1. The petitioner, who is an elected member of Nisarpur Janpad Panchayat, has filed this Writ Petition for dismissal of the election petition filed before the Collector, Dhar, challenging his election in case No. 8/93-94/C-144, in the following circumstances.

2. According to the petitioner, besides him, Respondents Nos. 1 to 5 were the candidates for election to Nisarpur Janpad Panchayat. The election of the said Janpad Panchayat was held on 23.5.1994 and the petitioner was declared elected on 24.5.1994. The notification declaring his election was notified on 30.6.1994. His election was challenged by Respondent No.1 by filing Election Petition No. 8/93-94/C-144 before Respondent No.8, Collector, Dhar. On receipt of the notice on 19.8.1994 the petitioner appeared before the Collector, on the same day and stated that Respondents Nos. 4 and 5, who were the candidates in the election, have not been impleaded as parties, which was mandatory in view of Rule 4 of M.P. Panchayat (Election Petitions, Corrupt Practices and Disqualification of Membership) Rules, 1991 (hereinafter referred as 1991 Rules') and consequently prayed for dismissal of the election petition. It was further averred that in the election petition, Respondent No.1 has sought declaration that he be declared as elected and, therefore, all the candidates including Respondents Nos. 4 and 5 ought to have been added as a party and failure to do the same renders the election petition defective and the same was fit to be dismissed on this score alone.

3. It is relevant here to state that the election petition was filed on 20.7.1994 and Respondent No.1 on 16.9.1994 filed an application under Order 4 Rule 17 C.P.C. for joinder of Respondents Nos. 4 and 5 herein as parties. As stated earlier, the petitioner also filed an application on 19.8.1994 for dismissal of the election petition for failure to implead all the candidates and the prescribed authority by its order dated 7.10.94 allowed the application of Respondent No.1 for joinder of Respondents Nos. 4 and 5 as party in the election petition.

4. Shri C.L. Yadav, appearing on behalf of the petitioner submits that as Respondent No. 1 has sought for a declaration that he be declared as elected member to the Janpad Panchayat, it was incumbent upon him to implead all the candidates including the person who withdrew their nomination. It is relevant here to state that Respondents Nos. 4 and 5 did file their nomination papers but withdrew the same on the date fixed for its withdrawal. Their names thus did not find place in the ballot papers which contained the list of contesting candidates.

Notwithstanding the aforesaid fact that Respondent... Nos. 4 and 5 withdrew their nominations on the date fixed for its withdrawal, Shri Yadav submits that they continued to be the candidates for the purpose of election petition and, therefore, their non-joinder was fatal to the maintainability of the election-petition. He further submits that the election petition which was initially filed without joining all the candidates, the defect cannot be cured by seeking an amendment in the election petition at a later stage.

5. Section 122 of the M.P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act') provides for presentation of the election petition and the authority to hear such application. Section 122 of the Act reads as follows ;-

Section 122. Election Petition ;-

(1) An election or co-option under this Act shall be called in question only by a petition presented in the prescribed manner ;-

(i) in case of Gram Panchayat to the Sub-Divisional Officer (Revenue);

(ii) in case of Janpad Panchayat to the Collector, and

(iii) in case of Zila Panchayat to the Divisional Commissioner and not otherwise.

(2) No such petition shall be admitted unless it presented within thirty days from the date on which the election or co-option in question was notified.

6. It is common ground that the election petition is to be decided in accord