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2023 Supreme(Online)(Bom) 25770
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4174 OF 2023
Rahul S/o Sahdev Lokhande, Wathoda, Taluka Warud, Dist. Amravati and anr.
-vs-
State of Maharashtra, Thr. Secretary, Rural Development Dept. Mantralaya, Mumbai and ors.
Shri S. V. Bhutada, Advocate for petitioners.
Shri A. A. Madiwale, Assistant Government Pleader for respondent Nos.1, 3 and 5.
Shri J. B. Kasat, Advocate for respondent No.2.
Shri Nilesh Gawande, Advocate for respondent No.6.
Shri R R. Rajkarne, Advocate for respondent Nos.7 to 11.
CORAM : A. S. CHANDURKAR AND MRS VRUSHALI V. JOSHI, JJ.
DATE : July 28, 2023
For the Appellants/Petitioners: Shri S. V. Bhutada
For the Respondents: Shri A. A. Madiwale, Shri J. B. Kasat, Shri Nilesh Gawande, Shri R R. Rajkarne
A Sarpanch removed by no-confidence is not statutorily disqualified from contesting the subsequent by-election for that position.
Headnote:(A) Maharashtra Village Panchayats Act, 1959 - Section 35(2)(a) - This writ petition questions whether a Sarpanch, removed by no-confidence motion, can contest the subsequent by-election despite being the only member of the reserved category eligible to stand again. The court, referencing previous judgments, determines that no statutory prohibition exists preventing the individual from contesting again, emphasizing the legislative intent behind the Act. (Paras 1-10)
(B) Legitimacy of contesting elections post no-confidence - The right to contest elections is a statutory right, not morally bound, and legislatively supported provisions should govern such eligibility. (Paras 9)
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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P. C.
1. The question that arises for consideration in this writ petition is when the post of Sarpanch is reserved for a particular category of members and the Sarpanch elected as such is the only member belonging to that particular category, on removal of such Sarpanch due to passing of a motion of no-confidence under Section 35(2)(a) of the Maharashtra Village Panchayats Act, 1959 (for short, the Act of 1959), whether he/she can again contest the by-election that is held for filling in the vacancy caused due to his/her removal ?
2. The respondent No.6 was elected as Sarpanch of Gram Panchayat Wathoda, Taluka Warud, District Amravati. The post of Sarpanch was reserved for Scheduled Caste (Women). By a motion of no-confidence moved by the petitioners along with other members of the Gram Panchayat, the respondent No.6 came to be removed from the post of Sarpanch since the said motion came to be passed by the requisite majority. Since a vacancy had arisen on the post of Sarpanch that was reserved for members belonging to Scheduled Caste (Women) category and the respondent No.6 was the only eligible member who could contest the said election, the petitioners have challenged the notice dated 30/06/2023 convening the meeting of the Gram Panchayat for electing the Sarpanch by holding a by-election.
3. Shri S. V. Bhutada, learned counsel for the petitioner by referring to various provisions of the Act of 1959 including Section 43(1) thereof submits that any vacancy of which notice has been given to the Collector on account of occurring of various contingencies including confirmation of no-confidence motion is required to be filled in by conducting election. The person who is elected in such election can hold office only for such period as Sarpanch or Upa-Sarpanch “in whose place he has been elected” would have held office if the vacancy had not arisen. Thus, according to the learned counsel the words “in whose place he has been elected” would exclude the Sarpanch against whom the no-confidence motion has been confirmed. By permitting such member who has been removed by a motion of no-confidence to again contest the by-election for filling in the same post would be against democratic principles and passing of the motion of no-confidence would be rendered otiose. Under Section 35(2) (a) on such motion of no-confidence being carried by the requisite majority the Sarpanch is required to forthwith stop exercising powers and performing of functions and duties of the office of Sarpanch. This would imply that a Sarpanch removed by a motion of no-confidence is not expected to again contest the by-election for the office of Sarpanch. The learned counsel sought to draw support for this submission by referring to the judgment of the Full Bench in Tatyasaheb Ramchandra Kale vs. Navnath Tukaram Kakde and ors. (2014) 6 Mh.L.J. 804. He fairly pointed out that the Division Bench in Chandarbai w/o Malhari Gaikwad and anr. vs. State of Maharashtra and ors. 1998 (2) Mh.L.J. 724 has held that there was no bar for such Sarpanch who was removed through a motion of no-confidence to contest again and get re-elected. The respondent No.6 had been removed by the members of the Gram Panchayat since she did not have the confidence of majority of the members. Hence it was not permissible for respondent No.6 to again contest the by-election. It was thus submitted that it be held that the respondent no.6 was not eligible to contest the by-election for electing the Sarpanch.
4. Shri Nilesh Gavande, learned counsel for the respondent no.6 opposed the writ petition. According to h
