SRI MOHAN JHA Vs. STATE OF BIHAR
LAWS(PAT)-1979-4-16
HIGH COURT OF PATNA
Decided on April 18,1979

SRI MOHAN JHA Appellant
VERSUS
STATE OF BIHAR Respondents

JUDGEMENT

Birendra Prasad Sinha, J. - (1.)The question for consideration in this case is whether upon the establishment of a Gram Sabha under the provisions of the Bihar Gramdan Act, 1965 (hereinafter called the Gramdan Act), a Gram Panchayat established under the Bihar Panchayat Raj Act, 1947 (hereinafter called the Panchayat Raj Act) shall cease to exist only cease to function in respect of the area within the jurisdiction of the Gram Sabha.
(2.)The question has come up for consideration in the following circumstances. There is a Gram Panchayat called Bajraha Gram Pancbayat in the district of Madhubani, which was established under the provisions of the Panchayat Raj Act. It consists of three revenue villages, namely, Gainaur Munitol, Muralia Chak and Bajraha. Some of these revenue villages were declared as Gramdan villages under the provisions of the Gramdan Act by a notification published in the Bihar Gazette, dated the 30th October, 1971. A Gram Sabha was also formed and the petitioner Sri Mohan Jha was elected its President. By a notification dated the 25th of May, 1974, published in the Bihar Gazette, dated the 3rd of June, 1974, the Governor of Bihar in exercise of the powers conferred by section 28 of the Gramdan Act, as amended by Ordinance No. 47 of 1974, was pleased to empower some Gram Sabhas to exercise all powers, duties and functions of the Gram Panchayat established under the Panchayat Raj Act within the limits of their respective jurisdictions. Ganaur Munitol Gram Sabha of which the petitioner was President was also empowered to exercise the functions of the Gram Panchayat. The Bihar Bhoodan Yagna Committee also informed the petitioner that Ganaur Munitil Gram Sabha had been authorised to exercise all the powers, duties and functions of the Gram Panchayat within its territorial jurisdiction (vide Annexure 3). It appears that thereafter there was some proposal by the Election Officer and the Director of the Gram Panchayats for excluding Gramdan villages from the Gram Panchayats concerned and to divide the villages, if necessary. The Block Development Officer, Bisfi, by his letter dated the 4th April, 1978, sought a clarification from the District Panchayat Election Officer regarding the Gramdan villages in view of the impending election of the Gram Panchayats. He wanted to know whether the election programme for the Panchayat elections was to be published after excluding the Gramdan villages or after a fresh notification establishing a Gram Panchayat for the remaining villages A list of the Gramdan villages seems to have been sent by the Gramdan Officer to the District Panchayat Officer on 17.4.78 which includes village Ganaur Munitol (vide Annexure 7). The Office secretary of the Bihar Bhoodan Yagna Committee wrcte a letter to the District Magistrate, Madhubani, on the 6th of May, 1978, not to hold the election of Bajraha Gram Panchayat inasmuch as the villages within the said Gram Panchayat had become Gramdan villages A programme for the election of Bajraha Gram Panchayat was published fixing 15.6.78 as the date of election without excluding the Gramdan villages of which the petitioner is President.
(3.)The Bihar Panchayat Raj Act, 1947 (Bihar Act VII of 1948) came into force with effect from the 3rd of March, 1948. It provides for the establishment and constitution of a Gram Panchayat in every village or part of different villages. Upon such establishment, the Gram Panchayat becomes a body corporate by the name specified in the notification with a perpetual succession and a common seal. The object of this Act was to establish and develop local self-government in the village community of the State of Biharr. The duties and functions of a Gram Panchayat and enumerated in Chapter III ot the Panchayat Raj Act. The executive functions of the Gram Panchayat are vested in the executive Committee whose head shall be known as the Mukhia, who will be elected in the prescribed manner. Section 14 enumerates the compulsory duties of the Gram Panchayat and section 15 enumerates the supplementary duties of the Gram Panchayat. Sections 16 to 24 enumerate the powers of the executive committee and section 28 lays down certain special powers of the Mukhia during emergency. Under Chapter V, the Gram Panchayat may acquire land to carry out any purpose of the Act with the Gram Panchayat Fund. Under Chapter IV, some powers have been given for the levy of taxes by the Gram Panchayat. Chapter VII deals with establishment, powers, duties and procedures of Gram Cutcherry and Benches thereof. A Bench of the Gram Cutcherry has jurisdiction concurrent with that of the criminal court for trial of certain offences. Section 65 deals with the exclusive civil jurisdiction of a Bench of the Gram Panchayat. Chapter IX deals with the disqualification of a Mukhia or Sarpanch and other office bearers of the Gram Panchayat and Chapter X deals with the miscellaneous provisions regarding the power to make rules etc. The Bihar Gramdan Act, 1965 (Bihar Act 4 of 1965) provides for the establishment of Gramdan villages and for matters connected therewith. This Act seems to have been first amended by the Bihar Gramdan Amendment Act, 1966. Later, Bihar Gramdan (Second Amendment) Ordinance, 1974 (Bihar Ordinance no. 93 of 1974) was promulgated substantially amending the Bihar Gramdan Act, 1965. The Gramdan Act was finally amended by the Bihar Gramdan (Amendment) Act, 1978. This amendment virtually repeals the original Act by substituting new provisions. Section 3 of the Gramdan Act, as it originally stood, and which has been retained, provides that the provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force. Section 8 of the Gramdan Act, as amended, provides for declaration of a village as Gramdan village and section 9 of it provides for the establishment ana constitution of the Gram Sabhas. Wherein a village (a) the extent of lands in respect of which the declaration made under section 5 and under section 7 have been confirmed is not less than 51 per cent of the total extent of lands held by owners residing in that village, and (b) the number of persons of the village in respect of whom declarations under section 5, and filed under section 7, have been confirmed, is not less than 75 per cent of the persons residing in that village, the Chairman, may after making such enquiry in such manner as may be prescribed, by notification in the official Gazette, declare that village to be a Gramdan village from the date of the notification under section 8. The Gram Sabha of the Gramdan village so notified shall be deemed to have been established by the Government under section 9 where a part of revenue village has been declared to be Gramdan village. On an application being filed by the Gram Sabha, the Collector may separate that part from the rest of the revenue villages and register it as a separate revenue village. Section 13 provides that the Gram Sabha shall in the manner and subject to the qualifications prescribed elect a Sabhapati, a Nidhipal, a Mantri and members of the executive committee to exercise such powers and discharge such duties as may be prescribed. Chapter III-A makes provisions for land management and constitution of a land-pool. Section 20 provides that all land revenue, rent ceases, rates and taxes due in respect of lands situated in the Gramdan village shall be payable to the Gram Sabha by the persons liable for the same. Chapter III-B provides for the Gram Sabha and welfare and development of the Gramdan village. Section 28 in this Chapter has been substituted for the original section 28 of the Gramdan Act. Since we are principally concerned with this section, it would be worthwhile reproducing the relevant clauses. It reads as under :
"28. Gram Sabha may be empowered to function at Gram Panchayat.- (1) The Government may at the request of a Gram Sabha by notification in the official Gazette declare that the Gram Sabha shall exercise all powers and discharge all duties and functions of the Gram Panchayat in relation to the area within the jurisdiction of the Gram Sabha (hereinafter in this section referred to as the said area); (2) Upon the issue of a notification under sub-section (1)- (i) the Gram Panchayat which functioned immediately before the date of notification, shall in relation to the said area, cease to function therein ; (ii) all the powers, duties and functions attaching to the Gram Panchayat under the Bihar Panchayat Raj Act, 1947 (Bihar Act VII of 1948), shall in relation to the said area attach to the Gram Sabha, and accordingly the Gram Sabha shall exercise the powers and discharge the duties and function aforesaid ; (iii) the provisions of the Bihar Panchayat Raj Act, 1947 (Bihar Act VII of 1948), shall subject to such restrictions and modifications as the Government may specify in the notification, apply to the Gram Sabha as if it were a Gram Panchayat constituted under the law for that village. (iv) the Gram Sabha shall be entitled to all the assets and subject to all the liabilities of the Gram Panchayat as on the date of notification in so far as such assets and liabilities are relatable to the said area : Provided that a hat or bazar situated within the area of a Gram Sabha and which was managed by the Gram Panchayat within whose territorial jurisdiction such hat or bazar lies, shall continue to be managed by the Gram Panchayat, and a portion of the income thereof shall be given to the Gram Sabha according to the ratio which the population of the Gram Sabha bears to the whole population of the Gram Panchayat area."
I have given a narrative of the different provisions of the two Acts merely to show that the powers and duties of a Gram Panchayat and a Gram Sabha are almost identical. The officers of the Gram Panchayat are elected in a democratic manner whereas those of the Gram Sabha are almost nominated. The purpose of both these Acts, however appears to be to decentralise the administrative and judicial powers and to develop the local self-government at the village level.


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