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1997 DIGILAW 232 (CAL)

Md. Bukitullah v. Appellate Authority

1997-05-23

S.Narayan

body1997
JUDGMENT S. Narayan, J.: This revisional petition one being under Art. 227 of the Constitution of India centres around the provision of Law under S. 213A of the West Bengal Panchayat Act, 1973, the enforcement of which resulted into disqualification of the petitioner as a member of Baraturigram Gram Panchayat. 2. In a democratic pattern of Government, our country has experienced a state of instability of an elected body viz., Parliament/Council of States, Assembly/Council and Gram Panchayat. It was, thus deemed necessary to formulate new objectives of law for the purpose of maintaining democratic ethics and, ultimately, to restrict defection in the recognised political parties which was the root cause of out-voting a particular political party and, consequently, causing a state of instability of the Government. This led to introduction of S. 213A of the West Bengal Panchayat Act, 1973 by way of amendment under S. 51 of the West Bengal Panchayat (Amendment) Act, 1994. The law enacted as per this section states that a member of Gram Panchayat elected thereto set up by a recognised political party will be disqualified for being a member thereof if- (a) voluntarily gives up his membership of such recognised political party, or (b) exercised the voting right contrary to the manner of voting of the majority members set up by such recognised political party in such Panchayat. 3. At this juncture, I may refer to the contextual facts of the instant case. The petitioner was elected as a member of Baraturigram Gram Panchayat as duly notified on May 30, 1993. He was elected as such, on being supported by the recognised political party known as the Communist Party of India (Marxist). Yet another member elected to the said Gram Panchayat in the very same election was O.P. no. 3, Firoj Ali, who was subsequently also elected as Pradhan of the said Gram Panchayat. Some time thereafter, Firoj Ali was also elected as a Leader of the Communist Part of India (Marxist) as provided under sub-s. (3) of S. 213A of the West Bengal Panchayat Act, 1973 (to be referred to as the Act). Firoj Ali (O.P. no. 3), in capacity of the Leader of Communist Party of India (Marxist), filed a petition before the prescribed Authority i.e. the Block Development Officer (B.D.O.), Mayureswar I, for disqualification of the petitioner as member of the aforesaid Gram Panchayat. Firoj Ali (O.P. no. 3), in capacity of the Leader of Communist Party of India (Marxist), filed a petition before the prescribed Authority i.e. the Block Development Officer (B.D.O.), Mayureswar I, for disqualification of the petitioner as member of the aforesaid Gram Panchayat. The Prescribed Authority/B.D.O., Mayureswar I, thereupon, passed an order dated 16.6.1995, whereby the petitioner was disqualified from being the member of Braturigram Gram Panchayat and this order was supposed to have been passed under sub-s. (1) of S. 213A of the Act as already referred to above. This order, to be considered as memo no. 535 dated 16.6.1995, was challenged by the petitioner before the Appellate Authority i.e. the District Panchayat Officer, Birbhum, who, upon hearing the parties, passed the impugned order dated 24.8.1995 in Appeal Case No.2 of 1995. 4. At the root of the factual score there was no denial by the petitioner that he after having been elected as a member set up by CPI(M) party left the said party, subsequently, and became a member of the Congress(I) party. The change in the party affiliation was, thus, an admitted fact and, therefore, on this score there was certainly a valid ground for disqualification of the petitioner, but as against this the petitioner has set up a defence, while contending inter alia, that whereas s. 213A of the Act came in force on 18.6.1994, he changed the Political Party from CPI(M) to Congress(I) as long back as on 4.3.1994 and, accordingly, the Law of disqualification on change of Political Party by members of Panchayat was not enforceable against him. 5. As noticed above, the order of disqualification passed by the Prescribed Authority (B.D.O.) has thus been challenged simply on factual score by setting up a story of changing the party affiliation prior to the enforcement of the law upon amendment in the Act. This aspect of the matter has been elaborately discussed in the impugned order dated 24.8.1995 by the Appellate Authority in Appeal Case No. 2 of 1995. I am sure, this Court of revisional jurisdiction under Art. 227 of the Constitution of India need not go into the evidence for the purpose of re-appraisal thereof. This aspect of the matter has been elaborately discussed in the impugned order dated 24.8.1995 by the Appellate Authority in Appeal Case No. 2 of 1995. I am sure, this Court of revisional jurisdiction under Art. 227 of the Constitution of India need not go into the evidence for the purpose of re-appraisal thereof. Not only that the Appellate Authority have disbelieved the plea of the petitioner on the point, but it has also gone to the extent of observing that as per report of the B.D.O., the plea of the petitioner, was false and based on forged papers. 6. The petitioner's plea of s. 213A of the Act being not enforceable against him was, thus, not at all acceptable factual score. 7. I, of course, find that whereas, sub-s. (1) of s. 213A of the Act does prescribe that the Prescribed Authority may disqualify a member of the Panchayat for reasons to be recorded in writing, there was no such reason recorded by the Prescribed Authority in memo no. 535 dated 16.6.1995. This memo simply speaks that under sub-s. (11) of the West Bengal (Amendment) Act, 1994, the Prescribed Authority has admitted the petition of Firoj Ali, and declared the petitioner as disqualified on 16.6.1995 under sub-s. (1) for being the member of Baraturigram Gram Panchayat. It appears that only the operative portion of the decision taken by the Prescribed Authority has been reduced in the memo. It would, however, be derived from the order of the Appellate Authority that the petitioner was heard by the Prescribed Authority on 15.6.95, that is to say, before passing the order of disqualification on 16.6.95. It was worthy of notice here that the ground of disqualification being the change of party affiliation was actually not a fact denied by the petitioner. The petitioner simply contended inter alia, that the change in party affiliation had occurred prior to the enforcement of S. 213A of the Act. Therefore, the reason for change he was disqualified was known to the petitioner, the material aspect was simply this much that his plea of defence was not accepted by the Prescribed Authority, and moreover the reason for disqualification has been reportedly dealt with in the order passed by the Appellate Authority and, in that view of the matter, I do not think that there was any prejudice caused to the petitioner in this regard. 8. 8. Next, it was urged on behalf of the petitioner that the proceeding under s. 213A of the Act against the petitioner was not initiated through a petition as required under sub-s. (7) of the said section. Though this point does not appear to have been urged before the Appellate Authority, my attention was drawn to Annexure G of the revisional petition at page 31 as per which O.P. no. 3 in capacity of the Leader of CPI(M) has moved the Prescribed Authority for disqualification of the petitioner. This petition does bear the endorsement of Secretary of Communist Party of India (Marxist). The petition was received by the Prescribed Authority on 12.5.95. In fact, the petitioner has averred in para 16 of his revisional petition that he had been served with a notice to appear before the Prescribed Authority alongwith documents for the purpose of inquiry scheduled to be held on June 15, 1995 on the complaint of O.P. no. 3, Firoj Ali. Therefore, even without delving deep into the matter, one would be left with an impression that the Prescribed Authority did make an inquiry before passing an order under sub-s. (11) of S. 213A of the Act. 9. Before I come to conclusion, I would prefer to place on record that the instant case appears to be an outcome of a rivalry between the petitioner and O.P. no. 3, Firoj Ali. Whereas, on the one side the petitioner was challenging the Authority of O.P. no. 3 as Pradhan of the Gram Panchayat as also the Leader of the Communist Party of India, the O.P. no. 3 came forward with a charge of changing party affiliation against the petitioner. Be that as it may, I find that the Appellate Authority has passed a very reasoned order after considering all the materials and, also giving opportunity of hearing to the petitioner with regard to the proceeding initiated against him under S. 213A of the Act. The order of the Appellate Authority does not call for any interference of this Court exercising power of superintendence under Art. 227 of the Constitution of India, with regard to which I do not find any special fact or any exceptional circumstance to invoke the said jurisdiction. I am also conscious of the fact that as provided under sub-ss. The order of the Appellate Authority does not call for any interference of this Court exercising power of superintendence under Art. 227 of the Constitution of India, with regard to which I do not find any special fact or any exceptional circumstance to invoke the said jurisdiction. I am also conscious of the fact that as provided under sub-ss. (12) & (13) of s. 213A of the Act, the order passed by the Appellate Authority has to be considered as final. 10. For the reasons aforesaid, I am of the considered opinion that there was no merit in the instant revisional petition and, accordingly, the same is dismissed. There shall be, however, no order as to costs. Revisional petition dismissed.