# Anita v. Indrawati and another

- **Citation:** (2009) 2 ILRA 727
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-07
- **Case number:** Criminal Misc. Writ Petition No. 399 of 2009
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anita-v-indrawati-and-another-41445
- **Pages:** 8

## Headnote

Constitution
of
India-Article
226-
Election of Nagar Panchayat-petitioner
obtains highest votes-but she was under
age-finding of fact recorded by election
Tribunal -held justified-writ Court cannot
re-appreciate the evidence-sitting as
appellate authority.

Held: Para 5:

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 that 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 re-appreciation of the
evidence I n 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 Singh vs.
Anand Purohit, reported in AIR 1988 SC,
1796, wherein the Hon'ble Supreme
Court had laid down the legal preposition
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 wad undergo
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.

(B) Representation of people Act 1950Section 101 readwith Section 25 of U.P.L
Participation
Act
1916
Section
25election
of
President
of
Nagar
Panchayat-the candidate having highest
vote-declared disqualify being under
age-the Second position holder will not
be declared elected automatically.

Held Para-13:
728 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Thus under the said judgment of the
Hon'ble Supreme Court it has been
explained that, if there are more than
two candidates in the field for a single
seat and elected candidate is found to be
disqualified, it cannot be securing the
next highest number of votes will be
declared
elected.
The
court
has
emphasised that in such a case,
question of notice to the voters may
assume significance for the voters. They
may
not
have,
if
aware
of
the
disqualification,
voted
for
the
disqualified candidate.
Case law discussed:
2001(92) R.D. 551, 1988 SC 1796, 1988 SC
1796, 1993 JT (6) S.C. 345, 1962 SC 338,
2008(2) ALJ 260 (DB), 2001(92) R.D. 551,
2004 SC 230, (1969) 2 SCR 90, 1993 JT,
2003 SC 185, (1770) 4 Burr 2527, 2004 SC

## Text

2 All] Anita V. Indrawati and another

727
get herself selected on the strength of
incorrect marks having been reflected.
This conduct of Respondent No.5 also
cannot be appreciated. The fact of the
correction of marks reflected in the
selection has been admitted in the
counter-affidavit. For all the reasons
aforesaid and keeping in view the
Division Bench decision in the case of
Smt. Parvati Devi (supra), the order
impugned is unsustainable. The impugned
order dated 14.12.2006 (Annexure-7 to
the writ petition) is quashed. The matter is
remitted back to the District Magistrate,
Etawah, to pass a fresh order in the light
of the observations made herein above
after considering the claims of the parties
as expeditiously as possible but not later
than 3 months from the date of production
of a certified copy of this order before
him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2009

BEFORE
THE HON'BLE ARUN TANDON, J.

Criminal Misc. Writ Petition No. 399 of
2009

Anita

...Petitioner
Versus
Indrawati and others ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan
Sri P.P. Pandey

Counsel for the Respondent:
Sri Ravi Kant
Sri Arvind Srivastava, Sri Arun Kumar
S.C.

Constitution
of
India-Article
226-
Election of Nagar Panchayat-petitioner
obtains highest votes-but she was under
age-finding of fact recorded by election
Tribunal -held justified-writ Court cannot
re-appreciate the evidence-sitting as
appellate authority.

Held: Para 5:

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 that 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 re-appreciation of the
evidence I n 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 Singh vs.
Anand Purohit, reported in AIR 1988 SC,
1796, wherein the Hon'ble Supreme
Court had laid down the legal preposition
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 wad undergo
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.

(B) Representation of people Act 1950Section 101 readwith Section 25 of U.P.L
Participation
Act
1916
Section
25election
of
President
of
Nagar
Panchayat-the candidate having highest
vote-declared disqualify being under
age-the Second position holder will not
be declared elected automatically.

Held Para-13:
728 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Thus under the said judgment of the
Hon'ble Supreme Court it has been
explained that, if there are more than
two candidates in the field for a single
seat and elected candidate is found to be
disqualified, it cannot be securing the
next highest number of votes will be
declared
elected.
The
court
has
emphasised that in such a case,
question of notice to the voters may
assume significance for the voters. They
may
not
have,
if
aware
of
the
disqualification,
voted
for
the
disqualified candidate.
Case law discussed:
2001(92) R.D. 551, 1988 SC 1796, 1988 SC
1796, 1993 JT (6) S.C. 345, 1962 SC 338,
2008(2) ALJ 260 (DB), 2001(92) R.D. 551,
2004 SC 230, (1969) 2 SCR 90, 1993 JT,
2003 SC 185, (1770) 4 Burr 2527, 2004 SC
230.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard learned counsels for the
parties. Fact sin short giving rise to this
writ petition as follows:

2. Election for the office of the
President
of
the
Nagar
Panchayat
Pipiganj, Tehsil Campariganj, District
Gorakhpur was held in the year 2006.
The writ petition as well as the
contesting respondent Indrawati along
with other persons contested the said
elections. The petitioner Anita was
declared elected after counting on 06th
November, 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.

3. 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, 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 reported in
the case of Smt. Meenu vs. Third
Additional
District
Judge,
Kanpur
Dehat, reported in 2001(92) R.D. 551.
This order of the Election Tribunal has
been challenged before this Court by
means of the present writ petition.

4. Initially an attempt was made on
behalf of the writ petitioner to question
the findings recorded qua her ago 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.

5. This Court after examining the
records of the proceedings, as they stand,
2 All] Anita V. Indrawati and another

729
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 that 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 I n 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 Singh vs.Anand Purohit,
reported in AIR 1988 SC, 1796, wherein
the Hon'ble Supreme Court had laid
down the legal preposition 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 wad undergo 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.

6. 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.

7. On behalf of the writ petitioner it
has been stated that in view of the lad
laid down by the Hon'ble Supreme Court
in the case of Birad Mal Singhvi vs.
Anand Purohit, reported in AIR 1988
SC, 1796 (para 17 and 18) and in the
case
of
Godakh
Yashwantrao
Kankarrao vs. E.V. Alias Balasaheb
Vikhe Patil & Ors., reported in 1993
JT(6) S.C. 345 pages 79, 80 and 81,
such a delclaration in the facts of the
case could not have been issued.

8. The contention so raised is
opposed by Shri VKS Chaudhary, Senior
Advocate, it is stated that there is a
distinction between the language used in
Section 101 of the Representation of
Peoples Act, 1950 viz a viz the language
used in Section 25 of the Municipalities
Act. According to the counsel the
distinction between two provisions is
apparent from a simple reading of the
statutes. He submits that under Section
25 of the Municipalities Act a discretion
is conferred upon the Election Tribunal
to grant the relief of declaration whereever the District Judge finds it more
appropriate to do so. It is contended that
the discretion conferred under the said
statutory provision upon the District
Judge has been exercised in favour of
respondent no. 1. Such exercise of
discretion in the facts of this case cannot
be said to be arbitrary, in view of the fact
that petitioner had secured the second
largest number of votes. No interference
against such exercise of discretion is
called for. It is stated that votes pooled in
favour of Anita have to be treated as
wasted votes. Learned counsel has
referred to the judgment of the Apex
Court in the case of Badri Narayan
Singh vs. Kamdeo Prasad Singh and
another reported in AIR 1962 SC 338
(Para 1 & 2) and of this Court in the
case of Amrendra Singh vs. State of
U.P reported in 2008 (2) ALJ 260
(DB)(Para 3,13,20,24&28) and Smt.
730 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Meenu vs. Third Additional District
Judge, Kanpur Dehat reported in
2001(92) R.D. 551 wherein, on similar
facts, declaration of the candidate,
securing second highest number of votes,
as elected, has been upheld.

9. Lastly it is contended that the
persons like the petitioner cannot be
permitted to take benefit of their own
wrong and cannot be permitted to
maintain this petition and to insist upon
re-election only because in between they
have acquired the required age for the
purpose. Reference has been made to the
judgment of the Apex Court in the case
of Sushil Kumar vs. Rakesh Kumar,
reported in AIR 2004 SC, 230(Para 30).

10. From the contention raised on
behalf of the parties, it has to be
examined is as to under which category
the votes polled in favour of Anita would
fall. Whether they are to be treated as
invalid votes liable to be ignored or they
are to be treated as wasted/thrown away
votes and to be excluded from counting
and therefore result is required to be
declared on the basis of the votes
received by the other candidates or else
the entire elections are liable to be set
aside, inasmuch as such votes which
were case in favour of a disqualified
candidates would have fallen in favour of
which contesting candidate cannot be
ascertained.

11. A Constitution Bench of the
Hon'ble Supreme Court in the case of
Konappa
Rudrappa
Nadgouda
v.
Vishwanth Reddy & Anr. Reported in
(1969) 2 SCR 90, while dealing with
more or less identical situation under
Section 101 of the Representation of
People Act, has hedl as follows:
"...We are again unable to see any
logic in the assumption that votes case in
favour of a person who is regarded by
the
Returning
Officer
as
validly
nominated,
but
who
is
in
truth
disqualified, could still be treated as
valid
votes,
for
the
purpose
of
determining whether a fresh election
should be held. When there are only two
statutory disqualification., votes case in
favour of the disqualified candidate may
be
regarded
as
thrown
away,
irrespective of whether the votes who
voted for him were aware of the
disqualification. This is not to say that
where
there
are
more
than
two
candidates in the field for a single seat,
and on alon is disqualified, on proof of
disqualification all the votes case in his
favour will be discarded and the
candidates securing the next highest
number of votes will be declared elected.
In such a case question of notice to the
voters may assume significance for the
voters may not, if aware of the
disqualification have voted for the
disqualified candidate."

12. The said judgment has been
followed in the case of Gadakh
Yashwantrao Kankarao vs. E.V. Alias
Balasaheb
Vikhe
Patil
&
Ors.
Reported in 1993 JT page (6) (para
79,80, and 81)

13. Thus under the said judgment of
the Hon'ble Supreme Court it has been
explained that, if there are more than two
candidates in the field for a single seat
and elected candidate is found to be
disqualified, it cannot be securing the
next highest number of votes will be
declared
elected.
The
court
has
emphasised that in such a case, question
of notice to the voters may assume
2 All] Anita V. Indrawati and another

731
significance for the voters. They may not
have, if aware of the disqualification,
voted for the disqualified candidate.

14. In the facts of the case in had it
is not in dispute that more than two
candidates contested the election and the
elected candidate namely the petitioner
was declared disqualified.

15. There is nothing on record to
establish that there not notice to the
voters about the disqualification suffered
by the elected petitioner nor any such
finding has been recorded by the
Tribunal, while declaring the election
petitioner as elected. The Hon'ble
Supreme Court has specifically laid
down that in these set of circumstances
the person securing the second highest
votes cannot be declared as elected.

16. This Court may emphasis that
the judgment of the High Court giving
rise in the case of Gadakh Yashwantrao
Kankarao vs. E.V. Alias Balasaheb
Vikhe Patil & Ors. (supra) was set
aside by the Hon'ble Supreme Court after
recording that there is n o discernible
cogent reason in the order of the High
Court to support the conclusion that the
candidate securing highest votes be
declared elected. The said legal principle
applies with full force in the facts of the
case.

17. This Court may record that
except for recording that the election
petitioner had secured the second highest
votes, no other reasons can be deciphered
by the Tribunal for declaring her elected.

18. The Court may not examine the
language used under Section 101 of the
Representation of People Act, 1950 viza-viz that of Section 25 of the Uttar
Pradesh Municipalities Act, 1916, as
much emphasis has been laid thereon by
the counsel for the respondent for
distinguishing the law laid down in the
case of Konappa Rudrappa Nadgouda
(supra). For ready reference the aforesaid
two sections are quoted below:

"R.P. Act Section 101. Grounds
for which a candidate other than the
returned candidate may be declared to
have been elected-If any persons who
has lodged a petition has, in addition to
calling in question the election of the
returned candidate, claimed a declaration
that he himself of any other candidate
has been duly elected and [the High
Court] is of opinion-

(a) that in fact the petitioner or such
other candidate received a majority of
the valid votes or
(b) that but for the votes obtained by
the
returned
candidate
by
corrupt
practices the petitioner or such other
candidate
would
have
obtained
a
majority of the valid votes,
[the
High
Court]
shall,
after
declaring the election of the returned
candidate
to
be
void
declare
the
petitioner or such other candidate, as the
case may be, to have been duly elected."

U.P. Municipalities Act, Section
25. Finding of [the District Judge].-[(1)
if the [District Judge], after making such
inquiry as it deems necessary, finds in
respect of any person whose election is
called in question by a petition, that his
election was valid, it shall dismiss the
petition as against such person any may
award costs at its discretion and may also
pass such order for return or forfeiture of
732 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

the security or part thereof as he may
deem fir].

(2) If the [District Judge] finds that
the election of any person was invalid,
[or
that
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 duly elected, whichever
course
appears,
in
the
particular
circumstances of the case, the more
appropriate, and in either case may
award costs at its discretion.

19. It is no doubt true that a
discretion has been conferred upon the
District Judge while hearing election
petitions to grant the relief of declaration
of the election petitioner as elected, if he
finds it more appropriate to do so. It has,
however, to be kept in mind that the
discretion has to be exercised only in
accordance with law and not de hors the
same. If the law, as explained by the
Hon'ble Supreme Court in the aforesaid
judgment in the case of Konappa
Rudrappa Nadgouda (supra) lays down
that on the elected candidate being
declared disqualified it is not possible to
declare the candidate securing second
highest as elected if there are more that
two contesting candidates, inasmuch as it
cannot be decided as to in whose favour
the votes polled in favour of disqualified
candidate could have gone, then in my
opinion the only course open is to direct
re-election it will be seen that if the
contention raised on behalf of the
election petitioner is accepted, namely
that votes polled in favour of a
disqualified candidates are to be treated
as wasted votes, the result would be that
the candidate securing second highest
votes would be declared elected in view
of Section 101 (a) of the Representation
of Peoples Act, inasmuch as he would be
held to have secured the majority of the
remaining valid votes. Such contention
stands repelled under the judgment of the
Constitution Bench of the Apex Court in
the case of Konappa Rudrappa Nadgouda
(supra). The Hon'ble Supreme Court has
held that it is only where two persons
alone contest the election and one found
to be disqualified that second can be
declared elected.

20. This Court has no hesitation to
record that any exercise of discretion,
contrary to the law laid down by the
Hon'ble Supreme Court, by the District
Judge would be per se illegal. The
District
Judge
cannot
exercise
his
discretion as suggested by the counsel
for the respondent to declare the election
petitioner elected after he had come to a
conclusion that the elected candidate was
disqualified for one reason or other and
the election petitioner had secured the
second highest votes. The legal principle
as laid down by the Hon'ble Supreme
Court is that the number of valid votes
polled in favour of the disqualified
candidate cannot be ignored nor it can be
adjudicated as to in favour of which
candidate such votes would have fallen
provided there are more than two
candidates contesting the election. In
such circumstances the person getting the
second highest votes cannot be declared
elected. The said legal preposition would
apply with full force in the case of
election held under the Municipalities
Act also and the discretion vested in the
District Judge under Section 25 has to be
2 All] Anita V. Indrawati and another

733
in conformity with the las laid down by
the Hon'ble Supreme Court and not in a
manner which may negate the law so
declared.

21. The judgments relied upon by
the learned counsel for the contesting
respondent are clearly distinguishing in
the facts of the case, inasmuch as law
laid down by the Constitution Bench of
the Apex Court in the Case of Konappa
Rudrappa Nadgouda (supra) has not been
noticed n or considered therein. This
Court, therefore, feels justified in relying
upon the Apex Court judgment in the
case of Konappa Rudrappa Nadgouda v.
Vishwanath Reddy & Anr.

22. The Apex Court in Dwarka
Dass & Ors. vs. State of Haryana AIR
2003 SC 185, has held that even
discretionary power has to be exercised
in accordance with the known principles
of law and not otherwise. In R.V.
WILKES (1770) 4 Burr 2527 it has
been held as follows:

"Discretion when applied to a Court
of justice, means sound discretion guided
by law, it must be governed by rule, not
by humor, it must not be arbitrary, rogue
and fanciful, but legal and regular.

The Court may now consider the
last contention raised on behalf of the
respondent
to
the
effect
that
the
petitioner being disqualified cannot be
permitted to maintain the present writ
petition, inasmuch as she was admittedly
held to be underage on the relevant date.
Reliance in the regard has been placed
the judgment reported in 2004 SC 230;
Sushil Kumar vs. Rakesh Kumar.

23. I am of the considered opinion
that the right of the petitioner to maintain
the present writ petition against an order
of the election tribunal, which has held
her to be underage on the relevant date
and therefore disqualified, cannot be
questioned . She has a right to maintain
the petition. However, in view of the fact
that this Court has found that the finding
recorded by the Election Tribunal qua
the petitioner being disqualified is based
on true and correct appreciation of the
evidence, the first part of the relief has
been refused. However, so far as the
challenge to the later part of the order of
the
Election
Tribunal,
declaring
respondent no. 1 as elected candidate is
concerned, this Court finds that such a
challenge can always be maintained by
the petitioner, inasmuch as if the
elections are now declared after setting
aside the earlier election, she heaving
reached the requisite minimum age will
be entitled to contest the fresh elections.

24. In the facts and circumstances
noticed above, I am of the considered
opinion that the writ petition as filed by
the petitioner, is clearly maintainable.
She is entitled to question the later part
of the order of the Election Tribunal also,
which declared the respondent no. 1 as
elected. No relief is being granted to the
petitioner qua her earlier election nor the
order, which is proposed to be passed by
this Court, will in any manner result in
restoration of any illegal order.

25.
In
the
totality
of
the
circumstances, this Court finds that the
second issue raised on behalf of the
petitioner qua respondent no. 2 being
declared elected has to be answered in
her favour and it is held that election
Tribunal is not justified in declaring
734 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

respondent no. 1 as elected only on the
ground that she has secured the second
highest votes.

26. Accordingly, the writ petition is
allowed in part. The order of the Election
Tribunal to the extent it declares the
respondent no. 1 as elected is quashed.
The authorities are directed to hold fresh
elections for the office of the President,
Nagar Panchayat in question at the
earliest.
---------