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: Quoting a phrase from a story of a Roman Ruler Julius Caesar that, “Caesar’s wife should be above suspicion”, Bharati H. Dangre, J., remarked that,

“…those who are vested with the powers are to be made more accountable and transparent in their functioning and subjected to social audit with a view to minimize their discretionary decisions.”

Instant matter was the one that falls under the category, wherein people associated with public figures must not be suspected of being part of any wrongdoing.

Background

Petitioner, was the Sarpanch of a Gram Panchayat who came to be disqualified from her post by respondent 3 and upon appeal preferred by her to the Additional Divisional Commissioner, the said appeal came to be dismissed.

Being aggrieved by the action of disqualification, petitioner approached this Court by filing the present petition in order to seek relief of quashing and setting aside of the impugned orders and her reinstatement on the post of Sarpanch.

Petitioner was directly elected as a Sarpanch on a post that was reserved for OBC Women.

Respondent 6 preferred a complaint alleging that the petitioner in her capacity as Sarpanch, had individually benefitted her husband and his brother by allotting work to them and further by disbursing a cheque from the account of Gram Panchayat.

The above-stated act resulted in disqualification under Section 14(1)(g) of the Maharashtra Village Panchayats Act and the petitioner was liable to be disqualified from the post of Member.

Analysis, Law and Discussion

High Court stated that in order to attract the disqualification by virtue of Section 14(1) (g) of the Maharashtra Village Panchayats Act, it is imperative to establish that the petitioner has directly or indirectly, by herself or through her partner, had any share or interest in any work done by the order of the Panchayat, or in any contract with, by or on behalf of, or employment with or under, the Panchayat.

Bench noted that though it was established that some amount had gone into the account of the husband of the petitioner, but it fell short of establishing her involvement either directly or indirectly, in allotting work to her husband under the order of the Panchayat or any allotment of any contract under the Panchayat.

Further, various entries of the amounts debited to the account of the Gram Panchayat, the entries which were referred to by the Collector showing huge amounts being disbursed, in favour of Ramchandra Rupchand Pawar had been completely lost sight of by the Collector by accepting the submission of the petitioner that since family was not residing together under the same roof, the connection could not be established.

Elaborating further, Court expressed that the entries of huge amounts in favour of other family relations of the husband of the petitioner also deserve to be looked into, to ascertain whether the petitioner had any interest in allotting the work to her close relations and merely because they were not residing under the said roof, would not absolve her of the burden to come clean.

The standard of probity in public life should be not only conviction in Criminal Court, but propriety demand that by suitable independent authority, specially constituted for this purpose, determine the conduct of the public functionary.

This Court directed that the matter be remanded back, since the Additional Commissioner had shifted his focus on the report of the Block Development Officer, which merely reiterated that the signature on the disputed cheque, which had been encashed in the petitioner’s husband account.

The authority concerned shall determine as to whether the said amount encashed in the petitioner’s husbands account was in view of the interest shown by the petitioner in allotting the work of laying murum to the husband by using her office as Sarpanch and in absence of said material, being probed into, the impugned order cannot be sustained. [Anusaya v. State of Maharashtra, 2022 SCC OnLine Bom 231, decided on 27-1-2022]


Advocates before the Court:

Mr. R.R. Imale, Advocate for the petitioner.

Mr. K.B. Jadhavar, AGP for respondent 1 to 3.

Mr. M.S. Deshmukh h/f Mr. U.L. Momale, Advocate for respondent 6. Mr. S.G.Jadhavar, Advocate for respondent 5.

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.

Case BriefsHigh Courts

Gujarat High Court: A.G. Uraizee, J., dismissed a petition which was filed aggrieved by the dismissal of Revision Application by the Secretary, Forest and Environment Department which had upheld the order of the Deputy Collector.

Respondent 7 was the Sarpanch of Jetpur Gram Panchayat, according to the petitioner, by misusing the position of Sarpanch, around more than 150 trees standing on Gauchar land of village Jetpur, were cut in violation of law and sold for the monetary benefits. The petitioner had therefore filed an application before the District Development Officer for removal of respondent 7 from the post of Sarpanch. As a result, respondent was removed from the post of Sarpanch under Section 57(1) of the Gujarat Panchayat Act. The respondent challenged her removal by filing Appeal before the Deputy Collector who had partly allowed the Appeal and set aside the order of removal and remanded the case to the Mamlatdar, Bayad, for fresh consideration. Consequently, District Development Officer reinstated the respondent 7 on the post of Sarpanch. Aggrieved by which the petitioner had filed Revision Application before the Secretary, Forest and Environment Department which was dismissed. The present petition was filed aggrieved by the dismissal.

The Court observed that petition made it abundantly clear that the procedure under Section 57 of the Panchayat Act were initiated against the petitioner on the basis of the complaint/application filed by the petitioner with Mamlatdar, Bayad on account of felling of 153 trees and that the Mamlatdar, Bayad, after receipt of complaint about felling of the trees did not conduct the proper inquiry and Panchnama of place of incident was not prepared in presence of Range Forest Officer. They also found that the Mamlatdar had imposed punishment of fine on the basis of a presumption that 150 trees felled and there was no solid proof that the respondent, who had herself felled the trees. The Court while dismissing the petition mentioned that the matter is remanded for fresh consideration in light of the observation made in the order and all concerns will get an opportunity of hearing. Thus, the lower Authorities have given sound reasons for setting aside the removal of respondent 7 from the post of Sarpanch and remanded the matter for fresh consideration.[Patel Ramanbhai Hargovanbhai v. State of Gujarat, 2020 SCC OnLine Guj 45, decided on 21-01-2020]


Suchita Shukla, Editorial Assistant has put this story together

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Dhiraj Singh Thakur, J., dismissed a writ petition filed against the order of the Deputy Chief Electoral Officer, whereby re-poll had been ordered for the post of a Sarpanch in the Panchayat Halqa Upper Sanai, Block Surankote.

The main issue that arose before the Court was whether the Deputy Chief Electoral Officer was justified in ordering re-poll while the matter was pending for enquiry before the Deputy Commissioner.

The Court observed that the difference of a number of votes between the candidates was 13 and the total number of missing votes was 25. The enquiry as given under Rule 37 of the Rules framed under the J&K Panchayati Raj Act, is limited to the extent of determining whether the votes had been lost or destroyed. In the instant case, it was alleged that 25 votes had gone missing after some persons entered the polling booth, who were related to one of the people contesting elections. This vitiated the sanctity of the election and hence a re-polling was suggested and subsequently ordered.

The Court held that the report about 25 votes gone missing was clear and unambiguous and hence the order of re-polling does not violate the provisions of the J&K Panchayati Raj Act. The Court held that the manner of arriving at the decision for ordering re-poll does not suffer from any illegality or perversity. Resultantly, the petition was dismissed.[Abdul Karim v. State of J&K, 2018 SCC OnLine J&K 864, order dated 26-11-2018]