ORDER 1. Petitioner has challenged the order dated 16.1.2007 (Annexure P-1) passed by the Collector, Katni disqualifying thereby the petitioner from the, post of Sarpanch. 2. Facts in brief are that the election for the post of Sarpanch of Gram Panchayat Badari, Tahsil Vijayraghavgarh, District. Katni was held on 23.1.2005. Petitioner was elected as Sarpanch in the result declared on 27.1.2005. Respondent No.5, a defeated candidate on the post of Sarpanch submitted WP No.947/2005 which was withdrawn on 29.3.2005 with liberty to file an election dispute. Thereafter on 5.5.2005 he submitted a petition (Annexure P-3) in the form election petition under section 122 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as "Panchayat Raj Adhiniyam" for brevity) before the Sub-Divisional Officer, Vijayraghavgarh on the ground that the petitioner on 29.12.2004 had submitted nomination form, affidavit and declaration. In paragraph 7 of the affidavit, he admitted to have four children. His fourth child was born on 13.5.2003 whereas in the affidavit the child is shown to have been born before 26.1.2001 which being a false statement, he has committed an offence. This was objected to in writing by respondent No.5 before the Collector alongwith documentary proof. However, the nomination form of the petitioner was accepted contrary to law by respondent No.2 under political pressure. Accordingly, it was prayed in the petition that the election of the petitioner on the post of Sarpanch may be declared null and void. 3. Since, the petition involved a question of disqualification on ground under section 36(1)(m) of Panchayat Raj Adhiniyam and jurisdiction to decide such a dispute vested in Collector by virtue of sub-section (3) of Section 36, learned SDO Vijayraghavgarh vide order dated 5.8.2005 referred the matter to the Collector, Katni. Collector, Katni after receipt of the case did not take requisite steps in the matter, therefore, respondent No.5 submitted WP No. 13747/2006. It was disposed of on 4.10.2006 vide Annexure R-l with the following operative portion: "Considering the short grievance of the petitioner, matter is pending before the Collector, Katni as referred by the SDO by the order Annexure P-5 dated 5.8.2005 which deserves to be heard and decided by the Collector, Katni expeditiously. This petition is finally disposed of with following directions: (i) Petitioner may file an application for expeditious hearing of the matter to the Collector, Katni. This petition is finally disposed of with following directions: (i) Petitioner may file an application for expeditious hearing of the matter to the Collector, Katni. Alongwith the application, petitioner shall enclose copy of this petition and order dated 5.8.2005 of the SDO Vijayraghavgarh for ready reference of the Collector, Katni. (ii) On filing aforesaid application, the Collector, Katni shall look into the matter and expedite the hearing of the case and shall make all endeavour to decide the matter expeditiously as far as possible within three months from the date of receipt of the aforesaid application." 4. In pursuance of Annexure R-1, learned Collector, Katni recorded the evidence and passed a final order on 16.1.2007 which is impugned herein as Annexure P-1. 5. Shri Rohit Arya, learned Senior Advocate, Shri G.P. Singh, learned Government Advocate and Shri R.S. Verma, learned Advocate made their extensive submissions. 6. As a preliminary objection, it is contended that the order under section 36 of the Panchayat Raj Adhiniyam is appealable. The petitioner ought to have availed the alternative remedy under the provisions of M.P. Panchayat (Appeal and Revision) Rules, 1995. Suffice it to say, that the writ petition having been admitted on 12.3.2007, it would not be proper to dismiss the petition on the ground of availability of alternative remedy. This is a settled position of law as laid down by the apex Court in the case of Hirday Narain v. Income Tax Officer, Bareilly [ AIR 1971 SC 33 ]. Division Bench of this Court also following the decision of the apex Court in Hirday Narain's case (supra) held in the case of Tata Exports Ltd. v. The Union of India and others [ 1986 MPLJ 561 ], that once a petition has been admitted it could not be dismissed on the ground of alternative remedy. Thus, the preliminary objection is without any substance and is hereby rejected. 7. Shri Rohit Arya, learned senior advocate forcefully submitted that jurisdiction to decide an election petition of Gram Panchayat is vested in SDO (Revenue) by virtue of Clause (i) of sub-section (1) of section 122 of Panchayat Raj Adhiniyam which reads as under: "122. Election petition. Thus, the preliminary objection is without any substance and is hereby rejected. 7. Shri Rohit Arya, learned senior advocate forcefully submitted that jurisdiction to decide an election petition of Gram Panchayat is vested in SDO (Revenue) by virtue of Clause (i) of sub-section (1) of section 122 of Panchayat Raj Adhiniyam which reads as under: "122. Election petition. -- (1) An election under this Act shall be called in question only by a petition presented in the prescribed manner: (i) In case of [Gram Panchayat or Gram Sabha] 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." In the light of the aforesaid provision it is contended that the validity of the election of the petitioner could be examined only by SDO (Revenue) and not by the Collector. Even the High Court, by passing an order on 4.10.2006 in WP No.13747/2006 vide Annexure R-1, could not have conferred jurisdiction on Collector, Katni to decide the election dispute. This contention of the learned senior counsel in my opinion is beyond dispute. However, it is to be examined that whether the petition marked as Annexure P-3 which contains ground of disqualification of the petitioner by virtue of Clause (m) of sub-section (1) of section 36 of Panchayat Raj Adhiniyam may be treated as petition under section 36 of the said Act. Learned senior counsel Shri Rohit Arya vehemently contended that the Collector, Katni assumed jurisdiction under section 36 of the said Act and has virtually decided the election petition under the garb of the said provision. 8. Relevant portion of section 36 is as follows: "36. Disqualification for being office bearer of Panchayat. -- (1) No person shall be eligible to be an office bearer of Panchayat who - (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k) .... (l) is so disqualified by or under any law made by the legislature of the State. (m) has more than two living children one of whom is born on or after the 26th day of January, 2001. (l) is so disqualified by or under any law made by the legislature of the State. (m) has more than two living children one of whom is born on or after the 26th day of January, 2001. (2) If any person having been elected -as an office bearer of Panchayat -- (a) subsequently becomes subject to any of the disqualification mentioned in sub-section (1) and such disqualification is not removable or being removable is not removed [or becomes office bearer concealing his disqualification for it which has not been questioned and decided by any election petition under section 122] (underlined. by me) (b), (c) .... (3) In every case the authority competent to decide whether a vacancy has occurred under the sub-section (2) shall be Collector in respect of Gram Panchayat and Janpad Panchayat and Commissioner in respect of Zila Parishad who may give his decision either on an application made to him by any person or on his own motion. Until, the Collector or the Commissioner, as the case may be, decides that the vacancy has occurred, the person shall not cease to be an office bearer : Provided that no order shall passed under this sub-section against any office bearer without giving him a reasonable opportunity of being heard. (4) Any person aggrieved by the decision of Collector or Commissioner, as the case may be, under sub-section (3), may, within a period of 30 days from the date of such decision appeal to Commissioner or Board of Revenue respectively whose order in such appeal shall be final." 9. Thus, sub-section (3) clearly confers jurisdiction on Collector to decide whether the vacancy has occurred under sub-section (ii). Under sub-section (ii) if any person having been elected as office bearer of Panchayat becomes officer bearer concealing his disqualification for it which has not been questioned or decided in election petition under section 122, the Collector of the district is empowered to decide the question of disqualification and consequent occurrence of the vacancy due to it. Shri Rohit Arya, learned senior counsel contended that if disqualification exists prior to submission of nomination form, an election petition is the only remedy against an elected office bearer and an application under section 36 would not be maintainable. Shri Rohit Arya, learned senior counsel contended that if disqualification exists prior to submission of nomination form, an election petition is the only remedy against an elected office bearer and an application under section 36 would not be maintainable. This submission is clearly opposed to the underlined portion of clause (a) (supra), which lays down that if any person having been elected as an office bearer of Panchayat becomes office bearer concealing his disqualification for it which has not been questioned and decided by any election petition under section 122, shall subject to the provisions of sub-section (3), cease to be such office bearer and his office shall become vacant. 10. Petition, though captioned as under section 122 of Panchayat Raj Adhiniyam was directed to be decided by the Collector, Katni perhaps in the light of the provisions of clauses (1) and (m) of sub-section (1) of section 36. Since the SDD, Vijayraghavgarh had already referred it to the Collector, Katni, it is obvious that the disqualification of the petitioner on the aforesaid ground was not questioned and decided by election petition under section 122 of Panchayat Raj Adhiniyam. In view of the language of clause (a) of sub-section (2) of section 36 it may be said that the petition for disqualification of office bearer of Gram Panchayat on the ground of concealment of facts causing disqualification would not be tenable if such disqualification has been questioned and decided by election petition under section 122. 11. In the instant case, the disqualification of the petitioner on account of having given birth to the last child (with two or more already living children) was not admittedly decided in any election petition under section 122 and thus, there was no legal impediment in deciding the petition marked as Annexure P-3 by the Collector, Katni under section 36 of the Panchayat Raj Adhiniyam. Although, there is no specific mention Annexure R-1 that this Court treated the petition (Annexure P-3) as under section 36 but perhaps it was the intention of this Court while passing the order marked as Annexure R-1 directing thereby the Collector, Katni to decide the petition contained in Annexure P-3 as one under section 36 of Panchayat Raj Adhiniyam. Although, there is no specific mention Annexure R-1 that this Court treated the petition (Annexure P-3) as under section 36 but perhaps it was the intention of this Court while passing the order marked as Annexure R-1 directing thereby the Collector, Katni to decide the petition contained in Annexure P-3 as one under section 36 of Panchayat Raj Adhiniyam. If the matter is viewed from this angle, Annexure R-1 would not amount to conferring jurisdiction on the Collector, Katni but merely amounts to a direction to him to decide the petition obviously in the light of the allegations contained in it pertaining to the disqualification of the petitioner on the ground of having given birth to a child in excess of two living children on or after 26.1.2001. Accordingly, I find that the Collector, Katni has acted within jurisdiction and the impugned order does not suffer for want of it. 12. It is contended by Shri Rohit Arya, learned senior counsel that clause (m) has been omitted from sub-section (1) of section 36 w.e.f. 1.9.2006 and the learned Collector, Katni has committed an illegality in basing his order on the deleted provision of law. Clause (m) was inserted in the year 2000 which provided that a person shall be disqualified in the election to be an office bearer if he has more than two living children one of whom is born on or after the 26th day of January, 2001. This clause was deleted by the Madhya Pradesh Panchayat Raj Evam Gram Swaraj (Sanshodhan) Adhiniyam, 2006 (Act No.27 of 2006). Act No.27 of 2006 was published in the M.P. Gazette (Extraordinary) dated 1.9.2006. Thus, the deletion has been effected in prospective manner and no retrospective effect is found to have been given by Act No.27 of 2006. Election was held, result was declared and affidavits were submitted before 1.9.2006. Thus, on all the crucial dates, clause (m) was in force and was equally effective and a person having two living children and giving birth to the next child on or after 26.1.2001 did incur a disqualification by virtue of the said clause and was not eligible to be an office bearer of Gram Panchayat on the aforesaid crucial dates. Accordingly, it is found that the impugned order is not based on any non-existing legal provision. 13. Accordingly, it is found that the impugned order is not based on any non-existing legal provision. 13. Further contention of Shri Rohit Arya, learned senior counsel is that a reasonable opportunity of hearing was not granted to the petitioner as required by the proviso to sub-section (3) of section 36. There was no authentic evidence to hold that the fourth child of the petitioner was born on or after 26.1.2001. Documents relied upon by the learned Collector, Katni were not supplied to the petitioner and therefore, they could not be looked into and relied upon while passing the impugned order. Although the learned senior counsel orally submitted that the fourth issue was born on 4.11.2000, it may be seen that such defence/stand was not taken before the Collector, Katni. Petitioner was admittedly served with the show cause notice by respondent No.2. She did not submit any reply to the petition which was directed to be decided by this Court vide Annexure R-1. She did not submit any written statement before the Collector, atni and did not take any specific stand that the fourth child was born on any particular date prior to 26.1.2001. She had filed written submissions before the Collector, Katni which is on record as Annexure P-6. Even in the written submissions, no date was specified with respect to date of birth of the fourth child. The defence of the petitioner was merely of denial without taking any specific stand. On the other hand doctor's certificate Annexure P-10 is on record which certifies that the fourth child was born on 13.5.2003. This certificate was prepared and issued on the basis of various authentic record like Annexure P-9 and P-11 to P-14. True copy of the birth register is on record wherein the child is shown to have been born on 13.5.2003. Mrs. Dorothy Charles was examined who was working on the post of ANM in the Primary Health Centre, Vijayraghavgarh. Medical Officer, namely, Dr. Vinod Kumar was also examined who verified that the last issue of the petitioner was born on 13.5.2003. Thus, in the light of the evidence on record, it is found that the Collector, Katni has not recorded any perverse finding in holding that the last child of the petitioner was born after 26.1.2001. This apart, Smt. Kalpana Tiwari has also been examined who was Anganwadi Worker in village Badari. Thus, in the light of the evidence on record, it is found that the Collector, Katni has not recorded any perverse finding in holding that the last child of the petitioner was born after 26.1.2001. This apart, Smt. Kalpana Tiwari has also been examined who was Anganwadi Worker in village Badari. The case before the Collector, Katni proceeded on the basis of preponderance of probabilities and in the absence of any evidence by the petitioner, the Collector is not found to have recorded any perverse finding. 14. Shri Rohit Arya, learned senior counsel made a feeble attempt on the ground that the petition having been submitted after the prescribed period of limitation ought to have been dismissed on the ground of limitation, more so, because there is no provision for condo nation of delay in the matter of election petition. Suffice it to say that this Court has already held that the petition has been treated as under section 36 of the Panchayat Raj Adhiniyam and no limitation is provided in law for such a petition. 15. In the totality of facts and circumstances, I do not find any merit in the writ petition and the same is hereby dismissed, however, with no order as to costs.