( 1. ) PETITIONER by this petition has challenged the notification, Annexure P-1 issued under the provisions of Rule 22 of the Panchayat (Up-Sar-panch, President and Vice-President) Nirvachan Niyam, 1995 by which the respondent No. 6 has been declared elected to the post of Vice-President in the reserved category of Scheduled Tribe.

( 2. ) IT is the case of the petitioner that respondent No. 6 is Sapera by caste and according to the Presidential notification issued under Article 342 of the Constitution of India. Sapera comes within the Scheduled Caste and not under the Scheduled Tribe. It is also the case of the petitioner that under the Constitution Scheduled Tribes Order, 1950, Sapera has been entered in the category of Scheduled Caste person and the respondent No. 6 is not a Scheduled Tribe person. Accordingly, he is not entitled to be appointed to the post of Vice-President in a seat reserved for Scheduled Tribe candidate.

( 3. ) THE respondents have filed return and it is submitted that respondent No. 6 is a member of the Scheduled Tribe and in support thereof, they have placed reliance on certain notifications issued under Section 165 of the Madhya Pradesh Land Revenue Code.

( 4. ) ON behalf of respondent No. 6, it is stated that he belongs to the Scheduled Tribe, along with his nomination form, necessary certificates were submitted by him and on the basis of the said certificates only, he was permitted to contest the election. Accordingly, it is stated that there is no merit in the claim made by the petitioner.

( 5. ) A preliminary objection has been raised and it is averred that the petition is not maintainable before this Court. It is submitted that the elections in the instant case were held under the provisions of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the adhiniyam of 1993 ). There is a specific provision for filing of an election petition. It is accordingly, submitted that in view of the provision contained in Article 243-O (b) of the Constitution of India, no petition calling in question election to the Panchayat is maintainable.

( 6. ) PLACING heavy reliance on the aforesaid Article of the Constitution of India, it is submitted by Shri Arvind Dudawat, learned Counsel for the respondent No. 6 that the present petition is not at all maintainable.

( 7. ) PER contra, Shri S. B. Mishra, learned Senior Advocate appearing for the petitioner placing reliance on a judgment of the Supreme Court in the case of K. Venkatachalam v. A. Swamickan and Anr. , AIR 1999 SC 1723, it is urged that when a person lacks basic qualification for contesting the election and when he is disqualified, constitutional bar provided under Article 243-O (b) of the Constitution is not applicable. It is submitted by the learned Senior Advocate for the petitioner that in the instant case, admittedly, the seat is reserved for a Scheduled Tribe candidate. From the documents on record, i. e. , the particulars of the khasra entries wherein the name of the respondent No. 6 and his father is given, it is recorded that they are Sapera by caste and Sapera comes within the category of Scheduled Caste category as per the Presidential Notification, Annexures P-3 and P-4. Accordingly, he is disqualified and that being so, the petition is maintainable.

( 8. ) IN support of his contention, Shri Arvind Dudawat, learned Counsel for the respondent No. 6 has placed reliance on the judgments of this Court in the case of Sugna Bai v. Election Officer, Gram Panchayat Bammi Bujurga, Tahl. Kannod, Dewas and Ors. , 1996 MPLJ 134 and State Election Commission, Bhopal v. Ras Bihari Raghuwanshni and Ors. , AIR 1995 MP 245. Apart from this, he has placed reliance on the following judgments :-Mohnider Singh Gill and Anr. v. The Chief Election Commission, New Delhi and Ors. , AIR 1978 SC 851. Krishna Ballabh Prasad Singh v. Sub-Divisional Officer Hilsa-cum-Returning Officer and Ors. , AIR 1985 SC 1746, and The Election Comm