Support for different political parties for different posts in an election by an independent candidate does not amount to defection or change of party affiliation, disqualifying the candidate from continuing as a member of a Gram Panchayat under section 213A of the West Bengal Panchayat Act, 1973.

1. BY this writ petition the petitioner seeks quashing of order dated 2nd August 2010 passed by the respondent No.2.

2. THE case of the petitioner is that a complaint was lodged by him against the private respondent under sub-section (7)(c) of section 213A of the 1973 Act. THE private respondent at the time of election of Prodhan had joined the CPI (M) party and therefore owed his allegiance to such party. The notice issued by the requisitionist for removal of the Prodhan contained the name of the petitioner. The requisitionist belonged to the All India Congress Party and having once belonged to the CPI (M) party, the change in party on the expiry of six months from the date of election disqualified the petitioner under section 213A from being a member of the Gram Panchayat. Such complaint was considered by the prescribed authority and an order passed on 8th June 2010. Such order was passed contrary to sub-section (9) of section 213A as neither any enquiry was held nor did the prescribed authority satisfy himself prior to passing the order dated 8th June 2010. In fact, the notice under section 12(2) of the 1973 Act the resolutions and the vokalatnama has been signed by the private respondent as a member of the Congress party. This is beyond six months and therefore, disqualifies the private respondent from continuing as a member. The 10th Schedule of the Constitution of India also provides for disqualification on Defection. Rule 6 of the Disqualification Rules of 1994 lays down the procedure to be followed. As the said procedure was not followed and as held in AIR 1997 Bombay 387 that if a person after election changes his affiliation and leaves the political party which supported him as a candidate, he should give up his membership. Such yardstick is also applicable in the case of an independent candidate who wishes to join a political party after the election. Therefore, the said case is applicable to the instant case and the order dated 2nd August 2010 be set aside. No statement has also been filed as an independent member which is the requirement of sub-section (5) of section 213 A of the 1973 Act. For all the said reasons the order of 2nd August 2010 be set aside.

Counsel for the private respondent submits that the petitioner has admitted that he all along was an independent candidate. From the letters placed before the prescribed authority the same will be evident. On 26th June, 2008 when the election of Prodhan and Upa Prodhan was made the private respondent for appointment of the Prodhan supported the CPI (M) party and for appointment of the Upa Pradhan supported the Congress party. The letters which have been written by the Prodhan are subsequent to June 2008 wherein the private respondent has been treated as an independent candidate. No document of change of party affiliation has been produced. In fact, the private respondent as an independent candidate has supported the party which raises a voice against any irregularity. Therefore, the order dated 8th June 2010 and 2nd August 2010 is justified and calls for no interference.

3. COUNSEL for the State-respondent submits that there has been compliance with section 213A and its sub-sections. In fact, the Prodhan and Upa Prodhan were elected in 2008 June and there is no reason why the petitioner should have filed the application now. All documents as per the requirements of law have been submitted by the private respondent; therefore no interference is called for at this stage.

4. COUNSEL for the petitioner in reply submits that the documents submitted are all prior to election being held.

Having considered the submissions of the parties a complaint was lodged against the private respondent by the petitioner on 24th May 2010. Such complaint was considered by the prescribed authority, namely, the BDO on 8th June 2010. At the hearing before the BDO letters addressed by the Prodhan in August 2008 and 2009 was submitted wherein the private respondent has been describ