Morally Appealing Act May Not Have Statutory Support; Sarpanch Removed By No-Confidence Motion Entitled To Contest By-Elections: Bombay HC

The bench in the matter noted that since the rights of the parties were governed by the Maharashtra Village Panchayats Act, 1959, and that there no statutory prohibition for a Sarpanch/Upa-Sarpanch to contest the by-election that is occasioned by his/her own removal as Sarpanch/Upa-Sarpanch pursuant to a motion of no-confidence.

While denying to invoke extraordinary jurisdiction under Article 226 of the Constitution of India, a bench of Justice A.S. Chandurkar and Justice Vrushali V. Joshi observed, “The rights of the parties being governed by the Act of 1959, in the absence of there being any statutory prohibition for a Sarpanch/Upa-Sarpanch to contest the by-election that is occasioned by his/her own removal as Sarpanch/Upa-Sarpanch pursuant to a motion of no-confidence, the contention of the petitioners cannot be accepted. If the Legislature has not thought it fit to prohibit a Sarpanch/Upa-Sarpanch who is removed by motion of no-confidence to contest the by-election necessitated by virtue of his/her removal, it would not be permissible for the Court to prescribe such prohibition especially when on a plain reading of Sections 14, 35 and 43 of the Act of 1959 the legislative intention is crystal clear”.

Advocate S. V. Bhutada appeared for the petitioners, Advocate A. A. Madiwale-Assistant Government Pleader, Advocates J. B. Kasat, Nilesh Gawande, R. R. Rajkarne appeared for respondents.

In the present matter, the post of Sarpanch at Gram Panchayat, Wathoda was reserved for Scheduled Caste (Women) under Section 30 of the Act of 1959.

The respondent no.6 was elected as Sarpanch pursuant to the elections held on January 28,2021. A motion of no-confidence was moved against the her by the petitioners as well as the respondent nos. 7 to 11.

Pursuant to which, in the meeting held on June 8, 2023 the said motion of no-confidence was duly carried by requisite majority the respondent no.6 came to be removed from the post of Sarpanch.

Now the question before the Court was when the post of Sarpanch is reserved for a particular category of members and the Sarpanch elected as such is the only member belonging to that particular category, on removal of such Sarpanch due to passing of a motion of no-confidence under Section 35(2)(a) of the Maharashtra Village Panchayats Act, 1959 (for short, the Act of 1959), whether he/she can again contest the by-election that is held for filling in the vacancy caused due to his/her removal?

The petitioners argued that by permitting such member who has been removed by a motion of no-confidence to again contest the by-election for filling in the same post would be against ‘democratic principles and passing of the motion of no-confidence would be rendered otiose’.

The bench, however rejected the contentions made by the petitioners.

While relying on Raghunathrao Ganpatrao vs. Union of India, AIR 1963 SC 1267, the bench noted the distinction between law and morality as well as the line of demarcation which separates morals from legislation. It further stipulates that a moral obligation cannot be converted into a legal obligation.

Cause Title: Rahul S/o Sahdev Lokhande v. State of Maharashtra