Patna High Court - Orders
Siwan Zila Mukhiya Sangh vs The State Of Bihar on 10 April, 2023
Author: Satyavrat Verma
Bench: Satyavrat Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18566 of 2022
======================================================
Siwan Zila Mukhiya Sangh through its Chairman Ajay Bhasker Chauhan
(male), aged about 43 years, son of Subhash Chandra Chauhan, resident of
Village- Lakshmipur, P.O. Belaspur, P.S. Mairwa, District- Siwan.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Panchayati Raj Department, Government of Bihar,
Patna.
3. The Director, Panchayati Raj Department, Government of Bihar, Patna.
4. The District Magistrate, Siwan, District- Siwan.
5. The District Panchayat Raj Officer, Siwan, District- Siwan.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Awnish Kumar, Advocate
For the Respondent/s : Mr. Ajay, GA-5
Mr. Pratik Kumar Sinha, A.C. to G.A.-5
======================================================
CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
2 10-04-2023Heard learned counsel for the petitioner and learned A.C. to G.A-5, Mr. Pratik Kumar Sinha.
The learned counsel for the petitioner starts the case with the quotes of Mahatma Gandhi- "If we would see our dreams of Panchayat Raj i.e. true democracy realize, we would regard the humblest and lowest Indian as being equally the ruler of India with the tallest in the land."
The learned counsel for the petitioner next submits that the history of village Panchayat can be traced from the ancient times, village Panchayats were mentioned in Kautilya's Arthashastra. The name of the town was Pur and Patna High Court CWJC No.18566 of 2022(2) dt.10-04-2023 2/12 Nagrik was the chief. Local governments were not subject to royal meddling. It is next submitted that during British period, village Panchayats lost their independence, sheen and became weak. But the colonial uprising of 1857 had placed colonial finance under lot of pressure, thus it was decided to fund local services through local taxes, which led to Lord Mayo's resolution on decentralization of 1870, thereafter Lord Ripon gave this institution the much needed democratic set up in 1882. Thereafter, when Royal Commission on centralization in 1907 was chaired by C.E.H Hobhous, gave further boost to Local Self Government. It was in this background that Montagu Chelmsford Reforms of 1919 transferred municipal authorities to provinces.
The learned counsel for the petitioner next submits that by 1925, 8 Provincial Governments had enacted Panchayat Act by 1925 and 6 indigenous States had implemented Panchayat laws by 1926.
It is next submitted that Article 40 of the Constitution of India incorporates Panchayat and Article 246 of the Constitution of India authorizes the State Assembly to legislate on any topic relevant to Local Self Government, but the framers of the Constitution at the time of framing of the Patna High Court CWJC No.18566 of 2022(2) dt.10-04-2023 3/12 Constitution did not universally agree on the incorporation of Panchayat in the Constitution. It was only after much debate, as would be evident from the constitutional debate that rural Panchayat found place under Article 40 of the Constitution of India under the Directive Principles of State Policy.
The learned counsel submits that since Directive Principles of State Policy are not legally enforceable, as such the Panchayat was not having the powers/teeth to work as an institution of Local Self Government. It is submitted that the Parliament realizing the importance of Local Self Government, as part of true democracy, brought the 73rd constitutional amendment giving constitutional legitimacy to the Panchayati Raj institution and defined the power and functions by incorporating Panchayat within Part IX of the Constitution of India.
The learned counsel for the petitioner next submits that 73rd amendment, 1992 added Part IX to the Constitution of India titled the Panchayat covering provisions from 243 to 243 (O) and a new XI Schedule was added covering 29 subjects within the functions of Panchayat which also included rural electrification and related works.
The learned counsel next submits that the 73 rd Patna High Court CWJC No.18566 of 2022(2) dt.10-04-2023 4/12 amendment incorporates Article 40 of the Constitution of India, which implies that the State shall take steps to organize village Panchayat and endow them with such powers and authority as may be necessary to enable them to function as Units of self government and thus has upgraded them from a non justiciable to justiciable part of the Constitution, requiring States to enact Panchayati Raj Act in accordance with Part IX of the Constitution.
The learned counsel next submits that though the vision of the parliament to enact Part IX of the Constitution was to ensure Local Self Government, the bedrock of true democracy, but then 73rd amendment simply requires the establishment of local self governing body, leaving the discretion to delegate powers and responsibilities and money to State Legislature, this is where the Panchayati Raj institutions are failing, as devolution of power for the last 31 years i.e. since 1992 has been relatively low, as Panchayati Raj institutions were never transferred with responsibility and financial autonomy, though Bihar Panchayat Raj Act incorporates financial autonomy, in true sense, as State Executive Authorities have sprung up to fulfill the role of Panchayat Raj, as absence of fund for Panchayat Raj Patna High Court CWJC No.18566 of 2022(2) dt.10-04-2023 5/12 institution is the biggest flaw. It is next submitted that the State Government must expressly authorize the power of tax to Panchayati Raj institution, as 73rd amendment make this a decision for State Legislatures to make, which the State of Bihar has not done so far in the manner the Constitution envisages with respect to Panchayati Raj, despite the fact that Financial Commissions at all levels have called for more devolution of finance.
The learned counsel next submits that uncertainty in allocation of functions and funding has allowed States to consolidate power, preventing elected representatives who are much more aware and emphatic to ground level issues from taking control. It is thus submitted that fiscal autonomy combined with budgetary discipline can give a long term answer or else Panchayati Raj institution will be a costly abject failure. It is next submitted that in the interest of the institution and democracy, co-operative federalism and social inclusiveness should be incorporated by the Government by framing law.
The learned counsel after making these submissions now reverts to the pleadings made in the writ application and submits that the State Government in tune with 73 rd Patna High Court CWJC No.18566 of 2022(2) dt.10-04-2023 6/12 constitutional amendment enacted Bihar Panchayat Raj Act, 1992 by repealing Bihar Panchayat Raj Act, 1947. The Bihar Panchayat Raj Act, 1993 was repealed by Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the '2006 Act') which also defined Panchayat as an institution of Local Self Government as is evident from Section 2W of the 2006 Act. It is next submitted that Section 22 of the Act of 2006 Act defines the functions of the Gram Panchayat which is in pari materia to the provisions contained in the XI Schedule of the Constitution of India and under Section 25 of the Act of 2006, provisions were made for Constitution of statutory committee of the Gram Panchayat for effective discharge of its function. The Public Works Committee of the Gram Panchayat was authorized to perform the functions relating to all kinds of construction and maintenance including rural housing, services of water supplies, roads and other means of communication, rural electrification and related works.
It is next submitted that provisions contained under Section 25 of the 2006 Act, was amended by Amendment Act 17 of 2017. It is submitted that prior to amendment, the Standing Committee of the Panchayat under Section 25 of 2006 Act were given power to perform in the field entrusted to Patna High Court CWJC No.18566 of 2022(2) dt.10-04-2023 7/12 different committees, but after amendment in Section 25, different Standing Committees of the Gram Panchayat were conferred jurisdiction only for monitoring and supervising the function related to different subjects as provided under the XI Schedule of the Constitution of India read with Section 22 of the 2006 Act.
The learned counsel next submits that by Amendment Act 17 of 2017, Section 170(b) was inserted in 2006 Act under which the State Government has been conferred with the power to constitute a Ward Implementation and Management Committee (hereinafter referred to as the 'W.I.M.C.') by Ward Sabha for discharge of its functions and under Section 170B(2), the duties and functions of the W.I.M.C. was defined but its responsibilities were only confined to select appropriate locations on behalf of Ward Sabha for public sanitation unit and other public amenity scheme etc. It is submitted that in continuation of the aforesaid amendment in 2006 Act, the State Government in the department of Panchayati Raj has issued Memo No. 5465 dated 17.09.2021 (Annexure-1 to the writ application) whereby the WIMC has been entrusted with power for Patna High Court CWJC No.18566 of 2022(2) dt.10-04-2023 8/12 selecting places for installation of solar street lights and Gram Panchayats have been given the power for selection of 10 more locations for installation of solar lights other than the location selected by W.I.M.C., but power to select and constitute service provider for different districts have been vested in Bihar Renewal Energy Development Agency (hereinafter referred to as 'BREDA') with the support of Technical Assistant appointed by the Panchayati Raj Department.
It is next submitted that by Memo No. 7325 dated 29.07.2022 issued by the Panchayati Raj Department (Annexure-2 to the writ application) the Panchayats have been conferred with the power for grant of administrative sanction of the estimates prepared by the BREDA. Further, by Memo Dated 16.11.2022 (Annexure-3 to the writ application) a direction has been issued with regard to release of fund by Gram Panchayat for implementation of Mukhyamantri Rural Solar Light Scheme.
It is submitted that in view of Memo Dated 16.11.2022, a meeting was convened on 19.11.2022 (Annexure-4 to the writ application) under the Chairmanship of the District Magistrate, Siwan in which several schemes Patna High Court CWJC No.18566 of 2022(2) dt.10-04-2023 9/12 were taken but without any representation from the Gram Panchayat, further in the next meeting convened by District Panchayat Raj Officer on 26.11.2022, as is evident from the letter dated 22.11.2022 (Annexure-5 to the writ application) no representative from the Panchayat of Siwan were allowed to participate in the meeting convened with regard to Mukhyamantri Rural Solar Light. It is further submitted that slowly the power of the Local Self Government is being eschewed by the bureaucratic control being exercised over the Panchayati Raj institution, as would be evident from the letter dated 02.12.2022 (Annexure-6 to the writ application) issued by the Monitoring Officer of Panchayati Raj Department, whereby a sum of Rs. 1,90,13,16,078/- has been released district wise as per number of Gram Panchayat in the district for the implementation of the Mukhyamantri Rural Solar Light Scheme, however the District Panchayat Raj Officer has been made Drawing and Disbursing Officer of the allotted fund.
The learned counsel submits that the letter dated 02.12.2022 has been issued in breach of Section 26(5) and 26(6) of the Act of 2006, which mandates that for every Gram Panchayat, there shall be constituted a Gram Panchayat fund which will receive contribution and grants, if any, made by the Patna High Court CWJC No.18566 of 2022(2) dt.10-04-2023 10/12 Central or the State Government, Zila Parishad, Panchayat Samiti or any other local authority.
It is thus submitted that the grants so released should be credited in the account of the Gram Sabha in view of Section 26(5) of the Act but from the letter dated 02.12.2022, it is evident that the amount would not be credited in the account of Gram Panchayat rather D.P.R.O has been made Drawing and Disbursing Officer, as such the money will be withdrawn from the Treasury itself.
The learned counsel submits that that it is not the question of money that the Gram Panchayat intends to usurp but the issue is whether the autonomy as envisaged after 73 rd amendment to the Constitution giving constitutional legitimacy to the Local Self Government even after 31 years of its enactment has been achieved or not.
It is submitted that in the entire scheme the only power conferred upon Panchayat is to prepare a consolidated list of location in different Wards of Gram Panchayat and then to forward to the B.P.R.O who will bring it to the notice of D.P.R.O to make the list available to BREDA.
The learned counsel further submits that the State Government has not only interfered with the autonomy of Patna High Court CWJC No.18566 of 2022(2) dt.10-04-2023 11/12 Gram Panchayat rather has eschewed all the financial powers, when the object of 73rd Constitutional amendment was to constitute Gram Panchayat as an institution of Local Self Government and to enable them to function as vibrant institution with greater people participation in managing its own conduct and affairs, but the State Government instead of making the institution vibrant and independent is making the institution dependent by curtailing financial powers.
The learned State counsel submits that a counter affidavit has been filed.
The Court has gone through the counter affidavit but is not satisfied with the contents, as such, directs the Principal Secretary, Panchayati Raj Department to file a supplementary counter affidavit duly sworn by him keeping in mind the pleadings and the submissions made by the learned counsel for the petitioner recorded hereinabove.
The supplementary counter affidavit shall record with clarity that as to whether any endeavours at the level of the State Government are being made or not to make the Panchayati Raj institution independent in its working by giving financial autonomy or still check and balances are required.
Patna High Court CWJC No.18566 of 2022(2) dt.10-04-2023 12/12 Further, the supplementary counter affidavit shall also record that whether it is possible for any institution to develop vibrantly without any financial autonomy, as the present case gives an impression to the Court that all the financial control is with the State Authorities and the elected representative of the Panchayats are merely mute spectators.
Put up this case on 15.05.2023 within top five cases.
(Satyavrat Verma, J) Rishabh/-
U