H.L.GOKHALE, J. - (1.) HEARD Mr. Radha Kant Ojha with Mr. N.L. Srivastava, learned Counsel for the petitioner. Mr. Zafar Nayyer, learned Additional Advocate General with Mr. YK. Srivastava, learned Standing Counsel appearsfor respondents 1 and 3. Mr. P.N. Rai, appears for respondent No. 2
(2.) THE petitioner is an elected member of Block Panchayat of Manikpur in district Chitrakoot. After this election was held, the petitioner contested for the election to the post of Block Pramukh (Block Chairman). One Dinesh Prasad Misra got elected. The petitioner has filed an election petition in the Court of District Judge, Chitrakoot. It is numbered as Election Petition No. 1 of 2006 and is pending in the Court of Additional District Judge, Chitrakoot. The aforesaid Dinesh Prasad Misra resigned from his post on 7.7.2007 and that was accepted by the President of Zila Panchayat on 13.7.2007. Mr. Misra has resigned since he has been elected as a member of the State Legislature. Now the State Election Commissioner by its notification dated 7.7.2008 has announced the programme of the election to this vacancy and under this programme, the last date for filing nomination is 14.7.2008. The case of the peti­tioner is that when his Election Petition is pending, the Election Commission cannot proceed to hold the election for that post.
(3.) MR . Ojha, learned Counsel for the petitioner has relied upon a judgmentof the Apex Court in D. Sanjeevayya v. Election Tribunal, Andhra Pradesh andothers, AIR 1967 SC 1211. In that matter, the appellant had been elected to a seat to the Andhra Pradesh Legislative Assembly. The said election had been challenged by the second respondent. During the pendency of that election petition, the appellant was appointed as a member in the Central Gabinet and in turn became a member of the Rajya Sabha. He resigned his seat in the State Legislative Assembly, and then filed a writ petition against the State Election Commission, seeking a writ of mandamus that it ought to hold the election to the vacancy arising out of his resignation. The appellant had relied upon Section 150 of the Representation of People Act, 1951, which provides that when a seat of the mem­ber elected to the Legislative Assembly becomes vacant, or is declared vacant, or his election is declared void, the Election Commission shall call upon Assem­bly Constituency to elect a person for the purpose of filling the vacancy. The Apex Court held that this Section will have to be interpreted in the context of Sections 84 and 98 (c) of the Act. Section 84 permits an election petition to claim in addition to claiming a declaration that the election of an elected candidate is void that the petitioner himself be declared as duly elected. Section 98 (c) lays down that at the end of the conclusion of the trial, the Tribunal can make such an order.;