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2010 DIGILAW 766 (CAL)

Sanjoy Mal v. Sukul Murmur

2010-07-08

HARISH TANDAN, PRATAP KUMAR RAY

body2010
JUDGMENT 1. HEARD the learned Advocates appearing for the parties. 2. ASSAILING the interim order dated 1st July, 2010 passed by the learned trial Judge in W.P. No.10359(W) of 2010, this appeal has been filed. This application for stay has been moved today upon notice to all the parties. 3. IN the writ application, challenge was made assailing the order dated 5th April, 2010 passed by the Appellate authority under Section 213A(12) of the West Bengal Panchayat Act, 1973 who confirmed the decision passed by the Prescribed authority under Section 213A(7) of the said Act. The Prescribed authority heard the re-verified petition in terms of the direction of the Division Bench of the High Court at Calcutta passed in MAT. No.1184 of 2009. 4. THE short fact is required to deal with to pass interim order at this stage. A complaint was filed by the leader of a recognised political party, namely, the Communist Party of India (Marxist) praying for appropriate order of disqualification of respondent Nos. 1 to 4 alleging, inter alia, that they voluntarily had given up the membership of the political party, Communist Party of India (M), under whose symbol those respondents contested the election in Panchayat Samity and were elected as member in the Panchayat Samity. Before the Prescribed authority, the said respondents filed respective affidavits contending, inter alia, that they voluntarily left the political party alleging corruption in that party. It appears that before filing of the complaint by the leader of the said political party, the respondents aforesaid themselves filed an application to the Prescribed authority on 7th July, 2009 contending, inter alia, that they had left the political party, C.P.I.(M) and joined the political party, Indian National Congress. Considering the statutory provision, the Prescribed authority rejected the contention raised by the present respondents that the proceeding should be decided on the basis of the 2nd proviso of Clause (b)of Section 213A(1) of the said Act. In appeal, similar stand was taken and that was rejected. The Prescribed authority and the Appellate authority both were satisfied about applicability of Section 213A(1)(a)(i) to disqualify the respondents for remaining as member of the Panchayat Samity and thereby for their removal. In appeal, similar stand was taken and that was rejected. The Prescribed authority and the Appellate authority both were satisfied about applicability of Section 213A(1)(a)(i) to disqualify the respondents for remaining as member of the Panchayat Samity and thereby for their removal. As per order of the Division Bench earlier, the matter was re-heard taking note of the complaint filed by a leader of the said political party under Section 213A (7) of the said Act wherein also there is a provision under Clause (a)(i) to this effect that in the event of voluntary cessation of membership from any political party under whose symbol candidate was elected, he would be liable to be declared as disqualified to remain as member and thereby will suffer removal from the Panchayat Samity. Section 213A(1)(a) and (b)and sub-section (7) which are relevant to pass the interim order, read such: "213A, Disqualification on change of political party by Members of Panchayats.-(1) Notwithstanding anything to the contrary contained in this Act or in any other law for the time being in force, the prescribed authority for such Panchayat as may be specified by notification in this behalf, may, subject to the other provisions of this section, declare, for reasons to be recorded in writing, a member of such Panchayat to be disqualified for being a member thereof, if- (a) He is an elected member set up by a recognised political party and has- (i) voluntarily given up his membership of such recognised political party, or (ii) exercised the voting right contrary to the manner of voting of the majority members set up by such recognised political party in such Panchayat, or (b)He is an elected member not set up by any recognised political party and he has joined a recognised political party on the expiry of six months from the date of election: Provided that the prescribed authority shall not declare any member to be disqualified under this section without giving to such member a reasonable opportunity to represent his case and to be heard in person: Provided further that an elected member referred to in sub- clause (ii) of Clause (a) shall not, on the prescribed authority being satisfied in this behalf, be declared to be disqualified, if- (a)The action of such member was taken on obtaining prior permission of, or was condoned by, such recognised political party, or (b)Such member claims that he and any other members of such recognised political party in the Panchayat constitute a group representing a faction consisting of not less than one-third of the total number of members set up by such recognised political party in the Panchayat and that all the members of such group have voluntarily given up their membership of such recognised political party, or (c) The former recognised political party of the member merges with another recognised political party and he claims that he and other members of his former recognised political party, or (i) have become member of such other recognised political party or of a new recognised political party formed out of merger, as the case may be, or (ii) have not accepted the merger, and from the time of such merger, he and such other members constituting not less than one- third of the total number of members set up by the former recognised political party in the Panchayat, have opted to remain members of the former recognised political party or have formed a new recognised political party. (7) The Leader of any recognised political party referred to in sub-section (3) may at any time file a petition endorsed by the General Secretary, or, if there is no General Secretary, of the district unit of such recognised political party to the prescribed authority referred to sub-section (1) stating that- (a)Ohe or more members of such recognised political party have- (i) voluntarily given up his or their membership of such recognised political party, or (ii) have exercised the voting right contrary to the manner of voting of the majority members set up by such recognised political party in the Panchayat, or (b)The member referred to in sub-section (4) has voluntarily given up his membership of the recognised political party that set him up, or (c) The member referred to in sub-section (5) has joined a recognised political party on the expiry of six months from the date of election, and that such member or members should be declared to be disqualified under sub-section (1) and should be removed from the Panchayat." 5. ON a bare reading of the statutory provision and having regard to the applications by the present respondents dated 7th July, 2009, as already referred to, and the affidavits as filed by them before the prescribed authority taking the only contention that they had left the political party voluntarily, we are of the view that the Prescribed authority and the Appellate authority committed no illegality in deciding the issue under Section 213A(7)(a)(i) of the said Panchayat Act and thereby to reach the conclusion that the respondents were disqualified to remain as member of the Panchayat Samity. The Appellate authority passed the order in the same tune which became the subject-matter of challenge and at the interlocutory stage the learned trial Judge passed the order of stay of the impugned order of the Prescribed authority and the Appellate authority which means that a disqualified member during pendency of the litigation in the Writ Court would get his life for being qualified. The main prayer in writ, as sought for, to declare that the order of the Prescribed authority and the Appellate authority are wrong and that they should not be disqualified. Prima facie it appears, on reading of the statutory provision, that the disqualification of. The main prayer in writ, as sought for, to declare that the order of the Prescribed authority and the Appellate authority are wrong and that they should not be disqualified. Prima facie it appears, on reading of the statutory provision, that the disqualification of. a member of Panchayat Samity and thereby consequential effect of removal was prescribed by the Legislatures on incorporating two contingencies; (i) when there is a voluntary giving up of membership and (ii) when any member would exercise voting right contrary to the manner of voting of the majority members set up by such recognised political party under whose symbol the person contested the election and was elected. The two contingencies aforesaid as stipulated in Section 213A sub-section (1)(a)(i) and (ii) have different conceptual field and applicability with reference to the context as made thereto, namely, so far as clause (i) is concerned about voluntary giving up of the membership it tantamounts that somebody is willing to leave a political party under whose banner and sign he contested and thereby he became disqualified to remain as member of the Panchayat Samity and the other clause (ii) deals with the issue when without resigning from any political party under whose symbol the person contested the election, he acts contrary to the mandate of that political party. So far as clause (ii) is concerned, there is an exception that if one-third of the elected members cast vote against mandate of any political party under whose symbol they were elected, that could not be the subject-matter of disqualification. 6. PRIMA facie, we are of the view that the complaint as filed by the leader of the political party seeking removal of respondent Nos. 1 to 4 was the complaint on the ground of voluntary giving up of membership and the Prescribed authority and the Appellate authority rightly decided that issue. Considering that, prima facie, we are of the view that the learned trial Judge ought not to have passed any order of stay on the basis of the factual matrix of case as pleaded in the writ application. Hence, considering our findings and observation above, there will be stay of the impugned order passed by the learned trial Judge till the disposal of the stay application. 7. Hence, considering our findings and observation above, there will be stay of the impugned order passed by the learned trial Judge till the disposal of the stay application. 7. LET Affidavit -in -Opposition to the stay application be filed by three weeks from date and the reply thereto, if any, be filed by one week thereafter. 8. THE matter will appear four weeks hence at the top of the list for further hearing. It is made clear that during pendency of the appeal, the writ Court would be at liberty to hear the writ application.