Judgment : 1. By this petition, the petitioner challenges judgment and order rendered by learned Adhoc District Judge2, Nanded in Election Petition No. 4/2009 whereby and whereunder his election from municipal ward No. 17, Samatanagar, as member of Municipal Council, Kinwat was declared null and void and the respondent No. 2 was declared as the elected candidate in his stead. 2. Municipal Elections were declared in the month of October, 2007 and pursuant thereto, election programme for Municipal Council, Kinwat was published. The nomination forms were required to be submitted before 2nd of November, 2007 uptill 3 p.m. The scrutiny of the nomination forms was scheduled on 3rd November, 2007. The voting was scheduled on 25th November, 2007. The petitioner was declared as elected candidate for ward No. 17 on 27th November, 2007. He had secured largest votes. There were six (6) candidates including the petitioner and the respondents No. 2 to 6 in the fray. The respondent No. 2 had secured second highest votes. 3. The respondent No. 2 filed Election Petition under section 21 of the Maharashtra (Municipal Councils), (Nagar Panchayats) and (Industrial Townships Act, 1965 (for short, “the Municipal Councils Act”). He challenged election of the petitioner on the ground that the nomination form was not accompanied by valid affidavit as required under the guidelines of the Election Commission. He further asserted that the affidavit was invalid since required adhesive stamps were not affixed as per provisions of the Bombay Stamp Act, 1958. He further asserted that the nomination form was incomplete in as much as the information as required in one of the forms was not filled in by the petitioner. He alleged that the petitioner was ineligible to contest the municipal election as member of the Municipal Council because he had incurred disqualification under section 44 (1) (e) of the Municipal Councils Act. The District Collector had rendered order dated 11th October, 2006 whereby the petitioner was disqualified to continue as Member of the Municipal Council for the remainder of term. It was alleged that the stigmatic disqualification had continued and, therefore, the petitioner could not be allowed to contest the municipal election nor was eligible to continue in the office. The respondent No.2, therefore, sought declaration that the election of the petitioner was null and void and the same stood cancelled. It was alleged that the stigmatic disqualification had continued and, therefore, the petitioner could not be allowed to contest the municipal election nor was eligible to continue in the office. The respondent No.2, therefore, sought declaration that the election of the petitioner was null and void and the same stood cancelled. He further sought declaration that he may be declared as elected candidate from ward No. 17 or alternatively sought afresh election for the said ward. 4. The petitioner denied all the material averments made by the respondent No. 2. He pointed out that the order of the Collector, passed under section 44 (1) (e) of the Municipal Councils Act, was set aside by the Hon’ble the Chief Minister in appellate jurisdiction under section 44 (4) of the Municipal Councils Act, vide order dated 21st May, 2008. He, therefore, submitted that the disqualification could be held as declamped. He denied that the affidavit filed alongwith the nomination papers was invalid. The petitioner alleged that he was framed in a false criminal case because he is member of scheduled caste and the political foes could not tolerate his presence in the Municipal Council. Consequently, he urged for the dismissal of the Election Petition. 5. The learned Adhoc District Judge2 held that as on the date of filing the nomination form, the petitioner was ineligible due to disqualification incurred by him vide order dated 11th October, 2006 passed by the Collector under section 44 (1) (e) of the Municipal Councils Act. The learned Adhoc District Judge further held that nomination of the petitioner was invalid for yet another reason that the affidavit sworn in by him was not in keeping with the guidelines issued by the Election Commission and there was no proper stamp affixed to that affidavit. On these grounds, the election of the petitioner was set aside by allowing the Election Petition. The learned Adhoc District Judge held that since the respondent No. 2 had secured second highest votes, there was no necessity to order reelection for ward No. 17 of the Municipal Council. Hence, the Election Petition was allowed, the election of the petitioner was cancelled and in his place, the respondent No. 2 was declared as elected candidate. 6. Heard learned counsel for the contesting parties. Though the respondents No. 3 to 6 were served, yet, none of them appeared. 7. Hence, the Election Petition was allowed, the election of the petitioner was cancelled and in his place, the respondent No. 2 was declared as elected candidate. 6. Heard learned counsel for the contesting parties. Though the respondents No. 3 to 6 were served, yet, none of them appeared. 7. To clear the deck, it may be stated that the petitioner had challenged the order rendered by the Collector under section 44 (1) (e) whereby he was disqualified to continue as Member for the remaining term of the Municipal Council. The remaining term was to come to an end after fresh elections which were to be held on 25th November, 2007. The legal impact of the order dated 11102006 passed by the Collector was that the petitioner’s office could be deemed as vacated by him. It was alleged that he had illegally encroached over certain municipal land by fixing barbed wire fencing around compound of his constructed building. The Collector found that though the petitioner was called upon to demolish wall and remove the barbed wire September, 2007 after due trial. There is no dispute about the fact that the petitioner had preferred appeal under section 44 (4) of the Municipal Councils Act. The Hon’ble the Chief Minister, by order dated 21May, 2008 (ExhE), allowed his appeal. fencing, yet, he had not complied with such directions and, therefore, had incurred disqualification under section 44 (1) (e). The petitioner was prosecuted vide a criminal case (R.C.C. No. 52/2003) for the alleged offence punishable under section 52 (1) of the Municipal Councils Act. It is undisputed that the learned Judicial Magistrate (F.C.), Kinwat acquitted him of the said charge as per judgment dated 28th September, 2007 after due trial. There is no dispute about the fact that the petitioner had preferred appeal under section 44 (4) of the Municipal Councils Act. The Hon’ble the Chief Minister, by order dated 21May, 2008 (Exh-E), allowed his appeal. 8. Questions involved in this petition are : (i) Could it be said that the petitioner was ineligible and disqualified to contest the municipal election for the reason that at the time of filing of nomination form, the adverse order rendered under section 44 (1) (e) of the Municipal Councils Act was in existence? 8. Questions involved in this petition are : (i) Could it be said that the petitioner was ineligible and disqualified to contest the municipal election for the reason that at the time of filing of nomination form, the adverse order rendered under section 44 (1) (e) of the Municipal Councils Act was in existence? (ii) Whether the nomination of the petitioner was patently illegal due to alleged defects noticed from the supportive affidavit filed by him alongwith the nomination papers? (iii) Was it legally permissible for the Court below to declare the respondent No. 2 as an elected candidate when there were more than two (2) candidates in the fray and the case was not of recrimination or causing of votes in favour of the petitioner due to any corrupt practice? 9. True, the petitioner did not file copy of stay order before the learned Adhoc District Judge during the course of hearing of the Election Petition and, therefore, such copy of the order dated 8th November, 2006 cannot be looked into while deciding the present petition. The written statement of the petitioner did not refer to the fact that the Collector’s order dated 11th October, 2006 was stayed by the competent authority November, 2006. Obviously, there was no warrant for the learned Adhoc District Judge to assume that there was stay granted by the competent authority and, therefore, the Collector’s order could not be considered so as to infer disqualification of the petitioner. The petitioner seems to have neglected in raising plea in the context of the interim stay order issued by the competent authority. Still, however, it cannot be overlooked that the petitioner had categorically pleaded that the Collector’s order dated 11October, 2006 was set aside by the competent authority i.e. the Hon’ble the Chief Minister by virtue of order dated 21May, 2008. This fact was brought to the notice of the learned Adhoc District Judge. He had further pointed out that he was acquitted by the Criminal Court in the criminal case bearing R.C.C. No. 52/2003. The learned Adhoc District Judge observed that though the disqualification order was set aside by the Hon’ble the Chief Minister on 21on 8th May, 2008, yet, the stigma of disqualification was very much present as on the date of filing of the nomination form i.e. on 2nd November, 2007. The learned Adhoc District Judge observed that though the disqualification order was set aside by the Hon’ble the Chief Minister on 21on 8th May, 2008, yet, the stigma of disqualification was very much present as on the date of filing of the nomination form i.e. on 2nd November, 2007. Thus, inspite of removal of the disqualification as per May, 2008 in appeal under section 44 (4) of the Municipal Councils Act, the petitioner was held disqualified for the purpose of his nomination as a candidate for ward No. 17. 10. Mr. Salunke, learned counsel for the respondent No. 2 contended that the petitioner was disqualified due to the juxtaposition available as on the date of filing of the nomination form in view of section 16 (1) (a1) (ii) of the Municipal Councils Act. He argued that the stigmatic disqualification might have been declamped subsequently on 21st May, 2008, yet, the nomination form of the petitioner could not have been accepted on 2nd November, 2007 and hence, he was ineligible to contest the municipal election. Mr. Salunke would submit that the very foundation of the nomination of the petitioner was illegal and, therefore, the view taken by the learned Adhoc District Judge cannot be faulted with. I do not agree. The learned Adhoc District Judge ought to have properly appreciated the legal impact of the order rendered by the appellate authority. It is well settled that when an appeal is allowed and the order under appeal is set aside, then it stands legally vanished from the day one of such order. It does not become valid for the period between passing of the order and the order of the appellate authority whereby it comes to an end. It mean to say, the order of the Collector ought to have been held as retrospectively wiped out due to the appellate order dated 21st May, 2008 which stood merged in the order of the lower authority. 11.In “Baby Samuel v. Tukaram Laxman Sable and others” 1995 Supp (4) S.C.C. 215, the Apex Court held that once the removal order in relation to the President of Municipal Council was set aside, the consequential action alongwith the removal order cannot stand. 11.In “Baby Samuel v. Tukaram Laxman Sable and others” 1995 Supp (4) S.C.C. 215, the Apex Court held that once the removal order in relation to the President of Municipal Council was set aside, the consequential action alongwith the removal order cannot stand. The Apex Court observed : “Because the State Government did not pass any orders on the stay petition filed by the appellant in his appeal preferred against the orders of removal/disqualification, the Collector notified and held an election to the office of the President whereat Shri Sable was elected as President. This election was again a consequence of the removal/disqualification of the appellant by the Collector. If so, once the order of removal/disqualification is set aside by the Government, the appellant is entitled to be put back in the same position which he was in before he was removed. In other words not only should he be restored to the Councillorship but also to the office of the President, Shri Sable was elected as the President in the vacancy caused by the removal/disqualification of the appellant and once the said removal/disqualification of the appellant goes, the consequential action cannot stand; it falls to ground along with the order of removal, Shri Sable must therefore yield ground to the appellant.” 12. The learned Adhoc District Judge committed patent error while holding that the petitioner was ineligible to contest the election on account of disqualification under section 44 (1) (e) of the Municipal Councils Act as per order of the Collector. It is worthwhile to notice the purport of section 16 of the Municipal Councils Act. Admittedly, the petitioner was not convicted for any offence at the relevant time and no other provision except section 16 (1) (a1) (ii) of the Municipal Councils Act can be considered so as to examine whether he was disqualified for becoming councillor. Section 16 (1) (a1) (ii) reads as follows: “16. Admittedly, the petitioner was not convicted for any offence at the relevant time and no other provision except section 16 (1) (a1) (ii) of the Municipal Councils Act can be considered so as to examine whether he was disqualified for becoming councillor. Section 16 (1) (a1) (ii) reads as follows: “16. Disqualifications for becoming Councillor.(1) No person shall be qualified to become a Councillor whether by election, or nomination, who, (a1) has been so disqualified by or under any law, (i) ***** (ii) made by the legislature of the State of Maharashtra; or; (a) has been convicted bya Court in India of any offence and sentenced to imprisonment for not less than two years, unless a period of five years, or such lesser period as the State Government may allow in any particular case, has elapsed since his release; or (aa) has at any time after the commencement of the Maharashtra Municipalities and other Provisions (Amendment) Act, 1974, (Mah. IV of 1974), been convicted of an offence punishable under Section 153A, or subsection (2) or (3) of section 505, of the Indian Penal Code, unless a period of five years has elapsed since the date of such conviction; or (ab)has been convicted of an offence punishable under the Untouchability (Offenes) Act, 1955 (XXII of 1955) and sentenced to imprisonment for any term or fine unless a period of (six years), has elapsed since his release; or (ac )has been convicted by a Court in India of any offence involving moral turpitude unless a period of (six years), has elapsed since the date of such conviction; or (b) has been removed from office under section 42 and (six years) have not elapsed from the date of such removal, unless he has, by an order made by the State Government in this behalf, been relieved earlier from the disqualification arising on account of such removal from office; or (ba )has been found guilty of misconduct in the discharge of his duties, or being guilty of any disgraceful conduct while holding the office of the President or Vice-President of the Council unless the period of disqualification provided under Section 55 B has lapsed. (c) is an undischarged insolvent; or (d) is of unsound mind and stands so declared by a competent Court; or (e) has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance or adherence to a foreign State; or (f) is a Judge; or (g)is a subordinate officer or servant of Government or any local authority or holds an office of profit under Government or any local authority; or (ga) if, having held any office under any Government or local authority has, whether before or after the commencement of the Maharashtra Municipalities and other Provisions (Amendment) Act, 1974, (Mah. IV of 1974), been dismissed for misconduct, unless a period of five years has elapsed since his dismissal; or (h) is in arrears (otherwise than as a trustee) of any sum due by him to the Council after the presentation of bill therefor to him under section 150; or (ha) has not paid any sums due, whether surcharged or charged, under the provisions of the Bombay Local Fund Audit Act, 1930 Bom. XXV of 1930; (i) save as hereinafter provided, has directly or indirectly, by himself or his partner, any share or interest in any work done by order of a Council or in any contract with or under or by or on behalf of a Council; or (j) save as hereinafter provided, has directly or indirectly, by himself, or his partner any, share or interest in any transaction of loan of money advanced to, or borrowed from, any officer or servant of the Council. (k) has more than two children; Provided that a person having more than two children on the date of commencement of the Maharashtra Municipal Corporations and Municipal Councils, Nagar Panchayats and Industrial Townships (second Amendment) Act, 1995 (hereinafter in this clause referred to as “the date of such commencement”) shall not be disqualified under this clause so long as the number of children he had on the date of such commencement does not increase; Provided further that a child or more than one child born in a Single delivery within the period of one year from the date of such commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause. Explanation : ***** (l) is a member of the State Legislature or of Parliament; Provided that nothing in this Clause shall affect the membership of a sitting Councillor till the expiry of his current term of office as such Councillor; Provided further that any action, taken by such councillor during the period from the 7th October 2001 till the 20th October 2001, being the date of publication of the Maharashtra Municipal Corporation and Municipal Councils (Amendment) Ordinance, 2001, shall be deemed to have been validly taken and shall not be challenged in any court of law only on the ground that during the said period he had incurred disqualification under this clause.” 13.The comparative reading of section 16 and section 44 of the Municipal Councils Act would make it manifestly clear that they operate in distinct fields. It is conspicuous that section 44 deals with disqualification of Councillor who is already elected and holding the office, during midst of the term of office. If he is found to have incurred disqualification during the period of holding the office, then he can be regarded as disqualified to continue as Member for the remainder of the term. In the present case, the petitioner could be regarded as disqualified to hold the office as a Councillor for further term which had remained after 11th October, 2006. It is undisputed that the subsequent elections were declared in the month of October, 2007 and the results were declared on 27th November, 2007. The effect of disqualification under section 44 could not be continued for the next term. The expression “he shall be disabled subject to the provisions of subsection (3) from continuing to be a Councillor and his office shall become vacant” as used in section 44 (1) would mean that the Councillor would be discontinued to remain as such. The disqualification under section 16 does imply ineligibility to become a Councillor either by election or nomination. In my humble opinion, disqualification to contest the election is one thing and the disqualification to continue as elected Councillor for remaining term of the office is another thing. Mr. Salunke invited my attention to section 40 and section 41 of the Municipal Councils Act. The term of office of the Councillor, no doubt, would be coterminus with the duration of the Council. Mr. Salunke invited my attention to section 40 and section 41 of the Municipal Councils Act. The term of office of the Councillor, no doubt, would be coterminus with the duration of the Council. However, a disqualified Councillor, against whom order under section 44 is rendered, cannot continue to remain in the office and his office immediately shall become vacant as specifically provided vide section 44 (1). In this view of the matter, deeming effect is given to the end of term of the office of such disqualified Councillor. Needless to say, the petitioner’s term could be deemed to have come to an end on 11October, 2006 when the District Collector declared him disqualified from holding the office as Councillor. The election only for ward No. 17 could be ordered thereafter. It appears, however, that general elections were declared lateron in the month of October, 2007 and simultaneously, the election of ward No. 17 was also to be held. 14. The period of disqualification under section 44 (1) (e) cannot be extended beyond the remaining term of the office as a Councillor. In “Smt. Sayali Sanjay Malwankar v. Chief Officer and others” 2004 (2) ALL M R 346, a Single Bench of this Court held that the disqualification under section 44 (1) (e) of the Municipal Councils Act is operative for remaining term. It was held that disqualification ordered by the Collector for five years was illegal. This Court held that in the absence of a statutory power, the Collector could not have disqualified the petitioner, in that case, for a further period of five years. The petitioner – Smt. Sayali was disqualified for period of five years w.e.f. the date of the Collector’s order on account of disqualification under section 44 (1) (e). This Court held that the disqualification of such a Councillor could be only to the extent of the remaining term and not in future. The Court observed that whether petitioner Smt. Sayali can lawfully contest an election in future, so long as the unauthorized construction continues to exist, was not required to be decided in the said proceedings. 15. In the fact situation of the present case, had the petitioner continued to maintain the unauthorized construction, probably his disqualification to contest the election could be the question for determination. 15. In the fact situation of the present case, had the petitioner continued to maintain the unauthorized construction, probably his disqualification to contest the election could be the question for determination. It need not be reiterated that the petitioner was acquitted of the criminal charge for alleged illegal construction/encroachment. He was also held not a disqualified Councillor by the appellate authority. Under these circumstances, he could not be regarded as ineligible to contest the election for the next term i.e. commencing after the first meeting of the Municipal Council which could be scheduled after 27th November, 2007. For, if it is held that he was disqualified for the next term of five (5) years too, then it would amount to the disqualification under section 44 (1) (e) of the Municipal Councils Act for a period beyond the term of earlier office which could be deemed as vacated by him after 11th October, 2006 for the remainder period ending by November, 2007. In the absence of any such specific power available to the Collector, the period of such disqualification cannot be extended beyond the earlier term of the office and, therefore, it will have to be said that the petitioner could not be regarded as ineligible to contest the election of the Municipal Council at the relevant time for the next term. As stated before, even otherwise due to declamping of the disqualification ordered by the Collector, as a result of the appellate order, he was legally eligible to file the nomination form to contest the election of Municipal Council at the relevant time. This kind of retrospective removal of disqualification ought to have been duly appreciated by the trial Court when the appellate order was placed on record. For all these reasons, it will have to be said that the learned Adhoc District Judge committed patent error while holding that the petitioner incurred stigma and was disqualified from contesting the election. 16. The next ground for setting aside the election was that the affidavit filed by the petitioner alongwith the nomination form was defective for two (2) reasons. First, one of the paper of the affidavit in the form was kept blank. Secondly, the affidavit did not bear adhesive stamps as contemplated under the Bombay Stamp Act, 1958, required for a valid notarial document. First, one of the paper of the affidavit in the form was kept blank. Secondly, the affidavit did not bear adhesive stamps as contemplated under the Bombay Stamp Act, 1958, required for a valid notarial document. The respondent No. 2 raised these two grounds in the Election Petition, claiming that the nomination form ought to have been rejected at the time of scrutiny itself. It may be noticed that no such objection was raised at the time of the scrutiny of the nomination papers. Clinching question is whether the defects shown to have occurred in the affidavit which was accompanying the nomination paper rendered nomination of the petitioner as invalid. 17. Mr. Deshmukh R.S., for the petitioner relied on the judgment in the matter of Umesh Challiyil vs. K.P. Rajendran reported in A.I.R. 2008 S.C. 1577 wherein the Apex Court held that the defects should be those which go to the root of the matter. If defects can be cured then the petition cannot be rejected on that ground. He mainly relied on Head NoteC of this judgment, which read as under. "(C) Representation of the Peoples Act (43 of 1951). Ss. 86, 83 Election petition Summary dismissal of defective petition Defects should be those which go to roof of matter Defect in complying with S. 83 Petition cannot be rejected under S. 86." 18.Mr. Deshmukh also relied on certain observations in “Tek Chand vs. Dile Ram reported in 2001 A.I.R. SCW 540”. In this case, the Apex Court held that mere allegation of wrong acceptance of nomination is not a sufficient reason to set aside the election. It should be established that such wrong acceptance has materially affected result of election of returned candidate. Mr. Deshmukh mainly relied on Para 14 and 28 of the said judgment, which read as under. "14. In an election petition where an election of a returned candidate is impeached under section 100(1)(d)(i) of the RPA, it is not enough only to establish that a nomination of a candidate was improperly accepted. In addition, it has to be further established that such wrong acceptance of nomination paper has materially affected the result of the election in so far it concerned the returned candidate. In this view, in this case, having regard to facts and contentions, we think it is appropriate to take up the second point set forth above for consideration first. 28. In this view, in this case, having regard to facts and contentions, we think it is appropriate to take up the second point set forth above for consideration first. 28. Thus viewed from any angle and even assuming that nomination paper of Nikka Ram was improperly accepted we hold that the election of the appellant the returned candidate in so far it concerned him had not been materially affected. The point No. 2 is answered accordingly." 19. Mr. Deshmukh would submit that though the Adhoc District Judge, Nanded called original papers from the Returning Officer, Court failed to consider the affidavit filed by the petitioner alongwith nomination form and material disclosed by him. He submitted that the learned Adhoc District Judge failed to consider that the affidavit filed by the petitioner was scribed on the non judicial stamp of Rs.100/and, therefore, the petitioner annexed blank form with his affidavit. He further submitted that the learned Adhoc District Judge failed to consider the stay granted by the competent authority on 08112006 to the order dated 11102006 passed by the Collector, Nanded. Mr. Deshmukh further submitted that it is well settled principle of law that because of formal defects, person's fundamental right should not be affected. 20. On the other hand, Mr. Salunke V.D. learned counsel appearing on behalf of respondent No. 2, would submit that the judgment dated 01082009 passed by the learned Adhoc District Judge2 is according to law. He would submit that in the Election Petition, respondent No. 2 specifically stated that the petitioner filed his affidavit alongwith nomination form with blank printed form and same was not validly sworn in before the Notary because Notary stamp which is necessary for compliance and completion of verification was not affixed thereon. In support of his contentions, Mr. Salunke relied on the following Sections of Bombay Stamp Act, 1958 which are reproduced hereunder. "2(h)"duly stamped" as applied to an instrument means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in the State." "13. Instruments stamped with impressed stamps how to be written. "2(h)"duly stamped" as applied to an instrument means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in the State." "13. Instruments stamped with impressed stamps how to be written. Every instrument for which sheet of paper stamped with impressed stamp is used shall be written in such manner that the writing may appear on the face and, if required, on the reverse of such sheet so that it cannot be used for or applied to any other instrument. Explanation.I Where two or more sheets of papers stamped with impressed stamps are used to make up the amount of duty chargeable in respect of any instrument, either a portion of such instrument shall be written on each sheet so used, or the sheet on which no such portion is written shall be signed by the executant or one of the executants, with an endorsement indicating that the additional sheet is attached to the sheet on which the instrument is written. Explanation.II Where the sheet or sheets bearing impressed stamps is or are insufficient to admit of the entire instrument being written thereon, so much plain paper may be subjoined thereto as may be necessary for completing the writing of such instrument, provided a substantial part of the instrument is written on the sheet which bears the stamp before any part is written on the plan paper so subjoined; and such plain paper may or may not be signed by the executant but where it is not so signed it shall not render the instrument not duly stamped." "Article42. Stamps to be used Adhesive Stamp paper under Section 11 read with Rule 6. NOTARIAL ACT, that is to say, any instrument, endorsement, note, attestation, certificate or entry not being a Protest (Article 49) executed by a Notary Public in the performance of the duties of his office, or by any other person lawfully acting as a ( 28 ) Notary Public." 21. Mr. Salunke contended that as per Bombay Stamp Act, 1958, affidavit should bear an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time in force in the State. Mr. Salunke contended that as per Bombay Stamp Act, 1958, affidavit should bear an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time in force in the State. He submitted that in the present case, it is crystal clear from the record that the affidavit filed by the petitioner was without any stamp and therefore, same cannot be considered according to law. 22. Mr. Salunke further contended that State Election Commission, Maharashtra issued order dated 03072002 explaining the procedure for filing nomination forms. He mainly relied on Para 8 (1,2,3 and 4), which read as under. "8. Now, therefore, in exercise of the powers conferred by Article 243K and 243ZA of the Constitution of India read with subsection (4) of section 9A of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1962 (Mah. V of 1962), subsection (4) of section 10A of the Bombay Village Panchayats Act, 1958 (Bom III of 1959) subsection (4) of section 18A of the Mumbai Municipal Corporation Act (Bom III of 1888), subsection (4) of section 14 of the Bombay Provincial Municipal Corporations Act, 1949 (Bom LIX of 1949, subsection (4) of section 9B of the City of Nagpur Corporation Act, 1948 (C.P. Berar II of 1950), subsection (4) of section 10A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 and of all other powers enabling it in this behalf, the State Election Commission, Maharashtra, hereby directs as follows: 1) Every candidate at the time of filing his nomination paper for any election or bye-election for electing a Member or Members of any Panchayat or Municipality, shall furnish full and complete information in regard to all the five matters, in affidavit in the format annexed hereto as Annexure-I to this Order: Provided that having regard to the difficulties in swearing an affidavit in a village, a contesting candidate at the election to a Village Panchayat under the Bombay Village Pachayats Act, 1959 shall, instead of filing an Affidavit, file before the Returning Officer a declaration in the format annexed hereto as Annexure-II to this Order. 2) The said affidavit by each candidate shall be duly sworn before a Magistrate of the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State or before an officer competent for swearing an affidavit which includes Sub-Divisional (Class I) and Tahasildar (Class I). 3) Non furnishing of the affidavit or declaration as the case may be by any candidate shall be considered to be violation of this order and the nomination of the candidate concerned shall be liable to rejection by the returning officer at the time of scrutiny of nomination for each non-furnishing of the affidavit. 4) Furnishing of any wrong or incomplete information of suppression of any material information by any candidate in or from the said affidavit or declaration on as the case may be, may also result in the rejection of his nomination paper where such wrong or incomplete information or suppression of material information is considered by the returning officer to be a defect of substantial character, apart from inviting penal consequences under the Indian Penal Code for furnishing wrong information to a public servant or suppression of material facts before him. Provided that only such information shall be considered to be wrong or incomplete or amounting to suppression of material information as is capable of easy verification by the returning officer by reference to documentary proof adduced before him in the summary inquiry conducted by him at the time of scrutiny of nominations and the information so verified shall be taken into account by him for further consideration of the question whether the same is a defect of a substantial character." 23. On careful consideration of the rival submissions and also on close reading of copy of the affidavit (Exh-G) placed on record, it is amply clear that the learned Adhoc District Judge committed patent error while holding that the affidavit is incomplete because one of the printed page of the format i.e. Annexure-I was kept blank. It appears that the AnnexureI of the form of affidavit was printed on the stamp paper of Rs. 100/and, therefore, the same Annexure-I which was also in another form was not filled up. It is not at all a case wherein the Annexure-I was not filled up by the petitioner. He had given the necessary information as provided in Annexure-I in the affidavit. 100/and, therefore, the same Annexure-I which was also in another form was not filled up. It is not at all a case wherein the Annexure-I was not filled up by the petitioner. He had given the necessary information as provided in Annexure-I in the affidavit. Since the information was given in printed form below the stamp paper of Rs. 100/-, yet, another form of Annexure-I, which was alongwith the affidavit, was not filled up by him. That would have been only repetition of the same information which was already filled up in Annexure-I below the stamp paper of Rs. 100/. Obviously, there is no basis to infer that the affidavit filed in form Annexure-I was incomplete and, therefore, the nomination could be regarded as invalid. In fact, it appears that the affidavit filed by the petitioner was in the required formats alongwith the relevant Annexures. The affidavit was in keeping with the Annexures as provided for in terms of the order dated 3rd July, 2002, issued by the State Election Commission, Maharashtra (ExhR1). There appears factual inaccuracy committed by the Adhoc District Judge while holding that the nomination form was not complete due to non-filling of page No. 57 and, therefore, it was incomplete affidavit. The petitioner was not required to repeat the exercise of filling up the Annexure-I when he had already filled up the information on earlier page below the non-judicial stamp of Rs. 100/-. The inference drawn by the learned Adhoc District Judge is rather strange and so also the argument advanced by the learned counsel for the respondent No. 2 is rather farfetched. 24. Now, it remains to be seen whether the defect in the affidavit due to non-affixing of adhesive stamps at the place of verification by the Notary Public could be of substantial nature, so much so that the nomination paper itself could be vitiated on such ground. It is true that the provision of the section 2 (h) read with section 11 (b) and Schedule-I Article 42 of the Bombay Stamp Act, 1958 would show that the notarized document ought to be affixed with adhesive stamps of Rs. 25/. It is true that such adhesive stamps were not affixed to the affidavit where the Notary Public endorsed the verification with the signature and stamp of the Notary Public. 25/. It is true that such adhesive stamps were not affixed to the affidavit where the Notary Public endorsed the verification with the signature and stamp of the Notary Public. The defect, it is argued, would render such affidavit inadmissible and it would be simply a waste paper. 25. The observations of learned Single Judge in “Kashi Prasad Saksena vs. State Government of U.P. Lucknow” (supra), with due respect, can be used only to the extent of saying that the endorsement by the Notary Public on affidavit falls within provision of Article 42 of the Bombay Stamp Act and requires Notarial stamp. Still, however, it is too much to say that it becomes waste paper due to such technical flaw. Reliance on observations in “M/s. Canwood Agencies Pvt. Ltd. vs. Namdeo Pandurang Panchal and another” (supra), also is misplaced. The instrument which is compulsorily required to be registered, may not be used to prove origin or extinguishment of the right to an immovable property. The affidavit does not create any right as such. It is argued that such affidavit, which does not bear adhesive stamps, cannot be read in evidence. In fact, the expression “affidavit” falls outside the definition of the word “evidence” and, therefore, there is no question of reading the same in evidence. The word “evidence” as used in section 3 of the Evidence Act does not include the expression “affidavit”. In “Sudha Devi vs. M.P. Narayanan” ( AIR 1988 S.C. 1381 ), the Apex Court held that affidavits are no evidence under the Evidence Act. They can be used as evidence only if the Court passes an order for sufficient reasons for proving a fact by affidavit. 26. So also, in “Umesh Challiyil v. K.P. Rajendran” ( AIR 2008 S.C. 1577 ), the Apex Court held that minor defect in the affidavit filed in support of allegation of corrupt practice could not be fatal to the petition. The minor defect in the affirmation, it was held, did not go to the root of the matter so as to render the entire election petition not properly constituted entailing the dismissal of the same. In fact, the minor defect in swearing of the affidavit could not vitiate the nomination paper itself. The minor defect in the affirmation, it was held, did not go to the root of the matter so as to render the entire election petition not properly constituted entailing the dismissal of the same. In fact, the minor defect in swearing of the affidavit could not vitiate the nomination paper itself. It is too technical approach to say that the non-affixing of the adhesive stamps at the place of verification by the Notary Public was substantial defect and, therefore, nomination of the petitioner was liable to be rejected. 27. In “Tek Chand vs. Dile Ram” 2001 A.I.R. SCW 540, the Apex Court held that mere allegation of wrong acceptance of nomination paper would not be sufficient to declare the election as null and void. It is held that such wrong acceptance of the nomination paper must be proved to have materially affected result of the election of returned candidate. The minor technical defect alleged by the respondent No. 2 had nothing to do with the result of the petitioner’s election. I mean to say, the so called defect could not have caused any change in the voting pattern and the petitioner was not likely to gain more votes due to such defect in the verification of the said affidavit. Needless to say, the respondent No. 2 attempted to make out a mountain out of the molehill. The minor defect in the affidavit regarding non-affixing of the adhesive stamps could not be blown out of proportion so as to nullify the election of the petitioner. The reliance on observations in “Regu Mahesh alias Regu Maheshwar Rao vs. Rajendra Pratap Bhanj Dev & another” 2004 (5) ALL MR (S.C.) 332 is also misplaced. The counsel for the respondent No. 2 submits that though opportunity was available, yet, the petitioner exhibited casual approach and did not remove the defect and hence, the affidavit filed alongwith the nomination paper was illegal and could nullify the eligibility of the petitioner to contest the election on basis of such invalid nomination. The authority referred above deals with verification of the pleadings in the Election Petition. The verification of pleadings of Election Petition is quite different thing than proper verification of the affidavit accompanying a nomination paper. The authority referred above deals with verification of the pleadings in the Election Petition. The verification of pleadings of Election Petition is quite different thing than proper verification of the affidavit accompanying a nomination paper. Moreover, verification of pleadings in a particular form as contemplated under the provisions of the Representation of the Peoples Act, 1950 may affect maintainability of the Election Petition due to specific provision which requires presentation of the Election Petition under section 80 (Chapter-II Part-VI) of the Representation of the Peoples Act, 1950. The technical defect in the affidavit could not have been cured after the election was over. Nor it did materially affect the election results. 28. The cumulative effect of the foregoing discussion is that the petitioner’s nomination could not be invalidated on account of the so called minor defects pointed out by the respondent No. 2. The learned Adhoc District Judge committed patent error while holding that nomination of the petitioner was null and void. The approach of the learned Adhoc District Judge appears to be hyper technical and against the spirit of the guidelines issued by the Election Commission for the purpose of obtaining a bonafide affidavit from the candidates for election. 29. The last question which remains to be determined is whether the respondent No.2 could be declared as an elected candidate. Mr. Salunke V.D. submits that in view of specific provision as contemplated under section 21 (10), the respondent No. 2 could be declared as duly elected candidate when the election of the petitioner was liable to be quashed. He contended that since the respondent No. 2 had secured the second highest votes, he could be declared as elected candidate in view of section 21 (10) (a). Section 21 (10) reads as follows : “21. Disputes in respect of election nomination of Councillors. He contended that since the respondent No. 2 had secured the second highest votes, he could be declared as elected candidate in view of section 21 (10) (a). Section 21 (10) reads as follows : “21. Disputes in respect of election nomination of Councillors. (1)***** (2)***** (3)***** (4)***** (5)***** (6)***** (7)***** (8)***** (9)***** (10) If the petitioner 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 Judge is satisfied that (a) the petitioner or such other candidate received sufficient number of valid votes to have been elected; or (b) but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a sufficient number of valid votes to have been elected; the Judge may, after declaring the election of the returned candidate void, declare the petitioner or such other candidate to have been duly elected; Provided that (i) for the purpose of such computation, no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person known or unknown in giving or obtaining it; (ii) after such computation, if any equality of vote is found to exist between any candidates and the addition of one vote would entitle any of the candidates to be declared elected, one additional vote shall be added to the total number of valid votes found to have been recorded in favour of the candidate, or candidates, as the case may be, selected by lot drawn in the presence of the Judge in such manner as he may determine.” 30. It is difficult to countenance the contentions of Mr. Salunke V.D. in the context of interpretation of section 21 (10). The comprehensive reading of section 21 (10) would make it manifestly clear that such declaration that any other candidate has been duly elected can be granted only when it is found that as a result of recrimination/recounting, such other candidate had received sufficient number of valid votes which could be enough to declare him elected, or the elected candidate had received votes obtained by corrupt practice which could be eliminated and, therefore, such other candidate could be said to have received sufficient number of valid votes to declare him as elected one. Neither of such contingency existed in the present case. 31. The learned Adhoc District Judge2 did not ascribe any tangible reason as to why the respondent No. 2 was liable to be declared as an elected candidate. He simply noticed that the respondent No. 2 had secured second highest votes. This is the only reason as to why the respondent No. 2 was declared as elected candidate as a fallout of the declaration that election of the petitioner was null and void. This approach of the learned Adhoc District Judge2 is improper and against the settled principles of law. The petitioner and the respondent No. 2 were not the only candidates in the fray. The factual position of votes secured by the candidates was as follows : Sr. No. Name of the candidate Votes secured 1 Alne Arun Laxmanrao (Respdt.2) 415 2 Kadam Ashatai Udhavrao 48 3 Donpeliwar Laxmipati Bapurao (Petnr.) 354 4 Patil Ashok Gomaji 10 5 Maske Suresh Dattatraya 02 6 Sunkalwad Maroti Kanba 10 32. A Division Bench of this Court in “Anandrao Tohluji Bagade v. Namdeorao Lalwanji Sontakkey and others” (1978 Mh.L.J. 371), had an occasion to consider scope of section 21 (10) of the Maharashtra Municipalities Act, 1965. It is observed that where there are more than two (2) candidates, the votes secured by the disqualified candidates cannot be treated as thrown away and question of notice to voters may assume significance. For, the voters may not, if aware of disqualification, have voted for the returned candidate. In “Kadam Rupsing Bhivji v. Returning Officer Municipal Council, Ahmednagar and others” 1998 (3) Mh.L.J. 293 , a Single Bench of this Court held that where there were large number of candidates, it was immaterial to consider as to which defeated candidate had pulled what number of votes. The learned Single Judge held that the order declaring the respondent No. 2 as elected, was not legally sustainable because it was difficult to anticipate as to who could have secured more votes, had the votes received by the elected candidate been distributed amongst them due to the further choices available to the voters. Mr. Salunke v.D. would submit that the view taken by the learned Single Judge in above referred case requires reconsideration and is not in keeping with purport of subsection (10) of section 21 of the Municipal Councils Act. I do not agree. Mr. Salunke v.D. would submit that the view taken by the learned Single Judge in above referred case requires reconsideration and is not in keeping with purport of subsection (10) of section 21 of the Municipal Councils Act. I do not agree. The trial Court is not supposed to speculate the pattern of votes in respect of the votes which were gained by the elected candidate if by deductive method, the only other candidate in the fray cannot be said to have received sufficiently large votes to declare him as elected one. For example, if “A” is the elected candidate whose election is set aside and only “B” is the another candidate in the fray and that after all the invalid votes received by “A” if are counted and deducted from the number of votes received by him, it is found that “B” had secured highest votes, then “B” may be declared as elected candidate as a result of such process. The provision of section 21 (10) is not intended to fill up the Councillor’s post by declaring unsuccessful candidate as elected one, in the ordinary course, though he did not receive required number of votes. In a democratic setup, one who could not gain sufficient confidence of the voters cannot be declared as an elected candidate. Hence, the learned Adhoc District Judge2 committed patent error while declaring the respondent No. 2 as the elected candidate. 33. Taking stock of the foregoing reasons, it is explicit that the petitioner could not be disqualified as a candidate for the Municipal Election. Nor his nomination suffered from any substantial defect due to the non-affixing of proper adhesive stamps at the place of verification by the Notary Public or keeping the same Annexure-I blank though one of said Annexure-I was filled up by him. It follows that the election of the petitioner could not be set aside. Nor the respondent No. 2 could be declared as an elected candidate. 34. In the result, the petition is allowed. The impugned judgment and order is set aside. Rule made absolute accordingly. No costs.