ORDER S.D. Agarwal, J. - This is a petition under Article 226 of the Constitution. The dispute relates to the election of a Block Pramukh of Kshetra Samiti, Mursan, district Aligarh which was held on 29th May, 1983. The petitioner Genda Singh and the respondents Nos. 2 to 6 were the candidates. After counting Genda Singh was declared elected by the Assistant Returning Officer. Mul Chand, who was the defeated candidate and is respondent No. 2 in the present petition, filed election petition challenging the election and the declaration of Genda Singh as being the elected Block Pramukh. 2. The main allegations in the petition were that one invalid vote was wrongly counted in favour of Genda Singh and that the votes cast in favour of the petitioner were perfectly valid but were wrongly rejected by the Assistant Returning Officer. On these allegations it was alleged that the result had been materially affected and that if proper counting takes place, Mul Chand would be duly elected. 2A. The election petition was filed before the District Judge, Aligarh under R. 35 of the Uttar Pradesh Kshetra Samities (Election of Pramukhs and Up Pramukhs and Settlement of Election Disputes) Rules, 1962 (hereinafter referred to as the Rules). The District Judge framed four issues. After giving a finding on these issues, the District Judge directed that the lots be drawn as there are two candidates having equal number of votes. It was further directed that the lots shall be drawn in the presence of the parties and their counsel. This order was passed on 21st April, 1984. 3. Genda Singh filed the present petition on 26th April, 1984. This petition was admitted on 16th May, 1984. Sri Satya Prakash, learned counsel appearing for Mul Chand accepted notices and it was directed that the petition itself be listed for final hearing in the week commencing 23rd July, 1984. Mul Chand, subsequently on 12nd May, 1984 also challenged the order dated 21st April, 1984. This was by means of Writ Petition No. 7659 of 1984. This petition was dismissed summarily on the ground that the order dated 21st April, 1984 was, in fact, an interlocutory order and Mul Chand will have a right to challenge the final decision of the Election Tribunal. 4. This was by means of Writ Petition No. 7659 of 1984. This petition was dismissed summarily on the ground that the order dated 21st April, 1984 was, in fact, an interlocutory order and Mul Chand will have a right to challenge the final decision of the Election Tribunal. 4. Learned counsel for the petitioner, in the present petition, has urged that even on the findings arrived at by the District Judge, in his order dated 21st April, 1984, the petitioner Genda Singh should have been declared elected and the order directing that lots be drawn is an order which is manifestly erroneous. I have consequently heard the learned counsel for the parties on the question as to whether the operative portion of the order directing draw of lots is an order manifestly erroneous or not? After hearing both the parties, I am of the view that this order is manifestly erroneous for the reasons given-below. 5. I however clarify that after final orders are passed in the Election Petition, it will be open to both the parties to challenge the findings recorded by the Election Tribunal in an appeal which lies against the order under R. 49-of the Rules mentioned above. 6. R. 26 of -the above-mentioned Rules provides that after all the valid ballot papers have been arranged in parcels according to the first preference recorded for each candidate, the Returning Officer shall proceed to determine the result of the voting in accordance with the instructions contained in Sch. II to these Rules. Instruction No. 6 of Sch. II is relevant for the purposes of determining the controversy in the present petition. Instruction No. 6 is quoted below : "If at the end of any count, no candidate can be declared elected : (a) exclude the candidate who up to that stage has been credited with the lowest number of votes, (b) examine all the ballot papers in his parcel and sub-parcel, arrange the unex hausted papers in sub-parcels according to the next available preferences recorded thereon for the continuing candidates, count the number of votes in each such sub-parcel and credit it to the candidate for whom such preference is recorded, transfer the sub-parcel to the candidate and make a separate sub-parcel of all.the exhausted papers, and (c) see whether any of the continuing candidates, has, after such transfer and credit, secured the quota. If, when a candidate has to be excluded under clause (a), above, two or more candidates have been credited with the same number of votes and stand lowest on the poll, exclude that candidate who had secured the lowest number of first preference votes, and if that number also was the same in the case of two or more candidates, decided by lot which of them shall be excluded. All the sub-parcels of exhausted papers referred to in clause (b) above shall be set apart as finally dealt with and the votes recorded thereon shall not thereafter be taken into account." 7-9. From the above instruction, it is clear that after excluding the candidates who stand lowest on the poll if ultimately two candidates secure the same number of votes then the candidate who secure the larger number of first preference votes shall be declared elected but if the first preference votes are equal then the election has to be decided only on the basis of the draw of lots. 10. This interpretation has been accepted in the case of Jagat Singh v. Dharam Pal Singh, 1984 UPLBEC, 219: (1984 All LJ 859). I agree with the decision given in this case. 11. From the finding recorded by the District Judge, it is clear that Genda Singh secured 39 first preference votes while Mul Chand secured only 38 first preference votes. After excluding the candidates the ultimate position was that both Genda Singh and Mul Chand secured 43 votes. In accordance with the instruction. No. 6 quoted above, it is, therefore, clear that since Genda Singh secured highest number of first preference votes, he was liable to be declared elected and the Court below acted against the Instruction No. 6 in directing that the lots be drawn. The order directing draw of lots is consequently manifestly erroneous. 12. In the result, the petition is allowed. The operative portion of the order dated 21st April, 1984 is quashed. The District Judge Aligarh is directed to pass a final order declaring the petitioner as the candidate in accordance with the findings given by him. The parties are directed to bear their own costs.