C. S. NAYUDU, J. : This appeal is directed against the judgment and order of the Election Tribunal, appointed by the Election Commission, which heard and dis­posed of the election petition filed by the petitioner-appellant herein on 7-4-62. (2) The facts briefly are as follows : The two respondents to this appeal contested the election for a reserved seat from the Cherrapunji Assembly Constituency in the State of Assam. This' seat was reserved for the Scheduled Tribes. The first respondent having secured larger number of votes was declared elected on 26-2-62. The petitioner-appellant who is a voter in the Cherrapunji Assembly Constituency filed the election petition, against the dismissal of which this appeal has now been preferred by him. (3) The three grounds on which the election petition was based are (1) that the first respon­dent was not a member of the Scheduled Tribes at all, (2) that he was not an elector in any of the four reserved seats for the Scheduled Tribes, and (3) that even if be was a member of the Scheduled Tribes, he certainly was not a member of the Scheduled Tribes of the Autonomous Khasi and Jaintia Hills District. The learned Election Tri­bunal which heard the matter held against the contentions of the appellant on all the three grounds and consequently dismissed the election petition. Hence the present appeal. (4) At the outset it was pointed out that sub­sequent to the decision of the Election Tribunal y given in this case, the first respondent, who was take successful candidate in the election, which is wow sought to be impugned, had resigned his seat and that seat, for which the election had been held and the validity of which is questioned in this appeal, had been declared vacant by the Elec­tion Commissioner, and that a fresh election had been ordered and is due to take place on 27-4-63. (3) Mr. Ghose, the learned Counsel for the appellant, expressed difficulty in requiring this Court to pass an order declaring the other candi­date as elected in view of the situation that has arisen and the Supreme Court decision on the subject. (6) Both sides no doubt welcome an adjudica­tion on the points arising in this case by this Court even at this stage. (6) Both sides no doubt welcome an adjudica­tion on the points arising in this case by this Court even at this stage. But it is for consideration whether such a course should be taken particularly in view of the fact that an investigation by this Court on the merits of the contentions of the parties would not lead to anything substantial or tangible. (7) Mr. Lahiri, the learned Counsel for the Respondents, invited our attention to Section 101 of the Representation of the People Act, 1951, which is as follows: "Grounds for which a candidate other than the returned candidate may be declared to have been elected: If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate claims a declaration that he himself or any other candidate has been duly elected and the Tribunal 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 or illegal practices the petitioner or such other candidate would have obtained a majority of the valid votes, the Tribunal 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." On the basis of this section, Mr. Lahiri contended that except in the situation contemplated by the; section, there could be no question of declaring the unsuccessful candidate as having been duly elected. Further in support of his contention he placed reliance on a decision of the Supreme Court in the case of Keshav Lakshman Borkar v. Dr. Deorao Lakshman Anande, reported in AIR 1960 SC 131 . In that case out of the two candi­dates standing for election, the respondent had secured 22914 votes, as against 14885 votes cast far the appellant, and was, therefore, declared elected. On an election petition by the appellant, the Election Tribunal declared the election of the respondent void on ground of his disqualification under Art. 191 (1) (a) of the Constitution and also declared the appellant as duly elected under Sec­tion 101(a) of the Act. On those facts the Supreme Court held that the Election Tribunal was in error in declaring the appellant to have been duly elected. On those facts the Supreme Court held that the Election Tribunal was in error in declaring the appellant to have been duly elected. Their Lordships observed as follows: "It is true that the acceptance of a nomina­tion paper after scrutiny is not final or conclusive but can be set aside, by the Election Tribunal, but the acceptance of the nomination paper, under S. 38(8) makes the candidate, whose nomination paper is accepted after scrutiny, a validly dominated candidate at least for the purpose of receiving votes at the election. This position is further reinforced by the provisions of R. 58 which provides that every ballot paper which is not rejected under Rule 57 should be deemed to be valid and must be counted. The question of throwing away of votes, therefore, cannot arise, in the absence of some special pleading that parti­cular voters had cast their votes with knowledge or notice that the candidate for whom they had voted was not eligible for election and that con­sequently they had deliberately thrown away their votes in favour of the disqualified person. No such allegation of knowledge or notice was made •in the petition and the appellant could not be heard to say that he might have proved the same had the respondent raised an issue on the point. Indeed under S. 101(a) the onus was on the appellant to allege and prove that he had received a majority of the valid votes and he should have adduced evidence in support of that claim." (8) Normally where two candidates filed nomination papers and one of the nomination papers were to be rejected on grounds of disquali­fication, the natural consequence that would fol­low is a declaration that the other candidate, whose nomination paper has been accepted, is duly elected in the absence of any other valid nomination paper. But whatever may be the position, if such a contingency arises the decision of the Supreme Court seems to leave the matter in no doubt that the only consequence in a situation of the kind that is alleged to have arisen in this case the only proper order to make if at all, is for the Election Tribunal to order a fresh election, and that to declare the candidate, who had been defeated in the election, duly elected would be wrong. We are bound by this decision, and, consequently, the only order5 that we could possibly make in this appeal, assuming that we entirely agree with the contentions of the appellant on the merits, would be to set aside the election so that a fresh election may be held. But as such a contingency has already been forestalled out and the stage has been set for it, there is no point or purpose in our going into the merits of the contentions of the parties in this appeal. We do not, therefore, propose to examine the contentions on their1 merits. (9) In the result, the only order that in the circumstances we consider j*roper to make is to dismiss the appeal, but in the entire circumstances of the case, we do not propose to make any order as to costs. (10) DUTTA, I.: I agree. Appeal dismissed.