- (1.) Heard the learned Advocates appearing for the parties.
(2.) Assailing the interim order dated 1st July, 2010 passed by the learned trial Judge in W.P. No.10359(W) of 2010, this appeal has been filed. This application for stay has been moved today upon notice to all the parties. In the writ application, challenge was made assailing the order dated 5th April, 2010 passed by the Appellate authority under Section 213A(12) of the West Bengal Panchayat Act, 1973 who confirmed the decision passed by the Prescribed authority under Section 213A(7) of the said Act. The Prescribed authority heard the re-verified petition in terms of the direction of the Division Bench of the High Court at Calcutta passed in MAT. No.1184 of 2009.
(3.) The short fact is required to deal with to pass interim order at this stage. A complaint was filed by the leader of a recognised political party, namely, the Communist Party of India (Marxist) praying for appropriate order of disqualification of respondent Nos. 1 to 4 alleging, inter alia, that they voluntarily had given up the membership of the political party, Communist Party of India (M), under whose symbol those respondents contested the election in Panchayat Samity and were elected as member in the Panchayat Samity. Before the Prescribed authority, the said respondents filed respective affidavits contending, inter alia, that they voluntarily left the political party alleging corruption in that party. It appears that before filing of the complaint by the leader of the said political party, the respondents aforesaid themselves filed an application to the Prescribed authority on 7th July, 2009 contending, inter alia, that they had left the political party, C.P.I.(M) and joined the political party, Indian National Congress. Considering the statutory provision, the Prescribed authority rejected the contention raised by the present respondents that the proceeding should be decided on the basis of the 2nd proviso of Clause (b)of Section 213A(1) of the said Act. In appeal, similar stand was taken and that was rejected. The Prescribed authority and the Appellate authority both were satisfied about applicability of Section 213A(1)(a)(i) to disqualify the respondents for remaining as member of the Panchayat Samity and thereby for their removal. As per order of the Division Bench earlier, the matter was re-heard taking note of the complaint filed by a leader of the said political party under Section 213A (7) of the said Act wherein also there is a provision under Clause (a)(i) to this effect that in the event of voluntary cessation of membership from any political party under whose symbol candidate was elected, he would be liable to be declared as disqualified to remain as member and thereby will suffer removal from the Panchayat Samity. Section 213A(1)(a) & (b)and sub-section (7) which are relevant to pass the interim order, read such: "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 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: Provided that the prescribed authority shall not declare any member to be disqualified under this section without giving to such member a reasonable opportunity to represent his case and to be heard in person: Provided further that an elected member referred to in sub- clause (ii) of Clause (a) shall not, on the prescribed authority being satisfied in this behalf, be declared to be disqualified, if- (a)The action of such member was taken on obtaining prior permission of, or was condoned by, such recognised political party, or (b)Such member claims that he and any other members of such recognised 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 recognised political party in the Panchayat and that all the members of such group have voluntarily given up their membership of such recognised political party, or (c) The former recognised political party of the member merges with another recognised political party and he claims that he and other members of his former recognised political party, or (i) have become member of such other recognised political party or of a new recognised political party formed out of merger, as the case may be, or (ii) have not accepted the merger, and from the time of such merger, he and such other members constituting not less than one- third of the total number of members set up by the former recognised political party in the Panchayat, have opted to remain members of the former recognised political party or have formed a new recognised political party. (7) The Leader of any recognised political party referred to in sub-section (3) may at any time file a petition endorsed by the General Secretary, or, if there is no General Secretary, of the district unit of such recognised political party to the prescribed authority referred to sub-section (1) stating that- (a)Ohe or more members of such recognised political party have- (i) voluntarily given up his or their membership of such recognised political party, or (ii) have exercised the voting right contrary to the manner of voting of the majority members set up by such recognised political party in the Panchayat, or (b)The member referred to in sub-section (4) has voluntarily given up his membership of the recognised political party that set him up, or (c) The member referred to in sub-section (5) has joined a recognised political party on the expiry of six months from the date of election, and that such member or members should be declared to be disqualified under sub-section (1) and should be removed from the Panchayat.";