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IN THE HIGH COURT OF BOMBAY
Ravindra V.Ghuge, Y.G.Khobragade, JJ.
Suman Kachru Garje - Appellant
Versus
State of Maharashtra - Respondent
Writ Petition No. 14430 of 2023
Decided On : 01-12-2023
ELECTION LAW - VOTING RIGHTS OF SARPNACH IN UPSARPANCH ELECTION - MAHARASHTRA VILLAGE PANCHAYATS ACT, 1959, SECTIONS 30, 33(2), 33(4), 33(6) - The court interpreted the provisions of the Maharashtra Village Panchayats Act, 1959, particularly Sections 30 and 33, to clarify the voting rights of a directly elected Sarpanch in the election of an Upsarpanch. The court emphasized that the Sarpanch retains the right to cast a primary vote and a casting vote in case of a tie, as the legislative intent was to allow the Sarpanch to participate fully in the electoral process. The amendments to the Act were analyzed to confirm that the Sarpanch's voting rights were not negated by the changes made.
Fact of the Case:
The Petitioners challenged a communication from the Department of Rural Development, asserting that a Sarpanch should not have the right to vote in the election of an Upsarpanch. They sought to quash this communication and restrain the Sarpanch from voting, arguing that the amendments to the Maharashtra Village Panchayats Act, 1959, indicated that a directly elected Sarpanch could not cast a primary vote.
Finding of the Court:
The court found that the amendments to the Act did not deprive a directly elected Sarpanch of the right to vote. It concluded that the legislative intent was clear in allowing the Sarpanch to participate in the voting process, including casting a decisive vote in case of a tie.
Issues: Whether a directly elected Sarpanch has the right to cast a primary vote and a casting vote in the election of an Upsarpanch, and whether the amendments to the Maharashtra Village Panchayats Act, 1959, altered this right.
Ratio Decidendi: The court held that the Sarpanch, being a member of the Gram Panchayat, retains the right to vote in the election of the Upsarpanch. The interpretation of the relevant sections of the Act indicated that the Sarpanch's voting rights were preserved despite the amendments, and the casting vote is a right that presupposes the ability to vote in the primary round.
Final Decision: The Writ Petition was dismissed, affirming that the Sarpanch has the right to vote in the election of the Upsarpanch.
JUDGMENT/ORDER
RAVINDRA V.GHUGE, J. - By this Petition, the Petitioners have put forth prayer clauses (B), (C), (D) and (E), which read as under:-
C) By issuing writ of mandamus or any other appropriate writ, order or direction, the respondent No.1 to 4 may kindly be directed to restrain the Sarpanch to cast vote in the election of Upsarpanch.
D) Pending hearing and final disposal of Writ Petition, the election program published vide Order dtd. 17/11/2023 issued by respondent No.2 for election of Upsarpanch, may kindly be stayed to the extent of Village Panchayat, Bodhegaon, Taluka Shevgaon, District Ahmednagar.
E) Pending hearing and final disposal of present Writ Petition, respondent No.5 may kindly be restrained from participating in election process of Upsarpanch of Village Panchayat, Bodhegaon, Taluka Shevgaon, District Ahmednagar."
2. It is informed that, during the pendency of this Writ Petition, the election to the position of 'Upsarpanch' was held on 23/11/2023. This matter, in the light of the above, is rendered of an academic interest. However, the learned Advocate for the Petitioners is under instructions to canvass the cause put forth in this Petition. It is in this premises that, we have considered the prayers in the light of the extensive submissions of the learned Advocate for the Petitioners and the learned A.G.P. on behalf of the State.
3. The Petitioners have primarily canvassed two aspects, viz. firstly, that though the Sarpanch may have a right of exercising a 'casting' vote, he does not have the right to cast his first/primary vote, and secondly, the amendment to Sec. 33 (6) of the Maharashtra Village Panchayats Act, 1959 (for short 'the said Act'), without causing any amendment to Sec. 33(2) of the said Act, would indicate that the Sarpanch does not have the right to vote, if he is a directly elected Sarpanch.
4. For the sake of brevity, we are reproducing the amendments to Ss. 30, 33(2) and 33(6) hereunder:-
"(1) Every panchayat shall be presided over by a Sarpanch."; (b) sub-sec. (2) shall be deleted; (c) in sub-sec. (4), for the words "the members belonging to" the words "persons belonging to" shall be substituted.] (2) The election of the Sarpanch shall be held in the first meeting held after every general election.
(3) No member of a Panchayat shall be eligible for being elected or for continuing, as Sarpanch if he holds the office of the President or Vice-President of any Zilla Parishad or Chairman of any Subjects Committee thereof or the Chairman or the Deputy Chairman of any Panchayat Samiti; and if a Sarpanch is elected to any of such offices, his office as Sarpanch shall become vacant from the date of such election.
4) There shall be reservation in the offices of the Sarpanchas in the Panchayats for the members belonging to the Scheduled Castes, the Scheduled Tribes, the category of Backward Class of citizens and women as follows:- (a) the number of offices of Sarpanchas as to be reserved for the Scheduled Castes and the Scheduled Tribes in the panchayats shall bear, as nearly as may be, the same proportion to the total number of such offices in the panchayats as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State [excluding the populati
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