THE WEST BENGAL REORGANISATION BILL, 2016
Bill to provide for the Reorganisation of the existing State of West Bengal and for matters connected therewith for the welfare, identity and development of Indian Gorkhas, Bhutias, Lepchas, Sherpas, Adivasi, Rajbangshi and all other communities residing within the territory of the District of Darjeeling and portions of the District of Jalpaiguri known as the Dooars.
Be it enacted by Parliament in the Sixty Seventh Year of the Republic of India as follows:
PART I
PRELIMINARY
1. Short title: This Act may be called the West Bengal Reorganisation Act, 2016.
2. Definitions: In this Act, unless the context otherwise requires,—
(a) “appointed day” means the day which the Central Government may, by notification in the Official Gazette, appoint;
(b) “article” means an article of the Constitution:
(c) “assembly constituency”, “council constituency” and “parliamentary constituency” have the same meanings as in the Representation of the People Act, 1950;
(d) “Election Commission” means the Election Commission appointed by the President under article 324;
(e) “existing State of West Bengal” means the State of West Bengal as existing immediately before the appointed day;
(f) “law” includes any enactment, ordinance, regulation, order, by-law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the existing State of West Bengal;
(g) “notified order” means an order published in the Official Gazette;
(h) “population ratio”, in relation to the State of West Bengal and Gorkhaland means the ratio of [please fill in as applicable].
(i) “sitting member”, in relation to either House of Parliament or of the Legislature of the existing State of West Bengal means a person who immediately before the appointed day, is a member of that House;
(j) “successor State”, in relation to the existing State of West Bengal means the State of West Bengal and the State of Gorkhaland;
(k) “transferred territory” means the territory which on the appointed day is transferred from the existing State of West Bengal to the State of Gorkhaland;
(l) “treasury” includes a sub-treasury; and
(m) any reference to a district, tehsil or other territorial division of the existing State of West Bengal shall be construed as a reference to the area comprised within that territorial division on the appointed day.
PART II
REORGANISATION OF THE STATE OF WEST BENGAL
3. Formation of Gorkhaland State: On and from the appointed day, there shall be formed a new State to be known as the State of Gorkhaland comprising the following territories of the existing State of West Bengal, namely:–
Darjeeling district and portions of Jalpaiguri District known as the Dooars,
[as described in the Schedule] and thereupon the said territories shall cease to form part of the existing State of West Bengal.
4. State of West Bengal and territorial divisions thereof: On and from the appointed day, the State of West Bengal shall comprise the territories of the existing State of West Bengal other than those specified in section 3.
5. Amendment of the First Schedule to the Constitution: On and from the appointed day, in the First Schedule to the Constitution, under the heading “I. THE STATES”,—
(a) in the paragraph relating to the territories of the State of West Bengal, after the words, brackets and figures “West Bengal (Transfer of Territories) Act, 1956 ”, the following shall be added, namely:—
“but excluding the territories specified in section 3 of the West Bengal Reorganisation Act, 2016.”;
(b) after entry 29, the following entry shall be inserted, namely:—
“30. Gorkhaland: The territories specified in section 3 of the West Bengal Reorganisation Act, 2016”.
6. Saving Powers of the State Government: Nothing in the foregoing provisions of this Part shall be deemed to affect the power of the Government of West Bengal or Gorkhaland to alter, after the appointed day, the name, area or boundaries of any district or other territorial division in the State.
PART III
REPRESENTATION IN THE LEGISLATURES
The Council of States
7. Amendment of the Fourth Schedule to the Constitution: On and from the appointed day, in the Fourth Schedule to the Constitution, in the Table,—
(a) entries 21 to 31 shall be renumbered as entries 22 to 32 respectively;
(b) in entry 20, for the figures “16”, the figures “15” shall be substituted;
(c) after entry 20, the following entry shall be inserted, namely :
“21. Gorkhaland...................1”.
8. Allocation of sitting members:
(1) On and from the appointed day, the sixteen sitting members of the Council of State representing the existing State of West Bengal shall be deemed to have been elected to fill fifteen seats allotted to the successor State of West Bengal and one seat to the successor State of Gorkhaland.
(2) The term of office of such sitting members shall remain unaltered.
The House of the People
9. Representation in the House of the People: On and from the appointed day, there shall be allocated 41 seats to the successor State of West Bengal, and 1 to the successor State of Gorkhaland, in the House of the People, and the First Schedule to the Representation of the People Act, 1950 shall be deemed to be amended accordingly.
10. Delimitation of Parliamentary and Assembly constituencies: On and from the appointed day, the Delimitation of Parliamentary and Assembly Constituencies Order, 1976, shall stand amended as directed in the Second Schedule to this Act.
11. Provision as to sitting members:
(1) Every sitting member of the House of the People representing a constituency which, on the appointed day by virtue of the provisions of section 10, stands allotted, with or without alteration of boundaries, to the successor States of West Bengal or Gorkhaland shall be deemed to have been elected to the House of the People by that constituency as so allotted.
(2) The term of office of such sitting members shall remain unaltered.
The Legislative Assembly
12. Provisions as to Legislative Assembly:
(1) The number of seats as on the appointed day in the Legislative Assemblies of the States of West Bengal and Gorkhaland shall be two hundred and ninety four and forty five respectively.
(2) In the Second Schedule to the Representation of the People Act, 1950, under heading “I. States”,—
(a) entries 7 to 29 shall be renumbered as entries 8 to 30 respectively;
(b) after entry 6, the following entry shall be inserted, namely:—
“ 7. Gorkhaland................................................45.”;
13. Allocation of sitting members:
(1) Every sitting member of the Legislative Assembly of the existing State of West Bengal elected to fill a seat in that Assembly from a constituency which on the appointed day by virtue of the provisions of section 10 stands allotted, with or without alteration of boundaries, to the State of Gorkhaland shall, on and from that day, cease to be a member of the Legislative Assembly of West Bengal and shall be deemed to have been elected to fill a seat in the Legislative Assembly of Gorkhaland from that constituency so allotted.
(2) All other sitting members of the Legislative Assembly of the existing State of West Bengal shall continue to be members of the Legislative Assembly of that State and any such sitting member representing a constituency the extent, or the name and extent of which are altered by virtue of the provisions of section 9 shall be deemed to have been elected to the Legislative Assembly of West Bengal by that constituency as so altered.
(3) Notwithstanding anything contained in any other law for the time being in force, the Legislative Assemblies of West Bengal and Gorkhaland shall be deemed to be duly constituted on the appointed day.
(4) The sitting member of the Legislative Assembly of the existing State of West Bengal nominated to that Assembly under article 333 to represent the Anglo-Indian community shall be deemed to have been nominated to represent the said community in the Legislative Assembly of West Bengal under that article.
14. Duration of Legislative Assemblies: The period of five years referred to in clause (1) of article 172, shall, in the case of Legislative Assembly of State of West Bengal and the State of Gorkhaland be deemed to have commenced on the date on which it actually commenced in the case of Legislative Assembly of the existing State of West Bengal.
15. Speakers and Deputy Speakers:
(1) The persons who immediately before the appointed day are the Speaker and Deputy Speaker of the Legislative Assembly of the existing State of West Bengal shall continue to be the Speaker and Deputy Speaker respectively of that Assembly on and from that day.
(2) As soon as may be after the appointed day, the Legislative Assembly of the successor State of Gorkhaland shall choose two members of that Assembly to be respectively Speaker and Deputy Speaker thereof and until they are so chosen, the duties of the office of the Speaker shall be performed by such member of the Assembly as the Governor may appoint for the purpose.
16. Rules of procedure: The rules of procedure and conduct of business of the Legislative Assembly of West Bengal as in force immediately before the appointed day shall, until rules are made under clause (1) of article 208, be the rules of procedure and conduct of business of the Legislative Assembly of the State of Gorkhaland, subject to such modifications and adaptations as may be made therein by the Speaker thereof.
Delimitation of constituencies
17. Delimitation of constituencies:
(1) For the purpose of giving effect to the provisions of section 12, the Election Commission shall determine in the manner hereinafter provided the number of seats to be reserved for the Scheduled Castes and the Scheduled Tribes in the Legislative Assemblies of the States of West Bengal and Gorkhaland, respectively having regard to the relevant provisions of the Constitution.
(2) The delimitation of constituencies in the States of West Bengal and Gorkhaland shall be determined on the basis of the published figures of the census taken in the year 1971.
18. Power of the Election Commission to maintain Delimitation Orders up-to-date:
(1) The Election Commission may, from time to time, by notification in the Official Gazette,—
(a) correct any printing mistakes in any order made under section 17 or any error arising therein from inadvertent slip or omission; and
(b) where the boundaries or name of any territorial division mentioned in any such order or orders is or are altered, make such amendments as appear to it to be necessary or expedient for bringing such order up-to-date.
(2) Every notification under this section relating to an assembly constituency shall be laid, as soon as may be after it is issued, before the concerned Legislative Assembly.
Scheduled Castes and Scheduled Tribes
19. Amendment of the Scheduled Castes Order: On and from the appointed day, the Constitution (Scheduled Castes) Order, 1950, shall stand amended as directed in the Third Schedule.
20. Amendment of the Scheduled Tribes Order: On and from the appointed day, the Constitution (Scheduled Tribes) Order, 1950, shall stand amended as directed in the Fourth Schedule.
PART IV
HIGH COURT
21. High Court of Gorkhaland:
(1) As from the appointed day, there shall be a separate High Court for the State of Gorkhaland (hereinafter referred to as “the High Court of Gorkhaland”) and the High Court of Calcutta shall become the High Court for the State of West Bengal (hereinafter referred to as the High Court of Calcutta).
(2) The principal seat of High Court of Gorkhaland shall be at such place as the President may, by notified order, appoint.
(3) Notwithstanding anything contained in sub-section (2), the Judges and division courts of the High Court of Gorkhaland may sit at such other place or places in the State of Gorkhaland other than its principal seat as the Chief Justice may, with the approval of the Governor of Gorkhaland, appoint.
22. Judges of Gorkhaland High Court:
(1) Such of the Judges of the High Court of Calcutta holding office immediately before the appointed day as may be determined by the President shall on that day cease to be judges of the High Court of Calcutta and become Judges of the High Court of Gorkhaland.
(2) The persons who by virtue of sub-section (1) become Judges of the High Court of Gorkhaland shall, except in the case where any such person is appointed to be the Chief Justice of that High Court, rank in that Court according to the priority of their respective appointments as Judges of the High Court of Calcutta.
23. Jurisdiction of Gorkhaland High Court: The High Court of Gorkhaland shall have, in respect of any part of the territories included in the State of Gorkhaland, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect to that part of the said territories by the High Court of Calcutta.
24. Special provision relating to Bar Council and advocates: (1) On and from the appointed day, in the Advocates Act, 1961, in section 3, in sub-section (1), in clause (a), for the words “and West Bengal”, the words “West Bengal and Gorkhaland” shall be substituted.
(2) Any person who immediately before the appointed day is an advocate on the roll of the Bar Council of the existing State of West Bengal may give his option in writing, within one year from the appointed day to the Bar Council of such existing State, to transfer his name on the roll of the Bar Council of Gorkhaland and notwithstanding anything contained in the Advocates Act, 1961 and the rules made thereunder, on such option so given his name shall be deemed to have been transferred on the roll of the Bar Council of Gorkhaland with effect from the date of the option so given for the purposes of the said Act and the rules made thereunder.
(3) The persons other than the advocates who are entitled immediately before the appointed day, to practise in the High Court of Calcutta or any subordinate court thereof shall, on and after the appointed day, be recognised as such persons entitled also to practise in the High Court of Gorkhaland or any subordinate court thereof, as the case may be.
(4) The right of audience in the High Court of Gorkhaland shall be regulated in accordance with the like principles as immediately before the appointed day are in force with respect to the right of audience in the High Court of Calcutta.
25. Practice and procedure in Gorkhaland High Court: Subject to the provisions of this Part, the law in force immediately before the appointed day with respect to practice and procedure in the High Court of West Bengal shall, with the necessary modifications, apply in relation to the High Court of Gorkhaland, and accordingly, the High Court of Gorkhaland shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by the High Court of Calcutta or to adopt whether provisionally or permanently the practice and procedure of any other High Court with necessary modifications.
Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court of West Bengal shall, until varied or revoked by rules or orders made by the High Court of Gorkhaland, apply with the necessary modifications in relation to practice and procedure in the High Court of Gorkhaland as if made by that Court.
26. Custody of seal of Gorkhaland High Court: The law in force immediately before the appointed day with respect to the custody of the seal of the High Court of Calcutta shall, with the necessary modifications, apply with respect to the custody of the seal of the High Court of Gorkhaland.
27. Form of writs and other processes: The law in force immediately before the appointed day with respect to the form of writs and other processes used, issued or awarded by the High Court of Calcutta shall, with the necessary modifications, apply with respect to the form of writs and other processes used, issued or awarded by the High Court of Gorkhaland.
28. Powers of Judges: The law in force immediately before the appointed day relating to the powers of the Chief Justice, Single Judge and Division courts of the High Court of Calcutta and with respect to all matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court of Gorkhaland.
29. Procedure as to appeals to Supreme Court: The law in force immediately before the appointed day relating to appeals to the Supreme Court from the High Court of Calcutta and the Judges and division courts thereof shall, with the necessary modifications, apply in relation to the High Court of Gorkhaland.
30. Transfer of proceedings from Calcutta High Court to Gorkhaland High Court:
(1) Except as hereinafter provided, the High Court of Calcutta shall, as from the appointed day, have no jurisdiction in respect of the transferred territory.
(2) Such proceedings pending in the High Court of Calcutta immediately before the appointed day as are certified, whether before or after that day, by the Chief Justice of that High Court, having regard to the place of accrual of the cause of action and other circumstances, to be proceedings which ought to be heard and decided by the High Court of Gorkhaland shall, as soon as may be after such certification, be transferred to the High Court of Gorkhaland.
(3) Notwithstanding anything contained in sub-section (1) and (2) of this section or in section 23, but save as hereinafter provided, the High Court of Calcutta shall have, and the High Court of Gorkhaland shall not have, jurisdiction to entertain, hear or dispose of appeals, applications for leave to the Supreme Court, applications for review and other proceedings where any such proceedings seek any relief in respect of any order passed by the High Court of Calcutta before the appointed day.
Provided that if after any such proceedings have been entertained by the High Court of Calcutta, it appears to the Chief Justice of that High Court that they ought to be transferred to the High Court of Gorkhaland, he shall order that they shall be so transferred, and such proceedings shall thereupon be transferred accordingly.
(4) Any order made by the High Court of Calcutta—
(a) before the appointed day, in any proceedings transferred to the High Court of Gorkhaland by virtue of sub-section (2); or
(b) in any proceedings with respect to which the High Court of Calcutta retains jurisdiction by virtue of sub-section (3),
shall for all purposes have effect, not only as an order of the High Court of Calcutta, but also as an order made by the High Court of Gorkhaland.
31. Right to appear or to act in proceedings transferred to Gorkhaland High Court: Any person, who, immediately before the appointed day, is an advocate entitled to practise or any other persons entitled to practise in the High Court of Calcutta and was authorised to appear in any proceedings transferred from that High Court to the High Court of Gorkhaland under section 30, shall have the right to appear in the High Court of Gorkhaland in relation to those proceedings.
32. Interpretation: For the purposes of section 30—
(a) proceedings shall be deemed to be pending in a Court until that Court has disposed of all issues between the parties, including any issues with respect to the taxation of the costs of the proceedings and shall include appeals, applications for leave to the Supreme Court, applications for review, petitions for revision and petitions for writs; and
(b) references to a High Court shall be construed as including references to a Judge or division court thereof, and references to an order made by a Court or a Judge shall be construed as including references to a sentence, judgment or decree passed or made by that Court or Judge.
33. Saving: Nothing in this Part shall affect the application to the High Court of Gorkhaland of any provisions of the Constitution, and this Part shall have effect subject to any provision that may be made on or after the appointed day with respect to that High Court by any Legislature or other authority having power to make such provision.
PART V
AUTHORISATION OF EXPENDITURE AND DISTRIBUTION OF REVENUES
34. Authorisation of expenditure of Gorkhaland State: The Governor of West Bengal may, at any time before the appointed day, authorise such expenditure from the Consolidated Fund of the State of Gorkhaland as he deems necessary for any period not more than six months beginning with the appointed day pending the sanction of such expenditure by the Legislative Assembly of the State of Gorkhaland.
Provided that the Governor of Gorkhaland may, after the appointed day, authorise such further expenditure as he deems necessary from the Consolidated Fund of the State of Gorkhaland for any period not extending beyond the said period of six months.
35. Reports relating to accounts of West Bengal State:
(1) The reports of the Comptroller and Auditor-General of India referred to in clause (2) of article 151 relating to the accounts of the State of West Bengal in respect of any period prior to the appointed day shall be submitted to the Governor of each of the successor State of West Bengal and Gorkhaland who shall cause them to be laid before the Legislature of that State.
(2) The President may by order—
(a) declare any expenditure incurred out of the Consolidated Fund of West Bengal on any service in respect of any period prior to the appointed day during the financial year or in respect of any earlier financial year in excess of the amount granted for that service and for that year as disclosed in the reports referred to in sub-section (1) to have been duly authorised; and
(b) provide for any action to be taken on any matter arising out of the said reports.
36. Distribution of revenue: The President shall, by order, determine the share of the States of West Bengal and Gorkhaland in the total amount payable to the existing State of West Bengal on the recommendation of the Finance Commission constituted under article 280 of the Constitution, in such manner as he thinks fit.
PART VI
APPORTIONMENT OF ASSETS AND LIABILITIES
37. Application of Part:
(1) The provisions of this Part shall apply in relation to the apportionment of the assets and liabilities of the State of West Bengal immediately before the appointed day.
(2) The successor State shall be entitled to receive benefits arising out of the decisions taken by the predecessor State and the successor States shall be liable to bear the financial liabilities arising out of the decisions taken by the existing State of West Bengal.
(3) The apportionment of assets and liabilities would be subject to such financial adjustment as may be necessary to secure just, reasonable and equitable apportionment of the assets and liabilities amongst the successor States.
(4) Any dispute regarding the amount of financial assets and liabilities shall be settled through mutual agreement, failing which by order by the Central Government on the advice of the Comptroller and Auditor-General of India.
38. Land and goods:
(1) Subject to the other provisions of this Part, all land and all stores, articles and other goods belonging to the existing State of West Bengal shall,—
(a) if within the transferred territory, pass to the State of Gorkhaland; or
(b) in any other case, remain the property of the State of West Bengal:
Provided that any land, stores, articles or other goods may be distributed otherwise than in accordance with the situation of such land, stores, articles or goods by mutual agreement between the successor States, failing which the Central Government may, on the request of any of the Governments of the successor States and after consulting both the Governments of the successor States, issue directions for the just and equitable distribution of such land, stores, articles or goods between the successor States and the land, stores articles or goods shall accordingly pass to the successor States:
Provided further that in case of the distribution, of any land, stores, articles and goods or class of goods under this sub-section located outside the existing State of West Bengal, such distribution shall be made through mutual agreement arrived at between the Governments of the successor States for that purpose, failing which the Central Government may, on request by any of the Governments of the successor States, after consulting both the Governments of the successor States, issue such direction as it may deem fit for the distribution of such land, stores, articles and goods or class of goods, as the case may be, under this sub-section.
(2) Stores held for specific purposes, such as use or utilisation in particular institutions, workshops or undertakings or on particular works under construction, shall pass to the successor States in whose territories such institutions, workshops, undertakings or works are located.
(3) Stores relating to the Secretariat and offices of Heads of Departments having jurisdiction over the whole of the existing State of West Bengal shall be divided between the successor States in accordance with the mutual agreement arrived at between the Government of the successor States for that purpose, failing which the Central Government may, on request by any of the Governments of the successor States, after consulting both the Governments of the successor States, issue such direction as it may deem fit for the distribution of such stores or any part of such stores, as the case may be.
(4) Any other unissued stores of any class in the existing State of West Bengal shall be divided between the successor States in proportion to the total stores of that class purchased in the period of three years prior to the appointed day, for the territories of the existing State of West Bengal included respectively in each of the successor States:
Provided that where such proportion cannot be ascertained in respect of any class of stores or where the value of any class of such stores does not exceed rupees ten thousand, that class of stores shall be divided between the successor States according to the population ratio.
(5) In this section, the expression “land” includes immovable property of every kind and any rights in or over such property, and the expression “goods” does not include coins, bank notes and currency notes.
39. Treasury and bank balances: The total of the cash balances in all treasuries of the State of West Bengal and the credit balances of the State with Reserve Bank of India, the State Bank of India or any other bank immediately before the appointed day shall be divided between the States of West Bengal and Gorkhaland according to the population ratio:
Provided that for the purposes of such division, there shall be no transfer of cash balances from any treasury to any other treasury and the apportionment shall be effected by adjusting the credit balances of the two States in the books of the Reserve bank of India on the appointed day:
Provided further that if the State of Gorkhaland has no account on the appointed day with the Reserve Bank of India, the adjustment shall be made in such manner as the Central Government may, by order, direct.
40. Arrears of taxes: The right to recover arrears of any tax or duty on property, including arrears of land revenue, shall belong to the successor State in which the property is situated, and the right to recover arrears of any other tax or duty shall belong to the successor State in whose territories the place of assessment of that tax or duty is included on the appointed day.
41. Right to recover loans and advances:
(1) The right of the existing State of West Bengal to recover any loans or advances made before the appointed day to any local body, society, agriculturist or other person in an area within that State shall belong to the successor State in which that area is included on that day.
(2) The right of the existing State of West Bengal to recover any loans or advances made before the appointed day to any person or institution outside that State shall belong to the State of West Bengal.
Provided that any sum recovered in respect of any such loan or advance shall be divided between the State of West Bengal and Gorkhaland according to the population ratio.
42. Investments and credits in certain funds:
(1) The securities held in respect of the investments made from Cash Balances Investment Account or from any Fund in the Public Account of the existing State of West Bengal as specified in the Fifth Schedule to this Act shall be apportioned in the ratio of population of the successor States:
Provided that the securities held in investments made from the Calamity Relief Fund of the existing State of West Bengal shall be divided in the ratio of the area of the territories occupied by the successor States:
Provided further that the balance in the Reserve Funds in the Public Account of West Bengal created wholly out of appropriations from the Consolidated Fund of the existing State of West Bengal, to the extent the balances have not been invested outside Government account, shall not be carried forward to similar Reserve Funds in the Public Account of, successor States:
Provided also that the balances in any other Reserve Funds, excluding those specified in sub-section (2), shall be allocated between the State of West Bengal and Gorkhaland in the ratio of population of those States.
(2) The investments of the existing State of West Bengal immediately before the appointed day in any special fund the objects of which are confined to a local area shall belong to the State in which that area is included on the appointed day.
(3) The investments of the existing State of West Bengal immediately before the appointed day in any private, commercial or industrial undertaking, in so far as such investments have not been made or are deemed not to have been made from the cash balance investment account, shall pass to the State in which the principal seat of business of the undertaking is located.
(4) Where anybody corporate constituted under a Central Act, State of Act of Provincial Act for the existing State of West Bengal or any part thereof has, by virtue of the provisions of Part II of this Act, become an inter-State body corporate, the investments in, or loans or advances to, any such body corporate by the existing State of West Bengal made before the appointed day shall, save as otherwise expressly provided by or under this Act, be divided between the State of West Bengal and Gorkhaland in the same proportion in which the assets of the body corporate are divided under the provisions of this Part.
43. Assets and liabilities of State Undertaking:
(1) The assets and liabilities relating to any undertaking of the existing State of West Bengal whether directly owned or through a body corporate constituted or incorporated or registered under any Central, State or Provincial Act, shall,—
(a) if exclusively located in a successor State, pass to the successor State, and where a depreciation reserve is maintained by the existing State of West Bengal for such undertaking, the securities held in respect of investment made from that fund shall also pass to such successor State;
(b) where any such undertaking or part thereof is located, in more than one successor State, the assets, liabilities and securities shall be divided in such manner as may be agreed upon between the successor States within a period of two years from the appointed day or in failure of such agreement as the Central Government may by order direct.
(2) An agreement entered into between the successor States, or order made by the Central Government under sub-section (1) may provide for the dissolution of the undertaking or transfer or re-employment of any employee of the undertaking to or by the successor States, subject to the provisions of section 62.
(3) An agreement entered into between the successor States, or order made by the Central Government under sub-section (1) may also provide for the transfer of the assets and liabilities which would otherwise have passed to a successor State to any other undertaking of that successor State; and any employee of the undertaking referred to in sub-section (1), who would otherwise have been transferred to or re-employed by a successor State. may be transferred to or be re-employed by such undertaking instead of that successor State.
44. Public Debt:
(1) All liabilities on account of Public Debt and Public Account of the existing State of West Bengal outstanding immediately before the appointed day shall be apportioned in the ratio of population of the successor States unless a different mode of apportionment is provided under the provisions of this Act.
(2) The individual items of liabilities to be allocated to the successor States and the amount of contribution required to be made by one successor State to another shall be such as may be ordered by the Central Government in consultation with the Comptroller and Auditor-General of India:
Provided that till such orders are issued, the liabilities on account of Public Debt and Public Account of the existing State of West Bengal shall continue to be the liabilities of the successor State of West Bengal.
(3) The liability on account of loans raised from any source and re-lent by the existing State of West Bengal to such entities as may be specified by the Central Government and whose area of operation is confined to either of the successor States shall devolve on the respective States as specified in sub-section (4).
(4) The Public Debt of the existing State of West Bengal attributable to loan taken from any source for the express purpose of re-lending the same to a specific institution and outstanding immediately before the appointed day shall—
(a) if re-lent to any local body, body corporate or other institution in any local area, be the debt of the State in which the local area is included on the appointed day; or
(b) if re-lent to the West Bengal State Electricity Board, the West Bengal State Road Transport Corporation, or the West Bengal Housing Board or any other institution which becomes an inter-State institution on the appointed day, be divided between the State of West Bengal and Gorkhaland in the same proportion in which the assets of such body corporate or institution are divided under the provisions of Part VII of this Act.
(5) Where a sinking fund or a depreciation fund is maintained by the existing State of West Bengal for repayment of any loan raised by it, the securities held in respect of investments made from that fund shall be divided between the successor States of West Bengal and Gorkhaland in the same proportion in which the total public debt is divided between the two States under this section.
(6) In this section, the expression “Government security” means a security created and issued by a State Government for the purpose of raising a public loan and having any of the forms specified in, or prescribed under clause (2) of section 2 of the Public Debt Act, 1944.
45. Floating loans: All liabilities of the existing State of West Bengal of any floating loan to provide short term finance to any local body, body corporate or other institution shall be determined by mutual agreement between the successor States, failing which the Central Government shall determine such liability between the successor States in consultation with such States.
46. Refund of taxes collected in excess: The liability of the existing State of West Bengal to refund any tax or duty on property, including land revenue, collected in excess shall be the liability of the successor State in whose territories the property is situated, and the liability of the existing State of West Bengal to refund any other tax or duty collected in excess shall be the liability of the successor State in whose territories the place of assessment of that tax or duty is included.
47. Deposits, etc.:
(1) The liability of the existing State of West Bengal in respect of any civil deposit or local fund deposit shall, as from the appointed day, be the liability of the State in whose area the deposit has been made.
(2) The liability of the existing State of West Bengal in respect of any charitable or other endowment shall, as from the appointed day, be the liability of the State in whose area the institution entitled to the benefit of the endowment is located or of the State to which the objects of the endowment, under the terms thereof, are confined.
48. Provident fund: The liability of the existing State of West Bengal in respect of the provident fund account of a Government servant in service on the appointed day shall, as from that day, be the liability of the State to which that Government servant is permanently allotted.
49. Pensions: The liability of the existing State of West Bengal in respect of pensions shall pass to, or be apportioned between the successor States of West Bengal and Gorkhaland in accordance with the provisions contained in the Sixth Schedule to this Act.
50. Contracts:
(1) Where, before the appointed day, the existing State of West Bengal has made any contract in the exercise of its executive power for any purposes of the State, that contract shall be deemed to have been made in the exercise of the executive power—
(a) if the purposes of the contract are, on and from the appointed day, exclusive purposes of either of the successor States of West Bengal and Gorkhaland, then, of that State; or
(b) in any other case, of the State of West Bengal,
all rights and liabilities which have accrued, or may accrue under any such contract shall, to the extent to which they would have been rights or liabilities of the existing State of West Bengal, be rights or liabilities of the State of Gorkhaland or the State of West Bengal, as the case may be:
Provided that in any such case as is referred to in clause (b), the initial allocation of rights and liabilities made by this sub-section shall be subject to such financial adjustment as may be agreed upon between the successor States of West Bengal and Gorkhaland or in default of such agreement, as the Central Government may, by order, direct.
(2) For the purposes of this section, there shall be deemed to be included in the liabilities which have accrued or may accrue under any contract—
(a) any liability to satisfy an order or award made by any court or other tribunal in proceedings relating to the contract; and
(b) any liability in respect of expenses incurred in or in connection with any such proceedings.
(3) This section shall have effect subject to the other provisions of this Part relating to the apportionment of liabilities in respect of loans, guarantees and other financial obligations; and bank balances and securities shall, notwithstanding that they partake of the nature of contractual rights, be dealt with under those provisions.
51. Liability in respect of actionable wrong: Where, immediately before the appointed day, the existing State of West Bengal is subject to any liability in respect of any actionable wrong other than breach of contract, that liability shall,—
(a) if the cause of action arose wholly within the territories which, as from that day, are the territories of either of the successor States of West Bengal or Gorkhaland, be a liability of that successor State; and
(b) in any other case, be initially a liability of the State of West Bengal, but subject to such financial adjustment as may be agreed upon between the States of West Bengal and Gorkhaland or, in default of such agreement, as the Central Government may, by order, direct.
52. Liability as guarantor: Where, immediately before the appointed day, the existing State of West Bengal is liable as guarantor in respect of any liability of a registered co-operative society or other person, that liability of the existing State of West Bengal shall—
(a) if the area of operations of such society or persons is limited to the territories which, as from that day, are the territories of either of the States of West Bengal or Gorkhaland, be a liability of that successor State; and
(b) in any other case, be initially a liability of the State of West Bengal, subject to such financial adjustment as may be agreed upon between the States of West Bengal and Gorkhaland or, in default of such agreements, as the Central Government may, by order, direct.
53. Items in suspense: If any item in suspense is ultimately found to affect an asset or liability of the nature referred to in any of the foregoing provisions of this Part, it shall be dealt with in accordance with that provision.
54. Residuary provision: The benefit or burden of any asset or liability of the existing State of West Bengal not dealt with in the foregoing provisions of this Part shall pass to the State of West Bengal in the first instance, subject to such financial adjustment as may be agreed upon between the States of West Bengal and Gorkhaland or, in default of such agreement, as the Central Government may, by order, direct.
55. Apportionment of assets or liabilities by agreement: Where the successor States of West Bengal and Gorkhaland agree that the asset, liability or benefit or burden of any particular asset or liability should be apportioned between them in a manner other than that provided for in the foregoing provisions of this Part, then, notwithstanding anything contained therein, the assets, liability or benefit or burden of that asset or liability shall be apportioned in the manner agreed upon.
56. Power of Central Government to order allocation or adjustment in certain cases: Where, by virtue of any of the provisions of this Part, any of the successor States of West Bengal and Gorkhaland becomes entitled to any property or obtains any benefits or becomes subject to any liability, and the Central Government is of opinion, on a reference made within a period of three years from the appointed day by either of the States, that it is just and equitable that property or those benefits should be transferred to, or shared with, the other successor State, or that a contribution towards that liability should be made by the other successor State, the said property or benefits shall be allocated in such manner between the two States, or the other State shall make to the State subject to the liability such contribution in respect thereof, as the Central Government may, after consultation with the two State Governments, by order determine.
57. Certain expenditure to be charged on Consolidated Fund: All sums payable either by the State of West Bengal or by the State of Gorkhaland to the other States or by the Central Government to either of those States, by virtue of the provisions of this Act, shall be charged on the Consolidated Fund of the State by which such sums are payable or, as the case may be, the Consolidated Fund of India.
PART VII
PROVISIONS AS TO CERTAIN CORPORATIONS
58. Provisions as to West Bengal State Electricity Development Corporation Limited, West Bengal State Road Transport Corporation etc.:
(1) The following bodies corporate constituted for the existing State of West Bengal, namely—
(a) the West Bengal State Electricity Development Corporation Limited constituted under the Electricity Supply Act, 1948;
(b) the West Bengal State Road Transport Corporation established under the Road Transport Corporation Act, 1950; and
(c) and all such similar Boards, Authorities and Bodies
shall, on and from the appointed day, continue to function in those areas in respect of which they were functioning immediately before that day, subject to the provisions of this section and arrangements for the functioning of such body corporates as may be mutually agreed upon between the successor States failing which to such directions as may, from time to time, be issued by the Central Government.
(2) Any directions issued by the Central Government under sub-section (1) in respect of the Board, Authority, Body or the Corporation shall include a direction that the Act under which the Board, Authority, Body or the Corporation was constituted shall, in its application to that Board, Authority, Body or Corporation, have effect subject to such exceptions and modifications as the Central Government thinks fit.
(3) The Board, Authority, Body or the Corporation referred to in sub-section (1) shall cease to function as from, and shall be deemed to be dissolved on such date as the Central Government may, by order, appoint; and upon such dissolution, its assets, rights and liabilities shall be apportioned between the successor States of West Bengal and Gorkhaland in such manner as may be agreed upon between them within one year of the dissolution of the Board, Authority, Body or the Corporation, as the case may be, or if no agreement is reached, in such manner as the Central Government may, by order, determine:
(4) Nothing in the preceding provisions of this section shall be construed as preventing the Government of the State of West Bengal or, as the case may be, the Government of the State of Gorkhaland from constituting, at any time on or after the appointed day, a State Electricity Board or a State Road Transport Corporation or a State Warehousing Corporation for the State under the provisions of the Act relating to such Board or Corporation; and if such a Board or Corporation is so constituted in either of the States before the dissolution of the Board or the Corporation referred to in sub-section (1),—
(a) provision may be made by order of the Central Government enabling the new Board or the new Corporation to take over from the existing Board or Corporation all or any of its undertakings, assets, rights and liabilities in that State, and
(b) upon the dissolution of existing Board or Corporation,—
(i) any assets, rights and liabilities which would otherwise have passed to that ;State by or under the provisions of sub-section (3) shall pass to the new Board or the new Corporation instead of to that State;
(ii) any employee who would otherwise have been transferred to or re-employed by that State under sub-section (3), read with clause (i) of sub-section (5), shall be transferred to or re-employed by the new Board or the new Corporation instead of to or by that State.
(5) An agreement entered into between the successor States under sub-section (3) and an order made by the Central Government under that sub-section or under clause (a) of sub-section (4) may provide for the transfer or re-employment of any employee of the Board or the Corporation referred to in sub-section (1),—
(i) to or by the successor States, in the case of an agreement under sub-section (4) or an order made under the sub-section;
(ii) to or by the new Board or the New Corporation constituted under sub-section (4), in the case of an order made under clause (a) of that sub-section,
and, subject to the provisions of section 64, also for the terms and conditions of service applicable to such employees after such transfer or re-employment.
59. Provisions as to West Bengal State Financial Corporation:
(1) The West Bengal State Financial Corporation established under the State Financial Corporation Act, 1951 shall, on and from the appointed day, continue to function in those areas in respect of which it was functioning immediately before that day, subject to the provisions of this section and to such directions as may from time to time, be issued by the Central Government after consultation with the Governments of the successor States.
(2) Any directions issued by the Central Government under sub-section (1) in respect of the Corporation may include a direction that the said Act, in its application to the Corporation, shall have effect subject to such exceptions and modifications as may be specified in the direction.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), the Board of Directors of the Corporation may, with the previous approval of the Central Government and shall, if so required by the Central Government, convene at anytime after the appointed day a meeting for the consideration of a scheme for the reconstitution or reorganisation or dissolution, as the case may be, of the Corporation, including proposals regarding the formation of new Corporations, and the transfer thereto of the assets, rights and liabilities of the existing Corporation, and if such a scheme is approved at the general meeting by a resolution passed by a majority of the shareholders present and voting, the scheme shall be submitted to the Central Government for its sanction.
(4) If the scheme is sanctioned by the Central Government either without modifications or with modifications which are approved at a general meeting, the Central Government shall certify the scheme, and upon such certification, the scheme shall, notwithstanding anything to the contrary contained in any law for the time being in force, be binding on the corporations affected by the scheme as well as the shareholders and creditors thereof.
(5) If the scheme is not so approved or sanctioned, the Central Government may refer the scheme to such Judge of the High Court of West Bengal as may be nominated in this behalf by the Chief Justice thereof, and the decision of the Judge in regard to the scheme shall be final and shall be binding on the corporations affected by the scheme as well as the shareholders and creditors thereof.
(6) Nothing in the preceding provisions of this section shall be construed as preventing the Government of the State of West Bengal and Gorkhaland from constituting, at any time on or after the appointed day, a State Financial Corporation for that State under the State Financial Corporation Act, 1951.
60. Provisions as to certain companies: (1) Notwithstanding anything contained in the foregoing provisions of this Part, each of the companies specified in the Seventh Schedule to this Act shall, on and from the appointed day and until otherwise provided for in any law, or in any agreement among the successor States, or in any direction issued by the Central Government continue to function in the areas in which it was functioning immediately before that day; and the Central Government may, after consultation with the Governments of the successor States, from time to time issue such directions in relation to such functioning as it may deem fit, notwithstanding anything to the contrary contained in the Companies Act, 1956, or in other law.
(2) Any directions issued under sub-section (1), in respect of a company referred to in that sub-section, may include directions
regarding the—
(a) regarding the division of the interests and shares of existing State of West Bengal in the company among the successor States;
(b) requiring the re-constitution of the Board of Directors of the company so as to give adequate representation to both the successor States.
61. Functioning of organisation registered society or trust incorporated on behest of State Government: (1) Notwithstanding anything contained in the foregoing provisions of this Part or any other law for the time being in force, any organisation registered society or trust, incorporated at the behest of the State Government, shall, on and from the appointed day, and until otherwise provided for in any law for the time being in force, or in any agreement between the successor States, or in any direction issued by the Central Government in consultation with the successor States, continue to function in the areas in which it was functioning immediately before that day, and the Central Government may, after consulting the Governments of the successor States, issue directions in relation to such functioning.
(2) Any directions issued under sub-section (1) may include directions regarding the —
(i) reconstitution of the Board of Directors of the organisation, society or trust by whatever name it maybe called; or
(ii) appointment of the Chief Executive by whatever name it may be called; or
(iii) regulations or bye laws, by whatever name they may be called; or
(iv) assessment and apportionment of financial support, if any, provided by the existing State of West Bengal for meeting fixed charges.
62. General provisions as to statutory corporations:
(1) Save as otherwise expressly provided by the foregoing provisions of this Part, where any body corporate constituted under a Central Act or State Act for the existing State of West Bengal or any part thereof has, by virtue of the provisions of Part II of this Act, become an inter-State body corporate, then, the body corporate shall, on and from the appointed day, continue to function and operate in those areas in respect of which it was functioning and operating immediately before that day, subject to such directions as may from time to time be issued by the Central Government, after consultation with the Governments of the successor States. until other provision is made by law in respect of the said body corporate.
(2) Any directions issued by the Central Government under sub-section (1) in respect of any such body corporate shall include a direction that any law by which the said body corporate is governed shall, in its application to that body corporate, have effect subject to such exceptions and modifications as may be specified in the direction.
63. Temporary provisions as to continuance of certain existing road transport permits:
(1) Notwithstanding anything contained in section 88 of the Motor Vehicles Act, 1988, a permit granted by the State Transport Authority of the existing State of West Bengal or any Regional Transport Authority in that State shall, if such permit was, immediately before the appointed day, valid and effective in any area in the transferred territory, be deemed to continue to be valid and effective in that area after that day subject to the provisions of that Act as for the time being in force in that area; and it shall not be necessary for any such permit to be countersigned by the State Transport Authority of Gorkhaland or any Regional Transport Authority therein for the purpose of validating it for use in such area.
Provided that the Central Government may, after consultation with the successor State Government or Government concerned add to, amend or vary the conditions attached to the permit by the Authority by which the permit was granted.
(2) No tolls, entrance fees or other charges of a like nature shall be levied after the appointed day in respect of any transport vehicle for its operations in any of the successor States under any such permit, if such vehicle was, immediately before that day, exempt from the payment of any such toll, entrance fees or other charges for its operations in the transferred territory.
Provided that the Central Government may, after consultation with the State Government or Governments concerned, authorise the levy of any such toll, entrance fees or other charges, as the case may be.
64. Special provisions relating to retrenchment compensation in certain cases: Where on account of the reorganisation of the existing state of West Bengal under this Act, any body corporate constituted under a Central Act, State Act or Provincial Act, any co-operative society registered under any law relating to co-operative societies or any commercial or industrial undertaking of that State is reconstituted or reorganised in any manner whatsoever or is amalgamated with any other body corporate, co-operative society or undertaking, or is dissolved, and in consequence of such reconstitution, reorganisation, amalgamation or dissolution, any workman employed by such body corporate or in any such co-operative society or undertaking, is transferred to, or re-employed by any other body corporate, or in any other co-operative society or undertaking, then notwithstanding anything contained in section 25F, section 25FF or section 25FFF of the Industrial Disputes Act, 1947, such transfer or re-employment shall not entitle him to any compensation under that section:
Provided that—
(a) the terms and conditions of service applicable to the workman after such transfer or re-employment are not less favourable to the workman than those applicable to him immediately before the transfer or re-employment;
(b) the employer in relation to the body corporate, the co-operative society or the undertaking where the workman is transferred or re-employed is, by agreement or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation under section 25F, section 25FF or section 25FFF of the Industrial Disputes Act, 1947 on the basis that his service has been continuous and has not been interrupted by the transfer or re-employment.
65. Special provisions as to income-tax: Where the assets, rights and liabilities of any body corporate carrying on any business are, under the provisions of this Part, transferred to any other bodies corporate which after the transfer carry on the same business, the losses or profits or gains sustained by the body corporate first mentioned which, but for such transfer, would have been allowed to be carried forward and set off in accordance with the provisions of Chapter VI of the Income-tax Act, 1961, shall be apportioned amongst the transferee bodies corporate in accordance with the rules to be made by the Central Government in this behalf and, upon such apportionment, the share of loss allotted to each transferee body corporate shall be dealt with in accordance with the provisions of Chapter VI of the said Act, as if the transferee body corporate had itself sustained such loss in a business carried on by it in the years in which these losses were sustained.
66. Continuance of facilities in certain State institutions: (1) The Government of State of West Bengal or Gorkhaland, as the case may be, shall, in respect of the institutions specified in the Eighth Schedule to this Act, located in that State, continue to provide facilities to the people of the other State which shall not, in any respect, be less favourable to such people than what was being provided to them before the appointed day, for such period and upon such terms and conditions as may be agreed upon between the two State Governments within a period of one year from the appointed day or if no agreement is reached within the said period of one year, then, as may be fixed by order of the Central Government.
(2) The Central Government may, at any time within a period of one year from the appointed day, by notification in the Official Gazette, specify in the Eighth Schedule any other institution existing on the appointed day in the State of West Bengal and Gorkhaland and on the issue of such notification, the Schedule shall be deemed to be amended by the inclusion of the said institution therein.
PART VIII
PROVISIONS AS TO SERVICES
67. Provisions relating to All-India Services:
(1) In this section, the expression “State cadre”—
(a) in relation to the Indian Administrative Service, has the meaning assigned to it in the Indian Administrative Service (Cadre) Rules, 1954;
(b) in relation to the Indian Police Service, has the meaning assigned to it in the Indian Police Service (Cadre) Rules, 1954;
(c) in relation to the Indian Forest Service, has the meaning assigned to it in the Indian Forest Service (Cadre) Rules, 1966.
(2) In place of the cadres of the Indian Administrative Service, Indian Police Service and Indian Forest Service for the existing State of West Bengal, there shall, on and from the appointed day, be two separate cadres, one for the State of West Bengal and the other for the State of Gorkhaland in respect of each of these services.
(3) The initial strength and composition of the State cadres referred to in sub-section (2) shall be such as the Central Government may, by order, determine before the appointed day.
(4) The members of each of the said service borne on the West Bengal cadre thereof immediately before the appointed day shall be allocated to the State cadres of the same service constituted under sub-section (2) in such manner and with effect from such date or dates as the Central Government may, by order, specify.
(5) Nothing in this section shall be deemed to affect the operation, on or after the appointed day, of the All-India Service Act, 1951, or the rules made thereunder.
68. Provisions relating to services in West Bengal and Gorkhaland:
(1) Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of West Bengal shall, on and from that day provisionally continue to serve in connection with the affairs of the State of West Bengal unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Gorkhaland:
Provided that no direction shall be issued under this section after the expiry of a period of one year from the appointed day.
(2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect.
(3) Every person who is finally allotted under the provisions of sub-section (2) to a successor State shall, if he is not already serving therein be made available for serving in the successor State from such date as may be agreed upon between the Governments concerned or in default of such agreement, as may be determined by the Central Government.
69. Provisions relating to other services:
(1) Nothing in this section or section 68 shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State:
Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of West Bengal or to the State of Gorkhaland under section 68 shall not be varied to his disadvantage except with the previous approval of the Central Government.
(2) All services prior to the appointed day rendered by a person—
(a) if he is deemed to have been allocated to any State under section 68, shall be deemed to have been rendered in connection with the affairs of that State;
(b) if he is deemed to have been allocated to the Union in connection with the administration of the Gorkhaland shall be deemed to have been rendered in connection with the affairs of the Union,
for the purposes of the rules regulating his conditions of service.
(3) The provisions of section 68, shall not apply in relation to members of any All-India Service.
70. Provisions as to continuance of officers in same post:
(1) Every person who, immediately before the appointed day is holding or discharging duties of any post or office in connection with the affairs of the existing State of West Bengal in any area which on that day falls within any of the successor States shall continue to hold the same post or office in that successor State, and shall be deemed on and from that day, to have been duly appointed to the post or office by the Government of, or any other appropriate authority in, that successor State:
Provided that nothing in this section shall be deemed to prevent a competent authority, on and from the appointed day, from passing in relation to such person any order affecting the continuance in such post or office.
71. Advisory Committees: The Central Government may, by order establish one or more Advisory Committees for the purpose of assisting it in regard to—
(a) the discharge of any of its functions under this Part; and
(b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this Part and the proper consideration of any representations made by such persons.
72. Power of Central Government to give directions: The Central Government may, give such directions to the State Government of West Bengal and the State Government of Gorkhaland as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Governments shall comply with such directions.
73. Provisions as to State Public Service Commission:
(1) The Public Service Commission for the existing State of West Bengal shall, on and from the appointed day, be the Public Service Commission for the State of West Bengal.
(2) The persons holding office immediately before the appointed day as Chairman or other member of the Public Service Commission for the existing State of West Bengal shall, as from the appointed day, be the Chairman or, as the case may be, the other member of the Public Service Commission for the State of West Bengal.
(3) Every person who becomes Chairman or other member of the Public Service Commission for the State of West Bengal on the appointed day under sub-section (2), shall—
(a) be entitled to receive from the Government of the State of West Bengal conditions of service not less favourable than those to which he was entitled under the provisions applicable to him;
(b) subject to the proviso to clause (2) of article 316, hold office or continue to hold office until the expiration of his term of office as determined under the provisions applicable to him immediately before the appointed day.
(4) The report of the West Bengal Public Service Commission as to the work done by the Commission in respect of any period prior to the appointed day shall be presented under clause (2) of article 323 to the Governors of the States of West Bengal and Gorkhaland, and the Governor of the State of West Bengal shall, on receipt of such report, cause a copy thereof together with a memorandum explaining as far as possible, as respects the cases, if any, where the advice of the Commission was not accepted, the reasons for such non-acceptance to be laid before the Legislature of the State of West Bengal and it shall not be necessary to cause such report or any such memorandum to be laid before the Legislative Assembly of the State of Gorkhaland.
74. Jurisdiction of the Commissions, Authorities and Tribunals:
(1) Notwithstanding anything contained in any law for the time being in force, every Commission, Authority, Tribunal, University, Board or any other body constituted under a Central Act, State Act or Provincial Act and having jurisdiction over the existing State of West Bengal shall on and from the appointed day continue to function in the successor State of West Bengal and also exercise jurisdiction as existed before the appointed day over the State of Gorkhaland for a maximum period of two years from the appointed day or till such period as is decided by mutual agreement between the successor States—
(i) to continue such body as a joint body for the successor States; or
(ii) to abolish it, on the expiry of that period, for either of the successor States; or
(iii) to constitute a separate Commission, Authority, Tribunal, University, Board or any other body, as the case may be, for the State of Gorkhaland,
whichever is earlier.
(2) No suit or other legal proceeding shall be instituted, in case such body is abolished under clause (ii) of sub-section (1), by any employee of such body against the termination of his appointment or for the enforcement of any service conditions or for securing absorption in alternative public employment against the Central Government or any of the successor States.
(3) Notwithstanding anything contained in any law for the time being in force or in any judgment, decree or order of any court or Tribunal or contract or agreement, any Chairman or member of any body abolished under clause (ii) of sub-section (1) shall not be entitled to any compensation for the unexpired period of his tenure.
(4) Notwithstanding anything contained in this section or any law for the time being in force, the Central Government shall, in accordance with any mutual agreement between the successor States or if there is no such agreement, after consultation with the Governments of the successor States, issue directions for the resolution of any matter relating to any body referred to in sub-section (1) and falling within the jurisdiction of any of the successor States within any period referred to in sub-section (1).
PART IX
LEGAL AND MISCELLANEOUS PROVISIONS
75. Amendment of Act 37 of 1956: On and from the appointed day, in section 15 of the States Reorganisation Act, 1956, in clause (c), for the words “Bihar, West Bengal”, the words “Bihar, West Bengal and Gorkhaland” shall be substituted.
76. Territorial extent of laws: The provisions of Part II of this Act shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of West Bengal shall, until otherwise provided by a competent Legislature or other competent authority be constituted as meaning the territories within the existing State of West Bengal before the appointed day.
77. Power to adapt laws: For the purpose of facilitating the application in relation to the State of West Bengal or Gorkhaland of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent legislature or other competent authority.
Explanation.—In this section, the expression “appropriate Government” means as respects any law relating to a matter enumerated in the Union List, the Central Government, and as respects any other law in its application to a State, the State Government.
80. Power to construe laws: Notwithstanding that no provision or insufficient provision has been made under section 79 for the adaptation of a law made before the appointed day, any court, tribunal or authority, required or empowered to enforce such law may, for the purpose of facilitating its application in relation to the State of West Bengal or Gorkhaland, construe the law in such manner, without affecting the substance, as may be necessary or proper in regard to the matter before the court, tribunal or authority.
81. Power to name authorities, etc., for exercising statutory functions: The Government of the State of Gorkhaland, as respects the transferred territory may, by notification in the Official Gazette, specify the authority, officer or person who, on or after the appointed day, shall be competent to exercise such functions exercisable under any law in force on that day as may be mentioned in that notification and such law shall have effect accordingly.
82. Legal proceedings: Where immediately before the appointed day, the existing State of West Bengal is a party to any legal proceedings with respect to any property, rights or liabilities subject to apportionment between the State of West Bengal and Gorkhaland under this Act, the State of West Bengal or Gorkhaland which succeeds to, or acquires a share in, that property or those rights or liabilities by virtue of any provision of this Act shall be deemed to
be substituted for the existing State of West Bengal or added as
a party to those proceedings, and the proceedings may continue accordingly.
83. Transfer of pending proceedings:
(1) Every proceedings pending immediately before the appointed day before a court (including High Court), tribunal, authority or officer in any area which on that day falls within the State of West Bengal shall, if it is a proceeding relating exclusively to the territory, which as from that day are the territories of Gorkhaland State, stand transferred to the corresponding court, tribunal, authority or officer of the State of Gorkhaland.
(2) If any question arises as to whether any proceeding should stand transferred under sub-section (1), it shall be referred to the High Court of Calcutta and the decision of that High Court shall be final.
(3) In this section—
(a) “proceeding” includes any suit, case or appeal; and
(b) “corresponding court, tribunal, authority or officer” in the State of Gorkhaland means—
(i) the court, tribunal, authority or officer in which, or before whom, the proceeding would have laid if it had been instituted after the appointed day; or
(ii) in case of doubt, such court, tribunal, authority, or officer in the State of Gorkhaland, as may be determined after the appointed day by the Government of that State or the Central Government, as the case may be, or before the appointed day by the Government of the existing State of West Bengal to be the corresponding court, tribunal, authority or officer.
84. Right of advocates to practise in certain cases: Any person who, immediately before the appointed day, is enrolled as an advocate entitled to practise in any subordinate courts in the existing State of West Bengal shall, for a period of one year from that day, continue to be entitled to practise in those courts, notwithstanding that the whole or any part of the territories within the jurisdiction of those courts has been transferred to the State of Gorkhaland.
85. Effect of provisions of the Act inconsistent with other laws: The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law.
86. Power to remove difficulties:
(1) If any difficulty arises in giving effect to the provisions of this Act, the President may, by order, do anything not inconsistent with such provisions which appears to him to be necessary or expedient for the purpose of removing the difficulty:
Provided that no such order shall be made after the expiry of a period of three years from the appointed day.
(2) Every order made under this section shall be laid, before each House of Parliament.
87. Upon the appointed day the Gorkha Territorial Administration Act 2012 shall stand repealed and all the assets, liabilities, employees and infrastructure shall stand absorbed into the Government of Gorkhaland.
Via CHEWANG YONZON
Bill to provide for the Reorganisation of the existing State of West Bengal and for matters connected therewith for the welfare, identity and development of Indian Gorkhas, Bhutias, Lepchas, Sherpas, Adivasi, Rajbangshi and all other communities residing within the territory of the District of Darjeeling and portions of the District of Jalpaiguri known as the Dooars.
Be it enacted by Parliament in the Sixty Seventh Year of the Republic of India as follows:
PART I
PRELIMINARY
1. Short title: This Act may be called the West Bengal Reorganisation Act, 2016.
2. Definitions: In this Act, unless the context otherwise requires,—
(a) “appointed day” means the day which the Central Government may, by notification in the Official Gazette, appoint;
(b) “article” means an article of the Constitution:
(c) “assembly constituency”, “council constituency” and “parliamentary constituency” have the same meanings as in the Representation of the People Act, 1950;
(d) “Election Commission” means the Election Commission appointed by the President under article 324;
(e) “existing State of West Bengal” means the State of West Bengal as existing immediately before the appointed day;
(f) “law” includes any enactment, ordinance, regulation, order, by-law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the existing State of West Bengal;
(g) “notified order” means an order published in the Official Gazette;
(h) “population ratio”, in relation to the State of West Bengal and Gorkhaland means the ratio of [please fill in as applicable].
(i) “sitting member”, in relation to either House of Parliament or of the Legislature of the existing State of West Bengal means a person who immediately before the appointed day, is a member of that House;
(j) “successor State”, in relation to the existing State of West Bengal means the State of West Bengal and the State of Gorkhaland;
(k) “transferred territory” means the territory which on the appointed day is transferred from the existing State of West Bengal to the State of Gorkhaland;
(l) “treasury” includes a sub-treasury; and
(m) any reference to a district, tehsil or other territorial division of the existing State of West Bengal shall be construed as a reference to the area comprised within that territorial division on the appointed day.
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| Gorkhaland map |
PART II
REORGANISATION OF THE STATE OF WEST BENGAL
3. Formation of Gorkhaland State: On and from the appointed day, there shall be formed a new State to be known as the State of Gorkhaland comprising the following territories of the existing State of West Bengal, namely:–
Darjeeling district and portions of Jalpaiguri District known as the Dooars,
[as described in the Schedule] and thereupon the said territories shall cease to form part of the existing State of West Bengal.
4. State of West Bengal and territorial divisions thereof: On and from the appointed day, the State of West Bengal shall comprise the territories of the existing State of West Bengal other than those specified in section 3.
5. Amendment of the First Schedule to the Constitution: On and from the appointed day, in the First Schedule to the Constitution, under the heading “I. THE STATES”,—
(a) in the paragraph relating to the territories of the State of West Bengal, after the words, brackets and figures “West Bengal (Transfer of Territories) Act, 1956 ”, the following shall be added, namely:—
“but excluding the territories specified in section 3 of the West Bengal Reorganisation Act, 2016.”;
(b) after entry 29, the following entry shall be inserted, namely:—
“30. Gorkhaland: The territories specified in section 3 of the West Bengal Reorganisation Act, 2016”.
6. Saving Powers of the State Government: Nothing in the foregoing provisions of this Part shall be deemed to affect the power of the Government of West Bengal or Gorkhaland to alter, after the appointed day, the name, area or boundaries of any district or other territorial division in the State.
PART III
REPRESENTATION IN THE LEGISLATURES
The Council of States
7. Amendment of the Fourth Schedule to the Constitution: On and from the appointed day, in the Fourth Schedule to the Constitution, in the Table,—
(a) entries 21 to 31 shall be renumbered as entries 22 to 32 respectively;
(b) in entry 20, for the figures “16”, the figures “15” shall be substituted;
(c) after entry 20, the following entry shall be inserted, namely :
“21. Gorkhaland...................1”.
8. Allocation of sitting members:
(1) On and from the appointed day, the sixteen sitting members of the Council of State representing the existing State of West Bengal shall be deemed to have been elected to fill fifteen seats allotted to the successor State of West Bengal and one seat to the successor State of Gorkhaland.
(2) The term of office of such sitting members shall remain unaltered.
The House of the People
9. Representation in the House of the People: On and from the appointed day, there shall be allocated 41 seats to the successor State of West Bengal, and 1 to the successor State of Gorkhaland, in the House of the People, and the First Schedule to the Representation of the People Act, 1950 shall be deemed to be amended accordingly.
10. Delimitation of Parliamentary and Assembly constituencies: On and from the appointed day, the Delimitation of Parliamentary and Assembly Constituencies Order, 1976, shall stand amended as directed in the Second Schedule to this Act.
11. Provision as to sitting members:
(1) Every sitting member of the House of the People representing a constituency which, on the appointed day by virtue of the provisions of section 10, stands allotted, with or without alteration of boundaries, to the successor States of West Bengal or Gorkhaland shall be deemed to have been elected to the House of the People by that constituency as so allotted.
(2) The term of office of such sitting members shall remain unaltered.
The Legislative Assembly
12. Provisions as to Legislative Assembly:
(1) The number of seats as on the appointed day in the Legislative Assemblies of the States of West Bengal and Gorkhaland shall be two hundred and ninety four and forty five respectively.
(2) In the Second Schedule to the Representation of the People Act, 1950, under heading “I. States”,—
(a) entries 7 to 29 shall be renumbered as entries 8 to 30 respectively;
(b) after entry 6, the following entry shall be inserted, namely:—
“ 7. Gorkhaland................................................45.”;
13. Allocation of sitting members:
(1) Every sitting member of the Legislative Assembly of the existing State of West Bengal elected to fill a seat in that Assembly from a constituency which on the appointed day by virtue of the provisions of section 10 stands allotted, with or without alteration of boundaries, to the State of Gorkhaland shall, on and from that day, cease to be a member of the Legislative Assembly of West Bengal and shall be deemed to have been elected to fill a seat in the Legislative Assembly of Gorkhaland from that constituency so allotted.
(2) All other sitting members of the Legislative Assembly of the existing State of West Bengal shall continue to be members of the Legislative Assembly of that State and any such sitting member representing a constituency the extent, or the name and extent of which are altered by virtue of the provisions of section 9 shall be deemed to have been elected to the Legislative Assembly of West Bengal by that constituency as so altered.
(3) Notwithstanding anything contained in any other law for the time being in force, the Legislative Assemblies of West Bengal and Gorkhaland shall be deemed to be duly constituted on the appointed day.
(4) The sitting member of the Legislative Assembly of the existing State of West Bengal nominated to that Assembly under article 333 to represent the Anglo-Indian community shall be deemed to have been nominated to represent the said community in the Legislative Assembly of West Bengal under that article.
14. Duration of Legislative Assemblies: The period of five years referred to in clause (1) of article 172, shall, in the case of Legislative Assembly of State of West Bengal and the State of Gorkhaland be deemed to have commenced on the date on which it actually commenced in the case of Legislative Assembly of the existing State of West Bengal.
15. Speakers and Deputy Speakers:
(1) The persons who immediately before the appointed day are the Speaker and Deputy Speaker of the Legislative Assembly of the existing State of West Bengal shall continue to be the Speaker and Deputy Speaker respectively of that Assembly on and from that day.
(2) As soon as may be after the appointed day, the Legislative Assembly of the successor State of Gorkhaland shall choose two members of that Assembly to be respectively Speaker and Deputy Speaker thereof and until they are so chosen, the duties of the office of the Speaker shall be performed by such member of the Assembly as the Governor may appoint for the purpose.
16. Rules of procedure: The rules of procedure and conduct of business of the Legislative Assembly of West Bengal as in force immediately before the appointed day shall, until rules are made under clause (1) of article 208, be the rules of procedure and conduct of business of the Legislative Assembly of the State of Gorkhaland, subject to such modifications and adaptations as may be made therein by the Speaker thereof.
Delimitation of constituencies
17. Delimitation of constituencies:
(1) For the purpose of giving effect to the provisions of section 12, the Election Commission shall determine in the manner hereinafter provided the number of seats to be reserved for the Scheduled Castes and the Scheduled Tribes in the Legislative Assemblies of the States of West Bengal and Gorkhaland, respectively having regard to the relevant provisions of the Constitution.
(2) The delimitation of constituencies in the States of West Bengal and Gorkhaland shall be determined on the basis of the published figures of the census taken in the year 1971.
18. Power of the Election Commission to maintain Delimitation Orders up-to-date:
(1) The Election Commission may, from time to time, by notification in the Official Gazette,—
(a) correct any printing mistakes in any order made under section 17 or any error arising therein from inadvertent slip or omission; and
(b) where the boundaries or name of any territorial division mentioned in any such order or orders is or are altered, make such amendments as appear to it to be necessary or expedient for bringing such order up-to-date.
(2) Every notification under this section relating to an assembly constituency shall be laid, as soon as may be after it is issued, before the concerned Legislative Assembly.
Scheduled Castes and Scheduled Tribes
19. Amendment of the Scheduled Castes Order: On and from the appointed day, the Constitution (Scheduled Castes) Order, 1950, shall stand amended as directed in the Third Schedule.
20. Amendment of the Scheduled Tribes Order: On and from the appointed day, the Constitution (Scheduled Tribes) Order, 1950, shall stand amended as directed in the Fourth Schedule.
PART IV
HIGH COURT
21. High Court of Gorkhaland:
(1) As from the appointed day, there shall be a separate High Court for the State of Gorkhaland (hereinafter referred to as “the High Court of Gorkhaland”) and the High Court of Calcutta shall become the High Court for the State of West Bengal (hereinafter referred to as the High Court of Calcutta).
(2) The principal seat of High Court of Gorkhaland shall be at such place as the President may, by notified order, appoint.
(3) Notwithstanding anything contained in sub-section (2), the Judges and division courts of the High Court of Gorkhaland may sit at such other place or places in the State of Gorkhaland other than its principal seat as the Chief Justice may, with the approval of the Governor of Gorkhaland, appoint.
22. Judges of Gorkhaland High Court:
(1) Such of the Judges of the High Court of Calcutta holding office immediately before the appointed day as may be determined by the President shall on that day cease to be judges of the High Court of Calcutta and become Judges of the High Court of Gorkhaland.
(2) The persons who by virtue of sub-section (1) become Judges of the High Court of Gorkhaland shall, except in the case where any such person is appointed to be the Chief Justice of that High Court, rank in that Court according to the priority of their respective appointments as Judges of the High Court of Calcutta.
23. Jurisdiction of Gorkhaland High Court: The High Court of Gorkhaland shall have, in respect of any part of the territories included in the State of Gorkhaland, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect to that part of the said territories by the High Court of Calcutta.
24. Special provision relating to Bar Council and advocates: (1) On and from the appointed day, in the Advocates Act, 1961, in section 3, in sub-section (1), in clause (a), for the words “and West Bengal”, the words “West Bengal and Gorkhaland” shall be substituted.
(2) Any person who immediately before the appointed day is an advocate on the roll of the Bar Council of the existing State of West Bengal may give his option in writing, within one year from the appointed day to the Bar Council of such existing State, to transfer his name on the roll of the Bar Council of Gorkhaland and notwithstanding anything contained in the Advocates Act, 1961 and the rules made thereunder, on such option so given his name shall be deemed to have been transferred on the roll of the Bar Council of Gorkhaland with effect from the date of the option so given for the purposes of the said Act and the rules made thereunder.
(3) The persons other than the advocates who are entitled immediately before the appointed day, to practise in the High Court of Calcutta or any subordinate court thereof shall, on and after the appointed day, be recognised as such persons entitled also to practise in the High Court of Gorkhaland or any subordinate court thereof, as the case may be.
(4) The right of audience in the High Court of Gorkhaland shall be regulated in accordance with the like principles as immediately before the appointed day are in force with respect to the right of audience in the High Court of Calcutta.
25. Practice and procedure in Gorkhaland High Court: Subject to the provisions of this Part, the law in force immediately before the appointed day with respect to practice and procedure in the High Court of West Bengal shall, with the necessary modifications, apply in relation to the High Court of Gorkhaland, and accordingly, the High Court of Gorkhaland shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by the High Court of Calcutta or to adopt whether provisionally or permanently the practice and procedure of any other High Court with necessary modifications.
Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court of West Bengal shall, until varied or revoked by rules or orders made by the High Court of Gorkhaland, apply with the necessary modifications in relation to practice and procedure in the High Court of Gorkhaland as if made by that Court.
26. Custody of seal of Gorkhaland High Court: The law in force immediately before the appointed day with respect to the custody of the seal of the High Court of Calcutta shall, with the necessary modifications, apply with respect to the custody of the seal of the High Court of Gorkhaland.
27. Form of writs and other processes: The law in force immediately before the appointed day with respect to the form of writs and other processes used, issued or awarded by the High Court of Calcutta shall, with the necessary modifications, apply with respect to the form of writs and other processes used, issued or awarded by the High Court of Gorkhaland.
28. Powers of Judges: The law in force immediately before the appointed day relating to the powers of the Chief Justice, Single Judge and Division courts of the High Court of Calcutta and with respect to all matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court of Gorkhaland.
29. Procedure as to appeals to Supreme Court: The law in force immediately before the appointed day relating to appeals to the Supreme Court from the High Court of Calcutta and the Judges and division courts thereof shall, with the necessary modifications, apply in relation to the High Court of Gorkhaland.
30. Transfer of proceedings from Calcutta High Court to Gorkhaland High Court:
(1) Except as hereinafter provided, the High Court of Calcutta shall, as from the appointed day, have no jurisdiction in respect of the transferred territory.
(2) Such proceedings pending in the High Court of Calcutta immediately before the appointed day as are certified, whether before or after that day, by the Chief Justice of that High Court, having regard to the place of accrual of the cause of action and other circumstances, to be proceedings which ought to be heard and decided by the High Court of Gorkhaland shall, as soon as may be after such certification, be transferred to the High Court of Gorkhaland.
(3) Notwithstanding anything contained in sub-section (1) and (2) of this section or in section 23, but save as hereinafter provided, the High Court of Calcutta shall have, and the High Court of Gorkhaland shall not have, jurisdiction to entertain, hear or dispose of appeals, applications for leave to the Supreme Court, applications for review and other proceedings where any such proceedings seek any relief in respect of any order passed by the High Court of Calcutta before the appointed day.
Provided that if after any such proceedings have been entertained by the High Court of Calcutta, it appears to the Chief Justice of that High Court that they ought to be transferred to the High Court of Gorkhaland, he shall order that they shall be so transferred, and such proceedings shall thereupon be transferred accordingly.
(4) Any order made by the High Court of Calcutta—
(a) before the appointed day, in any proceedings transferred to the High Court of Gorkhaland by virtue of sub-section (2); or
(b) in any proceedings with respect to which the High Court of Calcutta retains jurisdiction by virtue of sub-section (3),
shall for all purposes have effect, not only as an order of the High Court of Calcutta, but also as an order made by the High Court of Gorkhaland.
31. Right to appear or to act in proceedings transferred to Gorkhaland High Court: Any person, who, immediately before the appointed day, is an advocate entitled to practise or any other persons entitled to practise in the High Court of Calcutta and was authorised to appear in any proceedings transferred from that High Court to the High Court of Gorkhaland under section 30, shall have the right to appear in the High Court of Gorkhaland in relation to those proceedings.
32. Interpretation: For the purposes of section 30—
(a) proceedings shall be deemed to be pending in a Court until that Court has disposed of all issues between the parties, including any issues with respect to the taxation of the costs of the proceedings and shall include appeals, applications for leave to the Supreme Court, applications for review, petitions for revision and petitions for writs; and
(b) references to a High Court shall be construed as including references to a Judge or division court thereof, and references to an order made by a Court or a Judge shall be construed as including references to a sentence, judgment or decree passed or made by that Court or Judge.
33. Saving: Nothing in this Part shall affect the application to the High Court of Gorkhaland of any provisions of the Constitution, and this Part shall have effect subject to any provision that may be made on or after the appointed day with respect to that High Court by any Legislature or other authority having power to make such provision.
PART V
AUTHORISATION OF EXPENDITURE AND DISTRIBUTION OF REVENUES
34. Authorisation of expenditure of Gorkhaland State: The Governor of West Bengal may, at any time before the appointed day, authorise such expenditure from the Consolidated Fund of the State of Gorkhaland as he deems necessary for any period not more than six months beginning with the appointed day pending the sanction of such expenditure by the Legislative Assembly of the State of Gorkhaland.
Provided that the Governor of Gorkhaland may, after the appointed day, authorise such further expenditure as he deems necessary from the Consolidated Fund of the State of Gorkhaland for any period not extending beyond the said period of six months.
35. Reports relating to accounts of West Bengal State:
(1) The reports of the Comptroller and Auditor-General of India referred to in clause (2) of article 151 relating to the accounts of the State of West Bengal in respect of any period prior to the appointed day shall be submitted to the Governor of each of the successor State of West Bengal and Gorkhaland who shall cause them to be laid before the Legislature of that State.
(2) The President may by order—
(a) declare any expenditure incurred out of the Consolidated Fund of West Bengal on any service in respect of any period prior to the appointed day during the financial year or in respect of any earlier financial year in excess of the amount granted for that service and for that year as disclosed in the reports referred to in sub-section (1) to have been duly authorised; and
(b) provide for any action to be taken on any matter arising out of the said reports.
36. Distribution of revenue: The President shall, by order, determine the share of the States of West Bengal and Gorkhaland in the total amount payable to the existing State of West Bengal on the recommendation of the Finance Commission constituted under article 280 of the Constitution, in such manner as he thinks fit.
PART VI
APPORTIONMENT OF ASSETS AND LIABILITIES
37. Application of Part:
(1) The provisions of this Part shall apply in relation to the apportionment of the assets and liabilities of the State of West Bengal immediately before the appointed day.
(2) The successor State shall be entitled to receive benefits arising out of the decisions taken by the predecessor State and the successor States shall be liable to bear the financial liabilities arising out of the decisions taken by the existing State of West Bengal.
(3) The apportionment of assets and liabilities would be subject to such financial adjustment as may be necessary to secure just, reasonable and equitable apportionment of the assets and liabilities amongst the successor States.
(4) Any dispute regarding the amount of financial assets and liabilities shall be settled through mutual agreement, failing which by order by the Central Government on the advice of the Comptroller and Auditor-General of India.
38. Land and goods:
(1) Subject to the other provisions of this Part, all land and all stores, articles and other goods belonging to the existing State of West Bengal shall,—
(a) if within the transferred territory, pass to the State of Gorkhaland; or
(b) in any other case, remain the property of the State of West Bengal:
Provided that any land, stores, articles or other goods may be distributed otherwise than in accordance with the situation of such land, stores, articles or goods by mutual agreement between the successor States, failing which the Central Government may, on the request of any of the Governments of the successor States and after consulting both the Governments of the successor States, issue directions for the just and equitable distribution of such land, stores, articles or goods between the successor States and the land, stores articles or goods shall accordingly pass to the successor States:
Provided further that in case of the distribution, of any land, stores, articles and goods or class of goods under this sub-section located outside the existing State of West Bengal, such distribution shall be made through mutual agreement arrived at between the Governments of the successor States for that purpose, failing which the Central Government may, on request by any of the Governments of the successor States, after consulting both the Governments of the successor States, issue such direction as it may deem fit for the distribution of such land, stores, articles and goods or class of goods, as the case may be, under this sub-section.
(2) Stores held for specific purposes, such as use or utilisation in particular institutions, workshops or undertakings or on particular works under construction, shall pass to the successor States in whose territories such institutions, workshops, undertakings or works are located.
(3) Stores relating to the Secretariat and offices of Heads of Departments having jurisdiction over the whole of the existing State of West Bengal shall be divided between the successor States in accordance with the mutual agreement arrived at between the Government of the successor States for that purpose, failing which the Central Government may, on request by any of the Governments of the successor States, after consulting both the Governments of the successor States, issue such direction as it may deem fit for the distribution of such stores or any part of such stores, as the case may be.
(4) Any other unissued stores of any class in the existing State of West Bengal shall be divided between the successor States in proportion to the total stores of that class purchased in the period of three years prior to the appointed day, for the territories of the existing State of West Bengal included respectively in each of the successor States:
Provided that where such proportion cannot be ascertained in respect of any class of stores or where the value of any class of such stores does not exceed rupees ten thousand, that class of stores shall be divided between the successor States according to the population ratio.
(5) In this section, the expression “land” includes immovable property of every kind and any rights in or over such property, and the expression “goods” does not include coins, bank notes and currency notes.
39. Treasury and bank balances: The total of the cash balances in all treasuries of the State of West Bengal and the credit balances of the State with Reserve Bank of India, the State Bank of India or any other bank immediately before the appointed day shall be divided between the States of West Bengal and Gorkhaland according to the population ratio:
Provided that for the purposes of such division, there shall be no transfer of cash balances from any treasury to any other treasury and the apportionment shall be effected by adjusting the credit balances of the two States in the books of the Reserve bank of India on the appointed day:
Provided further that if the State of Gorkhaland has no account on the appointed day with the Reserve Bank of India, the adjustment shall be made in such manner as the Central Government may, by order, direct.
40. Arrears of taxes: The right to recover arrears of any tax or duty on property, including arrears of land revenue, shall belong to the successor State in which the property is situated, and the right to recover arrears of any other tax or duty shall belong to the successor State in whose territories the place of assessment of that tax or duty is included on the appointed day.
41. Right to recover loans and advances:
(1) The right of the existing State of West Bengal to recover any loans or advances made before the appointed day to any local body, society, agriculturist or other person in an area within that State shall belong to the successor State in which that area is included on that day.
(2) The right of the existing State of West Bengal to recover any loans or advances made before the appointed day to any person or institution outside that State shall belong to the State of West Bengal.
Provided that any sum recovered in respect of any such loan or advance shall be divided between the State of West Bengal and Gorkhaland according to the population ratio.
42. Investments and credits in certain funds:
(1) The securities held in respect of the investments made from Cash Balances Investment Account or from any Fund in the Public Account of the existing State of West Bengal as specified in the Fifth Schedule to this Act shall be apportioned in the ratio of population of the successor States:
Provided that the securities held in investments made from the Calamity Relief Fund of the existing State of West Bengal shall be divided in the ratio of the area of the territories occupied by the successor States:
Provided further that the balance in the Reserve Funds in the Public Account of West Bengal created wholly out of appropriations from the Consolidated Fund of the existing State of West Bengal, to the extent the balances have not been invested outside Government account, shall not be carried forward to similar Reserve Funds in the Public Account of, successor States:
Provided also that the balances in any other Reserve Funds, excluding those specified in sub-section (2), shall be allocated between the State of West Bengal and Gorkhaland in the ratio of population of those States.
(2) The investments of the existing State of West Bengal immediately before the appointed day in any special fund the objects of which are confined to a local area shall belong to the State in which that area is included on the appointed day.
(3) The investments of the existing State of West Bengal immediately before the appointed day in any private, commercial or industrial undertaking, in so far as such investments have not been made or are deemed not to have been made from the cash balance investment account, shall pass to the State in which the principal seat of business of the undertaking is located.
(4) Where anybody corporate constituted under a Central Act, State of Act of Provincial Act for the existing State of West Bengal or any part thereof has, by virtue of the provisions of Part II of this Act, become an inter-State body corporate, the investments in, or loans or advances to, any such body corporate by the existing State of West Bengal made before the appointed day shall, save as otherwise expressly provided by or under this Act, be divided between the State of West Bengal and Gorkhaland in the same proportion in which the assets of the body corporate are divided under the provisions of this Part.
43. Assets and liabilities of State Undertaking:
(1) The assets and liabilities relating to any undertaking of the existing State of West Bengal whether directly owned or through a body corporate constituted or incorporated or registered under any Central, State or Provincial Act, shall,—
(a) if exclusively located in a successor State, pass to the successor State, and where a depreciation reserve is maintained by the existing State of West Bengal for such undertaking, the securities held in respect of investment made from that fund shall also pass to such successor State;
(b) where any such undertaking or part thereof is located, in more than one successor State, the assets, liabilities and securities shall be divided in such manner as may be agreed upon between the successor States within a period of two years from the appointed day or in failure of such agreement as the Central Government may by order direct.
(2) An agreement entered into between the successor States, or order made by the Central Government under sub-section (1) may provide for the dissolution of the undertaking or transfer or re-employment of any employee of the undertaking to or by the successor States, subject to the provisions of section 62.
(3) An agreement entered into between the successor States, or order made by the Central Government under sub-section (1) may also provide for the transfer of the assets and liabilities which would otherwise have passed to a successor State to any other undertaking of that successor State; and any employee of the undertaking referred to in sub-section (1), who would otherwise have been transferred to or re-employed by a successor State. may be transferred to or be re-employed by such undertaking instead of that successor State.
44. Public Debt:
(1) All liabilities on account of Public Debt and Public Account of the existing State of West Bengal outstanding immediately before the appointed day shall be apportioned in the ratio of population of the successor States unless a different mode of apportionment is provided under the provisions of this Act.
(2) The individual items of liabilities to be allocated to the successor States and the amount of contribution required to be made by one successor State to another shall be such as may be ordered by the Central Government in consultation with the Comptroller and Auditor-General of India:
Provided that till such orders are issued, the liabilities on account of Public Debt and Public Account of the existing State of West Bengal shall continue to be the liabilities of the successor State of West Bengal.
(3) The liability on account of loans raised from any source and re-lent by the existing State of West Bengal to such entities as may be specified by the Central Government and whose area of operation is confined to either of the successor States shall devolve on the respective States as specified in sub-section (4).
(4) The Public Debt of the existing State of West Bengal attributable to loan taken from any source for the express purpose of re-lending the same to a specific institution and outstanding immediately before the appointed day shall—
(a) if re-lent to any local body, body corporate or other institution in any local area, be the debt of the State in which the local area is included on the appointed day; or
(b) if re-lent to the West Bengal State Electricity Board, the West Bengal State Road Transport Corporation, or the West Bengal Housing Board or any other institution which becomes an inter-State institution on the appointed day, be divided between the State of West Bengal and Gorkhaland in the same proportion in which the assets of such body corporate or institution are divided under the provisions of Part VII of this Act.
(5) Where a sinking fund or a depreciation fund is maintained by the existing State of West Bengal for repayment of any loan raised by it, the securities held in respect of investments made from that fund shall be divided between the successor States of West Bengal and Gorkhaland in the same proportion in which the total public debt is divided between the two States under this section.
(6) In this section, the expression “Government security” means a security created and issued by a State Government for the purpose of raising a public loan and having any of the forms specified in, or prescribed under clause (2) of section 2 of the Public Debt Act, 1944.
45. Floating loans: All liabilities of the existing State of West Bengal of any floating loan to provide short term finance to any local body, body corporate or other institution shall be determined by mutual agreement between the successor States, failing which the Central Government shall determine such liability between the successor States in consultation with such States.
46. Refund of taxes collected in excess: The liability of the existing State of West Bengal to refund any tax or duty on property, including land revenue, collected in excess shall be the liability of the successor State in whose territories the property is situated, and the liability of the existing State of West Bengal to refund any other tax or duty collected in excess shall be the liability of the successor State in whose territories the place of assessment of that tax or duty is included.
47. Deposits, etc.:
(1) The liability of the existing State of West Bengal in respect of any civil deposit or local fund deposit shall, as from the appointed day, be the liability of the State in whose area the deposit has been made.
(2) The liability of the existing State of West Bengal in respect of any charitable or other endowment shall, as from the appointed day, be the liability of the State in whose area the institution entitled to the benefit of the endowment is located or of the State to which the objects of the endowment, under the terms thereof, are confined.
48. Provident fund: The liability of the existing State of West Bengal in respect of the provident fund account of a Government servant in service on the appointed day shall, as from that day, be the liability of the State to which that Government servant is permanently allotted.
49. Pensions: The liability of the existing State of West Bengal in respect of pensions shall pass to, or be apportioned between the successor States of West Bengal and Gorkhaland in accordance with the provisions contained in the Sixth Schedule to this Act.
50. Contracts:
(1) Where, before the appointed day, the existing State of West Bengal has made any contract in the exercise of its executive power for any purposes of the State, that contract shall be deemed to have been made in the exercise of the executive power—
(a) if the purposes of the contract are, on and from the appointed day, exclusive purposes of either of the successor States of West Bengal and Gorkhaland, then, of that State; or
(b) in any other case, of the State of West Bengal,
all rights and liabilities which have accrued, or may accrue under any such contract shall, to the extent to which they would have been rights or liabilities of the existing State of West Bengal, be rights or liabilities of the State of Gorkhaland or the State of West Bengal, as the case may be:
Provided that in any such case as is referred to in clause (b), the initial allocation of rights and liabilities made by this sub-section shall be subject to such financial adjustment as may be agreed upon between the successor States of West Bengal and Gorkhaland or in default of such agreement, as the Central Government may, by order, direct.
(2) For the purposes of this section, there shall be deemed to be included in the liabilities which have accrued or may accrue under any contract—
(a) any liability to satisfy an order or award made by any court or other tribunal in proceedings relating to the contract; and
(b) any liability in respect of expenses incurred in or in connection with any such proceedings.
(3) This section shall have effect subject to the other provisions of this Part relating to the apportionment of liabilities in respect of loans, guarantees and other financial obligations; and bank balances and securities shall, notwithstanding that they partake of the nature of contractual rights, be dealt with under those provisions.
51. Liability in respect of actionable wrong: Where, immediately before the appointed day, the existing State of West Bengal is subject to any liability in respect of any actionable wrong other than breach of contract, that liability shall,—
(a) if the cause of action arose wholly within the territories which, as from that day, are the territories of either of the successor States of West Bengal or Gorkhaland, be a liability of that successor State; and
(b) in any other case, be initially a liability of the State of West Bengal, but subject to such financial adjustment as may be agreed upon between the States of West Bengal and Gorkhaland or, in default of such agreement, as the Central Government may, by order, direct.
52. Liability as guarantor: Where, immediately before the appointed day, the existing State of West Bengal is liable as guarantor in respect of any liability of a registered co-operative society or other person, that liability of the existing State of West Bengal shall—
(a) if the area of operations of such society or persons is limited to the territories which, as from that day, are the territories of either of the States of West Bengal or Gorkhaland, be a liability of that successor State; and
(b) in any other case, be initially a liability of the State of West Bengal, subject to such financial adjustment as may be agreed upon between the States of West Bengal and Gorkhaland or, in default of such agreements, as the Central Government may, by order, direct.
53. Items in suspense: If any item in suspense is ultimately found to affect an asset or liability of the nature referred to in any of the foregoing provisions of this Part, it shall be dealt with in accordance with that provision.
54. Residuary provision: The benefit or burden of any asset or liability of the existing State of West Bengal not dealt with in the foregoing provisions of this Part shall pass to the State of West Bengal in the first instance, subject to such financial adjustment as may be agreed upon between the States of West Bengal and Gorkhaland or, in default of such agreement, as the Central Government may, by order, direct.
55. Apportionment of assets or liabilities by agreement: Where the successor States of West Bengal and Gorkhaland agree that the asset, liability or benefit or burden of any particular asset or liability should be apportioned between them in a manner other than that provided for in the foregoing provisions of this Part, then, notwithstanding anything contained therein, the assets, liability or benefit or burden of that asset or liability shall be apportioned in the manner agreed upon.
56. Power of Central Government to order allocation or adjustment in certain cases: Where, by virtue of any of the provisions of this Part, any of the successor States of West Bengal and Gorkhaland becomes entitled to any property or obtains any benefits or becomes subject to any liability, and the Central Government is of opinion, on a reference made within a period of three years from the appointed day by either of the States, that it is just and equitable that property or those benefits should be transferred to, or shared with, the other successor State, or that a contribution towards that liability should be made by the other successor State, the said property or benefits shall be allocated in such manner between the two States, or the other State shall make to the State subject to the liability such contribution in respect thereof, as the Central Government may, after consultation with the two State Governments, by order determine.
57. Certain expenditure to be charged on Consolidated Fund: All sums payable either by the State of West Bengal or by the State of Gorkhaland to the other States or by the Central Government to either of those States, by virtue of the provisions of this Act, shall be charged on the Consolidated Fund of the State by which such sums are payable or, as the case may be, the Consolidated Fund of India.
PART VII
PROVISIONS AS TO CERTAIN CORPORATIONS
58. Provisions as to West Bengal State Electricity Development Corporation Limited, West Bengal State Road Transport Corporation etc.:
(1) The following bodies corporate constituted for the existing State of West Bengal, namely—
(a) the West Bengal State Electricity Development Corporation Limited constituted under the Electricity Supply Act, 1948;
(b) the West Bengal State Road Transport Corporation established under the Road Transport Corporation Act, 1950; and
(c) and all such similar Boards, Authorities and Bodies
shall, on and from the appointed day, continue to function in those areas in respect of which they were functioning immediately before that day, subject to the provisions of this section and arrangements for the functioning of such body corporates as may be mutually agreed upon between the successor States failing which to such directions as may, from time to time, be issued by the Central Government.
(2) Any directions issued by the Central Government under sub-section (1) in respect of the Board, Authority, Body or the Corporation shall include a direction that the Act under which the Board, Authority, Body or the Corporation was constituted shall, in its application to that Board, Authority, Body or Corporation, have effect subject to such exceptions and modifications as the Central Government thinks fit.
(3) The Board, Authority, Body or the Corporation referred to in sub-section (1) shall cease to function as from, and shall be deemed to be dissolved on such date as the Central Government may, by order, appoint; and upon such dissolution, its assets, rights and liabilities shall be apportioned between the successor States of West Bengal and Gorkhaland in such manner as may be agreed upon between them within one year of the dissolution of the Board, Authority, Body or the Corporation, as the case may be, or if no agreement is reached, in such manner as the Central Government may, by order, determine:
(4) Nothing in the preceding provisions of this section shall be construed as preventing the Government of the State of West Bengal or, as the case may be, the Government of the State of Gorkhaland from constituting, at any time on or after the appointed day, a State Electricity Board or a State Road Transport Corporation or a State Warehousing Corporation for the State under the provisions of the Act relating to such Board or Corporation; and if such a Board or Corporation is so constituted in either of the States before the dissolution of the Board or the Corporation referred to in sub-section (1),—
(a) provision may be made by order of the Central Government enabling the new Board or the new Corporation to take over from the existing Board or Corporation all or any of its undertakings, assets, rights and liabilities in that State, and
(b) upon the dissolution of existing Board or Corporation,—
(i) any assets, rights and liabilities which would otherwise have passed to that ;State by or under the provisions of sub-section (3) shall pass to the new Board or the new Corporation instead of to that State;
(ii) any employee who would otherwise have been transferred to or re-employed by that State under sub-section (3), read with clause (i) of sub-section (5), shall be transferred to or re-employed by the new Board or the new Corporation instead of to or by that State.
(5) An agreement entered into between the successor States under sub-section (3) and an order made by the Central Government under that sub-section or under clause (a) of sub-section (4) may provide for the transfer or re-employment of any employee of the Board or the Corporation referred to in sub-section (1),—
(i) to or by the successor States, in the case of an agreement under sub-section (4) or an order made under the sub-section;
(ii) to or by the new Board or the New Corporation constituted under sub-section (4), in the case of an order made under clause (a) of that sub-section,
and, subject to the provisions of section 64, also for the terms and conditions of service applicable to such employees after such transfer or re-employment.
59. Provisions as to West Bengal State Financial Corporation:
(1) The West Bengal State Financial Corporation established under the State Financial Corporation Act, 1951 shall, on and from the appointed day, continue to function in those areas in respect of which it was functioning immediately before that day, subject to the provisions of this section and to such directions as may from time to time, be issued by the Central Government after consultation with the Governments of the successor States.
(2) Any directions issued by the Central Government under sub-section (1) in respect of the Corporation may include a direction that the said Act, in its application to the Corporation, shall have effect subject to such exceptions and modifications as may be specified in the direction.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), the Board of Directors of the Corporation may, with the previous approval of the Central Government and shall, if so required by the Central Government, convene at anytime after the appointed day a meeting for the consideration of a scheme for the reconstitution or reorganisation or dissolution, as the case may be, of the Corporation, including proposals regarding the formation of new Corporations, and the transfer thereto of the assets, rights and liabilities of the existing Corporation, and if such a scheme is approved at the general meeting by a resolution passed by a majority of the shareholders present and voting, the scheme shall be submitted to the Central Government for its sanction.
(4) If the scheme is sanctioned by the Central Government either without modifications or with modifications which are approved at a general meeting, the Central Government shall certify the scheme, and upon such certification, the scheme shall, notwithstanding anything to the contrary contained in any law for the time being in force, be binding on the corporations affected by the scheme as well as the shareholders and creditors thereof.
(5) If the scheme is not so approved or sanctioned, the Central Government may refer the scheme to such Judge of the High Court of West Bengal as may be nominated in this behalf by the Chief Justice thereof, and the decision of the Judge in regard to the scheme shall be final and shall be binding on the corporations affected by the scheme as well as the shareholders and creditors thereof.
(6) Nothing in the preceding provisions of this section shall be construed as preventing the Government of the State of West Bengal and Gorkhaland from constituting, at any time on or after the appointed day, a State Financial Corporation for that State under the State Financial Corporation Act, 1951.
60. Provisions as to certain companies: (1) Notwithstanding anything contained in the foregoing provisions of this Part, each of the companies specified in the Seventh Schedule to this Act shall, on and from the appointed day and until otherwise provided for in any law, or in any agreement among the successor States, or in any direction issued by the Central Government continue to function in the areas in which it was functioning immediately before that day; and the Central Government may, after consultation with the Governments of the successor States, from time to time issue such directions in relation to such functioning as it may deem fit, notwithstanding anything to the contrary contained in the Companies Act, 1956, or in other law.
(2) Any directions issued under sub-section (1), in respect of a company referred to in that sub-section, may include directions
regarding the—
(a) regarding the division of the interests and shares of existing State of West Bengal in the company among the successor States;
(b) requiring the re-constitution of the Board of Directors of the company so as to give adequate representation to both the successor States.
61. Functioning of organisation registered society or trust incorporated on behest of State Government: (1) Notwithstanding anything contained in the foregoing provisions of this Part or any other law for the time being in force, any organisation registered society or trust, incorporated at the behest of the State Government, shall, on and from the appointed day, and until otherwise provided for in any law for the time being in force, or in any agreement between the successor States, or in any direction issued by the Central Government in consultation with the successor States, continue to function in the areas in which it was functioning immediately before that day, and the Central Government may, after consulting the Governments of the successor States, issue directions in relation to such functioning.
(2) Any directions issued under sub-section (1) may include directions regarding the —
(i) reconstitution of the Board of Directors of the organisation, society or trust by whatever name it maybe called; or
(ii) appointment of the Chief Executive by whatever name it may be called; or
(iii) regulations or bye laws, by whatever name they may be called; or
(iv) assessment and apportionment of financial support, if any, provided by the existing State of West Bengal for meeting fixed charges.
62. General provisions as to statutory corporations:
(1) Save as otherwise expressly provided by the foregoing provisions of this Part, where any body corporate constituted under a Central Act or State Act for the existing State of West Bengal or any part thereof has, by virtue of the provisions of Part II of this Act, become an inter-State body corporate, then, the body corporate shall, on and from the appointed day, continue to function and operate in those areas in respect of which it was functioning and operating immediately before that day, subject to such directions as may from time to time be issued by the Central Government, after consultation with the Governments of the successor States. until other provision is made by law in respect of the said body corporate.
(2) Any directions issued by the Central Government under sub-section (1) in respect of any such body corporate shall include a direction that any law by which the said body corporate is governed shall, in its application to that body corporate, have effect subject to such exceptions and modifications as may be specified in the direction.
63. Temporary provisions as to continuance of certain existing road transport permits:
(1) Notwithstanding anything contained in section 88 of the Motor Vehicles Act, 1988, a permit granted by the State Transport Authority of the existing State of West Bengal or any Regional Transport Authority in that State shall, if such permit was, immediately before the appointed day, valid and effective in any area in the transferred territory, be deemed to continue to be valid and effective in that area after that day subject to the provisions of that Act as for the time being in force in that area; and it shall not be necessary for any such permit to be countersigned by the State Transport Authority of Gorkhaland or any Regional Transport Authority therein for the purpose of validating it for use in such area.
Provided that the Central Government may, after consultation with the successor State Government or Government concerned add to, amend or vary the conditions attached to the permit by the Authority by which the permit was granted.
(2) No tolls, entrance fees or other charges of a like nature shall be levied after the appointed day in respect of any transport vehicle for its operations in any of the successor States under any such permit, if such vehicle was, immediately before that day, exempt from the payment of any such toll, entrance fees or other charges for its operations in the transferred territory.
Provided that the Central Government may, after consultation with the State Government or Governments concerned, authorise the levy of any such toll, entrance fees or other charges, as the case may be.
64. Special provisions relating to retrenchment compensation in certain cases: Where on account of the reorganisation of the existing state of West Bengal under this Act, any body corporate constituted under a Central Act, State Act or Provincial Act, any co-operative society registered under any law relating to co-operative societies or any commercial or industrial undertaking of that State is reconstituted or reorganised in any manner whatsoever or is amalgamated with any other body corporate, co-operative society or undertaking, or is dissolved, and in consequence of such reconstitution, reorganisation, amalgamation or dissolution, any workman employed by such body corporate or in any such co-operative society or undertaking, is transferred to, or re-employed by any other body corporate, or in any other co-operative society or undertaking, then notwithstanding anything contained in section 25F, section 25FF or section 25FFF of the Industrial Disputes Act, 1947, such transfer or re-employment shall not entitle him to any compensation under that section:
Provided that—
(a) the terms and conditions of service applicable to the workman after such transfer or re-employment are not less favourable to the workman than those applicable to him immediately before the transfer or re-employment;
(b) the employer in relation to the body corporate, the co-operative society or the undertaking where the workman is transferred or re-employed is, by agreement or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation under section 25F, section 25FF or section 25FFF of the Industrial Disputes Act, 1947 on the basis that his service has been continuous and has not been interrupted by the transfer or re-employment.
65. Special provisions as to income-tax: Where the assets, rights and liabilities of any body corporate carrying on any business are, under the provisions of this Part, transferred to any other bodies corporate which after the transfer carry on the same business, the losses or profits or gains sustained by the body corporate first mentioned which, but for such transfer, would have been allowed to be carried forward and set off in accordance with the provisions of Chapter VI of the Income-tax Act, 1961, shall be apportioned amongst the transferee bodies corporate in accordance with the rules to be made by the Central Government in this behalf and, upon such apportionment, the share of loss allotted to each transferee body corporate shall be dealt with in accordance with the provisions of Chapter VI of the said Act, as if the transferee body corporate had itself sustained such loss in a business carried on by it in the years in which these losses were sustained.
66. Continuance of facilities in certain State institutions: (1) The Government of State of West Bengal or Gorkhaland, as the case may be, shall, in respect of the institutions specified in the Eighth Schedule to this Act, located in that State, continue to provide facilities to the people of the other State which shall not, in any respect, be less favourable to such people than what was being provided to them before the appointed day, for such period and upon such terms and conditions as may be agreed upon between the two State Governments within a period of one year from the appointed day or if no agreement is reached within the said period of one year, then, as may be fixed by order of the Central Government.
(2) The Central Government may, at any time within a period of one year from the appointed day, by notification in the Official Gazette, specify in the Eighth Schedule any other institution existing on the appointed day in the State of West Bengal and Gorkhaland and on the issue of such notification, the Schedule shall be deemed to be amended by the inclusion of the said institution therein.
PART VIII
PROVISIONS AS TO SERVICES
67. Provisions relating to All-India Services:
(1) In this section, the expression “State cadre”—
(a) in relation to the Indian Administrative Service, has the meaning assigned to it in the Indian Administrative Service (Cadre) Rules, 1954;
(b) in relation to the Indian Police Service, has the meaning assigned to it in the Indian Police Service (Cadre) Rules, 1954;
(c) in relation to the Indian Forest Service, has the meaning assigned to it in the Indian Forest Service (Cadre) Rules, 1966.
(2) In place of the cadres of the Indian Administrative Service, Indian Police Service and Indian Forest Service for the existing State of West Bengal, there shall, on and from the appointed day, be two separate cadres, one for the State of West Bengal and the other for the State of Gorkhaland in respect of each of these services.
(3) The initial strength and composition of the State cadres referred to in sub-section (2) shall be such as the Central Government may, by order, determine before the appointed day.
(4) The members of each of the said service borne on the West Bengal cadre thereof immediately before the appointed day shall be allocated to the State cadres of the same service constituted under sub-section (2) in such manner and with effect from such date or dates as the Central Government may, by order, specify.
(5) Nothing in this section shall be deemed to affect the operation, on or after the appointed day, of the All-India Service Act, 1951, or the rules made thereunder.
68. Provisions relating to services in West Bengal and Gorkhaland:
(1) Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of West Bengal shall, on and from that day provisionally continue to serve in connection with the affairs of the State of West Bengal unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Gorkhaland:
Provided that no direction shall be issued under this section after the expiry of a period of one year from the appointed day.
(2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect.
(3) Every person who is finally allotted under the provisions of sub-section (2) to a successor State shall, if he is not already serving therein be made available for serving in the successor State from such date as may be agreed upon between the Governments concerned or in default of such agreement, as may be determined by the Central Government.
69. Provisions relating to other services:
(1) Nothing in this section or section 68 shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State:
Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of West Bengal or to the State of Gorkhaland under section 68 shall not be varied to his disadvantage except with the previous approval of the Central Government.
(2) All services prior to the appointed day rendered by a person—
(a) if he is deemed to have been allocated to any State under section 68, shall be deemed to have been rendered in connection with the affairs of that State;
(b) if he is deemed to have been allocated to the Union in connection with the administration of the Gorkhaland shall be deemed to have been rendered in connection with the affairs of the Union,
for the purposes of the rules regulating his conditions of service.
(3) The provisions of section 68, shall not apply in relation to members of any All-India Service.
70. Provisions as to continuance of officers in same post:
(1) Every person who, immediately before the appointed day is holding or discharging duties of any post or office in connection with the affairs of the existing State of West Bengal in any area which on that day falls within any of the successor States shall continue to hold the same post or office in that successor State, and shall be deemed on and from that day, to have been duly appointed to the post or office by the Government of, or any other appropriate authority in, that successor State:
Provided that nothing in this section shall be deemed to prevent a competent authority, on and from the appointed day, from passing in relation to such person any order affecting the continuance in such post or office.
71. Advisory Committees: The Central Government may, by order establish one or more Advisory Committees for the purpose of assisting it in regard to—
(a) the discharge of any of its functions under this Part; and
(b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this Part and the proper consideration of any representations made by such persons.
72. Power of Central Government to give directions: The Central Government may, give such directions to the State Government of West Bengal and the State Government of Gorkhaland as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Governments shall comply with such directions.
73. Provisions as to State Public Service Commission:
(1) The Public Service Commission for the existing State of West Bengal shall, on and from the appointed day, be the Public Service Commission for the State of West Bengal.
(2) The persons holding office immediately before the appointed day as Chairman or other member of the Public Service Commission for the existing State of West Bengal shall, as from the appointed day, be the Chairman or, as the case may be, the other member of the Public Service Commission for the State of West Bengal.
(3) Every person who becomes Chairman or other member of the Public Service Commission for the State of West Bengal on the appointed day under sub-section (2), shall—
(a) be entitled to receive from the Government of the State of West Bengal conditions of service not less favourable than those to which he was entitled under the provisions applicable to him;
(b) subject to the proviso to clause (2) of article 316, hold office or continue to hold office until the expiration of his term of office as determined under the provisions applicable to him immediately before the appointed day.
(4) The report of the West Bengal Public Service Commission as to the work done by the Commission in respect of any period prior to the appointed day shall be presented under clause (2) of article 323 to the Governors of the States of West Bengal and Gorkhaland, and the Governor of the State of West Bengal shall, on receipt of such report, cause a copy thereof together with a memorandum explaining as far as possible, as respects the cases, if any, where the advice of the Commission was not accepted, the reasons for such non-acceptance to be laid before the Legislature of the State of West Bengal and it shall not be necessary to cause such report or any such memorandum to be laid before the Legislative Assembly of the State of Gorkhaland.
74. Jurisdiction of the Commissions, Authorities and Tribunals:
(1) Notwithstanding anything contained in any law for the time being in force, every Commission, Authority, Tribunal, University, Board or any other body constituted under a Central Act, State Act or Provincial Act and having jurisdiction over the existing State of West Bengal shall on and from the appointed day continue to function in the successor State of West Bengal and also exercise jurisdiction as existed before the appointed day over the State of Gorkhaland for a maximum period of two years from the appointed day or till such period as is decided by mutual agreement between the successor States—
(i) to continue such body as a joint body for the successor States; or
(ii) to abolish it, on the expiry of that period, for either of the successor States; or
(iii) to constitute a separate Commission, Authority, Tribunal, University, Board or any other body, as the case may be, for the State of Gorkhaland,
whichever is earlier.
(2) No suit or other legal proceeding shall be instituted, in case such body is abolished under clause (ii) of sub-section (1), by any employee of such body against the termination of his appointment or for the enforcement of any service conditions or for securing absorption in alternative public employment against the Central Government or any of the successor States.
(3) Notwithstanding anything contained in any law for the time being in force or in any judgment, decree or order of any court or Tribunal or contract or agreement, any Chairman or member of any body abolished under clause (ii) of sub-section (1) shall not be entitled to any compensation for the unexpired period of his tenure.
(4) Notwithstanding anything contained in this section or any law for the time being in force, the Central Government shall, in accordance with any mutual agreement between the successor States or if there is no such agreement, after consultation with the Governments of the successor States, issue directions for the resolution of any matter relating to any body referred to in sub-section (1) and falling within the jurisdiction of any of the successor States within any period referred to in sub-section (1).
PART IX
LEGAL AND MISCELLANEOUS PROVISIONS
75. Amendment of Act 37 of 1956: On and from the appointed day, in section 15 of the States Reorganisation Act, 1956, in clause (c), for the words “Bihar, West Bengal”, the words “Bihar, West Bengal and Gorkhaland” shall be substituted.
76. Territorial extent of laws: The provisions of Part II of this Act shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of West Bengal shall, until otherwise provided by a competent Legislature or other competent authority be constituted as meaning the territories within the existing State of West Bengal before the appointed day.
77. Power to adapt laws: For the purpose of facilitating the application in relation to the State of West Bengal or Gorkhaland of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent legislature or other competent authority.
Explanation.—In this section, the expression “appropriate Government” means as respects any law relating to a matter enumerated in the Union List, the Central Government, and as respects any other law in its application to a State, the State Government.
80. Power to construe laws: Notwithstanding that no provision or insufficient provision has been made under section 79 for the adaptation of a law made before the appointed day, any court, tribunal or authority, required or empowered to enforce such law may, for the purpose of facilitating its application in relation to the State of West Bengal or Gorkhaland, construe the law in such manner, without affecting the substance, as may be necessary or proper in regard to the matter before the court, tribunal or authority.
81. Power to name authorities, etc., for exercising statutory functions: The Government of the State of Gorkhaland, as respects the transferred territory may, by notification in the Official Gazette, specify the authority, officer or person who, on or after the appointed day, shall be competent to exercise such functions exercisable under any law in force on that day as may be mentioned in that notification and such law shall have effect accordingly.
82. Legal proceedings: Where immediately before the appointed day, the existing State of West Bengal is a party to any legal proceedings with respect to any property, rights or liabilities subject to apportionment between the State of West Bengal and Gorkhaland under this Act, the State of West Bengal or Gorkhaland which succeeds to, or acquires a share in, that property or those rights or liabilities by virtue of any provision of this Act shall be deemed to
be substituted for the existing State of West Bengal or added as
a party to those proceedings, and the proceedings may continue accordingly.
83. Transfer of pending proceedings:
(1) Every proceedings pending immediately before the appointed day before a court (including High Court), tribunal, authority or officer in any area which on that day falls within the State of West Bengal shall, if it is a proceeding relating exclusively to the territory, which as from that day are the territories of Gorkhaland State, stand transferred to the corresponding court, tribunal, authority or officer of the State of Gorkhaland.
(2) If any question arises as to whether any proceeding should stand transferred under sub-section (1), it shall be referred to the High Court of Calcutta and the decision of that High Court shall be final.
(3) In this section—
(a) “proceeding” includes any suit, case or appeal; and
(b) “corresponding court, tribunal, authority or officer” in the State of Gorkhaland means—
(i) the court, tribunal, authority or officer in which, or before whom, the proceeding would have laid if it had been instituted after the appointed day; or
(ii) in case of doubt, such court, tribunal, authority, or officer in the State of Gorkhaland, as may be determined after the appointed day by the Government of that State or the Central Government, as the case may be, or before the appointed day by the Government of the existing State of West Bengal to be the corresponding court, tribunal, authority or officer.
84. Right of advocates to practise in certain cases: Any person who, immediately before the appointed day, is enrolled as an advocate entitled to practise in any subordinate courts in the existing State of West Bengal shall, for a period of one year from that day, continue to be entitled to practise in those courts, notwithstanding that the whole or any part of the territories within the jurisdiction of those courts has been transferred to the State of Gorkhaland.
85. Effect of provisions of the Act inconsistent with other laws: The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law.
86. Power to remove difficulties:
(1) If any difficulty arises in giving effect to the provisions of this Act, the President may, by order, do anything not inconsistent with such provisions which appears to him to be necessary or expedient for the purpose of removing the difficulty:
Provided that no such order shall be made after the expiry of a period of three years from the appointed day.
(2) Every order made under this section shall be laid, before each House of Parliament.
87. Upon the appointed day the Gorkha Territorial Administration Act 2012 shall stand repealed and all the assets, liabilities, employees and infrastructure shall stand absorbed into the Government of Gorkhaland.
Via CHEWANG YONZON
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