( 1. ) SHRI Chandra Bhan Singh and Shri Rao Khetsingh were elected members of Zila Panchayat, Damoh. Election of President, Zila Panchayat, Damoh was held on March 1, 2000 in which they contested against each other. Polling was followed by counting of votes. Shri Chandra Bhan Singh was declared elected and granted certificate to that effect under Rule 17 of the M. P. Panchayat (Up-Sarpanch, President, Vice-President) Nirvachan Niyam, 1995 (hereafter for short the Rules of 1995 ). Shri Rao Khetsingh immediately approached the Election Tribunal and obtained stay against issuance of notification under Rule 22 of the Rules of 1995. The Election Tribunal entertained the election petition and stayed issuance of notification. Finally, the election of Shri Chandra Bhan Singh was set aside. This order of Election Tribunal, passed at the instance of Shri Rao Khctsingh has been challenged through Writ Petition No. 2349 of 2000 by Shri Chandra Bhan Singh.

( 2. ) THE substance of challenge is thai Election Tribunal could not have entertained the election petition before the issuance of notification. Consequently, the proceedings of the Election Tribunal including the order setting aside election of Shri Chandra Bhan Singh are null and void. This submission is supported by decisions of this Court in Sugna Bai w/o Hariram Vs. Election Officer, Gram Panchayat, Bamni Bujurga and others (1996 MPLJ 134) and Division Bench decision in Pramila Bai w/o Surendra Singh, Sarpanch Vs. Sub-Divisional Officer, Bareti and others [1999 (2) MPLJ 209]. The other side contests this claim and submits that Section 122 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (No. 1 of 1994) (hereafter for short the Act) does not prevent filing of election petition before the issuance of notification. Support of this view is sought from Division Bench decisions in Tikaram Vs. Darshanlal [1988 (1) MPWN 192] and Antram Vs. Badri and others [1996 (2) Vidhi Bhasvar 296]. While dealing with the submissions advanced by the parties, Brother Dipak Misra, J. , after exhaustive examination and analysis of various statutory provisions has doubted the correctness of the decision in Tikarams case (supra ). It would be appropriate here to quote precisely the opinion of the learned Judge :

". . . . . But the sixty four thousand million dollar question that remains to be dealt with is whether in the case of Tikaram (supra) the Court had taken note of all the relevant rules as they existed then. In my humble opinion the Court had not taken into consideration the basic concept of the returned candidate and declaration of an election of a returned candidate. If the person has not assumed the qualification to be elected because there has been no notification, it can irrefragably be stated that the same can not be assailed before the Election Tribunal. If that is made permissible one can approach the Election Tribunal (as what has happened in the instant case) and get an order of stay of the notification which is beyond the jurisdiction of the Election Tribunal. As the relevant facts have not been taken into consideration and the concept of term election as used in Section 122 (1) of the Act, has a different meaning in its connotalive sense and conceptual eventuality, I am of the considered opinion that the decision rendered in the case of Tikaram (supra) requires reconsideration. "

( 3. ) BEFORE adverting to the submissions advanced by learned counsel for parties, we hasten to quote the question of law recommended for reference : "whether an election dispute can be raised before the Election Tribunal on the basis of the certificate granted under Rule 17 of the 1995 Rules or one is required to file the dispute before the Tribunal after the notification has been published under Rule 22 of the 1995 Rules ?" In Kehar Singh Vs. State (Delhiadministration) [1988 (3) SCC 609], Shetty, J. said in Paragraph 203 that : ". . . . . This Court has frequently emphasized that the decision of the C