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2026 Supreme(Sikk) 102
THE HIGH COURT OF SIKKIM: GANGTOK
BHASKAR RAJ PRADHAN, J.
Tulshi Das Subba, S/o Kul Bahadur Subba - Appellant
Versus
Man Bir Subba, S/o Man Bir Limboo – Respondent
W.P. (C) No. 26 of 2023
Decided On : 02-07-2026
Important Points
Subject
Constitutional Law - Election Law
Act Referred
CIVIL PROCEDURE CODE : S.O.7 R.11
CONSTITUTION OF INDIA : Art.329(b)
Sikkim Panchayat Conduct of Election Rules : R.100, R.119, R.86, R.87, R.88, R.98, R.99
Headnote
For the Appellant :Mr. Yam Kumar Subba and Mr. Mukkum Hang Limboo, Advocates
For the Respondent:Mr. Johnson Subba, Advocate Mr. Zangpo Sherpa, Additional Advocate General with Mr. Mohan Sharma and Mr. Sujan Sunwar, Assistant Government Advocate Mr. Bhola Nath Sharma, Advocate
| Table of Content |
|---|
| 1. procedural history of the election petition and the civil judge's reference to the prescribed authority. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. distinction between disqualification for being chosen as a member versus being a member. (Para 8 , 9 , 10 , 11 , 12 , 13) |
| 3. application of the sikkim panchayat (conduct of election) rules, 1997 for election disputes. (Para 14 , 15 , 16 , 17) |
| 4. interpretation of s.29 and s.120 regarding the jurisdiction of the prescribed authority. (Para 18 , 19 , 20 , 21 , 22) |
| 5. civil judge's exclusive jurisdiction to decide election petitions regarding initial disqualification. (Para 23 , 24 , 25 , 26 , 27) |
| 6. observations on statutory contradictions in s.119a and professional conduct of counsel. (Para 28 , 29 , 30) |
JUDGMENT ;
Bhaskar Raj Pradhan, J.
1. This petition has been brought before this Court by Tulshi Das Subba challenging impugned order dated 17.04.2023 passed by the learned Civil Judge, Soreng District and the order in reference dated 20.06.2023 passed by the “Prescribed Authority”.
2. After the election was held for Ward No.5, Angden Park, under 32-Upper Thambong, GPU, West Sikkim the respondent no.1 was declared elected. The petitioner who also contested filed an election petition under section 119 of the Sikkim Panchayat Act, 1993 (in short the Act of 1993) and the Rules framed there under challenging the election of respondent no.1 on the ground that he was disqualified under section 16(k) of the Act of 1993 thereof.
3. It transpires that the parties completed their pleadings before the learned Civil Judge.
4. On 23.03.2023 the learned Civil Judge rejected the application filed under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (the CPC) for rejection of the election petition filed by respondent no.6.
5. Thereafter, on 17.04.2023 vide the impugned order the learned Civil Judge framed four issues and referred the issue regarding disqualification of the returned candidate i.e. respondent no.1 to the “Prescribed Authority”.
6. The learned Civil Judge, referred the first issue relating to disqualification of respondent no.1 to the “Prescribed Authority” under sections 29 and 120 of the Act of 1993. He did so as he opined that, under section 29 of the Act of 1993 the “Prescribed Authority” has been given the power to decide on disqualification and removal of a member. The learned Civil Judge also opined that under section 120 of the Act of 1993 while trying election petition the question of disqualification is to be referred to the “Prescribed Authority”.
7. The “Prescribed Authority” thereafter decided the reference vide the impugned order dated 20.06.2023.
8. Section 16(k) of the Act of 1993 relates to disqualification of members of Gram Panchayat and is part of Chapter III of the Act of 1993 relating to Gram Panchayat. It reads as under:-
“16. Disqualification of members of Gram Panchayat.
A person shall be disqualified for being chosen as and for being, a member of a Gram Panchayat:-
.....................................................................................
(k) if he has directly or indirectly by himself or by his partner or employer or an employee, hold any share or interest in any contract with, by or on behalf of a Zilla Panchayat or a Gram Panchayat.
Provided that a person shall not be deemed to have incurred disqualification by reason of his having a share or interest in any public company or registered co-operative society which has a contract with or is employed by a Gram Panchayat or a Zilla Panchayat of the district.”
[Emphasis supplied]
9. Section 16 of the Act of 1993 therefore contemplates two scenarios. The first is when a person is disqualified “for being chosen as” a member of a Gram Panchayat. This would contemplate a situation in which the person has not yet been chosen as a member of a Gram Panchayat, as in the present case, and he is found to have been disqualified. The second scenario is “for being a member” of a Gram Panchayat. This would contemplate
