The Sikkim High Court has drawn a clear distinction between election disputes and post-election disqualification proceedings, holding that challenges to a candidate’s eligibility at the time of contesting Panchayat elections must be decided exclusively by a civil judge hearing an election petition, and not by the “Prescribed Authority” under the Sikkim Panchayat Act, 1993.
Delivering the judgment in Tulshi Das Subba v. Man Bir Subba & Ors., Justice Bhaskar Raj Pradhan explained that the authority designated under Section 29 of the Act becomes relevant only after a person has already assumed office as a Panchayat member and subsequently incurs a statutory disqualification.
The Court observed:
“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.”
Election Challenge
The dispute arose after Man Bir Subba was declared elected as a Gram Panchayat member. His defeated rival, Tulshi Das Subba, challenged the result through an election petition under Section 119 of the Sikkim Panchayat Act.
The petitioner argued that the returned candidate was barred from contesting under Section 16(k) of the Act, which disqualifies any person having an interest in contracts awarded by a Gram Panchayat or Zilla Panchayat from becoming or continuing as a Panchayat member.
Instead of deciding the issue within the election petition, the Civil Judge referred the matter to the Director of Panchayat, functioning as the “Prescribed Authority,” relying on Sections 29 and 120 of the Act. The Director subsequently decided the matter in June 2023.
The petitioner then challenged both the Civil Judge’s referral order and the Director’s decision before the High Court.
Civil Judge Cannot Shift Election Petition
Allowing the challenge, the High Court ruled that the Civil Judge had no authority to transfer the question of pre-election disqualification to the Prescribed Authority.
According to the Court, the statutory scheme requires every issue concerning the validity of an election—including whether the successful candidate was qualified to contest—to be determined by the Civil Judge in an election petition under the procedure laid down in Chapter X of the Sikkim Panchayat Election Rules, 1997.
The Court held:
“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.”
As a result, the High Court set aside the proceedings before the Prescribed Authority and restored the issue to the Civil Judge for adjudication on its merits.
Court Notes Drafting Anomaly in the Act
While examining the statutory framework, the High Court also pointed to what it described as an apparent inconsistency in Section 119A of the Sikkim Panchayat Act.
The provision speaks of appeals against orders of the “Prescribed Authority” under Section 119. However, the Court noted that Section 119 itself contemplates election petitions to be decided by the competent authority prescribed under the Rules, namely the Civil Judge, rather than the Prescribed Authority.
The Bench remarked that the wording suggests a legislative drafting error and left it to the State government to examine the provision and make any necessary corrections.
Without expressing any opinion on the substantive allegations against the returned candidate, the Court directed that the election dispute be decided afresh by the Civil Judge in accordance with law.
