Patna High Court
Manoj Kumar Singh vs The State Of Bihar & Anr on 23 May, 2017
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.860 of 2017
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Manoj Kumar Singh, aged about 52 years, son of Late Ramesh Chandra Singh, R/o
Village+Panchayat- Kurmuri, P.S- Sirahata, District- Bhojpur at Ara.
.... .... Petitioner
Versus
1. The State of Bihar through Chief Secretary, Government of Bihar, Patna.
2. The Secretary, Panchayat Raj Department, Government of Bihar.
.... .... Respondents
with
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Civil Writ Jurisdiction Case No. 6094 of 2017
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1. Guraru Mukhiya Sangh Through Chairman , Sri Gupteshwar Yadav,aged about
52 years Son of late Kamdeo Yadav Village- Karma, P.S. Konch, District Gaya,
Mukhiya, Rouna Gram Panchayat ,Block Guraru.
2. Konch Mukhiya Sangh through Chairman Sri Shiv Kumar Chauhan Aged about
41 years Son of Raj Keshwar Chauhan Goharpur tola Balwa par, p.s. Konch
Goharpur, District- Gaya.
.... .... Petitioners
Versus
1. The State of Bihar through Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Panchayat Raj Department, Government of Bihar, Patna.
.... .... Respondents
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Appearance :
(In CWJC No.860 of 2017)
For the Petitioner/s : Mr. Dinu Kumar, Adv.
Mr. Arvind Kumar Sharma, Adv.
Mr. Deepak Kumar, Adv.
For the Respondent/s : Mr. Binod Kumar, AC to GP10
(In CWJC No.6094 of 2017)
For the Petitioner/s : Mr. Dinu Kumar, Adv.
Mr. Arvind Kumar Sharma, Adv.
Mr. Deepak Kumar, Adv.
For the Respondent/s : Mr. Pratik Kumar Sinha, AC to GA5
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL JUDGMENT
Date: 23-05-2017
Heard Mr. Dinu Kumar, learned counsel for the petitioners in
the two writ petitions, who appears alongwith Mr. Deepak Kumar,
Advocate on record, Mr. Binod Kumar, AC to GP-10, for the State in
Patna High Court CWJC No.860 of 2017 dt.23-05-2017 2
C.W.J.C.No. 860/2017 and Mr. Pratik Kumar Sinha, AC to GA-5, for
the State in the second writ petition.
Since the writ petitions raise common issue of fact and law,
hence they have been heard together and with consent of the parties,
are being disposed of by this common judgment at the stage of
admission.
The petitioners while questioning the letter bearing Memo
No. 795 dated 26.9.2016 of the Secretary to the Government,
Panchayati Raj Department, addressed to the Accountant General,
Bihar, Patna, whereby a Scheme by the name of Mukhyamantri
Gramin Gali Nali Pakkikaran Nischay Yojna has been forwarded, also
seeks a direction restraining the respondents from utilizing any
amount year-marked for the Panchayats allotted under the 14th
Finance Commission and the 5th State Finance Commission, to carry
out the objectives of Mukhyamantri Gramin Gali Nali Pakkikaran
Nischay Yojna.
Mr. Dinu Kumar, learned counsel for the petitioners, cutting
short his argument, has relied upon a Division Bench judgment of this
Court arising from C.W.J.C.No. 19591/2016 (Saran Zila Mukhiya
Sangh) and analogous cases to submit that this issue came up for
consideration before the Division Bench and when this Court on
examination of 73rd amendment to the Constitution at Part- IX has
Patna High Court CWJC No.860 of 2017 dt.23-05-2017 3
held that the Government by issuing executive instructions cannot
curtail the powers of the local Panchayat as provided under the
Constitution as well as under the Bihar Panchayati Raj Act, 2006. Mr.
Dinu Kumar has referred to paragraph 2 of the judgment to
demonstrate that the matter in issue was identical and has proceeded
to refer to the opinion of the Bench present at paragraphs 12, 13, 14,
17, 18, 21, 22, 23 and 24, to submit that the present writ petitions can
be disposed of in the light of the liberty so granted by the Division
Bench to the petitioners of the said cases.
Mr. Binod Kumar, learned State Counsel, while trying to
distinguish the relief claimed in the present batch of writ petitions to
submit that the letter in question impugned herein was not the subject
matter of the writ petitions put for consideration before the Division
Bench, however, does not object to disposal of the writ petitions with
the liberty, on similar terms, as granted by the Division Bench. For the
sake of convenience I deem it proper to record the matter in contest
put for consideration before the Division Bench as well as the opinion
expressed by the Bench thereon and which is reproduced hereinbelow:
12. 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
Patna High Court CWJC No.860 of 2017 dt.23-05-2017 4
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
Workds 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 Vika 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
Patna High Court CWJC No.860 of 2017 dt.23-05-2017 5
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.
13. 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.
14. 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.
17. 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
Patna High Court CWJC No.860 of 2017 dt.23-05-2017 6
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
implementations 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 instructions, "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
Patna High Court CWJC No.860 of 2017 dt.23-05-2017 7
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.
18. 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
Patna High Court CWJC No.860 of 2017 dt.23-05-2017 8
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.
21. 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
Patna High Court CWJC No.860 of 2017 dt.23-05-2017 9
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.
22. 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
Patna High Court CWJC No.860 of 2017 dt.23-05-2017 10
detailed reply has been filed by the State Government
and form 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.
23. 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.
24. Accordingly, we allow these petitions in part. The
Schemes in question as contained in Annexure P/2 dated
23.9.2016and P/3 dated 25.10.2016, so far they direct Patna High Court CWJC No.860 of 2017 dt.23-05-2017 11 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." A cursory glance of the opinion would confirm that the Ward Level Committee constituted under the two Schemes have already been quashed by the Division Bench.
Having heard learned counsel for the parties and considering the limited relief prayed by the petitioners herein I deem it proper to dispose of the two writ petitions in terms of the liberty so granted by the Division Bench to the petitioners in Saran Zila Mukhiya Sangh (supra) and analogous cases.
Both these writ petitions are accordingly disposed of.
(Jyoti Saran, J) Surendra/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 19.06.2017 Transmission NA Date