The court held that election challenges must be made through an Election Petition filed within the statutory period, emphasizing strict adherence to procedural requirements.

JUDGMENT :

K. Vinod Chandran, CJ.

The writ petition is placed along with the LPA by virtue of an order passed by the learned Single Judge. The order impugned in the writ petition is a direct consequence of the order impugned in the appeal. Hence, we heard the appeal first.

2. The appeal is filed by the State Election Commission (Panchayat) against the directions issued by the learned Single Judge to the Election Tribunal constituted under the Bihar Panchayat Raj Act to consider the validity of the re-polling conducted on the ground of defect in one of the Electronic Voting Machine (EVM) with respect to Booth No. 213. The Election Tribunal on the directions issued in the impugned order in appeal interfered with the re-polling in which the 4th respondent was declared elected. The writ petition is filed against the order of the Election Tribunal. We refer to the parties from the appeal.

3. The issue agitated is with respect to the re-polling in one of the booths, in an election conducted for the post of Mukhiya of Gram Panchayat, Gangwara Bujurg. The election as scheduled was initially conducted on 12.12.2021 in all the 13 booths. The 5th respondent in the appeal obtained 1073 votes as against the 4th respondent’s 1048 votes.

4. A re-polling was ordered finding that there was a defect in the EVM in Booth No. 213 and on the re-polling conducted on 15.12.2021 the 4th respondent was declared elected by a margin of 62 votes. It was the contention of the writ-petitioner that there was no objection raised on behalf of any of the candidates and the action of the District Election Officer in carrying out a re-poll was illegal.

5. The learned Single Judge relying on decisions of the Hon’ble Supreme Court found that the direction of the District Election Officer to carry out a re-poll on the basis of the submission of the Engineer of the Bharat Electronics Limited (BEL) without any authenticated expert scientific report from the company itself was bad. Finding the action of the District Election Officer to be against the law regarding elections, the re-poll was found to be unsustainable. However, the 5th respondent, the lost candidate, was directed to file an Election Petition and the 4th respondent, the returned candidate, was directed to appear before the Election Tribunal within one week. The Election Commission was directed to produce an expert report in relation to the EVM and on failure to produce that it was directed that the subsequent election would be declared to be not held in accordance with the provisions of the Bihar Panchayat Raj Act, 2006.

6. Shri Ravi Ranjan, learned Standing Counsel appearing for the appellants, urged that the learned Single Judge erred in issuing the directions in the impugned judgment, especially since, after a candidate is returned, any person aggrieved with the election has to prefer an Election Petition before the Election Tribunal constituted. The said Election Petition has also to be filed within 30 days as provided under Section 137 of the Bihar Panchayat Raj Act read with Rule 106 of the Bihar Panchayat Election Rules, 2006. The 5th respondent had not filed any such Election Petition and this Court under Article 226 ought not to have entertained the matter. The peremptory findings entered into by the learned Single Judge, in any event, would regulate the decision of the Election Tribunal. As anticipated, the Election Tribunal has passed an order interfering with the election of the 4th respondent, which is challenged in the writ petition. The remedy of filing an Election Petition having not been availed by the 5th respondent; the lost candidate, he cannot invoke the extraordinary jurisdiction under Article 226. The delay in filing an Election Petition is crucial and it cannot be condoned, as held by the Hon’ble Supreme Court in Hukumdev Narain Yadav v. L.N. Mishra; (1974) 2 SCC 133 and a Division Bench of this Court in Anil Kumar Jha v. The State of Bihar & Ors.; 2010 (4) PLJR 475. The appeal has to be