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Karnataka High Court · body

2015 DIGILAW 645 (KAR)

BAZIL D’SOUZA v. ANIL KUMAR

2015-06-19

B.S.PATIL

body2015
Judgment : 1. M.F.A.No.3888/2014 arises out of the order dated 25.04.2014 passed by the I Additional Senior Civil Judge, Mangalore. The court below has allowed the Election Petition filed by the 1st respondent herein under Section 21 of the Karnataka Municipalities Act, 1964 (for short, ‘the Act’) read with Rule 69 of the Karnataka Municipalities (Election of Councilors) Rules, 1977 (for short, ‘the Rules’) and has declared the election petitioner as duly elected Councilor of Ward No.24 of Ullal constituency, Mangalore Taluk. 2. In M.F.A.No.3889/2014, appellant challenges a similar order dated 25.04.2014 passed by the I Additional Senior Civil Judge, Mangalore, declaring the action of the Returning Officer in passing the order dated 25.02.2013 accepting the nomination of the appellant as void and for a further declaration that the election petitioner – respondent herein was duly elected as Councilor of Ward No.26 of Ullala Constituency of Mangalore Taluk. 3. Facts leading to these appeals and the legal questions raised are similar. Indeed, as common arguments are advanced in both the cases and common questions have been raised in these two cases, these appeals are clubbed, heard together and are disposed of by this common judgment. 4. For the sake of convenience, facts involved in M.F.A.No.3888/2014 are taken up for consideration. Election to Ullala Constituency of Mangalore Taluk were scheduled to be held as per calendar of events published. Appellant herein filed his nomination for Ward No.24 from General Category, so also respondents 1 to 5 filed their nominations. Every candidate intending to file nomination paper was required to file his nomination in Form No.2 as prescribed under Rule 15 of the Rules. The candidates were also required to file affidavit in accordance with the Guidelines issued by the Government vide Government Order dated 14.07.2003. One of the information required to be revealed was regarding the involvement of the candidate, in any criminal activities. It may be usefully stated here that in M.F.A.No.3889/2014, the returned candidate got 546 votes, the election petitioner/1st respondent secured 418 votes and the 2nd respondent secured 11 votes, out of the total of 975 votes cast. 5. Appellants herein did not mention anything with regard to the particulars regarding their involvement in any criminal case in the past. Indeed, they had stated in the relevant column pertaining to the details regarding criminal case registered against them as ‘nil’. 5. Appellants herein did not mention anything with regard to the particulars regarding their involvement in any criminal case in the past. Indeed, they had stated in the relevant column pertaining to the details regarding criminal case registered against them as ‘nil’. In fact, appellant in M.F.A.No.3888/2014 was charge sheeted for certain offences and underwent trial in C.C.No.3005/2008 before the JMFC (III Court), Mangalore, for offences under Section 171(H) Indian Penal Code and 133 of the Representation of the People Act, 1950. Though he was acquitted of the offences, the fact remains that he was prosecuted for having been involved in the alleged commission of the criminal offence. Similar was the case with the appellant in the connected appeal, although he was charge sheeted for different offences. 6. The election petitioners filed objections enclosing the copies of the judgments in criminal cases and requested for rejection of the nomination of the appellants. The Election Officer passed an order on 25.02.2013 initially rejecting the nomination of the appellants but, subsequently, he accepted the nominations making an observation that the same could be challenged before the Court of law and therefore, there was no impediment for permitting the appellants to contest the election. 7. Eventually election was held. Appellants herein were declared as having been duly elected as Councilors. Appellant in MFA 3888/2014 secured 485 votes vide order dated 25.02.2013. Totally 901 votes had been cast, out of which the returned candidate/appellant herein secured 485 votes. The 1st respondent – election petitioner secured 289 votes, the 2nd respondent secured 17 votes, the 3rd respondent secured 135 5th votes, the 4th respondent secured 18 votes and the respondent secured 8 votes. 8. Aggrieved by the order dated 25.02.2013, the election petitioner filed election petition seeking a declaration as stated above. He also sought for a declaration that he had been duly elected having secured highest number of valid votes after the appellant. 9. Petition was resisted by the appellant contending inter alia that the petition itself was not maintainable and that he had not suppressed any material fact while filing his nomination. He urged that as the criminal case instituted against him had ended in acquittal, non-mentioning of the said fact in the nomination paper would not amount to deliberate suppression of material fact. He urged that as the criminal case instituted against him had ended in acquittal, non-mentioning of the said fact in the nomination paper would not amount to deliberate suppression of material fact. It was also contended by the appellant that 1st respondent – election petitioner had not deposited Rs.100/as per Rule 69 of the Rules while filing the election petition and deposit made beyond the period of limitation would not cure the defect. He also urged that if the nomination of the returned candidate had been rejected at the time of scrutiny, the voters would have voted to some other candidate and not necessarily to the election petitioner, therefore, the prayer for declaration that election petitioner was duly elected could not be granted. 10. Based on the above pleadings, the Court below framed the following issues: 1) Whether the petitioner proves that, the respondent No.1 has filed the nomination paper with affidavit and declaration against the provisions of Law, by suppressing the criminal cases against him, for the election to the Councilor for Ward No.24 of Ullala Constituency, Mangalore? 2) Whether the petitioner proves that the order dated 25.02.2013 passed by the Election/Returning Officer i.e. respondent No.6, is opposed to law and void? 3) Whether the 1st respondent proves that there is no substantial or material defect in filing of the nomination paper and affidavit? 4) Whether the petitioner proves that he is entitled to be elected as the Councilor for Ward No.24 of Ullala Constituency of Mangalore Taluk? 5) To what order or relief? 11. In support of his case, the election petitioner examined himself as P.W.1. He produced and marked Exs.P1 to P10. Whereas, respondent No.1 got himself examined as R.W.1. No documents were marked on his behalf. 12. The Election Tribunal after considering the evidence on record has held that the nomination filed by the appellant along with affidavit and declaration was not in accordance with the provisions of law and that there was suppression regarding criminal case instituted against him. It further found that the election petitioner had proved that the order dated 25.02.2013 passed by the Returning Officer accepting the nomination filed by the appellant was illegal and void. The Election Tribunal has also found that belated deposit made of Rs.100/- did not render the petition not maintainable warranting its rejection because the said defect could be and had been cured. 13. The Election Tribunal has also found that belated deposit made of Rs.100/- did not render the petition not maintainable warranting its rejection because the said defect could be and had been cured. 13. Insofar as the prayer to declare the election petitioner as duly elected to Ward No.24 of Ullala Constituency, the Court below has held that election petitioner was entitled for the said relief and declared him as duly elected as Councilor for Ward No.24 of Ullala Constituency. Aggrieved by this order, the present appeal is filed. 14. I have heard the learned counsel for both parties and perused the entire materials on record. 15. The main contentions urged by Sri S. Rajashekar, learned counsel for the appellant are : i) Nondisclosure of the criminal case instituted against the appellant which eventually resulted in his acquittal did not, in any manner, affect the result of the election and therefore, in the light of the judgments of the Apex Court in the case of PAOKAI HAOKIP Vs. RISHANG AND OTHERS AIR 1969 SC 663 , SARNAM SINGH Vs. PUSHPA DEVI AND OTHERS 1988 (Supp) SCC 65 and BALRAM SINGH YADAV Vs ABHAY KUMAR SINGH AIR 1966 SC 824 , the order passed setting aside the election of the appellant on that ground is wholly erroneous. ii) As the election petition had not been presented by complying with the provision under Section 21 of the Act and Rule 69 of the Rules, the Court below ought to have dismissed the petition. iii) That the Court below has misconstrued the provisions contained in Section 23 of the Act, particularly because the Returning Officer had duly verified the nomination paper submitted by the appellant and the copy of the judgment produced before him showing that the appellant had been acquitted in the criminal case. iv) The order declaring the election petitioner as duly elected is illegal. He has placed reliance on the decisions of the Apex Court in the case of VISHWANATHA REDDY Vs. KONAPPA RUDRAPPA NADGOUDA AND ANOTHER AIR 1969 SC 604 ; T.S.PATIL Vs. THE JOINT REGISTRAR OF COOPERATIVE SOCIETIES & OTHERS ILR 2007 KAR 491; and SMT.K.K.BANU Vs. SMT.R.BHAGIRATHY AND ANOTHER ILR 2009 KAR 3429. Reliance is also placed by him on the judgments in the case of CHARAN LAL SAHU Vs. NANDKISHORE BHATT & OTHERS AIR 1973 SC 2464 and VATAL NAGARAJ Vs. THE JOINT REGISTRAR OF COOPERATIVE SOCIETIES & OTHERS ILR 2007 KAR 491; and SMT.K.K.BANU Vs. SMT.R.BHAGIRATHY AND ANOTHER ILR 2009 KAR 3429. Reliance is also placed by him on the judgments in the case of CHARAN LAL SAHU Vs. NANDKISHORE BHATT & OTHERS AIR 1973 SC 2464 and VATAL NAGARAJ Vs. R.DAYANAND SAGAR AIR 1975 SC 349 . 16. Sri G. Balakrishna Shastry, learned Counsel for the 1st respondent strongly supports the order passed and the findings recorded by the Court below. He has placed reliance on the judgment of the Apex Court in the case of KISAN SHANKAR KATHORE Vs. ARUN DATTATRAY SAWANT AND OTHERS 2014 AIR SCW 2889 to emphasize the fact that right to know the antecedents including the criminal past of a candidate is much more a fundamental and basic right for the survival of democracy and therefore, if the required information as per the format fixed is not given, it would amount to suppression and nondisclosure necessarily entails rejection of the nomination. 17. He submits that the notification dated 14.7.2003 requiring the candidates to file an affidavit along with the nomination paper disclosing certain details including the previous criminal cases was issued by the Government because of the law laid down by the Apex Court, whereby it was made mandatory and compulsory for the Returning Officers to ensure that affidavits filed by the candidates were complete in all respects and any suppression would result in rejection of the nomination papers. Reliance is placed on the judgment in this regard in the case of RESURGENCE INDIA Vs. ELECTION COMMISSION OF INDIA – (2014) 14 SCC 189 . He has also placed reliance on the judgment of the Apex Court in the case of SARNAM SINGH Vs. PUSHPA DEVI AND OTHERS 1988 SUPPLEMENT SCC 65 to contend that if the nomination paper of the returned candidate was improperly accepted, the court shall declare the election of the returned candidate as void. Reliance was placed on the judgment of the Apex Court in the case of VATAL NAGARAJ Vs. R.DAYANAND SAGAR AIR 1975 SC 349 to contend that after deducting void or invalid votes if the election petitioner had obtained majority of votes then he has to be declared as returned candidate. Reliance was placed on the judgment of the Apex Court in the case of VATAL NAGARAJ Vs. R.DAYANAND SAGAR AIR 1975 SC 349 to contend that after deducting void or invalid votes if the election petitioner had obtained majority of votes then he has to be declared as returned candidate. It is urged by him that in the case on hand the votes secured by the returned candidate are wasted votes because his nomination itself entailed rejection; therefore, as the election petitioner had secured majority of other valid votes, the order of the court below declaring him as duly elected was just and proper. He invites the attention of the Court to Section 25 (2) of the Act to urge that a provision has been made for declaring other candidate as duly elected in such a situation. Reliance is also placed by him on the judgment of the Apex Court in the case of CHHEDI RAM Vs. JHILMIT RAM AND OTHERS (1984) 2 SCC 281 . 18. Insofar as non-deposit of Rs. 100/- while filing the election petition Sri Shastry has placed reliance on the judgment of the Apex Court in the case of RAJESAB Vs. THE KARNATAKA STATE BY ITS DEPUTY COMMISSIONER & OTHERS ILR 2005 KAR 4257 to contend that Rule 69 of the Rules has been held to be directory in nature. 19. Having heard the learned counsel for the parties, the points that arise for consideration in this appeal are: i) Whether the election petition filed was liable to be dismissed as not maintainable for non-deposit of Rs.100/while filing the petition? ii) Whether nondisclosure of criminal cases in which the returned candidate appellant herein was involved ought to have entailed rejection of his nomination consequently resulting in annulling his election.? iii) Whether the election petitioner could have been declared as having been duly elected, in the facts and circumstances of the case? POINT NO.1 20. As per Rule 69 of the Rules, every election petition shall be accompanied by a Government Treasury receipt showing that a deposit of one hundred rupees has been made by the petitioner either in the Reserve Bank of India or in a Government Treasury or in any branch of State Bank of India in favour of the Deputy Commissioner. As per Rule 69 of the Rules, every election petition shall be accompanied by a Government Treasury receipt showing that a deposit of one hundred rupees has been made by the petitioner either in the Reserve Bank of India or in a Government Treasury or in any branch of State Bank of India in favour of the Deputy Commissioner. As per the findings recorded by the Court below, an order had been passed by the Court on the date of presentation of the election petition directing issue of R.O. for deposit of the amount of Rs.100/- by the election petitioner. Pursuant whereof, he has deposited the sum of Rs.100/- on 28.03.2013. The Court has further held that no matter whether the deposit was made before the Court or in the name of the District Commissioner, the deposit made had to be regarded as due compliance of the Rule. 21. The provision contained in Rule 69 of the Rules do not spell out the consequence of non-deposit of the amount of Rs.100/, nor does it state that noncompliance of the provision entails rejection of the election petition. In such circumstance, the Court below was right in treating the irregularity, if any, in the deposit of the fee of Rs.100/as curable one. In the case of RAJESAB Vs. THE KARNATAKA STATE BY ITS DEPUTY COMMISSIONER & OTHERS ILR 2005 KAR 4257, while interpreting the effect of Rule 69, this Court has held that deposit to be made under Rule 69 is a requirement to deposit fee and not deposit of costs, therefore, any irregularity in depositing the said fee of Rs.100/- would not entail rejection of the election petition. 22. In the light of the language employed in Rule 69 and as the consequence of non compliance of the rule has not been spelt out to result in dismissal of the election petition, it has to be held that deposit of the amount is not mandatory and non deposit will not entail dismissal of the election petition. Accordingly, the first point deserves to be answered against the appellant. POINT NO.2 23. Section 23 of the Act deals with grounds for declaring elections to be void. Section 23(1)(d) of the Act lays down that if the Election Tribunal is of opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected. POINT NO.2 23. Section 23 of the Act deals with grounds for declaring elections to be void. Section 23(1)(d) of the Act lays down that if the Election Tribunal is of opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected. i) by the improper acceptance of any nomination; or ii) or by any corrupt practice committed in the interests of the returned candidate by an agent or by any other person acting with the consent of such candidate or agent; or iii) by the improper acceptance or refusal of any vote or reception of any vote which is void; or iv) by the noncompliance with the provisions of this Act or of any rules or orders made thereunder, the Election Tribunal shall declare the election of the returned candidate to be void. 24. The contention of the learned counsel for the appellant is that the result of the election of the returned candidate/appellant has not been shown to have been materially affected due to any of the circumstances mentioned in sub-clauses (i) to (iv) of Section 23(1)(d) of the Act and therefore, the Court below was in error in declaring the election of the appellant as void. 25. This contention is wholly misconceived inasmuch as in the instant case the finding of the election tribunal is that the very nomination submitted by the appellant/returned candidate could not have been accepted and that the improper acceptance of such nomination of the returned candidate is the reason for declaring his election as void. Therefore, there is no need to go searching for factors which had materially affected the result of the returned candidate by the improper acceptance of any other nomination. The arguments constructed by the appellant is misconceived. Once it is held that the nomination of the returned candidate himself was improperly accepted the inescapable conclusion would be that the result of the election had been materially affected entailing a declaration that it was void. 26. However, the important question that deserves to be addressed here is as regards the nature of omission on the part of the returned candidate/appellant in not submitting the nomination mentioning required details regarding his involvement in the criminal case in the past and its consequence. Fact that appellant was involved in a criminal case in the past is not in dispute. Fact that appellant was involved in a criminal case in the past is not in dispute. That, he has not mentioned the said fact nor has he shown the details of the criminal case is also not in dispute. He has indeed shown as ‘nil’ at the place where he was required to show these particulars. The contention urged by the counsel for the appellant is that this irregularity is not a substantial one so as to mandate rejection of his nomination. He takes me through the notification dated 14.07.2003 issued by the State Government, particularly, the operative portion of the same to contend that a distinction has been made regarding cases where no affidavit or declaration containing these particulars was submitted by the candidate which would entail rejection of the nomination and the cases where the candidate had submitted such declaration/affidavit, but failed to disclose full particulars and/or had omitted to disclose some of the particulars, in which event, only if the Returning Officer were to come to the conclusion that the omissions was significant, he had to reject the nominations and not otherwise. 27. On careful perusal of the notification, I do not find any substance in this contention. In clause 4 of the operative portion of the direction contained in the Government Order what has been stated is, in case of omission on the part of the candidate in submitting the nomination containing true and full particulars and where the Election Officer considers them as important omission, while rejecting the nomination, the Election Officer, may subject the defaulting candidate to the consequences of submitting false information in accordance with the provisions of Indian Penal Code. There is no discretion given to the Election Officer to condone the omissions or lapses committed by a candidate in submitting true and full particulars as required in law. It cannot be lost sight that the requirement of furnishing these informations, particularly with regard to the criminal antecedents of the candidate has been made mandatory by virtue of the decision rendered by the Apex Court. 28. It is useful to refer to the judgment of the Apex Court in the case of RESURGENCE INDIA Vs. ELECTION COMMISSION OF INDIA & ANOTHER AIR 2014 SC 344 wherein, after referring to the earlier decisions of the Apex Court in the case of UNION OF INDIA Vs. 28. It is useful to refer to the judgment of the Apex Court in the case of RESURGENCE INDIA Vs. ELECTION COMMISSION OF INDIA & ANOTHER AIR 2014 SC 344 wherein, after referring to the earlier decisions of the Apex Court in the case of UNION OF INDIA Vs. ASSOCIATION FOR DEMOCRACTIC REFORMS (2002) 5 SCC 294 and PEOPLE’S UNION FOR CIVIL LIBERTIES (PUCL) & ANOTHER Vs. UNION OF INDIA & ANOTHER (2003) 4 SCC 399, the Apex Court issued certain specific directions. In paragraph 27 of the judgment, the Apex Court has summarized the nature of the directions issued in the following terms: “27. What emerges from the above discussion can be summarized in the form of following directions: i) The voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament/Assemblies and such right to get information is universally recognized. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. ii) The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. The citizens are supposed to have the necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information. iii) Filing of affidavit with blank particulars will render the affidavit nugatory. iv) It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the ‘right to know’ of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced. v) We clarify to the extent that Para 73 of People’s Union for Civil Liberties case (supra) will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars. vi) The candidate must take the minimum effort to explicitly remark as ‘NIL’ or ‘Not applicable’ or ‘Not known’ in the columns and not to leave the particulars blank. vii) Filing of affidavit with blanks will be directly hit by Section 125A(i) of the RP Act. However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalized for the same act by prosecuting him/her.” 29. In the instant case, the facts reveal that the Returning Officer initially did make an endorsement rejecting the nomination paper on account of the very defects found in the nomination submitted by the appellant in not mentioning the particulars. However, subsequently, he persuades himself to accept the nomination observing that it could be a matter for the Court to decide. Thus, the omission in not supplying the required information has continued. 30. The requirement to furnish the information particularly regarding criminal antecedent of the candidate is in recognition of the right of the citizens who cast the votes in the election to know about the candidate and this right, as held by the Apex Court naturally flows from the democratic principle and forms integral part of Article 19(1)(a) of the Constitution of India. If the ultimate purpose of filing affidavit mentioning these details and disclosing the criminal antecedents of the candidate is to effectuate the fundamental right of the citizen under Article 19(1)(a) of the Constitution, then it cannot be said that even when a candidate leaves the column blank or states as ‘nil’ regarding criminal cases and its details his nomination could be accepted. In such an event it would negate the rights of the citizen to choose a candidate having clean image in the society and to reject those having criminal antecedents. In such an event it would negate the rights of the citizen to choose a candidate having clean image in the society and to reject those having criminal antecedents. To what extent such disclosure of criminal cases and criminal antecedent of the candidate would have affected the result of the election is not a matter that this Court has to hazard a guess. As the law has been succinctly laid down by the Apex Court spelling out the importance of such disclosure and how it has direct bearing on the right of the citizen flowing from the very concept of democracy and the fundamental right enshrined in Article 19(1)(a) of the Constitution, strict adherence to the same is a mandatory requirement. Therefore, it was not open for the Returning Officer to accept such nomination paper disregarding the mandate of law. Hence, the Election Tribunal was right and justified in holding that the nomination was improperly accepted and therefore, the result of the returned candidate deserved to be annulled. POINT NO.3 31. Section 25 of the Act enjoins on the Election Tribunal to make an order, at the conclusion of the trial of the Election Petition as provided in subsection (1) & (2) of the said Section. Subsection (2) of Section 25 which has relevance to the facts of the present case reads as under: “Section 25(2) If any person who has filed an election petition has in addition to calling in question the election of the returned candidate, claimed declaration that he himself or any other candidate has been duly elected and the Election Tribunal 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 or illegal practices the petitioner or such other candidate would have obtained a majority of the valid votes, the Tribunal 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.” 32. In the instant case, the election petitioner, no doubt, has sought for a declaration that he himself has been duly elected. In the instant case, the election petitioner, no doubt, has sought for a declaration that he himself has been duly elected. The Election Tribunal, after annulling the result of the returned candidate/appellant, has indeed declared the election petitioner as having been duly elected because he is the candidate who has secured second highest votes of 289. The Tribunal has held that if the appellant herein had not contested the election there were all chances of election petitioner succeeding in the election. 33. The question now is whether, in terms of subsection (2) of Section 25, the election petitioner could be said to have received majority of valid votes or that, but for the votes obtained by the returned candidate by corrupt or illegal practices, the petitioner would have obtained majority of valid votes. 34. In the instant case, there are no allegations of any corrupt or illegal practices in obtaining the votes by the returned candidate. Therefore, clause (b) of subsection (2) of Section 25 has no application. As regards clause (a) of subsection 2 of Section 25 what is required to be established is that in fact the petitioner has received a majority of valid votes. It is relevant to notice here that the appellant/returned candidate has secured 485 votes and the election petitioner has secured 289 votes out of total of 901 votes. If all the votes secured by the returned candidate are not treated as valid votes, then and then only the election petitioner can be declared as candidate having received majority of valid votes. 35. The question, therefore, is whether in the present circumstances, votes secured by a candidate whose nomination has been held to have been improperly accepted can be treated as invalid votes?. This question has not directly fallen for consideration in any of the cases relied on by the learned counsel for the parties. In the case of VISHWANATHA REDDY Vs. KONAPPA RUDRAPPA NADGOUDA AND ANOTHER AIR 1969 SC 604 , the Apex Court had an occasion to examine the scope of the expression ‘valid votes’ used in Section 101 of the Representation of the People Act, 1950 in the context where the candidate was found to be disqualified. In the case of VISHWANATHA REDDY Vs. KONAPPA RUDRAPPA NADGOUDA AND ANOTHER AIR 1969 SC 604 , the Apex Court had an occasion to examine the scope of the expression ‘valid votes’ used in Section 101 of the Representation of the People Act, 1950 in the context where the candidate was found to be disqualified. In paragraph 12 of the aforementioned judgment, the Apex Court, having noticed that the Rule which prevailed in the British Courts for a long time had no application in our country has held that when there are only two contesting candidates, and one of them is under 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 might not, if aware of the disqualification have voted for the disqualified candidate. In paragraph 13, the Apex Court further observes as under:- ‘The view that we are taking is consistent with the implication of Cl.(b) of Section 101. When in an election petition which complies with Section 84 of the Act it is found at the hearing that some votes were obtained by the returned candidate by corrupt practices, the Court is bound to declare the petitioner or another candidate elected if, but for the votes obtained by the returned candidate by corrupt practice, such candidate would have obtained a majority of votes. In cases falling under Clause (b) of Section 101 the Act requires merely proof of corrupt practice; it does not require proof that the voters whose votes are secured by corrupt practice had notice of the corrupt practice. If for the application of the rule contained in Clause (b) notice to the voters is not a condition precedent, we see no reason why it should be insisted upon in all cases under Clause (a). If for the application of the rule contained in Clause (b) notice to the voters is not a condition precedent, we see no reason why it should be insisted upon in all cases under Clause (a). The votes obtained by corrupt practice by the returned candidate, proved to be guilty of corrupt practice, are expressly excluded in the computation of total votes for ascertaining whether a majority of votes had been obtained by the defeated candidate and no fresh poll is necessary. The same rule should, in our judgment, apply when at an election there are only two candidates and the returned candidate is found to be under a statutory disqualification existing at the date of the filing of the nomination paper”. 36. In the instant case, there are more than two candidates. There is no allegation regarding corrupt practices. It is not known how the voters who have voted for the returned candidate would have voted if the nomination of the returned candidate had been rejected and was not in the fray. 37. The returned candidate, in the instant case, was in fray on account of the Returning Officer, illegally accepting his nomination. Those voters who voted him were not aware of any of the criminal antecedents of the returned candidate. The votes cast by them cannot be termed as invalid votes. Though the other candidates have secured only 135, 18, 17 and 8 votes which is far less than the votes secured by the election petitioner who has secured 289 votes out of the total of 901 votes, it cannot be said how many out of the 485 voters who had cast their vote to the returned candidate would have preferred the election petitioner and how many would have voted in favour of others. 38. In the case of VATAL NAGARAJ Vs. R.DAYANAND SAGAR AIR 1975 SC 349 , at paragraph 28 dealing with Section 101 of the Representation of the People Act, 1950 the Apex Court has held as under: “The insistent requirements of the Section are that firstly the returned candidate must have obtained votes by the operation of corrupt practices; secondly, such tainted votes must be quantified with judicial assurance and thirdly, after deduction of such void votes, the petitioner or other candidate must be shown to have secured a majority of the valid votes. In the present case, the decisive factor is the satisfactory proof of the number of votes, if any, attracted by the appellant into his ballot box by the corrupt means. How many voters were hired for certain by the expenditure of several thousand rupees more than is sanctioned by the law? Did the campaigning, in those hired carssnatch votes at all? Did deleterious leaflets draw into Nagaraj’s net a specific set of voters? To capsule the enquiry, how many votes were definitely obtained by the use of each corrupt practice? This hinges not on mystic maybes and vague imponderables and prejudice to prospects but on tangible testimony that a number of person, arithmetically assessed, swung towards and probably voted actually for the returned candidate, directly magnetized by the corrupt practice so that one could positively predicate those votes as having been obtained by corrupt practices.” 39. The Apex Court has further held in the said judgment later in paragraph 28 as under: “…Courts do not elect candidates or sign into parliamentary seats those whom the constituency has not yet favoured. The normal democratic process cannot be bypassed conveniently on the score of corrupt practices by the rival except in those exceptional cases where Section 101 stands fulfilled. You must win not only an election petition but an election itself.” 40. In paragraph 29, further observations in the following lines has been made: “….It is convenient assumption, not reasoned probability, to guess for whom, if at all, the voters of the winner who used corrupt practices would have alternatively cast their franchise. Sheer disenchantment with the vicious techniques might well have turned away many sensitive souls from the polling station! In the appeal before us the lead is over a thousand votes, no link between the polluted practice and the voters affected is forged; ten candidates were in the field and some of them had polled well.” In the instant case, there being no allegation of corrupt practice no question of excluding such votes as invlid for finding out if the election petitioner had obtained majority of valid votes would arise. This is a case where the nomination itself of the returned candidate has been held to be wrongly accepted. Hence, the votes cast in favour of returned candidate cannot be regarded as invalid votes or thrown away votes. This is a case where the nomination itself of the returned candidate has been held to be wrongly accepted. Hence, the votes cast in favour of returned candidate cannot be regarded as invalid votes or thrown away votes. This is also not a case where a candidate has been found disqualified to contest. 41. There is no mechanism to find out how the voters would have voted in case the returned candidate was ousted from the fray at the initial stage. Therefore, it cannot be said that the election petitioner has secured majority of valid votes cast in the election. In such circumstance, the order passed by the Election Tribunal declaring the election petitioner as duly elected is illegal. The only alternate would be to hold fresh poll. Therefore, to this extent the order passed by the Election Tribunal deserves to be interfered with. 42. All other judgments which are relied upon by the learned counsel for both parties as referred to while dealing with their respective arguments have no relevance to the issues raised in this appeal. Therefore, I pass the following: ORDER i) The order passed by the Election Tribunal setting aside and annulling the election of the appellant in M.F.A.No.3888/2014 as Councilor of Ward No.24 of Ullala Constituency of Mangalore Taluk as also the election of the appellant in M.F.A.No.3889/2014 as Councilor of Ward No.26 of Ullala Constituency of Mangalore Taluk are affirmed. However, the impugned orders declaring the election petitioner/respondent No.1 in M.F.A.No.3888/2014 as duly elected Councilor of Ward No.24 of Ullala Constituency of Mangalore Taluk and the election petitioner/respondent No.1 in M.F.A.No.3889/2014 as duly elected Councilor of Ward No.26 of Ullala Constituency of Mangalore Taluk, are set aside. Appeals are partly allowed. There has to be fresh poll for these two seats. Parties shall bear their respective costs.