ORDER :

1. Challenge in the present Writ Petition is to the proceeding being drawn by the District Collector, Balrampur-Ramanujganj in Revenue Case No.B-121/2022-23.

2. The learned Collector has issued notice to the Petitioner in the said proceeding under Section 36(2) of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (for short, 'the Adhiniyam') calling upon his explanation as to why he should not be disqualified from holding the post of Member of the Janpad Panchayat, Kusmi falls under District Balrampur-Ramanujganj. The charge levelled against the Petitioner is that of encroaching upon the government land.

3. The solitary contention raised by the Petitioner while assailing the proceeding drawn under Section 36(2) of the Adhiniyam is that, the complainant in the instant case i.e., Respondent No.3, had already challenged the appointment of the Petitioner as a Member of the Janpad Panchayat, Kusmi by raising an Election Petition i.e. E.P. No.A-89/2021-22 under Section 122 of the Adhiniyam. The Petitioner had contended that the ground of encroachment taken by the Complainant in the said Election Petition was also a ground for challenge to the election of the Petitioner. Contention of the Petitioner also was that since the Election Petition stands rejected vide Order dated 19.1.2022, the Complainant thereafter cannot be permitted to reagitate the same issue now by filing a complaint under Section 36(2) of the Adhiniyam.

4. Learned Counsel for Petitioner submits that once when the matter has already been put to test in an Election Petition and a decision having been passed, the provision of Section Section 36(2) of the Adhiniyam would now not be applicable so far as the complaint made by the Complainant is concerned. According to learned Counsel for Petitioner, clause (a) of sub-section (2) of Section 36 of the Adhiniyam starts with the word "subsequently" and which means that any illegalities or irregularities committed by the elected Member subsequent to his election, alone can be taken note of while drawing a proceeding under Section 36(2) of the Adhiniyam. In the instant case, no such action is alleged against the Petitioner subsequent to his election, therefore, the proceeding drawn under Section 36(2) of the Adhiniyam is totally uncalled for and deserves to be rejected and dropped.

5. Learned State Counsel, on the other hand, opposing the petition, submits that it is a case where the two proceedings are considered and decided under two different provisions just because the Election Petition stands decided and the fact of encroachment being one of the grounds, does not mean that the proceeding under Section 36(2) of the Adhiniyam cannot be invoked by the Competent Authority on a complaint in respect of encroachment made by any elected Member.

6. Learned State Counsel further submits that the proceeding under Section 122 of the Adhiniyam has been rejected on technicalities i.e., on the Election Petition being barred by limitation, as such, the Authorities have not got an opportunity of entering into the merits of the case, therefore, the impugned proceeding now under challenge also does not warrant interference as it would be now a matter of enquiry by the concerned Authority so far as the alleged encroachment is concerned.

7. Having heard the contentions put forth on either side and on perusal of records, it would be relevant at this juncture to take note of the provisions as stipulated under Section 36 of the Adhiniyam which prescribes various nature of acts which would be brought within the ambit of disqualification. Sub-section (1) of Section 36 deals with different circumstances when a person becomes disqualified from being an office-bearer of Panchayat. Sub-section (2) of Section 36 prescribes the procedures under which the disqualification has to be decided. For ready reference, sub-section (2) of Section 36 of the Adhiniyam is being reproduced herein under:-

"(2) If any person having been elected as an office-bearer of Pancha