23 Aug 2023 6:00 AM GMT
The Nagpur bench of the Bombay High Court recently held that a Sarpanch who got removed from the post due to a no-confidence motion can contest a by-election conducted to fill the resulting vacancy.A division bench of Justice AS Chandurkar and Justice Vrushali V Joshi observed that there is no provision in the Maharashtra Village Panchayats Act, 1959 prohibiting such a Sarpanch to contest...
The Nagpur bench of the Bombay High Court recently held that a Sarpanch who got removed from the post due to a no-confidence motion can contest a by-election conducted to fill the resulting vacancy.
A division bench of Justice AS Chandurkar and Justice Vrushali V Joshi observed that there is no provision in the Maharashtra Village Panchayats Act, 1959 prohibiting such a Sarpanch to contest the by-election necessitated due to their own removal.
“the right to contest elections is a purely statutory right and such right is governed by the statute under which it is claimed. If the concerned statute does not prescribe any disqualification nor does it preclude a candidate from contesting elections, such candidate cannot be so prevented on a ground dehors the statute. What may appear to be morally appealing may not necessarily have statutory support”, the court held.
The court was hearing a petition challenging the eligibility of one Sujata Tai, former Sarpanch of Gram Panchayat Wathoda, District Amravati from contesting the by-election caused by her removal from post by a no-confidence motion.
The petitioner along with other members of the Gram Panchayat, moved a no-confidence motion against Sujata Tai which was passed by the required majority. A vacancy arose on the post of Sarpanch reserved for members belonging to Scheduled Caste (Women), and Sujata Tai was the only eligible member.
Thus, the petitioner filed the present petition challenging a notice dated June 30, 2023, convening the meeting of the Gram Panchayat for electing the Sarpanch via a by-election.
Advocate SV Bhutada for the petitioners contended that permitting a Sarpanch removed by a no-confidence motion to contest the by-election would be against democratic principles. He argued that such a re-election would render the motion of no-confidence meaningless and impede the smooth functioning of the Panchayat. He said that member elected in the by-election being entitled to hold office only for the remainder of the term of the previous Sarpanch indicates that the Sarpanch who lost the no-confidence motion cannot be the same person who fills the vacancy through by-election.
Advocate Nilesh Gavande for Sujata Tai, on the other hand, argued that there was no statutory bar against a removed Sarpanch participating in a by-election. He emphasized that the Maharashtra Village Panchayats Act, 1959, did not prescribe any disqualification in such cases.
The court examined the relevant sections of the Act and noted that it did not specify any disqualification that would prevent a removed Sarpanch from contesting a by-election.
“wherever it was intended to prevent a person suffering from a disqualification to contest the elections again and become a member of the Panchayat the same has been specifically provided in the Act of 1959. Thus subject to being qualified under the Act of 1959 and not being disqualified under the Act of 1959, there would be no basis for preventing a person who is not suffering from such disqualification to contest the elections”, the court observed.
Addressing the argument about the potential impact on Panchayat functioning, the Court referred to a Full Bench judgment in Tatyasaheb Ramchandra Kale v. Navnath Tukaram Kakde that held that a Sarpanch who has lost the mandate of the house cannot continue in the post.
However, the court reasoned that unless the Act explicitly prescribed disqualification in this context, the moral concerns could not lead to legal prohibition.
“If the Legislature has not thought it fit to prohibit a Sarpanch/Upa-Sarpanch who is removed by motion of no-confidence to contest the by-election necessitated by virtue of his/her removal, it would not be permissible for the Court to prescribe such prohibition especially when on a plain reading of Sections 14, 35 and 43 of the Act of 1959 the legislative intention is crystal clear”, the court concluded and dismissed the writ petition.
Case no. – Writ Petition No. 4174 of 2023
Case Title – Rahul S/o Sahdev Lokhande and Anr. v. State of Maharashtra
Click Here To Read/Download Judgment