2-Yrs Immunity Against No-Confidence Motion Is From Date Of Election Of First Sarpanch, Not From When New Sarpanch Fills Vacancy: Bombay HC

Justice Sharmila U. Deshmukh was of the view that the “date of election” in the provision indicates that the words are situation-specific and not person-specific.

The Court was considering the petitioner's challenge to their removal as Sarpanch due to a No-Confidence motion.

On 9 February 2021, a Sarpanch was elected to Bhavdi village, Pune. The Sarpanch resigned on 29 November 2021 and then the petitioner was elected as the Sarpanch on 27 December 2021. On 13 December 2023, some residents of the village moved a No-Confidence Motion against the petitioner.

The Tahsildar subsequently issued notice for convening the special meeting and on 19 December 2023, the motion of no confidence was passed against the petitioner.

The petitioner contended that as the 4th proviso of Section 35(3) of the Act makes reference to the “date of election of Sarpanch or Upa-Sarpanch”, it implies that it refers to the person and not to the post.

However, the Court did not agree with this view and observed that the absence of reference to a specific person in the provision means that the immunity is with respect to the post.

It remarked that if it was for a specific person, the reference would be to 'his/her election' or 'the date he/she assumes office' or 'the date when he/she takes charge.

It stated, “The statute if worded as “Provided also, that no such motion of no confidence shall be moved within a period of two years from the date he assumes charge as Sarpanch or Upa Sarpanch and before six months preceding the date on which the term of Panchayat expires”, would have left no manner of doubt that person avails immunity for two years from the date he enters office. Contrast this with the present words of the statute makes it evident that the same is situation specific and is qua the post and not qua the person. The absence of the person specific words, in my opinion, makes it evident that the immunity is co-terminus with the post and not the person and that being so, the date of election would mean date of first election to that post.”

The Court thus said that the date of election would mean date of first election to that post.

It also referred to Section 43 which provides for the new Sarpanch to hold office so long as the first Sarpanch would have held office if the vacancy had not occurred.

Pursuing Section 43, it noted that the election of subsequent Sarpanch has no impact on the term of the office and the fresh incumbent continues as if the vacancy has not occurred.

The Court thus remarked that interpreting the 4th proviso of Section 35(3) as giving immunity of two years to new Sarpanch from date of their election would amount to considering the vacancy as a fresh election, which is in violation of the Act.

“Section 43 makes it clear that the last elected Sarpanch steps in the shoes of the erstwhile Sarpanch. The term remaining unchanged and the last elected Sarpanch simply taking over the baton from the erstwhile Sarpanch for remainder of term, interpreting the period of two years from date of his election would amount to giving the filling of vacancy the colour of fresh election and grant of fresh immunity, when the statute is clearly to the contrary.”

It stated that the conjoint reading of Section 35 and Section 43 indicates that the words “date of election” in 4th proviso of Section 35(3) is the to the date of the election of the first Sarpanch.

It remarked that such interpretation serves “the purposive interpretation as although the statutory longevity by grant of immunity of period of two years is prescribed for infusing stability.”

The Court thus did not accept the petitioner's view and dismissed the petition.

Case title: Charushila Bira Shriram vs. State of Maharashtra & Ors. (Writ Petition No. 9981 Of 2024)

Citation: 2025 LiveLaw (Bom) 6