- (1.)TODAY, Civil Application 4530 of 2002 filed by respondent No. 1 was circulated for orders. After hearing learned counsel for the parties, the main writ petition is taken up for hearing and final disposal by consent of the parties.
(2.)THERE were seven candidates in the fray in the Gram Panchayat election held in June 2000. The present respondent No. 1 was declared elected whereas the petitioner polled second highest votes. The present petitioner filed an election petition calling in question the election of the respondent No. 1. Besides seeking a relief of cancellation of the declaration in favour of the elected candidate, the petitioner also claimed that as he had polled second highest votes, the votes polled by the elected candidates be treated as thrown away votes and that he be declared election (sic elected) after setting aside the election of the elected candidate. The trial Court partly allowed the petition and set aside the declaration in favour of the elected candidate. The said judgment and order came to be challenged by the present respondent No. l by a separate writ petition bearing no. 845 of 2001. The learned Single Judge of this Court (Shri. B. H. Marlapalle, j.) vide order dated 7-3-2001 granted ad-interim relief in terms of prayer clause (B) and the said order has been continued thereafter till date. Prayer clause (B)relates to the stay of the enforcement and implementation of the impugned jugdment and order passed by the trial Court in the election petition. The consequence of the granting of interim relief by this Court in Writ petition No. 845 of 2001 is that the respondent No. l in this petition is protected from being unseated, it is an admitted fact that the interim order was passed and came to be continued after hearing the learned counsel for the present petitioner. There is no doubt and dispute that the learned counsel for the present petitioner and the petitioner were in know of the order passed by this Court on 7-3-2001 in the said writ petition filed by the respondent No. 1 which came to be continued from time to time thereafter. Strangely enough, the present Writ petition No. 5135 of 2001 came to be filed by the petitioner who had claimed second highest votes in the election. The substantive prayer made in the petition is for quashing of the directions contained in clause 3 of the operative order passed by the election Court whereunder the directions were issued for holding fresh elections. By way of interim order, prayer clause (E) came to be made which reads as under:
"pending hearing and final disposal of this writ petition by appropriate order or direction the petitioner be declared elected as member of village Gram Panchayat from Ward No. 1 for General seat of village panchayat Mukramabad, Taluka Mudkhed, District Nanded in election dated 9-6-2000. "

(3.)WHAT is pertinent to note is that in this petition there is no whisper about filing of the petition by the respondent No. 1 earlier in point of time and there is clear suppression of the order passed by this Court on 7-3-2001 in the said petition. This Court (Coram : A. B. Naik, J.) on 13-12-2001 issued rule in the instant petition and granted interim relief in terms of prayer clause (E ). The interim relief has been granted which can never be granted as a substantive relief having regard to the judgment of the Apex Court. In this connection I place reliance on a reported judgment of the Apex Court in Prakash Khadre v. Vijaya Kumar Khadre, 2002 AIR SCW 2499. The Apex Court considered the fact as to whether should a person who secured second highest votes be declared election (sic elected) after setting aside the election of the returned candidate when the contest is in between more than two persons. The Apex Court in the said case held that in an election where elected candidate is delcared to be disqualified to contest election and there are more than two candidates contesting election, 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 apex court further observed that it cannot be presumed that the votes secured by the disqualified elected candidate would have been wasted or would have been secured by the next candidate who has secured more votes. After so holding, the Court held that if 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 unpredicability. The Apex Court has observed thus :
"the rule of election law prevailing in the United Kingdom that the votes cast in favour of a person who is found disqualified for election may be regarded as 'thrown away'only if the votes had noticed before the poll the disqualification of the candidate, has no application in our country and has only merit of antiquity. "