Arun Debnath and Ors v. The State of Tripura and Ors

JUDGMENT (Amarnath Goud, ACJ)

Heard Mr. P. Roy Barman, learned senior counsel assisted by Mr. K. Nath, learned counsel appearing for the petitioner as well as Mr. D. Page 2

Bhattacharjee, learned GA assisted by Mr. S. Saha, learned counsel appearing on behalf of the respondents.

¶2Petitioners, have filed this writ petition for quashing the declarations dated 20.04.2022 issued by the respondent no. 5 declaring that the petitioners have earned disqualification and ceased to be the members of the Fulbarikandi Gram Panchayat.

¶3The facts of the case are that, the petitioners are the elected members of Fulbarikandi Gram Panchayat from a particular political party. In the process of election, Sundar Miah was elected as Pradhan and the petitioner no. 1 herein as Upa-Pradhan of the said Gram Panchayat. Due to dissatisfaction of the works and activities of Pradhan in execution of the development works of gram panchayat, the petitioners proposed to remove the Pradhan. Thereafter, the respondent no. 4 issued notice to all the members of the Gram Panchayat to convene a special meeting in connection with no-confidence motion against the Pradhan. In the said meeting 7 members voted in favour of no-confidence motion against the Pradhan and 4 members voted against the motion. Proceeding has been recorded in the minutes of the meeting by the respondent no. 4 and the respondent no. 5 forwarded the minutes of the meeting to the respondent no. 4. In the proceeding though it is mentioned that whip has been read out but, according to the petitioners, whip was not read out. It is the further case of the petitioners that in the proceeding note there is no written acknowledgment of the petitioners to the effect that whip was read out in the Page 3

meeting even in the remarks column there is no whisper that whip was read over and served to the petitioners. Further, the case of the petitioners is that in the remark column of the proceeding of the meeting it is also not mentioned that the petitioners have earned disqualification in terms of Rule 27(1) of the Tripura Panchayat (Election of Officer Bearers) Rules, 1994. All on a sudden the respondent no. 5 vide memo dated 11.04.2022 issued show-cause notice upon the petitioners. The petitioners jointly submitted reply dated 16.04.2022. Subsequently, on 20.04.2022 the respondent no. 5 issued the impugned order declaring that the petitioners have earned disqualification under sub-section 1(b) of Section 16 of the Tripura Panchayat Act, 1993 for voting contrary to the direction of the party whip.

¶4During arguments, Mr. Roy Barman, learned senior counsel appearing for the petitioners has argued that there was no communication on the part of respondent no. 5 for issuance of party whip. Mr. Roy Barman, learned senior counsel has further argued that mere reading of the party whip cannot substitute the communication of the party whip to the elected members of the gram panchayat. Mr. Roy Barman, learned senior counsel has also argued that since whip was not served upon the petitioners prior to commencement of the election process, the ceasing of the membership of the petitioners cannot sustain as per law. Learned senior counsel has also argued that before issuing disqualification certificate, a proceeding is required to be initiated against the disqualified members, but no proceeding has been initiated and respondent no. 5 whimsically has disqualified the petitioners Page 4

from being members of the gram panchayat. Further, learned senior counsel for the petitioners has submitted that there is no proof that party whip was served upon the petitioners. According to Mr. Roy Barman, learned senior counsel, party whip must have been served on the petitioners before commencement of the election proceedings and their disqualification. Learned counsel has lastly argued that the impugned declaration order dated

20.04.2022 (Annexure 12 to the writ petition) ceasing the membership of the petitioners of the gram panchayat be quashed/set aside.

¶5Controverting the submissions of learned counsel, Mr. D. Bhattacharjee, learned GA has submitted that the petitioners have violated the party whip by casting their votes. Mr. Bhattacharjee, has also submitted that since the petitioners have violated the party whip they have earned disqualification under Section 16 of the Tripura Panchayat Act (for short, the Act). Mr. Bhattacharjee, learned GA has also submitted that the party whip was read over to the petitioners and they have put their signatures on the minutes. Lastly, learned GA has submitted that there is no illegality in the impugned declaration dated 20.04.2022 passed by the respondent no. 5.

¶6The disqualification of the petitioners and ceasing them to be members of the Gram Panchayat relate to Section 16 of the Tripura Panchayat Act, 1993, which reads as under:-"16. (1) A member of a Gram Panchayat belonging to any political party shall be 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 Page 5

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."

¶7Further, the procedure to disqualify any Panchayat member on the ground of defection is laid down in Rule 27 of Tripura Panchayats (Election of Officer Bearers) Rules, 1994, (for short, the Rules, 1994) which 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 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, Page 6

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."

¶8Section 16 of the Act, clearly says that any member of Gram Panchayat would stand disqualified if he voluntarily gives up his party membership or if he votes or abtains from voting in the panchayat disobeying party whip or direction issued by the party and when such voting has not been condoned by the party within 30 days from the date of such voting.

¶9Rule 27 of the Rules, 1994 demonstrates that in any meeting of Gram Panchayat where vote is taken for election, the Presiding Officer of the meeting shall, if his attention is drawn to the fact that any elected member of the Panchayat in such meeting has voted or abstained from voting contrary to the direction of the political party to which he belongs and has thereby earned disqualification under the Act, record the facts in the proceedings of the meeting and after obtaining clarification from the members, shall refer the matter to the BDO. Under sub-section(3) of Section 27 of the Rules, the concerned member who is alleged to have earned such disqualification by reason of voting or abstention from voting contrary to the whip issued from his party can defend his case by submitting to the BDO a letter or prior Page 7

written permission of his party or condonation by such party within 30 days and the BDO shall take up the question of disqualification only after expiry of the said period of 30 days and decide the matter within 15 days thereafter. Under sub-section(4) of Section 27 of the Rules, if the authority, aforesaid, is satisfied on the basis of the report of the Presiding Officer and his own inquiry that such member has become disqualified for the reason aforesaid, he may record his decision and communicate it to the concerned panchayat and make a declaration in prescribed form that the member has ceased to be a member of the Gram Panchayat.

¶10From the memorandum dated 11.04.2022 issued by the respondent no. 5 of the said Gram Panchayat it would be conclusively seen that the respondent no. 5 has stated that it has been informed on the day of meeting by reading out the party's direction / WHIP that you have earned disqualification under section 16 of the Tripura panchayats Act 1993 for voting contrary to the party direction/WHIP. In the Memorandum dated

20.04.2022 issued by the BDO, Gournagar RD Block, Unakoti District, it has been stated that in addition from careful perusal of the report of the observer of the meeting and the minutes of the meeting submitted by the Presiding Officer, it is also clear that the direction of the party was ludly read out and make understood to 4 (four) members in the meeting specially conveyed for removal of Pradhan of Fulbarikandi Gram Panchayat on 10.03.2022 at 11 AM. Page 8

¶11As per the statutes of the Act and Rules made thereunder, it is essential to communicate party whip prior to the commencement of the election process. Mere reading loudly of the whip does not come within the purview of the said Act and Rules. Further, there is no evidence on record that any written intimation of the party whip was ever served upon any of the petitioners. There is no evidence also on record that such a whip, in any manner, being communicated to the petitioners by any of the authorized members of the party. From the annexures submitted by learned GA it is conclusively seen that the Presiding Officer had loudly read out the party whip to the petitioners in terms of Section 16 of the Act and Rule 27 of the said Rules. Section 20 of the Act says that it is not the duty of the Presiding Officer to read out the party whip to the elected members before commencement of the election. No duty is cast upon the Presiding Officer under the Rule to read out the party whip to the members before commencement of the proceeding. His only duty is to conduct the election.

¶12From the Memo dated 08.03.2022 issued on behalf of Sri Bijon Choudhury, Panchayat Extension Officer, Gournagar RD Block there is no whisper to issue any Whip on behalf of the petitioners and also there is no proof of service of the whip upon the petitioners. The petitioners have categorically denied to have received such whip. From the record it is evident that the petitioners by their reply dated 16.04.2022 have intimated the BDO, Gournagar RD Block, stating that they have not received any Whip at the time of voting on 10.03.2022. Page 9

¶13As per the provisions of Section 16 of the Panchayat Act and Rules 27 of the Panchayat Rules, even a meeting is said to be convened for removal of the office bearers of the Gram Panchayat, reasonable opportunity needs be given and in the place where whip has been issued under the Acts and Rules, service of whip is an essential ingredient. In the present case, learned senior counsel for the petitioners submits that no such whip has been served upon the petitioners herein. To this, learned counsel for the respondents in their counter affidavit has submitted that the said whip was read out in the meeting. The said contention, unless is established, cannot be taken for granted. Moreso, when the law does not permit the said reading over of the whip, this court is of the prima facie view that doctrine of audi alterm partem has been grossly violated by the respondents.

¶14From the above analysis, it is abundantly clear that disqualification of the petitioners from being members of the Fulbarikandi Gram Panchayat is wholly disproportionate to the default committed by the respondents under Section 16 of the Act and under Rule 27 of the Rules. Thus, we have no hesitation in holding that the impugned declaration dated 20.04.2022 betrays utter non-application of mind to the facts of the case and the relevant law. This court prima facie feels that the impugned action of the respondents against the petitioners needs be interfered with.

¶15In the result, we are of the opinion that the declaration dated 20.04.2022 (Annexure 12 to the writ petition) issued by the respondent no. 5 disqualifying the petitioners from the membership of Fulbarikandi Gram Panchayat for Page 10

violation of party whip stands quashed and set aside. The petitioners are declared to continue as elected Office Bearers till their tenure, if not, facing any other dis-qualification. The writ petition, therefore, stands allowed and thus disposed of.

Pending application(s), if any, also stands disposed.

JUDGE

CHIEF JUSTICE (ACTING)

Saikat

Page 1 HIGH COURT OF TRIPURA AGARTALA W.P.(C) 418/2022 1. Sri Arun Debnath, son of late Krishna Debnath, resident of Fulbari kandi, P.O. Noorpur, P.S. Kailasahar, Gournagar RD Block, District- Unakoti, Tripura 2. Nazmul Haque, son of Fazil haque, resident of Fulbari kandi, P.O. Noorpur, P.S. Kailasahar, Gournagar RD Block, District- Unakoti, Tripura 3. Fatema Megum, wife of Samsur Ali, resident of Fulbari kandi, P.O. Noorpur, P.S. Kailasahar, Gournagar RD Block, District- Unakoti, Tripura 4. Rubina Begam, wife of Abdul Rashid, resident of Fulbari kandi, P.O. Noorpur, P.S. Kailasahar, Gournagar RD Block, District- Unakoti, Tripura ---- Petitioners Versus 1. The State of Tripura, represented by the Secretary, Department of Panchayat, Government of Tripura, New Secretariat Building, New Capital Complex, Kunjaban, P.S. New Capital Complex, Agartala, West Tripura, Pin- 799006 2. The Director, Department of Panchayat, Government of Tripura, Gurkhabasti, Agartala, West Tripura, Pin- 799006 3. The DM & Collector, Unakoti District, Kailasahar, Government of Tripura 4. The District Panchayat Officer, Government of Tripura, Unakoti District, Kailasahar, Government of Tripura 5. The Block Development Officer, Government of Tripura, Gournagar RD Block, Kailasahar, Unakoti, Tripura ----Respondents For Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate Mr. K. Nath, Advocate For Respondent(s) : Mr. D. Bhattacharjee, GA Mr. S. Saha, Advocate Date of hearing and delivery : 29.03.2023 Of Judgment & Order Whether fit for reporting : HON'BLE THE CHIEF JUSTICE (ACTING) HON'BLE MR. JUSTICE ARINDAM LODH