Arun Tandon - (1.) HEARD learned counsels for the parties. Facts in short giving rise to this writ petition are as follows : Election for the office of the President of the Nagar Panchayat Pipiganj, tehsil Campariganj, District Gorakhpur was held in the year 2006. The writ petitioner as well as the contesting respondent Indrawati alongwith other persons contested the said elections. The petitioner Anita was declared elected after counting on 6.11.2006. The election of Anita was challenged by means of Election Petition No. 4 of 2006 under Section 19/20 of the U. P. Nagar Palika Adhiniyam. Amongst other one of the basic issue raised for questioning the election was that the elected candidate was underage on the relevant date and therefore ineligible to contest the elections. The acceptance of her nomination paper was therefore illegal, resulting in material irregularity and therefore the same be set aside.
(2.) THE issue, as to whether on the relevant date the elected candidate was minor, was considered on the basis of the evidence led by the parties. After consideration of material and oral evidence led, a finding of fact has been recorded by the Election Tribunal, that on the date of submission of the nomination paper the candidate Anita had not reached the age of 30 years and therefore she was ineligible to contest the election. Her election was, therefore, declared null and void. THE Election Tribunal thereafter proceeded to declare respondent No. 1 (election petitioner) as the elected candidate having regard to the fact that she had secured the second highest number of vote. Such declaration is stated to have been issued with reference to the judgment of the High Court in the case of Smt. Meenu v. Third Additional District Judge, Kanpur Dehat, 2001 (92) RD 551. This order of the Election Tribunal has been challenged before this Court by means of the present writ petition. Initially an attempt was made on behalf of the writ petitioner to question the findings recorded qua her age on the date of submission of nomination paper. However, subsequently it was realized that such plea raised on behalf of the writ petitioner will not stand the scrutiny and therefore the issue with regard to the disqualification suffered by the writ petitioner on the ground of her being underage on the date of submission of nomination paper was more or less given up. This Court after examining the records of the proceedings, as they stand, is satisfied that the finding of fact recorded by the Election Tribunal qua the age of the elected candidate Anita on the date of submission of nomination paper, being less than 30 years, is based on true and correct appreciation of the evidence led by the parties. Such findings of fact needs no interference under Article 226 of the Constitution of India nor can be reversed after reappreciation of the evidence in exercise of power under writ jurisdiction. Reference may be had to the judgment of the Hon'ble Supreme Court in the case of Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796, wherein the Hon'ble Supreme Court has laid down the legal proposition with regard to material to be examined qua the age of the contestant. Judged on the aforesaid principle, the finding of the Tribunal that the petitioner was underage on the relevant date needs no interference. This Court, therefore, records that on the date Anita had submitted the nomination paper she was below the prescribed age of 30 years and therefore disqualified for contesting the election. The declaration of her election as null and void by the Election Tribunal is accordingly upheld.
(3.) THE other issue seriously contested and which requires consideration is as to whether the second part of the direction issued under the order of the Election Tribunal declaring the respondent No. 1 as elected on the basis that she had secured second largest number of votes polled is legally justified or not. On behalf of the writ petitioner it has been stated that in view of the law laid down by the Hon'ble Supreme Court in the case of Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796 Paras 17 and 18 and Gadakh Yashwantrao Kankarrao v. E. V. alias Balasaheb Vikhe Patil and others, JT 1993 (6) SC 345 pages 79, 80 and 81, such a declaration in the facts of the case could not have been issued.;