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2004 DIGILAW 120 (GAU)

Ajit Pal v. State of Tripura

2004-02-19

TINLIANTHANG VAIPHEI

body2004
JUDGMENT T. Vaiphei, J. 1. By this writ petition, the petitioner is challenging the decision dated 12.8.2003 (Annexure-3) and dated 19.8.2003 (Annexure-6) of the Respondent 5 and the letter dated 16.9.2003 (Annexure-5) issued by the respondent 2 and also praying for issue of a writ in the nature of mandamus directing the respondents to forthwith convene a meeting of Uttar Chebri Gram Panchayat for electing the Pradhan and Upa pradhan by simple majority of the members present in the meeting. 2. To appreciate the controversies involved in the writ petition, it will be necessary to set out the brief facts of the case as emerged from the pleadings for the parties. 3. The petitioner No. 1 and 2 are the elected members of Uttar Chebri Gram Panchayat which was constituted under the provisions of the Tripura Gram Panchayat Act, 1993 (hereinafter called 'the Act'). The petitioner No. 1 is presently holding the post of Upa pradhan as a stop-gap arrangement in a absence of an Upa pradhan elected under the provision of Sub-section (8) of Section 20 of the Act. It may be noticed that in the later part of 1999, election to the Gram Panchayat of the State of Tripura was held. Uttar Chebri Gram Panchayat consisted of 9 elected members. In the said election, seven members belonging to the Indian National Congress including the petitioners were elected while two members sponsored by the C.P.I. (M) were also elected to the said Gram Panchayat. The term of the Gram Panchayat is five years. Out of seven elected members of the Indian National Congress, two members namely, Nibaran Pal and Lalit Das died on 18.10.2000 and 31.10.2001 respectively. The said Nibaran Pal, till his death, was the elected Upa pradhan of the Gram Panchayat in question. After the death of those two members, the strength of the members of the Gram panchayat was reduced to seven, out of which five belonged to Congress and two belonged to C.P.I. (M). It may also be stated that after first meeting of the Gram Panchayat following the election in 1999, the petitioner No. 2 and the deceased Nibaran Pal were elected as Pradhan and Upa pradhan respectively. It may also be stated that after first meeting of the Gram Panchayat following the election in 1999, the petitioner No. 2 and the deceased Nibaran Pal were elected as Pradhan and Upa pradhan respectively. After the death for the said Nibaran Pal and before election to the vacant post of Upa pradhan was held, a no confidence motion was carried out against the respondents No. 2 in meeting of Gram Panchayat dated 19.5.2003. In the said meeting, two members of the Panchayat, namely Smti Sukla Das and Sri Sanjoy, Shil belonging to the Indian National Congress voted against the whip issued by the party and, as such, they were disqualified and ceased to be a member of the Panchayat by operation for the Sub-section (3) of Section 60 of the Tripura Panchayat Act, 1997 with effect from 18.7.2003 vide Memorandum dated 18.7.2003, issued by the respondent No. 4. 4. In compliance with the order dated 23.7.2003 issued by the respondent No. 3, a meeting of the members of the Uttar Chebri Gram Panchayat was conveyed on 12.8.03 for filling up the casual vacancies of Pradhan and Upa pradhan. It may be noted that due to the death of two members and the disqualification of another two members, as stated above, the total strength of the Panchayat in question has been reduced to five, out of which three members i.e. the petitioner are from the Indian National Congress while the remaining the two members i.e. respondent 6 and 7 belong to the C.P.I. (M). It is the case of the petitioner that although they were present in the meeting dated 12.8.03, the respondent No. 5 illegally adjourned the meeting on the pretext that there was no quorum under the Rule (6)(2) of the Tripura Panchayats (Election of Office bearers) Rules, 1994 (hereinafter called 'the Rules'). Thereafter, another notice for adjourned meeting of the said Gram Panchayat for the said elections was issued by the respondent-No. 3 on 21.8.2003 fixing the date of meeting on 18.9.2003 at 11.00 a.m. in the Gram Panchayat Office. Thereafter, another notice for adjourned meeting of the said Gram Panchayat for the said elections was issued by the respondent-No. 3 on 21.8.2003 fixing the date of meeting on 18.9.2003 at 11.00 a.m. in the Gram Panchayat Office. The petitioner alleged that even before the meeting dated 18.9.03 was convened, the respondent 2 by the impugned letter dated 16.9.03 informed the respondent 3 in reply to the clarification sought by the latter that the presence of three elected members in the meeting for the said election could not be treated as majority nor would it form the quorum, and, as such, the adjournment of the meeting by the respondent 5 on 12.8.03 appeared to be in order. It appears that on 18.9.03, the adjourned meeting was held with the respondent 5 in the chair but the meeting was again adjourned by him on the ground that three members out of five members could not form the quorum in terms of the impugned letter at Annexure-5 and also purportedly under the provisions of the Rules. 5. It would appear that the State-Respondents in the meantime appointed the respondent 6 and the petitioner 1 as Pradhan and Upa pradhan respectively by way of stop-gap arrangement till the time the Pradhan and Upa pradhan can be elected in the terms of the provisions of Sub-section (8) of Section 20 of the Act. According to the petitioners, in term of the provisions of Sub-section (4) of Section 27 of the Act, the quorum for electing Pradhan and Upa pradhan is 1/3rd of the total number of members plus 1 including ex-officio member entitled to attend a meeting of the Gram Panchayat provided that no quorum shall be necessary for the adjourned meeting. The petitioners also contend that under the provisions of Sub-section (7) of Section 23 of the Act, majority of the existing members of the Gram Panchayat shall form a quorum for a meeting for removal of Pradhan and Upa pradhan. According to the petitioners, Rule 6(2) of the Rules can not in any manner have application in so far as the quorum for the meetings held on 12.8.03 and the adjourned meeting dated 18.9.03 are concerned. According to the petitioners, Rule 6(2) of the Rules can not in any manner have application in so far as the quorum for the meetings held on 12.8.03 and the adjourned meeting dated 18.9.03 are concerned. The petitioners submit that the impugned decisions of the respondent 5 in the meeting held on 12.8.03 and 18.9.03 and the impugned letter at Annexure-5 issued by the respondent 2 are illegal and liable to be quashed. It is thus prayed that the respondents be commanded to convene the adjourned meeting of the said Gram Panchayat without further delay for holding the said election. 6. The respondents resisted the writ petition and filed their counter-affidavit. The stand taken by the State-respondents is that in view of the provisions of Rule 10 read with Rule 6(2) of the Rules, in the Gram Panchayat in question, which has a total strength of nine members, at least five members should he present in the meeting to form the quorum for election of Pradhan and Upa pradhan of the Gram Panchayat, and, as such, the presence of three members i.e. the petitioners in that meeting alone will not suffice when the law stipulates the presence of majority members of the Gram Panchayat. According to the State-responds the procedure for election of Pradhan and Upa pradhan of the Gram Panchayat is provided in Section 24 of the Act read with Rule 10 and 6 of the Rules and not Section 27 as claimed by the petitioners. It is submitted by the State respondents that there is no illegality in the impugned decisions or action of the state-respondents warranting interference of this Court. 7. I have heard Mr. A.K. Bhowmik, learned Senior counsel assisted by Mr. S. Ghosh, learned counsel appearing for the petitioner. I have also heard Mr. U.B. Saha, learned Govt. Advocate assisted by Mr. A. Ghosh, learned Counsel for the State-respondents. 8. Section 24 of the Act provides that in the event of removal of Pradhan or Upa pradhan under Section 23 or when a vacancy occurs in the office of the Pradhan or Upa pradhan by resignation, death or otherwise, the members of the Gram Panchayat shall elect from amongst them another Pradhan, or as the case may be, an Upa pradhan in the prescribed manner. Rule 10 of the Rules prescribes the manner for filling up the said vacancies, which is reproduced hereunder : "10. Rule 10 of the Rules prescribes the manner for filling up the said vacancies, which is reproduced hereunder : "10. As soon as may be, but not later than sixty days from the date of any Casual Vacancy in the office of the Pradhan or Upa pradhan for reasons specified in the Section 24 and Section 25, the District Panchayat Officer shall convene a meeting of all the members of such Gram Panchayat for the election of its Pradhan or, as the case may be, the Upa pradhan in the same manner as provided in the rule 6." Rule 6(2) (3) and Rule 7 of the Rules, read as under : "6(2) Simple majority of the elected members of a Gram Panchayat shall form the quorum for the first meeting. The first meeting shall be held after the members present have taken oath. If there is no quorum for the first meeting the Presiding Officer shall adjourn the meeting and submit a report to the District Panchayat Officer. The adjourned first meeting shall convened within 10 (ten) days by the concerned District Panchayat Officer in the same manner as in the case of first meeting. (3) The Presiding Officer shall, after taking of oath is over and immediately after the commencement of the meeting call upon the members present to propose the name of the candidate for election of the Pradhan of the Gram Panchayat. One member only shall be required to propose name of a candidate. The Presiding Officer shall record the name of each candidate proposed, name of his party, if any, together with the name of the proposer and, name of his party. He shall reject a proposal. (i) If the seat is reserved but the proposal does not conform to reservation requirement; or (ii) If the proposal has been made after the list of candidates has been finalised by him in Form 2. If the candidate, whose name is proposed, is absent, the proposer shall submit the consent paper of the candidate to the Presiding Officer in Form-3." "7. After the election of Pradhan, the election of the Upa pradhan shall be held in the same manner as provided in Sub-rule (4) of Rule 6 provided that for the office of the Pradhan there shall be no reservation." 9. After the election of Pradhan, the election of the Upa pradhan shall be held in the same manner as provided in Sub-rule (4) of Rule 6 provided that for the office of the Pradhan there shall be no reservation." 9. At the very out set, it may be noticed that the procedure for filling up the casual vacancies of Pradhan and Upa pradhan in the Gram Panchayat are unmistaken by provided in Section 24 of the Act and Rule 10 and 6 of the Rules reproduced above. Therefore, I do not agree with the submission of the learned Counsel for the petitioners that Section 27 of the Act governs the procedure for filling up the casual vacancies of Pradhan and Upa pradhan in the Gram panchayat. The State-respondents are also of the view that it is Section 24 and the aforesaid Rules, which are applicable for the said election. However, it is the case of State-respondents that a simple majority of the elected members of the Gram Panchayat to constitute a quorum for filling up the casual vacancies of Pradhan and Upa pradhan of the Gram Panchayat, as in the instant case, does not mean simple majority of the members present in the meeting but simple majority of the entire membership of the Gram Panchayat concerned. What the State-respondents virtually mean by this interpretation is that for the purpose of constituting a quorum, the entire strength of the Gram Panchayat including the two deceased members and the two disqualified members ought to be included, and as such, simple majority in this particular Gram Panchayat should not be leas than 5 members. The State-respondents accordingly argue that since the meeting dated 12.8.03 and 19.8.03 were attended by only three members, i.e., the three petitioners, the impugned decisions of the respondent 2 and the impugned letter dated 16.9.03 of the respondent 2 do not suffer from any infirmity and the same ought to be upheld. 10. It is not in dispute that following the death of two members and also following the disqualification of two members, the total strength of the Gram Panchayat in question has now been reduced to five out of nine. 10. It is not in dispute that following the death of two members and also following the disqualification of two members, the total strength of the Gram Panchayat in question has now been reduced to five out of nine. It is also not in dispute that the District Panchayat Officer is mandated by law to convene a meeting of all the members of the Gram panchayat for election of Pradhan and Upa pradhan within sixty days from the date of any vacancy in the office of Pradhan and Upa Pradhan due to the reasons specified in Section 24 and Section 25 of the Act may be stated that the casual vacancies have been in existence for months and months altogether and that the two offices are now run by stop gap arrangement made by the Government. The object of constituting panchayats in the State is to bring about grass root democracy in the rural areas by ensuring greater people's participation in managing their own affairs. The scheme of the Act indicates that the offices of the members and office bearer so the Gram Panchayat are always selected by majority of votes and that except for reservation for minorities for some specified purpose clearly provided in the Act itself, the concept of Government by majority looms large in the scheme of the Act. Therefore, it could not have been the intention of the legislature to allow stop gap arrangement by way of selection by pick and choose to continue perpetually. Rule 10 itself gives sixty days as the maximum limit for holding election to fill up the casual vacancies of Pradhan and Upa pradhan. Therefore, it is imperative that the office of Pradhan and Upa pradhan should be filled up without any loss of time. 11. As pointed out above, a statutory duty is imposed upon the District Panchayat Officer to convene a meeting for filling up the casual vacancies of the office of Pradhan and Upa pradhan not later than sixty days from the date of occurrence of such vacancies in the same manner as provided in the Rule six and Rule 7 of the Rules. If the contentions of the state that respondents that a simple majority to form the quorum for filling up the casual vacancies of the offices of the Pradhan and Upa pradhan should be from the total strength of the Gram Panchayat and not from the existing strength is accepted, it will amount to shutting the reality and of continuing the membership of the death and disqualified members by legal fiction which is not provided by law and will render the provisions of the Act unworkable. Therefore, the word "existing" should necessarily be implied before the words "elected members of a Gram Panchayat" so as to read it simple majority of the existing elected members of a Gram Panchayat for the purpose of forming the quorum for such election. It will be really absurd to take into account the persons who are no longer in the Gram Panchayat due to death, disqualification etc. specified in Section 24 of the Act. In that view of the matter, the decision of the respondent 4 (Annexure-3) and (Annexure-5) holding that the three members attending the meeting from election of Pradhan and Upa pradhan did not constitute the quorum and the letter dated 16.9.03 issued by the respondent 2 at Annexure-5 upholding the said decision of the respondent 5, are contrary to the provisions of Tripura Panchayat Act, 1993 and the Rules made there under and the same can not be sustained in law. 12. For the foregoing reasons, the impugned decisions dated 12.8.03 and dated 18.9.03 of the respondent No. 5 and the impugned letter dated 16.9.03 of the respondent No. 2 are hereby quashed. The State-respondents are here by directed to convene a meeting of the Uttar Chebri Gram Panchayat for filling up the casual vacancies of the office of he Pradhan and Upa pradhan in terms of Section 24 of the Act and Rule 10 and 6 of the Rules made there under keeping in mind the law laid down here in above within a period of one month from the date of receipt of this judgment. No costs.