JAGAT NARAYAN, J. - (1.) THIS is a petition under Article 226 of the Constitution by one Ganga Ram against a decision of the Civil Judge, Ganganagar, acting as a Tribunal under rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960, setting aside his election to the Office of Sarpanch of Binjbalia Panchayat.
(2.) GANGA Ram and Sheo Karan respondent contested the election. GANGA Ram polled 517 votes and Sheo Karan obtained 450 votes. GANGA Ram was consequently declared elected. Sheo Karan filed an election petition against him on the ground that his nomination paper was wrongly accepted. His allegation was that his name was not entered in the list of voters of village Binjbalia. The petition was contested by GANGA Ram. The name of Ganga Ram was entered as a voter in the voters' list of two Panchayat circles, namely, Binjbalia and Farsewala. When the draft voters' list was published under rule 7 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960, one Parma Ram filed an objection that he was a resident of Farsewala and not of Binjbaila. . . . . . . On this evidence the learned Civil Judge held that the name of Ganga Ram had been deleted from the voters' list of village Binjbaila. The copy of the application of Parma Ram bearing the order of the Returning Officer was not produced before the learned Civil Judge. It cannot, therefore, be said that the finding of fact arrived at by the Tribunal contains an error apparent on the face of the record. That finding cannot be interfered with by this Court. . . . . . . . . . . . While setting aside the election of Ganga Ram, the learned Civil Judge declared Sheo Karan to be duly elected under the erroneous impression that the candidate next on the poll must, as a matter of course, step into the place or the disqualified candidate. Rule 85 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 runs a follows : - "85. (1) Upon the conclusion of the hearing the Munsif or the Civil Judge shall make an order: - (a ). . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. " The above rule should be read along with clauses (e) and (f) of rule 78 which run as follows: - " (e) that in fact the petitioner or some other candidate received a majority of the valid votes, or (f) that, but for the votes obtained by the returned candidate by corrupt practices, the petitioner or some other candidate would have obtained a majority of the valid votes. " It is only in the above conditions that a defeated candidate can be declared to have been duly elected by the Election Tribunal. It was held by their Lordships of the Supreme Court in Keshav Lakshman Borkar V. Dr. Deorao Lakshman Anande (1), that the acceptance of the nomination paper of a candidate by the Returning Officer makes a validly nominated candidate for the purpose of receiving votes at the election. Votes cast in favour of such a candidate are valid votes unless it can be shown that the voters concerned had knowledge that the candidate for whom they were voting was not eligible for election. There is no allegation in the present case that voters who voted for Ganga Ram knew that he was not eligible for election and deliberately threw away their votes. All the 517 votes which were cast in favour of Ganga Ram were thus valid votes. Sheo Karan therefore, cannot be said to have received a majority of valid votes as he got only 450 votes. Sheo Karan cannot be declared to have been duly elected as Sarpanch. I accordingly allow the writ petition in part. The order of the Tribunal setting aside the election of Ganga Ram as Sarpanch of Binjbaila Panchayat is confirmed but the order declaring Sheo Karan as duly elected in his place is set aside. The Collector of Ganga Nagar is directed to hold fresh election forthwith. A copy of this order shall be sent to him for compliance. In the circumstances of the case, I direct that parties shall bear their own costs of this writ petition. . ;