An elected official cannot be permitted to be removed unceremoniously without following the procedure prescribed by law: Tripura High Court
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. The judgement was passed by the High Court of Tripura in the case of Shri Debasish Mazumder &amp; Ors v. The State of Tripura &amp; Ors [W.P.(C) No. 319 of 2020] by Single Bench consisting of Hon’ble Justice Mr Akil Kureshi &amp; Justice S.G.Chattopadhyay. Petitioners are the elected members of Bokafa Panchayat Samiti in South Tripura District, have challenged the order passed by the District Magistrate and Collector of South Tripura District 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 contrary to the direction of the party. Learned counsel 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 before the meeting. ii) Admittedly, 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 before 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. Learned Counsel appearing for the respondent 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 the learned counsel that the minutes of the meeting has confirmed that the party whip was read over to the petitioners. The party whip indicates that the elected members including the petitioners were asked to vote against the no-confidence motion which was brought for the removal of the elected Chairman 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.
HIGH COURT OF TRIPURA W.P.(C) No. 3120 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 5. Smti. Sujata Das wife of Sri Mithun Natta Resident of Betaga P.O. and P.S. Betaga District South Tripura. ..Petitioner(s). 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 MogPanchayat Officer Bokafa RD Block Notice to be served through the Block Development Officer Bokafa RD Block Bokafa South Tripura. 6. Sri Anish Debnath Assistant Director of Panchayats Office of the South Tripura Zilla Parishad Belonia South 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 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 11. Sri Sridam Das son of late Monoranjan Das resident of Kanchan Nagar ... ...Respondent(s). P.O. and P.S. Shantir Bazar District South Tripura. For the Petitioner(s) For the Respondent(s) Date of hearing Date of delivery of Judgment and Order Whether fit for reporting Mr. N.Das Adv. Mr. D. Bhattacharjee Govt. Advocate. 08.02.2021 22.03.2021 Yes. B E F O R E HON’BLE THE CHIEF JUSTICE MR.AKIL KURESHI HON’BLE MR. JUSTICE S.G.CHATTOPADHYAY JUDGMENT S.G.Chattopadhyay J] 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. The said petitioners were elected as members of Bokafa Panchayat Samiti in South Tripura from Bharatiya Janata Partyin 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 20.01.2020to the District Panchayat Officer South Tripuraseeking 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 requested the said members to submit their proposal in Form 4 in terms of sub rule(2) of Rule 23 of the Tripura Panchayats Rules 1994. Accordingly they submitted the proposal in Form 4 in terms of the advice of the District Panchayat Officer. The District Panchayat Officer 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 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 24.02.2020removed Sri Sridam Das Respondent No.11 from the office of the Chairman of the said Panchayat Samiti. Thereafter the District Magistrate and Collector 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 of sub section 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 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. 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 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 DebnathAssistant 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 76of the Panchayats Act 1993. 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. We have heard Mr. N.Das learned advocate appearing for the petitioners and Mr. D. Bhattacharjee learned GA appearing for the State respondents. following contentions: Counsel appearing for the petitioners has raised the 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. 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 meetinghas confirmed that the party whip was read over to the petitioners. The party whip 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. We may recall that the District Magistrate and Collector South Tripura by the impugned order dated 27.03.2020 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. Section 82 of the Tripura Panchayats Act 1993 pertaining to removal of Chairman Vice Chairman of Panchayat Samiti provides as under: A Chairman or a Vice Chairman of Panchayat “82. 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 of Section 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.” 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 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 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 rulethe 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. 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 PanchayatRules 1994. On receipt of the said notice form a majority of the elected members the District Panchayat Officer issued notice dated 01.02.2020 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 Officerwould 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. 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 meetingwas drawn up and signed by the duly appointed Presiding Officer the Observer Respondent No.6] and the President of the meeting 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 of the Tripura Panchayats 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.” Smt. Anita Mog Presiding Officer of the said meeting Respondent No.5] by her letter dated 14.02.2020 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 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 Officervide 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 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. issued by Whereas as per Rule 23(2) of the Tripura Panchayats Rules 1994 and in pursuance of Section 82 of The Tripura Panchayats Act 1993 a notice 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 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 vide No.F.29 DPO S Misc 2018 1164 Date: 17 02 2020 it is commonly brought to notice of the undersigned that out of nineElected 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 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 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 per Rule23(6) Rules(Administration) 1994 I the District Panchayat Officer of South Tripura District to remove Sri Sridam Das from the post of Chairman of Bokafa Panchayat Samiti. The removed Chairmanis 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. the Tripura 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. South Tripura District Belonia” District Panchayat Officer Thereafter the District Magistrate and Collectorvide 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 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 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 or both of Section 76 of the Act. 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. 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 clauseof 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 “Annexure 7 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 2)That sir 3)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. 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 Panchayatof 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. Copy to: 1) The District Panchayat Officer South Tripura District Belonia for favour of kind Member Bokafa Panchayat Samity Yours sincerely On receipt of the reply received from the petitioners the District Magistrate and Collector 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 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 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 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 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 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 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 & 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 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 SamitiMain 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. 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. 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 PanchayatRules 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. the Majority Member of It is mentionable here that the minutes of the meeting was carried out by a resolution 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.” 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. Counsel of the petitioners submitted that the burden of proof of service of the party whip lies on the respondents and the order does not survive. respondents having failed to prove the service their disqualification 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 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. 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 .” 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 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. 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 “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 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 “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 : 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 1 SCC 691 : AIR 1982 SC 983] Mohan Lal Tripathi v. District Magistrate Rae Bareily4 SCC 80 AIR 1993 SC 2042] and Ram Beti v. District Panchayat Raj Adhikari1 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.” Keeping in view the said observations of the Apex Court and the discussions made above the impugned order dated 27.03.2020 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 CJ Saikat Sarma P.A 