TATIA, J. - (1.) APPELLANT-defendant No. 1 Mangla Ram has preferred this appeal under Section 46 (1) of the Rajasthan Municipalities Act, 1959 (here in after referred as Act of 1959) against the judgment dated 7. 04. 2003 passed by the learned District Judge, Pali. The learned District Judge, Pali vide judgment dated 7. 04. 2003 allowed the election petition filed by the respondent No. 1-plaintiff Shital Das against the appellant-defendant No. 1 and set aside the election of appellant, declaring him, ward member for ward No. 10 of Municipal Council, Pali. After setting aside the election of the appellant, the court below also declared plaintiff-respondent No. 1 as elected ward member for the ward No. 10 of Pali Municipal Council.
(2.) BRIEF facts of the case are that election for the ward members for Municipal Council, Pali were held on 26th Nov. , 1999. Counting took place on 27th Nov. , 1999. The appellant was declared elected by margin of one vote only. The respondent No. 1 challenged the election petition of the appellant by filing election petition under Section 34 of the Act of 1959. Election of the appellant was principally challenged on two grounds. First ground is that one of the children of the appellant born after 27th Nov. 1995 and before that date appellant already had more than two children. As per clause (xiv) of Sec. 26 read with proviso (e) of Act of 1959, a person who has more than two children and one is born after 27th Nov. 1995 then such person incurs disqualification to contest the municipal election. Second ground is that, when appellant and the respondent No. 1, both secured equal votes then the respondent No. 1 submitted application for recounting of the votes upon which the returning officer ordered recounting of the votes of the appellant and respondent No. 1 only but after recounting, one of the vote of another candidate Amba Lal was counted in favour of appellant and he was declared elected by margin of only one vote. There were other grounds also, but those grounds were not passed by the respondent No. 1-plaintiff before the court below. The issues framed by the court below were; (i) whether the non-petitioners-appellants' nomination was wrongly and illegally accepted, (ii) whether the election for the ward No. 10 of the Municipal Council, Pali was conducted in violation to the Rules and, therefore, they are invalid, (iii) whether the defendant No. 1 was illegally allotted election symbol of Indian National Congress and it affected the election materially, (iv) whether the votes were wrongly counted and defendant No. 1 was illegally declared elected and lastly, (v) whether the plaintiff is entitled to be declared as elected member of the ward No. 10 of the Municipal Council, Pali. In support of his case the plaintiff gave his statement on oath as AW-1 and produced witnesses AW-2 Rajendra Kumar Bhati, AW-3 Santosh and AW-4 Mangu Singh Dudawat. The plaintiff produced documentary evidence also. Ex. 1 and Ex. 2 are the copies of declaration, submitted by the defendant-appellant Mangla Ram for his children, before the Returning Officer, Ex. 3 is the copy of nomination form of said Mangla Ram, Ex. 4 is the copy of objections submitted by defendant No. 3 Amba Lal against the candidature of the Mangla Ram's candidature, Ex. 5 is the another objection filed by Amba Lal and Ex. 6 is the copy of the affidavit of Amba Lal. The plaintiff further submitted Ex. 7, copy of the certificate obtained from the school to show that plaintiff's four children were admitted in the school at Pali, Ex. 8 is the copy of the objection submitted by one Mangu Singh Dudawat before the Returning Officer raising objection against the candidature of candidate Mangla Ram on the ground of his having total five children, Ex. 9 is copy of the affidavit of said Mangu Singh Dudawat, Ex. 10 is the copy of the order passed by the returning officer, Ex. 11 is the copy of the counting check memo dated 27th Nov. , 1999 for round No. 1 of counting, Ex. 12 is the copy of counting memo for round No. 2, Ex. 13 is the copy of the application submitted by the plaintiff for recounting of the votes, Ex. 14 is the order for recounting passed by the returning officer, Ex. 15 is the another application for recounting of votes, Ex. 16 is the copy of the declaration of result, Ex. 17 is the copy of the final result sheet and Ex. 18 is the survey report conducted by the Mahila and Bal Vikas Vibhag. The appellant defendant himself gave statement on oath as DW-1 before the Trial Court and produced witnesses DW-2 Shankar Singh and DW-3 Ganpat Ram. It will be worthwhile to mention here that the Trial Court suo motu raised a question at the time of final arguments that whether all votes, valid, invalid and tender votes are required to be recounted. The plaintiff opposed the recounting of the votes whereas the defendant had no objection if recounting is ordered. The Trial Court influenced by the difference of only one vote between plaintiff and defendant and in view of the fact that plaintiff himself made request for recounting before the Returning Officer, (though opposed before the Trial Court itself), ordered recounting of all votes. This suo motu order for recounting of the Trial Court dated 8. 10. 2002 was challenged by defendant by filing writ petition (S. B. Civil writ petition No. 4137/2002), which was allowed by this court by order dated 17th Dec. , 2002 and the order of recounting was set aside by this court.
(3.) THE Trial Court after evidence and opportunity of hearing to both the parties held that defendant had five children and at the time of filing of nomination paper he had one child born after 27th Nov. , 1995, which was the cut out date and, therefore, the appellant was disqualified to contest the election and his nomination paper was wrongly accepted by the Returning Officer. THE issues No. 2 and 3 about the election being in violation of rules and wrong allotment of election symbol to the returned candidate were not pressed by the plaintiff, therefore, decided against the plaintiff-respondent No. 1 THE court below further held that when in first counting plaintiff Shital Dass secured 452 votes and returned candidate-appellant secured only 451 votes then the plaintiff Shital Dass should have been declared elected, by not doing so, the returning officer committed error in counting and declaring appellant as elected and consequentially, the Trial Court decided issue No. 5 in favour of the plaintiff and declared him as elected ward member from ward No. 10 of the Municipal Council, Pali. Being aggrieved against the judgment of the court below, the appellant returned candidate challenged the judgment of the Trial Court in this appeal. First of all learned counsel for the appellant submitted that in view of the settled law and as held by the Hon'ble Apex Court in the case of Prakash Khandre vs. Dr. Vijay Kumar Khandre & Ors. (1), where there are more than two candidates for one seat and the elected candidate subsequently found to be disqualified, the candidate who secured more votes than the remaining candidates cannot be declared as elected as votes cast in favour of the disqualified candidate cannot be regarded as thrown away, nor can it be presumed that those votes would have been secured by the next candidate who secured more votes. The Hon'ble Apex Court further held that it cannot be predicted as to in whose favour the voters would have voted if they were aware that the elected candidate was disqualified. The proposition laid down by the Hon'ble Apex Court fully applies to the facts of this case and learned counsel for the respondent Shri. Sangeet Lodha could not seriously dispute this proposition. Therefore, the part of the finding so far as declaration of respondent No. 1 as elected candidate by the court below is liable to be set aside, hence, set aside and issue No. 5 is decided against the plaintiff- respondent No. 1 in view of the said judgment delivered in the case of Prakash Khandre vs. Dr. Vijay Kumar Khandre & Ors. (supra ). ;