JUDGMENT :

Parth Prateem Sahu, J.

1. Challenge in this writ appeal is to the order dated 13.01.2021 passed in Writ Petition (C) No.44 of 2021 whereby learned Single Judge declined to interfere with the order passed by Collector, Janjgir-Champa dated 07.12.2020 allowing the application filed under Section 36(2) of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'Adhiniyam, 1993') and declared the post of Sarpanch and Panch of Ward No.12 of village Panchayat Thuthi to be vacant under Section 36(3) of the Adhiniyam, 1993.

2. The facts as pleaded by the appellants are that, appellants contested Panchayat election, which took place on 30.01.2020 for the post of Sarpanch and Panch of Ward No.12 respectively, of village Panchayat, Thuthi. After conclusion of election proceedings, appellants No.1 and 2 have been declared to be elected on their respective posts and election certificates were also issued to them. Respondent No.4, filed an application before respondent No.2 Collector, Janjgir-Champa under Section 36(3) of the Adhiniyam, 1993 for declaring the appellants to be disqualified and post of Sarpanch and Panch of Ward No.12 of village Panchayat, Thuthi to be vacant. Respondent No.2 registered the case and thereafter, passed an order on 07.12.2020 (Annexure P/1) declaring the post of Sarpanch and Panch of Ward No.12 of village Panchayat, Thuthi to be vacant. This made the appellants to file a writ petition with following reliefs :-

10.1 This Hon'ble Court may kindly be pleased to set-aside/quash the impugned order dated 07.12.2020 (P/1) passed in by the Collector, Janjgir-Champa in case vide No.202009060100004/A-89-23;

10.2 Hon'ble Court may kindly be pleased to issue any other order or orders writ or writs, direction or directions as this Hon'ble Court may deem fit in the facts and circumstances of the case in favour of the petitioners, in the interest of justice.”

3. Learned Single Judge upon hearing the learned counsel for respective parties, dismissed the writ petition by impugned order dated 13.01.2021.

4. Shri Ishan Verma, learned counsel for the appellants submits that appellants have been duly elected in Panchayat election held on 30.01.2020. They have been issued election certificate and hence, if for any reason, appellants are declared to be disqualified to contest the election or to hold the post, then it could only be by way of filing an election application under Section 122 of the Adhiniyam, 1993. He further submits that Collector is not having jurisdiction to pass Annexure P/1 order dated 07.12.2020 against elected persons of village Panchayat under the Adhiniyam, 1993. It is contended that earlier also, similar nature of application has been filed before Additional Collector challenging the election of appellant No.1 on the post of Sarpanch in the year 2006. After considering the fact that encroachment as alleged was not by appellant No.1 herself, but by her father-in-law Garamlal Satnami, dismissed the application filed under Section 36 of the Adhiniyam, 1993 vide Annexure P/5 and the said order was not put to challenge. It is further contended that provisions of Section 36 of the Adhiniyam relates with disqualification for being office-bearer of Panchayat and from the heading itself, it is apparent that provision will apply against any candidate only prior to holding of election and not post election of office-bearer. He pointed out that appellants have placed on record interim order passed by learned Single Judge in Writ Petition (C) No.1091 of 2017 (Smt. Usha Devi v. State of Chhattisgarh), wherein learned Single Judge has stayed the order passed under Section 36 of the Adhiniyam, 1993 in similar circumstances and submits that order passed by Collector to be bad in law. It is also contended that appellants have placed on record copy of Bhumiswami rights given vide Annexure A/7 to Ghasnin Bai widow of Garamlal Satnami for disputed land, which was not considered by learned Single Judge and p