A person having more than two children is disqualified from being elected as a member of a Municipality under Section 24(xvii) of the Rajasthan Municipalities Act, 2009. In case of a vacancy arising due to disqualification, the procedure laid down in Section 27 of the Act must be followed to fill the vacancy.

1. - Heard learned Counsel for the appellant and the learned Counsel for the respondent.

2. In view of the fact that the relief which has been claimed by appellant is limited against the respondent No. 1, there is no need to hear the other respondents impleaded in this appeal. Thus with the consent of the learned Counsel for the parties, the appeal is being heard and decided finally.

3. The instant appeal is directed against the judgment dated 7.4.2014 passed by the learned Addl. District Judge No. 1 Bhilwara in Misc. Case No. 16/2010 whereby the election petition filed by the respondent No. 1 Gopal Methani under Section 31 read with Section 24(XV1I) of the Rajasthan Municipalities Act, 2009, (hereinafter referred to as the Act) was allowed and the election of the appellant on the post of Municipal Councillor was quashed and the respondent was declared elected for the said post. The appellant has challenged the impugned judgment principally on two grounds; (1) that he was not provided any opportunity of leading evidence; and (2) as the persons contesting the election were more than two in number, the learned Tribunal could not have declared the respondent No. 1 elected on the post of Municipal Councillor even if the appellant was held disqualified from contesting the election.

4. Mr. Bhansali, learned Counsel for the appellant vehemently contended that the respondent No. 1 (Gopal Methani) was provided as many as 11 opportunities whereas the appellant was provided only on opportunity to lead evidence and thereafter his evidence was closed. Thus, as per him the appellant was greatly prejudiced by the unfair procedure adopted by the learned Trial Court and the case was decided without providing a fair opportunity of defence to the appellant. Thus, he prays that the matter be remanded to the learned Trial Court and the Court be directed to provide on opportunity of leading evidence to the appellant and thereafter to decide the matter afresh.

5. The second contention advanced by the learned Counsel for the appellant is that Section 27 of the Rajasthan Municipalities Act lays down the mode for filling up the casual vacancy and the mode adopted by Trial Court it not one of the modes available in cases when casual vacancy arises due to the disqualification of a member. Learned Counsel placed reliance on the decision rendered by the Hon'ble Supreme Court in the case of Prakash Khandra v. Dr. Vijay Kumar Khandre reported in AIR 2002 SC 2345 and submitted that the Hon'ble Apex Court in no unequivocal terms has held that where the candidates are more than two in number and the election of the returned candidate is set aside on the basis of some disqualification, the candidate who received the next highest number of votes cannot be declared elected by adopting the theory of throwing away the votes casted in favour of the disqualified candidate Thus he submits that the appeal deserves to be accepted and impugned judgment should be set aside.

6. Dr. Sachin Acharya, learned Counsel for the respondent No. 1 vehemently urged that the appellant was provided two opportunities and to lead evidence in defence. He further submits that the respondent appeared in the witness box and proved all the facts averred in the election petition. He urged that the respondent gave positive evidence to the effect that the appellant has three children out of which two issues were born after 27.11.1995. The evidence thus led by the respondent remained unchallenged by lack of cross examination. Learned Counsel submits that in view of the mandatory provision of Section 24(xvii) of the Rajasthan Municipalities Act, the appellant was rightly held disqualified from holding the post of Municipal Councillor. Dr. Acharya also vehemently opposed the second submission advanced by Mr. Bhansali regarding the Court not having power to declare the respondent elected as Municipal Councillor but he was unable to site any precedent contrary to the judgments relied upon by the