SHIV KUMAR Vs. COLLECTOR

JUDGEMENT

(1.) ELECTION for the post of Sarpanch of Gram Panchayat Kheri was held in accordance with the provisions enshrined under Madhya Pradesh Panchayat Adhiniyam, 1993 (hereinafter referred to as 'the Act') and one Rajesh Mohan Jhikram was elected as Sarpanch. For some reason he resigned from the post of Sarpanch as a result of which the said post fell vacant. To fill up the vacancy the Secretary of Gram Panchayat called a special meeting of the Panchs. Three members namely, Shiv Kumar, the present petitioner, Durga Prasad, the respondent No. 3 and Gyani, the respondent No. 4 contested for the said post which was to be filled up as a temporary measure. Twenty members participated in the voting and presiding officer after counting the votes declared the respondent No. 3 to be successful. As the petitioner had a grievance he filed an application under Section 122 of the Act before the Sub Divisional Officer. The said, authority entertaining the application under Section 122 of the Act recounted the votes and declared the petitioner to have been duly elected. Feeling aggrieved the respondent No. 3 filed, a revision. The petitioner raised; an objection with regard to the maintainability of the revision. The revisional authority, the Collector, Mandla did not accept; the objection raised by the petitioner and came to hold that the application preferred under Section 122 of the Act was not maintainable and accordingly set aside the order passed by the original authority. The said order dated 29-1-2001 has been brought on record as Annexure P-5.

(2.) IT is urged in the petition that there is no provision for filing of revision and, hence, the Collector could not have set aside the order passed by the Sub Divisional Officer. It is further putforth that the respondent No. 3 had not raised any objection with regard to maintainability of the election petition and, hence, the Election Tribunal has rightly decided the lis in accordance with law. That apart, justification has been given in support of the order passed by the Sub-Divisional Officer highlighting that the petitioner had obtained more votes than the respondent No. 3. With these averments prayer has been made for quashment of the order contained in Annexure P-5.

(3.) A return has been filed by the answering respondent No. 3 contending, inter alia, that when the vacancy is filled up under Section 38 of the Act an application under Section 122 of the Act does not lie. It has been further putforth that as an arbitrary order was passed by the Sub-Divisional Officer who had no jurisdiction the respondent No. 3 was compelled to file the revision before the revisional authority and the same has been rightly entertained. It is also putforth that after passing of the order by the Collector the petitioner had approached the Collector on 12-2-2001 on the same ground but suppressed this fact and obtained an interim order. It has been further putforth that the respondent No. 3 had been rightly elected and there was no illegality in the same.