JUDGMENT : Burman, C.J. - The Petitioner-a candidate at the Khurda Notified Area Council election-challenges the - decision of the Election Tribunal (District Judge), Puri, by which the Tribunal set aside the election of the Petitioner on the ground that the Petitioner, being unable to read and write English, Hindi or Oriya (the language of the State), was disqualified u/s 16(1)(iii) of the Orissa Municipal Act 1950 (hereinafter referred to as the Act) which is admittedly appealable to elections to Notified Area Councils as well. The Petitioner also challenges the decision of the Tribunal by which he declared opposite party No. 1 Lokenath Mohanty to be duly elected to the said Council. 2. The material facts are these: The Petitioner and opposite party no, 1 were the only two contestants for election of a member of the Khurda Notified Area Council from Ward No. 10. The nomination papers were scrutinised by the Returning Officer. Opposite party No. 1 filed an objection before the Returning Officer to invalirlate the nomination paper of the Petitioner on the ground that he was unable to read or write English, Hindi or Oriya. The-Returning Officer, while overruling the objection of the said opposite party, found that the nomination paper of the Petitioner was valid. After polling, the Petitioner was declared duly elected as a member of the Khurda Notified Area council by a majority of 42 votes, in that out of a total of 400 votes the Petitioner panned 221 votes and the opposite party No. 1 polled 179. 3. The points raised by the Petitioner in the writ petition are these: The Petitioner was not disqualified for ejection of according to him, he knows to read and write Oriya and that no degree or standard of knowledge of Oriya has been prescribed under the Act or the Rules made t hereunder. It was also contended that assuming that the Petitioner was disqualified, even so the tribunal should not have declared opposite party No. 1 as duly elected. 4. As regards the Petitioner's disqualification for election, the Tribunal, on evidence, gave the finding that the Petitioner is unable to read or write either English or Hindi and that he is also unable "'to read or write Oriya. 4. As regards the Petitioner's disqualification for election, the Tribunal, on evidence, gave the finding that the Petitioner is unable to read or write either English or Hindi and that he is also unable "'to read or write Oriya. The principle governing the standard of knowledge of any of these languages as required for a Municipal Council or is clearly laid down in a Division Bench decision of this Court Kelei Mulik v. State of Orissa and Ors. 29 C.L.T. 148. 150 : ILR 1964 Cutt. 671, 673, where it was held: There can therefore, be no doubt that the duties and responsibilities and liabilities cast on Municipal Councillors by the Municipal Act can be satisfactorily discharged only if they are able to read and write either Oriya or English or Hindi it is, therefore, open to the Legislature to lay down the minimum literacy qualification for a candidate for standing for election to the Municipal Council. Under Section 16(1)(iii) of the AM, no person shall be qualified for election to a seat in the Municipality if Such a person is unable to read or write either English, Hindi or the language of 1 he State. The Petitioner was therefore rightly found by the Tribunal to be disqualified for election to the Khurda Notified Area Council. 5. The next, question is: After the Petitioner was found disqualified for election to the Khurda Notified Area Council and his nomination paper invalid, could opposite party No. 1 have been declared duly election? In our opinion, the answer is 'Yes'. The reasons are these: The, provisions of Rule 30 of the Orissa Municipal Election Rules, 1950, so far as material, are these: 30. Procedure after nomination: (1) The following provisions shall apply in respect of candidates who have been duly nominated and have not withdrawn their candidature in the manner and within the time specified in sub.rule (1) of Rule 29- (a) If the number of candidates duly nominated be equal to that of the vacancies, the Election Officer I shall declare such candidate or all such candidates to be only elected: (2) The Election Officer shall forthwith report the names of all candidates declared to be elected under Sub-rule (1) to the Magistrate of the district. In the present case, there were only two candidates for election. In the present case, there were only two candidates for election. Out of them one (Petitioner) was found disqualified for election; his nomination paper should have been invalidated by the Returning Officer according to law with the result that, the number of candidates duly nominated became equal to that of the vacancies in that there remained only one duly nominated candidate, namely, opposite party No. 1 for one vacancy. In such a position, the only course open to the Election Officer was to declare the remaining candidate, whose nomination paper was accepted, namely opposite party No. 1, as duly elected. 6. It was, however, contended on behalf of the Petitioner that opposite party No. 1 could not have been duly elected except by a majority of lawful votes. In support of his contention he relied on Section 18(1)(b) of the Act which says: 18(1). The election of any person as a Councillor may be questioned by an election petition on the ground (b) that such a person was declared to be elected by reason of the improper rejection or admission of one or more votes or for any other reason was not duly elected by a majority of lawful votes;. In support of this contention, the Petitioner also relied on the decision of the Supreme Court Keshav Laxman Borkar Vs. Devrao Laxman Anande. But the facts of that case are clearly distinguishable from the facts of the present case. The Supreme Court case was a decision u/s 101 of the Representation of the People Act, 1951, laying down the grounds for which a candidate other than the returned candidate may be declared to have been elected. That section provides: If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed 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 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. This is not the position in the present case before us. Here the position in substance is this: By reason of improper acceptance of the nomination paper of the disqualified candidate, the election of such disqualified candidate was set aside with the result there remained one duly nominated candidate for one vacancy; there is no question of casting of votes, much less a majority of votes. The only course in the circumstances for the Election Officer was, as provided under Rule 30(1)(a) and (2) of the Act-quoted above-to declare the duly nominated candidate (opposite party No. 1) to be duly elected. The Election Tribunal rightly set aside the election of the Petitioner herein and declared opposite party No. 1 duly elected as directed in Section 24(2)(b) of the Act which provides that if the Tribunal finds that the election of any person was invalid, it shall declare another candidate to have been duly elected. 7. In this view of the case, this writ petition must fail and it is accordingly dismissed with costs. Hearing fee Rs. 50/- (Rupees fifty only). A. Misra, J. - I agree. Final Result : Dismissed