227 of the Constitution of India has been filed by the petitioner for setting aside the judgment dated 24.11.2018 passed by the learned Munsif-II, Gaya in Election Petition No.7 of 2016 whereby the election petition filed by the petitioner for recounting of ballot papers of the petitioner and the opposite party no.2, who is returned candidate in the election held for Mukhiya of Kenar Gram Panchayat Paharpur on 10.05.2016 has been dismissed.

3. Mr. Kumar Ravish, learned counsel appearing for the petitioner submitted that the learned Munsif dismissed the election petition filed by the petitioner ignoring relevant materials and evidences, which were sufficient to direct for recounting of votes. He submitted that the learned Munsif failed to appreciate the law relating to recounting and erred grossly while passing the impugned order. On the basis of the aforesaid submissions, he contended that it is a fit case where this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India should interfere with the order and the election result of the election held for the post of Mukhiya of Gram Panchayat Kaner Paharpur be declared as invalid.

4. The facts of the case, in brief, are that the petitioner along with twelve other candidates contested for the post of Mukhiya in Gram Panchayat Kenar Paharpur for which election was held on 10.05.2016. The counting of ballots was done on 07.06.2016 and the result was also declared on the same day. The result showed the private respondent as the returned candidate securing 1072 votes and the petitioner lost the election with 12 votes after securing 1060 votes.

5. Being aggrieved by the declaration of the result of the election, the petitioner filed Election Petition No.7 of 2016 in the court of Munsif-II, Gaya seeking the following reliefs:-

(i) Recounting of ballot papers of the petitioner and the official respondent no. 5 and if after recounting the petitioner obtains the highest votes than she be declared as mukhiya of Gram Panchayat Kenar, Paharpur;

(ii) Setting aside of declaration made in favour of the official respondent no.5 as mukhiya of Kenar Gram Panchayat; and

(iii) Restraining the official respondent no.5 from taking oath as mukhiya of Kenar Gram Panchayat.

6. The petitioner challenged the election result for the post of Mukhiya of Gram Panchayat Kenar on the ground of corrupt practices adopted in counting of ballot papers. The main ground on which the challenge was made was that at booth no.227 votes cast were 448, but total votes counted were 453. Thus, 5 votes got increased in counting. Similarly, at booth no. 223, total votes cast were 374, but in counting, 373 votes were counted. Thus, one vote got decreased in counting. At booth no.215, total votes cast were 271, but in counting, 270 votes were counted. Thus, one vote got decreased in counting. It was further pleaded that total 20-25 votes were illegally rejected by the authorities with a motive to make a declaration in favour of the official respondent no.5.

7. The trial proceeded ex-parte against the returned candidate (official respondent no.5). An objection was filed by the official respondents whereby they vehemently denied the fact that any corrupt practice was adopted in the counting of ballot in the election of Mukhia in Kenar Paharpur.

8. On the basis of the pleadings of the parties, the learned Munsif framed five issues for determination. They are:-

(i) If the election petition is maintainable?

(ii) Whether the petitioner has got cause of action for filing of election petition?

(iii) Whether recounting of ballot papers may be ordered?

(iv) Whether the declaration made in favour of the returned candidate may be set aside?

(v) If the election petitioner is entitled to cost of election petition?

9. The petitioner examined altogether four witnesses in support of his case. Witness No