Judgment:
ORDER
S. Banerjea, J.
1. In the instant writ application the petitioner who was admittedly elected Pradhan of Madral Panpur Gram Panchayet (hereinafter referred to as the said Gram Panchayet) has challenged the notification dated 16th October. 1995, being No. 2364/PN/O/I/1P-3B/87. The aforesaid notification has been issued purportedly in exercise of power under section 3(d) of the West Bengal Panchayet Act 1973 after considering the situation arising out of inclusion in the neighbouring Municipality of part of the area of the Gram concerned mentioned therein and after making due enquiry and on consulting the views of the Gram Panchayet concenned, uniting the areas of Madral Panpur and Narayanpur Grams and constituting the new Gram Panpur-Keutia. It was further directed in the said notice that subject to the cessation of membership under section 197B of the WestBengal Panchayet Act 1973, the members holding offices in the Gram Panchayet for the Gram so united shall continue to hold their respective offices in the Gram Panchayet for the constituted Gram for the unexpired portion of their terms of offices.
2. The petitioner has prayed for quashing of the notices issued in Form No. (i) under West Bengal Panchayet (Constitution) Rules 1975 giving notice for electing a Pradhan and Upa-Pradhan of the newly constituted Gram.
3. The petitioner was elected as a Pradhan of the Madral Panpur Gram Panchayet and such fact is not disputed.
4. On May 30, 1995, the election of Bhatpara Municipality was held and thereafter the whole of Madral and part of Panpur and substantial area of Narayanpur were merged with Bhatpara Municipality. It is also not disputed by the parties that such merger was made by valid exercise of power in a valid manner.
5. It is the case of the petitioner that after such merger of Madral Panpur and also a portion of Narayanpur in Bhatpara Municipality there are eight members in Panpur Gram Panchayet and seven in Narayanpur Gram Panchayet and there is still one Panchayet Samity for Madral Panpur and Narayanpur Gram Panchayet.
6. It has been contended by the petitioner that from the aforesaid notification dated 16th October, 1995, the petitioner came to know about the merger of the aforesaid two Grams into a new one. It is the grievance of the petitioner that although in the said notification it was stated that a due enquiry was held and the views of the Gram Panchayets was ascertained, allegedly no notice of the same was given to the petitioner who is the Pradhan of the Madral Panpur Gram Panchayet about such enquiry or for ascertaining the views of Gram Panchayet. It is also alleged that such notification was issued without any application any mind and the aforesaid provision of section 3(3)(d) of the West Bengal Panchayet Act had no application in the instant case.
7. It has also been contended that because of the provision of section 4 of the said Panchayet Act each of the Gram Panchayet should have been allowed to function till the expiry of the tenure of the membership and therefrom there cannot be any fresh election for such unified Gram Panchayet which is sought to be done by the impugned notice dated 27th October, 1995.
8. The petitioner subsequently with the leave of the court filed a supplementary affidavit further contending that even if the respondents unite two Gram Panchayets into one, the existing members of the Gram Panchyet after such merger are entitled to continue and the notices issued by the respondents for holding a fresh election for united Gram Panchayet is contrary to section 5(4) of the West Bengal Panchayet Act 1973 read with section 4(2) thereof. It was also specifically pleaded the aforesaid notification dated 16th October, 1995, was not published in the manner provided in the statute.
9. The respondents in their affidavit-in-opposition to the writ petition as also the said supplementary affidavit have contended that a notificationwas duly issued on 30th September, 1994, in exercise of power under Clause 'C' read with the first proviso to section 9 and section 3 of the Bengal Municipal Act expressing the intention to include the area mentioned of the Bhatpara Municipality and inviting an objection thereto. After issuing such notification both the Gram Panchayets welcomed the decision of State Government and both the Gram Panchayets in separate meetings held on 9th January, 1995, adopted resolution welcoming the resolution of exclusion some of its area and unification of two Grams into a single unit. Thereafter the Governor was pleased to issue a notification invoking provisions of Clause 'C' read with proviso to section 9 and section 3 of the West Bengal Municipal Act including certain areas of Madrat Panpur and Narayanpur Gram Panchayet area within the Bhalpara Municipality area. It is further contended in the affidavit because of the situation arising of the same ultimately by the subsequent notification the two Gram Panchayets were unified and consequently the election of such unified Gram Panchayet was sought to be held by the respondents. It is contended that the same has been made as per the provision of section 197B of the West Bengal Panchayet Act. It was also sought to be contended that the petitioner cannot maintain the petition without impleading the members of the newly constituted two Gram Panchayets.
10. As to the point raised in the writ petition that no enquiry or consultation was made as contemplated under section 3(3) of the West Bengal Panchayet Act, the same cannot be sustained as it appears from the affidavit-in-opposition of the respondents as also the records produced before this Hon'ble Court by the respondents that the two concerned Panchayets in fact adopted resolution supporting the decision of the State Government to merge certain areas of the aforesaid two Grams in the Bhatpara Municipality and for unification of the two Gram Panchayets into one. But the other contentions raised by Mr. L.K. Gupta the learned counsel appearing for the petitioner are indeed of great substance and requires serious consideration by the court. It has been submitted by Mr. Gupta there cannot be any election for Pradhan only in the manner it has sought to be done by the respondents inasmuch as after unification of the remaining areas of the two Grams a new Gram has been created and therefore it will be necessary for the State Government to constitute the Gram Panchayet for the aforesaid new Gram in terms of section 4 of the said Act, and unification of Gram does not amount to unification of Gram Panchayet without constituting a Gram Panchayet afresh: therefore under section 4 of the said Act there cannot be any election for electing only the Pradhan.
11. It is also specifically contended that the impugned notification dated 16th October, 1995, not having been published in the manner prescribed in the said Act namely by publishing the same in the official gazette, all steps taken pursuant thereto are void and therefore no steps can be taken for holding the election as said to be done by the respondents.
12. Mr. Manick Chandra Das the learned counsel appearing for the respondents on the other hand has opposed such contention of Mr. Gupta contending, inter alia, that for the purpose of constitution of the Panchayet of the newly constituted Gram as per section 5(4) of the Panchayet Act, itis not at all necessary for the respondents to hold a general election under section 4 of the said Act, as the two Gram Panchayets by virtus of unification under section 3(3)(d) of the said Act constituted a new Gram the local limits of which has been notified already and the members already having been elected under section 4(2) of the said Act and their tenure of this office still being in force, under the provision 197B the elected members of the remaining areas of the two Gram Panchayets have the right to continue and it is not necessary at all to reconstitute the Gram Panchayet of the new Gram under section 4(2) of the said Act. Similar submission has been advanced by Mr. Bikash Bhattacharjee the learned counsel appearing for the newly constituted Gram Panchayet who although were not impleaded as respondents were allowed by this court to make submission.
13. The power of the State Government to exclude from any Gram any area comprised therein or to include in any Gram any area contiguous to such Gram or to unite the areas of two or more Grams so as to constitute a single Gram, as it has been done in the instant case. Is not really disputed. The question however which has come up for determination for this court in the instant case as to whether after unification of area of two or more Grams constituting a single Gram a fresh election is to be held for constitution of the Gram Panchnyet under the provision of section 4 of the West Bengal Panchayet Act or is it sufficient only to hold the election for the Pradhan and Upa-pradhan as it has been sought to be done in the instant case.
14. Under section 3(1) of the West Bengal Panchayet Act the State Government is empowered to declare by notification any Mouza or part thereof to be a Gram.
15. Under section 2(10) of the said Act 'Gram' has been defined as the area referred to in section 3 of the Act.
16. Under section 3(2) of the said Act, after declaration by notification any Mouza or part' of a Mouza or a group of contiguous Mouzas or part thereof to be a Gram; it is required to specify the name of the Gram by which it shall be known and also to specify the local limitation of such Gram. Under section 3(3) of the Act the State Government after making such enquiry as it may think fit and after consulting the views of the Gram Panchayet or Panchayets concerned by notification exclude from any Gram any area comprised therein or include in any Gram any area contiguous to such Gram or separated by an area to which the said Act does extend or in which the remaining sections of the Act referred to in sub-section 3 of section I have not come into force or divide the area of a Gram so as to constitute two or more Grams or unite the areas of two or more Grams so as to constitute a single Gram.
17. A careful reading of the aforesaid provisions of the Act therefore indicates when the State Government after holding enquiry and after consulting the views of the Gram Panchayet or Panchayets concerned unite areas of two or more Grams constituting a single Gram, a new Gram is created for which its name as also its area are required to be specified under sub-section 1 of section 3 of the Act and after unification of the areas of two or more Grams constituting a single Gram, the old Gram which wasin existence ceases to exist and a new Gram with the new name and area comes into being.
18. That after such unification of the areas of two or more Grams a new Gram is created is also not disputed by the parties.
19. Section 4(1) of the Act provides that for every Gram the State Government shall constitute a Gram Panchayet bearing the name of the Gram and sub-section 2 and 3 of section 4 provides the procedure for such constitution of Gram Panchayet by holding an election. Section 4(4) of the said Act provides that every Gram Panchayet constituted under the said section shall notwithstanding anything contained in section 2(10) be notified in the official gazette and shall come into office with effect from the date of first meeting at which the quorum is present.
20. Section 5 of the Act which specifically deals with the effect of alteration of the area of a Gram including the effect of unification of area of two or more Grams constituting a single Gram, does not provide for unification of the two Penchayets after such unification of the areas of two or more Grams constituting a single Gram.
21. On the contrary sub-section 4 of section 5 of the Act which specifically deals with the effect of the unification of the area of two or more Gram constituting a single Gram specifically provides when the two or more Grams are united under Clause 'd' of sub-section 3 of section 3 so as to constitute a single Gram, there shall be re constitution of the Gram Panchayet for the newly constituted gram in accordance with the provisions of the said Act and the Gram Panchayets of the Gram so united shall cease to exist from the date of coming into office of the newly constituted Gram Panchayet.
22. Since section 4 of the said Act is the only provision of the said Act which provides the manner in which the re constitution of a Gram Panchayet is to be made of a Gram, section 5(4) of the Act when read with section 4 of the Act leaves no manner of doubt that in case of such unification of area of two or more Grams constituting a single Gram, re constitution of the Gram Panchayet of the aforesaid newly constituted Gram has to be made in the manner provided for under section 4(2) and (3) of the Act.
23. Under the aforesaid provisions of section 4(5) of the Act, after unification of the area of two or more Grams into one. Gram constituting a new Gram, the requirement for reconstituting the Gram Panchayet of the newly created Gram is mandatory. The aforesaid provision of section 5(4) also indicates that the existing Gram Panchayet will cease to exist with the coming into office of such newly constituted Gram Panchayet and therefore till such time the existing Gram Panchayet will continue. No provision of the Act under such a situation has provides for unification of existing Gram Panchayet into one at it has been sought to be done in the instant case by the impugned notification nor any provision of the Act has provided for reconstitution of the Gram Panchayet of such created Gram by uniting the existing Gram Panchayets.
24. The impugned action of the respondents to unite two Gram Panchayets into one in the manner aforesaid and to attempt to hold theelection only of the Pradhan and Upa-Pradhan afresh without reconstitution the entire Gram Panchayet as provided for under section 5(4) of the Act read with section 4(2) and (3) of the Act therefore is absolutely illegal, without jurisdiction and contrary to the provision of section 5(4) and section 4 of the said Act.
25. Mr. Manick Chandra Das appearing for the State respondents and Mr. Bikash Bhattacharjee appearing for the unified Gram Panchayet have sought to contend that after such creation of new Gram by such unification as aforesaid, it is not necessary to reconstitute the entire Gram Panchayat by holding a fresh election in the manner of sub-section 2 and sub-section 3 and sub-section 4 of the Act, the Gram Panchayet were already reconstituted of the existing members of each of the Gram under section 7 of the Act are entitled to continue till the completion of their tenure. To accept such submission would mean that although the language of section 5(4) of the Act is absolutely clear and the same in case of such unification, the Gram Panchayet for the newly constituted Gram has to be reconstituted one has to read 'reconstitution of Gram Panchayet' as 'election of Pradhan and Upa-Pradhan'. Such interpretation is against all cannons of interpretation and is therefore rejected. Such a proposition is also tenable. If in such a situation reconstitution of Gram Panchayet for the newly constituted Gram can be made by simply uniting the existing Gram Panchayet with their reduced constituencies and members, the same will loose its true representative character.
26. The tenure of a member of a Gram Panchayet under section 7 of the Act does not override the provision of section 5(4) of the Act and is associated with the subsistence of the Gram Panchayet. After such unification of area of two Grams and creation of a new Gram, the existing Gram Panchayet cannot realty exist. But as it has been provided in section 5(4) of the Act after its 1983 amendment, it will cease to exist with the coming of office of the newly constituted Gram Panchayet of such new Gram. It is pertinent to note before its 1983 amendment (by West Bengal Act 2 of 1983), section 5(4) of the Act provided that the existing Gram Panchayet would cease to exist from the date of such unification and a separate Gram Panchayet for the new Gram was required to be constituted.
27. It has also sought to be contended that the Gram also includes Gram Panchayet and therefore unification of the Gram will amount to the unification of Gram Panchayet and accordingly no illegality has been committed by the respondents.
28. Such contention of the respondents are not tenable at all. Both Gram and Gram Panchayet have been separately defined. Under section 2(10) of the Act Gram means an area referred to in section 3: under section 2(11) Gram Panchayet means a Gram Panchayet constituted under section 4. It will appear from the Act that Gram does not even by implication include Gram Panchayet as indeed the same cannot so include as Gram Panchayet is an institution of self-Government, as it will appear from section 2(15B) of the Act which provides that Panchayet means an institution of self-Government and includes Gram Panchayet, Panchayet Samlty, Mahakuma Parisad or Zilla Parisad. It has also sought to be submitted on behalf of the said respondents that under the provision of section 197B of the Act.in case of inclusion of the whole area of a constituency of the Gram Panchayet in a Municipality although the member of elected from such constituency to the Gram Panchayet shall from the date of such inclusion cases to be member of the Gram Panchayet, the rest of the members shall continue in accordance with the direction of the State Government till its re constitution or unification with another Gram Panchayet under section 3(3)(d). It is contended that the aforesaid provisions under section 197B therefore makes it clear that it is not at all necessary to reconstitute the Gram Panchayet of the new Gram after such unification by holding fresh election under section 4 of the Act. The aforesaid submission made on behalf of the respondents referring to section 197B of the Act in my view is based on the erroneous interpretation of the aforesaid provision of the Act. Section 197B of the Act does not override the provision of section 5(4) of the Act. Section 5 of the Act deal with the effect of alteration of the area of a Gram and sub-section 4 thereof specifically deals with the effect of unification of area of two or more Grams into one Gram and the same specifically provides that in case of such unification there shall be reconstitution of Gram Panchayet in the newly constituted Gram in accordance with provision of the Act. The aforesaid provision for re constitution of the Gram Panchayet in such a situation for the newly constituted Gram under the provision of the Act is mandatory and as soon as the said newly constituted Gram Panchaycts of the newly constituted gram takes office, the existing Gram Panchayet shall cease to exist. Unless therefore such re constitution is made the existing Gram Panchayets of the old Gram will continue. But as subsection 2 of section 4 of the Act specifically provides the minimum numbers of members for a Gram Panchayet and because of such prescription as to the minimum number of members of Gram Panchayets, in case of alteration of area of a Gram under sub-section 3, the number of the existing members of the Gram Panchayet may fall shorts of such minimum number and as such could not have continued at all inspite of the provision of section 5(4) of the Act rejecting in a column before reconstitution of the Gram Panchayat for the newly constituted gram which will take some time. It is for the purpose of saving such a situation the legislature in its wisdom by way of amendment of the parent Act has provided for under sub-section 2 of section 197B that in such a situation the Gram Panchayet shall continue to function in accordance with the direction of the State Government till its reconstitution or unification with another Gram Panchayet under section 3(3)(d) of the Act. But as section 3(3)(d) does not provide at all for unification of the Gram Panchayet but unification of Gram, the expression 'till its unification with Gram Panchayet' obviously will mean till its unification with another Gram Panchayet by aforesaid reconstitution in the manner indicated under section 5(4) of the Act read with section 4 of the Act.
29. The impugned action of the respondents therefore to attempt to reconstitute the Gram Panchayet of the newly created Gram of Panpur-keutia on unification of the areas of the aforesaid two old Grams, by seeking to unite two existing Gram Panchayets into one and attempting to hold fresh election only for the purpose of electing Pradhan and Upa-Pradhan are absolutely ultra vires the provision of the Act, illegal and without jurisdiction.
30. Even the direction contained in the impugned notification, inter alia, to the effect 'in exercise of power conferred by Clause 'd' of sub-section 3 of section 3 of the West Bengal Panchayet Act 1973 the Governor is pleased hereby to unite the Grams specified in column (I) of the schedule below and constitute two new Gram Panchayets specified in the corresponding entries in column (II) of the said schedule each comprising such area as specified in the corresponding entries in column (III) in the said schedule' is inconsistent not only with the provision of the Act and the other part of the said notification, but even with the stand taken by the respondents in their affidavit that because of such unification of two Grams comprising a new Gram the two Gram Panchayets have been unified. The said notification does not speak of such Gram Panchayet at all, but speaks of, Constitution of two new Gram Panchayets specified in corresponding entries in column (II). The column (II) of the said notification however does not contain the name of any such two new Gram Panchayets as said to be created by the said notification, but the name of the newly created Gram by unification of the areas of two old Grams (Madral Punpur and Narayanpur) namely Panpur-Keutla. Other notification has been produced to show that by any other order or direction the respondents have unified the two Gram Panchayets of the old Grams into a new Gram Panchayet after unification of the areas of the two old Grams and creation of new Gram namely Panpur-Keutla.
31. That apart the other part of the notification which contains a direction to the effect that subject to the cessation, of membership under section 197B of the said Act, the members holding offices in the Gram Panchayet for the Grams as specified column (I) of the schedule shall continue to hold their respective offices in the Gram Panchayet for the constituted Gram as specified in the corresponding entry in column (II) for the unexpired portion of the terms of offices is also wholly inconsistent with the other part of the said notification including the schedule, as there is nothing to show in the said notification that after creation of such new Gram any new Gram Panchayet has been reconstituted by uniting the two old Gram Panchayets and the column (II) of the schedule does not contain the name of any such Gram Panchayet but of the new Gram so created.
32. Since, by virtue of direction contained in the first part of the said notification no two Gram Panchayets have been created nor any new Gram Panchayet has been constituted by reconstitution for the newly created Gram, the question of continuation of the members of the existing old Gram Panchayet in the Gram Panchayet of the newly created Gram does not and cannot arise. That apart such direction also is wholly contrary to the provision of section 197B(2) of the said Act under which a direction can be issued for continuation the existing Gram Panchayet when because of such alteration of its area, number of members fall short of the minimum required members under sub-section 4(2) of the Act, till its reconstltullon under the provision section 514) read with section 4 of the Act. Since provision under section 5(4) of the Act for such reconstitution in case of creation of a new Gram is mandatory, such a direction under section 197B of the Act can be issued only as stop gap measure till such reconstitution, and not for permitting the members of the old Gram Panchayet to continue till the expiry of their tenure without making such reconstitution.
33. It appears the respondents have dealt with the matter in total non-application of mind and has followed a procedure de hors the provision of the Act and contrary thereto.
34. It is also not to be overlooked that even the issue of the aforesaid notification for unification of the area of the aforesaid two old Gram Panchayet and creation of new Gram the respondents has acted in contrary to statute. Such unification of the area of two Grams and creation of a new one ostensibly has been made under section 3(3)(d) of the Act.
35. The aforesaid provisions of the said Act provides that such unification of area of two or more Grams constituting a single Gram can be made after such requisite enquiry and consulting the views of the Gram Panchayets, by notification. Under section 2(4) of the Act notification means a notification published in the official gazette.
36. Consequently such unification can be made by the respondents under the aforesaid provision of section 3 of the Act only by publishing a notification in the official gazette.
37. It may be noted in this connection although it has been specifically pleaded by the petitioner that no such notification was published in the official gazette and the matter was adjourned from time to time to enable the respondents to produce such a notification if any they failed to produce such notification. Ultimately a copy of Calcutta Gazette dated 13th December, 1995, has been produced before this court containing the impugned notification dated 16th October, 1995.
38. It will thus appear that the impugned notification dated 16th October, 1995, unifying the areas of the aforesaid two old Grams and constituting the new Gram of Panpur-Keutia was not published at all in that Official gazette before 13th December, 1995, and the same was published in the official gazette by the respondents during the pendency of the writ application and when the matter was being heard from time to time wherein a specific point has been taken by the petitioner that there has been no publication in the petitioner that there has been no publication in the Official Gazette.
39. There is no manner of doubt that the respondents in course of hearing realising the aforesaid lacuna has sought to fill up the same by publishing the same in the Official Gazette dated December 13, 1995. It will therefore appear from such Official Gazette when the respondents have taken steps for holding the election of Pradhan and Upa-Pradhan and have taken various steps in respect thereto and directed the petitioner to hand over charge to the newly elected Pradhan admittedly there was no unification at all uniting the areas of the aforesaid two old Grams namely Madral Panpur and of trunketed Narayanpur and creation of the new Gram Panpur-Keulla. Such unification if any and creation of the new Gram obviously will take effect from the date of publication of the aforesaid notification in the official gazette that is on and from December 13, 1995. All actions prior thereto therefore are wholly without jurisdiction, cannot be sustained and liable to be set aside.
4O. Mr. Bhattacharya appearing for the so called newly unified Gram Panchayet has sought to contend that the publication of the aforesaid noticein the official gazette subsequently will not vitiate the aforesaid action taken prior thereto as the concerned persons had sufficient notice in respect thereof. Number of Judgments have been relied upon by Mr. Bhattacharya in support of his contention. The decision of the Supreme Court in the case of B.K. Srinivasan & Anr. v. State of Karnataka reported in : [1987]1SCR1054 which has been relied upon by Mr. Bhattacharya in respect of his aforesaid contention, in my view. Is clearly distinguishable and does not apply in the instant case. in the said case the Supreme Court after examining the scheme of the Karnataka Town and Country Planning Act specially section 13(4), 12A(2) and section 9(1) and (2) was of the view that from the scheme of the said Act it will appear that section 13(4) contemplates besides permanently displaying the plan and the particulars in the offices of the Director and Planning Authority and keeping available a copy for the inspection of public at the office of planning Authority a public notice to the general public that the plans and regulations are permanently displayed and are available for inspection by the public and that is how it was understood by the authorities and every one else is concerned and therefore there is sufficient compliance of section 13(4) and Rule 33 which speaks of publication in the official gazette. The scheme of the present Act however does not contemplate any mode of provisions of such unification of the area of two or more gram and creation of a new gram except by publishing a notification in the official gazette. The decision of the Supreme Court in the case of Baburao alias P.B. Samant v. Union of India and Ors. reported in : [1988]172ITR713(SC) upon which reliance has also been placed by Mr. Bhattacharya has no manner of application in the instant case. The Supreme Court was considering in the said case the question of publication of the proclamation of the emergency. There is no provision in the Constitution or otherwise for publication of the same in the official gazette and the Supreme Court was of the view that it was sufficient publication of the same by passing the resolution in the Parliament and publication of the same in the report of the proceeding of the Lok Sabha. The decision of the Division Bench of the Allahabad High Court in the case of Ram Kumar Vaiia v. State of U.P reported in : AIR1993All14 , is also distinguishable. In the said case the Allahabad High Court was interpreting section 4(1) of the land Acquisition Act which provides that whenever the Government lakes a decision that land in any locality is needed for any public purpose, a notification to that effect shall be published in the official gazette and in two dally newspapers circulating in that locality of which at least one shall be in the regional language and the steps are to be taken by the collector to cause public notice of the substance of such notification to be given at convenient places in the said locality. It was urged before the Allahabad High Court that the notification under section 4(1) was invalid as the publication was made prior to gazette notification. It was held by the Allahabad High Court that once the copies of the notification are despatched to the Government and the two daily newspapers for being published and to the collectors notice of the substance of the notification to be given at convenient places, it was for the said separate three agencies to act further and in which order the said three agencies would act cannot be visualised, and such agencies are free to publish then in any order and the fact that newspapers publication was made first cannot invalidate the requisition.
41. Similarly the decision of Monoranjan Mallick J, in the case of Sankardas Paul v. The State of West Bengal & Ors. reported in 1989(2) CLJ 311, is also distinguishable. In the said case the court was considering the question whether the order of supersession of Municipality under section 533 of the Bengal Municipal Act will take effect from the date of the order or from the date of publication of such order in the official gazette which was made subsequently and on the basis of the order itself an administrator took ever the charge and it was contended on behalf of the petitioner that the same was invalid as they could have taken effect only on publication in the official gazette. Such contention was negatived, inter alia, on the ground since under section 354 of the Act it is provided that when an order of supersession is passed under section 533 of the Act, then from the date of the order the Commissioners shall vacate their offices, supersession will take effect from the date of the order and not from the publication of the order in the official gazette if the same is done subsequently.
42. In the instant case it will appear from the scheme of the Act that the manner in which the State Government may unite the areas of two or more Grams constituting a new Gram as also the manner in which the area of a Gram may be altered by excluding an area there from or including in any Gram any area contiguous to such Gram or by dividing the area of a Gram creating two or more Grams is specifically provided under sub-section 3 of section 3 of the Act. It will appear from sub-section 3 of section 3 that such alteration in the area of a Gram including the unification of areas of two or more Grams so as to constitute a single Gram can be made by the State Government after making such enquiry as it may think fit and after consulting the views of the Gram Panchayet or Panchayet concerned by notification. Such provision therefore leaves no manner of doubt that State Government can make such unification and creation of a new gram only by a notification after making such enquiry or consulting the views of the Gram Panchayets and since under section 2(14) of the Act notification means notification published in the official gazette, there cannot be any other mode of notification. Such a notification published in the official gazette is one of the conditions precedent of such unification of the area of two or more Grams constituting a single Gram along with such enquiry and consulting the views of the Gram Panchayets. The significance of the expression by notification, instead of by an order cannot also be overlooked. The scheme of the Act has not also provided any other mode or procedure for such unification. Under such circumstances unless or until such notification published in the official gazette is there, mere holding of an enquiry and consulting the views of the Gram Fanchayets cannot complete the process of unification and creation of a new Gram.
43. In this connection it is also worth referring to a Division Bench decision of the Bombay High Court in the case of Malkapur Municipality v. State, reported in : AIR1977Bom244 where the Bombay High Court was dealing with the provision of section 313 of the Maharastra Municipal Act which provides that the 'State Government may by an order published in the official gazette appoint a Government official as administrator'. It was held by the Bombay High Court that since section contemplates publications of the order in the Gazette and unless theformalities mentioned in the section including the publication of the order is made the order passed under section 313 cannot be a valid and legal order nor can it come into operation and the Administrator can be appointed only by an order passed in the Official Gazette. The provision under subsection 3 of section 3 of the West Bengal Panchayet Act is more stringent than the Maharastra Municipal Act inasmuch as pointed out hereinbefore. Sub-section 3 of section 3 does not use the expression 'by order' but specifically provides that after due enquiry and after consultation with the Panchayets the unification has to be made by a notification.
44. Thus when the statute itself provides such a procedure for alteration of the area of the Cram Panchayet including uniting the areas of two or more Gram Panchayets constituting a new Gram, for the purpose of such unification such procedure must be followed or not at all.
45. Admittedly in the instant case such unification of the areas of two Grams into the constituting new Gram was never made by notification in the official gazette and therefore the day the notice for election of the Pradhan and Upa-Pradhan were issued and election were held the new Gram did not come into existence at all in the eye of law and therefore the entire action of the respondents are without jurisdiction and void. The attempt of the respondents to fill up the lacunae in such unification by publication of the notification in the official gazette in December 13, 1995. During the course of hearing of the writ petition before this court cannot cure such infirmity nor such notification can have the retrospective effect. Such notification at most can have a prospective effect. I am however unable to accept the submission made by Mr. Gupta appearing for the petitioner that this court is called upon simply to examine the validity of the impugned notification and the action of the respondents in holding election for Pradhan and Upa-Pradhan and if the same are quashed this court need not be concerned when the reconstitution of the Gram Panchayet of the newly constituted Gram will be made under the provision of section 5(4) read with section 4 of the Act. The provision for such reconstitution being mandatory, the State is duty bound to take steps for such reconstitution without delay. The provision for continuation of the old Gram Panchayet under section 1973 is merely a stop gap arrangement till such reconstitution. Now that it has come to the notice of the court that the State Government is not performing such statutory duties, the court cannot certainly ignore the same, although it may help the petitioner, but certainly is entitled to give appropriate direction for such reconstitution for public interest.
46. For the reason stated above the impugned notification dated 16th October, 1995, being annexure 'F' to the writ petition cannot be sustained and is liable to be quashed. But since a notification for such unification and creation of the new Gram has now been published in the official gazette, such unification and creation of new Gram will take effect from the date of such gazette notification that is 13th December, 1995. The State Government therefore is bound to lake steps for reconstitution of the Gram Panchayet for the newly created Gram. In the result the writ application succeeds. The impugned notification dated 16th October 1995, being annexure 'F' notices issued for holding election of Pradhan and Upa-Pradhan of the Madral Panpur Gram Panchayet being annexure 'G' and all action pursuant thereto for such election are hereby quashed.
47. It is hereby declared that unification of the areas of the two old Gram Madral Panpur and Narayanpur constituting in the new Gram namely Panpur-Keutia has taken effect from the date of publication of the notification in the official gazette dated 13th December. 1995, and till reconstitution of the Gram Panchayet of the said newly created Gram, the old two Gram Panchayets of Madral Panpur and Narayanpur will continue with their respective trunkated area and reduced members exercising Jurisdiction over its respective area and with the existing Pradhan and Upa-Pradhan including the present petitioner elected prior to such unification, under the provisions of section 1978(2) of the West Bengal Panchayet Act, and the functioning of such Pradhan and Upa-Pradhan shall not be interfered with.
48. Since the provision of reconstitution of the newly created Gram is however mandatory, it is directed the State Government shall reconstitute the Gram Panchayet of such newly created Gram of Panpur-Keulia under sub-section 2, sub-section 3 of section 4 of the West Bengal Panchayet Act by preparing a fresh electoral roll and by holding a fresh election under the aforesaid provision of the said Act within three months from the communications of the order.
49. The writ application therefore succeeds. There will be no order as to costs.
50. Let a copy of the operative portion of this judgment be forwarded by the Registry of this court within a fortnight from the receipt of this Judgment to the Secretary, Department of Panchayets, Director of Panchayet and to the Principal Secretary, Government of West Bengal, Department of Panchayet, for their information and for compliance with the directions of this court.
51. Writ application succeeds