Election Petitions Cannot Be Referred to Prescribed Authority, Holds Sikkim HC [Read Judgment]

Gangtok: The High Court of Sikkim has held that a Civil Judge trying an election petition under the Sikkim Panchayat Act, 1993 cannot refer the question of a returned candidate's disqualification to the “Prescribed Authority” setting aside orders that had taken the dispute outside the election petition framework prescribed under the Sikkim Panchayat (Conduct of Election) Rules, 1997.

Justice Bhaskar Raj Pradhan was hearing a writ petition filed by Tulshi Das Subba, who had contested the election for Ward No.5, Angden Park, under 32-Upper Thambong GPU, West Sikkim, and lost to respondent no.1, Man Bir Subba. The petitioner filed an election petition under Section 119 of the Sikkim Panchayat Act, 1993 before the learned Civil Judge, Soreng, challenging the election on the ground that the returned candidate was disqualified under Section 16(k) of the Act, which bars a person holding an interest in a contract with a Gram or Zilla Panchayat from being chosen as a member.

After framing issues, the Civil Judge referred the question of respondent no.1's disqualification to the “Prescribed Authority” the Director, Panchayat, Rural Management and Development Department invoking Sections 29 and 120 of the Act of 1993. The Prescribed Authority proceeded to decide the reference on 20 June 2023. The petitioner challenged both the referral order dated 17 April 2023 and the Prescribed Authority's decision before the High Court.

Interpreting Section 16 of the Act of 1993, the Court held that it contemplates two distinct scenarios: disqualification for “being chosen as” a member, which arises before or at the point of election, and disqualification for “being” a member, which arises during an existing member's tenure. The first scenario, the Court held, is governed by Section 119 and must be adjudicated through an election petition before the Civil Judge; the second falls within the removal jurisdiction of the Prescribed Authority under Section 29.

The Court noted that Section 119(1) of the Act, which bars an election from being “called in question except by an application presented to such authority... as may be prescribed,” is worded similarly to Article 329(b) of the Constitution, and that Section 130(2)(xx) makes clear the “authority” referred to in Section 119(1) is the Civil Judge, not the Prescribed Authority. Relying on the Supreme Court's ruling in Ashok Shankarrao Chavan versus Madhavrao Kinhalkar, the Court reiterated that the validity of an election can be examined only by the authority designated under the governing statute, following the procedure it prescribes.

The Court further held that Chapter X of the Rules of 1997, comprising Rules 86 to 119, exclusively governs election disputes, and that Rule 99 empowers only the Civil Judge to dismiss an election petition, declare an election void, or declare another candidate duly elected. Chapter X of the Rules of 1997 does not contemplate a reference by the Civil Judge to the Prescribed Authority, the Court observed, holding that the prayers in the petitioner's election petition fell squarely within Rule 99 and required no such reference.

Addressing the apparent source of the Civil Judge's error, the Court examined Section 120, which provides that if a question arises as to whether a person “has become subject to any disqualification,” it “shall be referred to the Prescribed Authority.” The Court held that the phrase “has become,” being in the present tense, applies only to a person who is already a member and has subsequently become disqualified the second scenario under Section 16 and does not extend to a candidate whose disqualification is raised at the threshold of being chosen.

The Court held that permitting reference of every disqualification question to the Prescribed Authority would reduce the Civil Judge to “an authority tasked with fulfilling procedural formalities,” leaving the substantive question in an election petition to be decided elsewhere, an outcome the statutory scheme did not intend.

Allowing the writ petition, the High Court set aside both the referral order dated 17 April 2023 passed by the Civil Judge and the reference order dated 20 June 2023 passed by the Prescribed Authority, holding that the latter had no jurisdiction to decide the reference. The election petition was remitted to the file of the Civil Judge, Soreng, to be tried and decided afresh in accordance with Chapter X of the Rules of 1997.

The Court separately flagged, without deciding, an apparent drafting inconsistency in Section 119A of the Act, inserted by the Sikkim Panchayat (Amendment) Act, 1995, which refers to an appeal against an order of the “Prescribed Authority under Section 119” even though Section 119 itself speaks only of an “Authority” and not the “Prescribed Authority.” Noting that the Statement of Objects and Reasons offered no explanation for the discrepancy, the Court left the issue for the State respondents to examine.

Appearances: Mr. Yam Kumar Subba and Mr. Mukkum Hang Limboo, Advocates, appeared for the petitioner; Mr. Johnson Subba, Advocate, appeared for Respondent No.1; Mr. Zangpo Sherpa, Additional Advocate General, with Mr. Mohan Sharma and Mr. Sujan Sunwar, Assistant Government Advocates, appeared for Respondent Nos. 4, 5 and 7; and Mr. Bhola Nath Sharma, Advocate, appeared for Respondent Nos. 2, 3 and 6.

Case Title: Tulshi Das Subba versus Man Bir Subba & Ors. [W.P.(C) No.26 of 2023]

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