( 1. ) THE centroidal issue that emerges for consideration in this writ petition preferred under Article 226 of the Constitution of India is whether the respondent No. 1 is entitled under law to hold the post of Member of Jila Panchayat, Chhindwara though he was elected in the election held in December, 2004 from Ward No. 19 of Jila Panchayat, Chhindwara reserved for Other Backward Classes.

( 2. ) THE facts which are requisite to be stated for adjudication of this writ petition are that the petitioner is a resident of Ward No. 7 and his name finds place at Serial No. 407 of the voters list of Gram Markahand which comes under the Zila Panchayat, Chhindwara. The respondent No. 1 was elected as Sarpanch of Gram Panchayat, Navegaon Makaria in the year 1994. During his tenure the villagers made number of complaints to the Sub-Divisional Officer alleging that he has misappropriated the Government fund. An inquiry was made and a show-cause notice was issued by the Sub-Divisional Officer under Section 40 (b) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for brevity the Act ). The charges levelled against him were that he had got sanction of Rs. 10,000/- to each member of his village from Rural Hank but paid only Rs. 1,000/- to each of them and rest of the amount was misappropriated by him. After a detailed inquiry and investigation the Sub-Divisional Officer (bund the charges levelled against the respondent No. 1 had been proved. Because of the aforesaid conclusion the said authority on 22-3-1999 in exercise of powers conferred on him under Section 40 (b) of the Act declared continuance of the respondent No. 1 as Sarpanch of the Gram Panchayat was not in public interest and further a sum of Rs. 33,000/-was liable to be recovered as land revenue. A copy of the order has been brought on record as Annexure P-l. Being dissatisfied with and aggrieved by the aforesaid order the respondent No. 1 preferred an appeal before the Collector which was registered as Appeal No. 20/a-89 (15) 98-99. The Collector did not perceive any merit in the appeal and by order dated 12-10-1999 declined to interfere as per Annexure P-2. The aforesaid orders were allowed to attain finality inasmuch as the respondent No. 1 accepted the same and chose not to assail them in any other forum.

( 3. ) ACCORDING to the writ petitioner in December, 2000 the election for the session was declared and Ward No. 19 of the Jila Panchayat was reserved for Other Backward Classes. Nomination forms were to be submitted between 22nd December to 28th December, 2004. The respondent No. 1 submitted his nomination form on 24-12-2004 before the Returning Officer along with the affidavit regarding the factum pertaining to any pendency of criminal case as well as outstanding of Government/bank dues. In the nomination form he had not declared his disqualification under Section 40 (b) of the Act as per order dated 22-3-1999 passed by the Sub-Divisional Officer, which had received the stamp of approval by the Appellate Authority. He has also suppressed the factum that he had to pay a sum of Rs. 33,000/- as land revenue by virtue of the aforesaid order. A copy of the nomination form along with the affidavit filed by the respondent No. 1 has been brought on record as Annexure P-3. The respondent No. 1 was allotted the symbol of bow-arrow. As the essential facts were suppressed the Returning Officer accepted the nomination form and allowed him to contest. The voting was held on 19-1-2005 and the result was declared on 21-1-2005 in which the respondent No. 1 was declared elected securing 11,253 votes whereas one Ratan Verma secured 7857 votes. In this backdrop respondent No. 1 was declared elected. It is contended that the respondent No. 1 was disentitled in law to contest the election and to be elected for six years. It is urged that it was imperative on the part of the respondent No. 1 to state the facts which are essential but he chose to suppress the same as a con