SULTAN KHAN Vs. SAILESH CHANDRA NUNDY

JUDGEMENT

(1.) This revision case raises the question whether an election as a member of the Gram Panchayat or an election as a member of the Anchal Panchayat constituted under the West Bengal Panchayat Act, 1956 can be set aside by the election tribunal on the ground that the candidate is not a citizen of India. The election of the petitioner as a member of the Sarvamangala Gram Panchayat as also his election as a member of the Basaria Anchal Panchayat have been set aside by the election tribunal on this ground by its order dated the 15th March, 1961. The election took place on December 10 and 11, 1961. The name of the petitioner had then been entered without any objection from anybody in the finally published electoral roll of the West Bengal Legislative Assembly relating to the are of the Sarbamangala Gram Sabha. The petitioner was born in the territory of India; but in 1948 he migrated from the territory of India to the territory now included in Pakistan. He married and settled in Pakistan and lived there for more than ten years. In 1958 he came to India as a Pakistan national with a Pak-passport for temporary stay under a 'C' visa and since then he is living in india. As the petitioner migrated from India to Pakistan after the first day of March, 1947 and before the Constitution of India came into force, he must be deemed not to be a citizen of India having regard to Article 7 of the Constitution. The election tribunal rightly held that the petitioner never acquired the citizenship of India under the Constitution and that he never became a citizen of India.

(2.) The contention of the petitioner that the jurisdiction of the election tribunal is taken away by Section 9(2) of the Citizenship Act, 1955 is unsound and must be rejected. In Akbar Khan Alam Khan, v. Union of India, the Supreme Court held that Section 9 (2) of the Citizenship Act, 1955 does not bar the jurisdiction of a civil court to determine this issue. Likewise the power of the election tribunal to decide the issue is not taken away by the section.

(3.) On behalf of the petitioner it is next contended that he is not disqualified from being elected as a member of the Gram Panchayat and of the Anchal Panchayat by reason of the fact that his election cannot be set aside by the election tribunal on that ground. This argument requires serious consideration. The purpose of the West Bengal Panchayat Act, 1956 is to organise and establish panchayats in rural areas of West Bengal. The Act has been passed in conformity with the directive principle of State policy contained in Article 40 of the Constitution which enjoins that the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of Self-government. The Gram Sabha is the primary unit of self government under the Act Chapter II of the Act deals with Grant Sabha. Section 3 empowers the State Government to constitute Gram Sabha for any area. Section 7 provides far its membership and reads thus: