Saran Zila Mukhiya Sangh vs The State of Bihar

On a reference made by the learned Single Bench after taking note of the legal questions involved in these writ petitions they

have been placed before us for consideration.

Petitioners in all these cases question the tenability of

instructions issued by the Panchayati Raj Department, Government of

Bihar on 23.09.2016 vide Annexure-P/2 and 25.10.2016 vide

Annexure-P/3, whereby certain instructions have been issued for

implementation of two schemes, namely, the Mukhya Mantri Gramin

Pay Jal Nischay Yojana and the Mukhya Mantri Gramin Gali-Nali

Pakkikaran Nischay Yojana. Inter alia contending that by issuing these

instructions, certain rights available to the Panchayats under the Bihar

Panchayat Raj Act, 2006 (hereinafter referred to as ''the Act of 2006'')

and the mandate of Article 243-G empowering the Panchayats to

function as institutions of Self-Government are being infringed with,

these writ petitions have been filed. Looking to the public importance

of the matter and the constitutional question involved, the learned

Single Bench recommended for placing the matter for consideration

before a division bench and, accordingly, matters are listed before us

as directed by the Chief Justice on the administrative side. During the

pendency of the writ petitions, by amending the writ petition bearing

CWJC No.19591 of 2016, vide I.A. No.748 of 2017, certain

instructions and directions issued by the State of Bihar in the

Panchayati Raj Department vide Annexure P/4 on 27.01.2017, in the

matter of distribution of funds received under the 14th Finance

Commission have also been challenged.

The facts, in brief, go to show that the petitioners in

these cases are either the elected representative of the Panchayat or the

citizens in the area, who have called in question the impugned action.

According to the petitioners, the impugned schemes

have been formulated by the State of Bihar and in the impugned

scheme for implementing the provisions of the scheme, a committee

has been constituted, namely the "Ward Vikas Samiti" under the

Mukhya Mantri Gramin Pay Jal Nischay Yojana and the Mukhya

Mantri Gramin Gali-Nali Pakkikaran Nischay Yojana which is not

permissible in law and, therefore, these writ petitions.

Learned Senior Counsel Shri Vinod Kanth, appearing

for the petitioners argued that by amending the Constitution, Part IX

was introduced by the Seventy-third Amendment with effect from

24.04.1993 and the Panchayats, as institutions of self-government were

introduced in the system of administration and under Article 243-G of

the Constitution, the Panchayats were endowed with such powers or

authority as may be necessary to enable them to functions as

institutions of Self-Government and in pursuance to the powers

available under Article 243-G, initially the Bihar Panchayat Raj Raj

Act, 1993 and subsequently the Bihar Panchayat Raj Act, 2006 were

brought into force. Under Section 2(w) of the Act of 2006, a

''Panchayat'' has been defined to mean an institution of Self-

Government constituted under Article 243-B of the Constitution of

India and a Standing Committee under Section 2(af) has been defined

to mean a Standing Committee constituted by the Zila Parishad or a

Panchayat Samiti or a Gram Panchayat under the Act of 2006.

It was argued that for carrying out the functions

entrusted to the Panchayat by virtue of the entries made under the

Eleventh Schedule to the Constitution, functions of Gram Panchayat

have been laid down under Section 22 of the Act of 2006 which are

nothing but the codification of various items under the Eleventh

Schedule and for implementing these provisions, Standing Committees

have been constituted in the Gram Panchayat under Section 25 of the

Act of 2006 and one of the committees constituted for implementing

the provisions of the Act of 2006 are the Public Works Committee as

contained under Section 25(vi).

It is the case of the petitioners as canvassed by the

learned Senior Counsel that by introducing an additional Committee by

an executive instruction under the impugned Schemes, Annexures-P/2

and 3, a "Ward Vikas Samiti" has been constituted to supervise and

implementation of the schemes, at the ward level in a Panchayat and as

this is contrary to the mandate of the Constitution and the rights

available to the Panchayat not only under the Constitution but also

under the Act of 2006, the Schemes so far as they direct for

constitution of the Ward Level Committees is liable to be quashed.

That apart, it is argued that the 14th Finance Commission having

entrusted the entire funds recommended by the Commission to be

utilized by the Panchayat and to be placed at the hands of the

Panchayat, action taken for handing over the funds to the Ward

Committee and the instructions issued by the State Government in the

matter of distribution and utilization of funds, runs contrary to the

mandate of the Act of 2006 and the Constitution and, therefore, they

are illegal.

Learned Senior Counsel appearing for the petitioners

took us through various documents to say and demonstrate that the

State Government in the garb of issuing instructions and circulars is in

fact interfering with the functions of the Panchayat which is

impermissible and, therefore, it warrants interference. In support of his

contentions, he placed reliance on a judgment of the Supreme Court in

the case of Ravi Yashwant Bhoir versus District Collector, Raigad

and others, [(2012) 4 SCC 407].

On the contrary, learned counsel appearing for the

State, namely, Sri Lalit Kishore, learned Principal Additional Advocate

General-I, and Sri Puskar Narain Shahi, learned Additional Advocate

General-VI, argued that Section 156 of the Act of 2006 mandates that

notwithstanding anything contained in the Act, the Government is

lawfully empowered to issue directions to any Panchayat in matters

relating to State and National policies and implementation of

Government programmes and Schemes and as the action of the State

Government is in conformity with the powers available under Section

156, there is no illegality in the same.

Sri Lalit Kishore argued that in accordance to the

delegation of power available, the State Government having acted

within its delegated power, no error has been committed and in support

thereof, he draws our attention to the judgment of the Supreme Court

in the case of Hinsa Virodhak Sangh Versus Mirzapur Moti

Kuresh Jamat and others [(2008) 5 SCC 33].

We have heard learned counsel for the parties at

length and we have perused the documents available on record.

The State of Bihar Promulgated two Schemes, namely

Mukhya Mantri Gramin Pay Jal Nischay Yojana and the Mukhya

Mantri Gramin Gali-Nali Pakkikaran Nischay Yojana as is contained

in Annexures- P/2 and 3. The first Scheme is to provide for house to

house drinking water facility and connection at the Panchayat level and

to implement the scheme of providing clean and pure drinking water

through pipe to each house in the village level, the scheme has been

formulated and details various provisions for implementing the

scheme. It is not necessary to refer to various provisions of the Scheme

which include functioning of the Scheme at the State Level, the

Divisional Level, the District level, the Gram Panchayat Level etc.

However, after laying down and prescribing instructions with regard to

functioning of the Schemes at the Gram Panchayat level vide Clause

4.4. of the Scheme through the Standing Committees formulated

under Section 25, particularly the Public Works Committee constituted

under Section 25(vi), from Clause 4.5., the Scheme in question

contemplates a provision for implementation of the Scheme at the

Ward Level and while doing so, a different Committee known as the

''Ward Vikas Samiti'' has been constituted. This Samiti consists of

seven members of the Ward who are to be elected by the Ward Sabha

for a period of two years. They have been entrusted with the

responsibility of implementing the Scheme at the Ward level. It is also

indicated that the Committees shall consist of a President and Vice-

President to be elected by the seven Ward Members. It is indicated that

the members shall be the resident of the Ward. Provisions of

reservation for Scheduled Caste, Scheduled Tribe and Women are

contemplated. There is a provision for appointment and selection of a

Ward Secretary whose qualification and other particulars are

prescribed and it is held that the Samiti constituted shall be by election

for a period of two years. Thereafter, the powers, duties and functions

of this Samiti are contemplated under Clause 4.5.2. of the Scheme in

question.

Similarly, in the second Scheme, namely Mukhya

Mantri Gramin Gali-Nali Pakkikaran Nischay Yojana, also after

contemplating various provisions for making of pavements, repairing

and maintenance of Nali and Gali in the village level, a Ward Level

Committee has been constituted. From clause 4.5 which is similar to

the Ward Vikas Committee constituted in the earlier Scheme.

The question, primarily, therefore, to be considered in

these writ petitions are as to whether the constitution of such a

Committee, namely, the "Ward Vikas Samiti", is in accordance to the

requirement of law. This is the moot question to be answered in all

these writ petitions. For doing so, we are required to take note of the

constitutional provisions and that of the Act of 2006.

By the Seventy-third Amendment to the Constitution,

Part-IX was introduced and provisions for establishment of Panchayats

were incorporated. Under Article 243(d ), a ''Panchayat'' has been

defined to mean an institution of Self-Government constituted under

Article 243-B in the rural area. Under Article 243-B, it is contemplated

that there shall be constituted in every State, Panchayats at the village,

intermediate and district levels in accordance to the provisions of Part-

IX of the Constitution. Thereafter, the powers, authority and

responsibilities of Panchayats are contemplated under Article 243-G

and this Article provides that every State shall make a law to endow

the Panchayats with such powers and authority as may be necessary to

enable the Panchayats to function as institutions of Self-Government

and by such law provision shall be made for devolution of powers and

responsibility upon Panchayats, at the appropriate level and the powers

given to the Panchayat are with regard to preparation of plan for social

economic development and for implementing the schemes of economic

development and social justice as contained in the Eleventh Schedule,

wherein 29 entries with regard to which activities have been detailed

which are to be carried out by the Panchayat.

In pursuance to the mandate to the Constitution, as

indicated hereinabove, initially in the State of Bihar, Bihar Panchayat

Raj Act, 1993 and subsequently, the Bihar Panchayat Raj Act, 2006

were enacted. Section 2(w) of this Act defines a ''Panchayat'' to mean

an institution of Self-Government constituted under Article 243-B of

the Constitution and under Section 2(af), ''Standing Committee'' has

been defined to mean a Committee constituted by the Zila Parishad or

a Panchayat Samiti or a Gram Panchayat under the Act of 2006. The

functions of Gram Panchayat are contemplated under Section 22 of the

Act of 2006 and under sub-section (viii) and (ix) of this Section, the

Panchayat is mandated to carry out works with regard to construction,

repairing and maintenance of drinking water, wells, tanks, ponds and

hand pumps, prevention and control of water pollution and for

maintenance of rural water supply schemes. They are also empowered

to make constructions of roads, buildings, culverts, bridges, ferries,

waterways and other means of communication, maintain them and

carry out various other functions. For the purpose of implementing the

functions of the Panchayat, as are contemplated under Section 22,

various Standing Committees are to be constituted by the Panchayat

under Section 25 and one such Committee is contemplated under

Section 25 (1) (vi) to be the Public Works Committee for carrying out

all kinds of constructions and maintenance, including rural housing,

sources of water supply, roads and other means of communication,

rural electrification and related works.

If we analyze the schemes of the Act of 2006 in the

backdrop of constitutional mandate and the various entries made in

Eleventh Schedule, we find that in the State of Bihar, the Panchayats

have been constituted at the district, intermediate and the village levels,

the functions of the Panchayat are contained in Section 22 and under

Section 25 (1) (vi), the Standing Committee known as the ''Public

Works Committee'' has been entrusted with the responsibility of

maintenance of water supply, roads and other means of

communication, rural electrification and relates works etc. That being

so, it is crystal clear that under the Act of 2006, i.e. by virtue of a

legislation, statutory committees and bodies have been created for

carrying out the work of the Panchayat. Under Section 156 of the Act

of 2006, the State Government is empowered to issue directions to

lawfully carrying out the works relating to national policies,

Government Schemes etc. and in this regard issue instructions to the

Panchayat. The Policies contained in Annexures P/2 and 3 are,

therefore, nothing, but instructions issued by virtue of the powers

available to the State Government under Section 156 of the Act of

2006. However, while doing so, apart from issuing the various

instructions, the State Government has created a Special Committee

known as "Ward Vikas Samiti" for carrying out the work pertaining to

implementation of the two schemes contained in Annexures P-2 and 3.

If we go through the Schemes, particularly, those provisions pertaining

to implementation of the Schemes in the Ward Level, we find that by

this executive instruction, "Ward Vikas Samiti" has been created

consisting of members of the Ward to be elected by the Ward Sabha

for a period of two years, the constitution of the Committee is

contemplated, the manner of the constitution is laid down, with

functions and power of the Samiti, even a provision for appointment of

a Secretary to the Samiti is laid down. This admittedly has been done

on the basis of executive instructions issued under Section 156 of the

Act of 2006. However, for implementing the purpose of the Scheme,

namely water supply, maintenance of road, culvert etc., already a

statutory committee has been created under the Act of 2006, namely

the Standing Committee as contemplated under Section 25 and the

Public Works Committee is already functioning in the area for the

same purpose for which the Ward Samiti is constituted. That being so,

it is a case where for carrying out the functions of the Act of 2006, in

the Panchayat by an executive instructions allegedly on the basis of

delegation of power, committees have been created which are not

contemplated under the Act of 2006. Without amending the Act of

2006, creating a Committee by an executive order, in our considered

view, is impermissible. This would amount to tampering with the

provisions of the Act of 2006 and establishing and creating Samiti to

carry out the constitutional and statutory mandate of the Act of 2006

without sanction of law. Once the Statutory Committee under the Act

of 2006 was already in existence for implementing the Scheme, the

State Government could not by an executive instruction create another

Committee which is neither contemplated nor provided for under the

Statute.

After analyzing the provisions of the Constitution as

detailed hereinabove and the Act of 2006, we have no hesitation in

holding that the Constitution prescribes a Scheme for conferring with

the power of Local Self-Government after giving complete autonomy

to the Panchayat and once the Statutory body, like the Panchayat, is

created with specific provisions for creation of Committees and with

specific statutory powers available, then contrary to the statutory

provision, in exercise of executive power, the State Government

cannot do something which runs contrary to the Scheme of the Act of

2006.

In the case of Ravi Yashwant Bhoir (supra), in para-

22, the Hon''ble Supreme Court lays down the following principles:

"22. Amendment in the Constitution by adding Parts IX and IX-A confers upon the local self-government a complete autonomy on the basic democratic unit unshackled from official control. Thus, exercise of any power having effect of destroying the Constitutional institution besides being outrageous is dangerous to the democratic set-up of this country. Therefore, an elected official cannot be permitted to be removed unceremoniously without following the procedure prescribed by law, in violation of the provisions of Article 21 of the Constitution, by the State by adopting a casual approach and resorting to manipulations to achieve ulterior purpose. The Court being the custodian of law cannot tolerate any attempt to thwart the institution." (Emphasis supplied)

If we analyze the act of the State in the backdrop of

the aforesaid principle, it would be clear that the power exercised by

the State in the present cases for implementing the schemes by creating

a body, i.e. the "Ward Vikas Samiti", results in destroying the institute

created under the Panchayat Raj Act, infringes the procedure

prescribed under law for establishment of the Panchayat Raj system

and the same is, therefore, impermissible in law.

The contention of Sri Lalit Kishore to say that the

State has acted in exercise of the power of delegated legislation and the

powers available under Section 156 of the Act of 2006 cannot be

accepted. Even though while judging the validity of a delegated

legislation and an executive action taken, this Court is required to

exercise judicial restraint and a presumption has to be drawn in favour

of the constitutionality or validity of an Act, but if it is found that the

Act is in clear violation to any constitutional or legislative provision or

a parent statute, like the Act of 2006, then the Act can be declared as

un-constitutional or illegal. That is the principles of law which is

recognized by various judgments and if we analyze the act of the State

Government in creating the "Ward Vikas Samiti" for implementing the

Scheme in question, we are of the considered view that it is

impermissible. The act of creating a Committee or an authority which

is not contemplated or provided for under the Act of 2006 amounts to

destroying the constitutional mandate of empowering the Panchayat as

an institution of Self-Government. When the Panchayat as an

institution of Self-Government is functioning in accordance to the Act

of 2006 and when various committees under the Panchayat are

functioning for implementing the Scheme, the Government in the garb

of issuing instructions or an executive action cannot create a body or

an authority which is not provided for either in the Constitution or in

the Act of 2006, and therefore, entrusting the work of implementing

the Scheme at the Ward Level through a "Ward Vikas Samiti", in our

considered view, amounts to violating the basic scheme of the Act of

2006 and the same is not permissible. To that extent, the writ petitions

have to be allowed and the provisions contained in Annexures P-2 and

3 for creating the "Ward Vikas Samiti" and entrusting the power to the

"Ward Vikas Samiti" is clearly impermissible and to that extent, both

the instructions contained in Annexures P-2 and 3 are quashed.

However, the other instructions contained in these documents being

not under challenge and prima facie being in accordance to the powers

available to the State Government under Section 156 of the Act of

2006 need not be interfered with at this stage in these petitions.

Having held so, we are now required to consider the

amendment made and prayer made therein. The prayer made is that the

funds made available by the 14th Finance Commission for

implementation of various schemes are being mis-utilized and the

Circulars and orders passed by the Government of India and the

Finance Commission are being violated. However, a detailed reply has

been filed by the State Government and from para 5 onwards of the

reply it is indicated by filing various documents, including the

communication made by various Ministries and authorities of the

Government of India that there is no violation.

To examine the question as to whether the funds

granted by the 14th Finance Commission are being misused and the

Schemes are being implemented in violation to the recommendation

made by the Finance Commission, it is absolutely necessary that the

Government of India in the Ministry of Finance and various other

authorities in the Government, who are responsible for implementing

the recommendations of the 14th Finance Commission, are made

parties, they noticed and it is only after hearing them, can a decision in

this regard be taken. Except for filing an application for amendment

without impleading the respective departments or authorities and the

officers of the Government of India, we are not inclined to go into the

prayer made by amending the writ petitions. The said issue is left open

and the petitioners are granted liberty to take up the issues with the

competent authorities of the Government of India or to file a properly

constituted petition after impleading all necessary and requisite parties.

The prayer made to that extent cannot be considered in these petitions.

Accordingly, we allow these petitions in part. The

Schemes in question as contained in Annexure- P/2 dated 23.09.2016

and P/3 dated 25.10.2016, so far they direct for creation of "Ward

Vikas Samiti" and entrusts the work to the "Ward Vikas Samiti" for

carrying out the purpose of the Scheme are quashed. The State

Government is granted liberty to either get the Schemes implemented

through the Committees already functioning under the Act of 2006 or

to take such steps as are permissible in law for implementing the

Scheme.

With the aforesaid, all the four writ petitions are

allowed and disposed of.