A K M HOSSAN UZZAMAN Vs. DEBABRATA BANDOPADHYA

JUDGEMENT

(1.) In this application under Article 226 of the Constitution of India Sree A. K. M. Hassan Uzzaman a member of the Legislative Assembly of West Bengal elected from Deganga Assembly Constituency of the District of 24 Parganas and Dr. Saswati Prasad Bag, member of Legislative Assembly elected from Mahisadal Assembly Constituency in the District of Midnapore challenge the Panchayat Elections due to be held on the 4th of June, 1978 on the basis of election notice dated 23rd of March, 1978. They further challenge the votes lists, division of members to be elected and seats determined under the provisions of the West Bengal Panchayat Act, 1973 and the West Bengal Panchayat (Election) Rules, 1974. They ask that these be set aside and quashed. They ask for a declaration that the provisions of S. 4(2)(3) and Ss. 4(3A), 222 and 224 of the said Act and rules, 8, 9, 11, 17A, 17B, 18A, 18B, 20, 24, 41, 44, 46, 56, 64, 66, 73, 75, 76, 77 be declared ultra vires and invalid. They further seek to set aside Rule 99 of the said rules and ask for declaration that actions taken under S. 3 of the West Bengal Panchayat Act, 1973 be set aside. They have asked also for an order of injunction restraining the respondents from holding the election of Gram Panchayat, Panchayat Samities and Zilla Parishads pursuant to the notification dated 23rd of March, 1978. The respondents to this application are Sree Debabrata Bandopahya, Minster-in-charge, Department of Panchayat, the State of West Bengal and the Director of Panchayat and the State Panchayat Election Officer. The petitioners state that they are members of the West Bengal Legislative Assembly and as such by virtue of S. 140 of the West Bengal Panchayat Act, 1973 are ex officio Member of the Zilla Parishad to be constituted under the said Act. The petitioners, further, state that they are included in the electoral rolls of the West Bengal Legislative Assembly for the time being in force and as such voters in the areas comprised in the respective grams as envisaged in S. 4 of the West Bengal Panchayat Act, 1973. The petitioners, further, state that as citizens of India and as members of the Legislative Assembly they have further various statutory rights and they are obliged by their oaths to up-hold the rule of law as envisaged in the Constitution and to discharge the trust reposed upon them.

(2.) Before the contentions urged in this application are considered it has to be noted that in the petition the petitioners had alleged that they had not inspection and knowledge of certain relevant documents and notifications and records. Accordingly in paragraph 30 of the petition they had referred to several documents, records and notifications which they claimed they should have right to inspect and upon the inspection of which they alleged that the irregularities in the proposed election of which they were complaining would be apparent. When this application was first moved I issue a rule nisi upon the respondents to show cause and further directed the respondents to give inspection of the relevant documents, notifications and other records as mentioned in paragraph 30 of the petition. I further directed that the election to the Panchayat if held should abide by the result of the rule. Pursuant to the direction given by me as aforesaid the Government has allowed inspection of most, if not of all the documents. The petitioner No.2 in the affidavit in reply has annexed charts showing the results of such inspection. The factual correctness of the statements contained in the said charts annexed to the affidavit-in-reply has not been disputed before me. I shall advert to this aspect later.

(3.) Article 40 of the Constitution which is one of the directive principles of State policy enjoins that the State shall take steps to organise village Panchayat and to endow them with such powers and authority as may be necessary to enable them to function as units of self-government. Due to illiteracy and what was considered to be low sense of civic responsibilities in our rural population implementation of the said directive principle was not hastened. Entry 5 in List II of the 7th Schedule of the Constitution permits and empowers the said legislature to make legislation to implement the aforesaid directive principle of the Constitution. Pursuant to the said power West Bengal Panchayat Act, 1957 was enacted. The said Act was amended by West Bengal Act XV of 1959 and again by the West Bengal Act VIII of 1964. The said Act came up for consideration in a challenge under Article 226 of the Constitution in the case of H. C.Choudhury v. State of West Bengal 69 CWN page 347. Mr. Justice D. N. Sinha, as the learned Chief Justice then was, struck down S. 11(2) and (3) of the said Act. I will have occasion to examine the said decision in detail in considering one of the contentions urged in this application before me. But it appears that after the said judgment the said sections were altered and the Act was amended by the West Bengal Act XVII of 1965. Pursuant to the Act it further appears that in 1964 elections were held to the Panchayats. But for the last 14 years no further elections have been held. In the meantime West Bengal Panchayat Act, 1973 was passed. Several contentions about the validity of several sections of the said Act will have to be considered in this application. The said Act was amended by the West Bengal Panchayat Amending Bill which was passed by the legislative assembly on the 17th March, 1978. Pursuant to the powers given under the West Bengal Panchayat Act, 1973 West Bengal Panchayat (Election) Rules, 1974 have been promulgated. The said rules have also been from time to time been amended. The validity of the said amendments would also fall for consideration in this application.