JUDGMENT Hon’ble Sunil Ambwani, J.—Heard Shri B.K. Shukla for the petitioner. Shri Kshitij Shailendra appears for the contesting respondent. Respondent Nos. 4 and 5 are represented by Shri Jai Bahadur Singh, Advocate. The affidavits have been exchanged. With the consent of parties, the matter was heard, and is finally decided. 2. Shri Parashuram-the petitioner in Writ Petition No. 36637 of 2007, was declared elected as Member of the Block Development Committee, Ward No. 58 (Chhatargarh), Block Shankergarh, District Allahabad. There were only two candidates, namely the petitioner and respondent No. 3-Vinod Kumar in the fray. Shri Vikas Chandra (brother of the petitioner) and Shri Bharat, respondent Nos. 4 and 5 had withdrawn from the contest. 3. Shri Vinod Kumar-respondent No. 3, filed an election petition under Section 14 (2) of U.P. Kshetra Panchayat & Zila Panchayat Act, 1961 (U.P. Act of 1961) in the Court of District Judge, Allahabad. The written statement was filed on 5.5.2006. The election petition was transferred to the Court of Additional District Judge, Court No. 14, Allahabad. The tribunal framed five issues in which issue No. 1 related to disqualification of the petitioner namely; “whether on the allegations in the plaint the election of opposite party No. 1 is liable to be declared as void?” 4. The election tribunal, while deciding issue No. 1, found that the petitioner was given contract to collect ‘tehbazari’ in the years 1996-97 and 1997-98. The evidence produced by the plaintiff established that he was included and is still in the list of defaulters of the arrears to be paid to Kshettra Panchayat. The opposite party had to prove that after his name was included in the list, he has deposited the defaulted amount. He did not produce any evidence, which may prove that he is not a defaulter. The ‘no dues certificate’ produced at the time of nomination was not a ground to declare that he was not a defaulter, when he was still entered in the list of defaulters in the relevant documents and that for some amount the recovery certificate issued against him is still valid. The petitioner was thus a defaulter and was not eligible to contest the elections under Section 13-D of U.P. Act of 1961. The election of the petitioner was set aside on this ground on 30.7.2007, giving rise to this writ petition. 5. The petitioner was thus a defaulter and was not eligible to contest the elections under Section 13-D of U.P. Act of 1961. The election of the petitioner was set aside on this ground on 30.7.2007, giving rise to this writ petition. 5. In Writ Petition No. 47431 of 2007, Shri Vinod Kumar, the election petitioner has made a prayer to quash, that part of the operative portion of the order dated 30.7.2007, passed by Election Tribunal/Additional District Judge, Court No. 14, Allahabad, by which he had declared a vacancy (Aakasmik Rikti) in respect of the Member of Block Development Committee of Ward No. 58, Chhatargarh, Block Shankargarh, District Allahabad, and has further prayed that the petitioner be declared as duly elected. 6. The evidence adduced by the parties included a certificate (paper No. 36-Ga) dated 6.2.2006 issued by the Zila Panchayat, Allahabad to the effect that Shri Parashuram Shukla is entered as a defaulter of Rs. 63,000/-of ‘tehbazari’, on Form No. 29. This information was given to the election-petitioner under (The) Right to Information Act, 2005. The amount due is of the years 1996-97 and 1997-98. Paper 7-C was an objection filed on 5.10.2005 against the nomination of the petitioner Shri Parashuram before the election officer. Paper No. 45-C was the register of defaulters of Zila Panchayat Allahabad in which the default vide paper No. 7-C was entered. Apart from this, paper No. 45-C filed along with the affidavits of Shri Rakesh Kumar Varma, Law Munsarim, Zila Panchayat Allahabad also enclosed the certificate on Form-29 which certified the information dated 6.2.2006, to the effect that Shri Parashuram Shukla is a defaulter. 7. On his part Shri Parashuram Shukla filed his affidavit and the affidavits of Shri Ram Lakhan and Shri Vikas Chandra. These witnesses were cross-examined by the election petitioner. Shri Parashuram Shukla produced the papers relating to nomination of Ward No. 58 Chhatargarh of the panchayat members, and the no dues certificate filed by him. 8. The tribunal found that the information furnished by the Zila Panchayat, Allahabad dated 6.2.2006 under (The) Right to Information Act, 2005 established that Shri Parashuram Shukla was a defaulter of ‘tehbazari’ dues of Rs. 63,000/-. Apart from this, Form-29, which is the list of defaulters included Shri Parashuram Shukla at serial No. 137 for Rs. 5,000/-, serial No. 147 for Rs. 40,000/-, serial No. 157 for Rs. 63,000/-. Apart from this, Form-29, which is the list of defaulters included Shri Parashuram Shukla at serial No. 137 for Rs. 5,000/-, serial No. 147 for Rs. 40,000/-, serial No. 157 for Rs. 3,000/-, and serial No. 158 for Rs. 5,000/- and thus a total of Rs. 63,000/- was found to be due against him as ‘tehbazari’. These documents were proved by Shri Rakesh Chandra Varma, Law Munsarim of Zila Panchayat Allahabad. He also proved the recovery certificate issued against Shri Parashuram Shukla for these amounts. In the cross-examination he deposed that Shri Parashuram Shukla is a defaulter for Rs. 60,000/-. 9. The tribunal discussed the validity of the no dues certificate and found that the no dues certificate is not a proof of the fact that the person is not a defaulter, if he is still shown to be a defaulter in Form No. 29. The tribunal relied upon Rule 5 of the U.P. Kshetra Panchayats (Removal of Disqualification and Settlement of Disputes Relating to Disqualification & Membership) Rules, 1994, (in short the Rules of 1994) providing for removing the disqualification of a defaulter. The rule shifts the burden upon the defaulter, included in the list of defaulters, to file a protest or to deposit all the dues. Shri Parashuram Shukla did not produce any receipt or any certificate to prove that he had deposited the dues. In his cross-examination he stated that he had lost the receipts. He did not make any effort to find the duplicate copy of the receipts. The tribunal then found that it is not necessary to establish that the no dues certificate, is forged as the other documents on record clearly established that Shri Parashuram Shukla is a defaulter and was disqualified from contesting the elections. The tribunal also relied upon the affidavits of Shri Saraju Prasad, Assistant Accountant (Revenue) to establish that Shri Parashuram is defaulter of Rs. 10,000/- as ‘tehbazari’ and that he had received three recovery certificates out of which he had brought two recovery certificates dated 7.9.2002 with him. 10. Learned Counsel for the petitioner contends that the no dues certificate issued by the competent authority was a conclusive evidence, and sufficiently discharged the burden that the petitioner was no longer a defaulter. The petitioner could not be a defaulter of the previous years i.e. 1996-97, when he was again given a contract of the year 1997-98. 10. Learned Counsel for the petitioner contends that the no dues certificate issued by the competent authority was a conclusive evidence, and sufficiently discharged the burden that the petitioner was no longer a defaulter. The petitioner could not be a defaulter of the previous years i.e. 1996-97, when he was again given a contract of the year 1997-98. The election petitioner did not examine the Class-II officer, who, in the opinion of Shri Rakesh Kumar Varma, Law Munsarim, Zila Panchayat, Allahabad, was the only competent officer to issue the no dues certificate. The election tribunal committed a mistake in disbelieving the no dues certificate and relying upon the registers in which the petitioner was shown to be a defaulter. 11. A copy of the no dues certificate, purportedly issued by Officer Incharge/Taxing Officer, Zila Panchayat, Allahabad certifying that there are no dues against Shri Parashuram payable to Zila Panchayat Allahabad, was filed by the petitioner at the time of nomination. In the election petition it was stated that the petitioner had not deposited the dues of Rs. 63,000/- against him from 1996-2005 and was shown in form No. 29 at serial Nos. 137, 147, 157, and 158. It was clearly stated in the election petition that Shri Parashuram Shukla has not deposited these amounts and thus his nomination could not be accepted, and is in clear violation of the Rule 18 (2)(b) of U.P. Kshetra Panchayat & Zila Panchayat (Elections of Members) Rules, 1964, and is also against Rule 13 (d) of the U.P. Act 1961. The election petitioner had raised objections before the election officer to the nomination of Shri Parashuram and had raised the issue which was not decided. 12. In Mahtab Din and others v. Kasar Singh and others, AIR 1928 Lahore 640, the Court considered whether a register of the houses produced as evidence was a public document as defined under Section 74 of the Evidence Act or was it an official book falling within the purview of Section 35 of the Act. If there was no evidence to show that this register was prepared by the public servant in discharge of his official duties, the presumption under Section 74 could not be raised only on the ground that they were kept in the public office in the record room of the Deputy Commissioner. 13. If there was no evidence to show that this register was prepared by the public servant in discharge of his official duties, the presumption under Section 74 could not be raised only on the ground that they were kept in the public office in the record room of the Deputy Commissioner. 13. In Banamali Das v. Rajendra Chandra Mardaraj Harichandan, 1976 (1) SCC 45, it was held in para-12 that Section 74 of the Evidence Act provides that the documents forming the acts or records of the acts of public officers are public documents. Section 76 provides that every public officer having the custody of a public document which any person has a right to inspect shall give that person a copy of it together with the certificate that it is a true copy of the document. By Section 77 such certified copies may be produced in proof of the contents of the documents of which they purport to be copies. Rule 5 (4) of the Rules of 1994 reads as follows : “5. Disqualification on account of non-payment of tax etc. (1) ................................ (2) ................................ (3) ................................ (4) The name of the person who has paid, whether under protest or otherwise, all the arrears shown against his name in the said list shall be struck off the list. A receipt issued by the concerned Khand Vikas Adhikari or an officer of the concerned Kshettra Panchayat authorized in this behalf by the Khand Vikas Adhikari in payment of any such arrears shall be conclusive proof of the fact that the person is not in arrears of tax, fee or rate, as the case may be.” 14. Where the rules provide for removal of disqualification in a particular manner namely obtaining the receipt as a proof of payment of the arrears of tax, fee or rate, no other proof in this regard will be ordinarily admissible. The petitioner neither stated nor produced any proof of payment of the dues. 15. It is not denied that the petitioner was a defaulter of tehbazari dues of the years 1996-97 of Nari Bari Bazar; 1997-98 of Nari Bari Bazar; 1997-98 of Bara Bazar; and 1997-98 of Gauhaniya Bazar. He was a defaulter recorded in statutory form No. 29 of Zila Panchayat, Allahabad of the year 2004-05 of the aforesaid amounts, totalling Rs. 63,000/-. It is not denied that the petitioner was a defaulter of tehbazari dues of the years 1996-97 of Nari Bari Bazar; 1997-98 of Nari Bari Bazar; 1997-98 of Bara Bazar; and 1997-98 of Gauhaniya Bazar. He was a defaulter recorded in statutory form No. 29 of Zila Panchayat, Allahabad of the year 2004-05 of the aforesaid amounts, totalling Rs. 63,000/-. In his written statement, he did not deny the fact of default and correctness of the record of Form No. 29. It was stated by him in para-26, that no fees, tax or dues are due/balance against him. He had filed a ‘no dues certificate’ alongwith his nomination. Annexure-4 of the Election Petition, was a forged document which has no effect at all. Once the elected candidate did not deny that he was a defaulter and was so recorded in Form-29 of the year 2004-05 prepared in accordance with Rule 116 of the Rules framed under the Act, and that he had stated that he had paid the dues and had obtained no dues certificate, the burden lay on him to prove the deposits and the receipts by which he had paid the amount and to produce the same to discharge the burden. Instead of producing these receipts, he denied the validity of Annexure-4 and relied upon the circumstances, that if he was a defaulter of tehbazari of the years 1996-97 and 1997-98, he could not have been allowed to take part in the auctions of the subsequent years. In the same paragraph (para-15) he stated that for the year 2005 he was given a no dues certificate, which he described as a receipt. 16. A ‘no dues certificate’ is a proof of the fact that there were no dues against the person applying for a certificate or that all the dues, if any, have been paid. Once the elected candidate accepted the fact that he was given a contract for collecting tehbazari and that he was required to pay the dues, the burden shifted upon him to establish that he had paid the dues and that the no dues certificate was issued after paying such dues. He did not give the dates, amounts and did not produce the receipts of payments. Shri Parashuram the petitioner was a defaulter of the tehbazari dues on the day when he filled up his nomination and even thereafter. He did not give the dates, amounts and did not produce the receipts of payments. Shri Parashuram the petitioner was a defaulter of the tehbazari dues on the day when he filled up his nomination and even thereafter. He was disqualified to contest the elections. The election tribunal did not commit any mistake in declaring the election petitioner as elected as there were no other candidates, who had taken part in the elections. Shri Vikash Chandra and Shri Bharat, the other two candidates had withdrawn from the contest and were not the candidates on the day when the ballots were cast. 17. In Vishwanatha Reddy v. Konappa Rudrappa Nadgouda and another, AIR 1969 SC 604 (para 12) a Constitution Bench of Supreme Court held that when there are only two contesting candidates, and one of them is under statutory disqualification, the 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. The question of notice to the voters may assume significance, for the voters may not, if they were aware of the disqualification have voted for the disqualified candidate. Where there are more than two candidates in the field for a single seat, and one alone is disqualified, on the proof of disqualification the votes cast in his favour will be discarded. This however does not mean that a candidate securing next highest number of votes will be declared elected as it will be wrong to assume that all the votes would have been cast in favour of second candidate. The Constitution Bench found that Keshav Laxman Borker’s case AIR 1960 SC 131 , was not correctly decided. In Borker’s case the Court was of the view that where there are only two candidates for a seat and the election of the candidate declared elected is set aside on the ground that he was disqualified the defeated candidate cannot be declared elected and there must be a fresh election. It was held in Borker’s case that in such event the votes cast in favour of the disqualified candidate cannot be said to be thrown away unless there was special pleading that certain voters who had cast their votes in favour of the returned candidate were aware that he was disqualified. It was held in Borker’s case that in such event the votes cast in favour of the disqualified candidate cannot be said to be thrown away unless there was special pleading that certain voters who had cast their votes in favour of the returned candidate were aware that he was disqualified. The Constitution Bench held that this rule based on English cases had no application to India, for it is not consistent with our statute law. The judgement in Vishwanatha’s case would be applicable where there are only two candidates in the fray. In the present case the other two candidates had withdrawn their nominations and did not contest the elections. 18. There were only two candidates from the fray namely Shri Parashuram and Shri Vinod Kumar. Once the nomination of Shri Parashuram was declared to be invalid as he was disqualified to contest the elections, the votes in his favour would be discarded and that if there are no other candidates in the fray, the only other candidate should be declared to be elected. Shri Vikash Chandra and Shri Bharat had withdrawn their nominations and were not the candidate for elections. Their names were not included in the ballot papers. Shri Vinod Kumar the election petitioner had made a prayer in prayer (b) of the election petition to declare him elected, after declaring the elections of the returned candidate to be void. In the circumstances, the consequence of declaring Shri Parashuram as disqualified under Section 13 (3) of the U.P. Act 1961 and sub-rule (4) of Rule 5 of the Rules of 1994 would be to declare the election petitioner-Vinod Kumar in Writ Petition No. 47431 of 2007, as elected. 19. The Writ Petition No. 36637 of 2007 is dismissed. 20. The Writ Petition No. 47431 of 2007 is consequently allowed. Shri Vinod Kumar the election petitioner is declared as duly elected/chosen member of the Block Development Committee, Ward No. 58 Chhatargarh, Block Shankargarh, District Allahabad. The Election Petition No. 9 of 2005 to that extent is allowed. ————