Challenges to the election of a candidate based on pre-existing disqualification must be decided by the Civil Judge via an election petition under the Sikkim Panchayat (Conduct of Election) Rules, 1997, rather than being referred to the Prescribed Authority under S.120 of the Sikkim Panchayat Act, 1993.

W.P. (C) No. 26 of 2023

Shri Tulshi Das Subba vs. Man Bir Subba & Ors.

Writ petition under Article 226/227 of the Constitution of India.

{Against the Order dated 17.04.2023 and Order dated 03.07.2023 passed by the learned Civil Judge at Soreng and for setting aside the order dated 20.06.2023 passed by the Director-Panchayat, RMDD, Government of Sikkim}.

Appearance:

Mr. Yam Kumar Subba and Mr. Mukkum Hang Limboo, Advocates for the Petitioner.

Mr. Johnson Subba, Advocate for Respondent No.1.

Mr. Zangpo Sherpa, Additional Advocate General with Mr. Mohan Sharma and Mr. Sujan Sunwar, Assistant Government Advocate for Respondent nos. 4, 5 and 7.

Mr. Bhola Nath Sharma, Advocate for Respondent Nos. 2, 3 & 6.

None for Respondent Nos. 8 & 9.

Date of Hearing : 19.06.2026

Date of Judgment Pronounced : 02.07.2026

Date on which uploaded : 02.07.2026

J U D G M E N T

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:-

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(k) if he has directly or indirectly by himself or by his partner or emplo