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2016 Supreme(Cal) 1044
IN THE HIGH COURT OF CALCUTTA
ARIJIT BANERJEE, J.
Arjaul Hoque - Appellant
Versus
The State of West Bengal and Ors. - Respondents
WP 34032 (W) of 2014
Decided On : 04-08-2016
For the Appellant : Bikash Ranjan Bhattacharjee, Sr. Adv., Partha Sarathi Deb Barman and Md. Sarwar Jahan, Advs.
For the Respondents: Biswajit De and K.M. Hossain, Advs.
The second proviso to Section 213A(1) of the West Bengal Panchayat Act, 1973, which protects certain members from disqualification, does not apply to members who voluntarily give up their membership of a recognized political party.
Headnote:
WEST BENGAL PANCHAYAT ACT - SECTION 213A - DISQUALIFICATION OF MEMBERS - INTERPRETATION - VOLUNTARY GIVING UP OF PARTY MEMBERSHIP - PROTECTION FROM DISQUALIFICATION - APPLICABILITY OF SECOND PROVISO.
Fact of the Case:
A writ petition was filed challenging the orders of the Prescribed Authority and the Appellate Authority rejecting the petitioner's application for disqualifying certain members of a Panchayat for voluntarily giving up their membership of a recognized political party.
Finding of the Court:
The court held that the second proviso to Section 213A(1) of the West Bengal Panchayat Act, 1973, which protects certain members from disqualification, applies only to members who exercise their voting right contrary to the manner of voting of the majority members set up by the concerned political party, and not to members who voluntarily give up their membership of the concerned political party.
Issues: Whether the second proviso to Section 213A(1) of the West Bengal Panchayat Act, 1973, applies to members who voluntarily give up their membership of a recognized political party.
Ratio Decidendi: The court interpreted the plain grammatical meaning of the words of the second proviso to Section 213A(1) and held that it clearly applies only to members referred to in sub-Clause (ii) of Clause (a) of the said sub-section, i.e., members who exercise their voting right contrary to the manner of voting of the majority members set up by the concerned political party.
Final Decision: The court set aside the orders of the Prescribed Authority and the Appellate Authority and remanded the matter back to the Prescribed Authority for reconsideration in accordance with the observations made in the judgment.
Arijit Banerjee, J.
1. In this writ petition the short question that arises for consideration is a true and proper interpretation of Sec. 213A(1) of the West Bengal Panchayat Act, 1973 (in short the 'Act'). The petitioner's case is that in the Panchayat election of 2013, he was elected as a member of Harishchandrapur-I Panchayat Samity, Malda (in short the said 'Panchayat'). Subsequently, in a meeting conducted by the 14 elected members of the said Panchayat, the petitioner with party affiliation of a particular political party (CPIM) was selected as the party leader of that political party in respect of the said Panchayat. The said Panchayat consists of 21 elected members out of whom 14 members including the petitioner were elected with party affiliation of CPIM, 2 members were elected with party affiliation of All India Forward Bloc, and the remaining 5 members were elected with party affiliation of Indian National Congress.
2. The petitioner received a letter dated 14 November, 2014 written by the respondent Nos. 7 to 12 who had been elected with party affiliation of CPIM, communicating that they had voluntarily given up their memberships of CPIM and had formed a separate group (Independent). In the above factual background the petitioner made an application on 22 November, 2014 under Sec. 213A of the said Act before the Prescribed Authority praying for cancellation of Panchayat membership of the respondent Nos. 7 to 12.
3. By an order dated 24 November, 2014 the Prescribed Authority rejected such application holding as follows:--
"As per Sec. 213A(1) of the West Bengal Panchayat Act, 1973, the prescribed authority shall not declare any member to be disqualified under this section, if such member claims that he and any other members of the recognized political party in the Panchayat constitute a group representing a faction consisting of not less than one-third of the total number of members set up by such recognized political party in the Panchayat and that all the members of such group have voluntarily given up their membership of such recognized political party.
Since 6(six) members mentioned in your complaint constitute more than 1/3 (one third) of the elected members of the party, they do not come under the purview of Sec. 213A(1) of the said Act.
Hence, your petition U/s. 213A(1) is hereby rejected."
4. The petitioner preferred an appeal before the Appellate Authority being the District Magistrate, Malda, which was dismissed by an order dated 19 December, 2014.
5. Being aggrieved by the orders of the Prescribed Authority and the Appellate Authority the petitioner has filed the instant writ petition challenging the said two orders. The sole question that falls for determination is whether the Prescribed Authority and the Appellate Authority were correct in rejecting the petitioner's application for disqualifying the respondent Nos. 7 to 12 in the facts of the present case.
6. Sec. 213A(1) and (2) of the said Act as amended by the West Bengal Panchayat (Amendment) Act, 2014, which took effect on 1 June, 2014 provides as follows:--
"S. 213A. (1) Notwithstanding anything to the contrary contained in this Act or in any other law for the time being in force, the prescribed authority for such Panchayat as may be specified by notification in this behalf, may, subject to the other provisions of this section, declare, for reasons to be recorded in writing, a member of such Panchayat to be disqualified for being a member thereof, if-
(a) He is an elected member set up by a recognized political party and has-
(i) Voluntarily given up his membership of such recognized political party, or
(ii) Exercised the voting right contrary to the manner of voting of the majority members set up by such recognized political party in such Panchayat; or
(b) He is an elected member not set up by any recognized political party and he has joined a recognized political party on the expiry of six months from the date of election:
Provided that the prescrib
