Tripura High Court
Tuyakul Ali And Others vs The State Of Tripura And Others on 16 March, 2021
Page 1 of 6
HIGH COURT OF TRIPURA
AGARTALA
W.P. (C) No.84/2020
Tuyakul Ali and others
.....Petitioner(s)
Versus
The State of Tripura and others
.....Respondent(s)
Connected with
W.P. (C) No.85/2020
Siraj Miah and others
.....Petitioner(s)
Versus
The State of Tripura and others
.....Respondent(s)
For Petitioner(s) : Mr. Samarjit Bhattacharjee, Advocate.
Mr. Kawsik Nath, Advocate.
Ms. A. Debbarma, Advocate.
For Respondent(s) : Mr. Debalay Bhattacharjee, GA.
Mr. Somik Deb, Sr. Advocate.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
ORDER
16/03/2021.
(Akil Kureshi, CJ).
These petitions arise out of a common background. They would be
disposed of by this common order.
All the petitioners are elected members of Srinathpur Gram
Panchayat for which results of the election were declared on 31.07.2019.
The newly constituted body also elected its Pradhan and Upa Pradhan. On
03.12.2019, some of the members of the Panchayat issued no confidence
motions against these Pradhan and Upa Pradhan, which was passed and
instead, first petitioner of W.P. (C) No.84 of 2020 and W.P. (C) No.85 of
2020 were elected as Pradhan and Upa Pradhan respectively. According to
the authorities, during such meeting, all the petitioners had cross voted. In
other words, the petitioners had defied the official party whip and therefore
incurred disqualification in terms of Section 16 of the Tripura Panchayats
Act and the Rules made thereunder. The Block Development Officer
therefore passed separate orders, all dated 13.01.2020, which are
challenged in these petitions. All these orders are identically worded. We
may therefore take note of contents of one such order, which is at
Annexure-4(A) to the petition and reads as under:
"DECLARATION
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 Gournagar
RD Block (name of the Block), after making an enquiry, have
come to the decision that Sri Tuyakul Ali, a member of the
Srinathpur 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."
On 03.02.2020 while issuing notice, impugned orders were stayed.
When the petitions were taken up for hearing learned senior counsel, Mr.
Somik Deb first argued his Interim Application No.01 of 2020 for
impleadment. This application has been filed by Sri Abdul Salem, who
was the Upa Pradhan of the Panchayat against whom no confidence
motion was passed. We do not see how the said member can be stated to
be a necessary or even a proper party. As a person who faced a no
confidence motion and against whom such no confidence motion was
passed, would have no stakes in the outcome of the present litigation,
which is confined to the question of disqualification of the members of the
Panchayat. Whatever the outcome of this litigation, the same would not
change the course of the no confidence motion which is already adopted
and acted upon. However, we have permitted Sri Deb to make submissions
without impleadment as to why the impugned orders should not be
quashed.
Appearing for the petitioners, learned counsel Mr. Samarjit
Bhattacharjee submitted that these orders have passed without issuing
notice or granting any other form of opportunity of hearing to the
petitioners. Straightway, the Block Development Officer made a
declaration of disqualification of the petitioners. On this short ground, all
the orders are liable to be quashed.
Learned Government Advocate, Mr. Debalay Bhattacharjee opposed
the petitions and supported the impugned declarations. Mr. Deb
strenuously urged that the petitioners had violated the official whip of the
party to which they belonged. It is not their cases that the whip was not
received or that they had not voted contrary to the directives of the party.
As per the Rules, condonation of the breach of the whip must be within 30
days of the event. In the present case, the condonation was not granted
within the said period. The Block Development Officer was therefore
justified in passing the impugned orders. Granting hearing to the
petitioners would be an empty formality.
Admitted fact is that before passing the impugned orders of
disqualifying the petitioners, the Block Development Officer had not
issued any notice or granted opportunity of hearing why the order for
disqualification should not be passed. In a judgment, in case of Smti.
Anjana Begam vs. The State of Tripura & others, W.P. (C) No.1404 of
2019 and connected petitions, dated 03.02.2020, Division Bench of this
Court, in the context of disqualification of a member of a Panchayat in
terms of Section 16 of the Tripura Panchayats Act, had made following
observations:
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. 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."
In the result, impugned orders, all dated 13.01.2020 are quashed and
set aside. Since this has been done only on the ground of no notice of
opportunity of hearing being granted to the petitioners, this order would
not preclude to the competent authority from passing fresh order in
accordance with law after following the due procedure.
Both the petitions are disposed of accordingly.
(S.G. CHATTOPADHYAY), J (AKIL KURESHI), CJ
sima
