JUDGMENT 1. - Aforesaid two special appeals are directed against the common judgment dated 19th February 2008 passed by the learned Single Judge whereby writ petitions filed by both the appellants against the judgment of the learned Civil Judge (Senior Division) Lalsot, District Dausa setting aside election of one of them and refusing to declare the other one elected, were dismissed. 2. Both the appellants contested the election to the office of Member from Ward No. 6 of Panchayat Samiti Lalsot. When the appellant Meetha Lal filed his nomination paper, he submitted an affidavit therewith declaring that he was having only two children. First child Meenakshi was born on 10.12.1992 and second child Mintu on 4.2.2000. Anita Gaur, the other contesting candidate raised an objection before the Election Officer to the effect that Meetha Lal has concealed the fact with regard to birth of third child out of the wedlock of his marriage in the month of June, 2003. Since he had a third child born to him after the cut-off date, i.e., 27.11.1995, he was ts not eligible to contest the election as per the provisions of Rule 19(1) of the Rajasthan Panchayati Raj Act, 1994 (for short the Act'). The Election Officer however rejected the objection and eventually the election was held and Meetha Lal was declared elected. The defeated candidate Anita filed election petition before the Court of District Judge under Rule 80 of the Rajasthan Panchayati Raj Election Rules, 1994 (for short 'the Rules') read with Sections 43 and 19(1) of the Act, challenging his election on the ground that his nomination was improperly accepted for the aforestated reason and, therefore, his election be set aside and instead, she be declared elected, there being only two contesting candidates in the election. Election Petition was transferred to the Civil Judge (Sr. Division), Lalsot, for trial. The learned Civil Judge framed two issues. Issue No. 1 was to the effect whether the returned candidate Meetha Lal on account of having had third child born to his wife in June, 2003 was ineligible to contest the election and for that reason, his nomination paper filed on 13.1.2005 was liable to be rejected? Issue No. 2 was to the effect whether the defeated candidate Anita Gaur was entitled to get herself declared elected upon eventual rejection of the nomination paper of the returned candidate Meetha Lal? Issue No. 2 was to the effect whether the defeated candidate Anita Gaur was entitled to get herself declared elected upon eventual rejection of the nomination paper of the returned candidate Meetha Lal? The learned Civil Judge decided issue no. 1 in favour of the election petitioner Anita Guar but at the same time decided issue no. 2 against her. Accordingly, the election petition was allowed in part and the election of Meetha Lal was set aside vide judgment dated 17.10.2006. Since the prayer for recrimination was rejected, the election petitioner Anita Gaur filed review petition before the learned Civil Judge which was also dismissed vide order dated 28.2.2007. Both the candidates filed writ petitions before this Court challenging the aforesaid judgments which were dismissed by the learned Single Judge by the impugned judgment. 3. We have heard Dr. P.C. Jain, the learned counsel appearing for the election petitioner Anita Guar and Shri R.K. Mathur, the learned counsel appearing for Meetha Lal. 4. Dr. P.C. Jain, learned counsel for the election petitioner Anita Gaur has argued that the learned Civil Judge erred in law in not declaring Anita Gaur elected even though he set aside the election of the returned candidate Meetha Lal by recording a finding that his nomination was illegally accepted. Learned counsel argued that the finding of the learned trial court that there so was no material on record to show that only two candidates contested the election was wholly perverse because the case of the election petitioner Anita Gaur throughout was that only two candidates contested the election. This was proved also from the result sheet, certified copy of which was produced on record as Ex. 10 in which name of only two candidates as recorded as contesting. This assertion of the election petitioner was not refuted even by the returned candidate Meetha Lal and there was then no basis for the trial court to observe that the election petitioner could not prove that only two candidates contested the election. Finding of the Court of learned Civil Judge is, therefore, liable to be reversed. This assertion of the election petitioner was not refuted even by the returned candidate Meetha Lal and there was then no basis for the trial court to observe that the election petitioner could not prove that only two candidates contested the election. Finding of the Court of learned Civil Judge is, therefore, liable to be reversed. Learned counsel cited the judgment of the Constitutional Bench of Supreme Court in Vishwanatha Reddy v. Konappa Rudrappa Nadgouda & Anr., MR 1969 SC 604 and argued that when there were only two contesting candidates and one of them was under a statutory disqualification, votes cast in favour of such candidate must be discarded and the candidate securing next highest number of votes should be declared elected. It was argued that the learned Single Judge though appreciated the ratio of this judgment but failed to apply the same to the present case observing that the Apex Court made those observations in view of Sections 53, 84, 100 and 101 of the Representation of People Act and that there was no similar provision in the Rajasthan Panchayati laws. Learned counsel referred to Rule 87 of the Rules especially clause (c) of its sub-rule (1) thereof and argued that there does exist a provision for declaring the petitioner to have been duly elected in place of the returned candidate whose election is held to be void. The learned Single Judge however failed to appreciate the aforesaid provision. Dr.P.C. Jain has also produced for our perusal certified copies of the relevant exhibits produced before the court below as also the certified copies of the election petition, written statement and the affidavits and statements of the witnesses. 5. Shri R.K. Mathur, the learned counsel for the returned candidate Meetha Lal argued that the learned Civil Court as also the learned Single Judge erred in law in deciding issue no. 1 against Meetha Lal. The findings recorded on issue no. 1 are perverse and erroneous. It was argued that the issue no. 1 could not be decided against the returned candidate only on the basis of alleged consent form Ex. 3 submitted by his wife at the time of her tuboctomy that she had three children. Similarly, the survey report Ex. The findings recorded on issue no. 1 are perverse and erroneous. It was argued that the issue no. 1 could not be decided against the returned candidate only on the basis of alleged consent form Ex. 3 submitted by his wife at the time of her tuboctomy that she had three children. Similarly, the survey report Ex. 7 prepared by the Primary Health Centre of the Village also could not be accepted as conclusive proof of the fact that he had third child born out of his wedlock after the cut-off date. It was contended that his wife and mother were both illiterate and document Ex.3 merely contained their thumb impressions, therefore, they cannot be held responsible for the entries made in such document. Learned counsel argued that learned trial court misread the statements of PW-3 Uma Sen and PW-5 P.C. Satya and drew wrong inference therefrom about the existence of third child. Similarly, the statement of PW-6 as Mahesh Chand also could not be relied on by the trial court because he could not have any knowledge of the alleged third child. It was submitted that the learned trial court erred in law in relying on the statement of PW-2 Vimla Gupta and PW-4 Umesh Gupta who were all interested witnesses and it was not safe to rely on their testimony. It was argued that the learned Single Judge failed to appreciate this aspect of the matter. The impugned judgment of the learned Single Judge be therefore set aside and writ petition be allowed in terms of the prayers made. 6. We have given our anxious consideration to the rival submissions and perused the material on record. 7. A perusal of the impugned judgment passed by learned Civil Judge indicates that the issue no. 1 has been held to be proved against the returned candidate on the basis of overwhelming evidence which clearly proved that the factum of his third child was concealed by the returned candidate and that he submitted a false affidavit declaring that only two children were born to his wife out of the wedlock of their marriage. PW-3 Uma Sen stated that she was working as ANM in Primary Health Centre at Ramgarh-Pachwara in the month of June, 2003 and was looking after the work of tuboctomy. PW-3 Uma Sen stated that she was working as ANM in Primary Health Centre at Ramgarh-Pachwara in the month of June, 2003 and was looking after the work of tuboctomy. Har Bai, wife of Meetha Lal was subjected to tuboctomy and certificate to this effect was issued which was Ex. 5 containing his signatures. This fact was entered at S.No. 26 in the relevant register on 26.12.2003. She has also proved the letter of consent Ex. 3 which contains thumb impression of the wife and mother of Meetha Lal. She has also proved the Female Sterilisation Case Card Ex. 4 and Ex. 4A. She stated that Ex. 5, the certificate of tuboctomy was written by her own hand. At that time, Har Bai declared the age of her youngest son as six months. PW-5 P.C. Satya has also proved the Ex. 3, the letter of consent for tuboctomy and Female Sterilisation Case Card Ex. 4 which has been proved from the register of Primary Health Centre. Apart from that, PW-6 Mahesh Chand has also asserted the same facts and PW-7 Dayal Chand has also stated the same facts. Ex. 3 contains the thumb impression of not only the wife of Meetha Lal, but also of his mother who signed the same as a witness. Besides Ex. 3, Ex. 7, the report prepared by Primary Health Centre also contains the details about the family of returned candidate Meetha Lal. Both these documents have been prepared by the staff of Primary Health Centre in due discharge of their duties. These documents were prepared in the year 2003 whereas the election has taken place in 2005. These documents, which have thus been maintained by the authorities and produced by them in natural way, cannot be disbelieved. There is no reason why PW-3 Uma Sen and PW-5 P.C. Satya would make a wrong statement. The other witnesses have also provided this fact. In the light of the finding of fact recorded by the Election Tribunal which has been upheld by the learned Single Judge, there is hardly any scope for our interference with such finding of facts. Contention of Shri R.K. Mathur, learned counsel that the wife of the returned candidate and his mother were both illiterate and entries in the letter of consent Ex. Contention of Shri R.K. Mathur, learned counsel that the wife of the returned candidate and his mother were both illiterate and entries in the letter of consent Ex. 3 cannot be attributed to them, is liable to be rejected for the simple reason that if that was so, nothing prevented him to produce his wife and mother both in evidence to rebut Ex. P-3. The ration card produced by him hardly could disprove what was proved by the election petitioner inasmuch as the ration card was itself prepared in the year 2001 and whereas the third child was alleged to have been born in June, 2003. The writ petition filed by him was, therefore, rightly dismissed. 8. Now coming to the writ petition filed by election petitioner Anita Gaur, the Civil Judge decided the issue no. 2 against election petitioner on the premise that the burden of proving this issue lay on the election petitioner. The Civil Court decided this issue against the election petitioner on the ground that she has failed to prove that only two candidates contested the election and, therefore nomination paper of one candidate having been held to have been illegally accepted, the only remaining candidate would be so liable to be declared elected. According to learned trial court, the election petitioner failed to adduce any evidence on that aspect and admitted in his cross examination that one dummy candidate of congress party Mahendra Khati also filed the nomination form but his nomination paper was rejected. A perusal of the election petition reveals that while the election petitioner asserted in para 1 of the petition that he filed his nomination paper, in para 2, he has also asserted that the returned candidate Meetha Lai also filed nomination paper. It is further said that the election petitioner Anita Gaur raised objection about the validity of his nomination paper, which was rejected. She then filed writ petition challenging that but in the meantime election had taken place, therefore, the writ petition was withdrawn with liberty to file election petition. Although the election petitioner in the petition has not clearly stated that there were only two candidates in election but the tenure of the petition is such which clearly shows that it were only the petitioner and the respondent, who contested the election. Although the election petitioner in the petition has not clearly stated that there were only two candidates in election but the tenure of the petition is such which clearly shows that it were only the petitioner and the respondent, who contested the election. This fact was not controverted or otherwise asserted even by the defeated candidate in reply to the election petition. The election petitioner made necessary pleadings and prayer for recrimination of his election but the returned candidate did not specifically contest those pleadings and did not assert that there was any third contesting candidate also. Not even the District Election Officer, who was impleaded as non-petitioner in the election petition and filed reply thereto, disputed so by asserting that there were more than two candidates and therefore, the prayer of recrimination should be rejected. In fact, the returned candidate in his cross-examination has clearly admitted that he was pressurised by the election petitioner to withdraw the nomination form and was offered money and was told that he should open a shop with this money and that he should allow the election petitioner to win unopposed. This was thus a clear admission on the part of the returned candidate that if he had withdrawn the nomination paper, the election petitioner would have been declared elected unopposed. The election petitioner in her affidavit has categorically stated that the order passed by election officer rejecting his objection dated 14.1.2005 was illegal and was liable to be set aside and that by rejecting nomination of Meetha Lal, the petitioner was liable to be declared elected unopposed from Ward No. 6 of Panchayat Samiti Lalsot. In the affidavit the election petitioner also made averment about the result sheet dated 8.2.2005 which was produced as Ex. 10. This result sheet clearly indicates that there were in all four nomination papers received for Ward No. 6, which was a general ward, out of which two nomination papers were rejected and thus there remained only two valid nominations. In the face of all this evidence, the mere fact that the pleadings of the election petitioner were not happily worded, does not make the petition completely devoid of substance in so far as the prayer for recrimination is concerned. In the face of all this evidence, the mere fact that the pleadings of the election petitioner were not happily worded, does not make the petition completely devoid of substance in so far as the prayer for recrimination is concerned. Learned Civil Judge was, therefore, not justified in refusing to consider the said prayer holding that the election petitioner has not produced any evidence and has thus failed to prove that there were only two contesting candidates because she has admitted in the cross-examination that nomination paper of one candidate was rejected. In fact nomination papers of two candidates were rejected but even then the fact remains that there were only two contesting candidates which is proved from the result sheet Ex. 10 as also from the other material referred to above. 9. On the aspect of recrimination, however, the learned Single Judge has rejected the writ petition of the election petitioner observing that such a relief could not be granted to her in the absence of any provision in the Rajasthan Panchayati laws as it exists otherwise under the Representation of People Act. The Section 43(1) of the Rajasthan Panchayati Raj Act, 1994 provides that an election under the said Act or the rules made thereunder may be called in question by any candidate at such election by presenting in the prescribed manner to the District Judge having jurisdiction a petition in this behalf on the prescribed grounds and within the prescribed period. Sub-section (2) of Section 43 provides that a petition presented under sub-section (1) shall be heard and disposed of in the prescribed manner and the decision of the Judge thereon shall be final. The manner for entertaining and disposal of the election petition has been prescribed in Chapter XIII of the Rules of 1994. Rule 87(1) of the Rules of 1994 provides as under: "Rule 87. Order of the Court. (1) Upon the conclusion of the hearing the Judge shall make an order: (a) dismissing the petition, or (b) declaring the election of all or any of the returned candidates to be void, or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. (d)xxxxxxxxx 10. (d)xxxxxxxxx 10. Examination of sub-rule (1) of Rule 87 thus makes it clear that a Judge trying the election petition on conclusion of the hearing may either dismiss the petition or declare the election of all or any of the returned candidates to be void or the petitioner or any other candidate to have been duly elected. It is thus clear that clause (c) of sub-rule (1), supra, has provided for the remedy of not only declaring the election of the returned candidate as void but also declaring the petitioner to have been duly elected. The finding recorded by learned Single Judge to the extent that there is no provision in the Rajasthan Panchayati laws for granting the prayer of election petitioner to declare her elected, does not, therefore, appear to be well founded. We may in this connection usefully refer to the observations of the Constitutional Bench of Supreme Court in Vishwanatha Reddy v. Konappa Rudrappa Nadgouda & Anr., supra. Their Lordships while considering the prayer of the petitioner to declare him elected in place of returned candidate, in para 12 of the report observed as under:- "12. xxxxxxxxxxxx when there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the qualified 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." 11. On the facts and circumstances of the case, we find that there were only two candidates who contested the election and that the returned candidate was disqualified to so contest by reason of having had third child born out of the wedlock of his marriage in the month of June, 2003 after cut off date of 27.11.1095, attracting the disqualification contained in Section 19(1) of the Act. The result of the election was thus materially affected by improper acceptance of his nomination and, therefore. The result of the election was thus materially affected by improper acceptance of his nomination and, therefore. his election having been declared void by the learned trial court, the only other candidate, i.e., election petitioner Anita Gaur, was liable to be declared elected in view of the remedy provided for such a eventuality in Rule 87, supra. 12. In view of the discussion made above, the D.B. Civil Special Appeal (Writ) No. 01035/08 filed by the returned candidate Meetha Lai is dismissed and the D.B. Civil Special Appeal (Writ) No. 711/08 filed by the election petitioner Anita Gaur is allowed and the judgment of Civil Judge on issue no. 2 and that of the learned Single Judge to that extent, are set aside and election petitioner Anita Gaur is declared elected as Member of Ward No. 6 of Panchayat Samiti Lalsot, Distt. Dausa.Appeal of M Dismissed and that of A Allowed. *******