( 1. ) THE present appeal has been preferred under Section 2 (1) of m. P. Uchha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 against the judgment dtd. 12/12/2006 passed by the learned Single Judge in W. P. No. 5319/ 2004. The present appellant filed a petition praying for a writ of Quo-warranto against the respondent no. 3, who was elected on the office of Mayor of the municipal Corporation, Bhopal, on the ground that the respondent no. 3 is disqualified to hold the post of Mayor, therefore, respondent no. 3 be asked to vacate the office of the Mayor.

( 2. ) THE present appellant is a voter of Ward No. 39 Chandbad Ward, Municipal corporation, Bhopal. The respondent no. 3 earlier was elected as a Councillor of municipal Corporation, Bhopal and thereafter was elected as the Chairman of the municipal Council, Bhopal. While the respondent no. 3 was holding the office of chairman, the State Govt. issued a show cause notice to him u/s 19-B of the M. P. Municipal Corporation Act, 1956 (for brevity "act" ). The respondent no. 3 filed his reply to the said show cause notice and thereafter the State Govt. passed an order on 17th March 2004 (Annexure-P-3) removing him from the office.

( 3. ) THE respondent no. 3 filed a petition before this Court challenging the legality and validity of the said order by which the respondent no. 3 was removed from the office of Mayor. The said petition was registered as W. P. No. 1320/2004. The aforesaid petition after the election of the respondent no. 3 on the post of Mayor was withdrawn on 11/01/2005. Subsequently a review application was filed by the respondent no. 3 which was registered as MCC No. 54/2000 and this Court by an order dtd 21/04/2005 recalled the order of withdrawal of the said petition and the petition was restored to its original status, which is still pending. During the pendency of the said petition the present appellant filed a petition before this court seeking a writ of Quo-warranto.

( 4. ) THERE are further undisputed facts that against the election of the respondent no. 3 to the post of Mayor an election petition has also been filed which is still pending. The said election petition has been filed u/s 441 of the M. P. Municipal corporation Act, 1956.

( 5. ) BEFORE the learned Single Judge it was submitted on behalf of the present appellant that since the respondent no. 3 was removed u/s 19-B of the Act from the post of Mayor, therefore he incurred disqualification to contest the election either for the office of Councilor or for the office of Mayor. Considering the language of the Section 17 and the disqualification as prescribed u/s 17 (1) (b) of the "act" the learned Single Judge held that the respondent no. 3 did not suffer with the disqualification and accordingly the learned Single Judge dismissed the petition. Learned Single Judge arrived at a conclusion that the State Govt. while passing the order of removal u/s 19-B of the Act, since has not passed any order under Sub Section 2 of Section 19-B of the Act, therefore the respondent no. 3 did not suffer with any disqualification u/s 17 (1) (b) of the Act and accordingly the petition has been dismissed. The present appeal has been preferred to challenge the order passed by the learned Single Judge.

( 6. ) ON behalf of the respondent no. 3 a preliminary objection was raised that the petition before the learned Single Judge was not maintainable. It is contended that the election petition has already been filed under the provisions of the Act which is still pending therefore for the purposes of setting aside the election of the respondent no. 3 no petition under Article 226 of the Constitution is maintainable. On behalf of the writ-appellant it was submitted that by virtue of Article 329 of the Constitution of India though similar bar has been created and the Apex Court in series of its judgments has held that the aforesaid bar only applies during the process of election i. e from the date the election was notified and