Writ Petition No. 3562 of 1997

9th September, 1997

Petitioner Counsel: Shri. A.S.GOLEGAONKAR
Respondent Counsel: Shri. A.M.KANADE

JUDGMENT

CHAPALGAONKER, J.:- This is a petition of two petitioners of the village panchayat Devapur in Degloor taluka of Nanded district. The office of the Sarpanch of the village panchayat, Devapur is reserved for the category of Other Backward Class (woman). An order to this effect has been passed by the Collector, Nanded under S.30 of the Bombay Village Panchayat Act, 1958. After the elections, respondent No.6 Smt. Noor Baag Jamanabee Maulana, a woman member of the village panchayat elected from the seat reserved for Other Backward Class was elected as the Sarpanch unopposed since she alone had filed a valid nomination. On 25th July 1996, a vote of no confidence came to be passed per majority against the said Sarpanch and, therefore, the office of the Sarpanch became vacant under the provisions of S.35(3) of the said Act.

2. Again the election of Sarpanch of the village panchayat was announced and on 7th September 1996, the respondent No.6 Smt. Noor Baag Jamanabee Maulana was again elected as the Sarpanch unopposed. The present petitioners and three other members of the village panchayat had filed an objection petition to the Returning Officer saying that the respondent No.6 has already been removed by passing a No Confidence motion and, therefore, her nomination paper be rejected. The Returning Officer rejected the said objection petition and declared the respondent No.6 having been elected unopposed. The majority of the members thereupon again moved a vote of No Confidence and in a meeting held on 3-8-1997, the vote of no confidence was passed against respondent No.6 per majority as required by sub-section (3) of S.35 of the Act and thus, the office of Sarpanch again became vacant.

3. By notice dated 3-9-1997, the Presiding Officer appointed, called a meeting of the village panchayat to elect the Sarpanch of the village on 10-9-1997. On 4-9-1997, the present petitioner No.2 filed an objection with the Commissioner, Aurangabad contending that because of the reservation in favour of woman belonging to the category of Other Backward Class, respondent No.6 is likely to file a nomination and again elected unopposed since no other member of the village panchayat is entitled to contest the seat in view of the present reservation. It was contended that twice the vote of No Confidence was passed and the majority of members are against respondent No.6 and thus, the development of the Village is stalled. Therefore, the reservation in favour of woman belonging to Other Backward Class be cancelled so as to give opportunity for member belonging to some other category. The Commissioner did not pass any order on this application. Hence this petition.

4. Shri. A.S.Golegaonkar, learned counsel for the petitioners, contended that a member on whom the vote of against confidence was twice passed, should not be allowed to contest the same seat again. The term of office as defined under S.31 is co-terminus with the panchayat but if it is so interpretted, then the purpose of passing a no confidence motion, as permitted under S.35, would be defeated in view of the reservation of the office of Sarpanch, appreciated in the light of the fact that there is only one member belonging to the category for which the office is reserved. He further submitted that if the member is guilty of misconduct, he would be entitled to be continued by successive elections in view of the reservation in favour of a particular category.

5. Removal of a Sarpanch by passing a vote of No Confidence under S.35 does not entail a disqualification for further election under the scheme of the Act. A person removed by passing a vote of No Confidence can get himself re-elected as many times as can, during the tenure of panchayat. It is true that the reservation in favour of a category has limited the choice of the members to elect a new Sarpanch but this is consequence of the constitutional mandate given effect to by the statutory amendment making reservations in favour of Scheduled Castes, Scheduled Tribes, Other backward Classes and women. The members of the village panchayat have a right to elect a Sarpanch of their choice subject to the statutory reservations. The reservation in favour of the Scheduled Castes, Scheduled Tribes or Other Backward Classes by itself has not been disputed before us and it is constitutionally valid. If an office is reserved for a particular category, naturally the members would not be competent to elect anybody who does not belong to that category. This by itself is not limiting any constitutional or a statutory right of the members of the village panchayat. The right to elect a Sarpanch is a statutory right and not a fundamental one. Therefore, this right will have to be enjoyed within the limits circumscribed by the statute. If a member of the panchayat can file a valid nomination and his name is validly proposed by another member of the village panchayat, then there is nothing in the Statute which would prevent him from contesting the post of Sarpanch again. The right given to members of the village panchayat to remove a Sarpanch by passing a vote of No Confidence has not been taken away even in respect of the Sarpanchas elected on reserved posts. Such a Sarpanch can be removed by passing a vote of No Confidence and, therefore, we cannot say that S.35 has been rendered meaningless in such cases.

6. The argument advanced that even a Sarpanch guilty of misconduct would continue because of the present system, is not correct, If somebody is guilty of misconduct, then there are other provisions in the Statute which enable the authorities to remove him. Under the Bombay Village Panchayats Act, 1958, S.39 permits the Standing Committee of the Zilla Parishad to remove a Sarpanch from the office, if he has been guilty of misconduct in discharge of his duties or of any disgraceful conduct or of neglect or incapacity to perform his duty or is persistently remiss in the discharge thereof. If somebody is removed under this provisions, then he or she is not eligible for re-election as Sarpanch during the remainder of the term of office of the members of the village panchayat. Therefore, there is no merit in the submission made by the Counsel for petitioners.

7. Since there is no disqualification arising out of the removal of a Sarpanch by passing a vote of No Confidence against him under S.35 of the Bombay Village Panchayat Act, 1958, the person so removed is very much competent to contest the election again and the reservation made in favour of the Other Backward Class (woman) category was perfectly valid. We do not find any merit in the writ petition and reject it summarily.

Petition dismissed.