KHARGRAM PANCHAYAT SAMITI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order of the Calcutta High court dated 2/08/1985 quashing a resolution passed by the Khargram Panchayat Samiti dated 12/04/1985 specifying that the cattle fairs run by the two rival organisations i. e. Nagar Cattle Hat run by Nagar Quorania Junior High Madrassah would be held on Saturday every week and Sherpur Cattle Hat run by Prabartak Parishad on Friday. By the judgment under appeal, a division bench of the High court has held that even though the Panchayat Samiti was vested with the power to grant licence for holding of a hat or fair under S. 117 of the West Bengal Panchayat Act. 1973, still in the absence of a rule framed under the Act it had no power to specify a day on which such hat or fair shall be held. The issue involved is whether the Panchayat Samiti being vested with the authority to grant a licence for the holding of a hat or fair under S. 117 of the Act within the limits of its territorialjurisdiction, must necessarily be held to have the consequential or incidental power to specify a day for the holding of such hat or fair.

(2.) The facts of the case are as follows. Ever since 1933, a cattle fair called Nagar Cattle Hat is being held on Saturday every week by the Nagar Quorania Junior High Madrassah, a charitable educational institution which runs a school and is also engaged in other social activities, which attracts a large gathering of buyers and sellers of cattle dealers within the district of Murshidabad and even beyond the district. Since 1974, respondent 6 a club called Prabartak Parishad, set up a parallel cattle fair at a place called Sherpur, about two kilometres away (as the crow flies) from the site of Nagar Cattle Hat on every Saturday, known as Sherpur Cattle Hat. The holding of two rival cattle fairs on the same day gave rise to a feeling of rivalry coupled with tension amongst the local population as also the large number of cattle dealers and peasantry attending the cattle fairs and this frequently led to violent conflicts and skirmishes between the two rival groups. Upon a representation made to him in 1980, the District Magistrate. Murshidabad caused an inquiry to be held and by his order dated 2/04/1980 held that holding of the two cattle fairs on the same day created serious law and order problem and accordingly directed holding of the hats on two different days for preservation of public peace and tranquillity. On a writ petition filed by respondent 6 Prabartak Parishad. a division bench of the High court by its order dated 2/06/1982 struck down the impugned order of the District Magistrate on the ground that no such direction could be issued by him as the competent authority was the Khargram Panchayat Samiti. It was observed :

(3.) In compliance with the direction made by the High court, the District Magistrate obviously actuated by consideration of maintenance of law and order requested the Chairman of the Khargram Panchayat Samiti to take necessary steps as the holding of rival hats in contiguous areas could not be allowed to continue as it save rise to serious law and order problem. A meeting of the Panchayat Samiti was accordingly held on 20/06/1984 and a resolution was passedby a majority of the members that the Nagar Cattle Hat run by Nagar Quorania Junior High Madrassah would be held on Saturday as before and the Sherpur Cattle Hat run by Prabartak Parishad being of recent origin would be held on Friday. Thereupon, respondent 6 filed another writ petition in the High court challenging the impugned resolution of the Panchayat Samiti. A learned Single Judge by his judgment and order dated 14/01/1985 quashed the impugned resolution of the Panchayat Samiti on the ground that it acted in breach of the rules of natural justice while reserving liberty to the Panchayat Samiti to come to a decision afresh after affording an opportunity to respondent 6 Prabartak Parishad to have its say before it. Aggrieved, the appellant preferred an appeal and applied for stay. A division bench of the High court by its order dated 19/03/1985 admitted the appeal but declined to grant stay and directed that the Panchayat Samiti should in the meanwhile comply with the order of the learned Single Judge. As a consequence, Khargram Panchayat Samiti was constrained to give effect to the direction made by the learned Single Judge. It accordingly issued notices to the contending parties i. e. both Nagar Quorania Junior High Madrassah and Prabartak Parishad requiring them to submit their claims for consideration, and also fixed a date being April 12, 1985 for hearing. On that date, the Panchayat Samiti at its open meeting heard the representatives of the parties and scrutinised the documents placed before it. After considering the claims of both the parties and the material on record, it passed a resolution that the Nagar Cattle Hat would be held as before on Saturday every week and the Sherpur Cattle Hat would be held on Friday, and directed the Executive Officer to incorporate such a condition in the licence granted to the two organisations for holding the cattle fairs on these days. Again, respondent 6 filed a writ petition before the High court challenging the aforesaid resolution dated 12/04/1985. A learned Single Judge by his judgment dated 19/06/1985 dismissed the writ petition in view of the pendency of the appeal before the Division bench, pursuant to whose direction the aforesaid resolution had been passed. Respondent 6 then moved the division bench for restraining Khargram Panchayat Samiti from giving effect to the said resolution. The division bench by its judgment under appeal quashed the impugned resolution dated 12/04/1985 of Khargram Panchayat Samiti. It held that although in terms of S. 117 of the Act the Panchayat Samiti was vested with the power of granting a licence for the holding of a hat or fair, by the framing of Rules 7, 8 and 9 of the West Bengal panchayat (Samiti Administration) Rules, 1984 the power of the Panchayat Samiti is confined to making provision for maintenance of sanitation, health and hygiene in the market area which is the essence of the power under S. 117, and further that in the absence of a provision in the rules inthat behalf it had no power to specify a day on which such hat or fair should be held. It accepts that when a power is conferred on a statutory authority, it necessarily carries with it other incidental or ancillary powers and holds that the Panchayat Samiti being vested with the power to grant a licence under S. 117 of the Act had been conferred the power under Rules 7, 8 and 9 to making provision for sanitation, health and hygiene in the market area which is the essence of the power and therefore the Panchayat Samiti had the power to see that sanitation, health and hygiene are properly maintained and looked after, and nothing more. In repelling the contention that the specification of a day for the holding of a hat or fair was con-sequential to the power to grant a licence under S. 117 of the Act, it observed: