Tripura High Court
Shri Debasish Mazumder vs The State Of Tripura Represented ... on 22 March, 2021
HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No. 319 of 2020
1. Shri Debasish Mazumder, S/O - Sri Milan Chandra Mazumder, resident
of Shantir Bazar, P.O. and P.S.- Shantir Bazar, District - South Tripura.
2. Indrajit Das, S/O-Late Braja Lal Das, Resident of R.K. Ganj, P.O. and
P.S.-Shantir Bazar, District-South Tripura.
3. Smt. Anita Reang, Sri Ratan Reang, resident of D C Nagar, P.O. and P.S.-
Shantir Bazar, District -South Tripura.
4. Rajesh Reang, S/O - Sri Surya Kumar Reang, resident of East Bokafa
(Betaba Para), P.O.-Bokafa, P.O. and P.S.-Shantir Bazar, District-South
Tripura.
5. Smti. Sujata Das (Natta), wife of Sri Mithun Natta, Resident of Betaga,
P.O. and P.S. -Betaga, District - South Tripura.
..............Petitioner(s).
Versus
1. The State of Tripura represented by the Secretary to the Panchayat
Department, Government of Tripura, Secretariat Building, New Capital
Complex, Agartala, West Tripura.
2. District Magistrate and Collector, South Tripura District, Belonia.
3. District Panchayat Officer, South Tripura District, Belonia.
4. Block Development officer, Bokafa R D Block, Bokafa, South Tripura.
5. Smti. Anita Mog (Daughter of Sri Sudha Mog), Panchayat Officer, Bokafa
RD Block, Notice to be served through the Block Development Officer,
Bokafa RD Block, (Respondent No. 4), Bokafa, South Tripura.
6. Sri Anish Debnath, (son of late Braja Hari Debnath), Assistant Director of
Panchayats, Office of the South Tripura Zilla Parishad, Belonia, South
Tripura.
7. Sri Avijit Mitra, son of Sri Jagadish Mitra, resident of Lowgang, P.O.
and P.S. - Shantir Bazar, District - South Tripura.
8. Bharatiya Janata Party , (A National Party, H O - New Delhi -110002).To
be represented by its (State) President, Tripura State Committee, Krishnagar,
Agartala, West Tripura.
9. Smti. Satyabati Reang, wife of Sri Harendra Reang, resident of Gardhang,
P.O. - Kanchan Nagar, P.S. Shantir Bazar, District - South Tripura.
10. Smti. Bulti Paul Chowdhury, wife of Sri Biplab Paul Chowdhury,
resident of Shanti Coloney, P.O. and P.S.-Shantir Bazar, District-South
Tripura.
11. Sri Sridam Das,son of late Monoranjan Das, resident of Kanchan Nagar,
WP(C)319/2020 Page 1 of 26
P.O. and P.S. - Shantir Bazar, District - South Tripura.
............Respondent(s).
For the Petitioner(s) : Mr. N.Das, Adv.
For the Respondent(s) : Mr. D. Bhattacharjee, Govt. Advocate.
Date of hearing : 08.02.2021
Date of delivery of
Judgment and Order : 22.03.2021
Whether fit for reporting : Yes.
BEFORE
HON'BLE THE CHIEF JUSTICE MR.AKIL KURESHI
HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY
JUDGMENT
[S.G.Chattopadhyay, J]
[1] Petitioners, who are the elected members of Bokafa
Panchayat samiti in South Tripura District, have challenged the order
dated 27.03.2020 passed by the District Magistrate and Collector of
South Tripura District[Respondent No.2] in purported exercise of
powers under sub-section(3) of Section 76 of the Tripura Panchayats
Act,1993 declaring that the petitioners earned disqualification under
clause(b) of sub-section(1) of Section 76 of the Act for voting in the
Panchayat Samiti meeting held on 11.02.2020 contrary to the direction
of the party.
[2] The said petitioners were elected as members of Bokafa
Panchayat Samiti in South Tripura from Bharatiya Janata Party (BJP) in
the Panchayat Samiti election held in 2019. The said Panchayat Samity
consisted of 9 elected members. Other than the petitioners, respondent
No.7 and proforma respondent no 9, 10 & 11 were the other elected
members of the Panchayat Samiti. After their election as members of
Bokafa Panchayat Samiti from the same political party they elected
Respondent No. 11 Sridam Das as Chairman and Respondent No.7 Sri
Avijit Mitra as Vice-Chairman of the said Panchayat Samiti.
Performance of the Chairman not being satisfactory, majority of the
elected members including the petitioners and Respondent No.7 issued a
notice dated 20.01.2020 [Annexure-1] to the District Panchayat Officer,
South Tripura [respondent no.3] seeking removal of the Chairman of the
said Panchayat Samiti. In response, the District Panchayat Officer
[Respondent No.3] vide his letter dated 28.01.2020 [Annexure-2]
requested the said members to submit their proposal in Form-4 in terms
of sub-rule(2) of Rule 23 of the Tripura Panchayats (Administration)
Rules, 1994. Accordingly they submitted the proposal [Annexure-3] in
Form-4 in terms of the advice of the District Panchayat Officer. The
District Panchayat Officer [Respondent No3] then convened a meeting
for removal of the Chairman on 11.02.2020 at 11 A.M in the Panchayat
Samiti hall at Bokafa and issued notice dated 01.02.2020[Annexure-4] to
all elected members of the said Panchayat Samiti to attend the meeting.
The members were also informed that Anita Mog, Panchayat Officer
[Respondent No.5] will preside over the meeting and Sri Anish Debnath,
Assistant Director of Panchayat [Respondent No.6] will act as an
observer in the said meeting. The meeting was held on the appointed
date and in the said meeting all the 5 petitioners cast their votes in favour
of the no confidence motion by raising their hands. Accordingly, the no
confidence motion against the Chairman of the Panchayat Samiti was
passed by the majority vote of 5 petitioners in the said Panchayat Samiti
consisting of 9 elected members and the District Panchayat Officer
[Respondent No.3] vide order dated 24.02.2020 [Annexure-5] removed
Sri Sridam Das, Respondent No.11 from the office of the Chairman of
the said Panchayat Samiti. Thereafter, the District Magistrate and
Collector [Respondent No.2] vide memorandum dated 13.03.2020
[Annexure-6] asked the petitioners to show cause as to why they shall
not be disqualified from membership of the said Panchayat Samiti in
terms of clause (b) of sub-section (1) of Section 76 of the Tripura
Panchayats Act, 1993 for voting against party whip in the said meeting
of Bokafa Panchayat Samiti held on 11.02.2020. The petitioners
submitted their reply [Annexure-7]. Thereafter, the District Magistrate
and Collector [Respondent No.2] vide impugned order dated 27.03.2020
[Annexure-11] declared that the petitioners earned disqualification under
Section 76(1)(b) of the Panchayats Act, 1933 for voting contrary to the
direction of the party.
Hence the petitioners have filed this petition for quashing
the impugned order of Respondent No.2.
[3] In their counter affidavit, State respondent No.1 to 4 stated
that the State BJP president authorized the District President of BJP, Shri
Sankar Roy to issue the party whip to the elected members of Bokafa
Panchayat Samiti to attend the meeting convened on 11.2.2020 and vote
against the no confidence motion. But the petitioners voted for the no
confidence motion and thereby violated the party whip. It was also
contended by the respondents that the written party whip was served on
the petitioners during the meeting and the said petitioners acknowledged
the receipt of the party whip by putting their signatures. The proceedings
of the said meeting was also videographed and the minutes of the
meeting was signed by Smt. Anita Mog [Respondent No.5] who
conducted the meeting as Panchayat Officer, Respondent No.6, Sri
Anish Debnath, Assistant Director of Panchayat who was appointed as
observer of the proceedings of the meeting and Respondent No.7 Sri
Avijit Mitra, Vice-Chairman of Bokafa Panchayat Samiti who presided
over the meeting. Anish Debnath [Respondent No-6] Assistant Director
of Panchayat also submitted a report dated 17.02.2020 to the District
Panchayat Officer and acting on the minutes of the proceedings and the
report of Respondent No.6, the District Magistrate and Collector, after
issuing show cause notice to the petitioners and considering their replies,
declared that they earned disqualification under Section 76 (1)(b) of the
Panchayats Act, 1993.
[4] Respondent No.4, 5 and 6 filed no counter affidavit in the
case. Counter affidavit was also filed by Respondent No.7 and it was
stated by Respondent No.7 Avijit Mitra that he presided over the
meeting held on 17.02.2020 in Bokafa Panchayat Samiti and according
to him no party whip was served or read over in the said meeting before
the no confidence motion was put to vote. He also stated that on the
minutes of the meeting his signature was procured without making him
aware of the contents of the document. No other respondent had filed
any counter affidavit.
[5] We have heard Mr. N.Das, learned advocate appearing for
the petitioners and Mr. D. Bhattacharjee, learned GA appearing for the
State respondents.
[6] Counsel appearing for the petitioners has raised the
following contentions:
i) There is no proof that no party whip containing the
direction of the party whip was served on the petitioners at
any point of time prior to the meeting held on 17.02.2020.
ii) Admittedly, Sri Avijit Mitra, Vice-President of Bokafa
Panchayat Samiti presided over the said meeting who
categorically stated in the counter affidavit submitted by
him that no party whip was served on any of the elected
members prior to the said meeting and no party whip was
even read over to the elected members of the Panchayat
Samiti in the meeting before the no confidence motion was
put to vote. Therefore, disqualification of the petitioners
on the ground of violation of party whip is baseless and
illegal.
iii) The petitioners appeared at the said meeting on
17.02.2020 pursuant to the notice dated 01.02.2020
[Annexure-4] issued by the District Panchayat Officer
[Respondent No.3] and cast their votes in favour of the no
confidence motion and as such they committed no wrong.
[7] Counsel appearing for the Government Advocate has
opposed the petition contending that it is a clear case of defection for
violation of party whip by the petitioners for which they incurred
disqualification under Section 76 of the Tripura Panchayats Act, 1993. It
is contended by learned GA that the minutes of the meeting [Annexure-
R/5] has confirmed that the party whip was read over to the petitioners.
The party whip [Annexure-X] indicates that the elected members
including the petitioners were asked to vote against the no confidence
motion which was brought for removal of the elected Chairman
[Respondent-11] of the said Panchayat Samiti. But they voted in favour
of the no confidence motion contrary to the direction of the party and
thereby earned disqualification under Section 76(1)(b) of the Tripura
Panchayats Act. According to learned counsel, the impugned order was
rightly issued by Respondent No.2 declaring that the petitioners were
disqualified from membership of the said Panchayat Samiti.
[8 ] We may recall that the District Magistrate and Collector,
South Tripura by the impugned order dated 27.03.2020 [Annexure-11 of
the writ petition] declared that the petitioners earned disqualification as
members of the said Panchayat Samiti for voting contrary to the direction
of the political party in the no confidence motion in the meeting held on
11.02.2020 at Bokafa Panchayat Samiti hall for removal of the chairman of
Bokafa Panchayat Samiti. To examine the correctness of the impugned
order it would be appropriate to refer to the statutory provisions
pertaining to removal of the elected chairman of a Panchayat Samiti.
[9] Section 82 of the Tripura Panchayats Act, 1993 pertaining
to removal of Chairman/ Vice-Chairman of Panchayat Samiti provides
as under:
"82. A Chairman or a Vice-Chairman of Panchayat
Samiti may, at any time, be removed from office by a
resolution of the Panchayat Samiti carried by the majority
of the existing elected members of the Panchayat Samiti at a
meeting specially convened for the purpose in the
prescribed manner. Notice of such meeting shall be given to
the prescribed authority by not less than one fifth of the
total members:
Provided that in such meeting, while any
resolution for the removal of the Chairman from his office
is under consideration, the Chairman, or while any
resolution for the removal of the Vice-Chairman from his
office is under consideration, the Vice-Chairman , shall not,
though he is present, preside and the provisions of sub-
section (3) of Section (87) shall apply in relation to every
such meeting as they apply in relation to a meeting from
which the Chairman or, as the case may be, the Vice-
Chairman is absent."
[10] The details of the procedure for removal of Chairman and
Vice-Chairman and members of Panchayat Samiti have been prescribed
under Rule 23 of the Tripura Panchayats (Administration) Rules, 1994
which reads as under:
"23(1)The District Panchayat officer shall be the
prescribed Authority for removal of a member of a
Panchayat Samiti under sub-section(1) of Section 81 of
the Act. He shall exercise this function only on the basis
of receipt of communication in this regard from the
concerned Panchayat Samiti. The Additional District
Magistrate & Collector of the concerned District shall be
appellate authority under sub-Section(2) of Section 81 of
the Act.
(2)On receipt of a notice in Form 4 signed by
at least one-fifth of the total members of a Panchayat
Samiti, District Panchayat Officer shall convene a
meeting for removal of a Chairman or Vice-Chairman
under Section 82 of the Act. Such notice shall be
delivered in person to the District Panchayat officer by
one of the member signing the notice or sent by
registered post.
(3)In case of removal of both Chairman and
Vice-Chairman in the same meeting, the meeting shall be
presided over as President by a member who shall be
elected by the members present.
Provided that the District Panchayat Officers
shall appoint an observer for such meeting who shall
submit a report in writing to the District Panchayat
officer immediately after completion of the meeting.
(4)At the beginning of the meeting Presiding
Officer shall read out to the members of the Panchayat
Samiti present in the meeting the notice in form-4 given
under Section 82 of the Act. He shall then allow the
motion for removal to be read and discussed. Such
discussions shall terminate before expiry of one hour
from commencement of the meeting or such further time
as may be extended by the Presiding Officer. Upon
concluding of the debate or upon expiry of the said
period, the motion shall be put to vote. Vote shall be by
show of hands:
Provided that in case of absence of quorum,
the meeting shall be adjourned and the adjourned
meeting shall be convened in the same manner.
(5) The Presiding Officer shall declare the
result of voting. The motion for removal shall be deemed
to have been carried only when it has been passed by the
majority of the existing members of Panchayat Samiti.
(6) The Presiding Officer shall forthwith
forward the minutes of the meeting to the District
Panchayat Officer. The District Panchayat Officer will
issue the removal order and intimate the same to the
Executive Officer of the Panchayat Samiti, Chief
Executive Officer of the Zilla Parishad and Secretary to
the Panchayt Samiti.
(7) In case of removal of both Chairman and
Vice-Chairman, the charges will be taken over from the
Chairman and Vice-Chairman by the members so
appointed under Rule 3 of the Tripura Panchayats
(Election of Office Bearers) Rules, 1994, until the new
Chairman, or as the case may be, the Vice-Chairman is
elected and assumes office.
(8) If the Chairman or as the case may be, the
Vice-Chairman fails or refuses to hand over the charges,
the transfer of charges shall be effected through police
help."
[11] Admittedly, there were 9 elected members, all from BJP,
including the Chairman and Vice-Chairman of the said Panchayat Samiti.
The aforesaid rules provide that the District Panchayat Officer shall be the
prescribed authority for removal of elected member of the Panchayat
Samiti and he shall exercise such function on the basis of receipt of a
communication from the concerned Panchayat Samiti. Sub-rule(2) of said
Rule 23 provides that meeting for removal of Chairman or vice chairman
shall be convened under Section 82 of the Panchayats Act on receipt of a
notice in form-4 signed by at least one fifth of the elected members. It has
also been provided under the proviso to sub-rule(3) of the said Rule 23 that
the District Panchayat officer shall appoint an observer for such meeting
who shall submit a report to the District Panchayat officer immediately
after the meeting. Under sub-rule (5) the Presiding Officer shall declare the
result of voting and the motion for removal shall be deemed to have been
carried only when it has been passed by the majority of the existing
members of the Panchayat Samiti.
[12] In the given context, the five petitioners along with
respondent no.7 all of whom were elected members of the 9-member
Panchayat Samiti gave notice to the District Panchayat Officer in
prescribed form no-4[Annexure-3 of the writ petition] in terms of sub-
rule(2) of Rule 23 of the Tripura Panchayat (Administration) Rules, 1994.
On receipt of the said notice form a majority of the elected members the
District Panchayat Officer issued notice dated 01.02.2020 [Annexure-4of
the writ petition] in terms of sub-rule(2) of Rule 23 of the said Rules
convening a special meeting of the Bokafa Panchayat Samiti for removal of
the Chairman of the said Panchayat Samiti pursuant to the no confidence
motion brought by majority of the members of the said Panchayat Samiti. It
was mentioned in the said notice that the meeting would be held in the
Bokafa Panchayat Samiti hall on 11.02.2020 at 11 a.m and Smt. Anita
Mog, Panchayat Officer [Respondent No.5] would be the Presiding Officer
to conduct the meeting and Sri Anish Debnath, respondent No.6 would be
the observer of the said meeting. The notice of the meeting was served on
each of the elected members.
[13] Thereafter, the meeting was held on the appointed date and at
the appointed time and place. All the elected members were present in the
meeting. After the no confidence motion against the Chairman was passed
by the votes of majority of the members present and voting, the minutes of
the meeting [Annexure-9 of the writ petition] was drawn up and signed by
the duly appointed Presiding Officer [Respondent No.5], the Observer
[Respondent No.6] and the President of the meeting [Respondent No.7].
The said minutes demonstrate that when the no confidence motion against
the Chairman was put to vote, all the 05 petitioners out of 9 elected
members of the said Panchayat Samiti supported the no confidence motion
by raising their hands. Relevant extract of the said minutes of the meeting
is as under:
"Annexure-9
MINUTES OF THE MEETING FOR REMOVAL OF CHAIRMAN
OF BOKAFA PANCHAYAT SAMITI HELD ON 11/02/2020 AT
11.00 AM ONWARDS AT THE PANCHAYAT SAMITI HALL
PREMISES
..................At the outset of the meeting, the attendance
of the members present in the meeting is taken & found 9
nos present out of 9 nos members (attendance sheet
enclosed herewith) which forms the quorum for the
meeting and at the beginning of the meeting the notice in
Form-4 is read out and also issued the political party
whip to all members. The motion then has been placed
for debate by the members present in the meeting and
has been asked to conclude the discussion by 12.00 P.M.
Then all members present in the meeting were informed
that the motion would now be put to vote and apprised
them that votes should have to be casted by raising of
hands as specified under Rule 23 (4) of the Tripura
Panchayats (Administration) Rules,1994. Out of 9 nos
members present in the meeting 05 members raised their
hands showing their support in favour of the motion and
accordingly put their signature in the attendance."
[14] Smt. Anita Mog, Presiding Officer of the said meeting
[Respondent No.5] by her letter dated 14.02.2020 [Annexure-10]
communicated the said minutes of the meeting to the District Panchayat
Officer in terms of sub-rule(6) of Rule 23 of the said Rules. Anish Debnath
[Respondent No.6] who was appointed observer in terms of the proviso to
sub-rule(3) of Rule 23 of the said Rules, also submitted his report dated
17.02.2020 [Annexure-8 of the petition] to the District Panchayat Officer
[Respondent No.3]. On the basis of said report dated 14.02.2020 of the
Presiding Officer and report dated 17.02.2020 of the observer, the District
Panchayat Officer [Respondent No.3] vide memorandum dated 24.02.2020
[Annexure-5 of the writ petition] issued the removal order of the Chairman
of the said Panchayat Samiti in terms of sub-rule(6) of Rule 23 of the said
Rules. Said removal order reads as under:
"Annexure-5
Government of Tripura
Office of the District Magistrate & Collector
South Tripura District, Belonia
No.F.29(23)/DPO/S/PGE/2019/1169 Dated, 24/02/2020
ORDER
Whereas, the O/o the South Tripura Zilla Parishad, Belonia received a letter
along with FORM-4" on 29th January, 2020 wherein 6(six) existing elected members
(out of nine) of Bokafa Panchayat Samiti signed with intention for removal of present
Chairman(Sri Sridam Das) of Bokafa Pacnchayat Samiti.
AND
Whereas, as per Rule 23(2) of the Tripura Panchayats (Administration)
Rules,1994 and in pursuance of Section 82 of The Tripura Panchayats Act 1993, a notice
was issued by the undersigned vide No.F.29(21-5)/DPO/S/PGE/2019/1097
Dt.01/02/2020 to conduct a special meeting on the issue of No Confidence Motion held
on 11th February, 2020 at 11.00 AM at Bokafa Panchayat Samiti Hall where Sri Avijit
Mitra, Vice-Chairman of Bokafa Panchayat Samiti presided over and Smt.Anita Mog,
Panchayat Officer of Bokafa RD Block had discharged duties as Presiding Officer and
Sri Anish Debnath, Assistant Director of Panchayats(on CDC),STZP was present as an
Observer.
AND
Whereas, according to the report submitted by the Presiding Officer(Smt. Anita
Mog) vide No. F. 9(6)/ BDO/ BKF/PANCH/2019-20/640 Date: 14/02/2020 and also
report of the Observer (Sri Anish Debnath) vide No.F.29 (21) / DPO /S/ Misc /2018/
1164 Date: 17/02/2020 it is commonly brought to notice of the undersigned that out of
nine (09) Elected Members of Bokafa Panchayat Samiti, all of them including Chairman
& Vice-Chairman remained present that clearly formed quorum. The reports also reveal
that, at the beginning of the meeting, the Presiding Officer read out Form-4 along with
Whip of Political party(BJP) which they belong to. After making a debate/discussion on
the issue for removal of Chairman of Bokafa Panchayat Samiti, the matter put to vote
among the members who remained present in the hal. From the record it is known that
out of nine(09) members, five(05)members namely 1)Indrajit Das, 2)Rajesh Reang,
3)Debashish Majumder, 4)Anita Reang, 5)Sujata Das(Natta) casted their votes in favour
of No Confidence Motion by raising their hands while the president (Sri Avijit Mitra)
couldn't take part for casting vote as per sub-section(5) of Section(87) of the Tripura
Panchayats Act 1993. Besides, since I have gone through the result declared by the
Presiding Officer of the meeting under Section 23(5) of Part-B of Chapter-II of the
Tripura Panchayats (Administration) Rules, 1994, it is come to notice that the No
Confidence Motion has been passed by the majority of existing members of Bokafa
Panchayat Samiti.
Now, therefore, as per Rule23(6) of the Tripura Panchayat
Rules(Administration), 1994, I, the District Panchayat Officer of South Tripura District,
to remove Sri Sridam Das, (existing Chairman of Bokafa Panchayat Samiti) from the
post of Chairman of Bokafa Panchayat Samiti.
The removed Chairman (Sri Sridam Das) is hereby requested to hand over the all
charges of Bokafa Panchayat Samiti to Sri Avijit Mitra, Vice-Chairman of Bokafa
Panchayat Samiti in Form-1(enclosed) within ten days.
Enclo: As stated. By order
District Panchayat Officer
South Tripura District, Belonia
To,
Sri Sridam Das
Bokafa Panchayat Samiti
South Tripura District for compliance
Copy to
1.The CEO(DM & Collector), STZP, South Tripura District for kind information.
2.The Director of Panchayats, Agartala, West Tripura for kind information.
3. The EO(BDO), Bokafa RD Block, South Tripura for information. He is also requested to
arrange to serve this order to concerned and to take necessary action accordingly.
4.The Secretary, Bokafa Panchayat Samiti, South Tripura District for information & n.a.
5.All directly elected members, Bokafa Panchayat Samiti for information.
6.The Vice-Chairman of Bokafa Panchayat Samiti for information and compliance.
District Panchayat Officer
South Tripura District, Belonia"
[15] Thereafter, the District Magistrate and Collector [Respondent
No.2] vide memorandum dated 13.03.2020[Annexure-6 of the writ petition]
issued show cause notice to the petitioners on the basis of report received
from the Presiding Officer [Respondent No.5] of the said meeting asking
them to show cause as to why they would not be declared disqualified as
members of the said Panchayat Samiti for voting contrary to the direction
of their political party. The said memorandum dated 13.03.2020 of the
District Magistrate and Collector reads as under:
"Annexure-6
Government of Tripura
Office of the District Magistrate & Collector
South Tripura District, Belonia
No.F.29(23)/DPO/S/PGE/2019/1210 Dated, 13/03/2020
MEMORANDUM
Whereas, it has been brought to my notice by presiding officer of the meeting of
Bokafa Panchayat Samiti which was held on 11th February, 2020 at 11.00 A.M that some
members have earned disqualification under Section 76 of the Tripura Panchayats Act,
1993 and referred the issue of deciding the question of their disqualification for decision
under sub-section(2) or, as the case may be, (3) or both of Section 76 of the Act.
AND
Whereas, it has been informed that you have earned disqualification under
Section 76 of the Tripura Panchayats Act, 1993 for voting contrary to the direction of
yur political party.
AND
Whereas, it has been observed that no letter of prior permission or condonation
has been submitted by you to the undersigned within thirty day from the date of voting
(i.e. upto 12/03/2020).
Now, therefore, you are hereby asked to show-cause as to why you shall not be
disqualified from being a member of Bokafa Panchayat Samiti as per clause (b) of sub-
section(1) of Section 76 of Tripura Panchayats Act,1993.
Your reply in this regard shall reach the office of the undersigned by 17/03/2020
else it shall be presumed that you have nothing to say in this matter and ex-parte
decision shall be taken.
District Magistrate & Collector
South Tripura District, Belonia"
[16] All the five writ petitioners submitted same written reply dated
13.03.2020 to the show cause notice denying the allegations and asserting
that they were never asked to abstain from voting for removal of the
Chairman of the said Panchayat Samiti. Since the replies are same, it would
be appropriate to reproduce one of those replies for reference which is as
under:
"Annexure-7
To
The District Magistrate & Collector
South Tripura District
Belonia, South Tripura
Subject: Reply of your kind memorandum
No.F.29(23)/DPO/S/PGE/2019/1210 Dated, 13/03/2020
Respected Sir,
With profound respect and magnificent generosity, I would like to convey to your kind
self the following facts which is factual related to your kind memo number explicit
above for favour of your kind perusal and further course of action.
1) That sir,
At the very out set I beg acknowledge as received of your letter number
stated above and furnishing herewith the reasonable reply in seriatim in according with
the stanga wise.
2)That sir,
It is fact on 11th February 2020 one meeting was hold at 11 AM. In the
Bokafa Panchayat Samiti Hall & Smt. Anita Mog, Panchayat Officer of Bokafa RD
Block has discharged duties as presiding officer and Sri Anish Debnath, Asstt. Director
of Panchayat (on CDC)STZP were present as on observer.
3)That sir,
In respect of 2nd stanga it is mentioned that I have been earned
disqualification under Section of 76 of the Tripura Panchayats Act, 1993 for Votting
contrary.
On the report I would like to clarify here that neither I have earned
/declared by the authorities as disqualify nor asked to abstain from caste of my Vote
related to removal of the existing Chairman of Bokafa Panchayat Samiti.
4)That sir,
In respect of 3rd stanga, I would like to briefing here that the Voting of
the removal of the Bokafa Panchayat Samity Chairman was hold on 11/02/2020 In
question of taken permission / condemnation from your kind self within thirty days. It
may be noted here that, I took it will be not necessary as because, I am completely
ignore/clear conception about the rules (Administration) of Panchayat 1994.
Subsequently on the other hand one office order has been communicated to me vide
office order No. No.F.29(23)/DPO/S/PGE/2019/1169 Dated, 24/02/2020 Issued by the
District Panchayat Officer, South Tripura District, Belonia. Where in it is clearly
mentioned that the No confidence motion has been passed by the majority of existing
members of Bokafa Panchayat Samity as per rule 23(6) of the Tripura Panchayat
Rules(Administration)1994. Beside the District Panchayat Officer, South Tripura
District Belonia requested to the removed chairman of Bokafa Panchayat Samity to Sri
Avijit Mitra, Vice-Chairman of Bokafa Panchayat Samity in form-1 which was
(enclosed) within ten days.
In this perspective, I am highly eagerness to know under what
circumstances the presiding Officer and observer took the Votes I/C. with the removal of
the existing Chairman of Bokafa Panchayat Samity and District panchayat Officer
Issued Office Order to handing over the all charges of Bokafa Panchayat Samity in form
No.I It I am disqualify from the post of panchayat samity member Bokafa Panchayat
Samity along with caste of my Vote.
In Compliance of the office order issued by the District Panchayat
Officer the Vice -Chairman of Bokafa Panchayat Samity wrote a letter addressing to the
District Panchayat Officer for handing over of the all charges of Bokafa Panchayat
Samity on regards to effective functioning of the establishment of Bokafa Panchayat
Samity on 03/10/2020.
However, In response to your kind memo number cited above, I am
furnishing here with the self representation which is factual for favour of your king
perusal and magnanimous consideration.
Yours sincerely
Member, Bokafa Panchayat Samity
Copy to:-
1) The District Panchayat Officer, South Tripura District, Belonia for favour of kind
information."
[17] On receipt of the reply received from the petitioners the
District Magistrate and Collector [Respondent No.3] vide his impugned
order dated 27.03.2020[Annexure-11 of the writ petition] declared that the
petitioners earned disqualification under Section 76(1)(b) of the Tripura
Panchayats Act, 1993 on the ground that they voted for removal of the
Chairman of the said Panchayat Samiti contrary to the direction/whip
issued by their political party without obtaining prior written permission of
their party and their conduct was not condoned by their party within 30
days from the date of such voting. The impugned order [Annexure-11]
reads as follows:
"Annexure-11
Government of Tripura
Office of the District Magistrate & Collector
South Tripura District, Belonia
No.F.29(23)/DPO/S/PGE/2019 Dated, 27th March,2020
ORDER
Smt. Anita Mog, Panchayat Officer of Bokafa RD Block, South Tripura vide her letter
No.F.9(6)/BDO/BKF/PANCH/2019-2020/641 dated 14/02/2020 has referred the matter
of disqualification of 6(six)members of Bokafa Panchayat Samiti viz. Sri Avijit Mitra.
Smt. Anita Reng. Sri Rajesh Reang, Sri Indrajit Das, Smt. Sujata Das(Natta) & Sri
Dbashish Majumder to the undersigned.
It was observed that as per provision contained in Section 82 of the Tripura
Panchayats Act. 1993 6(six)elected members of Bokafa Panchayat Samity have
delivered Notice to the Secretary Dakshin Tripura Zilla Parishad(District Panchayat
Officer)South Tripura . Belonia in FORM-4 for convening Special Meeting of Bokafa
Panchayat Samiti Hall for removal of existing Chairman of Bokafa Panchayat Samiti,
Bokafa, South Tripura.
Thereafter, a meeting of Bokafa Panchayat Samity under Bokafa RD Block.
South Tripura was convened on 11th Februray, 2020 at Bokafa Panchayat Samiti Hall at
11.00 AM for removal of existing Chairman of Bokafa Panchayat Samiti, Bokafa, South
Tripura.
After the meeting Smt. Anita Mog, Panchayat Officer of Bokafa RD Block,
South Tripura has submitted report to the DM & Colletor, South Tripura in FORM-12 A
under Rule 27(sub rule 1&2) of the Tripura Panchayats(Election of Office Bearers)rules,
1994 that 6(Six) elected Members of Bokafa Panchayat Samiti viz. Sri Avijit Mitra, Smt.
Anita Reang, Sri Rajesh Reang, Sri Indrajit Das, Smt.Sujata Das(Natta) & Sri Debashish
Majumder have earned disqualification under Section76(1)(b) of the Tripura Panchayats
Act, 1993 for voting contrary to the direction of Political Party to which they belonged.
A show cause memo was issued dated 13/03/2020 to all the members of
Panchayat Samiti as to why they shall not be disqualified from being a member of
Bokafa Panchayat Samiti as per clause (b) of sub-section(1) of Section 76 of Tripura
Panchayats Act, 1993.
It was observed from the reply furnished by the members of the Panchayat
Samiti that they could neither submit any prior written permission of the political party
to which they belonged for voting contrary to the directions issued by the political party
nor they could furnish any document regarding condonation of such voting or
abstenation by the political party within thirty days from the such voting or abstenation.
Sri Commissioner Kalai, District Panchayat Officer, South Tripura who was
directed to enquire into the matter vide Memorandum No.F.29(23)/DPO/S/PGE/
2019/1218 dated, 16/03/2020 in his report vide No. F.29(23)/DPO/S/PGE/2019/1239
dated 25/03/2020 has mentioned that they have earned disqualification under Section 76
of the Tripura Panchayats Act, 1993 for abstaining in voting or voting contrary to the
direction issued by the political party to which they belonged. Also that, the points
raised by these 6(Six) members of Bokafa Panchayat Samiti are unreasonable and
unjustifiable.
However, it was observed from the minutes of the proceeding that only 5(five)
members voted against the direction of the political party. Sri Avijit Mitra who presided
over the meeting did no cast vote. In the sub-section(5) of Section 87 of The Tripura
Panchayats Act, 1993 it is mentioned that, " All questions coming before a Panchayat
Samiti shall be decided by a majority of vote:
Provided that in case of equality of votes of person presiding shall have a casting
vote.
Provided further that in case of a requisitioned meeting of the removal of
Chairman or Vice-Chairman under Section 82, the person presiding over the meeting
shall have no casting vote"
Thus it is clear that Sri Avijit Mitra who presided over the meeting had not cast
his vote and he was not required to as per the abovementioned provision. Therefore, the
disqualification under Section 76(1)(b) of the Tripura Panchayats Act. 1993 will not be
applicable to Sri Avijit Mitra.
However, the disqualification under Section 76(1)(b) of the Tripura Panchayats
Act 1993 would be applicable to those 5(five) members who voted against the directions
contrary to the political party to which they belonged and that has not been condoned by
the political party within the stipulated time.
Therefore, in exercise of the power conferred upon me under Section 76(3) of
the Tripura Panchayats Act, 1993, I, Sri D.Bardhan, IAS, District Magistrate &
Collector, South Tripura being empowered to take decision on the subject of
disqualification of elected member after careful consideration of the above facts and
circumstances presented before the undersigned hereby declare that that 5(five) elected
Members of Bokafa Panchayat Samiti viz. Smt.Anita Reang, Sri Rajesh Reang, Sri
Indrajit Das, Smt.Sujata Das (Natta) & Sri Debashish Majumder have earned
disqualification under Section 76(1)(b) of the Tripura Panchayats Act, 1993 for voting
contrary to the direction of the Political Party to which they belonged and the
disqualification shall take immediate effect.
District Magistrate & Collector
South Tripura, Belonia
To
1. Avijit Mitra, Vice Chairperson, Bokafa Panchayat Samiti.
2. Smt. Anita Reang
3. Sri Rajesh Reang
4. Sri Indrajit Das
5. Smt. Sujata Das(Natta)
6. Sri Debashish Majumder
Copy also to:
1. The Director of Panchayats, Government of Tripura for kind information
2. TheDPO, South Tripura District for information and necessary action
3. The Executive Officer, Bokafa Panchayat Samiti (BDO,Bokafa)for information
and necessary action."
[18] Main contention of the petitioners is that the proceedings for
removal of the Chairman of the said Panchayat Samiti was conducted
strictly in terms of the statutory provisions and no party whip was
communicated to the petitioners to abstain from voting in favour of the no
confidence motion and as a result their disqualification from the
membership of the said Panchayat Samiti is illegal and untenable in the eye
of law.
[19] The state respondents on the other hand contended that the
party whip was served upon all the elected members including the
petitioners who also acknowledged the receipt of the whip. According to
the official respondents, the whip was also read over to the elected
members including the petitioners prior to the meeting held on 11.02.2020
where the no confidence motion was moved.
[20] Strikingly, Respondent No.7, Avijit Mitra, Vice-Chairman of
the said Panchayat Samiti who presided over the said meeting categorically
stated in paragraph 10 of his counter affidavit filed on 03.02.2021 that no
party whip was issued or read over in the said meeting. The relevant extract
of his counter affidavit is as follows:
"10.That the averments made in para 16 and 17 of the writ petition are true. As per
Panchayat (Administration) Rules 1994 I being the Vice Chairperson of the Samity
presided over the said meeting dated 11/02/2020. But Presence of Respondent No.5
as presiding officer of the said meeting dated 11/2/2020 was beyond the said rules as
well as her report dated 17/02/2020 wherein Respondent No.5 without giving
undertaking anything to me obtained my signature about after one week in the
minutes typed in English that also not read over to me, Annexure-9 and as such I do
not deny and dispute to the averments in this paragraph.
It is mentionable here that the minutes of the meeting was carried out by a
resolution of the Majority Member of the Meeting as per Tripura
Panchayat(Administration) Rules, 1994 and as such report of the respondent No.5
annexure-9 is contrary to the aforesaid rules 1994 as well as The Tripura Panchayat
Act, 1993, and The Tripura Panchayats(Election of Office Bearers)Rules, 1994.
The annexure-9 report of the Respondent No.5, 6 and myself is not prepared
in the meeting on 11/02/2020. But it is prepared on 17/02/2020 in the office of the
Respondent No.3 and obtained my Signature Stating that the Bengali written
resolution of the meeting dated 11/02/2020 is translated to English and obtained my
signature without reading over to me, but no Political Party whip issued or read
over in the meeting, that now I could realize from the Annexure -9 on receipt of the
copy of the writ petition. When Respondent No.5 obtained signature, there was no
signature of Respondent No.5 &6, but obtained in their Office stating that it is
prepared and my signature is necessary as I presided the meeting dated 11-2-2020,
but nothing read over to me and that also contrary to the Panchayat and Rules.
That, the averments made in para 18 of the writ petition I say that as I
presided over the meeting dated 11/2/2020 I did not refer any issue of
Disqualification of any member but as regard referring any issue of Disqualification
of petitioners are matter of Law and Facts and as such I Neither Denied nor disputed
in this regard." [emphasis supplied]
[21] Debashish Mazumder, one of the petitioners, in his rejoinder
dated 03.02.2021 also stated that no party whip was served on any of the
petitioners in any manner.
[22] Counsel of the petitioners submitted that the burden of
proof of service of the party whip lies on the respondents and the
respondents having failed to prove the service, their disqualification
order does not survive.
[23] It is already observed that there is no proof of service of the
party whip on the petitioners. Even Respondent No.7, Vice-chairman of
the said Panchayat Samiti, who presided over the meeting categorically
stated in his counter affidavit that no party whip was ever served or read
over to the members of the Panchayat Samiti. The state respondents did
not submit any rejoinder to dispute the contention of Respondent No.7.
Even no other respondents who were present in the said meeting
submitted any counter affidavit denying the said contention of the
petitioners.
[24] In these circumstances the contention of the petitioners that
no party whip was served on them stands established. It is true that
neither the Act nor the Rules made thereunder provide for a particular
method of service of intimation of the whip containing the direction of
the party. Section 76 of the Act uses the expression "contrary to the
direction issued by the political party". Thus, the stress is on a member
voting contrary to the / any direction issued by the political party to
which he belongs. In the case of Ranjit Sinha and Ors. vs. State of Tripura
and Ors. [WP(C)No. 1351 of 2019] this Court held that in order to
establish the breach of party whip, communication of the particular
direction/ whip would be necessary. In the said case, disqualification
order of the petitioners was set aside on the ground that there was no
evidence of the communication of the party whip to the members and the
High Court held as under:
"25.Even though there is no specific provision in this
regard, undoubtedly, within the scheme of the statute and
the Rules made thereunder, the petitioners were entitled to
be properly communicated the party whip prior to the
commencement of the election process since their failure in
complying with such whip would render them disqualified
from the membership of the panchayat......."
[25] Plea of the respondents that the party whip was read over to
the members prior to the meeting is categorically denied by the
petitioners as well as Respondent No.7 who presided over the said
meeting. For argument's sake, even if it is conceived that the party whip
was read over to the members prior to the meeting, such reading of the
party whip cannot be substituted for proper communication of the whip.
It was held by this court in the case of Ranjit Sinha(supra) that reading
out of party whip cannot be substituted for proper communication of the
whip on the elected members of the party to which they belong. If the
requirement of proper and valid communication of whip is to be
substituted by reading out the whip by the authorized officer which does
not form part of his statutory duties, it will open wide possibilities of
disputes of authenticity, correctness and reliability of the
communication.
[26] The same analogy applies to this case. In absence of proof of
proper service of the party whip on the petitioners, they cannot be held
disqualified for violation of such whip. The Apex Court has also held that
removal of an elected member from a democratic institution is a very
serious matter which cannot be done without strict adherence to the
prescribed procedure.
[27] In Tarlochan Dev Sharma vs. State of Punjab and Ors.
reported in AIR 2001 SC 2524, the Apex Court, has succinctly held that in a
democracy governed by the rule of law, removal of an elected candidate
from his office before the expiry of the statutory term for which he has been
elected is a serious matter. Once elected to an office in a democratic
institution, the incumbent is entitled to hold the office for the whole term
unless his election is set aside by a prescribed procedure known to law.
Observation of the Apex Court in paragraph 7 of the said judgment is as
follows:
"7. In a democracy governed by rule of law, once
elected to an office in a democratic institution, the
incumbent is entitled to hold the office for the term
for which he has been elected unless his election is
set aside by a prescribed procedure known to law.
That a returned candidate must hold and enjoy the
office and discharge the duties related therewith
during the term specified by the relevant enactment
is a valuable statutory right not only of the returned
candidate but also of the constituency or the
electoral college which he represents. Removal from
such an office is a serious matter. It curtails the
statutory term of the holder of the office. A stigma is
cast on the holder of the office in view of certain
allegations having been held proved rendering him
unworthy of holding the office which he
held......................................................."
[28] While highlighting on the necessity of strict adherence to the
legal requirements and principles of natural justice for removal of a duly
elected member of the Panchayat and the effect of such removal on the
electorate, similar observation was made by the Apex Court in Laxmibai vs.
Collector, Nanded & Ors. reported in AIR 2020 SC 3393 wherein the Apex
Court also made a reference to Tarlochan Dev Sharma(supra) and held as
follows:
"16. In Tarlochan Dev Sharma v. State of Punjab & Ors.5,
this Court has held that holding and enjoying an office,
discharging related duties is a valuable statutory right of
not only the returned candidate but also his constituency or
electoral college. Therefore, the procedure prescribed must
be strictly adhered to and unless a clear case is made out,
there cannot be any justification for his removal.
17. In Ravi Yashwant Bhoir v. District Collector, Raigad &
Ors.[(2012) 4 SCC 407 : (AIR 2012 SC 1339)], this Court
held that an elected official cannot be permitted to be
removed unceremoniously without following the procedure
prescribed by law. Where the statutory provision has very
serious repercussions, it implicitly makes it imperative and
obligatory on the part of the authority to have strict
adherence to the statutory provisions. It was held as under:
"35. The elected official is accountable to its
electorate because he is being elected by a large
number of voters. His removal has serious
repercussions as he is removed from the post and
declared disqualified to contest the elections for a
further stipulated period, but it also takes away the
right of the people of his constituency to be
represented by him. Undoubtedly, the right to hold
such a post is statutory and no person can claim
any absolute or vested right to the post, but he
cannot be removed without strictly adhering to the
provisions provided by the legislature for his
removal (vide Jyoti Basu v. Debi Ghosal [(1982) 1
SCC 691 : AIR 1982 SC 983], Mohan Lal Tripathi
v. District Magistrate, Rae Bareily [(1992) 4 SCC 80
: AIR 1993 SC 2042] and Ram Beti v. District
Panchayat Raj Adhikari [(1998) 1 SCC 680 : AIR
1998 SC 1222] ).
36. In view of the above, the law on the issue stands
crystallised to the effect that an elected member can
be removed in exceptional circumstances giving strict
adherence to the statutory provisions and holding the
enquiry, meeting the requirement of principles of
natural justice and giving an incumbent an
opportunity to defend himself, for the reason that
removal of an elected person casts stigma upon him
and takes away his valuable statutory right. Not only
the elected office-bearer but his constituency
/electoral college is also deprived of representation by
the person of their choice."
[29] Keeping in view the said observations of the Apex Court
and the discussions made above, the impugned order dated 27.03.2020
issued by the District Magistrate and Collector, South Tripura
disqualifying the petitioners from the membership of Bokafa
Panchayat Samiti for alleged violation of party whip is set aside.
The writ petition is allowed and disposed of accordingly.
(S.G.CHATTOPADHYAY), J (AKIL KURESHI), CJ
Saikat Sarma, P.A
