1. Election to the office of Sarpanch of Gram Panchayat, Mishta was held on 30th May, 1994. Late Babulal was declared elected as Sarpanch having secured 330 votes. His election as Sarpanch was challenged by respondent No. 2 Durgaram by filing an election petition under section 12 of the M.P. Panchayat Raj Act, 1993. Election petition was filed on 14.7.94 whereas, aforesaid Babulal died on 15.1.95. No body, including the petitioner, who claims to be the election agent of aforesaid Babulal, took any step before the Election Tribunal and ultimately, the Tribunal on recount of votes, found that the votes polled by respondent No.2 are more than that of the declared candidate Babulal. Accordingly respondent No.2 was declared elected as Sarpanch.

2. Aggrieved by the aforesaid declaration of respondent No.2 as Sarpanch, the petitioner, who was not imp-leaded as a party nor substituted after death of Babulal before the Election Tribunal, has filed this writ petition challenging the order of the Election Tribunal.

3. Shri Agrawal, appearing on behalf of respondent No.2 raised a preliminary objection that writ petition at the instance of the petitioner who was neither party before the Election Tribunal, nor filed any application before the Tribunal resisting the claim of respondent No.2, in-spite of his assertion that he was the election agent of the returned candidate, cannot maintain the writ petition.

4. Shri Sudhir Rawat, however, appearing on behalf of the petitioner submits that the petitioner is voter of the area, was an election agent of respondent No.2 and he being interested in maintaining the purity of election, the writ petition filed at his instance, is maintainable.

5. From the pleading of the parties what emerges is that the election of Babulal as Sarpanch of the Gram Panchayat was set aside by the election tribunal on an application filed by respondent No.2 and he was declared as such. Before such a declaration was made Babulal died and the election petition was not resisted by anyone.

6. In support of the preliminary objection that the writ petition is not maintainable at the instance of petitioner, Shri Agarwal appearing on behalf of the respondents submits that the election petition is an statutory remedy provided by the statute and the same cannot be allowed to be pursued at the instance of any person.

7. It is common ground that the election petition filed by respondent No.2 shall be governed by the provisions of M.P. Panchayat (Election Petition Corrupt Practice and Disqualification for Membership) Rules, 1991. Rule 4 of the aforesaid Rules provides that an election petition shall abate only on the death of the petitioner or of the several petitioners. In case of death of respondent, rule 15 of the aforesaid Rules, contemplates that if before the conclusion of the inquiry the sole respondent dies, the proceedings shall be deemed to have abated. However, the aforesaid rules contemplates of an exception, that in case the relief claimed by the election petitioner is to declare him elected, the election tribunal is required to decide the petition on merits, after making such inquiry as it deems fit. In the present case the election petitioner made a prayer for declaration of his own result and in fact the Election Tribunal decided the case on merits and declared election petitioner to have been elected. .

7-A. However, Shri Rawat appearing on behalf of the petitioner submits that although writ petitioner was not a party, in view of the fact that he is the voter and was an election agent of the returned candidate is a person aggrieved and at his instance writ petition is maintainable. In support of the aforesaid submission learned counsel has placed reliance on a Judgment of the Apex Court in the case of Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed and others (AIR 1976 SC 578). My attention has been drawn to the following paragraph of the said judgment which reads as under :-

"12. According to most English decis