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2014 DIGILAW 86 (CAL)

Namita Mistry v. Andaman & Nicobar Administration

2014-02-06

MRINAL KANTI CHAUDHURI

body2014
Judgment 1. This writ petition was filed by the petitioner praying for a direction upon the respondent authorities not to give effect or further effect to the impugned Order No. 980 dated 29th November, 2013 wherein the petitioner was declared as disqualified to be a member of the Panchayat Samiti, Little Andaman with effect from the issuance of the said order. The petitioner’s case is that she contested the Panchayat Election from Vivekananda Pur Gram Panchayat Constituency and was elected as Panchayat Samiti member on 21st September, 2010 and thereafter on 15th October, 2010, the petitioner was reelected as Pramukh, Panchayat Samiti Little Andaman from amongst the Panchayat Samiti members. That a complaint was lodged 30th April, 2012 by Smt. Nalayani, Panchayat Samiti member, Hut Bay before Andaman & Nicobar Administration making some allegation against the petitioner for misuse of her official power and position. Specific allegation was that the petitioner allotted five work order to one M/s. Trishul Construction Cooperative Society in which her brother is holding the office the President. Details of work orders have been mentioned in the writ petition. 2. According to the petitioner, she and her brother Pritosh Mistry were residing in separate mess at separate locality. Her brother is residing separately at V.K. Pur village, Hut Bay and the petitioner after marriage is residing at Rabindra Nagar Little Andaman with her husband. Both of them were maintaining their respective family in separate mess. Further case of the petitioner is that her brother tendered his resignation on 8th August, 2011. Petitioner’s caser runs further to the effect that respondent No.2 being the Chief Secretary passed an erroneous decision vide Order No. 980 dated 29th November, 2013 declaring the petitioner as disqualified to be a member of the Panchayat Samiti, Little Andaman on the ground of allocation of five work order to M/s Trishul Construction Co-operative Society in which her brother is President of the said society. The petitioner did never misuse her power and position as Pramuk in the matter of allocation of work orders. The respondents No.2 failed to establish that petitioner had any direct or indirect monitory interest in the allocation of five work orders to M/s. Trishul Construction Co-operative Society. 3. The petitioner did never misuse her power and position as Pramuk in the matter of allocation of work orders. The respondents No.2 failed to establish that petitioner had any direct or indirect monitory interest in the allocation of five work orders to M/s. Trishul Construction Co-operative Society. 3. Being aggrieved by and dissatisfied with the impugned order No 980 dated 29th November, 2013, the petitioner has filed this writ petition for a direction to cancel or recall the Order No.980 dated 29th November, 2013 passed by the respondent No.2 being the Chief Secretary whereby the petitioner was disqualified and ceased to be a member of the Panchayat Samiti, Little Andaman. 4. I have heard the submission of the learned counsel for the petitioner as well as learned counsel for the respondents and perused materials on records including the impugned Order No. 980 dated 29th November, 2013. 5. It is submitted by learned counsel for the petitioner that the respondent No.2 being the Chief Secretary did not adjudicate the provision contained in section 110 (c) of the Andaman & Nicobar Islands (Panchayats) Regulation, 1994. Further submission of the learned counsel for the petitioner is that the impugned order of the Chief Secretary does not reveal that the petitioner had any direct or indirect interest in the allocation of five work order to M/s. Trishul Construction Co-operative Society. Further submission of learned counsel of the petitioner is that the petitioner was not given any opportunity of hearing at the time of passing the impugned order wherein she had been rendered disqualified and ceased to be a member of Panchayat Samiti. Finally it is submitted that the opinion of the Election Commission was not served upon her. 6. The submission of learned counsel for the petitioner that no adjudication was made by the respondent No.2 on the point of direct or indirect monetary interest of the petitioner has no merit in view of the fact that the Chief Secretary has already observed that the provision of section 7(e) Andaman and Nicobar Islands (Grant-in –aid to Panchayat Raj Institutions) Rules, 2010 was not complied with. 7. Learned counsel for the respondent has submitted that the petitioner has violated the terms and conditions of the Andaman & Nicobar Administration Secretariat notification in the matter of Andaman and Nicobar Islands (Grant-in–aid to Panchayat Raj Institutions) Rules, 2010. 7. Learned counsel for the respondent has submitted that the petitioner has violated the terms and conditions of the Andaman & Nicobar Administration Secretariat notification in the matter of Andaman and Nicobar Islands (Grant-in–aid to Panchayat Raj Institutions) Rules, 2010. Therefore, the Chief Secretary in his decision vide Order No. 980 dated 29th November, 2013 observed that the petition has been rendered disqualified for violation of the aforesaid regulation and thereby her case attracts the provisions of 110(c) of the Andaman & Nicobar Islands (Panchayats) Regulation, 1994 read with section 111 of the said Regulation. 8. I have carefully scrutinized the provisions contained in 110 (c) as well as 111 of the Andaman & Nicobar Islands (Panchayats) Regulation, 1994. Regulation 110 (c) provides that no persons shall be a member of a Panchayat Samiti or continue as such if she has directly or indirectly any share or monetary interest in any work done by or to the Panchayat Samiti or in any contract or employment with or under or by or on behalf of the Panchayat Samiti. Regulation 111 provides if any question arises whether a person has become subject to any disqualification referred to in section 4, section 7 or section 110 it shall be referred to the Chief Secretary, for decision and his decision thereon shall be final: Provided that before giving any decision on any such question the Chief Secretary shall obtain the opinion of the Election Commission and shall act according to such opinion. 9. Provision of Andaman and Nicobar Islands (Grand-in-aid to Panchayati Raj Institutions) Rules, 2010 provides in regulation 7(e), the society shall furnish the places in which they are willing to work and shall furnish an undertaking that they will not take up any work in case a member of the Society is related to the PRI member of the constituency in which they are taking up the work. Relationship shall be extended to cover father/ mother, uncle/aunt, wife/ husband, brother/sister, father-in-law/ mother-in-law, son-in-law/daughter-in-law, brother-in-law/sister-in-law, children and grand children. 10. On careful perusal of the provisions mentioned above it is crystal clear that the society shall furnish the places in which they are willing to work and shall furnish an undertaking that they will not take up any work in case a member of a society is related to the PRI member of the constituency in which they have taken up the work. Said relationship shall include brother and sister also including other relationship. In the instant case there is no dispute, rather it is an admitted fact that the petitioner made allocation of five number of work orders to M/s. Trishul Construction Cooperative Society in which her brother is the President. Knowing fully well about the said provision the petitioner made allocation of five work orders to M/s. Trishul Construction Co-operative Society which did not furnish any undertaking as per section 7(e) of Rule 2010. Non compliance of this provision gives birth to the attraction of regulation 110(c) of Andaman & Nicobar Islands (Panchayats) Regulation, 1994. Since it is not possible to have an objective or positive proof of direct or indirect monetary interest of the petitioner whose brother is related to the said society the provision of section 7(e) of Andaman and Nicobar Islands (Grand-in-aid to Panchayati Raj Institutions) Rules, 2010 has been incorporated. Unlike the principle of criminal question i.e. proof beyond reasonable doubt, the principle of probability of civil suit is sharply applicable in the present facts and circumstances. No explanation is advanced by the petitioner as to why she made allocation of five work orders to M/s. Trishul Construction Co operative Society in which her brother is the President, on the face of existence of Rules of 2010. Order of the Chief Secretary bearing No. 980 dated 29th November, 2013 gives a detailed analysis as to how the petitioner has been rendered disqualified for violation of the regulation of item No. 7(e) of Andaman and Nicobar Islands (Grand-in-aid to Panchayati Raj Institutions) Rules, 2010. The violation of the aforesaid rules undoubtedly implies that the petitioner has direct or indirect mandatory interest in the allocation of five work orders to M/s. Trishul Construction Cooperative Society in which her brother was the President. Further in compliance with the regulation No.111 of Andaman & Nicobar Islands (Panchayats) Regulation, 1994 the Chief Secretary obtained opinion of the Election Commission. Para 10 of the said order of Chief Secretary reveals that in interest of natural justice the commission gave opportunity to both the parties for personal hearing and issued notice to both the parties namely the complainant and the respondent. Para 10 of the said order of Chief Secretary reveals that in interest of natural justice the commission gave opportunity to both the parties for personal hearing and issued notice to both the parties namely the complainant and the respondent. Para 12 of the said order reveals how the petitioner’s brother tendered resignation on several occasions but it was found that he was operating the function of the M/s. Trishul Construction Co-operative Society including the transaction of the bank accounts. Therefore it was held by the Chief Secretary that the petitioner’s brother was operating the function of M/s. Trishul Construction Co-operative Society. The Chief Secretary in its order has made detailed analysis of the enquiry report of the Panchayat Samiti, Little Andaman and the report of the office of the Registrar of Cooperative Societies and referred the matter to the Election Commission as per provision under regulation 111 of the Andaman & Nicobar Islands (Panchayats) Regulation, 1994 to seek opinion of the Election Commission in the matter. The Election Commission accorded its opinion and after obtaining of the Election Commission the Chief Secretary gave its decision declaring that the petitioner shall cease to be a member of Panchayat Samiti, Little Andaman with effect from the date of issue of the said order. 11. There is no provision in law that the opinion of Election Commission shall be served upon the petitioner. The section 111 of the Regulation, 1994 does not envisage the service of opinion of Election Commission upon the delinquent. 12. On a close and careful scrutiny on the materials on record including the order of the Chief Secretary and the provision elucidated herein above this court does not find any ingredient of infirmity or perversity or arbitrariness in the order passed by the Chief Secretary. 13. The learned counsel for the petitioner cited a decision reported in 1966 (3) SCR 339 (Gulam Yasim Khan V. Sahebrao Yeshwantrao Walaskar). But the facts and circumstances of the case are distinguishable from the present one and the said decision is not applicable in the facts and circumstances of the present case. In the said case the question arose with regards to the disqualification of election resulting from the fact that the person concerned holds any office of profit under Municipal committee. If a person offering for election himself holds any office of profit under the committee, it constitutes a disqualification. In the said case the question arose with regards to the disqualification of election resulting from the fact that the person concerned holds any office of profit under Municipal committee. If a person offering for election himself holds any office of profit under the committee, it constitutes a disqualification. In the said case, appellant’s son was in employment under Municipal Committee. But the employment of his son cannot render the appellant to have any kind of interest. In other words, the appellant is not directly or indirectly interested in the employment of his son. The said circumstances do not appear in the present case. The provisions of law elucidated in the present case are quite different from that of the decision of law cited by learned counsel for the petitioner. 14. Therefore, the writ petition hasno merit and is accordingly dismissed. 15. This judgment and order shall cover the writ petition bearing No.410 of 2013 as the subject matter and the parties and the reliefs sought for are identical.