JUDGEMENT 1. Election was held for the post of Mukhiya of Gram Panchayat Raj, Musepur under Chapra Sadar Block in the District of Saran on 31-5-2006 and after election counting of votes was made and on 15-6-2006 the petitioner-appellant was declared elected by a margin of 114 votes. Respondent No. 5 Munna Kumar on being dissatisfied by the result filed an election petition stating serious irregularity in counting of votes on booth Nos. 249 and 250 and prayed for re-counting of votes on these booths. The Election Tribunal looked into the alleged grievance and having found serious irregularity as per the materials brought on record that though 261 votes were polled on booth No. 249, 310 ballot papers were counted and on booth No. 250 though 400 votes were polled but only 376 ballot papers were found and counted, declared the result to be illegal and directed for holding of fresh poll on booth Nos. 249 and 250. Even though in re-poll the petitioner got more votes than the respondent No. 5 but having counted the total number of votes including votes of these booths after re-poll, respondent No. 5 got more votes than the petitioner. Aggrieved by the order of the Tribunal directing re-polling on the aforesaid two booths the petitioner approached this Court in writ jurisdiction under Article 226 of the Constitution of India, which was also dismissed by the impugned order, against which the present appeal has been filed. 2. Contention of the petitioner is that mandatory requirement of Rule 79 of the Bihar Panchayat Rules have not been followed because there does not seem to be any material to show that a demand for recounting as envisaged under Rule 79 was actually made and, therefore, the order of the Tribunal directing for re-poll on booth Nos. 249 and 250 was illegal. In support of his contention he has relied upon a decision of this Court in the case of Smt. Nagma Khatoon v. The State of Bihar 2008 (3) PLJR 87 . The Said decision is clearly is not applicable to the fact situation of the present case as in that case matter involved was regarding recounting of votes whereas in the present case the matter involves is as to the discrepancy in number of votes because number of ballot papers does not tally the number of votes polled and counted. The Said decision is clearly is not applicable to the fact situation of the present case as in that case matter involved was regarding recounting of votes whereas in the present case the matter involves is as to the discrepancy in number of votes because number of ballot papers does not tally the number of votes polled and counted. Counsel for the petitioner draws our attention to Section 139 of the Bihar Panchayat Raj Act which provides grounds for declaring election to be void, which reads thus: (1) Subject to the provisions of Sub-section (2) if the prescribed authority is of opinion- (a) that on the date of his election, a returned candidate was not qualified or was disqualified to be chosen as a member under this Act; or (b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or (c) that any nomination paper has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- (i) by the improper acceptance of any nomination: or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent; or (iii) by the improper reception, refusal or rejection of any vote or receipt of any vote which void; or (iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder; the prescribed authority shall declare the election of the returned candidate to be void. (2) If in the opinion of the Prescribed Authority, any agent of a returned candidate has been guilty of any corrupt practice, but the prescribed authority is satisfied- (a) that no such corrupt practice was committed at the election by the candidate and every such corrupt practice was committed contrary to the orders and without/the consent of the candidate; (b) that the candidate took all reasonable measures for preventing the commission of corrupt practices at the election; and (c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agent; then the Prescribed Authority may decide that the election of the returned candidate is not void. 3. 3. It is contended that if the allegation made in the election petition regarding corrupt practices in counting of votes was not sufficient to affect the result of election materially, the order of the Tribunal directing for re-poll cannot be sustained in the eye of law. He has also relied upon a decision of the single Judge of this Court in the case of Janak Singh v. Ram Das Rai 2004 (2) PLJR 581 . The said decision is also of no help to the petitioner as in the said case the matter involved was as to the arithmetical error entered in Form No. 20 regarding two numbers of votes and 22 number of votes whereas in the present case matter involves is that at one booth ballot papers were found more than the votes polled and at another booth number of ballot papers were less than the votes polled and this difference of 73 votes cannot be said to be an arithmetical error. 4. If number of ballot papers does not tally with the number of votes polled then it can easily be said that a corrupt practice was entertained otherwise such a difference was not possible, hence Section 139(6) is not attracted. 5. In this case, in fact, on finding of discrepancies re-poll on two booth Nos. 249 and 259 was conducted and out of the total votes polled the 5th respondent got 535 and the petitioner 494 and on the basis thereof respondent No. 5 was declared successful. 6. In the facts and circumstances, we do not find any error in the order of learned single Judge justifying interference by this Court. 7. Accordingly, the appeal is dismissed.