Date of Judgement:
09 September 2021
Bench:
Justice Nageswara Rao
Justice B.R. Gavai
Parties:
Appellants – Sau. Sangeeta W/O Sunil Shinde
Respondent – The State of Maharashtra and Others.
Subject
An elected representative can stay in power so long as such person enjoys the support of the majority of the elected members.
Legal Provisions
- Section3 of the Maharashtra Local Authority Member’sDisqualification Act, 1996 – Disqualification on Ground of Defection.
- Section 2(i) of the Maharashtra Local Authority Member’s Disqualification Act, 1996 – Meaning of Municipal Party
Overview
- The Appellant with Respondents 3, 4, 5 were elected as members of the Panchayat Samiti under the authorization of the Indian National Congress (INC) and formed a Panchayat Samiti under the name of INCPS.
- In the first meeting of the party held on 01.03.2017, in the presence of the President of the Ahmednagar District INC Party,a resolution was passed whereby the appellant was appointed as the Party Leader/Whip. It was also decided upon that if moving forward if the Party Leader is to be changed, the District President of INC shall have the power to submit proposals to the District Collector.
- A complaint was registered on 19.21.2019 by the Respondents 3, 4 and 5 against the Appellant before the District President. The content of the complaint alleged that the Appellant in his two and half year’s tenure never called for a meeting. On 04.01. 2020, a meeting was held under the District President and it was unanimously accepted and a resolution was passed wherein the Appellant was removed from the post of Party Leader and Respondent 3 was appointed as the Party Leader.
- Further, on 07.01.2020, another election was held to appoint the Chairman and Vice-Chairman of the Panchayat Samiti. The Appellant was elected as Chairman. Two separate Whips were issued during the election process. The 3rd Respondent stated that the candidature was issued to her for the post of Chairman and to 4th Respondent for the post of Vice-Chairman and hence ordered the members to be present and vote for them. Another Whip was issued by the Appellant stating that the candidature for Chairman was issued to her by the party and hence all should vote for her. Subsequent to this, the disqualification petition was filed by the Respondents against the Appellant. The Appellant also filed a disqualification petition against the Respondents. In this election, all the party members voted against the Appellant. However, he was appointed as members of other party voted for her.
- The Counsel forthe Appellant argued that the Appellant was the legally elected Party Whip by an election and unless any contrary rule is shown against the tenure of the Appellant, the Appellant has the right to continue till the end of five year period. It was also contended that a meeting cannot be called on by an outsider, except the District President, and only him and a request for convening of a meeting should be submitted to him.
- The Counsel for the Respondents contended that the acts of the party were in line with the provisions of law and appointment of 3rd Respondent was done by a 3/4th Majority.
Issue
- Can a Party Leader of a Panchayat Samiti be removed by way of passing a resolution before the end of the stipulated tenure in office?
Judgement Analysis
- The court, considering the facts, observed the Panchayat Samiti rules, wherein it was stated that appointment of a Party Leader will be decided thorough a resolution chaired by the District President and he shall have the power to submit proposal for new appointment to the District Collector for appointing new Party Head.
- The court also noted the appellant himself was appointed by the District Head by passing a resolution. Therefore, the contention of appellant that proper procedure was not followed and that District President is outsider was not accepted.
- It was also observed that election of a leader should be a democratic process and the ejectment of the leader should be also in same manner in absence of any rules. The leader enjoys the power until he has the support of the majority and as soon as he loses this support, he is deemed not fit for the position. In a democratic set up, the will of the majority has to prevail.
- The Court observed that democratic value should be upheld and no single person from minority thrust himself upon the view of absolute majority. In Sunil Haribhau Kale V. AvinashGulabraoMardikar (2015), it observed that once a rule has been laid out for appointment, it should be followed in absence of any other provisions of law. A leader has to be changed in a democracy in which he was elected. Imposition of a leader hits at the core values of the democracy.
- The appellant’s contention was that the members are bound to be disqualified for reasons of horse-trading. However, it was the appellant who acted against the wish of the party and was supported by other party members.
- This court referred to Usha Bharati V. State of Uttar Pradesh and reiterated that an elected representative holds a position and corresponding powers only when he enjoys the support of the majority and when he loses, he becomes unwanted and in a democratic setup, the will of the majority will prevail.Therefore, the court, finding no merit in the contention of the appellant, dismissed the appeal.
Conclusion
While an elected leader represents the interest of its member, he becomes unwanted if he loses the support of the majority. The stipulated period of tenure cannot be independent of the wishes of his members. The removal of the leader will be a democratic process as it was followed while electing the leader. No single party, big or small, can influence the same. It was observed that a leader is elected and not imposed.
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Questions to Analyse:
- If a majority resolution is passed for the removal of the Party Whip, does it attract provisions of Anti-Defection law?
