Shivsankar Namasudra And Another vs State Of Tripura And Others

Petitioners have challenged two Declarations, both dated 18.01.2021 made by the Block Development Officer, copies of which are produced at Annexures-6 and 7 to the petition by which the petitioners had declared to have ceased to be the members of Gournagar Gram Panchayat.

Briefly stated the facts are that the petitioners are two of the elected members of Gournagar Gram Panchayat, elections for which were conducted in the year 2019. Some of the members of the Gram Panchayat issued notice of no confidence against the Pradhan of the Gram Panchayat and requested convening a meeting for such purpose. The prescribed authority convened a special meeting on 05.12.2020. In the meeting, which was held on 05.12.2020, majorities of the members of the Pancyayat voted for removal of the Pradhan and a resolution to that effect was therefore adopted.

According to the petitioners, without any further process, they received impugned communications dated 18.01.2021 on 28.01.2021. We may reproduce the contents of these declarations which are identically worded.

"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 Shivsankar Namasudra, a member of the Gournagar 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."

These declarations, the petitioners have challenged mainly on the ground that before issuing the said declarations, the Block Development Officer had not issued any show cause notice or granted any opportunity of hearing to the petitioners. In short, the petitioners would point out that the impugned communications were issued without following the minimum requirements of natural justice.

The communications in question are sufficiently clear and referr to no previous notice, hearing or opportunity of hearing being granted to the petitioners. Perusal of these declarations would show that the Block Development Officer acted in terms of the powers conferred in Section 16 of the Tripura Panchayats Act, 1993 read with sub-Rules (2) and (3) of Rule 27 of Tripura Panchayats (Election of Office Bearers) Rules, 1994. Section 16 of the said Act pertains to disqualification on ground of defection. Sub-Section (1) of Section 16 provides for disqualification of a member of a Gram Panchayat if he has voluntarily given up his membership of the political party or if he votes or abstains from voting in the Gram Panchayat contrary to any directions issued by the political party to which he belongs. Rule 27 of the said Rules lays down the procedure to deal with questions regarding disqualification on ground of defection. Sub- Rule (2) of Rule 27 provides inter alia that Gram Panchayat upon receipt of a written information that a member has voluntarily given up his membership of the political party, shall refer the question to the Block Development Officer to decide whether such member has earned disqualification. As per sub-Rule (3) of Rule 27, a member, who is alleged to have earned disqualification by reason of voting contrary to the direction of the political party, can submit the letter or prior permission or condonation to the Block Development Officer within specified time. Sub- Rule (4) of Rule 27 provides that if the authority is satisfied on the basis of the report of the Presiding Officer and after making such enquiry as may be necessary that any member has become disqualified under Section 16, record his decision and communicate it to the Gram Panchayat concerned and make a declaration in prescribed form that such member has ceased to be the member of the Gram Panchayat.

In case of Smti. Anjana Begam vs. The State of Tripura & others, W.P. (C) No.1404 of 2019 and connected petitions, Division Bench of this Court had considered the above noted statutory provisions regarding disqualification and in the context of requirement of hearing before taking any action of disqualification of a member of a Gram Panchayat, had made following observations:

"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 subsection (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.

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.

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.

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 present case, the declarations under challenge referred to no previous notice or hearing being granted to the petitioners. Clearly, the Block Development Officer has proceeded ex parte, which is not the essence of the Rule. Under the circumstances, only on this ground, impugned communications are quashed.

Petition disposed of accordingly. Pending application(s), if any, also stands disposed of.