Judgment B.D.Singh, J. 1. This application by the sole petitioner under Articles 226 and 227 of the Constitution of India is directed against the final order dated the 13th January, 1971, passed by the Election Tribunal (respondent No. 1) setting aside the election as Mukhiya of the petitioner and declaring Sri Ramasis Singh (respondent No. 2), as duly elected Mukhiya in place of the petitioner under Rule 82 (i) of the Bihar Gram Panchayat Election Rules, 1959 (hereinafter referred to as the Rules). 2. Learned counsel, Sri Satyanand Kumar, appearing on behalf of the petitioner has challenged the impugned order on various grounds including that the Tribunal on the facts and circumstances of the case could not have declared respondent No. 2 as duly elected in place of the petitioner. In my opinion, the other g rounds urged on behalf of the petitioner have no substance. The only ground which deserves consideration is the one that the Tribunal could or could not have declared respondent No. 2 as duly elected. Learned counsel has referred to paragraph 4 of his petition wherein it has been specifically stated that there were four candidates, who were contesting the said election of the Mukhiya of Ladari Gram Pan-chayat in Kewti Block in the district of Darbhanga. Those four candidates were the petitioner and respondents Nos. 2, 3 and 4. He submitted that the votes which were cast in favour of respondents Nos. 8 and 4 were not scrutinised by the Election Tribunal, nor respondent No. 2 led evidence before the Tribunal to establish that the votes which were declared invalid would have been cast in favour of respondent No. 2 alone. According to learned counsel a heavy onus lay upon him to establish that. In order to substantiate his contention he relied on a decision of the Supreme Court in the case of Vashist Narain Sharma V/s. Dev Chandra, AIR 1954 SC 513 wherein their Lordships while dealing with Sec.100 (1) (c) of the Representation of the People Act, 1951 observed in paragraph 9 at pages 515 and 516 that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must not lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies on the petitioner. It will not suffice to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which portion of the votes will go to one or the Other of the candidates. 3. Learned counsel next referred to the case of Tanu Soren V/s. State of Bihar, 1903 BLJR 611 where a Bench of this Court while dealing with the provisions contained under Rule 83 (1) of the Rules observed in paragraph 4 at pages 613 and 614 thus:- - "It was, however, submitted on behalf of the petitioner that the Election Tribunal had no jurisdiction to declare that Razak Khan, respondent No. 3, was duly elected as Mukhiya in the same election. It was pointed out that Razak Khan received only 294 votes out of the total number of votes polled and it is impossible to say how the voters who had voted for Tanu Soren would have voted if the nomination paper of Tanu Soren had been rejected. In our opinion the contention on behalf of the petitioner on this point is well founded and the Election Tribunal was not justified in law in granting a declaration that respondent No. 3, Razak Khan, was duly elected as Mukhiya of the Gram Panchayat." In the light of the above observation, in my opinion, the contention of learned counsel for the petitioner is well founded. The Tribunal could not have declared respondent No. 2 as duly elected on the facts and the circumstances of the case. Therefore, that portion of the order by which he declared respondent No. 2 as duly elected cannot be sustained, and, therefore, I quash that portion of the order. I agree with the finding of the learned Tribunal that the election which took place was not a valid election, but since I have held that he could not have declared respondent No. 2 as duly elected, the authority concerned now should take steps for holding a fresh election of the Mukhiya alone in the said Gram Panchayat. I agree with the finding of the learned Tribunal that the election which took place was not a valid election, but since I have held that he could not have declared respondent No. 2 as duly elected, the authority concerned now should take steps for holding a fresh election of the Mukhiya alone in the said Gram Panchayat. 4 The result, therefore, is that under Rule 83 (1) of the Rules, the seat of the returned candidate shall be deemed to be vacant and it is the duty of the authority concerned to take necessary steps under that Rule for holding a fresh election. In sum, the application of the petitioner is allowed in part, but in the circumstances of the case there will be no order as to costs.