JUDGMENT

KULDIP SINGH, J —Ram Sharan Yadav was declared elected to the Bihar Legislative Assembly from Goh constituency at the poll held in February, 1990. D. K. Sharma was one of the contesting candidates. Ram Sharan Yadav secured 46,027 votes whereas D. K. Sharma secured 31,375 votes. Apart from them there were 18 other validly nominated candidates who also contested the election but secured much lesser votes. D. K. Sharma challenged the election of Ram Sharan Yadav by way of election petition under the Representation of the People Act, 1951 (the Act). The High Court dismissed the election petition by its order dated October 17, 1990. This appeal under S. 116-A of the Act is against the judgment of the High Court.

2. In the election petition two reliefs were claimed by the appellant-petitioner. The election of respondent Ram Sharan Yadav was challenged on the ground that his nomination paper was illegally accepted by the Returning Officer. It was averred in the petition that the earlier election of respondent No. 1 to Bihar Legislative Assembly in June, 1977 was set aside by the Patna High Court by its judgment dated April 10, 1980 on the ground of commission by him of the corrupt practice specified in Clause (2) of S. 123 of the Act. The said judgment was upheld by this Court by its order dated October 30, 1984 (reported in AIR 1985 SC 24). The respondent having incurred the disqualification for a period of six years which was to expire on October 30, 1990, the acceptance of his nomination papers by the Returning Officer in February, 1990 was improper and illegal. The appellant-petitioner further prayed that the election of the respondent No. 1 being void the votes cast in his favour be treated as thrown away and the appellant-petitioner be declared elected to the seat from Goh Constituency.

3. The election petition was filed in April, 1990. During the pendency of the election petition the President of India in exercise of the powers under sub-section (3) of S. 8A of the Act issued a notification dated July 3, 1990, published in the Gazette of India dated July 9, 1990, disqualifying respondent No. 1 for a period of six years from October 30, 1984. On the basis of the Presidential-Notification the Speaker of the Bihar Legislative Assembly by notification dated July 18, 1990 declared the seat from Goh Assembly Constituency vacant. The appellant-petitioner, thereafter, confined his election petition to the second relief claimed therein.

4. The only question before the High Court was whether the appellant be declared elected from the Goh Assembly Constituency? The appellant-petitioner contended before the High Court that the voters in the constituency had been educated about the disqualification of respondent No. 1 and they were asked not to cast their votes in favour of the said respondent. Relying on the judgment of this Court in Konappa Rudrappa Nadgouda v. Vishwanath Reddy (1969) 2 SCR 90, it was contended that all the votes cast in favour of respondent No. 1 be declared wasted and should be thrown away. It was further contended that since the appellant-petitioner had secured the second largest number of votes amongst the contesting candidates, he should be declared elected to the Bihar Legislative Assembly. In Konappas case there were only two candidates in the field. Vishwanath Reddy was declared elected to the Mysore Legislative Assembly and Konappa who was a contesting candidate challenged his election on the ground that Reddy was disqualified from standing as a candidate for election and for an order declaring that he -Konappa- be declared elected. This Court accepted the contention of Konappa in the facts of that case where there were only two candidates in the field and observed as under :-

"If the number of candidates validly nominated is equal to the number of seats to be filled, no poll is necessary. Where by an erroneous order of the Returning Officer poll is held which, but for that order, was not necessary, the Cou