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Gopal Das & Others v/s The State of Tripura & Others


Company & Directors' Information:- G DAS & CO PVT LTD [Active] CIN = U74992WB1935PTC008299

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Company & Directors' Information:- DAS & CO PVT LTD [Strike Off] CIN = U72100AS1946PTC000740

Company & Directors' Information:- K C DAS PVT LTD [Active] CIN = U15433WB1946PTC013592

Company & Directors' Information:- D K DAS & CO PVT LTD [Active] CIN = U51909WB1938PTC009288

Company & Directors' Information:- U C DAS & CO PVT LTD [Active] CIN = U31200WB1987PTC042709

Company & Directors' Information:- GOPAL CO PVT LTD [Strike Off] CIN = U00513MP1948PTC000460

Company & Directors' Information:- DAS & DAS PVT LTD [Strike Off] CIN = U51109WB1950PTC019222

Company & Directors' Information:- A S DAS CO PVT LTD [Strike Off] CIN = U51109WB1957PTC023552

Company & Directors' Information:- DAS-G INDIA PRIVATE LIMITED [Active] CIN = U24304DL2020PTC370609

Company & Directors' Information:- P K DAS & CO PVT LTD [Strike Off] CIN = U74210WB1955PTC022259

    WP(C) No. 1434 of 2019

    Decided On, 10 February 2020

    At, High Court of Tripura

    By, THE HONOURABLE CHIEF JUSTICE MR. AKIL KURESHI & THE HONOURABLE MR. JUSTICE ARINDAM LODH

    For the Petitioner: A.L. Saha, Advocate. For the Respondent: Debalay Bhattacharjee, G.A.



Judgment Text


Akil Kureshi, CJ.

Oral

1. This petition is filed by 10(ten) elected members of Dakshin Krishnapur Gram Panchayat challenging separate orders all passed on 24.09.2019 by which they have been disqualified as members of the said Gram Panchayat by the Block Development Officer, Teliamura R.D. Block, Teliamura, respondent No.3 on the ground that they had violated the party whip in the conduct of elections for the posts of Pradhan and Upa-Pradhan of the said Gram Panchayat.

2. Brief facts are as under:

Petitioners were elected as members of the said Gram Panchayat for which the elections were held sometime in the month of August, 2019. They were all sponsored by the Bharatiya Janata Party (BJP, for short). First meeting of the Panchayat was convened on 16.08.2019 when all the newly elected members were given oath of office. This was followed by the procedure for election of Pradhan and Upa-Pradhan of the Gram Panchayat. One Sri Gopal Das was elected as Pradhan and one Smt. Manju Rani Debnath was elected as Upa-Pradhan. Both elections were uncontested. In other words, these were the only two candidates for the respective posts.

3. The Block Development Officer issued individual notices to all the petitioners dated 30.08.2019 pointing out that he/she has violated the whip of the BJP during the process of election of office of Pradhan of the said Gram Panchayat. He was, therefore, called upon to submit a document of condonation/pardon from the concerned political party, if any, issued to be produced before 15.09.2019, failing which he/she would incur disqualification in terms of Section 16 of the Tripura Panchayats Act, 1993.

4. The petitioners filed separate but similar replies all dated 12.09.2019 to the said show-cause notice contending that they had not received any whip and the question of disobeying the whip, therefore, does not arise. They had not received any paper from the party in the nature of a whip. They, therefore, did not have any knowledge or information about any such directive.

5. The Block Development Officer thereupon wrote to the Panchayat Officer on 16.09.2019 and stated as under:

"Having the fact in knowledge, the undersigned issued notice vide No.F.6(44-3)/BDO/TLM/PANCH/ ELEC/CORRS/2019-20/1709-21 dated 30/08/2019 in favour of all of the above members inviting them to submit written permission or condonation letter from their political party to which the belong, on or before 15/09/2019 failing which they shall earn disqualification under Section 16 of the Tripura Panchayat Act, 1993, against which they have submitted individual written reply on 12/09/2019 stating that none of them were aware about their Political Party direction (whip) for election of the Pradhan/Upa-pradhan of Dakshin Krishnapur Gram Panchayat on that day, the copies of which are enclosed herewith this letter.

You are therefore, requested to cause enquiry into the matter as whether the members in question here in above having the knowledge and heard about the direction (whip) of their political party about the election of the Pradhan/Upa-pradhan of Dakshin Krishnapur Gram Panchayat, had voted in contrary to the direction of their political party to which they belong on 16/08/2019 at 3:00 PM onwards in the Dakshin Krishnapur Gram Panchayat Office and thus submit the factual report along with available evidences in this regard within 3(three) days from the date of receipt of this letter.

The matter shall be treated as TOP MOST URGENT."

6. On 17.09.2019 the Superintendent of Agriculture made a report to the Block Development Officer and conveyed as under:

"Sir,

Please refer to above.

In response to your above letter, it is to inform you that, all the 13(Thirteen) elected members of Dakshin Krishnapur Gram Panchayat were present in the meeting which was held on 16/08/2019 in administering Oath and election of Pradhan & Upa-pradhan.

All of them had duly signed in the attendance sheet and subsequently taken the oath.

The directives (whip) of their political party (BJP) were read out to them from this end. After knowing about the whip they have put their signature individually in the copy of whip as an acknowledgement.

So, their claim of ignorance about the whip is not true.

It is farther mentioned here that the original whips containing their individual signature 13 (Thirteen) nos. along with other papers were already submitted to your office from this end in due time.

This is for doing the further needful from your end please."

7. The respondent No.3 thereupon passed the impugned orders disqualifying all the petitioners as members of the said Gram Panchayat in exercise of powers conferred under Section 16 of the Tripura Panchayats Act, 1993 read with sub-rules (2) and (3) of Rule 27 of the Tripura Panchayats (Election of Office Bearers) Rules, 1994.

8. Learned counsel for the petitioners Mr. A.L. Saha submitted that there was no valid whip issued by the party, none ever served upon any of the petitioners. The question of disobeying the whip, therefore, did not arise. He further submitted that the respondent No.3 has breached the principles of natural justice while passing the impugned order. The grounds taken by the petitioners have not been examined. The question of issuance and service of valid whip has been examined by collecting material which was never supplied to the petitioners. He lastly contended that in any case when there was only one candidate each for the posts of Pradhan and Upa-Pradhan, even if the said so-called whip was validly issued and duly served upon the petitioners, there was no breach on part of the petitioners thereof.

9. On the other hand, learned Government Advocate Mr. Debalay Bhattacharjee opposed the petition contending that the material on record clearly suggests the issuance and service of whip on all members of the Panchayat and breach by the petitioners of such whip. Respondent No.3 has, therefore, passed appropriate order after giving hearing to the petitioners.

10. In the present case, it is not necessary to examine all aspects of the matter raised by the petitioners. This is so because, the case on hand concerns a situation where there was only one candidate each for the election to posts of Pradhan and Upa-Pradhan. This was thus a case of the concerned candidate being declared elected uncontested. In this context, the party whip has to be appreciated. The contents of the whip were as under:

"It is for your/yours information that,

Whereas elected member/members of the political party under section 16 of the Tripura Panchayat Raj Act, 1993, so you are bound to obey the direction of the party in case of votes of the Dakshin Krishnapur Gram Panchayat, as you are candidate cum member/members of the Gram Panchayat on behalf of Bharatiya Janata Party,

AND

Whereas as per power of letter conferred by the president of the Bharatiya Janata Party, Tripura Pradesh Committee, I, Sri Amit Rahkhit (filled up by written) is responsible for issuing direction or Whip to the elected member/members of the Bharatiya Janata Party and Gram Panchayat under section 16 of the said Panchayat Act.

So, therefore, you are hereby directed that you must present in the meeting of the Dakshin Krishnapur Gram Panchayat for the scheduled voting meeting for election of Pradhan and Upa-Pradhan on 16.08.2019-(date hand writing, struck off and re-written another date) and in scheduled time and caste vote to the candidate of Bharatiya Janata Party Smt./Sri Sujit Das-(Filled up by hand written) for Pradhan and Sri Gopal Das (Filled up by Hand Written) as Upa-Pradhan.

In case of absence of being present in the said meeting do not participate in the voting procedure or do not cast vote as per direction in favour of Pradhan and Upa-Pradhan, candidates of the party, your membership/memberships shall be arranged for cancellation as per Section 16(b) of the Tripura Panchayat Raj Act, 1993."

11. Even accepting the said document as a valid whip and duly communicated to the petitioners, it only contained a directive that he or she should remain present during the election for the posts of Pradhan and Upa-Pradhan of the said Panchayat and vote for Sri Sujit Das for the post of Pradhan and Sri Gopal Das for the post of Upa-Pradhan. Neither of these two named persons were candidates for the respective posts as mentioned in the whip.

12. This Court had occasion to examine an identical situation in another group of cases being WP(C) No.1404 of 2019 and connected petitions in case of Smti. Anjana Begam v. The State of Tripura & others. Following observations were made:

"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 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 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 authorised representative within thirty days from the date of voting. Thus the essence of clause (b) of sub-section (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 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 indisputable 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 authorised 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 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.

15. On a far more fundamental ground the action must fail and it is that the respondents have failed to establish that any of the petitioners had voted or abstained from voting contrary to any direction issued by the political party to which they belong which is the basic requirement of invoking clause (b) of sub-section (1) of Section 16 of the Act. We have reproduced the contents of the party directive, according to which the members of the Panchayat sponsored by the concerned political party had to vote in favour of Smti. Sabitri Das for Pradhan and Sri Arjun Debnath for the post of Upa-Pradhan. The proceedings of the meeting dated 26.08.2019 would, however, show that for the post of Pradhan only one candidate was sponsored namely Anjana Begam. In absence of any other candidate for the said post she was declared elected as uncontested. Likewise, for the post of Upa-Pradhan there was only one candidate sponsored namely Sri Arjun Debnath who was also for similar reasons declared elected uncontested. The question of any of the members, therefore, casting their votes in favour of any candidate did not arise at all. The party whip required the members to cast their votes in favour of named persons for the posts of Pradhan and Upa-Pradhan respectively. When none of these named persons were so nominated as candidates for the said posts, there was no occasion for any of the members to cast their votes in their favour. The question of casting vote against the party whip or abstaining from voting in favour of the candidate as provided in the whip, did not arise at all since the elections to both posts were uncontested. In this conte

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xt we may refer to Rule 6 of the said Rules which pertains to election of Pradhan and Upa-Pradhan of Gram Panchayat. Sub-rule (1) of Rule 6 provides for convening a meeting for all newly elected members of the Panchayat to take oath before holding the meeting for electing the Pradhan and Upa-Pradhan. Sub-rule (3) of Rule 6 provides that the Presiding Officer after taking of the oath is over and immediately after the commencement of the meeting would call upon the members present to propose the names of the candidates for election for the post of Pradhan. Only one member shall be required to propose such name. He would record the names so sponsored and reject which are not in consonance with the Rules. Sub-rule (4) of Rule 6 inter alia provides that if only one candidate is sponsored the Presiding Officer shall declare him to be duly elected as Pradhan. However, if more than one candidate is proposed the Presiding Officer would ask the members to cast their votes. Even in terms of sub-rule (4) of Rule 6 of the said Rules thus the question of asking the members to cast their votes would arise only if there were more than one candidate for the respective posts. 16. Quite apart from this statutory scheme, in plain terms holding of election by requiring the members to cast their votes when only one member is in the fray is alien to the election process. In plain terms thus none of the members of the Panchayat had defied the party whip for voting in favour of a specified candidate for the post of Pradhan as well as Upa-Pradhan. Respondent No.3 thus committed a serious error in coming to a contrary conclusion and consequently making a declaration of their disqualifications. All the impugned orders are, therefore, set aside. Resultantly, disqualifications of the petitioners as members of the Gram Panchayat and in case of the elected Pradhan and Upa-Pradhan shall stand invalidated. 17. All petitions are allowed and disposed of accordingly. Pending application(s), if any, also stands disposed of." 13. Under the circumstances, without recording separate reasons this petition is also allowed. Respective orders of disqualification of the petitioners passed by respondent No.3 are quashed and set aside. Petition is disposed of accordingly.
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