Judgment:
Ajay Kumar Tripathi, J.
1. Heard counsel for the parties.
2. Challenge in the present writ application is to the order dated 1st day of September, 2007, which has been passed by the Court of learned Munsif, Gopalganj in Election Petition No. 5/2006. By virtue of the impugned order contained in Annexure-3 the election petition of the petitioner has been dismissed on the ground that the bundle of facts based on the evidence, oral or documentary, led during the trial of the said petition, prima facie, does not succeed in making out a case of any kind of irregularity in the counting of votes or declaration of results by keeping out valid votes of the petitioner, in the final declaration of the results.
3. The election in question is for the post of Mukhiya of Gram Panchayat Raj, Lamichaur under the Bhore Block in the district of Gopalganj. The election for the same was held on 2.6.2006 and the counting of votes was held on 17.6.2006. The final results after counting was declared wherein respondent No. 7, namely, Janardan Singh was declared the winner having obtained 806 votes and the petitioner having obtained 801 votes. In other words, petitioner got defeated by margin of five votes. Petitioner alleges irregularity in counting including excluding valid votes cast in favour of the petitioner illegally by the Returning Officer. It is alleged in the writ application that aggrieved by the result and the way the counting was done in terms of the requirement of Rule 79 of the Bihar Panchayat Raj Rules an application for recount was made but the same was not acted upon. This compelled the petitioner to file the election petition before the Court of learned Munsif, which was registered as Election Petition No. 5/2006. The matter was contested, issues framed and that decision came to be rendered vide the order dated 1.9.2007. Since the election petition has been dismissed on the ground that no case is made out the present writ application has come to be filed.
4. One of the primary allegation made in the plaint was that more than 200 ballot papers for which votes was cast in favour of the petitioner was kept out from the counting in a planned and concerted manner by defendant Nos. 1 to 6. This was done with the sole object of defeating the petitioner and favouring respondent No. 7. Despite protest and objection made by the petitioner before the concerned authorities nothing was done by them to correct the harm caused to the petitioner by their conduct. If this basic fact is taken cognizance of then the petitioner has an excellent case for interference with the impugned order.
5. A counter affidavit has been filed on behalf of respondent No. 4, who is the Circle Officer of Bhore Block. The stand of the official respondents is that the election petition had been filed as an after thought instigated by the fact that the petitioner had lost by a very narrow margin. At no point of time during the course of counting or thereafter any kind of objection had been raised by the petitioner. The allegation that 200 valid votes of the petitioner was kept out of the counting is only imaginary and there is neither any oral or document evidence to support the allegation. The allegations have only been made but not made out and this is why the decision against the petitioner has come to be rendered by the learned Munsif.
6. Learned Counsel for the respondent No. 7 has also filed a counter affidavit, who is the returned candidate. His stand is also similar to respondent No. 4. Submission has been made based on the pleadings in the plaint, the written statement filed on his behalf and the evidence which has been led during the course of the trial of the election petition. Learned Counsel for the respondent No. 7 has also brought to the attention of this Court from the supplementary affidavit filed on behalf of the petitioner that even in his evidence or cross examination, he does not allege or support the allegation which had been made in the election petition. His evidence is a wishy washy kind of evidence. Even the so-called witnesses which were produced in support of the election petition on behalf of the petitioner do not drive home or establish the allegations made in the plaint. If that be so then the learned Munsif had committed no wrong by dismissing the election petition as petitioner failed to establish the case or the allegation in the election petition.
7. A plain reading of the impugned order contained in Annexure-3 coupled with evidence which has also been brought on record by the rival sides it is evident from the discussions that the allegations made by the petitioner in the election petition are by way of generalities. There is no clinching evidence coming from anybody that there was a deliberate mischief committed by the Returning Officer to keep certain votes polled in favour of the petitioner out of the counting process for defeating him or causing harm to him. The basic findings are available in paragraph 15 and 20 of the impugned order. If the evidence both in documentary form or oral form does not establish or are not cinching in nature then the learned Munsif had no option but to record that none of the issues formulated in adjudication accrue in favour of the petitioner.
8. The Court does not find any infirmity of any kind either in appreciation of evidence or in the reasoning assigned in reaching the conclusion. It is a case where the petitioner has only made allegations but has not been able to succeed in establishing it before the Election Tribunal. The reason for filing the writ application or the election petition seems to be the margin of defeat and not because any mischief had been played by the election authorities while counting and declaring the results.
9. The writ application, therefore, is devoid of merit. There being no infirmity in the impugned order of the learned Election Tribunal, the same requires no interference. It is dismissed.