1. Petitioner Smt. Ramvati has invoked the jurisdiction of this Court under Article 226 of the Constitution of India, assailing the order Annexure P/1, whereby under Madhya Pradesh Panchayat Nirvachan Niyam, 1995 (hereinafter called "Rules of 1995") the elections for the post of Sarpanch are notified and the post of Sarpanch is decided to be filled up from General Women Category. Shri Singh assailing the order, Annexure P/1, submitted that by order dated 12.3.2010 (Annexure P/2) the petitioner was elected as Sarpanch by invoking Section 13(2) of Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the "Adhiniyam"). Since she was elected for the post of Sarpanch in accordance with the Adhiniyam, she has a valuable legal right to complete her tenure and notification issued midway, Annexure P/1, runs contrary to the mandate of the Adhiniyam and the Rules made thereunder.

2. Shri Singh further assailed Annexure P/1 on the ground that the requirement of various provisions of the Rules of 1995 were not fulfilled. The petitioner submits that Annexure P/1 is full of illegalities and infirmities and cannot sustain judicial scrutiny. It is the case of the petitioner that as per Section 17(6) of the Adhiniyam, a Sarpanch shall be elected from SC, ST and other Backward Class and if no Sarpanch is available from any of the said categories, bye-election cannot be held by District Returning Officer for the post of Sarpanch. It is further submitted that there exists no notification by the Election Commission as per rule 28 of the Rules of 1995 and, accordingly, the order Annexure P/1 is without authority, jurisdiction and competence.

3. The petitioner assailed the order Annexure P/1 on yet another ground that the petitioner belongs to SC category and was duly elected as Sarpanch and before completion of her tenure, she cannot be thrown away by the impugned notification Annexure P/1 dated 20.6.2011 and by conducting election for her post.

4. The petitioner further submitted that Rule 7 of the Rules of 1995 is not complied with and in absence thereof the notification Annexure P/1 runs contrary to the rules and liable to be quashed and set aside.

5. Shri Pravin Newaskar, learned Deputy Government Advocate on advance notice, appeared on behalf of the State and supported the notification, Annexure P/1. Shri Newaskar produced certain documents for the perusal of the Court, wherein as per his submission, the Election Commission has given authority to exercise these powers to the Collector, a Prescribed Authority under the Adhiniyam/Rules. My attention is drawn on the document dated 21.7.2006, issued by State Election Commission, which reads as under :-

Language

6. Shri Pravin Newaskar is directed to file the aforesaid documents on record during the course of the day.

7. I have considered the arguments, perused the record and relevant provisions of the Act and Rules.

8. As per petitioner's own saying, the petitioner was elected under Section 13(2) of the Adhiniyam, which is also clear from Annexure P/2. Pausing here for a moment, it will be important to notice here that the regular election of the Sarpanch is held under Section 17 of the Adhiniyam. Section 17(1) is reproduced here as under :-

"17. Election of Sarpanch and Up-Sarpanch. - (1) In every Gram Panchayat there shall be a Sarpanch and 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 of Cooperative Society; shall be elected as a Sarpanch, subject to provisions of sub-section (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." (emphasis added).

A bare perusal of this sub-section (1) makes it crystal clear that a regular Sarpanch is elected by persons whose names are included in the list of voters of Gram Panchayat area in the manner it is prescribed. Thus, the election of Sarpanch is a direct election by exercising voting powers of all the voters of the Gram Panchayat.

9. It is not in dispute that the petitioner is elected by panchas by notification dated 12.3.2010 under Section 13(2) of the Adhiniyam. Section 13(2) of the Adhiniyam is reproduced here for ready reference :

"13. Constitution of Gram Panchayat. - (1) Every Gram Panchayat shall consist of elected Panchas and a Sarpanch.

(2) If any village or ward fails to elect a Sarpanch or, as the case may be, a Panch, fresh election proceedings shall be commenced to fill the seat in such village or as the case may be, such ward within six months :

Provided that pending the election of Sarpanch under this sub-section, elected panchas shall subject to the provisions of sub-sections (2), (3) and (4) of Section 17, in the first meeting under section 20 elect a Sarpanch from amongst themselves who shall discharge all the functions of Sarpanch under the Act till a Sarpanch elected under this sub-section enters upon the office." (emphasis added).

A microscopic reading of this provision shows that it is obligatory for every Gram Panchayat to elect Panchas and Sarpanch. Sub-section (2) deals with a situation where a voter or ward fails to elect a Sarpanch or, as the case may be, a Panch, and fresh election proceedings shall be commenced to fill the seat in such village or as the case may be, such ward within six months. It is important to note here that the admitted position in the present case, which is evident from the document, Annexure P/2, is that in the Gram Panchayat the post of Sarpanch was reserved for ST Woman but in absence of voters the said post of Sarpanch remained vacant and, therefore, by invoking the provisions of Section 13(2) of the Adhiniyam it was filled up at a later point of time by petitioner, who was elected by Panchas and not by the general voters.

10. A further microscopic reading of Section 13 (2), first proviso, makes it crystal clear that the election of Sarpanch under this subsection, elected panchas shall subject to the provisions of subsections (2), (3) and (4) of Section 17, in the first meeting under section 20 elect a Sarpanch from amongst themselves who shall discharge all the functions of Sarpanch under the Act. The words "Pending the election of Sarpanch" and "Till a Sarpanch elected under this sub-section enters upon the office" make it crystal clear that this is a transitory arrangement and till a fresh proceeding for filling the post of Sarpanch is undertaken, which is required to be undertaken within six months as per Section13(2) of the Adhiniyam, a Sarpanch elected under sub-section (2) may enter and enjoy the office. Thus, first submission of the petitioner that she is regularly elected and therefore she has a right to continue and complete her tenure, cannot be accepted and is hereby rejected. As per Section 13 of the Adhiniyam it is very clear that this is a stop gap arrangement and transitory provision, wherein the Sarpanch is elected from Panchas till a fresh election proceeding is commenced, which is required to be commenced within six months as per the statutory mandate of Section 13(2) of the Adhiniyam.

11. The petitioner's contention regarding her right to continue deserves to be negated on yet another reason. The third proviso of Section 13(2) of the Adhiniyam reads as under :-

"Provided also that if any village or ward again fails to elect a Sarpanch or as the case may be, a Panch, fresh election proceedings shall not be commenced in such village or as the case may be, in such ward unless the State Election Commission is satisfied that there is likelihood of the village or as the case may be, a ward electing a Sarpanch or a Panch; and in case the Commission decides not to hold fresh election of Sarpanch, the Sarpanch elected under the first proviso shall continue to discharge all the functions of Sarpanch under the Act."

The aforesaid third proviso makes it absolutely clear that in the event of failure of village in again electing a Sarpanch, fresh proceedings shall not be commenced in such village unless the State Election Commission is satisfied that there is likelihood of village electing a Sarpanch and in case the Commission decides not to hold fresh election of Sarpanch, the Sarpanch elected under the first proviso shall continue to discharge all functions of Sarpanch under the Act. Admittedly, this is nobody's case. The village has not again failed to elect a Sarpanch and such an election is notified by Annexure P/1. If after Annexure P/1 also no election takes place, it is the discretion of the State Election Commission to decide not to hold fresh election and only in that event the petitioner may have some right to continue to discharge all functions of Sarpanch. Thus, in my considered opinion, the petitioner, at present, has no statutory, legal, accrued or vested right to continue and Annexure P/1 is in consonance with the mandate of Section 13(2) of the Adhiniyam.

12. The next submission of the petitioner is that the provisions of rules 28 and 7 of the Rules of 1995 are not fulfilled. The documents produced by the State dated 21.7.2006 makes it clear like noonday that the State Election Commission made it clear that the Collector is competent to invoke Section 17(4) of the Adhiniyam to de-reserve a reserved post. In continuation of this, the Collector's office issued a notification dated 29.3.2011, whereby the post of petitioner's Gram Panchayat, i.e. "Ratikirar" is declared as Unreserved (General) Woman. The notification of Election Commission holding that the Collector is competent to take this decision is not called in question in this petition nor the notification of the Collector dated 29.3.2011, whereby the Collector has declared the Gram Panchayat as unreserved woman seat for the purpose of election. In absence of any challenge to these orders, the consequential order Annexure P/1 cannot be called in question nor can be held to be illegal. There is no material to show that Rules 7 and 28 of the Rules of 1995 are violated. The powers are exercised by the Collector as per the direction of Election Commission and orders dated 21.7.2006 and 29.3.2011. The impugned notification Annexure P/1 is issued thereafter. I do not find any violation of the aforesaid rules. The petitioner has no legal, vested or fu

ndamental right to continue because she is a product of a transitory provision, an arrangement which has been made "pending the election of Sarpanch" and "till a Sarpanch elected under this sub-section enters upon the office". In view of unambiguous provision of the section, petitioner has no legal right at all to continue and there is no illegality in passing the order/notification (Ann.P/1). 13. Reverting back to Section 13(2) of the Adhiniyam, it is mandate of the section that within six months the election is to be conducted. Accordingly, after the order Annexure P-2, within six months the notification Annexure P-1 has been issued. 14. Considering the aforesaid, this Court is of the considered opinion that there is no violation of the provisions of the Adhiniyam or Rules of 1995 in issuance of Annexure P-1. In absence of any such flagrant violation of the Adhiniyam or the Rules of 1995, I decline interference in the impugned order Annexure P/1. No vested, constitutional or fundamental right of the petitioner is snatched or taken away. The petition being devoid of any merit and substance is hereby dismissed. Petition dismissed.