1. In SB CWP No. 12013 of 2016, the petitioner-Laxman Singh has challenged the judgment dated 06.10.2016 passed by the respondent No. 3-Senior Civil Judge, Degana, District Nagaur (hereinafter to be referred as the Election Tribunal) in Election Petition No. 4/15, whereby while accepting the election petition the Election Tribunal has set aside the election of the petitioner-Laxman Singh as Sarpanch, Gram Panchayat Degana Gaon and declared him disqualified and further declared the respondent No. 1-Bhura Ram as Sarpanch, Gram Panchayat Degana Gaon.

2. SB CWP No. 12011/2016 has been filed by the petitioner-Radha Kishan with a prayer that the judgment dated 06.10.2016 passed by the Election Tribunal in Election Petition No. 4/15 be set aside and the respondent No. 4 District Election Officer (Panchayat) cum District Collector, District Nagaur be restrained to declare the respondent No. 1-Bhura Ram as elected Sarpanch of Gram Panchayat Degana Gaon.

3. Brief facts of the case are that Laxman Singh (petitioner in SB CWP No. 1 2013/2016 and respondent No. 2 in SB CWP No. 1 2011/2016) was elected as Sarpanch of Gram Panchayat Degana Gaon on 01.12.2015. The said election of Laxman Singh was challenged by Bhura Ram (respondent No. 1 in both the writ petitions) by filing an election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter to be referred as the Act of 1994) read with Rule 80 of Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter to be referred as the Election Rules) on the ground that the Returning Officer has illegally accepted the nomination form of Laxman Singh because at the time of filing of nomination form and on the date of scrutiny of the nomination form, Laxman Singh was disqualified to contest the election for the post of Sarpanch of Gram Panchayat Degana Gaon as per the provision of Section 19 (gg) of the Act of 1994 because the competent criminal court has framed charges against Laxman Singh for the offences punishable under Sections 147, 332, 353, 452/149 and 171-F of IPC and Sections 132, 135 and 135-A of the Representation of Peoples Act, 1951 (hereinafter to be referred as the Act of 1951) which are punishable with the imprisonment of seven years.

4. Before the Election Tribunal the election petitioner i.e. respondent No. 1-Bhura Ram has proved that on 21.02.2011, the Judicial Magistrate, Degana has framed charges against Laxman Singh for the offences punishable under Sections 147, 332, 353, 452/149 and 171-F of IPC and Sections 132, 135 and 135-A of the Act of 1951. It was also proved that the trial against Laxman Singh for the aforesaid offences was in currency on the date of filing of nomination form and on the date of scrutiny of said nomination form. It was also claimed that at the time of election for the post of Sarpanch of Gram Panchayat Degana Gaon, Laxman Singh was disqualified to contest the election but his nomination form has wrongly been accepted by the Returning Officer and, therefore, his election to the post of Sarpanch of Gram Panchyat Degana Gaon is liable to be set aside.

5. The election petitioner i.e. respondent No. 1 Bhura Ram has also prayed in the election petition that he may be declared as elected for the post of Sarpanch of Gram Panchayat Degana Gaon as he has secured next higher number of votes after the votes received by Laxman Singh.

Though, the election petition was contested by Laxman Singh but he has failed to rebut the factual position that on the day when he was elected as Sarpanch of Gram Panchayat Degana Gaon, the charges have not been framed against him for the offences punishable with the imprisonment of five years or more and as such he was not qualified to contest the election for the post of Sarpanch as per Section 19(gg) of the Act of 1994.

6. Having heard the learned counsel for the parties and after going through the material available on record, this Court is of the opinion that from the documentary evidence it is proved that when Laxman Singh has filed his nomination form for contesting the election for the post of Sarpanch of Gram Panchayat Degana Gaon on 31.01.2015 and on the day when he was elected as Sarpanch of Gram Panchayat Degana Gaon i.e. on 01.12.2015, he was disqualified to contest the said election as per Section 19(gg) of the Act of 1994 and, therefore, the decision of the Election Tribunal of setting aside the election of Laxman Singh for the post of Sarpanch of Gram Panchayat Degana Gaon and further declaring him disqualified cannot be said to be suffering from any illegality.

7. So far as regarding the direction of the Election Tribunal of declaring the election petitioner i.e. respondent No. 1-Bhura Ram as Sarpanch of Gram Panchayat Degana Gaon is concerned, this Court has no hesitation in holding that the said direction of the Election Tribunal is not conformity with the settled law.

8. A Constitution Bench of Honble Supreme Court in Vishwanath Reddy v. Konappa Rudrappa Nadgouda & Anr. reported in AIR 1969 SC 604 has held as under :-

"12... ... ... We are again unable to see any logic in the assumption that votes cast 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 purposes of determining whether a fresh election should be held. When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters 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 one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate 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 candidates."

9. Relying on the aforesaid decision the Honble Supreme Court in Prakash Khandre v. Dr. Vijay Kumar Khandre & Ors. and one connected matter reported in (2002) 5 SCC 568 has held as under:-

"14. However, in an election where elected candidate is declared 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 Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. 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 unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected."

15 to 23. ... ... ...

24. In view of the aforesaid settled legal position, in our view, the impugned order passed by the High Court declaring the election petitioner as elected on the ground that the votes cast in favour of elected candidate (appellant) are thrown away was totally erroneous and cannot be justified. As held by the Constitution Bench in Konappa case that some general 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 voters had noticed before the poll the disqualification of the candidate, has no application in our country and has only merit of antiquity. We would observe that the question of sending such notice to all voters appears to us alien to the Act and the Rules. But that question is not required to be dealt with in this matter. As stated earlier, in the present case for one seat, there were five candidates and it would be impossible to predict or guess in whose favour the voters would have voted if they were aware that elected candidate was disqualified to contest election or if he was not permitted to contest the election by rejecting his nomination paper on the ground of disqualification to contest the election and what would have been voting pattern. Therefore, order passed by the High Court declaring the election petitioner Dr. Vijay Kumar Khandre as elected requires to be set aside."

10. The above referred cases are related to the Act of 1951, however, it is noticed that under the Act of 1994 or the Election Rules also there is no specific provision under which the person, who has secured the next highest number of votes could be declared as elected, where there are more than two candidates contesting the election.

11. In the present case, it was an admitted position that more than two candidates have contested the election for the post of Sarpanch of Gram Panchayat Degana Gaon.

12. In such circumstances, this Court is of the opinion that the direction of the Election Tribunal of declaring the election petitioner i.e. respondent No. 1-Bhura Ram as elected for the post of Sarpanch of Gram Panchayat Degana Gaon cannot be sustained.

13. Resultantly, these writ petitions are partly allowed. The judgment dated 06.10.2016 passed by the Senior Civil Judge, Degana, District Nagaur in Election Petition No. 4/15 of cancelling the election of Laxman Singh as Sarpanch of Gram Panchayat Degana Gaon is affirmed, however, the direction of declaring election petitioner i.e. respondent No. 1-Bhura Ram as Sarpanch of Gram Panchayat Degana Gaon is set aside.

14. The respondent No. 4. - District Election Officer (Panchayat) cum District Collector, District Nagaur is directed to approach the State Election Commission for conducting fresh election for the post of Sarpanch of Gram Panchayat Degana Gaon in accordance with the provision of the Rajasthan Panchayati Raj Act, 1994 expeditiously. It is expected that the State Election Commission shall conduct the said election within a period of six months.

15. Stay petitions are disposed of.