Observations on Civic bodies oppose DM as receiving officer

Hillman the Analyst, KalimNews, Kalimponmg, 31 August 2014: Apropos newspaper article in the Telegraph dt: 23 August 2014 by Vivek Chhetri “Civic bodies oppose DM as receiving officer”. In citing the above article I feel it is my beholden duty and service to the hill people of Darjeeling District to make a few observations, uncovered during my course of study enquiring the status of Darjeeling District, nay including the entire Dooars (18) in the States of West Bengal and Assam, and to arrive at the nature of the geopolitical standing of these areas, considered as ceded territories in their historical contents and origin.

Forgive the ‘aspect of a little man with big talk’ I would like to submit a few specific points concerning Darjeeling District and its place of safeguard in the Constitution of India, as defined in the Govt. of India Act 1935 and Order 1936 “Excluded & Partially Excluded Areas” (E&PEA), clearly indicating Darjeeling District as a ‘Partially Excluded Area’ (PEA) which literal translation has impounding significance in describing the people of the region qualified to be safeguarded by complete ‘Exclusion’ from the reforms program conducted by then Govt. of India. However at the time of independence (1947) and the promulgation of the Constitution (1950) it is reckoned in interpreting the Constitution that certain Articles of the Constitution are very specific in ensuring the safeguard of the citizens of Darjeeling District (understood as well as the 18 Dooars aspects).

This safeguard provision of the 1935 Act is understood to be carried over into the power of the President. This ramification of this special provision is contained in Art. 392. Power of the President to remove difficulties.

Quote (1).The President may, … particularly in relation to the transition from the provisions of the Government of India Act 1935 to the provisions of this Constitution, by order direct that this Constitution shall, during such period as may be specified in the order, have effect to such adaptations, whether by any of modification, addition or omission, as he may deem to be necessary or expedient.

(3). The powers conferred on the President by this Article, by article 324 clause (3) of article 367 … , before the commencement of the Constitution be exercisable by the Governor-General of the Dominion of India.

Art.367: … (2) …….. shall be construed as including a reference to an Ordinance made by the President or to an Ordinance made by a Governor [***] as the case may be. [***The words “or the Rajpramukh” omitted by the Constitution (Seventh Amendment) Act 1956, sec.29 and Sch. (w.e.f.1-11-1956)

… Provided that, subject to the provisions of any law made by Parliament, the President may by order3 declare any State not to be a foreign State for such purposes as may be specified in the order.[3.See the Constitution(declaration as to Foreign States) Order, 1950 (C.O.2)].

Interpreting the above Articles it presumes that E&PEA came under the Commissionership 1828 (in respect to Assam Province) and later on applied to other such designated areas from time to time. Accordingly the two Districts of Darjeeling and Jalpaiguri came under the Scheduled Districts Act 1874 till the reforms of Assam Frontier Tract Regulation 1880 promulgated to give the powers to the Chief Commissioner of Assam. The United Kingdom Parliament passed the Govt. of India Act of 1919 to expand participation of the natives in the Govt. of India.  The reforms under the Simon Commission 1927-1930 passed the Govt. of India Act 1935 and Order 1936 converting the meaning of Backward Tracts to mean total ‘Exclusion’ under the phrase Excluded & Partially Excluded Area. Such designated areas were outside the purview of central & provincial legislatures designated as non regulated areas as compared to regulated areas subject to reforms within British India. The E&PEA were administered by the Governor of the Province under the dual role as the Chief Commissioner.    

      

The Act of 1935 granted statusqua to Darjeeling District as a Partially Excluded Area (not subject to reforms program) therefore applicable only to special administration under the Deputy Commissioner (DC) under the Commissioner, Jalpaiguri Division (North Bengal) headquarters based in Jalpaiguri.  

As per the above history Darjeeling District administration was under the DC. However since an unknown period of time the office of the DC is now headed by the Deputy Magistrate (DM) is a wide administrative reforms change implicating various subjects, regarding which changes the inhabitants to which applied are still in darkness seeking light to understand the implications actually involved between the power of the two designated posts, which surely are meant for different aspects of administration within the area concerned. The affected persons, the public in general demand an immediate explanation from the govt. as to how, why and when the change became effective. Accordingly the govt. of the day requires publishing the relevant notification for accounting transparency in administration convincing to the public.

The explanation has more significance considering the present situation wherein the State of West Bengal is once again reverted back vide Notification No.4139-BCW/3C(MC)-08/96 on 10^th December 2013 to provisions of the Fifth Schedule provided for the establishment of Tribes Advisory Council in West Bengal as per sub paragraph (3) of paragraph 4 of the Fifth Schedule to the Constitution of India. It is to be recalled that West Bengal was under the same administrative program i.e. Tribes Advisory Council in West Bengal during the commencement of the Constitution 1952-56.

The State of West Bengal is seen to have been formed during the same period of time under the Transfer of Territories Act 1956. During this transition Darjeeling District was merged with West Bengal thereby losing it ancient identity for 57 years till recently in 2013 whence it seems to have regained its original distinct status in comparison to the rest of the State excluding possibly the 18 Dooars (11 in Jalpaiguri District & 7 in Assam).

This probability is seen as originating from the Constitution itself guaranteed by: “Part XXI TEMPORARY, TRANSITIONAL & SPECIAL PROVISIONS (Arts. 369-392)

Art.369: Temporary power to Parliament to make laws with respect to certain matters in the State List as if they were matters in the Concurrent List.”

This aspect seems in consonance with the establishment of the Tribes Advisory Council in West Bengal referred above as statusqua ante 1956 under administration of Darjeeling district and probably Jalpiaguri & Cooch Bihar Districts under the Commissioner North Bengal including the Districts of Malda, West Dinajpur.

In considering the above aspects Darjeeling District (sic. four subdivisions of Darjeeling, Kurseong, Siliguri and Kalimpong) being the ceded territories of Sikkim is more or less guaranteed by the Constitution under conditions of Special provisions provided by Art.371F: Sikkim. Accordingly by implication Darjeeling District under constitutional law fall under Temporary, Transitional & Special Provisions Art.371F (?).

Surely till that period the interim setup GTA was provided under Art.369 till the period Darjeeling District is declared a Scheduled Area on account of the increase in Scheduled Tribes population in West Bengal on account of listing two new hill tribes Limbus and Tamangs in 2003 in Darjeeling District and which population now stands at 21.5% (Census 2011) as compared to 12.78% (Census 2001).

It is the above constitutional history which impacts the consideration of the civic bodies of the GTA areas to base its entire claim in asserting the legal constitutional right in holding the power of the reviewing officer. This purview may be considered otherwise under the Deputy Commissioner who has a wider power in governance and administration than the District Magistrate. This conclusion seems more proper, effective and constitutional, providing for the proper administration of not only the GTA area but the entire Darjeeling District as a Partially Excluded Area under the Act of 1935 in transition to the Constitution of India under the Fifth Schedule.

This is my humble contribution as a hill man seeking justice under the Constitution of India for an effective separate administration outside West Bengal. 

Karma T.Pempahishey is a freelance writer popularly known as Hillman the Analyst.