HITENDRA CHAKDRA CHOUDHURY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN this case there are three petitioners. They are voters of the West Bengal Legislative Constituency for the area included in the Bhagirathpur-Bahupara gram Sabha in P. S. Domkol,, in the District of Murshidabad. The Bhagirathpur-Babupara Gram sabha is a constituent Gram Sabha of Bhagirathpur Anchal Panchayat, which consists of ten Gram Sabhas, having been so constituted by a notification dated 9th August, 1963 published in the extraordinary issue of the Calcutta Gazette dated 16th August, 1963. The said Bhagirathpur Babupara Gram Sabha has been divided into three constituencies and each of the said constituencies have to elect three members to its Gram Panchayat and the 9 members of the Gram Panchayat have to elect 2 members to the Bhagirathpur Anchal Panchayat. For the election of members for the Gram Panchayat, 11 January, 1964 was the last date for filing nomination papers, 15th January, (1954) was the date fixed for scrutiny thereof, and the 24th February, 1964 was fixed as the date of election. For the election of three members from the constituency No. 1 of the said Bhagirathpur Babupara Gram Sabha, altogether 7 candidates filed nomination papers and the respondents Nos. 4, 5 and 6 were declared elected. For the election of two members by the Bhagirathpur babupara Gram Sabha to the Bhagirathpur Anchal Panchayat, 27th January, 1964 was fixed for the last date of filing nomination papers, 31st January, 1964 was fixed as the date for scrutiny thereof, and 11th March, 1964 way fixed as the date of election. For the election of two members to the Anchal Panchayat there were altogether 10 candidates. The respondent Nos. 7 and and were declared elected. 26th March, 1964 was fixed for election of Pradhan and Upa-Pradhan of the said Anchal Panchayat. On 24th March, 1964 this rule was issued calling upon the respondents to show cause why the said elections mentioned above of the constituency No. 1 of the Gram Panchayat and the Anchal Panchayat should not be set aside and why there should not be an injunction restraining the respondents from holding the election, of Pradhan and Upa-pradhan and for other reliefs. Pending the disposal of the Rule it was ordered that the names of the elected members of the Anchal Panchayat should not be published and that the election of Pradhan and Upa-pradhan should not be held.

(2.) IN this application, the validity of various provisions of the West Bengal Panchayat Act, 1956 (West Bengal Act I of 1957) (hereinafter referred to as the 'said Act') have been challenged. Reference will also have to be made to the rules framed under the said Act, known as the West Bengal Panchayat Rules, 1958. Before I proceed, to deal with the legal points taken, I should mention briefly the grievance of the petitioners as made in the petition. According to them, the constituency-wise voters' list was never published at all and the same is inaccurate, because a number of persons belonging to different gram Sabhas have been included in the constituency No, 1 of the Bhagirathpur-Babupara Gram Sabha, whereas a number of persons whose names appear in the West Bengal Assembly Voters' list in the area have not been enlisted in the voters' list prepared for the said Gram Sabha. It is then said that the candidates whose nomination papers have been accepted and who have been elected, are not entitled to stand for election, being defaulters in the payment of Union Board dues. It is said that the Gram Sabha and the Anchal Panchayat have been arbitrarily constituted and its numerical strength fixed arbitrarily. Before specifying the particular objections taken it would be convenient to examine the scheme and content of some of the provisions of the said Act. The said Act came into operation on the 24th January, 1957. The preamble states that it is an Act to establish Panchayats in rural areas of West Bengal and to provide for matters connected therewith. It extends to the whole of West Bengal, except the area to which the provisions of the Calcutta Municipal Act, 1951, the Bengal Municipal Act, 1932, the Cooch Behar Town Committee Act, 1903, the Cooch Bahar Municipal Act, 1944, the Chandernagore Municipal Act, 1955, and the Cantonments Act, 1924, or any parts or modifications thereof apply or may hero-after be applied. The operative sections of the Act shall come into force on such date or dates and in such area or areas as the State Government may, by notification, appoint, section 3 provides that when the said Act comes into force in any area, the State Government may, fey notification, constitute one or more Gram Sabhas within such area for the purposes of the said Act. In the notification, the State Government shall specify the name and the local limits of the jurisdiction of every gram Sabha. Section 4 provides that on the constitution of a Gram Sabha or Gram Sabhas in any area, the enactments specified in column 3 of Schedule i, shall stand repealed or amended in the manner specified in column 4 thereof, from the date of election or appointment of the first Pradhan of the Gram Panchayat. From the-Schedule it appears that the whole of the Bengal Village Self-Government Act, 1919 would then stand repealed and a substantial part of the Bengal Local Self-Government Act, 1883 would stand repealed and/or amended. The other Acts which would stand repealed or amended are the Village Chowkidari Act, 1870, the Bengal Village Chowkidari Act, 1871 and the Bengal Ferries Act, 1885. Upon the repeal of the Bengal Village Self-Government Act, 1919', which created Unions and Union Boards, it would follow that they would cease to exist.

(3.) ALL properties, assets and liabilities of Union Committees of Union Boards which ceased to exist would then vest in the Anchal Panchayat or Anchal Panchayats as may be determined by prescribed authority. While section 3 confers powers upon the State Government to constitute Gram Sabha or Gram Sabhas, section 5 gives power to alter the limits of any existing Gram Sabha or Gram Sabhas The Slate Government may, after consulting the views of the Gram Sabha or Sabhas concerned, by notification, exclude any area comprised therein or include within the local limits of the jurisdiction of a Gram Sabha any area in the vicinity thereof, or divide the area of any Gram Sabha so as to constitute two or more Gram Sabhas, or unite the areas of two or more Gram Sabhas so as to constitute a single Gram Sabha, or otherwise alter or revise the limits of any Gram Sabha. Section 7 provides for membership of Gram Sabha. As the vires of it has been challenged I set out the provisions thereof, which are as follows : -"7 (1) Every Gram Sabha shall consist of all 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 for which the Gram Sabha has been constituted. (2) The prescribed authority shall from time to time maintain a list of the names of the persons referred to in sub-section (1) and such list shall be the list of members of the Gram Sabha. " chapter III of the said Act deals with Gram Panchayats. Sec. 11 (1) provides that there shall be a Gram Panchayat for every Gram Sabha. Subsections (1), (2) and (3) of sec. 11 have been challenged and it is necessary to set out the provisions thereof, which are as follows: -"11 (1) There shall be a Gram Panchayat for every Gram Sabha. (2) The members of a Gram Sabha shall elect in the manner prescribed from amongst themselves such number of members not being less than nine or more than fifteen as may be determined by the prescribed authority, and the members so elected shall constitute the Gram Panchayat. (3) The prescribed authority may divide the area of a Gram Sabha into such number of constituencies as may be convenient for the purpose of election. "