Sakir Mondal @ v. State of West Bengal & Ors.

#3. Mr. Neguive Ahmed, learned Advocate for the petitioner submits that the petitioner produced paper cut-outs, electronic evidence including audio and video records showing defection by the respondent No.5 from his original party. However, neither the Prescribed Authority nor the Appellate Authority properly considered such evidence. There are evidences that respondent No.5 was seen under the banner of All India Trinamool Congress party which deems that he has voluntarily given up his membership of such recognised political party. Therefore, the Prescribed Authority as well as Appellate Authority erred in rejecting the prayer of the petitioner for disqualification of membership of 3 respondent no.5 under Section 213A of the West Bengal Panchayat Act, 1973 (hereinafter referred to as the Act of 1973). He seeks for setting aside of the impugned order and cancel the membership of respondent No.5.

#4. None appears on behalf of the State.

#5. Mr. Santanu Kumar Mitra, learned Senior Government Advocate, who usually appears on behalf of the State-respondents is requested to appear in this matter along with a junior of his choice. The appearance of the learned Advocates be regularised by the concerned authority.

#6. Let a copy of the writ petition along with annexure be served upon the learned Advocate for the State respondent.

#7. On the contrary, Mr. Santanu Kumar Mitra, learned Senior Government Advocate for the State submits that the petitioner has not adduced any documentary evidence from the concerned political party to substantiate that the private respondent no.5 has allegedly relinquished her membership from the Indian National Congress. The paper cut outs, audio and video records is insufficient to establish the factum of membership relinquishment by respondent no.5. He seeks for dismissal of the writ petition.

#8. Mr. Sarwar Jahan, learned Advocate for the respondent No.5 at the outset indicates that neither the application under Section 213A of the Act of 1973 nor 4 the memo of appeal has been annexed to the writ petition. No evidence has been produced respondent No.5 has voluntarily given up his membership from such recognised political party. Rather, during hearing before the Prescribed Authority, the respondent No.5 in his written statement has stated that he has been elected as a gram panchayat member of Katlamari-II Gram Panchayat with party affiliation of Indian National Congress and till date he is in the same party and as such, there cannot be any assumption or presumption of voluntary giving up of membership. He also indicates that there is no deeming provision under the West Bengal Panchayat Act to hold that the respondent No.5 has voluntarily has given up his membership. He also seeks for dismissal of the writ petition.

#9. Upon hearing the learned Advocates for the respective parties the only issue which has fallen for consideration is whether the impugned order of Appellate Authority, District Panchayat and Rural Development Officer, Murshidabad, respondent No.2 is proper.

#10. In order to examine such issue it would be apposite to reproduce relevant provision as embodied under Section 213A(1) of the Act of 1973 as hereunder: “213A. Disqualification on change of political party by Members of Panchayats.-(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 5 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 recognised political party and has- (i) voluntarily given up his membership of such recognised political party, or (ii) exercised the voting right contrary to the manner of voting of the majority members set up by such recognised political party in such Panchayat, or (b) he is an elected member not set up by any recognised political party and he has joined a recognised political party on the expiry of six months from the date of election :”

#11. Upon bare reading of the aforesaid provision it manifest that disqualification of a member of a panchayat on change of political party arises on two circumstances, if he is an elected member set up by a recognised political party, viz (i) voluntarily giving up membership of such recognised political party, (ii) exercised the voting right contrary to the manner of voting of the majority members set up by such recognised political party in such Panchayat. The case of the petitioner is precisely based on the first ground that the respondent No.5 voluntarily gave up his membership of such recognised political party. It is contended that the petitioner produced paper cut outs, audio and video electronic evidence in support of the fact that respondent no.5 voluntarily gave up his membership.

#12. Be that as it may, the order of the Prescribed Authority clearly records that the respondent No.5 has in his written statement stated that he was elected as a gram panchayat member of Katlamari-II Gram Panchayat with party affiliation of Indian National 6 Congress and till date he is in the same party. There are no evidences produced from the original party that he has given up his membership of Indian National Congress voluntarily. Admittedly, the authenticity of the documents such as paper cut outs, audio and video and other electronic evidences were not proved accordance with law. Thus, preliminary condition as envisaged under Section 213A of the Act of 1973 of voluntary giving up of membership of a recognised political party not being fulfilled and proved, the rigours of the said provisions is not attracted in the facts and circumstances of this case. In view of the above, it is found that there is no infirmity in the order passed by the Appellate Authority. Thus, the writ petition falls short of merit.

#13. With the aforesaid observation, the writ petition being WPA 30447 of 2024 is dismissed.

#14. Interim order, if any, stands vacated.

#15. All connected applications, if any, stand disposed of.

#16. There shall be no order as to costs.

#17. All concerned parties shall act in terms of the copy of the order duly downloaded from the official website of this Court. 7

#18. Urgent Photostat certified copy of the order, if applied for, be given to the parties on compliance of all necessary legal formalities. (Bivas Pattanayak, J.)