U. N. BHACHAWAT, J.

( 1 ) ). THIS is a petition under Arts. 226 and 227 of the Constitution, whereby the petitioners seek a writ of certiorari for quashing the order dated 11th May, 1984 (Annexure P4) of the Prescribed Authority (hereinafter, for short, referred to as the Tribunal) under S. 117 of the Madhya Pradesh Panchayat Act, 1981 (hereinafter, referred to as the Act) (the Sub-Divisional Officer Raghogarh), whereby it has set aside the co-option under S. 117 of the Act of petitioner No. 2

( 2 ) ). The short facts, leading to the present petition are these : The matter relates to the constitution of Gram Panchayat, Guruji-ka-Khejra. After the election of the Panchas, a meeting of the elected Panchas was held on 6th July, 1983 for co-option, wherein petitioner No. 2, namely Kapuribai and one Halkibai were co-opted as the Panchas of the said Panchayat. 2. 01. This co-option was notified on 22nd July, 1983. Respondent No. 3, being aggrieved by the aforesaid co-option, filed a petition, challenging the said co-option before the Tribunal by presenting a petition on 5th of Aug. , 1983 under S. 117 of the Act. A copy of the petition that was filed before the Tribunal is Annexure P1. To iterate, vide this petition, the co-option of both the co-opted panchas, namely, Kapooribai - petitioner No. 2 and Halkibai, was challenged, to quote : (A) "yachika Swikar Ki jave (B) Mahila Panch Shrimati Halkobai Va Shrimati Kapooribai Ki Chunav Avaidh Ghoshit Kiya Jave". Along with this petition, the security amount of Rs. 50/- was deposited, a fact mentioned in the petition itself, to quote : "nirvachan yachika Ke Sath 50/- Rupaye Lagat Ke Pratibhuti Ki Rakam 50/- Rupaye Prastut Hain. Jo Jama Kiye Jane Ki Kripa Karen. "2. 02. The co-option was challenged on the grounds mentioned in clause 4 of the petition, namely, that the presiding officer at the polling booth, affixed the seal for voting on the ballot papers contrary to the instructions of the voters Ramkishan and Nanka. This petition, has been allowed vide the impugned order Annexure P4.

( 3 ) IN the light of the rival arguments advanced by the learned counsel of the parties and in the light of the view that we are taking, it is not necessary to detail herein the findings of the Tribunal.

( 4 ) BEING aggrieved by the impugned order, this petition has been filed. In the petition, various grounds have been raised, one of them being that the petition Annexure P1 was not a validly presented petition inasmuch as, at the time of the presentation of the petition, the petitioners did not deposit with the Tribunal the full sum of Rs. 100/- which was imperative under R. 7 of the Madhya Pradesh Panchayats (Election Petition, Corrupt Practices and Disqualification for Membership) Rules, 1962 (hereinafter referred to as the Election Rules), which, by virtue of S. 25 of the Madhya Pradesh General Clauses Act, are the rules under the Act and in force as such. It is not necessary for us to deal with the other grounds on which the co-option, in question, has been challenged inasmuch as the petition can be disposed of only on this ground.

( 5 ) THE contention of the learned counsel for respondents Nos. 3 and 4, in counter, is that the objection about the deficiency in the deposit of the security amount is not entertainable in the present petition as it was not raised before the Tribunal and, therefore, should be deemed to have been waived.

( 6 ) THE learned counsel for the petitioners, in elaboration of his argument, relying on R. No. 8 of the Election Rules, submitted that the provision contained in R. 7 is mandatory; and it constitutes one of the essential steps in the valid presentation of a petition under S. 117 of the Act read with R. 3 of the Election Rules.

( 7 ) THE learned counsel for respondents Nos. 3 and 4, in his counter argument, submitted that the proviso to R. 8 of the Election Rules which provides : "provided that the petition shall be dismissed without giving the petitioner an opportunity of

Click Here to Read the rest of this document