Bombay High Court
Sau. Banotai Wife Of Usman vs The Divisional Commissioner on 10 May, 2013
Author: A.B. Chaudhari
Bench: B.P. Dharmadhikari, A.B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.5154 of 2012
Sau. Banotai wife of Usman
Garwe,
aged about 38 years,
Member, Zilla Parishad,
Washim, resident of
Karanja (Lad),
Distt. Washim. .... Petitioner.
Versus
1. The Divisional Commissioner
[Revenue],
Amravati Division,
Amravati.
2. Zilla Parishad, Washim,
through its Chief Executive
Officer.
3. The Chief Executive
Officer,
Zilla Parishad, Washim.
4. The Block Development
Officer, Panchayat Samiti,
Karanja (Lad),
Distt. Washim.
5. Shri Prakash Uttamraoji
Dahake, aged major,
Member of Legislative
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Assembly, resident of
APMC Quarters,
Karanja (Lad),
Distt. Washim.
6. The Executive Engineer,
Minor Irrigation
Division No.2, Karanja
(Lad),
Distt. Washim. .... Respondents.
*****
Mr. F.T. Mirza, Adv., for the petitioner.
Mrs. B.H. Dangre, Addl. Govt. Pleader for respondent
nos. 1 and 6.
Mr. P.C. Madkholkar, Adv., for respondent no.5.
Mr. A.P. Tathod, Adv., for respondent nos. 2 to 4.
*****
CORAM : B.P. DHARMADHIKARI AND
A.B. CHAUDHARI,JJ.
Reserved on : 17st April, 2013.
Pronounced on : 10th May, 2013.
JUDGMENT [Per A.B. Chaudhari, J.]:
01. Rule. Rule heard forthwith.
02. This Writ Petition under Article 226 of the
Constitution of India at the instance of a woman Member of
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Zilla Parishad, Washim, depicts the blatant violation of
the constitutional provisions despite insertion of Seventy-
Third Amendment to the Constitution conferring necessary
status, namely constitutional status, on the Panchayat Raj
Institutions in the extant political system, though more
than two decades have passed. Eventually, this Court and
rather this Bench had an occasion to deal with a similar
concurring
situation and a decision was rendered by both of us with
judgments written separately in the case of
Charan Sovinda Waghmare Vs. State of Mah. & others
[2012 (4) Bom. C.R. 40]. We find no material difference
in the facts of the present case, so also the violations of
constitutional provisions as to Panchayati Raj on the part
of the respondents.
03. It is the case of the petitioner that for
beautification and development of garden near Rest House at
Adan Project, Karanja, a provision of Rs.50,00,000/- was
made for 2009-10, and administrative sanction for various
sub-works in total was granted to the extent of Rs. 34.97
lakhs under the Account Head 3452276-Basic amenities for
development of Tourist Places. It is not in dispute that
the said allotment of funds was made over to the Zilla
Parishad, Washim, and further to Panchayat Samitee,
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Karanja, in turn and as such the same was required to be
spent by the Panchayat Samitee, Karanja, for getting the
works done. The Chief Executive Officer, Zilla Parishad,
Washim, issued an order on 25th January, 2011 granting
administrative sanction in exercise of power under Rule 4
Schedule-II of the Maharashtra Zilla Parishads & Panchayat
Samitees Audit Code, 1968, marking copies to Block
Development
Officer, Panchayat Samitee,
Executive Engineer [Construction], Zilla Parishad, Washim.
Karanja, and
The work for strengthening of approach road to Adan Project
and tarring thereof was also to be undertaken and
accordingly orders were issued on 29th March, 2012 and 21st
August, 2012 and obviously thereafter the work was to be
completed under the supervision of the concerned Karanja
Panchayat Samitee. According to the petitioner, the
respondent no.5 M.L.A., wrote a letter dated 14th May,
2012 to the Chief Executive Officer, Zilla Parishad,
Washim, requesting him to transfer the entire allotted
amount to the Executive Engineer, Minor Irrigation Division
No.2, Karanja [Lad], for carrying out the works in
question, and acting on the instructions from the concerned
MLA, the Chief Executive Officer issued an order on 30th
May, 2012, directing the Block Development Officer,
Panchayat Samitee, Karanja, to transfer the entire funds to
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State Department of Minor Irrigation, as ordered by
respondent no.5 MLA. The petitioner states that she made
a representation to the Divisional Commissioner, Amravati
Division, on 4th October, 2012, but he did not grant any
stay and preferred to keep quiet.
Arguments :
04.
Referring to the affidavits filed by the
respondent nos. 2 to 4 and respondent no.6, the learned
counsel for the petitioner argued that all the respondents
have chosen to condemn the petitioner in unison, in order
to please their political master, in this case, the
respondent no.5-MLA. According to the learned counsel for
the petitioner, an attempt on the part of respondents to do
so shows the manner in which the political and bureaucratic
establishments are functioning in violation of the Seventy-
Third Amendment to the Constitution. The counsel then
argued that even the Divisional Commissioner did not bother
to protect the constitutional rights involved in the
subject-matter of the present petition, namely Panchayati
Raj institutions, when he being the Divisional Head, ought
to have interdicted. The counsel, therefore, prayed for
setting aside the action of the Zilla Parishad impugned.
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05. Per contra, learned Asstt. Govt. Pleader for
respondent nos.1 and 6 supported the impugned action, on
the ground that the Karanja Panchayat Samitee does not have
any infrastructure to execute the work and that is why no
fault can be found out if the respondent no.6 is asked to
do the work in question, which has the necessary
infrastructure available with it. The respondent no.4
Block Development Officer of Panchayat Samitee and Zilla
-
Parishad, Washim,have filed their Affidavit-in-Reply and
they are also singing in the same tune.
06. Learned Adv. Mr. P.C. Madkholkar for respondent
no.5 MLA clarified that his client did not issue any
order to the Chief Executive Officer, Zilla Parishad, and
it is the mistake of the Chief Executive Officer, Zilla
Parishad, Washim, to treat his client s request as an
order. He further argued that the petition is politically
motivated and exemplary cost should be saddled on the
petitioner. According to him, it was the respondent no.5,
who is a Member of DPDC, was instrumental in bringing the
funds for developmental works, though for Karanja Panchayat
Samitee of Zilla Parishad, but the petitioner did nothing
to get the same. He, therefore, prayed for dismissal of the
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Writ Petition.
07. We have perused the entire record of the Writ
Petition. We have heard the learned counsel for the rival
parties.
08. It is not in dispute and, therefore, we do not
propose to dilate on the fact that the allotted amount in
this case admittedly belongs to Zilla Parishad/Panchayat
Samitee, and it does not belong to any of the Departments
of the State Govt., much less the respondent no.6, and
further that the authority to spend the said amount and to
supervise the work to be undertaken exclusively vested in
respondent nos. 3 and 4 only and none else. That being so,
the question then arises as to how all the respondents and
more particularly the respondent no.3 Chief Executive
Officer of Zilla Parishad, who is the highest ranking
bureaucrat in Zilla Parishad administration, has understood
the spirit of the Seventy-third Panchayat Raj Amendment
existing since two decades. We have perused the letter that
was issued on 14th May, 2012 by respondent no.5 - MLA to the
Chief Executive Officer, Zilla Parishad, Washim. It is
stated in the said letter that since it is convenient to
get the works in question done from respondent no.6, the
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respondent no.3 should transfer the entire amount received
by it, for carrying out the works. The Respondent No.3-
Chief Executive Officer in obedience to the instructions
given to him by Respondent No.5-MLA acted promptly and
issued the following order to the Block Development
Officer, Panchayat Samitee, Karanja, which we quote
verbatim:-
ig Outward No.ZP/GAD/PS/
Tourism/1514/12,
Office of the Zilla
Parishad, Washim,
Dated 30-3-12.
Block Development Officer,
Panchayat Samitee,
Karanja.
Sub : Regarding diversion of funds allotted for
developing Adan Project as a Tourist Place.
Ref : Letter No. 695/Tasha/PR/2012 dated 17th March,
2012 of Minor Irrigation Division No.2,
Karanja.
With reference to above subject, it is to
inform you that Hon ble MLA Prakashji Uttamraoji
Dahake of Karanja Assembly Constituency has ordered
transfer of the entire work of development of tourism
spot at Adan Project Dam and the Rest House to Minor
Irrigation Division No.2, Karanja [Lad], Distt. Wahim.
Accordingly, you are directed to transfer the
amount of Rs. 35.00 lakhs which was given to you for
the development of Adan Project as a tourist place to
the Executive Engineer, Minor Irrigation Division No.
2, Karanja [Lad], immediately, and to inform the
action taken to this Office.
Sd/-
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Chief Executive Officer,
Zilla Parishad, Washim.
Copy to :
The Executive Engineer, Minor Irrigation Division No.
2, Karanja [Lad], for information and further action.
09. The Chief Executive Officer had absolutely no
business to order transfer of Panchayat s funds to State
Department Respondent No.6 by acting as per the desire of
Respondent No.5-MLA.
Executive
Officer
A great faith is reposed in the Chief
to protect the interest of Zilla
Parishad/Panchayat Samiti. But, On perusal of the above
letter, the mindset of the highest ranking bureaucrat in
Zilla Parishad, Washim, is clearly amplified, in that the
said Chief Executive Officer wanted to meekly fulfill the
desire/wish/request of Respondent No.5-MLA, rather than
the constitutional obligation which he is required to
discharge. For him, the request made by Respondent No.5
means order. We have no manner of doubt that the Chief
Executive Officer and the concerned MLA [respondent no.5]
are deemed to have full knowledge of the constitutional
provisions and a great responsibility rests on them not to
defy the constitutional provisions.
10. There is another aspect and which must be said to
be unfortunate. In reply to the petition, an Affidavit has
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been filed by respondent no.6 acting as a representative of
State. No Affidavit-in-Reply has been filed by the
respondent no.1 despite service. The petitioner approached
the Divisional Commissioner respondent no.1 with the
representation dated 4th December, 2012, and also prayed for
stay of the order of Chief Executive Officer, Zilla
Parishad, Washim. But from 4th December, 2012, till this
date, the Divisional Commissioner has also chosen to keep
quiet and no reasons are forthcoming in this petition as to
why the Divisional Commissioner respondent no.1 has not
taken any cognizance of the serious violations of the
constitutional provisions, or is it because the respondent
no.1 also wants to toe in line with Chief Executive
Officer, Zilla Parishad in order to please the respondent
no.5 - MLA. Perusal of the Affidavits of respondent
nos. 2 to 4, i.e., Officers of Zilla Parishad, and
respondent no.6 show that they have in their respective
affidavits condemned the petitioner, as much as they can,
for filing this Writ Petition and not only they have gone
on record to praise individually the respondent no.5 MLA
by saying that it was due to respondent no.5 s persuasion
alone that there was allotment of funds from DPDC for the
works in question. We are again shocked to see that even
Chief Executive Officer and Block Development Officer have
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indulged in a similar flattery to please the Respondent No.
5. Added to all this, respondent no.5 has filed his
Preliminary Submissions condemning the petitioner, stating
that the petition is politically motivated and that the
petition should be dismissed with exemplary cost payable
for beautification of Adan Project and that the respondent
no.5 is fully innocent. Thus, there is a competition, nay
the respondents take pride as well, to support the action
of violation of constitutional mandate in relation to the
Seventy-third Amendment in respect of Panchayati Raj
Institutions. The respondents have gone on record to say
that the petitioner is not a member of DPDC, whilst the
respondent no.5 is. This is to show that the petitioner is
a petty politician. Fact remains that she is an elected
Member of the Zilla Parishad, and the respondents ought to
give her appropriate respect, particularly after Panchayati
Raj amendment. The affidavits filed by the officers show
that as if they have been under trepidation.
11. It is sad to note that bureaucracy, despite the
Judgment in Charan Waghmare s case, does not want to mend.
While making a note of the facts in case of Charan Waghmare
[cited supra], one of us [B.P. Dharmadhikari, J.] stated
thus:-
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38. ....................................
..........However, we note that the
respondent No.2 has entered the area not
available to him and the responsible officers
like respondent No.3 Divisional Commissioner
or respondent No.4 Collector or then
respondent No.5 Chief Executive Officer of
Zilla Parishad have conveniently avoided to
honour their duty to democracy. Adoption of
inconsistent stand by the respondent Nos. 5
and 6 before this Court also speaks volumes
in this respect. Other respondents ought not
to have submitted to pressure of respondent
No.2. Law does not give respondent No.2 any
such authority over respondent Nos. 3 to 6.
In Paragraphs 49 and 50 of the said Judgment, this
Court also made the observations thus:-
49. ....................................
..........
The mindset that the role of a
Government is to rule over its
subjects, has persisted even after
half a century of freedom. This
mindset has survived despite
democracy and decentralization and
has subverted the very system that
was created to destroy it.
The report suggested what should be
done to remove such a behaviour like a King
and the Subjects thus:
we intend to make an effective
endeavour to get rid of this ruler
subject relationship syndrome
between the Government and the
citizens. The change has to be
wrecked at the fundamental
conceptual level.
50. In an article published by National
Institute of Rural Development, namely
Devolution of Functions and Powers in India
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Panchayati Raj Report, 2001, the learned
author Shri K.R. Venugopal has mentioned some
of the points which are worthy of note :
1. In some states, the PRIs have been
looked upon as agencies of the
Government, especially at lower
levels, diluting their conception
as units of self-Government.
2. ......
3. The stronghold of bureaucracy over
these bodies continues.
4. Higher level political authorities
are not willing to give up control
over the allocated finances and
the implementation of development
schemes.
5. .....
6. .....
7. .....
8. .....
12. Mr. B.S. Raghavan, a revered bureaucrat, in his
article in Business Line has suggested the following
advisory for the bureaucrats which is apt in the
situation :-
First, they should regain self-pride, sense
of honour and dedication to the public
service. They have had the best education,
come from highly respectable background, and
are second to none in ability and talents.
They should stop demeaning themselves by
becoming virtual accomplices and abetters of
those who look upon their portfolios as
avenues for outright plunder of public funds
and abuse of power. They are public servants
and not servants of individual Ministers.
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They should remember that evil flourishes not
because of evil doers, but because good
people remain silent.
We hope and trust that the State of Maharashtra at
least now would take a call and do all that is required for
real implementation of the Panchayati Raj Amendment and
formulate a suitable protocol.
13.
Again turning to the Affidavits-in-Reply filed by
respondent nos. 2 to 4 and respondent no.6, it is stated
that the respondent no.4 Panchayat Samitee is unable to
do the work in question, because there is no sufficient
technical staff to execute the work so as to complete the
same within time. This aspect about non-availability of
infrastructure with the Panchayat Samitee has also been
highlighted by the respondent no.5 in his submissions.
However, we find from para 8 of the Affidavit filed by the
respondent no.6 that the alleged non-availability of
infrastructure with Panchyat Samitee and availability of
the same with respondent no.6 appears to be a ruse. It
clearly appears from reading of para 8 that all the works
have been split into three agreements and tender was
floated for executing the works and after acceptance of
tender, the agency, namely Vishwakarma Majoor Kamgar
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Sahakari Sanstha Ltd., Karanja )Lad) and Bairinath Majoor
Kamgar Sahakari Sanstha Ltd., Karanja (Lad) have been given
the works and those are being done. These Societies have
also been paid Rs. 1,17, 209/-, Rs.2,29,639-00 and Rs.
1,58,484/-. We are unable to understand what
infrastructure, availability of technical staff is being
talked about when the entire work is being done through the
contractor-Societies. In so far as
concerned, admittedly, Zilla Parishad and Panchayat Samitee
the supervision is
have qualified engineers in their various departments and
not only that, as admitted in the reply by respondent nos.
2 to 4, the respondent no.2 has one Sectional Engineer and
one Junior Engineer. However, the fact remains that Zilla
Parishad, Washim, has Engineering Departments, namely
Executive Engineer, Works Department and Executive
Engineer, Minor Irrigation Department, whose services could
easily be utilized. We, therefore, do not find any
substance in the said stand taken by the respondents.
14. The next question is whether the work should be
stopped and should be allowed to be completed in the light
of the fact that a total amount of about Rs.5,00,000/- out
of Rs.34,97,000/- has already been paid. According to us,
the balance of convenience in the present fact situation is
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in favour of allowing completion of work given to the
agencies/Societies, to whom the works were allotted, but
under the control and supervision of Panchayat Samitee,
Karanja/Zilla Parishad and not Respondent No.6.
15. To sum up, we find that the respondent nos. 3 and
4 have failed to perform their duty and are, therefore,
liable to be saddled with costs.
16. In the result, we make the following order:-
O R D E R
[a] Writ Petition No. 5154 of 2012 is partly allowed.
[b] The impugned orders dated 26th September, 2012 and 30th March, 2012 are quashed and set aside. The balance funds shall be re-transferred by Respondent No.6 to the account of Respondent No.4 forthwith. The works, in question, shall be completed by the same contractors expeditiously, but under the supervision and control of the Panchayat Samitee, Karanja/Zilla Parishad, Washim.
[c] The Chief Executive Officer, Zilla Parishad, ::: Downloaded on - 09/06/2013 13:28:36 ::: wp5154.12 17 Washim, and Block Development Officer, Panchayat Samitee, Karanja, shall personally pay cost of Rs. 5,000-00 [rupees five thousand only], and cost of Rs.3,000-00 [rupees three thousand only] respectively to the petitioner within a period of four weeks from today and report compliance.
[d] Copy of this Judgment be sent to the Chief Secretary, Govt. of Maharashtra, Mantralaya, Mumbai, for information and necessary action.
JUDGE JUDGE
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