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2006 DIGILAW 153 (CAL)

SANTI RANJAN MIRDHA v. STATE OF WEST BENGAL

2006-03-15

JAYANTA KUMAR BISWAS

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J. K. BISWAS, J. ( 1 ) THE three petitioners, elected members of panjipara Gram Panchayat, Uttar Dinajpur, have questioned the vires of a provision of the West Bengal Panchayat Act, 1973. section 4 (2a) (ii ). ( 2 ) SECTION 4 of the West Bengal Panchayat Act, 1973 speaks of how a village panchayat shall be constituted. Sub-section (l) thereof says,"for every Gram the State Government shall constitute a Gram panchayat bearing the name of the Gram. " Sub-section (2) of that section 4 says how the members of the village panchayat shall he elected. Sub-section (2a)says, "the Gram Panchayat shall consist of the following members: (i) members elected under sub-section (2); (ii) members of the Panchayat Samiti, not being Sabhapati or Sahakari Sabhapati, elected thereto from the constituency comprising any part of the Gram. "sub-section (2a) was inserted by section 3 (2) of the West Bengal panchayat (Amendment) Act. 1992. The remaining sub-sections (3), (4)and (5) of that section 4 deal with (a) duty of the prescribed authority (i)to divide area of a village into constituencies, and (ii) to take consequential steps; (b) the requirement of notification regarding constitution of every village panchayat, and (c) the status of every village panchayat that it shall be a body corporate. ( 3 ) THE petitioners contend that clause (ii) of sub-section (2a) of section 4 of the West Bengal Panchayat Act, 1973 is ultra vires the provisions of the Constitution of India, Article 243c (2), which is :" (2) All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and, for the purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the panchayat area. " ( 4 ) ADVOCATE for the petitioners made a very short and precise argument that provisions in article 243c did not empower the legislature of the state to make the impugned piece of law providing for the representation of the members of the intermediate level panchayats in the panchayats at the village level. " ( 4 ) ADVOCATE for the petitioners made a very short and precise argument that provisions in article 243c did not empower the legislature of the state to make the impugned piece of law providing for the representation of the members of the intermediate level panchayats in the panchayats at the village level. His argument is that the constitution contemplated rather a contrary scheme, and that that is evident from the provisions in Article 243c (3), which is:" (3) The Legislature of a State, may, by law. provide for the representation - (a) of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a state not having Panchayats at the intermediate level, in the panchayats at the district level; (b) of the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level; (c) of the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly a Panchayat area at a level other than the village level in such Panchayat; (d) of the members of the Council of States and the members of the Legislative Council of the State, where they are registered as electors within - (i) a Panchayat area at the intermediate level, in Panchayat at the intermediate level; (ii) a Panchayat area at the district level in Panchayat at the district level. " ( 5 ) THE counter argument of advocate for the state is that no specific ground has been taken by the petitioners to challenge the clause in question. He referred me to the provisions in section 32a of the West bengal Panchayat Act, 1973, in support of his contention that the state legislature duly gave power to the village panchayats to delegate their powers, functions, and duties to their members. He cited to me the division Bench decision of this Court in Dr. Sukumar Mukherjee v. State of West Bengal and Ors. , reported at 1992 (1) CLJ 241 , to remind me of the grounds on which constitutional validity of a piece of law made by the legislature can be questioned. He cited to me the division Bench decision of this Court in Dr. Sukumar Mukherjee v. State of West Bengal and Ors. , reported at 1992 (1) CLJ 241 , to remind me of the grounds on which constitutional validity of a piece of law made by the legislature can be questioned. Advocate for the added respondents pointed out that the petitioners decided to approach the Court only when they realised that the bodies formed, and in which the members of the intermediate level panchayat found place, did not fulfill their expectations of cornering power in the manner they intended. ( 6 ) IT seems to me that the serious question of constitutional validity of the clause concerned raised by the petitioners failed to send a strong signal to the state about the potentiality of the issue. I am unable to appreciate the justification put forward by advocates for the respondents, facing with the situation. I do not see how the provisions in section 32a of the West Bengal Panchayat Act, 1973 can be of any relevance; and I do not find any merit either in the contention that the approach of the petitioners to the writ Court was an afterthought desperation. ( 7 ) IT is not correct to say that constitutional validity of section 4 (2a) (ii) was not challenged in the writ petition. Sufficient indication of the challenge was given in the writ petition. In paragraphs 16 and 18 (iv), it was contended that in view of provisions in Article 243c of the constitution all seats in the village level panchayats were to be filled only by persons chosen by direct election. It was contended that any law repugnant to that mandate would be ultra vires the provisions of that article. In prayer (b) the petitioners prayed for a mandamus declaring the clause concerned as ultra vires the provisions in Article 243c. ( 8 ) IN the opposition the respondents categorically asserted that section 4 (2a) was inserted into the statute by the state legislature in exercise of power given by Article 243c of the constitution. They said,"that the Article 243c (3) of the Constitution has provided for ex-officio membership in each tier of Panchayats for an organic linkage between the higher tier and lower tier of Panchayats as well as between the legislature and Panchayat. They said,"that the Article 243c (3) of the Constitution has provided for ex-officio membership in each tier of Panchayats for an organic linkage between the higher tier and lower tier of Panchayats as well as between the legislature and Panchayat. Following the provisions under Article 243 (3)of the constitution the West Bengal Panchayat Act has established an organic linkage among all the three tiers of Panchayats and sub-section (2a) under section 4, sub-section (2) (i) and (iii) under section 94 and sub-section (2) (i) and (iii) under section 140 provide the organic linkage between the Higher tier and lower tier of Panchayats as well as between the legislature and Panchayat. " ( 9 ) THEY further said, "while members as referred to under sub-section (2a) (i) denotes members directly elected from the constituencies of a Gram Panchayat, the members under sub-section (2a) (ii) are members directly elected to a Panchayat Samiti from the constituencies of a Gram Panchayat and the number of members to be elected to a Panchayat Samiti from a Gram Panchayat has been provided in rule 11 (i) of the West Bengal (Election) Rules, 1074. " It therefore cannot be said that the challenge thrown by the petitioners was not understood by the respondents. They clearly understood what was the principal issue in the case, and accordingly filed their pleadings. ( 10 ) THERE is no dispute regarding the propositions explained by their lordships of the Division Bench in the decision cited to me. My attention was specifically drawn to paragraph 14. 4 of the report. Here the question raised is to be decided by considering the provisions in Article 243c of the Constitution of India and section 4 of the West Bengal Panchayat act, 1973. And my reading and understanding of those provisions leads me to the same conclusion that advocate for the petitioners drew. In the name of establishing the constitutionally contemplated organic linkage between higher and lower tiers of the panchayats, it seems to me, the impugned piece of law tampered with the constitutional vision of keeping the conduct of affairs of the village level panchayats by the persons chosen for them by direct election free from any interference. In the name of establishing the constitutionally contemplated organic linkage between higher and lower tiers of the panchayats, it seems to me, the impugned piece of law tampered with the constitutional vision of keeping the conduct of affairs of the village level panchayats by the persons chosen for them by direct election free from any interference. ( 11 ) ACCORDING to the scheme of things mandated by Article 243c of the constitution it is only in the district and intermediate level panchayats that persons not chosen by direct election specifically for those forums can be sent on the strength of a legislation, if made by the state for the purpose. Power was given to the state legislatures to make law only for such purpose: not for the purpose for which the impugned piece was made by the state legislature. In my opinion, this transparent transgression of the constitutionally conferred limited power strikes at the clause in question fatally. 1 am unable to find a protective shield for it. ( 12 ) FOR these reasons I hold that clause (ii) of sub-section (2a) of section 4 of the West Bengal Panchayat Act, 1973 is ultra vires the provisions in Article 243c of the Constitution of India. It shall accordingly be deemed to be struck down. The writ petition is allowed to this extent. There shall be no order for costs in it. Writ petition allowed