JUDGMENT Hon’ble Arun Tandon, J.—Heard learned counsels for the parties. Facts in short giving rise to this writ petition are as follows : Election for the office of the President of the Nagar Panchayat Pipiganj, Tehsil Campariganj, District Gorakhpur was held in the year 2006. The writ petitioner as well as the contesting respondent Indrawati along with other persons contested the said elections. The petitioner Anita was declared elected after counting on 6th November, 2006. The election of Anita was challenged by means of Election Petition No. 4 of 2006 under Section 19/20 of the U.P. Nagar Palika Adhiniyam. Amongst other one of the basic issue raised for questioning the election was that the elected candidate was underage on the relevant date and therefore ineligible to contest the elections. The acceptance of her nomination paper was therefore illegal, resulting in material irregularity and therefore the same be set aside. 2. The issue, as to whether on the relevant date the elected candidate was minor, was considered on the basis of the evidence led by the parties. After consideration of material and oral evidence led, a finding of fact has been recorded by the Election Tribunal, that on the date of submission of the nomination paper the candidate Anita had not reached the age of 30 years and therefore she was ineligible to contest the election. Her election was, therefore, declared null and void. The Election Tribunal thereafter proceeded to declare respondent No. 1 (election petitioner) as the elected candidate having regard to the fact that she had secured the second highest number of vote. Such declaration is stated to have been issued with reference to the judgment of the High Court reported in the case of Smt. Meenu v. Third Additional District Judge, Kanpur Dehat, 2001 (92) RD 551 . This order of the Election Tribunal has been challenged before this Court by means of the present writ petition. 3. Initially an attempt was made on behalf of the writ petitioner to question the findings recorded qua her age on the date of submission of nomination paper. This order of the Election Tribunal has been challenged before this Court by means of the present writ petition. 3. Initially an attempt was made on behalf of the writ petitioner to question the findings recorded qua her age on the date of submission of nomination paper. However, subsequently it was realized that such plea raised on behalf of the writ petitioner will not stand the scrutiny and therefore the issue with regard to the disqualification suffered by the writ petitioner on the ground of her being underage on the date of submission of nomination paper was more or less given up. 4. This Court after examining the records of the proceedings, as they stand, is satisfied that the finding of fact recorded by the Election Tribunal qua the age of the elected candidate Anita on the date of submission of nomination paper, being less than 30 years, is based on true and correct appreciation of the evidence led by the parties. Such findings of fact needs no interference under Article 226 of the Constitution of India nor can be reversed after re-appreciation of the evidence in exercise of power under writ jurisdiction. Reference may be had to the judgment of the Hon’ble Supreme Court in the case of Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796 , wherein the Hon’ble Supreme Court has laid down the legal preposition with regard to material to be examined qua the age of the contestant. Judged on the aforesaid principle, the finding of the Tribunal that the petitioner was underage on the relevant date needs no interference. This Court, therefore, records that on the date Anita had submitted the nomination paper she was below the prescribed age of 30 years and therefore disqualified for contesting the election. The declaration of her election as null and void by the Election Tribunal is accordingly upheld. 5. The other issue seriously contested and which requires consideration is as to whether the second part of the direction issued under the order of the Election Tribunal declaring the respondent No. 1 as elected on the basis that she had secured second largest number of votes polled is legally justified or not. 6. 5. The other issue seriously contested and which requires consideration is as to whether the second part of the direction issued under the order of the Election Tribunal declaring the respondent No. 1 as elected on the basis that she had secured second largest number of votes polled is legally justified or not. 6. On behalf of the writ petitioner it has been stated that in view of the law laid down by the Hon’ble Supreme Court in the case of Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796 (para 17 and 18) and in the case of Gadakh Yashwantrao Kankarrao v. E.V. Alias Balasaheb Vikhe Patil and others, JT 1993 (6) SC 345 pages 79, 80 and 81, such a declaration in the facts of the case could not have been issued. 7. The contention so raised is opposed by Shri V.K.S. Chaudhary, Senior Advocate. It is stated that there is a distinction between the language used in Section 101 of the Representation of Peoples Act, 1950 vis-a-vis the language used in Section 25 of the Municipalities Act. According to the counsel the distinction between two provisions is apparent from a simple reading of the statutes. He submits that under Section 25 of the Municipalities Act a discretion is conferred upon the Election Tribunal to grant the relief of declaration wherever the District Judge finds it more appropriate to do so. It is contended that the discretion conferred under the said statutory provision upon the District Judge has been exercised in favour of respondent No. 1. Such exercise of discretion in the facts of this case cannot be said to be arbitrary, in view of the fact that petitioner had secured the second largest number of votes. No interference against such exercise of discretion is called for. It is stated that votes polled in favour of Anita have to be treated as wasted votes. Such exercise of discretion in the facts of this case cannot be said to be arbitrary, in view of the fact that petitioner had secured the second largest number of votes. No interference against such exercise of discretion is called for. It is stated that votes polled in favour of Anita have to be treated as wasted votes. Learned counsel has referred to the judgment of the Apex Court in the case of Badri Narayan Singh v. Kamdeo Prasad Singh and another, AIR 1962 SC 338 (Para 1 & 2) and of this Court in the case of Amrendra Singh v. State of U.P., 2008 (2) ALJ 260 (DB) (Para 3, 13, 20, 24 & 28) and Smt. Meenu v. Third Additional District Judge, Kanpur Dehat, 2001 (92) RD 551 wherein, on similar facts, declaration of the candidate, securing second highest number of votes, as elected, has been upheld. 8. Lastly it is contended that the persons like the petitioner cannot be permitted to take benefit of their own wrong and cannot be permitted to maintain this petition and to insist upon re-election only because in between they have acquired the required age for the purpose. Reference has been made to the judgment of the Apex Court in the case of Sushil Kumar v. Rakesh Kumar, AIR 2004 SC 230 (Para 30). 9. From the contention raised on behalf of the parties, it has to be examined is as to under which category the votes polled in favour of Anita would fall. Whether they are to be treated as invalid votes liable to be ignored or they are to be treated as wasted/thrown away votes and to be excluded from counting and therefore result is required to be declared on the basis of the votes received by the other candidates or else the entire elections are liable to be set aside, inasmuch as such votes which were cast in favour of a disqualified candidate would have fallen in favour of which contesting candidate cannot be ascertained. 10. 10. A Constitution Bench of the Hon’ble Supreme Court in the case of Konappa Rudrappa Nadgouda v. Vishwanath Reddy and another, (1969) 2 SCR 90 , while dealing with more or less identical situation under Section 101 of the Representation of People Act, has held as follows : “..........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.” 11. The said judgment has been followed in the case of Gadakh Yashwantrao Kankarrao v. E.V. Alias Balasaheb Vikhe Patil and others, JT 1993 (6) SC 345 (para 79, 80 and 81). 12. Thus under the said judgment of the Hon’ble Supreme Court it has been explained that, if there are more than two candidates in the field for a single seat and elected candidate is found to be disqualified, it cannot be said that all the votes cast in his favour be discarded and the candidate securing the next highest number of votes will be declared elected. The Court has emphasised that in such a case, question of notice to the voters may assume significance for the voters. They may not have, if aware of the disqualification, voted for the disqualified candidate. 13. In the facts of the case in hand it is not in dispute that more than two candidates contested the election and the elected candidate namely the petitioner was declared disqualified. 14. They may not have, if aware of the disqualification, voted for the disqualified candidate. 13. In the facts of the case in hand it is not in dispute that more than two candidates contested the election and the elected candidate namely the petitioner was declared disqualified. 14. There is nothing on record to establish that there no notice to the voters about the disqualification suffered by the elected petitioner nor any such finding has been recorded by the Tribunal, while declaring the election petitioner as elected. The Hon’ble Supreme Court has specifically laid down that in these set of circumstances the person securing the second highest votes cannot be declared as elected. 15. This Court may emphasis that the judgment of the High Court giving rise in the case of Gadakh Yashwantrac Kankarrao v. E.V. Alias Balasaheb Vikhe Patil and others (supra) was set aside by the Hon’ble Supreme Court after recording that there is no discernible cogent reason in the order of the High Court to support the conclusion that the candidate securing second highest votes be declared elected. The said legal principle applies with full force in the facts of the case. 16. This Court may record that except for recording that the election petitioner had secured the second highest votes, no other reasons can be deciphered by the Tribunal for declaring her elected. 17. The Court may now examine the language used under Section 101 of the Representation of People Act, 1950 vis-a-vis that of Section 25 of the Uttar Pradesh Municipalities Act, 1916, as much emphasis has been laid thereon by the counsel for the respondent for distinguishing the law laid down in the case of Konappa Rudrappa Nadgouda (supra). For ready reference the aforesaid two sections are quoted below : Representation of People Act, 1950 “Section 101. For ready reference the aforesaid two sections are quoted below : Representation of People Act, 1950 “Section 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.” U.P. Municipalities Act Section 25. Finding of [the District Judge].—[(1) If the [District Judge], after making such inquiry as it deems necessary, finds in respect of any person whose election is called in question by a petition, that his election was valid, it shall dismiss the petition as against such person and may award costs at its discretion and may also pass such order for return or forfeiture of the security or part thereof as he may deem fit.] (2) If the [District Judge] finds that the election of any person was invalid, [or that nomination paper of the petitioner was improperly rejected,] it shall either,— (a) declare a casual vacancy to have been created; or (b) declare another candidate to have been duly elected, whichever course appears, in the particular circumstances of the case, the more appropriate, and in either case may award costs at its discretion.” 18. It is no doubt true that a discretion has been conferred upon the District Judge while hearing election petitions to grant the relief of declaration of the election petitioner as elected, if he finds it more appropriate to do so. It has, however, to be kept in mind that the discretion has to be exercised only in accordance with law and not de hors the same. It has, however, to be kept in mind that the discretion has to be exercised only in accordance with law and not de hors the same. If the law, as explained by the Hon’ble Supreme Court in the aforesaid judgment in the case of Konappa Rudrappa Nadgouda (supra) lays down that on the elected candidate being declared disqualified it is not possible to declare the candidate securing second highest as elected if there are more than two contesting candidates, inasmuch as it cannot be decided as to in whose favour the votes polled in favour of disqualified candidate could have gone, then in my opinion the only course open is to direct re-election. It will be seen that if the contention raised on behalf of the election petitioner is accepted, namely that votes polled in favour of a disqualified candidate are to be treated as wasted votes, the result would be that the candidate securing second highest votes would be declared elected in view of Section 101 (a) of the Representation of Peoples Act, inasmuch as he would be held to have secured the majority of the remaining valid votes. Such contention stands repelled under the judgment of the Constitution Bench of the Apex Court in the case of Konappa Rudrappa Nadgouda (supra). The Hon’ble Supreme Court has held that it is only where two persons alone contest the election and one found to be disqualified that second can be declared elected. 19. This Court has no hesitation to record that any exercise of discretion, contrary to the law laid down by the Hon’ble Supreme Court, by the District Judge would be per se illegal. The District Judge cannot exercise his discretion as suggested by the counsel for the respondent to declare the election petitioner elected after he had come to a conclusion that the elected candidate was disqualified for one reason or other and the election petitioner had secured the second highest votes. The legal principle as laid down by the Hon’ble Supreme Court is that the number of valid votes polled in favour of the disqualified candidate cannot be ignored nor it can be adjudicated as to in favour of which candidate such votes would have fallen provided there are more than two candidates contesting the election. In such circumstances the person getting the second highest votes cannot be declared elected. In such circumstances the person getting the second highest votes cannot be declared elected. The said legal preposition would apply with full force in the case of elections held under the Municipalities Act also and the discretion vested in the District Judge under Section 25 has to be in conformity with the law laid down by the Hon’ble Supreme Court and not in a manner which may negate the law so declared. 20. The judgments relied upon by the learned counsel for the contesting respondent are clearly distinguishable in the facts of the case, inasmuch as law laid down by the Constitution Bench of the Apex Court in the case of Konappa Rudrappa Nadgouda (supra) has not been noticed nor considered therein. This Court, therefore, feels justified in relying upon the Apex Court judgment in the case of Konappa Rudrappa Nadgouda v. Vishwanth Reddy and another. 21. The Apex Court in Dwarka Dass and others v. State of Haryana, AIR 2003 SC 185 , has held that even “discretionary power has to be exercised in accordance with the known principles of law and not otherwise.” In R. v. Wilkes, (1770) 4 Burr 2527 it has been held as follows : “Discretion when applied to a Court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, rogue and fanciful, but legal and regular.” 22. The Court may now consider the last contention raised on behalf of the respondents to the effect that the petitioner being disqualified cannot be permitted to maintain the present writ petition, inasmuch as she was admittedly held to be underage on the relevant date. Reliance in that regard has been placed on the judgment reported in AIR 2004 SC 230 , Sushil Kumar v. Rakesh Kumar. 23. I am of the considered opinion that the right of the petitioner to maintain the present writ petition against an order of the election tribunal, which has held her to be underage on the relevant date and therefore disqualified, cannot be questioned. She has a right to maintain the petition. However, in view of the fact that this Court has found that the finding recorded by the Election Tribunal qua the petitioner being disqualified is based on true and correct appreciation of the evidence, the first part of the relief has been refused. She has a right to maintain the petition. However, in view of the fact that this Court has found that the finding recorded by the Election Tribunal qua the petitioner being disqualified is based on true and correct appreciation of the evidence, the first part of the relief has been refused. However, so far as the challenge to the later part of the order of the Election Tribunal, declaring respondent No. 1 as elected candidate is concerned, this Court finds that such a challenge can always be maintained by the petitioner, inasmuch as if the elections are now declared after setting aside the earlier election, she having reached the requisite minimum age will be entitled to contest the fresh elections. 24. In the facts and circumstances noticed above, I am of the considered opinion that the writ petition, as filed by the petitioner, is clearly maintainable. She is entitled to question the later part of the order of the Election Tribunal also, which declares the respondent No. 1 as elected. No relief is being granted to the petitioner qua her earlier election nor the order, which is proposed to be passed by this Court, will in any manner result in restoration of any illegal order. 25. In the totality of the circumstances, this Court finds that the second issue raised on behalf of the petitioner qua respondent No. 2 being declared elected has to be answered in her favour and it is held that Election Tribunal is not justified in declaring respondent No. 1 as elected only on the ground that she has secured the second highest votes. 26. Accordingly, the writ petition is allowed in part. The order of the Election Tribunal to the extent it declares the respondent No. 1 elected is quashed. The authorities are directed to hold fresh elections for the office of the President, Nagar Panchayat in question at the earliest. ————