M.KATJU, J. - (1.) THIS writ petition has been filed against the impugned order dated 27.7.2002 Annexure1 to the petition passed by the Vth Additional District Judge, Meerut by which he has allowed the election petition of Shoraj. (respondent No. 5 in this petition) and has cancelled the election of respondent No. 6 Vishnu for the post of Adhyaksh, Nagar Panchayat, Qasba Kharkauda, Tehsil and District Meerut and has further directed that Shoraj should be installed as the Adhyaksh of the Nagar Panchayat.
(2.) IT is alleged in Paragraph 2 of the writ petition that in the election held in November, 2000 the respondent No. 6 Vishnu was elected as Adhyaksh of the Nagar Panchayat by defeating the respondent No. 5 Shoraj, the petitioner and six other candidates. In this election Vishnu the respondent No. 6 got 2051 votes, the respondent No. 5 Shoraj got 1544 votes and the other candidates got lesser votes. The respondent No. 5 filed an election petition challenging the election of Vishnu and this election petition was allowed holding that Vishnu was less than 30 years of age and hence was disqualified. However, the respondent also directed that the respondent No. Shoraj should be installed as the Adhyaksh as he has secured the second highest number of votes. The short submission of learned Counsel for the petitioner is that although the direction in the impugned order cancelling the election of Vishnu was correct, the additional direction directing Shoraj to be installed as Adhyaksh was illegal. Learned Counsel for the petitioner has relied on the decision of the Supreme Court in Prakash Khandre v. Dr. Vijaya Kumar Khandre and others, AIR 2002 SC 2345. In that decision it was held that if there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected, the declaration that the person securing the second highest votes as elected would be illegal. The Supreme Court held that if the disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than other remaining candidates would be a question in the realm of speculation and unpredictability.
(3.) THE number of votes cast for each of the candidates is given in Paragraph 4 of the counteraffidavit.;