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2020 DIGILAW 26 (TRI)

Anjana Begam v. State of Tripura

2020-02-03

AKIL ABDUL HAMID KURESHI, ARINDAM LODH

body2020
JUDGMENT : Akil Abdul Hamid Kureshi, C.J. 1. These petitions arise in common background. They have been heard together and would be disposed of by this common judgment. 2. For convenience facts may be noted from WP(C) No. 1404 of 2019 which are as under: Petitioner has challenged an order dated 26.09.2019 by which the Block Development Officer (BDO, for short), Nalchar R.D. Block, Sepahijala District, Tripura, respondent No. 3, in purported exercise of powers under Section 16 of the Tripura Panchayats Act, 1993 (the Act, for short) and Rule 27 of the Tripura Panchayats (Election of Office Bearers) Rules, 1994 (hereinafter to be referred to as the said Rules) declared that the petitioner, a member of Paschim Durlavnarayan Gram Panchayat has earned disqualification under Section 16 of the said Act and a further declaration that consequently she has ceased to be a member of the said Gram Panchayat with effect from the date of the order. 3. The said petitioner was elected from Seat No. 3 of the said Gram Panchayat sponsored by Bharatiya Janata Party result of which election was declared on 11.07.2019. The Panchayat has in all 9(nine) elected members. All elected members were sponsored by same political party. It appears that on 17.08.2019 only two members of the Panchayat could take oath. Thereafter next meeting of the Panchayat was convened by the respondent No. 2, District Panchayat Officer on 26.08.2019 when remaining 7(seven) members took oath. This was followed by the procedure for electing Pradhan and Upa-Pradhan of the Panchayat. The minutes of the meeting dated 26.08.2019 records that one Smti. Bina Debnath, member proposed the name of Anjana Begam, member for the post of Pradhan which is reserved for women and no further proposal of any other candidate was received for the said post. Anjana Begam was accordingly declared elected as Pradhan of the Gram Panchayat as uncontested. Likewise for the post of Upa-Pradhan one Kala Miah, member of the Panchayat proposed the name of Sri Arjun Debnath and no further proposal was received. He was also thus declared elected uncontested. Anjana Begam was accordingly declared elected as Pradhan of the Gram Panchayat as uncontested. Likewise for the post of Upa-Pradhan one Kala Miah, member of the Panchayat proposed the name of Sri Arjun Debnath and no further proposal was received. He was also thus declared elected uncontested. In the context of the controversy at hand, it would be useful to take note of the entire proceedings of the said meeting which were drawn by the Presiding Officer of the Panchayat and which read as under: "After completion of General Election to Panchayats, 2019 the names of elected members of Gram Panchayats would be deemed to be duly constituted under Section 17(5) of the Act after Publication of Gazette Notification by the State Election Commissioner, Tripura with No. F.3(36)/SEC/PANCH/GEN-ELEC/2019/15300, Dated, 02/08/2019. 2. The first adjourned meeting of the Paschim Durlavnarayan Gram Panchayat has been convened by the District Panchayat Officer of Sepahijala, Tripura vide No. F.6(30) DPO/SPJ/GL-ELEC/2019/24017-99, dated, 22/08/2019 after adjournment of the first meeting convened by the District Panchayat Officer of Sepahijala, Tripura vide No. F.6(30)/DPO/SPJ/GL-ELEC/2019/1695-1907 dated, 09/08/2019 as the Prescribed Authority by giving notice in Form-1 which appears to have been duly served upon all the elected members of Gram Panchayat. 3. I, Smt. Rupali Bhowmik, Panchayat Extension Officer have been authorized by the District Panchayats Officer, Sepahijala District, Tripura to administer oath of 7(seven) nos. members who were absent on 17.08.2019 and to preside over this first adjourned meeting, today on 26.08.2019 for election of Pradhan/Upa-Pradhan of Paschim Durlavnarayan Gram Panchayat. 4. The 7(seven) nos. elected members present are called upon to administer Oath one after another. The members present have been administered oath and accordingly the prescribed Form duly sworn/affirmed and signed by the respective members were collected. The names of members who have been Administered Oath are as follows:- Sl.No. Name of the Elected Members 1 Sri Arjun Debnath 2 Anjana Begam 3 Esnehar Begam 4 Sri Krishna Debnath 5 Smt. Bina Debnath 6 Smt. Anima Rani Bhowmik 7 Kala Mia 5. After completion of the above process, 9(nine) nos. newly elected members are called upon to participate in the process of election of Pradhan and Upa-Pradhan of the Paschim Durlavnarayan Gram Panchayat. It is observed that for this purpose, all members attended the meeting. After completion of the above process, 9(nine) nos. newly elected members are called upon to participate in the process of election of Pradhan and Upa-Pradhan of the Paschim Durlavnarayan Gram Panchayat. It is observed that for this purpose, all members attended the meeting. The name of members who attended the meeting are as follows:- Sl.No. Name of the Elected Members Sl.No. Name of the Elected Members 1 Sri Arjun Debnath 6 Sri Krishna Debnath 2 Smt. Sabitri Rani Das 7 Smt. Bina Debnath 3 Anjana Begam 8 Smt. Anima Rani Bhowmik 4 Esnehar Begam 9 Kala Mia 5 Matin Mia Maisan 6. For undertaking the business of election, I explain about the procedure of election of Pradhan to the members, reservation status of the office of the Pradhan as determined by the State Government in the Panchayats Department with Notification No. F.3(1-79)-GL/PR/2019/52329-333, Dated 10th June, 2019. 7.(a) I received a copy/copies of direction/whip (enclosed herewith) issued by the authorized person/persons (Shri Dr. Alak Bhattacharjee) belonging to BJP Party upon its elected members of the Gram Panchayat. I read out all the directions/whips as mentioned above. After that I requested them to propose the name of Pradhan among themselves. (b) Smt. Bina Debnath, Member, belonging to Bharatiya Janata Party proposed the name of Anjana Begam, Member, belonging to Bharatiya Party for the post of Pradhan which is reserved for Women. No further proposal for candidate was raised by any member for the post of the Pradhan. The proposed candidate Anjana Begam, Member was present in the meeting and found eligible for being elected as Pradhan. Therefore being the single candidate, I declared Anjana Begam, Member, belonging to Bharatiya Janata Party elected as Pradhan of Paschim Durlavnarayan Gram Panchayat as uncontested in prescribed form No. 4. The proposed candidate Anjana Begam, Member was present in the meeting and found eligible for being elected as Pradhan. Therefore being the single candidate, I declared Anjana Begam, Member, belonging to Bharatiya Janata Party elected as Pradhan of Paschim Durlavnarayan Gram Panchayat as uncontested in prescribed form No. 4. (c) It is to be mentioned here that following members of Bharatiya Janata Party cast their votes during the process of the conduct of Election for the office of the Pradha in favour of Anjana Begam violating the whip of authorized person of Bharatiya Janata Party:- Sl.No. Name of the Elected Members 1 Sri Arjun Debnath 2 Anjana Begam 3 Esnehar Begam 4 Matin Mia Maisan 5 Sri Krishna Debnath 6 Smt. Bina Debnath 7 Smt. Anima Rani Bhowmik 8 Kala Mia (d) Kala Mia, Member, belonging to Bharatiya Janata Party proposed the name of Sri Arjun Debnath, Member, belonging to Bharatiya Janata Party for the post of Upa-Pradhan. No further proposal for candidate was raised by any member for the post of the Upa-Pradhan. The proposed candidate Sri Arjun Debnath, Member was present in the meeting and found eligible for being elected as Upa-Pradhan. Therefore being the single candidate, I declared Sri Arjun Debnath, Member, belonging to Bharatiya Janata Party elected as Upa-Pradhan of Paschim Durlavnarayan Gram Panchayat as uncontested in prescribed form no. 4. After the completion of the above process, the newly elected Pradhan and Upa-Pradhan are administered for the Oath of affirmation to the Constitution of India. With completion of the process, the meeting was declared end." 4. The petitioner thereafter received a notice dated 27.08.2019 from the BDO conveying to her that she had violated the party whip and if she would like to file any document regarding condonation/pardon of the party whip failing which she may be disqualified as a member of the Gram Panchayat. Contents of this notice read as under: "This is to inform that as intimated by the specified authority (Presiding Officer) in form-6A sri/smt.................., member, Paschim Durlavnarayan Gram Panchayat belonging to Bharatiya Janata Party has violated the whip of Bharatiya Janata Party issued by the authorized person of the said political party during the process of conduct of election for the office of Pradhan of Paschim Durlavnarayan Gram Panchayat on 26.08.2019. Now, notice is hereby given to sri/smt............... Now, notice is hereby given to sri/smt............... informing that if any document regarding Condonation/Pardon from the concerned political party is not received by the undersigned within 25.09.2019, he/she may be disqualified for being a member of Paschim Durlavnarayan Gram Panchayat under sub-section (b) of section 16 of the Tripura Panchayat Act, 1993." 5. The petitioner did not reply to the said notice upon which the respondent No. 3 passed the impugned order dated 26.09.2019 which reads as under: "In exercise of the powers conferred by Section 16 of the Tripura Panchayats Act, 1993, read with sub-rule (2) and sub-rule (3) of Rule 27 of the Tripura Panchayats (Election of Office Bearers) Rules, 1994, I, the Block Development Officer, Nalchar R.D Block, after making an enquiry, have come to the decision that Sri Arjun Debnath, a member of the Paschim Durlavnarayan Gram Panchayat has earned disqualification under Section 16 and, therefore, I hereby declare that the said member has ceased to be a member of that Gram Panchayat with effect from the date of this order." 6. Similar orders were passed against all the members of the Panchayat which have been challenged in the individual petitions. 7. Appearing for the petitioners, learned counsel Mr. N. Das submitted that the respondent No. 3 committed a serious error in passing the impugned orders. He raised following contentions: (i) Firstly, no show-cause notice was issued before passing the order of disqualification. The notice issued only called upon the petitioners to produce the document of pardon from following the whip which is not the same thing as giving full opportunity to the petitioners to establish their grounds why no order of disqualification could be passed; (ii) Counsel submitted that in the present case the whip issued by the party was unclear and no allegation of violating the whip on the basis of such a document could have been sustained; (iii) Lastly, counsel submitted that in any case none of the petitioners had violated the official whip of the party. At best, the whip issued by the party could be seen as mandating the members to vote in favour of a particular candidate. When such person was not a candidate for the post of Pradhan or Upa-Pradhan, there was no occasion for any other members to vote or not to vote for him/her. At best, the whip issued by the party could be seen as mandating the members to vote in favour of a particular candidate. When such person was not a candidate for the post of Pradhan or Upa-Pradhan, there was no occasion for any other members to vote or not to vote for him/her. Taking us through the provisions of Rule 6 of the said Rules counsel submitted that in case only one candidate was sponsored for a particular elected post of the Panchayat, there is no question of conducting the election. 8. On the other hand, learned Government Advocate Mr. Debalay Bhattacharjee opposed the petitions contending that the petitioners in clear terms had violated the party whip and thereby incurred disqualification in terms of Section 16 of the said Act. Respondent No. 3 had issued notice before taking final decision. The petitioners had not availed of the opportunity to show-cause. Their contentions raised above cannot, therefore, be examined in these petitions. 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. (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 Zilla 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 authorized 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 undisputable 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 authorized 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. 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 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 context 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. 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.