- (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. (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 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. "
(3.) 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. ";