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Judgment
R.C. Mishra, J.—This order shall govern disposal of both the revisions as they have arisen out of the same judgment delivered on 7/12/10 by First Additional District Judge, Burhanpur in Misc. Judl. Case No. 1/2010. Jagdish Kapoor, the petitioner in Civil Revision No. 522/2010, is the Returned Candidate whose election to the Seat of Councilor of Ward No. 6 of Municipal Corporation, Burhanpur has been set aside on the ground that he was not having the requisite qualification within the meaning of Section 11 (5) of M.P. Municipal Corporation Act, 1956 (for short "the Act") for contesting on the Seat that is reserved for OBC candidate of Madhya Pradesh whereas the petitioner in Civil Revision No. 15/2011 namely Dilip alias Banti Nagori (hereinafter referred to as ''Dilip'') is the sole rival candidate who, while challenging the validity of the Election, has also prayed for a further declaration that he himself stands duly elected.
No serious dispute was raised as to contents of Caste certificate (Ex.D/ 6) issued by Sub-Divisional Officer, Burhanpur, reflecting that Jagdish Kapoor is "Khatri" by caste. Another certificate (Ex.D/11) submitted by Jagdish to support his candidature indicated that the caste is notified as an OBC for the purpose of reservation in Civil Posts and Services under the Central Government. However, in view of the explanation appended to Section 11-A of the Act, only such castes as are notified under the M.P. Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994, can be recognized as OBCs for the purpose of election to the seat of a Municipal Councillor and "Khatri" does not find place in the corresponding notification issued on 26/12/1984. The reservation for Backward Classes in employment falls under Clause (4) of Article 16 of the Constitution of India whereas enabling provision for reservation of Wards in Municipal Election is the Article 243-T of the Constitution. In this view of the matter, the certificate (Ex.D/11), which served an altogether different purpose, was rightly ignored to hold that Jagdish was not eligible to contest the election as a candidate of OBC for the reserved seat.
Now, the question arises as to whether Dilip, being the only rival candidate, was entitled to be declared as elected ?
As explained by a Constitution Bench in Konappa Rudrappa Nadgouda Vs. Vishwanath Reddy and Another,
The general rule of election law, which prevailed in the British Courts for a long time, that the votes cast in favour of a person who is found disqualified for election may be regarded as thrown away only if the voters had notice before the poll of the disqualification of the candidate cannot be extended to the trial of disputes under Indian election law, for it is not consistent with the Indian Statute Law and in any case the conditions prevailing in India do not justify the application of that rule.
Accordingly, if there are only two contesting candidates and one of them is found to be under statutory disqualification at the date of filing nomination paper, the other contesting candidate can be declared elected.
A bare perusal of the impugned judgment would reveal that such a declaration was not made in favour of Dilip for the reason that he was also not found eligible to stand as a candidate for the election from the reserved seat. Assailing the legality and propriety of the finding, Learned Counsel appearing on behalf of Dilip has contended that it is based on the evidence beyond the pleadings that could not be looked into. To buttress the contention, reliance has been placed on the decision of the Supreme Court in Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao and Others,
Per contra, learned Senior Counsel, while making extensive reference to paragraph nos. 1, 10 and 15 of the written statement filed by Jagdish and admissions made by Dilip as PW1 in Paragraph nos. 21 to 25 of his cross-examination, has supported the finding.
It is well settled that where the parties understand the real implication of the point in dispute and lead evidence thereon, the evidence cannot be ruled out merely for want of a formal issue and the finding would not be vitiated on that ground ( Nagubai Ammal and Others Vs. B. Shama Rao and Others, referred to).
Moreover, Rule 10 of the Madhya Pradesh Municipal Corporation (Election Petition) Rules, 1963 is in pari materia with sub-section (1) of Section 97 of the Representation of the People Act, 1951 except for the proviso appended to the sub-section. Thus, the Rule unconditionally permits a returned candidate to lead any evidence raising any plea against the validity of the claim of the election petitioner, who prays not only for setting aside the election but also for declaring himself as elected.
The caste certificate (Ex.P/1) filed by Dilip along with his nomination paper could only prove that he belongs to other backward class viz. "Mali". However, fact of the matter is that "Saini" sub-caste of caste "Mali" is included in the list of OBCs recognized as per Notification dated 26/12/1984 and an enquiry in respect of the plea that being the member of "Mali" caste, Dilip was entitled to benefits of reservation for "Saini" sub-caste, was not permissible. In other words, no evidence to show that the enlisted caste included some other caste would have been acceptable. As such, the finding that Dilip was not entitled to seek election from the reserved seat also deserves to be affirmed as well merited. The question posed above is, therefore, answered in the negative.
For these reasons, no interference with the judgment under challenge is called for under the revisional jurisdiction. In the result, both the revisions stand dismissed. However, nothing contained herein shall be treated as an observation that Dilip alias Banti does not belong to "Saini" sub-caste of "Mali" caste.
Copy of this order be retained in the connected revision.