Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Stating that in the democratic setup, the will of the majority is the rule, the Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., held that if the directly elected Sarpanch fails to call the meetings of the Panchayat or acts in a manner rendering the functioning of the Panchayat at a standstill, the member of the Panchayat would certainly get a right to move a motion of no confidence.

Factual Background


The petitioner was directly elected Sarpanch of the Gram Panchayat and a no-confidence motion was passed against him by the members of the Gram Panchayat.

By the present petition, the petitioner assailed the vires of Section 35(1A) of the Maharashtra Village Gram Panchayat Act, 1959 to the extent of giving authority to the members of the Gram Panchayat to move no-confidence motion against directly elected Sarpanch.

Analysis, Law and Decision


High Court observed that the statutory provisions can be challenged on two counts:

  1. The legislature lacks the authority and power to frame the provision
  2. The provision is arbitrary, irrational and does not have rational nexus with the object in view and thereby violative of the Article 14 of the Constitution of India.

In the instant case, the legislative powers of the State were not in question,

State possesses the legislative powers to enact the provisions. 

The only challenge was on the ground that the said provision was arbitrary and violative of Article 14 of the Constitution.

The Village Panchayat Act casts additional duty/responsibilities upon the Sarpanch. If the Sarpanch fails to convene without sufficient cause the meetings of the Panchayat in any financial year according to rules prescribed in that behalf, he shall be disqualified from continuing as a Sarpanch for remainder period of the term as provided under Section 36 of the Village Panchayat Act.

Further, the panchayat would include the elected members so also Sarpanch and Up-Sarpanch though directly elected.  The decisions have to be arrived at by the Panchayat for the betterment of the villagers.

The Bench remarked that, if the sarpanch fails to perform his function and/or acts in a manner detrimental to the interest of the Panchayat and villagers or is guilty of such acts of omission or commission, so as to affect the functioning of the panchayat, then the members certainly would be justified in bringing about no-confidence motion against him.

The Village Panchayat Act does not make distinction in the nature of duties, powers, functions and responsibility of Sarpanch on the basis of he being elected by the villagers or by the members of the Panchayat.

High Court noted that for a directly elected Sarpanch further protection is provided that motion of No-Confidence is to be passed by 2/3rd members and further the said no-confidence motion is to be ratified before the Gram Sabha by the secret ballot. 

In Court’s opinion, if the villagers in the Gram Sabha do not ratify the no confidence motion passed by the members of the Panchayat the no-confidence motion would fail. The executive power vests with the Gram Sabha viz villagers.

While concluding the matter, Bench stated that the Village Panchayat Act has provided proper check and balance for passing a no-confidence motion against a directly elected Sarpanch and the said provision is rational, reasonable and does not suffer from vice of arbitrariness ergo not violative of the Article 14 of the Constitution of India.

In view of the above, petition was dismissed. [Ashruba Namdeo Kharmate v. State of Maharashtra, 2022 SCC OnLine Bom 840, decided on 11-3-2022]


Advocates before the Court:

Advocate for Petitioner: Mr S.S. Thombre Incharge G.P.

For Respondents. 1 to 4 : Mr D.R. Kale

Case BriefsHigh Courts

Bombay High Court: G.S. Kulkarni, J., considered the question,

Whether a “self-declaration” made by a candidate contesting elections to the post of Sarpanch, that he/she has a “toilet” in a house where he/she resides was sufficient compliance, to be not disqualified under Section 14(1)(j-5) of the Maharashtra Village Panchayat Act, 1959?

Background

Petitioner challenged an order passed by the Additional Commissioner, Nashik Division whereby an appeal filed by her under Section 16 of the Maharashtra Village Panchayat Act, 1959 had been dismissed thereby confirming the order passed by the Additional Collector, Malegaon.

By the above-stated impugned order, the petitioner had been held to be disqualified as a Sarpanch of Gram panchayat under the provisions of Section 14(1)(j-5) of the Act.

Analysis, Law and Decision

High Court opined that both the authorities ex-facie erred in passing the impugned order inasmuch as the provisions of Section 14(1)(j-5) had been incorrectly read and/or misinterpreted by the said authorities in disqualifying the petitioner as a Sarpanch.

Bench elaborated stating that the above-said provision prior to its amendment necessitated the candidate to submit a certificate of the panchayat concerned along with the resolution of the Gram Sabha. However, the categorical departure of the said requirement had been made by virtue of the amendment inserted by Maharashtra Act No. 28 of 2017, which would be applicable to the facts of the case.

The Court said that it was clear that there was a departure from the original requirement as postulated by the provision prior to its amendment by the 2017 Amendment Act, by categorically providing for a “self-certificate”, under which the candidate would self-certify that he/she complies with the requirement of clauses (i) and (ii) of sub-section (j-5).

Once a candidate issues a self-certificate setting out the consequence in the self-certificate, namely, the truth thereof, a candidate certainly exposes himself/herself to an enquiry either on a complaint or otherwise that the certificate is a false certificate that the facilities of a toilet are not in existence and therefore on a enquiry being undertaken in the manner known to law, the candidate would expose himself/herself to a disqualification.

Findings of Authorities below: Illegal & Perverse?

It was held that the findings of the authorities below were required to be held perverse and illegal, being contrary to the provisions of Section 14(1)(j-5). The authorities below had erroneously applied the said provision to unseat the petitioner who was elected in a democratic manner as a Sarpanch of the Village Panchayat.

“…the amendment has changed the complete complexion of the provision by making the provision more workable in regard to self-certificate.”

Therefore, the instant petition succeeded in view of the above discussion. [Sangeeta Shivaji Vadkte v. Suryabhan Damu Yamgar, 2021 SCC OnLine Bom 6586, decided on 14-12-2021]


Advocates before the Court:

Mr. Rameshwar N. Gite for the petitioner.

Mr. S.H. Kankal, AGP for the State.

Mr. J.D. Khairnar for respondents 1 to 3.