JUDGMENT - S.B. MHASE, J.:---Heard finally with the consent of the parties.

2.This petition under Articles 226 and 227 of the Constitution of India is directed against the decision given by the Second Joint Civil Judge, Senior Division, Amravati, on 30th December, 1997, in Election Petition No. 9 of 1997, wherein the election of the respondent No. 3 to the post of Councillor of the Amravati Municipal Corporation has been set aside and the respondent No. 2 has been declared elected in his place being the second candidate securing the highest valid votes in the said election.

3.The petitioner before this Court is original respondent No. 8, who had contested the election for the said post of Councillor from Ward No. 38 of the Amravati Municipal Corporation.

4.The general election of the Municipal Corporation, Amravati was held on 23rd February, 1997. The petitioner and the respondents Nos. 2 to 14 had contested the said election from Ward No. 38, which was reserved for the candidates belonging to the Other Backward Class In the said election, the respondent No. 2 obtained 517 votes; as against that, the respondent No. 3 obtained 558 votes. The petitioner obtained 480 votes. The respondent No. 13 obtained 473 votes; while the respondent No. 8 obtained 286. Votes. The rest of the respondents obtained the votes less then this. However, the said election was contested by the petitioner and the respondents. Nos. 2 to 14. As the Returning Officer, the respondent No. 1, found that the respondent No. 3 had obtained 558 votes, which are highest than the rest of the candidates, the respondent No. 3 was declared elected. However, the respondent No. 2 had secured the second highest votes, namely, 517 votes and, therefore, the respondent No. 2 challenged the election of the respondent No. 3 by filling an election petition referred to above, wherein the respondent No. 2 prayed that the election of the respondent No. 3 be declared null and void and set it aside and the respondent No. 2 be declared elected in place respondent No. 3.

5.In the said election petition, the petitioner was the respondent No. 8 who also supported the respondent No. 2 so far as the setting aside the election of the respondent No. 3 is concerned, but opposed the respondent No. 2 herein, the original petitioner in an election petition, so far as the grant of declaration that the respondent No. 2 be declared elected in place of the respondent No. 3. As stated earlier, the election petition was decided by the Second Joint Civil Judge, Senior Division, Amravati, wherein the election of the respondent No. 3 from ward No. 38 of the Municipal Corporation, Amravati, was set aside on the ground that the respondent No. 3 was not belonging to the Other Backward Class and, therefore, was not qualified to contest the election from Ward No. 38, which was reserved for the Other Backward Class. It was further declared that the respondent No. 2 is elected from Ward No. 38 in place of the respondent No. 3.

6.The respondent No. 3 has not challenged the declaration setting aside his election and, therefore, that part of the judgment and order of the trial Court stands confirmed and this position was accepted by all the Counsel appearing for the parties.

7.The petitioner has, therefore, filed this petition challenging the declaration granted in favour of the respondent No. 2 that the respondent No. 2 is elected from Ward No. 38 of the Municipal Corporation, Amravati in place of the respondent No. 3.

8.The only challenge raised by the learned Counsel for the petitioner Shri Kaptan, is to the effect that such a declaration cannot be granted in favour of the respondent No. 2, being the candidate securing the next highest votes in view of the law laid down by the Apex Court in the matters of (Konappa Rudrappa Nadgouda v. Vishwanath Reddy)1, 1969(2) S.C.R. 90, (D.K. Sharma v. Ram Sharan Yadav)2, A.I.R. 1993 S.C. 95 and (Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil)3, 1994(1) S.C.C.

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