• Country/entity

  India
  Darjeeling
  

• Region

  Asia and Pacific
  Asia and Pacific
  

• Agreement name

  The Darjeeling Gorkha Hill Council (Amendment) Act 1994

• Date

  28 Feb 1994

• Agreement status

  Multiparty signed/agreed

• Interim arrangement

  Yes

• Agreement/conflict level

  Intrastate/intrastate conflict ( India-Adivasi Conflicts (1955 - ) (Northeast India) )

• Stage

  Implementation/renegotiation

• Conflict nature

  Government/territory

• Peace process

  India-Darjeeling peace process

• Parties

  The Full list parties involves is unclear from the agreement but includes the West Bengal Legislature and, presumably, the Darjeeling Gorkha Hill Council.
  
  By order of the Governor,
  S.K., Phaujdar,
  Secy. to the Govt. of West Bengal

• Third parties

  -

• Description

  This agreement provides for a number of amendments to the Darjeeling Gorkha Hill Council Act (1988) and largely focuses on altering procedural arrangements for the council.

• Agreement document

  IN_940228_Darjeeling Gorkha Hill Council Amendment.pdf | Download PDF

Groups

Gender

State definition

Governance

Power sharing

Human rights and equality

Rights related issues

Rights institutions

Justice sector reform

Socio-economic reconstruction

Land, property and environment

Security sector

Transitional justice

Implementation

The Darjeeling Gorkha Hill Council (Amendment) Act, 1994.

[Passed by the West Bengal Legislature.]

[Assent of the Government was first published in the Calcutta Gazette, Extraordinary, of the 28th February, 1994.

An Act to amend the Darjeeling Gorkha Hill Council Act.

1988.

Whereas it is expedient to amend West the darjeeling Gorkha Hill Council Act, Bengal 1988, for the purposes and in the manner Act XIII

hereafter appearing;

of 1988

It is hereby enacted in the Forty-fifth Year of the republic of India, by the Legislature of West Bengal, as follows:-

Short title and

1. ( 1) This Act may be called the Darjeeling commencement.

Gorkha Hill Council (Amendment) Act, 1994.

Amendment of section 2 of West Ben.

Acr XIII of 1988.

(2) Clause (b) of section 11 and section 47 shall come into force at once;

and the remaining provisions of this Act be deemed to have come

into force on the 27th day of November, 1993.

2. In section 2 of the Darjeeling Gorkha Hill Council Act, 1988 (hereinafter referred to as the principal Act),-

(a) after clause (a), the following clause shall be inserted :

-

(Section 3)

(a) "Council" means the Executive Council;

(b) after clause (b), the following clause shall be inserted:-

(bl) :

Councillor" means a member of the General Council;

(c) after clause (e), the following clause shall be inserted:-

(cl) "Executive Councillor" means the person nominated under clause (a) or clause (b) of sub-section ( 1) of section 38, and includes the Chief Executive Councillor or the Vice-Chairman of the General Council-

(d) clause U) shall be omitted.

3. In section 5 of the principal Act,

(a) in sub-section (I).-

(i) for the word "members", the word "Councillor" shall be substituted, and

(ii) for the words "nominated by the Government," the word "nominated."

shall be substituted;

(b) after sub-section (1 ).

the following subsection shall be inserted:-

"(I) Of the nominated Councillors, eleven shall be nominated by the Government and three shall be nominated by the Chairman of the General Council."

(c) for sub-section (2).

the following subsection shall be substituted:-

"(2) Subject to the provisions of sub-section

(IA).

the Councillors to be nominated by the Government may include

(a) all or any of the members of the Legislative Assembly of the State of West Bengal elected from the constituencies of Darjeeling Kurseong and Kalimpong. (

Sections 4-7)

(b) the member elected to the House of the People from the Darjeeling Parliamentary constituency.

or

(c) all or any of the Chairman of the Municipalities within the Hilt Areas.";

(d) for sub-section (3), the following subsection shall be substituted:-

"(3 )The Government may provide for due representation of minorities, Scheduled Castes, Scheduled Tribes and women, while nominating the remaining Councillors."

4. In section 8 of the principal Act, for the word "member", the word" Councillor" shall be substituted.

5. In section 9 of the principal Act,-

(a) in the marginal note, for the words "members of General Council.'',

the word "Councillors," shall be substituted;

(b) in sub-section (2), for the word "member,", the word "Councillor," shall be substituted.

6. In section I O of the principal Act,-

(1) in sub-section (I), for the words "members of the General Council", the word "Councillors" shall be substituted;

(2) in sub-section (2), for the words "members of the General Council."

the word "Councillors.''

shall be substituted.

7. In section 12 of the principal Act,-

(a) in the marginal note, for the word "members.",

the word "Councillors ...shall be substituted;

(Sections 8-11)

(b) for the word "members", the word "Councillors" shall be substituted.

8. In section 13 of the principal Act,-

(a) in sub-section (I), for the words "members of the General Council", the word "Councillors" shall be substituted;

(b) in sub-section (3), for the word "members", the word "Councillors" shall be substituted.

9. In section 14 of the principal Act, for the word "members" in the two places where it occurs, the word "Councillors" shall be substituted.

10. Section 15 of the principal Act, shall be renumbered as sub-section ( 1) of that section and,-

(a) in sub-section

(1) as so renumbered,-

(i) the words "or nominated" shall be omitted, and

(ii) for the words "the General Council shall be deemed", the words "the General Council shall, notwithstanding anything contained elsewhere in this Act, be deemed" shall be substituted;

(b) after sub-section (1), the following sub-section shall be inserted:-

(2) The names of persons nominated to the General Council by the Government or the Chairman of the General Council, as the case may be, shall be published by the Government in the Official, Gazette."

11 . In section 16 of the principal Act.-

(a) .in sub-section (I),- (Sections 12)

(i) for the word "elected members", the words" elected Councillor'' shall be substituted, and

(ii) for the words "such members", the words "such Councillor" shall be substituted;

(b) after sub-section (I), the following sub-section shall be inserted:-

"( I A) If a member of Parliament or of the State Legislature is elected as a Councillor then, at the expiration of fourteen days from the date of

publication in the Official Gazette of the declaration that he has been so elected, the seat of such Councillor in the General Council shall become

vacant, and he shall be debarred from contesting any election to the General Council for a period of ten years unless he has previously resigned his seat in Parliament or the State Legislature, as the case may be."

(c) in sub-section (2)-

(i) for the word "member" in the two places where it occurs, the word "Councillors" shall be substituted;

(ii) for the word and figures "section 21 ", the words, figures and brackets ··section 21 sub-section (7) of section 34," shall be substituted;

(d) in sub-section (3), for the word "member", the word "Councillors" shall be substituted;

12. In section 17 of the principal Act:

(a) in the marginal note, for the work "members.",

the word "Councillors."

shall he substituted;

(b) in sub-section ( l), for the word "members", the word "Councillors" shall be substituted;

(c) for sub-section (2), the following subsection shall be substituted,- "(2)An elected Councillor, other than the Chairman and Chief Executive

Councillor of the General Council, shall cease to hold office if- (a) he ceases to be a Councillor, or (b) he resigns his office in writing under his hand addressed to the Chairman of the General Council, in which case the resignation shall take effect from the date of its acceptance by the General Council. (

3) A nominated Councillor shall hold office until- (a) he resigns his office in writing under his hand addressed to the Government, if he is nominated by the Government, or to the Chairman of the General Council, if he is nominated by him, and, in each such cases, the resignation shall take effect from the date of its acceptance by the Government or the Chairman of the General Council, as the case may be, or (b) his nomination is cancelled by the Government, if he is nominated by the Government, or by the Chairman of the General Council.

if he is nominated by him, or (Sections 13-15) (c) a fresh nomination is made in his place by the Government, if he is nominated by the Government, or by the Chairman of

the General Council, if he 1s nominated by him, or (d) a new General Council is constituted after a General Election h'eld under sub-section (I) of section 13.".

13. In section 18 of the principal Act,-

(a) in the marginal note, for the word "members.",

the word "Councillors."

shall be substituted;

(b) in sub-section (I),-

(i) for the words "elected member of the General Council", the words "elected Councillor" shall be substituted, and

(ii) in clause (b), for the words "a member of the General Council;

", the words "a Councillor;

" shall be substituted;

(c) In sub-section (2), for the words "Any member of the General Council", the words "Any Councillor" shall be substituted.

14. In section 19 of the principal Act, in the marginal note, for the word "members.",

the word "Councillors."

shall be substituted.

15. In section 21 of the principal Act,

(a) in the marginal note, of the word "Members", "Councillors."

shall be substituted;

(b) for the words "Every member", the words "Every Councillor.

other than the Chairman and Chief Executive Councillor."

shall be substituted:

(Sections 16-18)

(c) for the words "before taking his seat.",

the words "before the first meeting of the General Council or as soon as thereafter," shall be substituted;

(d) for the word "Schedule.",

the words "First Schedule."

shall be substituted.

16. In section 22 of the principal Act,-

(a)' in the marginal note, the word "members.",

the word "Councillors."

shall be substituted;

(b) for the word "Every member", the word "Every Councillor" shall be substituted.

17. ln sub-section (2) of section 23 of the principal Act,-

(a) for the word "Council" in the two places where it occurs, the words "General Council'' shall be substituted;

(b) for the words "fifteen members", the words '·fifteen Councillors" shall be substituted, and

(c) for the words "members present", the words "Councillors present."

shall be substituted.

18. In section 24 of the principal Act,

(a) in clause (v), after the words "public health and sanitation,", the words "family welfare," shall be inserted;

(b) for clause (viii), the following clause shall be substituted:-

(vi ii) public works;

";

(c) for clause (ix), the following clause shall be substituted :

-

"(ix) roads except national highways and State highways;

";

(Sections 19-20)

(d) in clause (xviii), after the words "higher secondary", the words "including social, adult and mass education and nonformal education" shall be inserted;

(e) after clause (xix), the following clauses shall be inserted:-

"(xx) sports and youth services;

(xxi) such other matters as the Government may, be notification in the Official Gazette, place under the control and administration of the General

Council."

19. In section 26 of the principal Act, after the words "in all cases of acquisition or disposal of immovable property," the words "the value

of which exceeds rupees one crore or which is outside the hill areas," shall be inserted.

20. For section 34 of the principal Act, the following section shall be substituted:- "Chief 34 .

(1) The first meeting of the Executive General Council after each general Councilor election shall be held on the date and Vice- appointed by the Government under Chairman.

sub-section (I) of section 17.

(2) The Government may nominate one of the elected Councillors, not being a candidate for election as Chairman of the General Council, to

preside over the first meeting.

(3) The outgoing Chairman and Chief Executive Councillor shall convene the first meeting of the General Council on the appointed date by sending

notice, specifying meeting therein the date, time and place of the meeting, lo the registered address of each Councillor elected to the General Council at least seventy-two hours before the time fixed for such meeting:

Provided that if the outgoing Chairman and Chief Executive Councillor fails to convene the meeting on the appointed date, the Government may authorise an officer to convene the first meeting of the General Council on a date specified by the Government in his behalf.

(4) The election of the Chairman of the General Council shall be conducted by the elected Councillor nominated by the Government to preside over

the first meeting under sub-section (2).

The elected Councillors shall, in the prescribed manner, elect from amongst themselves one Councillor to be the Chairman who shall also be the Chief Executive Councillor.

The presiding Councillor shall have the right to participate in the election of the

Chairman.

(5) In the case of any casual vacancy in the office of the Chairman and Chief Executive Councillor caused by death, resignation, removal or otherwise, the elected Councillors shall, in accordance with such procedure as may be prescribed, elect one of the Councillors to fill up the vacancy:

Provided that pending the election of a Chairman, the Government may appoint by name one of the Councillors to be the Chairman who shall hold office as Chairman and Chief Executive Councillor, and shall exercise all the powers and discharge all the functions of the Chairman and Chief Executive Councillor, until a Chairman, elected in accordance with the provisions of this Act and the rules made thereunder, enters upon his office.

(6) The Chief Executive Councillor may nominate one Councillor to be the Vice-Chairman.

(7) The Chief Executive Councillor shall, within one month from the date of election, make and subscribe before the Governor an oath or affirmation

and shall be given a certificate of receipt of oath or affirmation as so made and subscribed according to the form set out for the purpose in

the Second Schedule.".

Substitution of new section for section 35. (

Sections 21)

21. For section 35 of the principal Act, the following section shall be substituted:-

"Term of office.

35.

(1) The Chairman and Chief Executive Councillor-

(a) shall cease to hold office as such forthwith if he ceases to be a Councillor;

(b) may, at any Lime, by giving notice in writing under his hand addressed to the Chief Minister, resign his office from such date as may be specified in the notice or, from the date of its acceptance by the Chief Minister·

(c) may be removed from office b;

a resolution carried by a majority of the total number of elected Councillors at a special meeting of the General

Council called for this purpose upon a requisition made in writing by not less than one-third of such Councillors.

(2) The Vice-Chairman shall hold office until:

(a) he ceases to be a Councillor, or

(b) he resigns his office in writing under his hand addressed to the Chairman of the General Council, in which case the resignation shall take effect from the date of its acceptance by the Chairman of the General council or

(c) his nomination as Vice-Chairman is cancelled by the Chairman of the General Council:

Provided that notwithstanding such cancellation of his nomination, he shall, subject to the other provisions on this Act, continue to hold office as a Councillor"

(Sections 22-24)

22. In section 36 of the principal Act,-

(a) for the words "and the Vice-Chairman", the word:

"the Vice-Chairman and other Executive Councillors" shall be, :

substituted;

(b) the following prvisio shall be added at the end:- "Provided that an Executive Councillor, not holding any charge of any matter or department of the Council, shall be entitled to the same status and privileges to which any other Executive Councillor is entitled.".

23 . In-sub-section (I) of section 37 of the principal Act, clause (a) be omitted.

24. For section 38 of the principal Act, the following section shall be substituted:- "Executive 38.

(1)There shall be an Council.

Executive Council consisting of the Chief Executive Councillor, the Vice Chairman of the General Council and fifteen other Councillors of whom-

(a) thirteen shall be nominated by the Chief Executive Councillor from amongst the elected Councillors, and

(b) two shall be nominated by the Government from amongst the nominated Councillors:

Provided that non nominated Councillor, who is in Government service, shall be eligible to be nominated as an Executive Councillor.

(2) The manner of transaction of business of the Council shall be such as may be determined by the Council by regulations with the approval

of the Government.

(3) The Council shall be responsible to the General Council.

(4) No Executive Councillor shall hold any office of profit for so long as he holds the office of Executive Councillor, and no Executive Councillor

or member of his family shall, either directly or indirectly,-

(a) enter into any contract, or

(b) have any dealings or transaction with the Council without the specific and prior approval of the Council."

Substitution of 2~ .

For section 39 of the principal Act, the new section for following section shall be substituted ·- "Term of office of 39.

An Executive Councillor shall Executive hold office as Executive Councillor Councillors.

until-

(a) he ceases to be a Councillor, or

(b) he resigns his office of Executive Councillor in writing under his hand addressed to the Government if he is nominated by the Government, or to

the Chief Executive Councillor if he is nominated by him, and, in each such case, the resignation shall take effect from the date of its acceptance

by the Government or the Chief Executive Councillor, as the case may be.

or

(c) his nomination as Executive Councillor is cancell ed by the Government if he is nominated by the Government , or by the Chief Executive Councillor if he is nominated by him, or

(d) a fresh nomination is made in his place by the Government if he is nominated by the Government, or hy the Chief Executive Councillor if he is nominated by him .".

(Sections 26-31)

26. In-sub-section (2) of section 40 of the principal Act, for the words "any other members of the Executive Council", the words "any other

Executive Councillor" shall be substituted.

27.

In section 41 of the principal Act,-

(a) in the marginal note, for the words "Executive Council.'',

the word "Council."

shall be substituted;

(b) for the words "Executive Council", the word "Council " shall be substituted.

28. For sub-section (2) of section 42 of the principal Act, the following sub-section shall be substituted:-

"(2) The Chief Executive Council shall make, for the convenient transaction of business of the Council, allocation among such Executive Councillors of the said business in so far as it is not business with respect to which the Chief Executive Councillor is by or under

this Act required to act in his discretion as he thinks fit."

29. In section 43 of the principal Act, for the words "Executive Council" in the two places where they occur, the word "Council" shall be substituted.

30. In section 44 of the principal Act.

(a) for the words "Executive Council", the word "Council" shall be substituted, and

(b) for the words "five members.",

the words "nine Councillors."

shall be substituted.

31 . In section 45 of the principal Act,-

(a) in sub-section ( 1 ), for the words "Executive Council" in the two places where they occur, the word "Council" shall he substituted;

(Section~ 32-34)

(b) in sub-section (2), for the words "Executive Council", the word "Council" shall be substituted.

32. In section 46 of the principal Act,-

(a) for the words "or the Executive Council," the words "or the Council," shall be substituted;

(b) in the proviso,-

(i) for the words "Chairman of the executive Council " , the words "Chief Exerntive Councillor" shall be substituted, and

(ii) for the words "Executive Council ,", the word "Council," shall be substituted.

Substitution of 33.

For section 47 of the principal Act, the section for following section shall substituted:- section 47. "

Committees.

may, from time to time.

appoint such committees constituting of members from amongst the Councillors as may be required for the efficient discharge of the functions

of the General Council." .-

47 .

The Chief Executive Councillor Amendment of Section 48.

34. In section 48 of the principal Act,

(a) for the marginal note , the following marginal note shall be substituted :

- "Principal Secretary to Council.";

(b) for sub-section (I), the following sub section shall be substituted:- "(l)There shall be a Principal Secretary to the Council (hereinafter referred to as the Principal Secretary) appointed by the Government in consultation with the Chief Executive Councillor." ;

(c) for sub-section (2) , the following such section shall be substituted:- "(2)The Principal Secretary shall be paid out of the Council Fund such

salaries and allowances as may, from time to time, be fixed by the Government."

(d) 10 sub-section (3),-

(e) (i) for the words "Chief Executive Officer"' the words "Principal Secretary" shall be substituted, and (ii) for the words "Executive Council"

in the two places where they occur, the word "Council" shall be substituted;

for sub-section ( 4 ), the following subsection shall be substituted:- "(4)(a) The Principal Secretary shall act under the direction of the Chief Executive Councillor. (

b) The Principal Secretary shall be responsible for the maintenence of the records of the Council. ;

(f) in sub-section (5),- (i) for the word "members", the word "Councillors" shall be substituted, (ii) for the words "Chief Executive Officer" in the two places where they occur, the words "Principal Secretary" shall be substituted, (iii)for the word, figure and brackets "sub-section (2)", the word, figure and brackets "sub-section 91 )" shall be substituted, and (iv) for the proviso, the following proviso shall be substituted:- "Provided that the Government may' at any time, withdraw the Principal Secretary appointed under subsection (I)."

(Sections 35-37)

35. For section 49 of the principal Act.

the following section shall be substituted :

-

"Appoint- 49.

The Government may place at ment of the disposal of the Council the services Secretary.

of such officers of the Government for

appointment as Secretary to the Council as the Government may think fit.".

36. In section 50 of the principal Act, for the words "General Council", the word "Council" shall he substituted.

37 . Section 51 of the principal Act shall be renumbered as sub-section (I) of that section and--

(a) in sub-section (I) as so renumhered .(i) for the words "General Council may", the words "Council may" shall be substituted, (ii) in the first proviso, for the woirds ''General CounciI", the word "Council" shall he substituted. (

iii)for the sernnd proviso, the following proviso shall he substituted:- "Provided further that where any disciplinary or other actions required to he taken against any such employee , the Council shall

have the power to initiate such disciplinary or other action against such employee whereupon the Council shall report the same forthwith to the Government may think fit." :

(

h) after sun-section (I), the following sub-section shall be inserted:- '·(2)Notwithstamling anything contained in sun-section 91 ). (

Sections 38-41) The Council may, without the approval of the Government, make appoint of persons to such categories of

sanctioned posts as are equivalent to Group 'C' and Group 'D' posts under the Government after making regulations relating to conditions

of service of such persons with the approval of the Government..".

38 . For section 56 of the principal Act, the following section shall be substituted:-

"Inspection of accounts etc.

56.

Notwithstanding anything contained elsewhere in this Act, the Government may,-

(a) if it is of opinion that it is necessary or expedient so to do, cause an inspection to be made of the accounts of the Council from time to time and

may, for the conduct of such inspection, appoint in consultation with the Council such officer or officers as the Government may think fit, and

(b) advice the Council on the account of the Council.".

39. In sub-section (2) of section 57 of the principal Act, for the words "be deemed to be employed by the General Council", the words "be

deemed to be on deputation to the Council" shall be substituted.

40 . In section 58 of the principal Act, the words "Executive Council", the word "Council" shall be substituted.

41. In section 62 of the principal Act,-

(a) in clause (a).

for the words "members of the General Council", the word "Councillors" shall be substituted;

(b) in clause (b), for the words "Executive Council", the word "Council'' shall be substituted .

(Sections 42-45)

42 . In section 65 of the principal Act,-

(a) in the marginal note , for the word "Members,", the words " Executive Councillors," shall be substituted;

(b) for the words "The Chief Executive Councillor, the Vice-Chairman and the other members of the Executive Council", the words "The Chief

Executive Councillor and the ViceChairman.

who are the members of the Council and the other Executive Councillors" shall be substituted.

43. In section 67 of rhe principal Act, for the words "or against any member or officer or employee thereof', the words "or against any

Councillor or against any officer or employee of the General Council" shall be substituted .

44. In the Scheduled ro the principal Act,(a) 1n the heading , for the word "SCHEDULE".

the words ··FIRST SCHEDULE" shall be substituted;

(b) for the "member" in the two places where it occurs, the word ··councillor" shall be substituted.

45. In the principal Act, after the First Schedule, the following Schedule shall be inserted :

- SECOND SCHEDULE [See section 43(7)] Form of Oath or Affirmation [Sub-set:

tion (7) of section 34 of the Darjeeling Gorkha Hill Council Act, 1988 (West Bengal Act XIII of 1988)]

I, A. B................................ ... ..... ................... ..... having been elected Chief Executive Councillor of the Darjeeling Gorkha Hill Council, do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India.

·················································

(Signature and name of the Chief Executive Councillor in block letters)

Sworn in the name of God/solemnly affirmed by Shri/Shrimati .. ........ .... ..................... ........ .. ........ at ........ .... .. .... ... ............... .. .... .. .. .

(place) at ................ ... ................. (hour) on this the ..................... . ... ........... .......................................

day of .... .. ............ .... ........ .. ... ...... .. before me.

(Signature) Governor of West Bengal.

Certificate of receipt or form or oath or affirmation

Certified that ........................... ........... (name), who has been elected Chief Executive Councillor of the Darjeeling Gorkha Hill Council, has made and subscribed the oath/affirmation as requited by section 34 of the Darjeeling Gorkha Hill Council Act, 1988

(West Bengal Act Xlll of 1988), before the Governor at ... .... . (

hour) on the ..................................... (date). ·· ······ ··········································

(Signature) Secretary to the Governor of West Bengal."

Repeal and saving.

Validation.

(Section 46, 47)

46. (

I) The Darjeeling Gorkha Hill Council (Amendment) Ordinance, 1993, is hereby repealed.

West Ben.

Ord.

IV of 1993 (2) Notwithstanding such repeal, anything done or any action taken under the principal Act as amended by the said Ordinance shall be deemed to have been validly done or taken under the principal Act as amended by this Act.

47. Anything done or any action under the principal Act as amended by this Act before the publication of this Act in the Official Gazette shall be deemed to have been validly done or taken under the principal Acts as amended by this Acts as if this Acts were in force when such

thing was done or such action was taken.

By order of the Governor, S.K., Phaujdar, Secretaryto the Govt.

of West Bengal