SUNDAY, 14 AUGUST 2011 23:21 WRITTEN BY BHAWANI BAGDAS
Notwithstanding the relevant provisions enshrined in the Indian Constitution for creation of new state; the political leadership cutting across the party lines in Bengal has ruled out, more often than not, the possibility of further division of West Bengal, implying that a separate state of Gorkhaland would not be carved out of the boundaries of the state.
Let alone the creation of Gorkhaland, the erstwhile Left Front government on the contrary, had a hidden agenda to split the district of Darjeeling to facilitate in forming a separate district of Siliguri, after merging with it the adjoining contiguous areas of the Rajganj block of the Jalpaiguri district and also some areas and also some areas of the Islampur sub-division of the North Dinajpur district. The fact of the matter is that for almost all the administrative purposes, the left front government had treated Siliguri as a defacto district headquarters. The head office of the most of the engineering department of this district are located not in the Darjeeling Sadar subdivision but are in Siliguri, of few glaring cases in point are the naming of Siliguri sub divisional hospital as the Siliguri District Hospital and the location of the office of the district controller of Food and Supplies department known as the office of the District Controller of Darjeeling district at Siliguri. Apart from this, the former MLA and Cabinet minister from Siliguri had allegedly whipped up the sectarian sentiments of a section of the majority community there for formulation of public opinion in favour of formation of a separate district of Siliguri.
As a sequel to this, some communal outfits like Amra Bangali and Bangla Bhasha Bachao Samiti started demanding for dividing the district for formation of separate district of Siliguri. Moreover, to curry favour among the voters of the plains the BJP leadership from Siliguri also made the same demand.
The motive of the then Bengal government behind this move was to prompt any future action taken through PIL (Public Interest Litigation) in the Supreme / High courts by the people of the hills to enable such courts in taking immediate cognizant of the matter for declaring the Siliguri Mahakuma Parishad as an unconstitutional organization, which it has been since May 1994, as per the implication of the Article 243B(I) and 243N of the constitution. In order to have a clear understanding of such implication, the relevant articles are cited hereunder:- The Article 243B(1) states “there shall be constituted in every state, Panchayat at the village, intermediate and district level in accordance with the provisions of this part”, (Part IX of the constitution). The existence of the Siliguri Mahakuma Parishad has violated the letter and spirit of the above Article, because the Parishad is neither a Panchayat at the village level nor at the intermediate level at which there are four Panchayat Samities. It cannot be considered as a Panchayat at the district level too.
The Article 243N states:- “Notwithstanding anything in this part, any provision of any law relating to Panchayat in force in a state immediately before the commencement of the Constitution (Severity – third Amendment) Act. 1992, which is inconsistent with the provision of this part, shall continue to be in force until amended or repealed by a competent legislature or other competent authority or until the expiration on one year from such commencement, whichever is earlier:
Provided that all the Panchayat existing immediately before such commencement shall continue till the expiration of their duration unless dissolved by a resolution passed to that effect by the Legislative Assembly of that state or, in the case of a state having Legislative Council, by each house of the Legislature of that state.”
Even the provision to the Article 243N of the constitution provides that the continence of the Mahakuma Parishad could have been constitutionally valid till the expiration of its form. This means the existence of the Siliguri Mahakuma Parishad could have been constitutionally valid for five years, i.e. duration of its first term. The first election to the Mahakuma Parishad was held in May, 1989. Thus, it was a constitutional body till May, 1994 only. Thereafter, it has been functioning as an unconstitutional body for more than seventeen years.
In view of the above circumstances, the Left Front Govt. was keen on declaring Siliguri as a separate district. However, the prevailing political condition was not favorable for the govt. As a result, the state govt. could not dare to take recourse to such drastic move, as it had had an apprehension of having a strong political backlash from the hills. But on the contrary, the Mamata Banerjee govt. does not seem to have any proposal to split the Darjeeling district to form a separate Siliguri district, otherwise it could have done so while approving the proposal by its cabinet to split at least populous district of Bengal for forming five smaller districts to make their administration more convenient and manageable.
Meanwhile, the political scenario has been completely changed. Following the installation of new government led by Mamata Banerjee and also supported by the GJM; prolonged negotiation started for solution of the Darjeeling problems between the govt. officials and GJM leadership. After a threadbare discussion with two top bureaucrats at Writer’s Building, the GJM leadership agreed to accept an administrative Set-up. As a consequence, Tripartite Agreement was signed between the Centre, state govt. and the GJM on July 18, 2011 at Pintail Village, Siliguri. If we read between the lines and analyze the provisions of the Tripartite Agreement, it transpires that the restoration of Darjeeling Zilla Parishad is a landmark of the Agreement. As per the relevant provision of the Agreement, both the Central and State govt. have committed in writing that the Darjeeling Zilla Parishad would be restored.
In order to restore the Zilla Parishad, Sub Article 3(a)(b) of the Article 243N of the Constitution and the Section 185-A (1)(2) of the West Bengal Panchayat Act, 1973 have to be deleted from the constitution and Act respectively. For the purpose of the clear understanding the relevant Articles of the constitutions and the Sections of the Panchayat Act, 73 are cited below:
The Article 243M(3) states:- “Nothing in this part – (a) relating to Panchayats at the district level shall apply to the hill areas of the district of the Darjeeling in the state of West Bengal for which Darjeeling Gorkha Hill Council exists under any law for the time being in force:
(b) Shall be construed to affect the functions and Powers of the DGHC constituted under such law.”
Section 185-A(1)(2) were inserted in the Panchayat Act, 73 by amending the Panchayat Act in 1988 itself when the DGHC Act, 88 was enacted in the state’s Assembly. The section states – 185-A(1) “With effect from the date of coming into office of the Council, the Zilla Parishad for the district of Darjeeling constituted under Act shall stand dissolved and the members of the Zilla Parishad shall be deemed to have reacted their offices forth with”.
185-1(2): “Upon such dissolution of the Zilla Parishad, the Council shall exercise all the powers, discharge all the duties and perform all the functions of the Zilla Parishad under this Act.”
However, to restore the Darjeeling Zilla Parishad, deletion of the above cited Articles and the Sections can be affected through amendment of the constitution and the West Bengal Panchayat Act in Parliament and the State Assembly respectively. But the inconsistency lies in the fact that even after amending the relevant Articles and the Sections; the Zilla Parishad cannot be restored.
As per the interpretation of the Article 243-D of the Constitution, it is implied that the restored Zilla Parishad shall have legal jurisdiction over the whole Panchayat areas of the district (excluding areas under Municipalities Corporation). Such jurisdiction of Zilla Parishad shall not be selective jurisdiction over the Panchayat areas of the three hills sub-divisions only. In such a situation, constitutional bottleneck crops up and the Bengal govt. will then be caught between the devil and the deep sea. On the one hand, Darjeeling Zilla Parishad has to be restored and on the other hand the state govt. has to abolish the Mahakuma Parishad by deleting Section 185-B(1) of the Panchayat Act through amendment of the Act. But the Bengal govt. cannot afford to abolish the Mahakuma Parishad, for such an action on the part of state govt. would be politically suicidal and self-defeating. In such adverse circumstances, the state govt. will have no alternative but to split the district of Darjeeling for facilitating the formation of a separate district of Siliguri, so that the constitutional validity of the Mahakuma Parishad can be restored by converting the Siliguri Mahakuma into the Zilla Parishad of newly formed Siliguri district. As of now, it appears that unless and until the new district of Siliguri is formed by dividing the present Darjeeling district, the provisions for introducing three tier Panchayat organizations in this district by restoring the Darjeeling Zilla Parishad, Zilla Parishad cannot be implemented.
In view of the above, GJM leadership, particularly the four MLAs, should be cautions and vigilant when the GTA bill is placed for discussion in the floor of the state Assembly and they should ensure that the people of Darjeeling hills are not forced under legal and political compulsion to accept the truncated Zilla Parishad comprising only the Panchayat areas of the three hills sub-divisions only.
Source: http://www.darjeelingtimes.com/opinions/social/3341-restoration-of-the-darjeeling-zilla-parishad-and-its-constitutional-bottleneck.html
Let alone the creation of Gorkhaland, the erstwhile Left Front government on the contrary, had a hidden agenda to split the district of Darjeeling to facilitate in forming a separate district of Siliguri, after merging with it the adjoining contiguous areas of the Rajganj block of the Jalpaiguri district and also some areas and also some areas of the Islampur sub-division of the North Dinajpur district. The fact of the matter is that for almost all the administrative purposes, the left front government had treated Siliguri as a defacto district headquarters. The head office of the most of the engineering department of this district are located not in the Darjeeling Sadar subdivision but are in Siliguri, of few glaring cases in point are the naming of Siliguri sub divisional hospital as the Siliguri District Hospital and the location of the office of the district controller of Food and Supplies department known as the office of the District Controller of Darjeeling district at Siliguri. Apart from this, the former MLA and Cabinet minister from Siliguri had allegedly whipped up the sectarian sentiments of a section of the majority community there for formulation of public opinion in favour of formation of a separate district of Siliguri.
As a sequel to this, some communal outfits like Amra Bangali and Bangla Bhasha Bachao Samiti started demanding for dividing the district for formation of separate district of Siliguri. Moreover, to curry favour among the voters of the plains the BJP leadership from Siliguri also made the same demand.
The motive of the then Bengal government behind this move was to prompt any future action taken through PIL (Public Interest Litigation) in the Supreme / High courts by the people of the hills to enable such courts in taking immediate cognizant of the matter for declaring the Siliguri Mahakuma Parishad as an unconstitutional organization, which it has been since May 1994, as per the implication of the Article 243B(I) and 243N of the constitution. In order to have a clear understanding of such implication, the relevant articles are cited hereunder:- The Article 243B(1) states “there shall be constituted in every state, Panchayat at the village, intermediate and district level in accordance with the provisions of this part”, (Part IX of the constitution). The existence of the Siliguri Mahakuma Parishad has violated the letter and spirit of the above Article, because the Parishad is neither a Panchayat at the village level nor at the intermediate level at which there are four Panchayat Samities. It cannot be considered as a Panchayat at the district level too.
The Article 243N states:- “Notwithstanding anything in this part, any provision of any law relating to Panchayat in force in a state immediately before the commencement of the Constitution (Severity – third Amendment) Act. 1992, which is inconsistent with the provision of this part, shall continue to be in force until amended or repealed by a competent legislature or other competent authority or until the expiration on one year from such commencement, whichever is earlier:
Provided that all the Panchayat existing immediately before such commencement shall continue till the expiration of their duration unless dissolved by a resolution passed to that effect by the Legislative Assembly of that state or, in the case of a state having Legislative Council, by each house of the Legislature of that state.”
Even the provision to the Article 243N of the constitution provides that the continence of the Mahakuma Parishad could have been constitutionally valid till the expiration of its form. This means the existence of the Siliguri Mahakuma Parishad could have been constitutionally valid for five years, i.e. duration of its first term. The first election to the Mahakuma Parishad was held in May, 1989. Thus, it was a constitutional body till May, 1994 only. Thereafter, it has been functioning as an unconstitutional body for more than seventeen years.
In view of the above circumstances, the Left Front Govt. was keen on declaring Siliguri as a separate district. However, the prevailing political condition was not favorable for the govt. As a result, the state govt. could not dare to take recourse to such drastic move, as it had had an apprehension of having a strong political backlash from the hills. But on the contrary, the Mamata Banerjee govt. does not seem to have any proposal to split the Darjeeling district to form a separate Siliguri district, otherwise it could have done so while approving the proposal by its cabinet to split at least populous district of Bengal for forming five smaller districts to make their administration more convenient and manageable.
Meanwhile, the political scenario has been completely changed. Following the installation of new government led by Mamata Banerjee and also supported by the GJM; prolonged negotiation started for solution of the Darjeeling problems between the govt. officials and GJM leadership. After a threadbare discussion with two top bureaucrats at Writer’s Building, the GJM leadership agreed to accept an administrative Set-up. As a consequence, Tripartite Agreement was signed between the Centre, state govt. and the GJM on July 18, 2011 at Pintail Village, Siliguri. If we read between the lines and analyze the provisions of the Tripartite Agreement, it transpires that the restoration of Darjeeling Zilla Parishad is a landmark of the Agreement. As per the relevant provision of the Agreement, both the Central and State govt. have committed in writing that the Darjeeling Zilla Parishad would be restored.
In order to restore the Zilla Parishad, Sub Article 3(a)(b) of the Article 243N of the Constitution and the Section 185-A (1)(2) of the West Bengal Panchayat Act, 1973 have to be deleted from the constitution and Act respectively. For the purpose of the clear understanding the relevant Articles of the constitutions and the Sections of the Panchayat Act, 73 are cited below:
The Article 243M(3) states:- “Nothing in this part – (a) relating to Panchayats at the district level shall apply to the hill areas of the district of the Darjeeling in the state of West Bengal for which Darjeeling Gorkha Hill Council exists under any law for the time being in force:
(b) Shall be construed to affect the functions and Powers of the DGHC constituted under such law.”
Section 185-A(1)(2) were inserted in the Panchayat Act, 73 by amending the Panchayat Act in 1988 itself when the DGHC Act, 88 was enacted in the state’s Assembly. The section states – 185-A(1) “With effect from the date of coming into office of the Council, the Zilla Parishad for the district of Darjeeling constituted under Act shall stand dissolved and the members of the Zilla Parishad shall be deemed to have reacted their offices forth with”.
185-1(2): “Upon such dissolution of the Zilla Parishad, the Council shall exercise all the powers, discharge all the duties and perform all the functions of the Zilla Parishad under this Act.”
However, to restore the Darjeeling Zilla Parishad, deletion of the above cited Articles and the Sections can be affected through amendment of the constitution and the West Bengal Panchayat Act in Parliament and the State Assembly respectively. But the inconsistency lies in the fact that even after amending the relevant Articles and the Sections; the Zilla Parishad cannot be restored.
As per the interpretation of the Article 243-D of the Constitution, it is implied that the restored Zilla Parishad shall have legal jurisdiction over the whole Panchayat areas of the district (excluding areas under Municipalities Corporation). Such jurisdiction of Zilla Parishad shall not be selective jurisdiction over the Panchayat areas of the three hills sub-divisions only. In such a situation, constitutional bottleneck crops up and the Bengal govt. will then be caught between the devil and the deep sea. On the one hand, Darjeeling Zilla Parishad has to be restored and on the other hand the state govt. has to abolish the Mahakuma Parishad by deleting Section 185-B(1) of the Panchayat Act through amendment of the Act. But the Bengal govt. cannot afford to abolish the Mahakuma Parishad, for such an action on the part of state govt. would be politically suicidal and self-defeating. In such adverse circumstances, the state govt. will have no alternative but to split the district of Darjeeling for facilitating the formation of a separate district of Siliguri, so that the constitutional validity of the Mahakuma Parishad can be restored by converting the Siliguri Mahakuma into the Zilla Parishad of newly formed Siliguri district. As of now, it appears that unless and until the new district of Siliguri is formed by dividing the present Darjeeling district, the provisions for introducing three tier Panchayat organizations in this district by restoring the Darjeeling Zilla Parishad, Zilla Parishad cannot be implemented.
In view of the above, GJM leadership, particularly the four MLAs, should be cautions and vigilant when the GTA bill is placed for discussion in the floor of the state Assembly and they should ensure that the people of Darjeeling hills are not forced under legal and political compulsion to accept the truncated Zilla Parishad comprising only the Panchayat areas of the three hills sub-divisions only.
Source: http://www.darjeelingtimes.com/opinions/social/3341-restoration-of-the-darjeeling-zilla-parishad-and-its-constitutional-bottleneck.html