ORDER R.S. Garg, J. 1. By this petition under Section 26 of M. P. Municipalities Act, the petitioner seeks to challenge the correctness, validity and propriety of the Order dated 29-11-1996 passed in Election Petition No. 23/95 by the learned Ist Addl. District Judge, Sagar whereunder the election of the petitioner has been set aside and non-applicant Shaym Kishore has been declared elected. 2. Brief facts necessary for disposal of the case are that in election of a Councillor of Nagar Panchayat, Banda, Ward No. 7 elections were held on 27-11-1994; the counting was held on 29-11-1994. The applicant was declared elected having obtained 302 votes. The non-applicant No. 1 received 194 valid votes. The election petition was filed under Section 20 of M. P. Municipalities Act inter alia on the grounds that the returned candidate had a surviving contract with the Municipality; a sum of Rs. 4,130/- and Rs. 1,986/- was to be paid to the returned candidate under the said agreement, therefore, the applicant was not entitled to contest elections. It was also contended that the present applicant or his election agent adopted the corrupt practices by getting the mock ballot papers. Various other allegations were also made against the present applicant, but the same are not required to be considered at this stage because the said allegations were not found proved and the parties in this revision petition have not challenged the said findings. The present applicant filed his written statement and inter alia pleaded that the contracts were not in existence, but the said contracts were concluded on 25-3-1992 and 10-7-1992. He, however, submitted that certain amounts were required to be paid to him by the Nagar Panchayat but this non-payment would not mean that the contracts were subsisting. Regarding publication of the mock ballot paper, it was contended that the ballot paper was got published by him and the said ballot paper did not have names and addresses of the printer and publisher. It was, however, contended that the same would not amount to corrupt practice. 3. The trial Court after recording the evidence held that the applicant had some share or interest in the contract with the Council, therefore, while owning such share or interest the applicant was disqualified from contesting the elections. It was, however, contended that the same would not amount to corrupt practice. 3. The trial Court after recording the evidence held that the applicant had some share or interest in the contract with the Council, therefore, while owning such share or interest the applicant was disqualified from contesting the elections. It was also found by the trial Court that the applicant acted contrary to the Conduct Rules issued by the Election Commission and contrary to the provisions of Section 28(vii) of the Municipalities Act, 1961, therefore, the election deserved to be set aside. While setting aside the election, the trial Court granted a further declaration that the non-applicant No. 1 stands declared as returned candidate. Being aggrieved by the said order, this revision petition has been filed. 4. Learned counsel for applicant submits that the provisions as contained in Section 35(i) were wrongly applied. According to him, the contract had come to an end but the amount only was required to be paid to the applicant. Regarding Section 28, it was submitted that the mock ballot paper would not come within the mischief of circular, placard or poster therefore, there was no case of corrupt practice. Referring to language of Section 9A of Representation of the People Act, 1951, it was contended that non-payment of the amount by the Nagar Panchayat would not keep the contract surviving for the purposes of submitting the nomination form. Placing strong reliance on the judgment of the Supreme Court in the matter of Gadakh Yashwantrao Kankarrao v. E.V. @ Balasaheb Vikhe Patil and Ors., (1994) 1 SCC 682 , it was submitted that the Court below was unjustified in granting a declaration in favour of non-applicant No. 1. Learned counsel for the non-applicant submits that the language of Section 35(i) is clearly distinct from the language of Section 9A of Representation of the People Act, 1951, therefore, the said language cannot be applied to the present case. He submits that because of the distinction in the language, the Court below rightly allowed the election petition. Learned counsel for the non-applicant submits that the language of Section 35(i) is clearly distinct from the language of Section 9A of Representation of the People Act, 1951, therefore, the said language cannot be applied to the present case. He submits that because of the distinction in the language, the Court below rightly allowed the election petition. For the mock ballot paper, it was contended that an appeal was made to the voters that vote be cast in favour of particular candidate, therefore, it was a circular issued by the present applicant and as the said circular did not contain the name and address of the printer and publisher, the same was rightly held to be corrupt practice. Regarding declaration granted in favour of non-applicant No. 1, it was contended that if the votes cast in favour of the applicant are refused and not taken into consideration, the non-applicant No. 1 having received highest votes was rightly declared as elected candidate. I have heard the parties at length. 5. Section 35(i) of M. P. Municipalities Act, 1961 reads that no person shall be eligible for contesting election if he has - directly or indirectly any share or interest in any contract with, by or on behalf of the Council, while owning such share or interest. Section 9A of the Representation of the People Act reads as under :- "A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government." Explanation :- For the purpose of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part. 6. A bare perusal of Section 35(i) of Municipalities Act and Section 9A of Representation of the People Act, 1951 would show the apparent distinction. 6. A bare perusal of Section 35(i) of Municipalities Act and Section 9A of Representation of the People Act, 1951 would show the apparent distinction. Section 9A provides that for the purpose of the section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall not be deemed to be subsisting simply because the Government has not performed its part of the contract either wholly or in part. Non-payment from the side of the Government would certainly be non-performance on the Government's part, therefore, for the purposes of Section 9A such inaction or non-action on part of the Government would not be a disqualification for contesting the election. The explanation attached to Section 9A is not to be found in clause (i) of Section 35. Clause (i) simply says that where the person has directly or indirectly any share or interest in any contract with the Council, while owning such share or interest, he shall not be eligible to contest the election. Non-performance on part of the Nagar Panchayat or Municipality has not been considered to be an exception for the purposes of clause (i). 7. It is not in dispute before me that the applicant was elected on 29-11-1994 and had received the amount somewhere in the year 1995. It is also not in dispute that sum of Rs. 4,130/- was received by the applicant from the Nagar Panchayat on 19-4-1995. This fact would clearly show that the applicant had an existing share or interest in the contract amount. Submission of the learned counsel for the applicant is that the explanation attached to Section 9A of 1951 Act must be read with Section 35(i) of the Municipalities Act cannot be accepted. The election laws are to be read as those are. It would not be proper for the Court to add something to or delete something from the existing provisions. If the explanation attached to Section 9A is read with Section 35(i), then instead of interpreting the statute, this Court would be legislating and would be reading something which the law never intended. The submission of the learned counsel cannot be accepted. I am unable to hold that the Court below was unjustified in observing against the applicant. 8. If the explanation attached to Section 9A is read with Section 35(i), then instead of interpreting the statute, this Court would be legislating and would be reading something which the law never intended. The submission of the learned counsel cannot be accepted. I am unable to hold that the Court below was unjustified in observing against the applicant. 8. The mock ballot paper has been produced on record of the lower Court and has been marked as Annexure A/19. It does not contain the names and addresses of the printers and publishers. Chhotelal the present applicant, in cross-examination paragraph 6 has clearly admitted that the said mock ballot paper with the appeal was distributed by him. It is not the case of the present applicant that someone-else to damage him got the said document printed or published. It appears that originally this document was marked as Annexure A/15, therefore, it was referred as A/15 in paragraph 6 of the cross-examination, it also appears that this A/15 was later on marked as A/19. In view of the candid admission made by the present applicant, it has to be held that he committed corrupt practice for the purposes of Municipalities Act by issuing the mock ballot paper which did not bear the name and address of the printer and publisher. 9. In view of the discussion aforesaid, it cannot be held that the Court below was unjustified in setting aside the election of the present applicant. 10. The question still to be considered is that whether the Court below was justified in declaring the non-applicant No. 1 as elected candidate. 11. Section 21 of the M. P. Municipalities Act, 1961 reads as under :- "Relief that may be claimed by the petitioner. - (1) A petitioner may claim :- (a) a declaration that the election or (nomination) of all or any of the returned candidate is void; and (b) in addition thereto a further declaration that he himself or any other candidate has been duly elected. (2) The expression "returned candidate" means a candidate whose name is notified in the Gazette under Section 45." 12. The Court would always have the jurisdiction to declare that a particular candidate has been duly elected, but for such purpose the Court must not go simply by the language incorporated in the Act. (2) The expression "returned candidate" means a candidate whose name is notified in the Gazette under Section 45." 12. The Court would always have the jurisdiction to declare that a particular candidate has been duly elected, but for such purpose the Court must not go simply by the language incorporated in the Act. A Court must try to appreciate that in what cases such a declaration can be granted in favour of the election petitioner. A reference to Section 101 of Representation of the People Act, 1951 would be necessary. It reads as under :- "101. 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, claimed a declaration that he himself or 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." 13. Section 24 of the Municipalities Act, 1961 reads as under :- "Decision on election petition. - (1) At the conclusion of the trial or an election petition the Judge shall make an order - (a) dismissing the election petition; or (b) declaring the election or (nomination) of all or any of the returned candidates to be void; or (c) declaring the election or (nomination) of all or any of the returned candidates to be void and the petitioner and any other candidate to have been duly elected or (nominated). (2) If any person who has filed an election petition has, in addition to calling question the election or (nomination) or the returned candidate, claimed declaration that he himself or any other candidate has been duly elected or (nominated) and the Judge is of the opinion - (a) that in fact the petitioner or such candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate the petitioner or such other candidate would have obtained a majority of the valid votes; the Judge shall, after declaring the election or (nomination) of the returned candidate, to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected or (nominated). (3) At the time of making an order under this section, the Judge shall also make an order - (a) where any charge is made in the petition of any corrupt practice having been committed at the election or (nomination), regarding - (i) a finding whether any corrupt practice has or has not been proved to have been committed and the nature of that corrupt practice; and (ii) the names of all persons, if any, who has been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and (b) fixing the total amount of costs payable, and specifying the person by and to whom costs shall be paid : Provided that person who is not a party to the petition shall not be named in the order sub-clause (ii) of clause (a) unless - (a) he has been given notice to appear before the Judge and show cause why he should not be so named; and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who has already been examined by the Judge and has given evidence against him of calling evidence in his defence and of being heard." 14. While deciding an election petition under the provisions of Representation of the People Act, 1951 or an election petition under the provisions of M. P. Municipalities Act, the Court can order that the election petitioner or such other candidate received a majority of the valid votes or that but for the votes obtained by the returned candidate by corrupt practice the petitioner or such other candidate would have obtained a majority of the valid votes. The language of Section 24 of the Municipalities Act and Section 101 of the Representation of the People Act, 1951 appear to be pan materia. While disposing of the election petition, the Court deciding the election petition must record its opinion that but for the votes obtained by the returned candidate, the petitioner or such other candidate would have obtained a majority of valid votes, then in such a case the election 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. 15. The question for consideration, therefore, would be whether the Court below was justified in declaring the non-applicant No. 1 duly elected has faultered itself. The learned Court below has observed that as the election of the present applicant has been set aside and as the non-applicant No. 1/ election petitioner received the next highest votes and as the other four candidates have no objection in declaring him duly elected, he is entitled to be so declared. The learned Court below has not appreciated the intention of the legislature and erred in observing that the non-applicant No. 1/election petitioner is entitled to a declaration because he obtained next highest votes and as the other candidates were not raising any objection. On an identical question, the Supreme Court in the matter of Konappa Rudrappa Nadgouda v. Vishwanath Reddy, AIR 1969 SC 604 made the following observations :- "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 purpose 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 candidate." These observations were quoted with approval by the Supreme Court in the matter of Gadakh Yashwantrao Kankarrao v. E. V. @ Balasaheb Vikhe Patil and Ors., (1994) Vol. 1 SCC 682. The Supreme Court clearly observed that when there were only two contesting candidates and one of them was under a statutory disqualification, votes caste 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. The Supreme Court observed that where there are more than two candidates in the field for a single seat and one alone is disqualified, then 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. The Supreme Court clearly observed that where there are more than two candidates and one of them was disqualified, then in such a case the election can be set aside, but a declaration cannot be granted in favour of the person who received next highest votes. If the law, as interpreted by the Supreme Court, is applied as it is, the mere fact that non-applicant No. 1 secured the next highest number of votes after the applicant is not sufficient to declare him elected on the conclusion that the applicant's election was void either because he has suffered a disqualification or because of commission of corrupt practice. 16. The learned Court below proceeded on erroneous assumption in granting the further relief in favour of non-applicant No. 1 declaring the non-applicant No. 1 to have been duly elected. 16. The learned Court below proceeded on erroneous assumption in granting the further relief in favour of non-applicant No. 1 declaring the non-applicant No. 1 to have been duly elected. The declaration granted by the Court below deserves to and is accordingly quashed. The summary of the above discussion is that the order setting aside the election of the applicant is held to be in accordance with law, but the declaration made in favour of non-applicant No. 1 is contrary to the legal provisions. The election petition on merits is dismissed, but at the same time the declaration made in favour of non-applicant No. 1 is set aside. The seat is declared vacant. Looking to the nature of the controversy, the parties are directed to bear their own cost throughout.