SURENDRA KUMAR LAKHERA Vs. MALIK SINGH CHAWLA

JUDGEMENT

(1.) BY this revision petition, under section 26 of M.P. Municipalities Act, 1961, the applicant impugnes and challenges the correctness, validity and propriety of the order dated 10.9.97, passed by 4th Addl. District Judge, Sagar in Municipality Election Petition No. 22/95 (Surendra Kumar Lakhare v. Malik Singh Chawla and others) dismissing the applicant's election petition, filed under section 20 of M.P. Municipalities Act, 1961.

(2.) THE undisputed facts are that election for the councillers were to be held on 27.11.94. The results were declared on 16.12.94. The petitioner and non -applicant No. 1 and 3 were contesting candidates to the office of the counciller from ward No.7, which was specially and specifically reserved for 'other backward classes' (hereinafter referred to as 'OBC'). The petitioner pleaded that he raised certain objections before the election officer that the respondent No. 1 was not belonging to OBC, but his objections were not considered and the form was illegally accepted. The petitioner, after losing the election filed an election petition under section 20 of the Act. The petitioner's main contention was that the respondent No.1 i.e. the returned candidate, was a 'Sikh', did not belong to OBC and was, therefore, not entitled to submit his candidature for contesting the elections. The respondent No.1, in his reply, contested the position factual and legal and submitted that he belongs to the OBC, the notification declaring the list of OBC did cover him and as such his nomination was rightly accepted. The petitioner apart from examining himself also examined the other witnesses and produced in evidence two documents. The respondent examined himself and produced certain documents in support of his contention. After hearing the parties, the learned trial Court held that Notification Annexure P/1 was issued on 2nd April, 1997, therefore, it would not govern the right of the party and as the certificates submitted by respondent No.1 show that the respondent No.1 belonged to the OBC, the present petitioner was not entitled to any relief in the election petition.

(3.) THE applicant has clearly proved that the list Ex. P/1 does not include 'Sikh Harijan' or 'Chawla' in the class known as 'OBC'. It was for the non -applicant No. 1 to prove before the Court that despite non -inclusion of 'Chawla' in the notification, he belongs to a class of 'OBC'. The basic burden was discharged by the petitioner and it was the duty of the non -applicant No.1 to discharge rest of the burden which stood shifted on his shoulders. The non -applicant No.1, in his statement recorded before the Election Tribunal has simply stated that he is a 'Sikh Harijan' and thereafter stated that he does not belong to any caste or he has no caste. It appears that he relied upon certain certificates issued by the Bank, Sarpanch, the Block Development Officer and also the M.L.A. A certificate issued by a competent authority, assuming the person issued the certificate was competent, must be in conformity with the notification. It is not that anybody can issue a certificate to somebody and certify that somebody belongs to 'OBC', 'SC' or 'ST'. The certificates issued by the above referred persons clearly state that the non -applicant No.1 is a 'Sikh'; he is 'Chawla' by caste and he belongs to 'OBC'. It appears that the persons who issued the certificates did not care to see the 1988 notification. The Court below was not justified in holding that the non -applicant No. 1 has proved that he belongs to 'OBC' or the applicant has failed to prove that the non -applicant No.1 did not belong to 'OBC'. The findings recorded by the lower Tribunal deserve to and are accordingly set aside. It is held that the non -applicant No.1 was not 'OBC' nor was falling within the definition or class known as 'OBC'. Acceptance of his nomination by the Election Officer was contrary to law. On this short question, the election deserves to be set aside.