JUDGMENT - N.P. CHAPALGAONKER, J.:---An interesting point has been raised in this petition whether a candidate who has lost election and has filed Election Petition under section 15 of the Bombay Village Panchayats Act, 1958 succeeds in proving that returned candidate was not qualified to be elected, would be entitled for a declaration that he is elected in place of the returned candidate.

2. Election to Village Panchayat, Wadule in Newasa taluka took place on 19-6-1989 and respondent No. 5 herein was declared elected for Ward No. 3. It was the case of the petitioner that the respondent No. 5 is a Christian and does not belong to any of the recognised Scheduled Castes. Since the seat is reserved for the Scheduled Castes respondent No. 5 is not entitled to contest the said election. On this ground, the election came to be challenged by way of Election Petition bearing No. 2 of 1989 before the Civil Judge, Junior Division at Newasa. It was contended by the present petitioner in that Election Petition that the respondent No. 5 herein has stated in his nomination paper that he belongs to Hindu Mahar community whereas in fact he was a Christian and was not belonging to any of the Scheduled Castes. It was prayed in the petition that the election of the respondent be declared void and in his place, the present petitioner be held to have been elected uncontested from Ward No. 3 on reserved seat.

3. Learned Civil Judge, Junior Division at Newasa, who tried this petition, was pleased to hold that the returned candidate does not being to any of the Scheduled Castes and, therefore, was not qualified to contest seats reserved for the Scheduled Caste and was pleased to set aside his election. But he refrained from making a declaration that the petitioner is elected in his place. This judgment and order dated 17-11-1989 passed by the Civil Judge, Senior Division, Newasa has been challenged in this writ petition invoking the powers of superintendence of this High Court under Article 227 of the Constitution of India.

4. Shri V.S. Bedre, learned Counsel for the petitioner, submitted that since there were only two candidates in the field contesting reserved seat from Ward No. 3 and the election of respondent No. 5 was set aside, the logical result should be that the petitioner is declared elected uncontested. Shri Bedre further advanced argument that now it is well established that the votes cast in favour of the candidate who is disqualified on the date of the nomination are thrown away votes and, therefore, are invalid and if as per this proposition the votes cast in favour of the respondent No. 5 are held to be invalid, then all the valid votes cast being in favour of the petitioner, he is entitled for the declaration that he is elected. In support of his contention Shri Bedre relied on the judgment of the Supreme Court in (Vishwanatha Reddy v. Konappe Rudrappa Nadgauda and another)1, A.I.R. 1969 S.C. 604 and submitted that unlike the British Law on the subject, in India votes cast in favour of the disqualified candidate are to be regarded as invalid. The question of the notice to the disqualification on returned candidate to the voters when they voted is totally irrelevant. He particularly, relied on the observations of the Supreme Court which are as follows:---

"When there are only two contesting candidates, and one of them is under a statutory disqualifications, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the vote5s who voted for him were aware of the disqualification and no fresh poll is necessary. 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, no proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may

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