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1996 Supreme(Cal) 377
High Court Of Calcutta
SAMARESH BANERJEE
HARAN CHANDRA GHOSH - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. O. 18665 (W) Of 1995
Decided On : 09/20/1996
B.R.BHATTACHARJEE, GOUTAM MUKHERJI, L.K.Gupta, L.K.PAL, Manick Chandra Das
The provision for reconstitution of the newly created Gram is mandatory and the State is duty bound to take steps for such reconstitution without delay.
Headnote:
PANCHAYAT - UNIFICATION OF GRAM - NOTIFICATION - PUBLICATION - RECONSTITUTION OF GRAM PANCHAYAT - MANDATORY - CONTINUATION OF OLD GRAM PANCHAYAT - STOP GAP MEASURE.
Fact of the Case:
The petitioner, the elected Pradhan of Madral Panpur Gram Panchayet, challenged the notification dated 16th October, 1995, issued under section 3 (d) of the West Bengal Panchayet Act 1973, which united the areas of Madral Panpur and Narayanpur Grams and constituted the new Gram Panpur-Keutia. The petitioner contended that the notification was issued without any application of mind and that the provision of section 3 (3) (d) of the Act had no application in the instant case. The petitioner also contended that due to the merger of Madral Panpur and a portion of Narayanpur in Bhatpara Municipality, there were eight members in Panpur Gram Panchayet and seven in Narayanpur Gram Panchayet and that there was still one Panchayet Samity for Madral Panpur and Narayanpur Gram Panchayet.
Finding of the Court:
The Court held that the impugned notification dated 16th October, 1995, was issued without jurisdiction and contrary to the provision of section 5 (4) and section 4 of the Act. The Court further held that the action of the respondents to unite two Gram Panchayets into one in the manner aforesaid and to attempt to hold the election only of the Pradhan and Upa-Pradhan afresh without reconstitution the entire Gram Panchayat as provided for under section 5 (4) of the Act read with section 4 (2) and (3) of the Act was absolutely illegal, without jurisdiction, and contrary to the provision of section 5 (4) and section 4 of the said Act.
Issues: 1. Whether the notification dated 16th October, 1995, issued under section 3 (d) of the West Bengal Panchayet Act 1973, was issued without any application of mind and that the provision of section 3 (3) (d) of the Act had no application in the instant case? 2. Whether due to the merger of Madral Panpur and a portion of Narayanpur in Bhatpara Municipality, there were eight members in Panpur Gram Panchayet and seven in Narayanpur Gram Panchayat and that there was still one Panchayet Samity for Madral Panpur and Narayanpur Gram Panchayet?
Ratio Decidendi: 1. The Court held that the impugned notification dated 16th October, 1995, was issued without jurisdiction and contrary to the provision of section 5 (4) and section 4 of the Act. The Court further held that the action of the respondents to unite two Gram Panchayets into one in the manner aforesaid and to attempt to hold the election only of the Pradhan and Upa-Pradhan afresh without reconstitution the entire Gram Panchayat as provided for under section 5 (4) of the Act read with section 4 (2) and (3) of the Act was absolutely illegal, without jurisdiction, and contrary to the provision of section 5 (4) and section 4 of the said Act. 2. The Court held that due to the merger of Madral Panpur and a portion of Narayanpur in Bhatpara Municipality, there were eight members in Panpur Gram Panchayet and seven in Narayanpur Gram Panchayat and that there was still one Panchayet Samity for Madral Panpur and Narayanpur Gram Panchayet.
Final Decision: The Court quashed the impugned notification dated 16th October 1995, notices issued for holding election of Pradhan and Upa-Pradhan of the Madral Panpur Gram Panchayet and all action pursuant thereto for such election. The Court also directed the State Government to reconstitute the Gram Panchayet of the newly created Gram of Panpur-Keutia under sub-section 2, sub-section 3 of section 4 of the West Bengal Panchayet Act by preparing a fresh electoral roll and by holding a fresh election under the aforesaid provision of the said Act within three months from the communications of the order.
( 1 ) IN the instant writ application the petitioner who was admittedly elected Pradhan of Madral Panpur Gram Panchayet (hereinafter referred to as the said Gram Panchayet) has challenged the notification dated 16th October, 1995, being No. 2364/pn/o/i/1p-3b/87. The aforesaid notification has been issued purportedly in exercise of power under section 3 (d) of the West Bengal Panchayet Act 1973 after considering the situation arising out of inclusion in the neighbouring Municipality of part of the area of the Gram concerned mentioned therein and after making due enquiry and on consulting the views of the Gram Panchayet concenned, uniting the areas of Madral Panpur and Narayanpur Grams and constituting the new Gram Panpur-Keutia. It was further directed in the said notice that subject to the cessation of membership under section 197b of the West Bengal Panchayet Act 1973, the members holding offices in the Gram Panchayet for the Gram so united shall continue to hold their respective offices in the Gram Panchayet for the constituted Gram for the unexpired portion of their terms of offices.
( 2 ) THE petitioner has prayed for quashing of the notices issued in Form No. (I) under West Bengal Panchayet (Constitution) Rules 1975 giving notice for electing a Pradhan and Upa-Pradhan of the newly constituted Gram.
( 3 ) THE petitioner was elected as a Pradhan of the Madral Panpur Gram Panchayet and such fact is not disputed.
( 4 ) ON May 30. 1995, the election of Bhatpara Municipality was held and thereafter the whole of Madral and part of Panpur and substantial area of Narayanpur were merged with Bhatpara Municipality. It is also not disputed by the parties that such merger was made by valid exercise of power in a valid manner.
( 5 ) IT is the case of the petitioner that after such merger of Madral Panpur and also a portion of Narayanpur in Bhatpara Municipality there are eight members in Panpur Gram Panchayet and seven in Narayanpur Gram Panchayet and there is still one Panchayet Samity for Madral Panpur and Narayanpur Gram Panchayet.
( 6 ) IT has been contended by the petitioner that from the aforesaid notification dated 16th October, 1995, the petitioner came to know about the merger of the
aforesaid two Grams into a new one. It is the grievance of the petitioner that although in the said notification it was stated that a due enquiry was held and the views of the Gram Panchayets was ascertained, allegedly no notice of the same was given to the petitioner who is the Pradhan of the Madral Panpur Gram Panchayet about such enquiry or for ascertaining the views of Gram Panchayet. It is also alleged that such notification was issued without any application any mind and the aforesaid provision of section 3 (3) (d) of the West Bengal Panchayet Act had no application in the instant case.
( 7 ) IT has also been contended that because of the provision of section 4 of the said Panchayet Act each of the Gram Panchayet should have been allowed to function till the expiry of the tenure of the membership and therefrom there cannot be any fresh election for such unified Gram Panchayet which is sought to be done by the impugned notice dated 27th October, 1995.
( 8 ) THE petitioner subsequently with the leave of the court filed a supplementary affidavit further contending that even if the respondents unite two Gram Panchayets into one, the existing members of the Gram Panchyet after such merger are entitled to continue and the notices issued by the respondents for holding a fresh election for united Gram Panchayet is contrary to section 5 (4) of the West Bengal Panchayet Act 1973 read with section 4 (2) thereof. It was also specifically pleaded the aforesaid notification dated 16th October, 1995, was not published in the manner provided in the statute.
( 9 ) THE respondents in their affidavit-in-opposition to the writ petition as also the said supplementary affidavit have contended that a notification was duly issued on 30th Se
