JAY SENGUPTA,J. - (1.) The petitioner has challenged the impugned notice bearing Memo No. 1237/ KCK III dated 24.08.2020 issued by the Prescribed Authority and the Block Development Officer, Kaliachak III, Malda whereby a meeting for the election of Pradhan of Krishnapur Gram Panchayat was convened on 07.09.2020.
(2.) Learned Counsel appearing on behalf of the petitioner submitted as follows. In 2018 the petitioner contested for the post of Gram Panchayat member of Krishnapur Gram Panchayat under Kaliachak III Panchayat Samity, Malda as a candidate affiliated by the All India Trinamul Congress Party. He was elected there. Thereafter a meeting was held for election of Pradhan. His name was proposed by a member and seconded by another and the petitioner was finally elected as the Pradhan. Soon thereafter, an application for disqualification under Section 213A of the West Bengal Panchayat Act, 1973 was filed by the respondent number 6. The petitioner in the meantime filed a writ application being WP 6509 (W) of 2020, inter alia, challenging the application for disqualification. Subsequently, the Prescribed Authority disqualified the petitioner by an order dated 17.08.2020, which was communicated to the petitioner on 20.08.2020. The petitioner preferred an appeal against the order of disqualification. But, the same was not taken up for hearing. A reference was made to Sub-section (12) of Section 213A of the Panchayat Act. It was contended that a person can be declared as disqualified only after the Appellate Authority rejected the appeal against a disqualification. The procedure for appointing a new Pradhan should not have started when the appeal period had not expired. In other words, the filing of an appeal shall act as an automatic stay on any further proceeding. On this, reliance was placed on an unreported decision of the Hon'ble Bombay High Court passed in WP 1014/2014: Tata Tele Services (Maharashtra) Limited Versus The Ministry of Finance, Department of Revenue and Others. Moreover, no formal order of removal was passed in respect of the present petitioner. Besides, an Upo-pradhan, if appointed in the meantime, could very well discharge the duties of a Pradhan and in view of the same, there was no question of the work of the Panchayat getting adversely affected.
(3.) Learned Counsel appearing on behalf of the State submitted as follows. Section 213A (12) of the Panchayat Act dealt with the finality as regards the disqualification of a member in case an appeal was moved and decided. However, it was Section 213A (2) that dealt with the finality of a disqualification so far as the proceeding before the Prescribed Authority was concerned. The term appearing in Sub-section (2) that the same was subject to the provision of Sub-section (12) of Section 213A only indicated that in the event the Appellate Forum overturned the disqualification ordered by the Prescribed Authority, the same would prevail over such disqualification. But, it did not indicate that by preferring an appeal, the petitioner could enjoy an automatic stay. Unlike in the case of Section 357 (2) of the Code Criminal Procedure, the present statute did not provide for any such automatic stay in the event an appeal was filed. On the point that a mere filing of an appeal did not amount to stay, reliance was placed on the decisions of this Court in Golam Momen vs Assistant Commission of Income Tax & Ors. , 2003 263 ITR 69, of the Hon'ble Delhi High Court in Kiran Lohia vs State,2020 SCCOnlineDel 1 and of the Hon'ble Madras High Court in S.P.A. Suruliappa Nadar Versus Collector of Central Excise & Customs, Madurai and Others,1974 SCCOnlineMad 364. Moreover, it was not that an Upo-pradhan was not appointed in the instant case. The Upo-pradhan had taken charge on 18.06.2020. However, for a proper running of a Panchayat it was absolutely necessary that a full-fledged Pradhan was appointed. In the event the petitioner succeeded in his appeal, he would be reinstated as a member and if he enjoyed majority support he could become a Pradhan. There was no legal or justifiable reason for the petitioner to seek intervention of this Court at this stage.;