Tripura High Court
Ms. Aparna Sarkar (Das) (Upa-Pradhan) ... vs The State Of Tripura And Others on 1 February, 2021
Equivalent citations: AIRONLINE 2021 TRI 418
Author: Akil Kureshi
Bench: Akil Kureshi, S. G. Chattopadhyay
Page - 1 of 6
HIGH COURT OF TRIPURA
AGARTALA
WP(c) No.318/2020
Ms. Aparna Sarkar (Das) (Upa-Pradhan) and others.
............... Petitioner(s).
Vrs.
The State of Tripura and Others.
............... Respondent(s).
For Petitioner(s) : Mr. N. C. Das, Advocate.
For Respondent(s) : Mr. D. Bhattacharjee, Govt. Advocate.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY
ORDER
01/02/2021 (Akil Kureshi, CJ) Petitioners have challenged separate orders all dated 30th September, 2019 copies of which are produced at annexures 3 to 7 with the petition by which they have been disqualified as Upa-Pradhan and members of Manubazar Gram Panchayat.
[2] Brief facts are as under:
The petitioners had contested for the post of member of Gram Panchayat, Manubazar and were sponsored by a particular political party. They were all declared elected in the declaration of result which took place on 11.07.2019. First meeting of the panchayat was held on 17.08.2019. The petitioners along with other elected members took oath of office. Petitioner No.1 was elected as Upa-Pradhan. According to the petitioners, thereafter suddenly, the Block Development Officer, respondent No.3 herein issued impugned orders Page - 2 of 6 dated 30th September, 2019 individually disqualifying the petitioners from the position of Members/Upa-Pradhan of the Gram Panchayat. These orders, the petitioners have challenged on various grounds. According to the petitioners, they had not committed any acts which would incur disqualification. In any case, the impugned orders have passed without issuing show cause notices to the petitioners or granting any opportunity of hearing in any manner whatsoever.
[3] The official respondents have appeared and filed a reply. However, the petitioners' ground of no notice of opportunity of hearing, has not been denied. We have, therefore, focused our attention only on this single aspect of the matter.
[4] Having heard learned counsel for the parties and having perused documents on record, we find that the impugned orders cannot be sustained.
Only on the short ground of no notice or opportunity of hearing being granted to concerned elected members before passing orders of their disqualifications, these orders must be set aside. We are conscious that the relevant rules for disqualification contained in the Tripura Panchayats (Election of Office Bearers) Rules, 1994 do not specifically referred to a show cause notice or opportunity of hearing being granted to the members facing prospects of disqualification, Division Bench of this Court in case of Smt. Anjana Begam Vrs. The State of Tripura [WP(c) No. 1404/2019] decided on 03.02.2020 has examined this position and come to following conclusions:
"9. Section 16 of the said Act pertains to disqualification on ground of defection and reads as under:
"16. (1) A member of a Gram Panchayat belonging to any political party shall be Page - 3 of 6 disqualified for being a member of the Gram Panchayat-- (a) if he has voluntarily given up his membership of such political party ; or (b) if he votes or abstains from voting in the Gram Panchayat contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining in either case, the prior written permission of such political party, persons or authority and such voting or abstention has not been condoned by such political party, person or authority within thirty days from the date of such voting or abstention.
Explanation: For the purpose of this sub-section, a member of a Gram Panchayat shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member.
(2) A member of a Gram Panchayat who has been elected as such, otherwise than as a candidate set up by any political party, shall be disqualified for being a member of the Gram Panchayat if he joins any political party after such election.
NOTE: For the purpose of this Section, "political party" means a political party which has been recognised by the Election Commission of India as a national party or as a state party of this State. (3) If any question arises as to whether a member of a Gram Panchayat has become subject to disqualification under this Section, the question shall be referred for decision of the Block Development Officer having jurisdiction over such Gram Panchayat and his decision shall be final.
(4) The proceeding under sub-section (3) shall be completed and decision thereon shall be communicated within fifteen days from the date when any such question has been referred.
(5) During pendency of a proceeding, no decision shall be taken by the Gram Panchayat in any meeting for the removal or election of the Pradhan or the Upa-Pradhan.
(6) The disqualification under this Section shall take effect from the date of the decision of the Block Development Officer."
10. Procedure for disqualification is laid down in Rule 27 of the said Rules contained in Chapter-IV and reads as under:
"27. (1) In any meeting of a Gram Panchayat, or a Panchayat Samiti or a Zilla Parishad, where vote is taken for election or for any other purpose, the Presiding Officer shall, if his attention is drawn that any member has voted or abstained from voting contrary to the direction of the political party to which he belongs and thereby has earned disqualification under Section 16, or Section 76, or Section 128, record the facts in the Remarks Column of the record of proceedings of the meeting, obtain clarification from such member Page - 4 of 6 and then refer the question to the Block Development Officer or, as the case may be, the District Magistrate having jurisdiction for decision in Form 6A, or 12A or 17A as the case may be.
(2) If the Gram Panchayat or a Panchayat Samiti or a Zilla Parishad received a written information from a political party or from a member that the member has voluntarily given up the membership of the party or the member having been elected otherwise than as a member of a political party has joined the political party, the Pradhan or Upa Pradhan in case of Gram Panchayat, the Chairman or Vice Chairman in case of Panchayat Samiti or Sabhadhipati or Sahakari Sabhadhipati in case of Zilla Parishad shall refer the question to the Block Development Officer or, as the case may be, the District Magistrate to decide whether such member has earned disqualification under Section 16, or Section 76, or Section 128 in form 6A, 12A or 17A as the case may be.
(3) Every such member who is alleged to have earned disqualification by reason of voting or abstained from voting contrary to the direction of his political party, may submit letter or prior permission or condonation to the Block Development Officer or, as the case may be, the District Magistrate having jurisdiction within thirty days from the date of voting and such authority shall take up the question of disqualification only after expiry of the said period of thirty days and decide the same within fifteen days from the expiry of the said period of thirty days.
(4) If the authority, as aforesaid, is satisfied on the basis of the report of the Presiding Officer and after making such enquiry as he may consider necessary that any such member has become disqualified under Section 16 or, as the case may be, Section 76 or Section 128, record his decision, communicate it to the Gram Panchayat concerned, or, as the case may be, the Panchayat Samiti or the Zill Parishad and make declaration in Form 6B, or 12B, or 17B as the case may be, that the member has ceased to be the member of that Gram Panchayat or, as the case may be, the Panchayat Samiti or the Zilla Parishad."
11. In terms of sub-section (1) of Section 16 of the Act thus a member of a Gram Panchayat belonging to a political party would be disqualified if he has voluntarily given up his membership of such political party or if he votes or abstains from voting in Gram Panchayat contrary to any direction issued by the political party to which he belongs without obtaining prior written permission of such political party and such voting or abstention has not been condoned by the political party or its authorized representative within thirty days from the date of voting. Thus the essence of clause (b) of subsection (1) of Section 16 is the act of a member of the Panchayat belonging to the political party of voting or abstaining from voting in the Gram Page - 5 of 6 Panchayat contrary to any direction issued by the party to which he belongs. In such a situation he would invite disqualification unless and until he can support his action by a prior written permission from the party or such action within thirty days from the date of voting or abstention is condoned by the party.
12. As per sub-section (3) of Section 16 if any question arises as to whether a member of a Panchayat has become subject to disqualification under the said Section, the question would be referred for decision to the BDO whose decision would be final.
13. Rule 27 of the said Rules, as noted, lays down the procedure for dealing with the questions regarding disqualification on ground of defection. Under sub-rule (1) of Rule 27 in any meeting of the Gram Panchayat where vote is taken for election or for any other purpose, the Presiding Officer shall, if attention is drawn that any member has voted or abstained from voting contrary to the direction of the political party to which he belongs and thereby earned disqualification under Section 16, refer the question to the BDO after recording facts in the remarks column and obtaining clarification of the concerned member. Sub-rule (3) of Rule 27 provides that every such member who is alleged to have earned disqualification by reason of voting or abstaining from voting contrary to the direction of the political party may submit a letter or prior permission or condonation to the BDO who shall take up the question of disqualification only after expiry of the said period of thirty days. Under sub-rule (4) of Rule 27 if the said authority is satisfied on the basis of the report of the Presiding Officer and after making such enquiry as he may consider necessary that any such member has become disqualified under Section 16 (or as the case may be Section 76 or 128) record his decision, communicate it to the Gram Panchayat concerned (or as the case may be Panchayat Samiti or Zilla Parishad) and make a declaration in prescribed form that the member has ceased to be the member of that Gram Panchayat.
14. Though neither Section 16 nor Rule 27 of the said Rules specifically refer to issuance of a show-cause notice or a requirement of hearing being granted to the concerned person before a declaration of his disqualification is made by the BDO, the same is inbuilt in the statutory scheme. It is undisputable that any such order would result into serious adverse consequences. By virtue of such a declaration an elected member of the Panchayat would stand disqualified for an alleged act or omission. Once such an act of voting or abstaining from voting contrary to the official party whip is established, the defences available to the concerned member would be either of a written permission of the party for such purpose or condonation of his act within thirty days by the party or its authorized representative. Nevertheless the foundational fact of voting or abstaining from voting against the party directive shall have to be first established and that can be done only after giving an opportunity of hearing to the petitioners. When sub-rule (4) of Rule 27 refers to the satisfaction of the said authority on the basis of the report of the Presiding Officer and after making such enquiry as he may consider necessary that the concerned member has incurred disqualification under Section 16 of the Act, no such consideration can be unilateral without the participation of the concerned member. A bare minimum Page - 6 of 6 opportunity of hearing is thus inbuilt into the said statutory scheme flowing from Section 16 of the said Act and Rule 27 of the said Rules before the competent authority can take a decision and make a declaration of disqualification of the concerned member. In the present case, only opportunity granted to the petitioner was to produce the permission of the party or condonation of the act of the members for defying the party whip. In our opinion, the said notice dated 27.08.2019 issued by the BDO does not satisfy the test of legal requirements. This notice presupposes and proceeds on the basis that the petitioners had violated the party whip which foundational fact was assumed by the said authority without any opportunity of hearing to the petitioners."
[5] Without separate discussion in this petition, impugned orders are quashed and set aside only on the ground of no hearing being granted to petitioners before passing impugned orders.
[6] This petition is allowed and disposed of accordingly. Pending application(s), if any, also stands disposed of.
(S. G. CHATTOPADHYAY),J. (AKIL KURESHI),CJ.
Dipankar