ORDER
Dipak Misra, J.
1. The petitioner is the Up-Sarpanch of Gram Panchayat, Kendatola. Respondent No. 4 was elected as Sarpanch of the aforesaid Gram Panchayat. A motion of no-confidence was moved against him on 30th September, 2000 on certain charges of corruption. The photostat copy of the proceeding has been brought on record as Annexure P-1. After he was removed from the post of Sarpanch the petitioner was given the charge of Sarpanch. It is alleged that the respondent No. 4 had given an undertaking that she would deposit rupees 18,523/- by 13th October, 2000 but she failed to deposit the same. It is pleaded that inspite of allegations against her the respondents Nos. 2 and 3 Sub-Divisional Officer, Revenue (Assistant Election Officer) and Naib Tehsildar, Baihar (Returning Officer) have permitted the respondent No. 4 to contest in the bye-election to be held on 17-12-2000 in violation of M.P. Panchayat Raj Adhiniyam, 1993 and the Rules framed thereunder. It is also urged that the respondent No. 4 is not entitled in law to contest in the bye-election.
2. Notice was issued to the respondent No. 4 but she has chosen not to appear. However, as a pure question of law arises Mr. Sunil Choubey, learned Panel Lawyer for the State appearing for the respondent Nos. 2 and 3 agreed to argue the matter.
3. I have heard Mr. Faiyaz Khan, learned counsel for the petitioner and Mr. Sunil Choubey, learned Panel Lawyer for the State.
4. The core question that falls for consideration is when a Sarpanch is removed from his/her post by vote of no-confidence, is he/she entitled to contest in the bye-election.
5. Section 17 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act') deals with the election of Sarpanch and and Up-Sarpanch. Sub-section (1) of the aforesaid Section is relevant for the present purpose. It reads as under :
'17. (1) In every Gram Panchayat there shall be a Sarpanch and an Up-Sarpanch. A person who-
(i) is qualified to be elected as panch;
(ii) is not a member of either House of Parliament or Member of State Legislative Assembly; and
(iii) is not Chairman or Vice-Chairman or Co-operative Society; shall be elected as a Sarpanch, subject to provisions of Sub-sections (2), (3) and (4) by persons whose names are included in the list of voters of the Gram Panchayat area in such manner as may be prescribed.'
6. Section 21 deals with no-confidence motion against the Sarpanch and Up-Sarpanch. It is apposite to reproduce Section 21 :
'21. No-confidence montion against Sarpanch and Up-Sarpanch.--
(1) On a motion of no-confidence being passed by the Gram Panchayat by a resolution passed by majority of not less than three fourth of the panchas present and voting and such majority is more than two third of the total number of Panchas constituting the Gram Panchayat for the time being, the Sarpanch or Up-Sarpanch against whom such motion is passed, shall cease to hold office forthwith.
(2) Notwithstanding anything contained in this Act or the rules made thereunder a Sarpanch or an Up-Sarpanch shall not preside over a
meeting in which a motion of no-confidence is discussed against him. Such meeting shall be convened in such manner as may be prescribed and shall be preside over by an officer of the Government as the Prescribed Authority may appoint. The Sarpanch or the Up-Sarpanch, as the case may be, shall have a right to speak at, or otherwise to take part in, the proceeding of the meeting.
(3) No-confidence motion shall not lie against the Sarpanch or Up-Sarpanch within a period of--
(i) one year from the date on which the Sarpanch or Up-Sarpanch enter their respective office;
(ii) six months preceding the date on which the term of office of the Sarpanch or Up-Sarpanch, as the case may be, expires;
(iii) One year from the date on which previous motion of no-confidence was rejected.
4. If the Sarpanch or the Up-Sarpanch, as the case may be, desires to challenge the validity of the motion carried out under Sub-section (1), he shall, within seven days from the date on which such motion was carried, refer the dispute to the Collector who shall decide it, as far as possible, within thirty days from the date on which it was received by him, and his decision shall be final.'
7. Section 21 -A provides for recalling of office bearers of Gram Panchayat. Section 36 of the Act deals with disqualification for being office bearer of Panchayat. Sub-section (1) of the aforesaid Section is relevant for the present purpose. It reads as under:
36. (1) No person shall be eligible to be an office-bearer of Panchayat who--
(a) has, either before or after the commencement of this Act, been convicted :-
(i) of an offence under the Protection of Civil Rights Act, 1955 (No. 22 of 1955) or under any law in connection with the use, consumption or sale of narcotics or any law corresponding thereto in force in any part of the State, unless a period of five years or such lesser period as the State as the State Government may allow in any particular case has elapsed since his conviction; or
(ii) of any other offence and had been sentenced to imprisonment for not less than six months, unless a period of five years or such less period as the State Government may allow in any particular case has elapsed since his release; or
(b) is of unsound mind and stands so declared by a competent Courts; or
(c) is an applicant to be adjudged an insolvent or is an undischarged insolvent; or
(d) hold an office of profit under any Panchayat or is in the service of any other local authority or Co-operative Society or the State Government or Central Government or any Public Sector undertaking under the control of the Central Government or the State Government:
Provided that no person shall be deemed to have incurred disqualification under this clause by reason of being appointed as a Patel under the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959); or
(e) has been dismissed from the service of the State Government or Central Government, or a panchayat, or any other local authority, or a Co-Operative Society, or any Public Sector undertakings under the control of the Central Government or the State Government for corruption or for disloyalty ; or
(f) has directly or indirectly any share or interest in any contract with, by or on behalf of the Panchayat, while owning such share or interest:
Provided that person shall not be deemed to have incurred disqualification under clause (f) by reason of his--
(i) Having share in any joint stock company or a share or interest in any Association registered under the Madhya Pradesh Society Registrikaran Adhiniyam, 1973 (No. 44 of 1973) or in any Co-operative Society which shall contract with or be employed by or on behalf of the Panchayat; or
(ii) having share or interest in any newspaper in which any advertisement relating to the affairs of the Panchayat is inserted; or
(iii) holding a debenture or being otherwise concerned in any loan raised by or on behalf of the Panchayat;
(g) is employed as paid legal practitioner on behalf of the Panchayat; or (h) is suffering from a variety of leprosy which is infectious; or
(i) has voluntarily acquired the citizenship of a Foreign State, or is under any acknowledgment of allegiance or adherence to a Foreign State; or
(j) has been disqualified under the Act repealed by Section 130 during the period of five years preceding the date of filing a nomination
paper in any election to be held for the first time under this Act and the period of such disqualification has not elapsed or the disqualification has not be removed; or
(k) is disqualified by or under any law for the time being in force for the purpose of election to the State Legislative Assembly;
Provided that no person shall be disqualified on the ground that he is less than 25 years of age if he has attained the age of 21 years.
(l) is so disqualified by or under under any law made by the legislature of the State.'
On a perusal of the aforesaid it is quite clear that a Sarpanch who is removed from office by a vote of no-confidence does not become disqualified to contest the election.
8. At this juncture I may refer to Section 39 which deals with suspension of office bearer of Panchayat. It is apposite to reproduce the said provision:
'39. Suspension of office bearer of Panchayat.-- (1) The prescribed authority may suspend from office any office bearer--
(a) against whom charges have been framed in any criminal proceedings under Chapters V-A, VI, [IX], IX-A, X, XII, Sections 302, 303, 304B, 305, 306, 312 to 318, 366A, 366B, 373 to 377 of Chapter XVI, Sections 395 to 398, 408, 409, 458 to 460 of Chapter XVII and Chapter XVIII of the Indian Penal Code, 1860 (XLV of 1860) or under any Law for the time being in force for the prevention of adulteration of food stuff and drugs, [suppression of immoral traffic in women and children, protection of civil rights and Prevention of Corruption]; or (2) The order of suspension under Sub-section (1) shall be reported to the State Government within a period of ten days and shall be subject to such orders as the State Government may deem fit to pass. If the order of suspension is not confirmed by the State Government within 90 days from the date of receipt of such report is shall be deemed to have vactated.
(3) In the event that the Sarpanch of Gram Panchayat, President of Janpad Panchayat or Zila Panchayat, as the case may be is suspended under Sub-section (1), the Secretary or the Chief Executive Officer of the concerned Panchayat shall cause to be called a special meeting of the Panchayat immediately, but not later than fifteen days from the date of receipt of information from the prescribed authority and the members shall elect from amongst themselves, a person to hold the office of Sarpanch or President temporarily, as the case may be, and such officiating Sarpanch or President shall perform all the duties and exercise all the powers of Sarpanchy or President as the case may be, during the period for which such suspension continues :
Provided that if the office of the Sarpanch or President is reserved for the member of Scheduled Castes or Scheduled Tribes or other Backward Classes or for a woman, the officiating Sarpanch or President shall be elected from amongst the members belonging to the same category;
Provided further that where the office of Sarpanch or President is reserved for a woman belonging to Scheduled Castes or Scheduled Tribes or other Backward Classes and there is no other woman member of the Panchayat belonging to that category who can be elected to officiate as Sarpanch or President, as the case may be, any other woman member belonging to the other reserved categories, may be elected to officiate as Sarpanch or President as the case may be.
(4) A person who has been suspended under Sub-section (1) shall also forthwith stand suspended from the office of member or office bearer of any other Panchayat of which he is a member or office bearer. Such person shall also be disqualified for being elected under the Act during his suspension.'
9. On a bare reading of the aforesaid provision it is apparent that a person who is suspended under Section 39 (1) shall be disqualified for being elected under the Act during the period of suspension. Section 40 of the Act deals with removal of office bearers of Panchayat. Section 40 (2) reads as under :
'40 (2) A person who has been removed under Sub-section (1) shall forthwith cease to be a member of any other Panchayat of which he is a member, such person shall also be disqualified for a period of six years to be elected under this Act.'
Thus the aforesaid provision makes it crystal clear that if a person is removed under Sub-section (1) of the Section 40 by the State Government or the prescribed authority he/she shall be disqualified for a period of six years to be elected under the Act. On a scrutiny of the aforesaid provisions of the Act I do not perceive anything to show that a person who has been removed from the post of Sarpanch by a vote of no-confidence is disqualified to contest in the election. There is nothing in the Madhya Pradesh Panchayat Nirvachan Niyam, 1995. I have also perused the Madhya Pradesh Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janapad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav) Niyam, 1994. The said rule is also silent with regard to disqualification. I have also scrutinised the Madhya Pradesh Panchayats (Election Petition, Corrupt Practices and Disqualification for Membership) Rules, 1995. The aforesaid rules also do not lay down any thing with regard to participation in the election by a person who has been removed by vote of no-confidence.
10. In view of the aforesaid analysis I am of the considered view that the challenge by the petitioner to the action of the respondent Nos. 2 and 3 is absolutely untenable and the writ petition is accordingly dismissed without any order as to costs.