Calcutta High Court
Purnendu Sekhar Biring vs Govt. Of West Bengal And Ors. on 22 December, 1989
Equivalent citations: (1990)2CALLT1(HC)
JUDGMENT K.M. Yusuf, J.
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 business of manufacturing 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 instalment 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 Parishad 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 non-user 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 Zilla 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.
4. Mr. Bhunia further submitted that the roads in question from Chatradhara to Samudrapur falls within the jurisdiction of No. 6 Sabajput Gram Panchayat and is vested in the said Gram Panchayat under Section 42 of the Panchayat Act, 1973 ; the road in question was developed under the Rural Landless Employment Guarantee Programme wholly sponsored by the Central Government and the money is not contributed by the Zilla Parishad ; the Zilla Parishad is the Implementing Agency under the control of the State Level Coordinating Committee and also a Central Committee ; prior sanction is necessary before starting any project; funds are released in half yearly instalments subject to utilisation ; rate of wages is fixed ; and there is ban on contractors. In the circumstances, he submitted that the road constructed or repaired under R.L.E.G. Programme cannot be covered by a Zilla Parishad under Section 176 of the said Act and as such a Gram Panchayat having jurisdiction over the road under Section 42 of the Panchayat Act has full power to close it under Sections 19(d) and 25(b) of the Panchayat Act. He submitted that the entire thing must be viewed in the context of Article 40 of the Constitution of India relating to organisation of Village Panchayats and in this concept of Panchayati Raj the grass root Gram Panchayat must be the holder of the basic power and that a statutory body must function within the limits of its powers and must not usurp the power of another statutory body. Though power has been given to Zilla Parishad to accumulate fund by the proceeds of roads cess and public works cess levied in the District under Sections 179(d) and 180 of the Panchayat Act but those do not take away the territorial jurisdiction of a Gram Panchayat vested in it under Section 42 of the Act, rather it imposes an obligation upon Zilla Parishad to make grants under Section 45(b) of the Act. Mr. Bhunia seriously disputed the authority of the permission granted for plying truck by the District Engineer, Midnapore Zilla Parishad by his Memo dated 6th February, 1981 and also Memo dated 30th December. 1987 issued to the District Magistrate, Midnapore, by the Sub-Divisional Officer. Lastly he submitted that the petitioner's contention that he is entitled to obtain a relief under specific performance of the contract is highly misconceived and is beyond the scope of Article 226 of the Constitution.
5. I have considered the facts of the case and the submissions made by the Advocates of the parties. Though Mr. Bhunia has traced out the history of roads right from Bengal Local Self-Government Act, 1885 and then Bengal Village Self-Government Act, 1919, I think it is not necessary in deciding this matter to go into the in-depth study of the control of roads and its territorial jurisdiction. It will be sufficient if I confine myself to the West Bengal Panchayat Act, 1973. By virtue of sub-section (1)(a) of Section 42 of the said Panchayat Act all public streets, including the soil, stones and other materials thereof and all drains, bridges culverts, trees, erections, materials, implements and other things provided for such streets other than those maintain by the Central or State Government or a local authority or any other Gram Panchayat, shall vest in and belong to the Gram Panehayat and the said Gram Panchayat shall with all other property of whatsoever nature or kind which may become vested in the Gram Panchayat, shall be under its discretion, management and control. By Section 176 of the said Act vests all roads, buildings or other works constructed by a Zilla Parishad with its own fund in it but this is subject to sub-section (4) of Section 153 which says that a Zilla Parishad may undertake or execute any scheme if it extends to more than one Block. Section 19 of the said Act defines the obligatory duties of a Gram Panchayat and clauses (d), (e) and (f) of the said section include the maintenance, repair and construction of public streets and protection thereof; and the removal of encroachments of public streets or public places as well as the protection and repair of buildings or other property vested in it. Section 109(2) of the said Act also confirms the territorial jurisdiction of a Gram Panchayat over roads as provided in Section 42 thereof. Section 25(1)(d) of the said Panchayat Act further empowers a Gram Panchayat to control public streets and waterways within its jurisdiction and to divert or close any such public streets. Though Sections 179(d) and 180 give Zilla Parishad power to collect the proceeds of roads cess and public works cess levied in the district but these sections do not confer any territorial jurisdiction to the Zilla Parishad which is well protected for a Gram Panchayat under Section 42 of the Act.
6. The plea of Rural Landless Employment Guarantee Programme which is centrally sponsored and hundred per cent financed by the Central Government does not come to the rescue of the petitioner. The aim of this Programme is to improving the lot of the rural people and developing the village economy and includes construction of roads linking villages to important places such as markets and railway stations, etc. Undoubtedly, the responsibility of executing projects under R.L.E.G. P. has been entrusted to Zilla Parishad but it does not take away the territorial jurisdiction vested in or the statutory rights given to a Gram Panchayat by virtue of the West Bengal Panchayat Act, 1973. Further the whole thing must be viewed in the context of Article 40 of the Constitution which says 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". Here the emphasis must be made on "village panchayats" and "units of self-government" and in this perspective the territorial jurisdiction of a Gram Panchayat which is enshrined in the Panchayat Act of 1973 cannot be taken away by Zilla Parishad. I fully endorse the view of Mr. Bhunia that the letter dated 6th February, 1981 written by the District Engineer, Midnapore Zilla Parishad, to the petitioner has no force in the eye of law because the Zilla Parishad cannot poke its nose or dictate terms upon a right which is already vested in Gram Panchayat under the law. Virtually the argument of Mr. Bhattacharya leads to the conclusion that Zilla Parishad is the final authority to decide the fate of a Gram Panchayat and. the Gram Panchayat is a cypher, at least, so far the control of roads and pathways are concerned. Such a conception shall cause village anarchy if read with Article 40 of the Constitution. This is not the legal position and the rights and duties and jurisdiction of Zilla Parishad and Gram Panchayat are well defined and the rights vested in the Gram Panchayats cannot be taken away by Zilla Parishads by the stroke of pen of any official of Zilla Parishad.
7. No permission was ever granted by the Gram Panchayat to the petitioner to use the road in question by plying heavy vehicles loaded with bricks, rather the road was used on the strength of an illegal authority from the District Engineer of the Midnapore Zilla Parishad. As such the question of giving any opportunity to the petitioner under Sections 25(2) & (3) of the Act does not arise. But even then the matter as a whole was considered by No. 6 Sabajput Gram Panchayat pursuant to this Court's Order dated 13th February, 1988 at its meeting held on 28th February, 1988 but it could not accede to grant permission to the petitioner to ply heavy vehicles, obviously, for the safety of the road. Further the argument of Mr. Bhattacharya 'on the point of specific performance of contract is amusing. The relief in a case of specific performance of contract can only be given by a competent civil court and a writ petition under Article 226 of the Constitution cannot deliver the fruit.
8. In the light of discussion hereinbefore made, the writ application fails and is dismissed without costs.