1. The petitioner Desraj Singh was SarpancSh of Gram Panchayat Tilabujurg having been elected under Section 17 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (for brevity, hereinafter referred to as the Act). The Gram Panchayat Tilabujurg was constituted having him as Sarpach, one Up-Sarpanch and nine other members.

2. A notice for bringing motion of no-confidence against the Sarpanch was given whereupon the prescribed authority, after being satisfied about the admissibility of the notice with reference to section 23, 28 (3) and 35 (3) of the Act, as the case may be, fixed the date, time and place for the meeting of the Gram Panchayat Tilabujurg for consideration of the motion of no-confidence. The meeting for consideration of the motion of no-confidence against the petitioner was held on 24.7.96 and the motion of no-confidence against the petitioner was considered. Under sub-rule (5) of Rule 5 of the Madhya Pradesh Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch. Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav) Niyam, 1994 (for brevity, hereinafter referred to as the Rules), it has been provided that the member who wants to vote in favour of the motion shall affix the symbol (right) (tick) and the member who wants to vore against the motion shall affix the symbol (‘X') (cross), against the name of the person against whom no confidence motion is moved. It is a method of recording of votes provided under the rules, maintaining the secrecy, No-confidence motion against the petitioner was declared to have been passed vide Annexure P-3 by the presiding officer. This resolution is under challenge by means of this writ petition.

3. This petition is being finally disposed of with the consent of the learned counsel for the parties.

4. Heard the learned counsel for the petitioner Shri T.S. Ruprah and the learned counsel for the respondents No.1, 4 and 5 Shri P.C. Paliwal, Respondent No.4 Veeran Singh was the Up-Sarpanch of Gram Panchayat Tilabujurg and respondent No.5 Sudhirsingh was the subsequently elected Sarpanch in place of the petitioner, on 11.12.96 during the pendency of this petition. Shri Vivekanand Awasthy, learned State Counsel is also heard.

5. Learned counsle for the petitioner made two-fold submission :-

(1) That legally no-confidence motion against the petitioner was not passed but the same failed.

(2) That the subsequent election of respondent No.5 in place of the petitioner is void, as under the law, bye-election can take place only if there is vacancy in the office of the sarpanch created in accordance with law.

6. In regard to the first submission, the position is that there were 11 Panchas including the petitioner, who was the Sarpanch. U/s 17 (1) of the Act, the Sarpanch is elected from amongst the Panchas of the Gram Panchayat but is directly elected. The Up-Sarpanch is elected after the election of the Gram Panchayat from amongst the Panchas, including the Sarpanch. "Panch" is defined u/s 2 (xvi) of the Act as :

"( vxi) "Panch" means a panch of a gram panchayat".

Sarpanch and Up-Sarpanch are defined in clause (xxv) of section 2 of the Act, as :

"(xxv) "Sarpanch" and "Up-Sarpanch" means the Sarpanch and Upsarpanch respectively of a Gram Panchayat, as the case may be;"

7. In clause (xvi) of section 2, the word "Panch" is defined which means any member of the Gram Panchayat and by virtue of the definition, the Sarpanch, who is independently elected by the general electoral simultaneously with the; members, is, by virtue of sub-section (8) of section 17 of the Act, deemed to be panch of the Gram Panchayat for the purpose of the Act. Thus, the Sarpanch is also a panch of the Gram Panchayat.

8. The total strength of the gram panchayat thus was 11 including the Sarpanch. The intention was indicated in the meeting through a secret ballot paper and marking was done in accordance with the provisions of the Rule 5 of the Rules. Out of 11, eight persons indicated t