ORDER 1. Petitioner has field the present petition being aggrieved by the order dated 30.5.2016 passed by the SDO, Khilchipur by which election of the petitioner to the post of Sarpanch, Gram Panchayat, Satankhedi, Khilchipur has been set aside. 2. Facts of the case which are not disputed are as under. Vide order dated 7.9.2009 passed by the SDO (Revenue) and the Specified Officer, Khilchipur, respondent No.3 Dule Singh was debarred from contesting election for a period of six years in exercise of powers conferred under section 40 of the M.P. Panchayat Raj Evan Gram Swaraj Adhiniyam, 1993. Respondent No.3 challenged the said order before the Additional Collector in appeal in which vide order dated 25.9.2009 he has set aside the impugned order and remanded the case to the SDO, Khilchipur. Being dissatisfied by the said order respondent No.3 preferred Writ Petition No.445/2010 before this Court on 19.1.2015. In the said petition notices were issued to the respondents but no interim relief was granted meaning thereby the order of debarment of the respondent No.3 dated 7.9.2009 continued in operation. 3. Meanwhile elections of the Gram Panchayat were declared and nomination papers were invited up to 31.1.2015. Respondent No.3, petitioner and two others viz. Jasrath Singh and Mahendra Singh submitted their nomination forms. Vide order dated 8.1.2015 nomination forms were accepted and symbols were allotted. Since the filing of nomination form by respondent No.3 was accepted by the Returning Officer two other candidates i.e. Jasrath Singh and Mahendra Singh withdrew their nomination forms. Later on objection was submitted by the present petitioner that respondent No.3 is disqualified to contest the election of the Gram Panchayat and his nomination paper was wrongly accepted, the Returning Officer vide order dated 16.1.2015 rejected the nomination form of the respondent No.3. Being dissatisfied by the order dated 16.1.2015 respondent No.3 preferred a writ petition before this Court i.e. Writ Petition No.448/2015. Vide order dated 27.1.2015 the prayer for interim relief was rejected by this Court against which a writ appeal was filed i.e. Writ Appeal No.57/2015 which was dismissed vide order dated 3.2.2015. 4. After dismissal of the writ appeal respondent No.3 withdrew the writ petition on 16.2.2015 with liberty to avail alternative remedy. 5. That Jasrath Singh and Mahendra Singh, who happens to be father and brother of respondent No.3 also filed a writ petition i.e. Writ Petition No.451/2015. 4. After dismissal of the writ appeal respondent No.3 withdrew the writ petition on 16.2.2015 with liberty to avail alternative remedy. 5. That Jasrath Singh and Mahendra Singh, who happens to be father and brother of respondent No.3 also filed a writ petition i.e. Writ Petition No.451/2015. That writ petition was also dismissed with liberty to file an election petition vide order dated 27.1.2015. 6. That election has been held in which petitioner was elected as Sarpanch unopposed. In pursuant to the withdrawal of Writ Petition No.448/2015 respondent No.3 preferred election petition before the Election Tribunal. The Election Tribunal vide order dated 30.4.2014 dismissed the election petition on the ground that respondent No.3 was disqualified to contest election for a period of six years. Being dissatisfied with the order dated 30.4.2015 respondent No.3 preferred Writ Petition No.6732/2015 before this Court. 7. That the Writ Petition No.6732/2015 came up for arguments along with other writ petitions in which identical issues were involved. Vide order dated 26.2.2016 all the writ petitions were allowed and the order of Election Tribunal were set aside on the ground that before dismissing the election petitions issues were not framed and the election petition can only be decided after framing issues and evidence thereof. 8. After passing the order dated 26.2.2016 election petition of respondent No.3 was restored by the SDO, Khilchipur. After notice to the respondents in the election petition i.e. present petitioner and Returning Officer, issues were framed whether nomination form of the election petitioner i.e. respondent No.3 was illegally rejected and if yes then the effect? In the election petition both the parties led their evidence on the basis of their pleading. 9. During the pendency of this election petition Writ Petition No.445/2015 filed on 19.1.2015 by the respondent No.3 Dule Singh against the order dated 7.9.2009 (i.e. the order passed by the SDO in which he was debarred for a period of six years) came up for hearing and vide order dated 3.3.2016 petition was disposed of with an observation that the impugned order dated 7.9.2009 will not come in the way of the respondents in contesting election in future and the same shall not be a stigma for the petitioner. Before passing this order writ Court has observed that the period of six years of debarment is over and grant of permission to participate in the process of election which was scheduled in the year 2015 is also over. 10. That the election petition was finally heard by the SDO and vide order dated 30.5.2016 the election petition was allowed placing reliance over the order passed in the case of Ranvir Singh v. State of M.P. and another, reported in AIR 1995 MP 271 . The election Tribunal has set aside the election of petitioner on the ground that once the nomination paper of the candidate has been accepted same cannot be rejected by the Returning Officer. There is no provision in the Election Rules framed under the Panchayat Raj Adhiniyam to cancel the accepted nomination papers. Being aggrieved by the order dated 30.5.2016 present writ petition has been filed. 11. I have heard learned counsel for the parties. 12. Shri Bagadiya, learned counsel on behalf of the petitioner submits that once respondent No.3 has been debarred from contesting election vide order date 7.9.2009, therefore, he is not entitled to contest the election for six years i.e. up to 6.9.2015. The candidate who is disqualified under the provisions of the Panchayat Act and the Election Rules framed thereunder is not entitled for contesting the election. The Returning Officer who wrongly accepted the nomination papers initially due to suppression of facts and disqualified the respondent No.3 has a right to cancel the nomination papers if it is brought to the knowledge of the Returning Officer that the nomination form was wrongly accepted. The order debarring respondent No.3 for a period of six years has already been attained finality and at the time of submitting the nomination papers the said order was in operation, therefore, it would a futile exercise to permit respondent No.3 to contest election and later on setting aside the election on the ground of disqualification. Therefore, Returning Officer has not committed any illegality in rejecting the nomination paper. 13. The election Tribunal vide order dated 30.5.2016 did not consider the disqualification part of the election petitioner i.e. respondent No.3 which was core issue before him. The order dated 3.3.2016 passed in Writ Petition No.445/2015 was given wrong interpretation. Therefore, Returning Officer has not committed any illegality in rejecting the nomination paper. 13. The election Tribunal vide order dated 30.5.2016 did not consider the disqualification part of the election petitioner i.e. respondent No.3 which was core issue before him. The order dated 3.3.2016 passed in Writ Petition No.445/2015 was given wrong interpretation. By this order respondent No.3 in the present petition was permitted to contest the future election but not in the election of 2015, therefore, impugned order is liable to be set aside. 14. Per contra Shri M.Manav on behalf of the respondent No.3 submitted that the Election Tribunal after framing issues especially issue No.1 (a) “whether the nomination paper of the election petitioner was illegally rejected”. The only issue which was for adjudication before the Election Tribunal and same was rightly considered and decided by the Election Tribunal. Under the election rules there is no authority to the Returning Officer to reject the nomination papers once it has been accepted because after acceptance of the nomination form he became functus officio and once the date of acceptance and rejection is over he cannot pass any order, therefore, Election Tribunal has not committed illegality in passing the impugned order. In support of his contentions, he has placed reliance over the decisions of this Court in the case State Election Commission, M.P. v. Ras Bihari Raghuwanshi and others, reported in 1995 JLJ 651 , and in the case of Satish s/o Shivnarayan Rathore and another v. State Election Commission, Bhopal, reported in 2015RN 640=2015(3) MPLJ 405. 15. Counsel for respondents No.1 and 2 has also argued in support of the impugned order and prayed for dismissal of the writ petition. 16. That undisputedly respondent No.3 was debarred to contest the election for a period of six years from 7.9.2009 to 6.9.2015. This order was challenged at various stages and finally affirmed up to this Court in Writ Petition No.445/2010. During the pendency of these proceedings before the SDO, Additional Collector, Additional Commissioner and the High Court there was no stay to the effect to disqualification of respondent No.3 to contest the election. During the pendency of these proceedings elections of various Panchayats were notified in the month of December, 2014 and as per the programme the date of submission of nomination was on 2.1.2015. As on 2.1.2015 respondent No.3 was not eligible to contest the election. During the pendency of these proceedings elections of various Panchayats were notified in the month of December, 2014 and as per the programme the date of submission of nomination was on 2.1.2015. As on 2.1.2015 respondent No.3 was not eligible to contest the election. Though his nomination paper was accepted by the Returning Officer on 8.1.2015 but later on vide order dated 16.1.2015 the same nomination paper was rejected. The rejection of nomination paper was challenged by the respondent No.3 by way of Writ Petition No.448/2015 though he was having remedy under rule 36 of the Election Rules of 1996. The said writ petition was withdrawn on 16.2.2015, therefore, the action of the respondents by which his nomination was rejected has attained finality. However, respondent No.3 sought liberty to avail remedy but he filed election petition on the ground that election of Sarpanch is materially affected due to rejection of nomination. Initially vide order dated 30.4.2015 his election petition was dismissed. Later on the said order was set aside by the High Court vide order dated 26.2.2016 on the ground that the election petitions are required to be decided after framing issues and on evidence. Accordingly the election petition was restored and finally vide order dated 30.5.2016 the election petition was allowed. Before the order dated 30.5.2016 Writ Petition No.445/2010 came up for consideration in which petitioner has challenged the order dated 7.9.2009 by which he was disqualified to contest the election. The said writ petition was disposed of by passing the following order. 3.3.2016 : Parties through their counsel. The petitioner before this Court is aggrieved by the order dated 7.9.2009 by which he was debarred from contesting election for a period of 6 years. He also prayed for grant of permission to participate in the process of election, which was scheduled in the year 2015. So far as election in question is concerned, the same is already over and the period for which the petitioner was debarred has also been over. Resultantly, the present petition stands disposed of with an observation that the impugned order will not come in the way of the petitioner for contesting the election in future and the same shall not be a stigma upon the petitioner. (S.C.Sharma) Judge 17. Resultantly, the present petition stands disposed of with an observation that the impugned order will not come in the way of the petitioner for contesting the election in future and the same shall not be a stigma upon the petitioner. (S.C.Sharma) Judge 17. In Writ Petition No.445/2015 petitioner sought permission to participate in the process of election which was scheduled in the year 2015 but during the pendency of the writ petition the election was held and the respondent No.3 could not contest the election, therefore, this Court has observed that so far as the election (election of 2015) in question is concerned same was already over. Resultantly, the petition was disposed of with an observation that the impugned order i.e. 7.9.2009 will not come in the way of the petitioner for contesting the election in future. The word 'in future' means after the present election of 2015, therefore, the effect of this order is that petitioner himself sought liberty to contest elections in future. At the relevant time of passing of the order dated 3.3.2016 his election petition was pending. The petitioner (i.e. respondent No.3) could have sought observation that the disqualification by virtue of the order dated 7.9.2009 should not come in the way of the pending election petition but respondent No.3 himself obtained an order that the present election i.e. the election of 2015 is over and sought liberty to contest the election in future because by that time the period of six years of disqualification would be over, therefore, in the considered opinion of this Court vide order dated 3.3.2016 petitioner has given up his right to contest the election of 2015. The Election Petition No.1/C144/2015-2016 is arising out of the election held in the year 2015 and admittedly at the time of election the disqualification was attached with respondent No.3. The election Tribunal ought to have framed the issue to this effect. 18. So far as the contention of the respondent No.3 is concerned that the only issue in the election petition was whether his nomination paper was illegally rejected. The elections under the Panchayat Act are the statutory elections. To contest such election there is eligibility conditions are provided under the Panchayat Act and Rules. 19. 18. So far as the contention of the respondent No.3 is concerned that the only issue in the election petition was whether his nomination paper was illegally rejected. The elections under the Panchayat Act are the statutory elections. To contest such election there is eligibility conditions are provided under the Panchayat Act and Rules. 19. That under sub section (2) of section 40 of the Panchayat Raj Adhiniyam, 1993 a person who has been removed under sub-section (1) shall be ceased to be a member and shall also be disqualified for a period of six years to be elected, therefore, by virtue of sub section (2) of section 40 respondent No.3 was disqualified to contest the election which is an inherent disqualification of a candidate to contest the election. The scrutiny of nomination paper is provided under rule 35 of the M.P. Pachayat Nirvachan Niyam, 1995. Under rule 35 the Returning Officer is authorized to hold the scrutiny of the nomination paper on the appointed date. It is further provided that in case of any objection is raised by the Returning Officer or is made by any other person, the candidate may be allowed time to rebut it and the Returning Officer shall adjourn the date. Under sub-rule (6) the Returning Officer is authorized to return the nomination paper and the said order is subject to the result of the revision under rule 36. A complete procedure has been prescribed under rule 36 to decide appeal against the rejection of nomination paper, therefore, at the relevant time respondent No.3 did not resort this remedy available under rule 36 to challenge the order dated 16.1.2015 by which his nomination was rejected. The petitioner has directly filed the writ petition No.448/2015 against the order dated 16.1.2015. The conduct of respondent No.3 was treated as active suppression and the fact about the disqualification at the time of submission of nomination paper. Respondent No.3 was not granted interim relief by writ Court and even Writ Appeal No.57/2015 was also dismissed. The judgment passed in the case of State Election Commission, M.P. v. Ras Bihari Raghuwanshi and others, reported in 1995 JLJ 651 , was considered in writ appeal and interim relief was denied, therefore, at the relevant stage respondent No.3 was not permitted to participate in the election by this Court because of the inherent disqualification by virtue of order dated 7.9.2009. This Court in the case of Suresh Choudhary v. Atarlal Verma and others, in Writ Petition No.823/2005 has held that the candidate who is disqualified is not entitled to contest the election, therefore, even if we hold that the nomination paper is once accepted cannot be rejected the respondent No.3 would not be entitled to contest election of 2015. In the case of Suresh Choudhary (supra), this Court has held in paragraphs-12, 13, 14 and 18 as under : 12. On a perusal of the aforesaid pronouncement of law it is perceivable that the learned Single Judge has found in that case that the respondent No.6 did not lack the basic qualification as provided to contest the election. In that backdrop the learned Single Judge distinguished the case of K.Venkatachalam (supra). 13. Presently, I shall refer with profit to the law laid down in the case of K.Venkatachalam (supra). In the aforesaid case the apex Court was dealing with a case where the candidate had incurred the disqualification prior to the election and knew about it. Their Lordships came to hold that a writ petition under Article 226 for declaring that the candidate was not qualified for the Membership was maintainable. Their Lordships in Paragraphs 27 and 28 of the said decision expressed the view as under : 27. In view of the judgment of this Court in the case of Election Commission of India v. Saka Venkata Rao, it may be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to his election. Various decisions of this Court which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above do not appear to apply to the case of the appellant now before us. Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of Constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one, bar of Article 329(b) will not come into play when case falls under Articles 191 and 193 and whole of the election process is over. Consider the case where the person elected is not a citizen of India. In circumstances like the present one, bar of Article 329(b) will not come into play when case falls under Articles 191 and 193 and whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the Court allow a foreign citizen to sit and vote in the legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution ? 28. We are, therefore, of the view that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislature Assembly with consequent restraint order on him from functioning as a member of the Legislative Assembly. The net effect is that the appellant ceases to be a member of the Tamil Nadu Legislative Assembly. Period of Legislative Assembly is long since over. Otherwise we would have directed respondent No.2, who is Secretary to Tamil Nadu Legislative Assembly, to intimate the Election Commission that Lalgudi Assembly Constituency seat has fallen vacant and for the Election Commission to take necessary steps to hold fresh election from that Assembly Constituency. Normally in a case like the Election Commission should invariably be made a party. 14. In this context, I may fruitfully refer to the decision rendered in the case of Shaligram Shrivastava (supra), wherein in Paragraphs 10 and 16 it has been held as under : 10. At the time of security the Returning Officer is entitled to satisfy himself that a candidate is qualified and not disqualified. Sub-section (2) of section 36 authorises him to hold an enquiry on his own motions, though summary in nature. The Returning Officer furnished a proforma to the candidates to be filled on affidavit and filed on or before the date and time fixed for scrutiny of the nomination paper. Thereafter providing a proforma, eliciting necessary and relevant information in the light of section 8 of the Act to enquire as to whether the person is qualified and not disqualified, is an act or function fully covered under sub-section (2) of section 36 of the Act. The Returning Officer is authorized to seek such information to be furnished at the time or before scrutiny. The Returning Officer is authorized to seek such information to be furnished at the time or before scrutiny. If the candidate fails to furnish such information and also absents himself at the time of the scrutiny of the nomination papers, is obviously avoiding a statutory enquiry being conducted by the Returning Officer under sub-section (2) of section 36 of the Act relating to his being not qualified or disqualified in the light of section 8 of the Act. It is bound to result in defect of a substantial character in the nomination. ****** 16. In the case in hand the candidate had failed to furnish such information as sought on the proforma given to him and had also failed to be present personally or through his representative at the time of scrutiny. The statutory duty/power of Returning Officer for holding proper scrutiny of nomination paper was rendered nugatory. No scrutiny of the nomination paper could be made under section 36(2) of the Act in the light of section 8 of the Act. It certainly rendered the nomination paper suffering from defect of substantial character and the Returning Officer was within his rights in rejecting the same. 18. If the aforesaid provision is read in proper perspective there remains no scintilla of doubt that the respondent No.1 had deliberately not mentioned the factum of disqualification. It is interesting to note that the respondent No.1 has chosen not to file counter affidavit. Other respondents have categorically and unequivocally stated that respondent No.1 was proceeded under section 40 and was removed from the post and disqualification was attached. This was within the special knowledge of respondent No.1. Despite the same he chose not to disclose the said aspect. There cannot be any doubt that had the said fact been disclosed his nomination paper would not have been accepted. In the absence of any counter affidavit and submissions made by other respondents it is quite vivid that the respondent No.1 has played fraud on the statute. An election a democratic polity has its sacrosanctity, respondent No.1 has endeavoured to created a concavity in the same. Such a thing in a democratic set up is not permissible. He is not entitled to hold the office as he was not eligible tom contest the election. An election a democratic polity has its sacrosanctity, respondent No.1 has endeavoured to created a concavity in the same. Such a thing in a democratic set up is not permissible. He is not entitled to hold the office as he was not eligible tom contest the election. A person who is not entitled to contest the election and the fact is absolutely tell-tale and clear as day like a shine on the seashore and does not require any inquiry, his continuance cannot be accepted. The writ petition would be maintainable as such a person cannot be allowed to participate in a proceeding of Jila Panchayat as a Member and his election has to be declared as illegal. Ergo, a writ of quo warranto would be maintainable and relief can be granted. 20. Respondent No.3 could not get any relief from this Court because at the relevant timeof election he was disqualified to contest the election. By allowing the election petition or upholding the order would amount to permitting wrong in perpetuity by this Court. 21. That the wrong acceptance of the nomination paper of a candidate who was not qualified to contest the election materially affect the result of the election of the returned candidate. The Supreme Court in the case of Shiv Charan Singh v. Chandra Bhan Singh and others, reported in AIR 1988 SC 637 , has held that the election of a returned candidate must be allowed to stand and the Court should not interfere with the same with speculation and conjecture. There is no possibility that had the nomination paper of the respondent No.3 was accepted he would have been elected as a Sarpanch, therefore, mere rejection of nomination paper cannot be a ground to set aside the election. 22. In the impugned order the SDO has set aside the election on the ground that vide order dated 3.3.2016 the period of six years of disqualification was over in the year 2015 and the petitioner can be permitted to be participated in the election. That the SDO gave a wrong interpretation to the order dated 3.3.2016 of this Court. The disqualification and qualification to contest the election has to be seen when the election was held and not subsequent to that. In the election which was held in January, 2015 respondent No.3 was disqualified. Subsequently he can become qualify to contest the election. That the SDO gave a wrong interpretation to the order dated 3.3.2016 of this Court. The disqualification and qualification to contest the election has to be seen when the election was held and not subsequent to that. In the election which was held in January, 2015 respondent No.3 was disqualified. Subsequently he can become qualify to contest the election. The election petition was in respect of the election held in the year 2015, therefore, the qualification and disqualification has to be seen when the election was held not by way of subsequent development. The election petition has been allowed only on the consideration that now the fresh election will be held in which respondent No.3 can contest the election. 23. In view of the above discussion, I find that the SDO has wrongly set aside the election of the petitioner, therefore, the impugned order dated 30.5.2016 is set aside. Petitioner is permitted to continue to work as Sarpanch.