The Sikkim High Court on July 2 passed a ruling that clarified which forum must be approached to decide on questions about whether a Panchayat candidate was disqualified at the time of contesting the election [Tulshi Das Subba v Man Bir Subba & Ors.].

The Court was faced with a question of whether such matters should be decided by a civil judge hearing an election petition or a "prescribed authority" under the Sikkim Panchayat Act, 1993.

Justice Bhaskar Raj Pradhan clarified that only the civil judge can decide on such disputes involving the eligibility of a candidate to contest the panchayat elections,

On the other hand, the judge explained that any disputes arising after a person becomes a panchayat member regarding his eligibility to continue in office would have to be referred to the prescribed authority.

"All questions relating to the challenge to an election including whether the returned candidate was disqualified or not has to be examined in the election petition, which is to be necessarily filed before the learned Civil Judge. However, once a returned candidate becomes a member of a Gram Panchayat and during his tenure as such he has become subject to the disqualifications contemplated by the Act of 1993 then it is the “Prescribed Authority” who has to make the decision as contemplated in section 29 thereof," the Court held.

The Court passed the ruling on a petition challenging the election of a Gram Panchayat member on the ground that he was allegedly disqualified from contesting the election.

The dispute began after one, Man Bir Subba, was declared elected in the Panchayat polls. The losing candidate, Tulshi Das Subba, approached the civil judge under Section 119 of the Sikkim Panchayat Act (which allows election results to be challenged through an election petition).

He alleged that Man Bir Subba was ineligible to contest the polls under Section 16(k) of the Act, which disqualifies a person from becoming or continuing as a Gram Panchayat member if they have an interest in contracts awarded by a Gram Panchayat or Zilla Panchayat.

Instead of deciding that question, the civil judge referred the issue to the Director of Panchayat, who functions as the "Prescribed Authority" under the Sikkim Panchayat Act, 1993.

While referring the matter, the civil judge relied on Sections 29 (empowers the prescribed authority to remove an elected Panchayat member who incurs a legal disqualification) and 120 (questions about whether a person "has become subject to any disqualification" should be referred to that authority).

The Director of Panchayat passed a verdict in June 2023.

Both this order as well as the civil judge's reference was then challenged before the High Court by Tulshi Das Subba.

The High Court held that the civil judge had wrongly referred the matter to the 'prescribed authority.' The law required the civil judge himself to decide the issue as part of the election petition, the Court found.

"The election petition could not have been decided by the 'Prescribed Authority' and it ought to have been tried and decided by the Civil Judge as mandated by Chapter X of the Rules of 1997. Consequently, it is held that the Prescribed Authority also did not have the jurisdiction to decide the reference and pass the impugned order," observed the Court.

Having taken this view, the High Court also flagged an apparent drafting inconsistency in Section 119A of the 1993 Act.

Section 119A refers to appeals against orders of the "Prescribed Authority" under Section 119. However, the Court noted that Section 119 deals with election petitions to be decided by a civil judge, and not matters decided by the "Prescribed Authority."

"As held above section 119(1) contemplates an application presented to “such authority” as may be prescribed. That authority is the competent authority i.e. the Civil Judge under Chapter X of the Rules of 1997," the Court added.

The Court went on to observe that it is up to the State to correct the apparent error.

"Therefore, it is apparent that either the words 'under section 119' in section 119A of the Act of 1993 was not necessary or the word 'Prescribed' before the word 'Authority' was surplusage. However, as this issue is not directly connected to the present case I deem it unnecessary to say any further and leave it to the State respondents to examine it and take necessary action," it said.

The Court proceeded to leave the decision on the merits of the election dispute at hand open for the civil judge to decide.

Advocates Yam Kumar Subba and Mukkum Hang Limboo appeared for Tilshi Das Subba (petitioner).

Advocate Johnson Subba appeared for Man Bir Subba.

Additional Advocate General Zangpo Sherpa along with Assistant Government Advocate Sujan Sunwar represented Sikkim's Home Department, Rural Development Department and its Roads and Bridges Department.

Advocate Bhola Nath Sharma represented the various election-related officials.

[Read Judgment]