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1979 DIGILAW 350 (CAL)

Naba Kumar Manna v. State Of West Bongal

1979-10-24

SABYASACHI MUKHARJEE

body1979
JUDGMENT 1. THE petitioner states that the petitioner is a citizen of India and is a tax and rate-payer of the No. 5 Maithana Gram Panchayat and therefore, is vitally interested in its lawful functioning. The petitioner further states that Maithana Gram Sabha could not be constituted under the West Bengal Panchayat Act, 1957 because its constitution was successfully challenged in this. Court and the appointment of an administrator was also challenged by the petitioner in this Court and, therefore, the petitioner claims that the petitioner continues to be, and still is, the President of Maithana Union Board. The petitioner, therefore, states that there is no Maithana Gram Sabha to form the basis of the first election under the West Bengal Panchayat Act, 1973. In a supplementary affidavit filed by the petitioner, affirmed on the 19th March 1979, the petitioner has further stated that by virtue of the operation of section 4 of the Panchayat Act, 1957, the bengal Village Self Government Act, 1919 and the Bengal Local Self Government Act, 1885 continued to operate and Maithana Gram Sabha was not constituted in the eye of law. The petitioner has also taken certain further points which I shall discuss later. In the affidavit of Swadesh Ranjan Bera, affirmed on 29th June 1978 on behalf of the respondent, it has been stated, inter alia, as follows: "(I) That the State Government of West Bengal in exercise of the powers conferred by Section 3 of the West Bengal Panchayat Act, 1957 (West Bengal Act 1 of 1957) constituted the following Gram Sabha specifying the names and local limits of each Gram Sabha in Ramnagar II Development Block in the District of Midnapore under Notification No. 6176/panch/ip-75l63 dated 30th December 1963: (i) Maithana Gram Sabha (ii) Bhuianjibar Gram Sabha (iii) Baksispur Gram Sabha. (iv) Dakshin-Kalyanpur Gram Sabha. (v) Damuria Gram Sabha. (vi) Mandarpur Gram Sabha. (vii) Tentultala Gram Sabha. (viii) Sonakania Gram Sabha. (II) That the said Notification was published in Part I of the Calcutta Gazette Extra-Ordinary dated January 3, 1964 at pages 14 and 15. (III) That the Slate Government of West Bengal in exercise of the powers conferred by Section 25 of the West Bengal Panchayat Act, 1957 (West Bengal Act I of 1950) constituted Maithana Anchal Panchayat comprising the following gram Sabha by the Notification no. 6177/panch/lp-75/63 dated 30th december 1963. (III) That the Slate Government of West Bengal in exercise of the powers conferred by Section 25 of the West Bengal Panchayat Act, 1957 (West Bengal Act I of 1950) constituted Maithana Anchal Panchayat comprising the following gram Sabha by the Notification no. 6177/panch/lp-75/63 dated 30th december 1963. (i) Maithana (ii) Bhuianjibar (iii) Baksispur (iv) Dakshin-Kalyanpur (v) Damuria (vi) Mandarpur (vii) Tentultala (viii) Sonakania. (IV) That the Notification referred to in the foregoing Para was published in Part I. The Calcutta gazette Extraordinary dated January 3, 1964 at pages 16 and 16a. (V) That the election to Maithana Anchal Panchayat under the west Bengal Panchayat Act, 1957 could not be held because of the orders of the Hon'ble High Court and the Gram Sabhas comprised in maithana Anchal Panchayat and the Maithana Anchal could not function under the West Bengal panchayat Act, 1957. But by virtue of the Gazette Notifications referred to above the delimitation of the Gram Sabhas and the Anchal Panchayat were complete. " 2. IN support of this petition under Article 226 of the constitution challenging the election to Maithana Gram Sabha held on the 4th day of June 1978, title petitioner has asserted as mentioned hereinbefore that there was no Maithana Gram Sabha under the West Bengal Panchayat Act, 1957 and, as such there was no constituency for the first election for the same Gram Sabha under the west Bengal Panchayat Act 1973. In order to appreciate this contention, it is necessary to refer to the provision of section 4 of the West Bengal Panchayat act 1957 which provides inter alia as follows : "4. Repeal and amendment of certain enactments (1) On the constitution of a Gram Sabha or Gram sabhas in an area as aforesaid, the enactments specified in column 3 of schedule I shall from the date of election or appointment of the first Adhyaksha of the Gram Panchayat under section 11 or section 14 be repealed or amended in the area concerned to the extent and in the manner specified in column 4 thereof." In column 3 of Schedule I the acts mentioned, inter alia, are certain provision of the West Bengal Local Self-Government Act, 1885 and the entire act of the Bengal Village Self-Government Act, 1919. It is also necessary in this connection to refer to the relevant provisions of section 3 of the west Bengal Panchayat Act 1973, which provides as follows : "3. Gram (1) The State. Government may, by notification, declare for the purposes of this Act any mouza or part of a mouza or group of contiguous mouzas or parts thereof to be a Gram. (2) The notification under subsection (1) shall specify the name of the Gram by which it shall be known and shall specify the local limits of such Gram. (3) The State Government may, after making such enquiry as it may think fit, and after consulting the views of the Gram panchayats concerned, by notification (a) exclude from any Gram any area comprised therein ; or (b)include in any Gram any area contiguous to such Gram or (c)divide the area of a Gram so as to constitute two Or more gram; or (d)unite the areas of two or more grams so as to constitute a single Gram. " 3. SECTION 4 of the said Act provides inter alia as follows: 4. Gram Panchayat and its constitution (1) For every Gram the State government shall constitute a Gram panchayat bearing the name of the gram. (2) Persons whose names are included in the electoral roll of the west Bengal Legislative Assembly for the time being in force pertaining to the area comprised in the gram, shall elect by secret ballot at such time and in such manner as may be prescribed, from among themselves such number of members not being less than seven or more than twenty five as may be determined by the prescribed authority in accordance with such rules as may be made in this behalf by the State Government, and the members so elected, shall be the members of the Gram Panchayat. " 4. " 4. THE West Bengal Panchayat Amending Act 1978 amended certain provisions of the West Bengal Panchayat Act 1973 and by section 3 of the amending Act it is provided that in the Act after section 3 of the 1973 Act the following should be provided " (3a) Notwithstanding anything contained in the foregoing provisions of this section, for the purpose of first election under this Act the local limits of jurisdiction of a Gram Sabha constituted under the West Bengal Panchayat Act, 1957, (West Bengal Act 1 of 1957), shall form a constituency : provided that the prescribed authority may, if it thinks it necessary so to do for the purpose of allocation of seats to a constituency, divide the local limits of jurisdiction of a Gram Sabha constituted under that Act into such number of the constituencies as the prescribed authority may think fit. " The petitioner's contention is that as there was no Adhyaksha elected under the West Bengal Panchayat Act, 1957 the Maithan Gram Sabha was not constituted under the said Act by virtue of section 4 of the West Bengal Panchayat Act, 1957. Therefore, in view of the provisions of Section (3a) of the West Bengal Panchayat Act, 1973 and amended by the Act of 1978 referred to hereinbefore there was no constituency for the 1st election held in June 1978 to the Maithan Gram Sabha. I have referred to the case of the petitioner that the petitioner has successfully challenged the constitution of the Maithana Gram Sabha under the West Bengal Panchayat Act, 1957. This contention is not specifically denied in the affidavit-in-opposition on behalf of the respondents. But it is stated as I have indicated before in the affidavit. filed on behalf of the respondents that in view of the order of the High Court the election of the Maithana Anchal Panchayat under the West Bengal Panchayat Act, 1957 could not be held and, therefore, the said Gram Panchayat could not function under 1957 Act The respondents have further stated in the said affidavit that by notification from time to time issued, the last of which was in 1974, the Maithan Gram Panchayat was constituted comprising of certain mouzas, particulars whereof have been given in the said affidavit on behalf of the respondents. Now, the point for consideration, its, whether in view of section (3a) of the West Bengal Panchayat Act 1973 as amended by the Act, 1978 it was necessary to form a constituency under the West Bengal Panchayat Act, 1957 or whether by virtue of the powers given under section. 3 read with section 4 sub-section (2) of the West Bengal Panchayat Act, 1973, the Gram Panchayat could be constituted by appropriate and proper notification independent of whether there was any constituency formed under the West Bengal Panchayat Act, 1957. The second question, that arises for consideration in this case, is, whether in view of the fact that no election of Adhyaksha could be held in view of the High Court's order the constitution of the Gram Sabha as such under 1957 Act in terms of section 4 of 1957 Act was not done in order to be constituency as contemplated under section (3a) of the west Bengal Panchayat Act 1973, assuming that sec (3a) was the only power to from constituency for the purpose of such election. Now in view of the language used, namely, the expression "notwithstanding anything contained in the foregoing provisions of this section" following after section 3 (1) (2) (3), in my opinion, for the purpose of first election the only power that the State Government had to form the constituency was the constituency of the West Bengal Panchayat Act 1957. This section specially in view of the subsequent expression which used the mandatory expression "shall form a constituency" in my opinion indicates that for the purpose of first election the Legislature was constituting or creating the constituency only by section (3a) and this was not an additional power or additional authority to the State Government but rather it substituted the original power to form the constituency along with certain mouzas by Notification under section 3 (1) (2) and (3) of the West Bengal Panchayat Act 1973. Therefore, it was obligatory to hold a valid election under the 1973 Act to have a Maithana Gram Sabha Constituency constituted under the 1957 Act. Therefore, it was obligatory to hold a valid election under the 1973 Act to have a Maithana Gram Sabha Constituency constituted under the 1957 Act. As I read the placement of Section (3a) and the expression used I cannot construe the subsection (3a) introduced by the amending act of 1978 either as an additional power or a power which reserves option to the State Government to choose either to issue Notification as contemplated under section 3 (1) (2) and (3) or to have the constituency on the basis of section (3a) of the Act. The Legislature has spoken in clear language that for the purpose of first election the constituency constituted under 1957 West Bengal Panchayat Act must form the constituency. If that be the position, then the Notifications issued subsequently by either 1956 Act and/or 1973 Act constituting Maithana Gram Panchayat comprising of certain mouzas becomes irrelevant for the purpose of first election. 5. NOW, apart from that the last Notification was issued in 1974 but the amending provision of section (3a) came into operation in 1978. Be that as it may, as I have mentioned before the amending provision makes it clear that the constituency under the West Bengal Panchayat Act, 1957 shall form he constituency. If that be the position, then the next question that arises for consideration is whether in this case there was any constituency under the West Bengal Panchayat Act, 1957. In order to form a constituency under the West Bengal Panchayat Act, 1957 that Act must come into operation. Now prior to this Act, 1957, certain provisions of the Bengal Local Self-Government act, 1885 and so far as the constitutions of the local bodies are concerned, the Bengal Village Self-Government Act, 1919 operated on the field. The Legislature in the 1957 Act by Section 4 repealed those provisions in certain contingencies. The contingency contemplated by section 4 by repealing of these Acts is "the date of election or appointment of the first Adhyaksha of the Gram Panchayat under section 11 or section 14" of the 1957 Act. Now, only on the election date or appointment of the first Adhyaksha of the Gram Panchayat as contemplated under section 11 of section 14 of the 1957 Act the Bengal Village Self-Government Act, 1919 stood repealed. Now, only on the election date or appointment of the first Adhyaksha of the Gram Panchayat as contemplated under section 11 of section 14 of the 1957 Act the Bengal Village Self-Government Act, 1919 stood repealed. Therefore, as in this case, it is an indisputable position that the first Adhyaksha of the Maithana Gram Panchayat under the 1957 Act could not function or could not be elected in view of the decision of the High Court referred to hereinbefore the Bengal Village Self-Government 1919 was not repealed so far as this Gram Panchayat was concerned. If that be the position, in my opinion, no constituency was created under the 1957 Act of the Maithan Gram Panchayat. If there was no constituency created then in view of section (3a) of the 1973 Act there could not be any election to the Maithan Gram Panchayat Act under 1973 Act. 6. A question similar to this arose in the matter of Babur All Sardar v. State of West Bengal disposed of by me on December 22, 1978. There what had happened was that there was an administrator appointed but the administrator was appointed on 23rd July 1976 but the petitioner moved and obtained an order of injunction on 5th September 1976 restraining the administrator from functioning. Therefore, I found that there was an interregnum between the appointment of the administrator and the injunction issued by the Court. Now in that interregnum period, the Bengal village Self-Government Act, 1919 stood repealed and on the issuance of the injunction by the Court the Repealed Act could not be revived. There also the injunction was pending and there was no finding that the original appointment of the administrator was invalid and the Rule was pending. In those circumstances, I could not hold that there was no first constituency created under the West Bengal Panchayat Act, 1957. But, here there is no question of any interregnum firstly and secondly as I have mentioned before the petitioner has asserted, which is not disputed, that he has successfully challenged the constitution of the Gram panchayat under the 1957 Act. Furthermore, it has been stated by the respondent that the election of Maithana Anchal Panchayat under the West Bengal Panchayat Act, 1957 could not be held by the order of this Court. Furthermore, it has been stated by the respondent that the election of Maithana Anchal Panchayat under the West Bengal Panchayat Act, 1957 could not be held by the order of this Court. In that view of the matter, it must be held that there was no constitution of the Gram Panchayat, under the 1957 Act in this case. Mr. Bagahi, appearing for the respondent Government, sought to urge that there was constitution but the functioning was restrained; but in order to be a valid constitution, the previous Village Self-Government Act has to be repealed and that could not be done until the election of the first Adhyaksha of the Gram Panchayat or the appointment of first Adhyaksha which admittedly could not be done. In that view of the matter, this point urged on behalf of the petitioner must be accepted. The Petitioner also sought to urge that there was necessity, in view of section 4 (2), of 1973 Act issue of fresh notification creating constituency on the dissolution of the Legislative Assembly at different times. But in view of section 4 (2) of the West Bengal panchayat Act, 1973, I do not think this contention can be accepted. 7. FOR the reasons, I have mentioned before, it must be held that there was no constituency under the west Bengal Panchayat Act, 1957, and as such there was no constituency for the first election under the 1973 Act, and therefore, the election held on the 4th day of June, 1978 to the maithana Gram Panchayat cannot be given effect to. The said election is, accordingly, set aside and the Rule is made absolute. In the facts and circumstances of the case, there will be no order for costs. Rule made absolute, no costs.