PURNENDU SEKHAR BIRING Vs. GOVT OF WEST BENGAL

JUDGEMENT

(1.) -The petitioner has moved this Court for quashing of the resolution adopted on 2nd June, 1988 by No. 6 Sabajput Gram Panchayat. Briefly speaking the case of the petitioner is that he is the owner of a brick field at Gamartalia in Sabajput in the district of Midnapore and holds registration certificates from the Government of West Bengal and he is carrying on the brick for considerably long period.. He has paid royalty for quarring the soil and already incurred a loan of Rs. 1,50,000/- from the Contai Co-operative Bank Pvt. Ltd., repayment of which by usual insta1ment is held up because of the obstruction in his business. On 12th December, 1980 he obtained a permission from the District Engineer for plying trucks for carrying bricks. On 8th February, 1981 he obtained permission to ply trucks for carrying bricks load on the morum road from Chatradhara to Samudrapur on condition that the petitioner would have to give an undertaking for getting the said road repaired at his own cost in case of damage and he complied with the condition by his letter dated 17th August, 1988. The petitioner was enjoying free access of the vehicles to the said morum road but suddenly barricades were put on the said road for obstruction to the plying of his trucks at the instruction of the Prodhan of No. 6 Sabajput Gram Panchayat. The petitioner preferred a representation dated 6th April, 1988 to the S.D.O., Contai-I, but without any response. Without making any enquiry the S.D.O. by his Memo dated 20th July, 1988 endorsed the resolution of the Gram Panchayat to the above effect. Thereafter the petitioner made representations to the District Engineer, Midnapore Zilla Parishad, and the Sabhadhipati of Midnapore Zilla Parishad as well as to the Prodhan of the said Gram Panchayat but to no effect. The case of the petitioner is that after granting permission it is beyond the jurisdiction of the respondents to take away the said permission when such permission was given upon an undertaking executed by the petitioner for repairing damage to the morum road, if any. The petitioner's case is that he is entitled to obtain a relief under specific performance of contract in which the District Engineer, Midnapore Zilla Parishad is a party. The further case of the petitioner is that the exercise of jurisdiction under sections 25 and 42(a) of the West Bengal Panchayat Act, 1973 is wholly arbitrary and illegal. The petitioner ought to have been given an opportunity of being heard prior to putting the barricade on the road. The respondents Nos. 10 to 26 except 24 contested the application by filing Affidavits.

(2.) Mr. Bhattacharya, the learned Advocate appearing for the petitioner, submitted that No. 6 Sabajput Gram Panchayat has no authority to put obstruction over the road from Chatradhara to Samudrapur as the road admittedly belongs to the Zilla Parishad. He submitted that the powers of the Gram Panchayat, Panchayat Samity and Zilla Parishad are defined under the West Bengal Panchayat Act and section 19 thereof speaks of the obligations of Panchayats which does not empower it with the closure of a public road. Section 25 of the said Act gives power to Gram Panchayat over public streets not under the control of Central or State Government-on any local authority and according to Mr Bhattacharya the local authority includes Zilla Parishad. It is the further contention of Mr. Bhattacharya that under section 179 of the said Act the Central or State Government grant is a fund of Zilla Panshad which is admittedly utilised for the purpose of construction and maintenance of roads and the fund allocated by the Central Government under Rural Landless Employment Guarantee Programme is the fund of Zilla Parishad to be utilised for construction and maintenance of roads. He drew the Court's attention to section 176 of the said Act by which road constructed by a Zilla Parishad vests in it. He submitted that the District Engineer of Midnapore Zilla Parishad after considering all these aspects allowed plying of the petitioner's vehicles on the undertaking giving by the petitioner. The opinion of the District Engineer who is a technical person must prevail upon the members of the Gram Panchayat who are persons having no technical knowledge. He further submitted that the power under section 25 of the said Act cannot be utilised by the Gram Panchayat for nonuser of road for a particular person or group of people because in this case though the obstruction was done to put the petitioner's business in jeopardy but, in fact, the road was closed for the public. He submitted that the act of the Gram Panchayat is highly arbitrary, irrational and against public policy and must be quashed.

(3.) Mr. Bhunia, the learned Advocate appearing for the contesting respondents, in his submission traced out the history of roads of rural areas and submitted that under. sections 37 and 73 of the Bengal Local Self Government Act, 1885 District Boards. were established and the roads came under the Board's control including construction and maintenance, but the conception of territorial jurisdiction of roads was introduced by the Bengal Village Self Government Act, 1919 by which Union Boards were established and under section 31 of this Act Union Boards had control of roads within the Union. This concept of territorial jurisdiction. continued under section 61 of the West Bengal Panchayat Act, 1956. Under section 39 of the West Bengal ZilIa Parishad Act, 1963 only roads constructed by Zilla Parishad from its fund shall vest in the Zilla Parishad. It was further submitted by Mr. Bhunia that Chapter X of the West Bengal Zilla Parishad Act, 1963 delineates the powers of Panchayat Samity and section 65(2) of the said Act maintains the territorial jurisdiction of Gram Panchayat over roads. Chapter IX of the W. B. Panchayat Act, 1973 corresponds to Chapter X of the Zilla Parishad Act, 1963 and under section 109(2) of the said Panchayat Act the territorial jurisdiction of Gram Panchayat over roads is continued as appears from section 42 of the Panchayat Act. Sub-section (3) of section 153 of the Panchayat Act imposes condition to undertake or execute any scheme confined to a particular Block and under sub-section (4) of the said section a Zilla Parishad may undertake or execute any scheme if it extends to more than one Block; and according to his submission as this roads covered only one Gram Panchayat as such it is not hit by section 176 of the Panchayat Act. Further section 176 applies only when the road is constructed by the exclusive fund of a Zilla Parishad.