Vijay Bahuguna, J. - (1.) BY means of the present writ petition under Article 226 of the constitution the petitioners are challenging the order dated 13 -2 -1992 passed by the Special/Additional District Judge, Pilibhit in an election petition filed under Section 19 of the U.P. Municipalities Act. The facts in brief are that election of the members of the Bisalpur Municipal Board was held in the year 1988. From Ward No. 13, 9 candidates contested the election. Wafatullah the respondent No. 4, secured the highest number of votes and was declared elected on 13 -11 -1988 by the Returning Officer. The candidate who secured the second highest number of votes, namely, Sri Liaqat Ali, filed an election petition before the Special Additional District Judge, Pilibhit under Section 19 of the U.P. Municipalities Act, 1916 (hereinafter referred to as the Act).
(2.) THE election of the returned candidate was mainly challenged on the ground that he was not qualified to be chosen as a member of the municipal board on account of his being a dismissed servant of the said local body. The respondent no -4 conceded in his written statement filed in the election petition that he was disqualified from contesting election to the Board as he was a dismissed employee. Under the provisions of the Act a dismissed employee is disqualified to file his nomination and to contest the election to the post of the member of the Board. The Election Tribunal, therefore, recorded a finding that the nomination paper of the returned candidate Wafatullah was wrongly accepted by the Election Officer and as such his election was set aside. After setting aside the election of Wafatullah the Tribunal declared the election petitioner Liaqat Ali as having been elected under the provisions of sub -section (2) of Section 25 of the Act. Section 25(2) of the Act reads as under: (2) If the District Judge finds that the election of any person was invalid or that the nomination paper of the petitioner was improperly rejected, it shall either - - (a) declare a casual vacancy to have been created, or (b) declare another candidate to have been duty elected, whichever course appears, in the particular circumstances of the case, the more appropriate, and in either case may award costs at its discretion.
(3.) THE short controversy raised in this Court is as to whether that the Election Tribunal was justified in declaring petitioner Liaqat Ali as having been elected instead of calling for holding of a fresh election. An election petition is filed under the provisions of Section 20 of the Act and Sections 20 to 28provide the entire scheme for deciding an election petition. Under Section 25(2)(b) of the Act the power is conferred upon the District Judge to declare another candidate to have been duly elected in the particular circumstances of the case. The District Judge, after setting aside the election of the returned candidate declared the election petitioner elected on the reasoning that as the term of the office was only five years and more than three and a half years had elapsed, it was not proper to direct a fresh election to be held. The District Judge came to the conclusion that as only a year and half had been left for the expiry of the term of the membership of the Board, it would cause strain on the exchequer to hold a fresh election.;