Gram Panchayat

Case BriefsSupreme Court

Supreme Court: Answering an interesting question of law, the Bench of AM Khanwilkar* and CT Ravikumar, JJ has held that no remedy of appeal is envisaged against an order of the State Election Commission or its delegatee – the Collector, under Section 14B(1) of the Maharashtra Village Panchayats Act, 1959, rejecting the complaint or to drop the proceedings for declaration of a Sarpanch/Member having incurred disqualification.

The Court explained that such order becomes final and if passed by the Collector as the delegatee, is deemed to have been passed by the State Election Commission itself. Even the State Election Commission cannot step in thereafter in any manner much less in the guise of reconsideration or review of such order. It must follow that the Divisional Commissioner would have no jurisdiction (ab initio) to entertain assail to such an order of the Collector.

Issue

Whether an appeal could be filed before the Divisional Commissioner against an order passed by the Collector under Section 14B(1) of the Maharashtra Village Panchayats Act, 1959, declining to disqualify a Sarpanch/Member of the Panchayat for allegedly having failed to lodge an account of election expenses within the time and in the manner prescribed by the State Election Commission, without offering any good reason or justification for such failure?

Analysis

No appeal is provided against the order of Collector (or of State Election Commission) refusing to disqualify the Sarpanch/Member under Section 14B(1). Similarly, no appeal is provided even against the order of the Divisional Commissioner (or of State Election Commission) under Section 14B(2). A limited window against the order under Section 14B(1) passed by the Collector (or State Election Commission itself) declaring the Sarpanch/Member of a Panchayat as disqualified, is kept open before the Divisional Commissioner (or the State Election Commissioner, if the order under Section 14B(1) is or were to be 10 passed by the State Election Commission itself) – to remove such disqualification or to reduce the period thereof in deserving cases. To put it tersely, for the nature of power exercised by the State Election Commission under Section 14B, no remedy of appeal is envisioned by the statute.

The power of the State Election Commission, bestowed under sub-Section (1) or (2) of Section 14B, though concerns subject of disqualification of a person, it operates in two different silos. In that, the power under Section 14B(2) gets triggered only after an order of disqualification is passed under Section 14B(1). The former is not activated at all in a case where the application or the proceedings to declare the Sarpanch/Member as disqualified, is rejected or dropped.

“Taking any other view would inevitably result in a situation where the power exercised by the State Election Commission under Section 14B(1) could be appealed against before itself (its delegatee). That cannot be countenanced. For, an appeal cannot lie before the same Authority/functionary who had passed the order of rejection of prayer to declare the member concerned as disqualified. Sans an express statutory intent to provide appeal against the order rejecting application to declare a person disqualified, it must follow that upon passing such order the power under Section 14B is fully exhausted by the State Election Commission (or its delegatee, as the case may be).”

Indubitably, an authority rejecting the proposal regarding disqualification, cannot sit “in appeal” over its own order of rejection.  Notably, there is no express power bestowed upon the State Election Commission or its delegatee to review its own decision passed under Section 14B(1) or 14B(2) of the Act, as the case may be.

Concededly, Section 16 is a provision which speaks about the disability from continuing as the member of a Panchayat, consequent to incurring disqualification or has been so declared under Section 14 of the Act. Once a Sarpanch/Member is disqualified under Section 14B by virtue of an order under Section 14B(1), it would give rise to two situations –

First, the person concerned can invoke option under Section 14B(2) for removal of his disqualification or for reduction of the period of such disqualification.

Second, the obligation fastened upon the Collector to decide the issue as to whether vacancy has occurred on account of such disqualification.

That question is required to be answered by the Collector in the first instance, in terms of Section 16(2) and to take follow-up steps thereafter in filling up such vacancy. The decision of the Collector on such question, referable to sub¬Section (2) of Section 16, however, has explicitly been made appealable before the State Government or the delegate of the State Government. That is, completely, a different regime albeit  a consequence of process referred to in Section 14B(1) to declare a Sarpanch or a member as having   incurred disqualification.

“This question decided by the Collector, is essentially in his capacity as a delegatee of the State Election Commission and, de jure, deemed to have been decided by the State Election Commission itself.  Be that as it may, the question decided by the Collector under Section is, in one sense, a ministerial act bestowed upon him to ascertain whether vacancy had arisen as a consequence of the disqualification order and to fill up such vacancy.”

Hence, if the State Election Commission or its delegatee were to reject or drop the proceedings against the concerned person or member initiated under Section 14B(1), as being devoid of merits or for any other reason, the complainant does not have remedy of appeal against such decision. Such an order becomes final and is not appealable at all. Indeed, it can be assailed before the constitutional court under Article 226 of the Constitution of India.

[Shobhabai Narayan Shinde v. Divisional Commissioner, Nashik Division, 2022 SCC OnLine SC 7, decided on 04.01.2022]

Counsels

For appellants: Advocate Sudhanshu S. Choudhari

For respondent: Advocate Nishant R. Katneshwarkar

*Judgment by: Justice AM Khanwilkar

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Tarlok Singh Chauhan, J., while dismissing the present petition on lack of merits, said, “… election process has already begun and final voter list has also been published, therefore, entertaining this petition at this stage would amount to obstructing the election process, which is not permissible.”

Petitioner in the present case, are aggrieved by non-inclusion of their names in the voter list and have moved the present petition seeking relief for (i) revision of electoral roll of the gram panchayat (ii) impugned order to be set aside.

With respect to interference by the Court under Article 226, Court said, “It is a well-settled proposition of law that inclusion or exclusion of name in the voter list cannot be termed as an extraordinary circumstance warranting interference of the High Court in exercise of the jurisdiction under Article 226 of the Constitution. However, it is always open to a person whose name is not included in the voter list to avail the benefit by filing election petition as the authorities constituted have wide powers to cancel, confirm and amend the election and it can also direct to hold fresh election, in case, the election is eventually set aside.”

Court further observed that only in extraordinary and exceptional circumstances, the High Court can entertain writ petition under Article 226 of the Constitution where the order is ultra vires or nullity and/or ex facie without jurisdiction. Reliance was placed on Rule 14 and 24 of the Himachal Pradesh Panchayati Raj (Election) Rules, 1994 in addition to the case of Union of India v. Dudh Nath Prasad, (2000) 2 SCC 20 and Bhagwan Dass v. Kamal Abrol, (2005) 11 SCC 66.

Dismissing the petition, Court noted, “The present petition filed after commencement of the election process, that too, with a view to stall election, therefore, cannot be entertained, when the petitioner has an alternate efficacious remedy of filing an election petition under Rules.”[Akhtar Hussain v. HP State Commission, 2021 SCC OnLine HP 125, decided on 02-01-2021]

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Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan, J. and Jyotsna Rewal Dua, J. while dismissing the present petition on lack of merits observed,“For elections in Gram Panchayat, it is the ‘Block’, which will be the relevant factor for determining the eligibility of the Gram Panchayat for purposes of providing reservation and not the ‘Constituency.”

 Background

Petitioner has laid challenge to the notification dated 11-12-2020 issued by the respondents under Section 125 of Himachal Pradesh Panchayati Raj Act read with Rule 87 of Himachal Pradesh Panchayati Raj (Election) Rules, 1994, to the extent it reflects Gram Panchayat Kalujhinda, Development Block Dharampur, District Solan as reserved for women belonging to Scheduled Caste category. Petitioner prays for issuance of direction to the respondents for reserving the post of Pradhan in Gram Panchayat, Kalujhinda for Scheduled Tribe category.

 Relevant provisions of Himachal Pradesh Panchayati Raj (Election) Rules

Rule 87 (4): If the number of offices to be reserved for the members of Scheduled Castes or Scheduled Tribes is more than one, the Gram Sabha having the next highest percentage or population of Scheduled Castes and Scheduled Tribes shall be reserved for the members of the Scheduled Castes and Scheduled Tribes, as the case may be, and so on:

Provided that if the total population of Scheduled Castes or Scheduled Tribes in a Block is less than 5% of the total population, then no office shall be reserved.

Rule 28(8): The Constituencies reserved for Scheduled Castes and Scheduled Tribes and women belonging to Scheduled Castes and Scheduled Tribes and women belonging to general category on the basis of percentage of population shall be rotated after every five

Years from the date of first election. At the time of next election, the constituency/constituencies having the next highest percentage of population shall be reserved for members of Scheduled Castes and Scheduled Tribes including women belonging to Scheduled Castes and Scheduled Tribes and women belonging to general category and so on for subsequent elections: Provided that the reservation for a particular category shall not be repeated unless all other constituencies are covered by rotation: Provided further that the reservation for a particular category shall not be rotated in such a constituency where the population of that category is less than 5% of the total population of that constituency.

Section 2(b) of the Act: ‘Constituency’ means a territorial constituency of a Gram Sabha, Panchayat Samiti or Zila Parishad, as the case may, for the representation of which a member is to be elected or has been elected and in relation to Pradhan or Up-Pradhan of a Gram Panchayat, shall mean the whole of Gram Sabha area.

Section 2(3) of the Act: ‘Block’ as per Section 2(3) of the H.P. Panchayati Raj Act “means such areas in a district as may be, declared by the Government to be a Block”

 Decision

While rejecting the prayer of the petitioners, the Court said, “…it is the proviso to Sub Rule 4 of Rule 87 of the Himachal Pradesh Panchayati Raj (Election) Rules, which will govern the field in respect of determination of eligibility of a Gram Panchayat for the purpose of reservation and not Rule 28. Total scheduled Tribe population percentage of Gram Panchayat Kalujhinda as per 2011 population census is 27.28% but the Scheduled Tribe population percentage of the Block being admittedly less than 5% of the total population, therefore, by application of Rule 87(4) of H.P. Panchayati Raj (Election) Rules, 1994, the seat in question could not be reserved for Scheduled Tribe category.”[Nirmal Singh v. State of Himachal Pradesh,  2021 SCC OnLine HP 26, decided on 04-01-2021]

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Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Sandeep Sharma, JJ., while dismissing the present petition upon lack of merits said, “A writ of Mandamus can be issued only when there is a legal right that the parties asking for the writ to compel the performance of statutory duties cast upon the authorities.”

 Background

The present petition was filed to seek a writ of mandamus, directing the respondents to consider the issue of creation of bifurcation and re-organization of new Gram Sabha and Gram Panchayat, in order to facilitate the development work of villages and ensure necessary facilities to all. Prayer was also sought to grant the said writ on the ground that the population of villages as mentioned under the petition, exceeded 2700 and proper regulation/management is only permissible if the aforementioned residents are uniformly divided.

 Observation

The Court reproduced Section 3 of the Himachal Pradesh Panchayati Raj Act, 1994, which reads as hereunder;

Section 3 Declaration of Sabha area -(1) The Government may, by notification, declare any village or group of contiguous villages with a population of not less than one thousand and not more than five thousand to constitute one or more Sabha areas for the purposes of this act and also specify its headquarter:

Provided that in a Scheduled area the Government may by order declare any village or group of contiguous villages with a population of less than one thousand to constitute a

Sabha area:

Provided further that the Government may, after having due regard of the geographical location, lack of means of transport and communication and administrative convenience, declare an area comprising a village or group of contiguous villages having a population either less than one thousand or more than five thousand to constitute a Sabha area.

(2) The Government may, at the request of the Gram Sabha concerned or otherwise, and after previous publication of a proposal by a notification, at any time –

(a) Increase any Sabha area by including within such Sabha area any village or group of villages

(b) Diminish any Sabha area by excluding from such Sabha area any village or group of villages

(c) Alter the headquarter of any Sabha area

(d) Alter the name of any Sabha area

(e) Declare that any area shall cease to be a Sabha area

2-A When on account of the reason that the Sabha area is, during the term of the Gram Panchayat, increased or diminished or ceased under sub-section (2), the increase or diminution or cessation of the Sabha area shall not affect the term of the office bearers of Gram Panchayat, till the expiration of the duration of the Gram Panchayat specified in sub-section (1) of section 120 or its dissolution under section 140 of this Act.

(3) If the whole of the Sabha area is included in a municipality, the Sabha area shall cease to exist and its assets and liabilities shall in the manner prescribed be disposed of.

Reliance was further placed on other recent judgments by this Court, in CWP No. 4602 of 2020 titled Ratti Ram v. State of H.P., CWP No. 4118 of 2020 titled Bihari Lal v. State of H.P. and CWP No. 3999 of 2020 titled Joginder Singh decided on 16-12-2020.

Decision

Dismissing the present petition, the Court said, “…the issue, as raised in this petition, is not justifiable as no mandamus can be sought for bifurcation of Gram Panchayat(s) under Article 226 of the Constitution at the instance of an individual.”[Dharam Pal v. State of HP, 2020 SCC OnLine HP 3094, decided on 18-12-2020]

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Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Ajay Mohan Goel J., while allowing the present petition, set aside the orders of the preceding authority holding the original election petition as patently defective.

Background

Facts of the case are briefly mentioned hereunder;

  1. That the petitioner was declared elected in the elections for the post of Pradhan, Gram Panchayat Hinner, in December 2015.
  2. That an Election Petition was filed by Smt. Radha Devi (respondent herein) under the Himachal Pradesh Panchayati Raj Act, 1995 (hereinafter referred to as “1994 Act”) on the ground that the nomination papers filed by the petitioner concealed the real facts and the petitioner was further involved in unfair election practices along with her family members.
  3. That it was further alleged by the respondent in present case that the police and electoral staff failed to discharge their duties in consonance with law and several persons who were not eligible to cast their vote, were permitted to do so, despite her objections and objection of her Polling
  4. That the election petition was resisted by the elected candidate, on the ground of maintainability, cause of action and the principle of estoppel. It was moreover denied by the elected candidate that she had indulged in any concealment of facts in the nomination paper or there was any infirmity in the nomination paper so filed by her.
  5. That it was further denied by the candidate that the elected Pradhan had indulged in any unfair practice during or after the election process.
  6. That the Sub Divisional Officer (Civil) – cum – Appellate Authority (Election Petition), vide order dated 02-03-2019, adjudicated in favour of the respondent herein, finding that the nomination papers of the petitioner was not properly scrutinized as per the norms of H.P. Panchayati Raj Act, 1994 and Himachal Pradesh Panchayati Raj Election Rules, 1994.
  7. That an appeal was thereby preferred before the Deputy Commissioner under Section 181 of the 1994 Act, which was dismissed vide order dated 09-01-2020, concurring with the findings of the Sub Divisional Officer.
  8. That the elected Pradhan, aggrieved by the aforementioned orders, has preferred the present petition praying to quash the same and hold the election of the petitioner herein, legal and valid.

 Contention

Counsel for the petitioner primarily argued that the original election petition as filed by the respondent herein was defective and not as per the statutory mandate of the 1994 Act read with relevant rules framed thereunder.

Counsel for the respondent emphasized more on the merits of the case and the rationale upon which the preceding authorities agreed to the contentions of the respondents in the original election petition. 

 Observations

The Court, first, decided to consider the maintainability of the original petition so filed, refraining from making any observation upon the validity/voidability of the election held, as per Section 175 of the Act of 1994. Considering the mandatory requirements for moving an election petition, the Court referred Section 164 of the Act which provides that “an Election Petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. Proviso thereto contains that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and particulars thereof.” The Court further reproduced the language of Order VI Rule 15 which deals with verification of pleadings and noted that, “A perusal of the original record demonstrates that Election Petition has not been verified at the foot by the Election Petitioner. In the absence of Election Petition having been verified at the foot, there is no compliance of Order VI, Rule 15(2) of the Code of Civil Procedure. It is not mentioned in the Election Petition as to at which place the same was prepared and signed by the election petitioner, as the Election Petition is conspicuously silent with regard to the place of its preparation/having been signed by the election petitioner.”  Moreover, it was noted that the Election Petition was not accompanied with an affidavit as required by Section 164(1) of the 1994 Act, supporting the malpractices so alleged. Another inconsistency was noted by the Court in the words, “… the factum of the purported affidavit (as mandated by Code of Civil Procedure, 1908) sworn in, in support of the election petition having been prepared on 28-01-2016, whereas the Election Petition being prepared and signed on 29-01-2016, cannot be overlooked and ignored by this Court while holding that the Election Petition when filed, was a defective Election Petition.”

The Court also cited the case of G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776, acknowledging the settled law that an opportunity to correct the curable defects must be given but at the same time observed, “this judgment does not come to the rescue of the election petitioner in this case, because as already mentioned hereinabove, the purported affidavit sworn in, in favour of the election petitioner predates the Election Petition, which cannot be said to be substantial compliance of law nor it can be said that the Election Petition accompanied with a predated affidavit entails such defect which can be termed to be curable. It appears that no one took the care or the pain to scrutinize the Election Petition, as it ought to have been done, which has resulted in grave miscarriage of justice to the present petitioner, as she stands non suited on the basis of a defective Election Petition, which not only stood entertained by the Authorized Officer, but also adjudicated upon on merit.”

Decision

While allowing the present petition, the Court allowed the petitioner to perform her duties as Pradhan, Gram Panchayat Hinner without any unnecessary fetters.[Nisha Thakur v. Radha Devi, 2020 SCC OnLine HP 2866, decided on 03-12-2020]

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Case BriefsSupreme Court

Supreme Court: In the issue relating to admissibility of the certificate issued by Gram Panchayat Secretary as a proof of citizenship, the bench of Ranjan Gogoi and RF Nariman, JJ held that the said document can be used to establish a linkage between the holder of such certificate and the person(s) from whom legacy is being claimed after it clears a 2-step verification process. The steps include:

  • authenticity of the certificate itself.
  • the authenticity of the contents thereof.

The Court explained:

“The latter process of verification is bound to be an exhaustive process in the course of which the source of information of the facts and all other details recorded in the certificate will be ascertained after giving an opportunity to the holder of the certificate.”

The Court was hearing a batch of appeals against the order of the Gauhati High Court had held the Gram Panchayat certificate, submitted under ‘illustrative list of documents admissible’ as a supporting document, to be invalid in law.

Noticing that the Gram Panchayat Certificate merely acknowledges the shifting of residence of a married woman from one village to another, the Court made it clear that the said certificate by itself and by no means establishes any claim of citizenship of the holder of the certificate but will only its holder to establish a link between the holder and the person from whom legacy is claimed.

The Court, however, said:

“If the document and its contents is to be subjected to a thorough search and probe we do not see why the said certificate should have been interdicted by the High Court, particularly, in the context of the facts surrounding the enumeration and inclusion of the documents mentioned in the illustrative list of documents, as noticed above.”

Stating that the said document can in no manner be considered a ‘private document’, the Court held that Gram Panchayat Certificate can, however, be acted upon only to establish a linkage between the holder of such certificate and the person(s) from whom legacy is being claimed. It was made clear that the certificate will be put to such limited use only if the contents of the certificate are found to be established on due and proper enquiry and verification. [Rupajan Begum v. Union of India, 2017 SCC OnLine SC 1411, decided on 05.12.2017]