A by-election for the post of Sarpanch should not be held while a revision case challenging the removal of the previous Sarpanch is pending.

Order on Board

[06/01/2023]

1. Aggrieved by the Election Notice that has been issued by the Respondent No.2 - Chhattisgarh State Election Commission, the present Writ Petition has been filed by the Petitioner.

2. The Petitioner is an elected Sarpanch of Gram Panchayat, Mungiya. He in between was removed from the post of Sarpanch invoking Section 40 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 by the Sub Divisional Officer (Revenue), Deobhog vide Order dated 31.3.2021.

3. Against the said Order dated 31.3.2021, the Petitioner had preferred an Appeal before the Respondent No.4 - Collector, District Gariyaband which stood dismissed vide Order dated 15.3.2022.

4. Thereafter, the Petitioner within a week's time had approached the Respondent No.3 - the Commissioner, Raipur Division by way of a Revision case. The said Revision case has already been admitted and is fixed for final hearing. The last date of hearing in the said Revision case was 12.12.2022 and the next date of hearing is

20.3.2023.

5. In between, the Respondent No.2 - the Chhattisgarh State Election Commission, considering the fact that the post of Sarpanch of the Gram Panchayat, Mungiya is vacant, has ordered for holding the By-election.

6. The Petitioner has therefore approached this Court challenging the said proceeding drawn by the Respondents No.2 to 4, contending that in the event if the said Revision case subsequent to the election stands allowed, it would be of no consequence, as the fresh election that would be conducted by holding By-election a fresh candidate would be elected as Sarpanch. This may also lead to the Revision case itself rendered infructuous. Under the circumstances, the Petitioner would be remediless and the Order passed under the provisions of Section 40 against the Petitioner may have an adverse consequence so far as the political career of the Petitioner is concerned. It is therefore necessary that the Revision case needs to be decided on its own merits before the election is conducted by the Respondents.

7. Learned State Counsel as also learned Counsel for State Election Commission refer to the provisions of Section 243-O of the Constitution of India, which provides for a bar for entertaining petitions pertaining to election in Panchayat. Moreover, the contention of the Counsels for Respondents is that since the post of Sarpanch is lying vacant since March' 2021, the Respondent No.3 was required to fill-up the post and it was in this context that the By-election has been notified.

8. The issue in the instant case has came up for hearing before this High Court in W.P.(C) No.1668/2018 [Gauri Bai Dhurve v. State of Chhattisgarh & Others] decided on 21.6.2018, wherein this Court dealing with all the judicial precedents on the subject-matter has held as under:-

"14. Reverting to the facts of the present case, it is not in dispute, as noticed herein-above, that the petitioners have questioned their removal firstly before the Collector and after dismissal of their appeal, they have questioned the same before the revisional authority under Rule 5 of the Rules of 1995 and it is pending active consideration after the revisions having been admitted and in one case, interim order has been granted in favour of the petitioner and as such, no casual vacancy has arisen in terms of Section 38(1)(a) of the Act of 1993 to hold bye-election for the said post of Sarpanch. The District Election Officer (Panchayat) ought to have awaited the outcome of the said proceeding by the revisional authority before proceeding to hold the bye-election, otherwise if bye- election is allowed to be held and in the meanwhile, the order of removal is set aside, the revisional authority would be incompetent to restore / reinstate them on the post of Sarpanch of the Gram Panchayat in view of the fact that the post of Sarpanch is already occupied by a person elected on bye-election and the only remedy available to the petitioners / Sarpanch would be to file election petition in accordanc