Orissa High Court
Suresh Chandra Sahu vs State Of Odisha & Others ... Opposite ... on 13 February, 2019
Equivalent citations: AIRONLINE 2019 ORI 115
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT, CUTTACK
W.P.(C) No.25656 of 2017
with
W.P.(C) No.867 of 2018
Applications under Article 226 of the Constitution of India.
----------
In W.P.(C) No.25656 of 2017 Suresh Chandra Sahu ... Petitioner Versus State of Odisha & others ... Opposite parties For petitioner : M/s.Pitambar Acharya (Sr. Adv.), S. Rath, A. Satapathy, D.Panigrahi, G. Patra, N.Jena, S.P. Behera For opposite parties : Mr. Surya Prasad Mishra, Advocate General Sri L.Samanataray, Standing Counsel For the intervener : M/s.A.P. Bose, N. Hota, Mrs. V. Kar, D.J. Sahoo and S.S. Dash In W.P.(C) No.867 of 2018 Ashok Mohapatra & another ... Petitioners Versus The State of Orissa & others ... Opposite Parties For petitioner : M/s. G. Mishra, A.Dash, A.Khandai, J.R.Deo & D.K.Patra For opposite parties : Mr. Surya Prasad Mishra, Advocate General Sri L.Samanataray, Standing Counsel 2 For the interveners : M/s. B.K. Dash, S.R. Dash, R.B. Dash & S. Jena M/s.G.N.Mishra, D.N.Pattnaik, J.K.Pradhan & A.K.Mishra
----------
PRESENT :
THE HONOURABLE MR. JUSTICE BISWANATH RATH
--------------------------------------------------------------------------------------------------- Date of Hearing : 30.01.2019 Date of Judgment : 13.02.2019
---------------------------------------------------------------------------------------------------
Biswanath Rath, J. For the common dispute involved in both these writ petitions and for the common prayer made therein, a common argument has been advanced by the counsel for both the sides. Considering the commonness in the above proceedings particularly challenging to the common guideline issued by the Government of Odisha in the Housing and Urban Development Department dated 10.10.2017 find place at Annexure-1 in W.P.(C) No.25656 of 2017 and also as Annexure-1 to W.P.(C) No.867 of 2018, this Court feels it appropriate to decide both these matters by this common judgment and thus proceed to decide the matter accordingly.
2. Taking lead of all the petitioners involving both the above writ petitions, Shri Pitambar Acharya, learned Senior Advocate appearing on behalf of the petitioner in W.P.(C) No.25656 of 2017 3 submitted that the petitioner though continuing as the elected Vice-Chairman of the Anandapur Municipality in the District of Keonjhar but in his personal capacity challenges the validity of the guideline dated 10.10.2017 appearing at Annexure-1. Taking this Court to the Part.IX-A of the Constitution of India inserted by way of 74th Amendment Act, 1992, Shri Acharya, learned Senior Advocate contended that this part of the Constitution deals with the Constitution, Composition and Election of the Municipalities as well as powers of the authority and responsibility vested upon them amongst others. Taking this Court to the statement of objects and reasons behind such introduction, Shri Acharya, learned Senior Advocate further contended that the object and reason in bringing such local bodies is giving exclusive powers to the local bodies on the basis of a finding that in many States the local bodies have become weak and ineffective resulting failure in discharging their duties. To make the local bodies vibrant, Democratic Self-Government in 74th Amendment of the Constitution the provision at Articles 243(Q), 243(R), 243(U), 243(ZA) and 243(W) have been introduced. Taking this Court to the above provisions, Shri Acharya, learned Senior Advocate submitted that for the provisions contained in Articles 243(Q), 243(R), 243(U), 243(ZA) and 243(W) there is in fact creation of independent local self-bodies and preventing any extraordinary 4 use of power by any other agency in the local self bodies. Shri Acharya, thus contended that in the process, under Article 243(W) the local self bodies have been given full power not only in respect of preparation of plans for economic development and social justices but also strengthening its performance of functions and the implementations of schemes as may be entrusted to them in relation to the matters listed in the 12th Schedule. Taking this Court to the provisions at 12th Schedule under Article 243(W), Shri Acharya, learned Senior Advocate further contended that for the Constitutional provision enshrined therein, the Urban bodies i.e. the local self bodies have been given full power including the urban planning, town planning, planning for economic and social development Water supply for domestic, industrial and commercial purposes, Public health, sanitation conservancy and solid waste management. Fire service, urban forestry, protection of environment and promotion of ecological aspects, safeguarding the interests of weaker sections of the society, including the handicapped and mentally retarded, slum improvement and upgradation, provision of urban amenities and facilities such as parks, gardens, playgrounds, promotion of cultural, educational and aesthetic aspects, public amenities including street lighting, parking lots, bus stops and public conveniences.
5
3. In the above background of the powers involving the local bodies, taking this Court to the provision at Chapter XVI of the Municipal Act, Shri Acharya, learned Senior Advocate further submitted that the responsibilities so far as the street lighting, water supply and roads remain within the exclusive domain of the local self bodies. It is, at this stage of the matter, taking this Court to the guideline involving Annexure-1 particularly taking this Court to the provision contained therein more particularly to the provision at Clause-1, 3, 4 & 5, Shri Acharya, the learned Senior Advocate submitted that by this clause, the State has made a clear attempt to override the power of the local self bodies. Further, taking this Court to the provision at clause 2 therein, Shri Acharya, learned Senior Advocate submitted that the constitutional powers vested with the local self bodies particularly in the matter of street lighting, water supply, roads and other social infrastructure, water supply, vending zone, parks and community centre, kalyan mandap, town halls, cremation, burial grounds and electric crematoriums have been attempted to be infringed. It is further contended that by such action of the State Government in the garb of implementation of the scheme, there has been a clear attempt to take away the authority and control of the local self bodies particularly in 6 respect of matters, which have already been vested with the local self bodies by virtue of the 74th Amendment to the Constitution. For the specific provision made therein in the matter of selection of the executing agency and entrusting such responsibilities with District Urban Development Authority, hereinafter in short called as 'DUDA' in the garb of scheme called as 'UNNATI', Shri Acharya, alleged that there is a clear attempt of the State Government to usurp the powers of the local self bodies under the Municipal Act followed with the Constitutional mandate involving 74th Amendment of the Constitution. Keeping in view the constitutional provision at Article 243(Q), 243(R), 243(U), 243(ZA) and 243(W) thereby not only taking away the most of the responsibility of the local self bodies but at the same time, this attempt will also be making the local bodies paralyzed and non-functional. Taking this Court to the decisions as reported in (1) AIR 1992 All. 62 (2) 2012 (10) SCC 1 (3) 2006 (8) SCC 352 (4) 1974 (4) SCC 3 (5) 1996 (3) SCC 709 (6) AIR 2001 (Ori.) 190, Shri Acharya, learned Senior Advocate submitted that for the attempt of the Government in divesting the Municipalities or the Notified Area Councils i.e. the local self bodies from there, constitutional powers / functions provided both under the Constitution of India as well as the Municipal Act or the Municipal Corporation Act, the existence of the Urban Local Self 7 Bodies are under serious threat. Shri Acharya hence submitted that the State Government cannot be permitted to take away the constitutional and statutory powers of the Local Self Bodies in the garb of implementation of schemes by issuing guidelines overriding both the Constitutional as well as Statutory provisions under the Constitution of India as well as in the Municipal Act. Taking this Court to the list of Urban bodies and the matter of distribution of work involved in Annexure-1 involving the additional affidavit of the State to the agencies either in their control or in control of the elected bodies aligning to their party, it is alleged that there is also an attempt to eliminate the opponent political parties in spite of there being duly elected and in control of some local self bodies. It is, in the above premises and for the claim having support of law from the aforesaid decisions, Shri Acharya, learned Senior Advocate prayed this Court for interfering in the guideline, vide Annexure-1 and setting aside the same. Further taking this Court to the amount involved in the matter and as the State Assembly Election nearing first, Shri Acharya, learned Senior Advocate further alleged that the reason behind issuing such guideline is a clandestine design at the instance of the ruling party in the helm of the affairs of the State to divert huge public fund in favour of their own party-men. 8 Thus, Shri Acharya, ultimately claimed that the State is diverting most of the funds to their political wallet.
4. Shri Gautam Mishra, learned counsel for the petitioners i.e. a Councilor in Ward No.29 of the Bhadrak Municipality and another Councilor in the Ward No.23 of the same Municipality involving W.P.(C) No.867 of 2018 while fully supporting the submission of Shri Pitambar Acharya, learned Senior Advocate further taking this Court to the list containing the number of projects in respect of the different executing agencies in each Urban Local Bodies along with ruling political party particularly at page 19 along with additional affidavit by opposite party no.1 involving W.P.(C) no.25656 of 2017 and specifically taking this Court to the averment made in page 19 & 20 therein, submitted that the document has an apparent disclosure of supply/entrustment of works involved therein mostly to the Municipalities or Notified Area Councils, where the Municipalities or the N.A.Cs. are being controlled by ruling political party i.e. the Biju Janata Dal in an attempt to side track the Urban Local bodies under the control of non-ruling party. Reading out the same document Shri Mishra, learned counsel further demonstrated that most of the cases where the Indian National Congress, the independent parties or the Bharatiya Janata Party are in control of the Municipalities, the work has been entrusted 9 mostly to the R & B or the Government agencies. Shri Mishra, learned counsel again leveled a serious charge against the ruling party by submitting that in spite of their being involvement of huge funds, there is no tenders in such process for working out the items in the scheme and works involved crores and crores of rupees have been entrusted to the persons aligning to the ruling party, in an attempt creating party fund in the garb of scheme named 'UNNATI'.
5. Shri Mishra, learned counsel in W.P.(C) No.867 of 2018 also taking reliance of the decisions as reported in (1) (2015) 13 SCC 257 (2) (2006) 13 SCC 382 (3) AIR 2001 Ori. 190 submitted that unless such action of the State Government is interfered with and set aside and prohibited, there will be no rule of law in the State and further, there will be no existence of any local body under the control of the political opponents. It is, in the above circumstance, Shri Mishra, learned counsel prayed this Court for interfering in the guideline at Annexure-1 and setting aside the same.
6. Sri S.P.Mishra, learned Advocate General appearing for the State advancing his submission in opposition to the contentions raised by the learned counsel for the petitioners appearing in both the writ petition at the first instance taking this Court to the Cause Title involving W.P.(C) No.25656/2017 and the statement 10 made in paragraph-1 therein contended that the writ petition is not maintainable at the instance of the Vice Chairman of the Municipality. Learned Advocate General further taking this Court to the specific averment made by the petitioner in paragraph-2 contended that though the writ petitioner prayed for quashing of entire Guideline, vide Annexure-1 but looking to the allegations in the writ petition from paragraph-2 onwards, it appears, the petitioner has the only grievance involving Clause-3 of the Guideline at Annexure-1. Further taking this Court to the prayers in both the writ petitions, learned Advocate General contended that the prayer No.B involving the 1st writ petition is just opposing to the prayer no.A so as to say that when in the prayer No.A the petitioner has sought for quashing the Guideline at Annexure-1 involving implementation of the Scheme called "UNNATI" but in paragraph-B, the petitioner has again sought for a direction from this Court for implementation of the UNNATI Scheme by the Urban Local Bodies in compliance of the mandate provided in the Constitution as well as in the Orissa Municipal Act, 1950. Sri Mishra, learned Advocate General further taking this Court to several provisions involving the Guideline at Annexure-1 particularly referring to the provision at Clauses-3, 8 & 9 of the Guideline submitted that the District Urban Development Authority shall not only be responsible for selection 11 of the Executive Agencies but for the provisions contended therein in every stage of action, it is involving the Urban Local Bodies. Further for the scope in the Guideline, the "UNNATI" fund has to be released in favour of the Urban Local Bodies, which shall be responsible for spending of the same. For the provision at Clause-9, there is provision providing the District Urban Development Authority shall monitor and progress the quality of work while it is in progress. Taking the pleading involving both the writ petitions, Sri Mishra, learned Advocate General contended that there is absolutely no demonstration of any allegation or material on malfunctioning or misutilization of fund by anybody by either of the writ petitioners involving both the writ petitions. Taking this Court to the averments made in the affidavit dated 22.1.2019 and the documents appended therein, Sri Mishra, learned Advocate General attempted to demonstrate that considering the rapid urbanization involving the basic infrastructural issues in urban areas and further to mitigate the problems and to ensure quality in infrastructure for urban populace, integration and coordination of various Urban Development Policies and Schemes, there was need for creation of a single coordinate agency at district level. Shri Mishra, further contended that keeping this in view and the observations made in 8th Five Year Plan of Union of India and the instruction of the 12 Ministry of Urban Affairs based on a resolution bearing no.47588 dated 20.11.1990 State Government constituted the District Urban Development Agencies being registered under the Societies Registration Act, 1860 having a governing body as well as a general body in such agency. Sri Mishra, learned Advocate General taking this Court to the Resolution dated 20th November, 1990 appearing at Annexure-C/1 driving through Clause-7 therein submitted that the District Urban Development Authority shall consist the members involving Executive Officers of the Urban Local Bodies and the Governing Body of the District Urban Development Authority shall involve the Chairman of the Urban Local Bodies as Member. Further taking this Court to the document at Annexure-D/1 therein particularly the constitution of Governing Body of District Urban Development Authority, Sri Mishra, learned Advocate General again contended that as per the 2014 Circular, the Governing Body shall also consist the Municipal Commissioner or the Executive Officer of the Urban Local Bodies as Member in the Governing Body and in the General Body it included the Mayor/Chair Person of the local Urban Bodies as Member. For the provision involving 1990 Resolution as well as 2014 Resolution appearing at Annexures- C/1 and D/1, Sri Mishra, learned Advocate General thus contended that it is wrong to submit by the learned counsel for 13 the petitioners involving both the writ petitions that the District Urban Development Authority being a Body does not involve Urban Local Body and thus there is an attempt to take away the powers conferred on the Urban Bodies by issuing such Guideline. Similarly taking this Court to the additional affidavit dated 9.8.2018 by the opposite parties more particularly the averments made in paragraphs-4, 5, 6 & 7, Sri Mishra, learned Advocate General submitted that the Guideline involves 'UNNATI' Scheme alone and the 'UNNATI' Scheme being a Scheme at the State level with additional funds allocated by Union of India under the 8th Five Year plan and without affecting the funds already allocated in favour of the Urban Local Bodies by State Government. Besides the Government has also check and measures in the implementation of the Scheme. Taking this Court to various documents appended therein, Sri Mishra, learned Advocate General contended that there is absolute transparency in executing the Scheme. Further taking this Court to the allocation of work through the documents filed therein, the different Bodies involving different Urban Local Bodies, learned Advocate General submitted that it is false to submit that there is any favouritism in favour of the Urban Local Bodies under the control of Ruling Party. Taking this Court to the documents appended therein, learned Advocate General demonstrated the distribution of work 14 involving different Urban Local Bodies being assigned to particular Establishment. Learned Advocate General attempted to establish his case that there is no discrimination meted out to any Urban Local Body. Taking this Court to the document at Annexure-B/1 appended to the affidavit dated 22.1.2019, learned Advocate General again submitted that whatever work has been entrusted by now has been entrusted through tender process, and therefore, contended that there should not be any doubt in the working out of the Scheme by the Agencies, if any. Shri Mishra, also made a statement that even though there is no specific allegation in the matter of favoritism or violation of any law in the matter of allocation of work yet, Government is prepared to take up allegation in this regard, if comes, in future. Taking this Court to the decisions cited by the respective counsel for the petitioners, vide 2006(8)SCC 352, 2006(13) SCC 382, 2012(3) SCC 1 and 2015(13) SCC 257, learned Advocate General submitted that for the difference in the facts and situation, none of the decisions have any application to the case at hand. Taking support of the decision reported in 2010(5) SCC 538 and the discussions and observations in paragraphs-56, 76, 77, 78, 88, 89, 91, 93 & 97 therein, learned Advocate General submitted that this decision has full support to the case of the opposite parties. Taking this Court to the decision reported in 2017(1)SCC 244, 15 learned Advocate General further contended that for the decision of the Hon'ble apex Court, there cannot be any doubt that the District Urban Development Authority is an independent body bereft of involvement of Urban Local Body. Further existence of such body is not a recent creation and there is no challenge to creation of such body in existence over so many decades. In the above circumstance, Sri Mishra, learned Advocate General submitted that there is no foundation involving the allegations in either of the writ petitions requiring this Court interfering in the Guideline and thereby, prayed for dismissing both the writ petitions.
7. To the serious contest of the learned Advocate General on the locus standi of the petitioner involving W.P.(C) No.25656/2017 to file the writ petition in the capacity of the Vice Chairman of the Anandapur Municipality and further for the petitioner's confining his pleading to Clause-3 of the Guideline under Annexure-1, the prayer made to quash Annexure-1 as a whole, Sri P.Acharya, learned senior counsel for the petitioner in W.P.(C) No.25656/2017 taking this Court to the Cause Title involving the writ petition submitted that the writ petition has been filed by one Suresh Chandra Sahu though functioning at the relevant point of time as Vice Chairman of Anandapur Municipality on the pretext that the petitioner is a citizen of the 16 Municipality and since aggrieved by the action of the State involving Annexure-1, Shri Acharya, contended that it is wrong to submit by the learned Advocate General that the petitioner has no locus standi to agitate the issue. On the question of limited grievance being raised by the petitioner specifically pertaining to Clause-3 of the Notification in the body of the writ petition, Sri Acharya, learned senior counsel for the petitioner further taking this Court to the pleading of the writ petitioner subsequent to paragraph-2 submitted that the petitioner is in fact aggrieved by the whole Guideline under Annexure-1, and therefore, the writ petition is entertainable involving whole Guideline at Annexure-1. Sri Acharya, learned senior counsel for the petitioner to the submission of the learned Advocate General concerning the decision reported in 2010 (5) SCC 538 taking this Court to the observations and discussions of the Hon'ble apex Court in paragraphs-75, 76 & 77 submitted that for the clear observation of the Hon'ble apex Court on the issue of Executive Authority having no power to issue guideline de hors the statutory powers contended that the decision has direct support to the case of the petitioner, and therefore, requested this Court for interfering in the action of the opposite parties involving Annexure-1 and setting aside the same holding that the same is bad in law. 17
8. Similarly to the resistance of the learned Advocate General, challenging to the Guideline by the petitioners involving W.P.(C) No.867/2018, Sri G.Misra, learned counsel for the petitioners taking this Court to the averments made in paragraph-5 onwards involving the writ petition submitted that the writ petitioners have clearly demonstrated through grievance involving enforceability of such Guideline being contrary to the statutory powers under the Orissa Municipal Act as well as the powers under Article 243 of the Constitution of India contended that for the clear demonstration of the grievance of the petitioners, the writ petition at the instance of the petitioners has substance to be entertained. Taking this court to the provisions contended at Sections 235 & 244 of the Orissa Municipal Act, 1950 read with Sub-Section 17(B) of Section 3 of the Act, 1950 and then taking this Court to the observations in the Guideline at Annexure-1 submitted that the Guideline being issued by the Secretary of Housing & Urban Development Department, Government of Odisha has no statutory enforcement. Further by issuing the Guideline, the Secretary of the Department has attempted to amend the legal provision involving the Act, 1950. Sri Mishra, learned counsel for the petitioners thus contended that for no statutory label involving the Guideline, such Guideline, vide Annexure-1 cannot prevail over statute and the Guideline so issued must be in 18 consonance with the statutory provisions. Sri Mishra, learned counsel for the petitioners in the above premises contended that the attitude of the State by issuing such Guideline appears to be taking away the statutory powers entrusted on the Urban Local Bodies by virtue of provision of the Constitution as well as the Municipal Act, which is not permissible in the eye of law. Sri Mishra, learned counsel for the petitioners appearing in the 2nd writ petition further taking this Court to the decision, vide 2013 (5)SCC para-27, (2008) 7 SCC 117 and a further decision involving AIR 1991 SC 1933 contended that the decisions have clear support to the case of the petitioners in raising the sustainability of the Guideline at Annexure-1 and thus prayed this Court for interfering in the impugned Guideline and setting aside the same.
9. Considering the rival contentions of the parties and on perusal of documents appended to the writ petitions, counter, additional affidavit and on perusal of provisions in the Constitution as well as Municipal Act as referred to by the respective counsel, this Court proceeds as follows :-
Taking into account the 8th Five Year Plan involving the rural development and poverty alleviation as well as Urban Development and Housing, Water supply and sanitation, a plan was introduced by the Union of India taking into account the 19 urban scene all over the India and the actions taken pursuant to the 7th plan. Drawing over view of plan outlay in observing that the gap between the demanded supply of infrastructural services has been continuously widening and on realization of facts that the poor are the worse sufferers in diminishing their access to the basic services like drinking water, sanitation, education and basic health service is shrinking, the problems in urban housing, transportation and also in the area of pollution, Union of India outlined the specific thrust areas in the 8th five year plan. Union of India drawing the 8th Five Year Plan wanted infuse of additional funds for spending particularly in the area of upgradation of regional roads, development of power transmission and distribution particularly in the urban areas, transportation, outlets accordingly following the instructions of Ministry of Urban Affairs. It is, at this stage of the matter, it appears, following the instruction of the Ministry of Urban Affairs, Union of India proceeded to constitute District Urban Development Agency at district level. Following a resolution dated 20.11.1990 published in extra ordinary gazettee on 12.12.1999 keeping in view the strategy of 8th five year plan, Government of Orissa decided to constitute the State Urban Development Agency and District Urban Development Agency at the State and District Level with objectives such as to have one coordinating agency at 20 District and State level to monitor, supervise and evaluate performance of the schemes implemented by the Urban Local Bodies. Apart from resolving the constraints and conflicts experienced by the executive agencies at various levels under clause (3) of the Resolution therein, an attempt was made to ensure proper utilization of the Government Grants particularly the funds released by the Government of India since 1990. The State Government has fixed the responsibility on the State Level Urban Development Agency and the fund sanction will be dependent on the utilaziation certificate in respect of the grant-
in-aid to be sanctioned and would be submitted by the executive agency to the DUDA and counter signing Officer would be the additional District Magistrate and Project Director of the concerned DUDA. It is, in the process of creation of DUDA, governing body of the DUDA consisting members including Chairman of the Urban Local Bodies of the concerned urban area, has been constituted. In a further resolution of the State Government dated 15.11.2014 there has been reintroduction of governing body of the DUDA taking therein the Municipal Commissioner/ Executive Officer of the Urban Local Bodies and the general body of the DUDA shall include all the members of the governing body and the MLAs / MPs having urban areas within the constituency and Mayors/Chairperson of the Urban 21 Local Bodies. While the matter stood thus, keeping in view the grants coming from the Union of India, Government of Odisha brought a scheme called as "UNNATI" under the Urban Infrastructure Development Initiative involving the Housing and Urban Development Department, Government of Odisha with introduction of the scheme on 3rd of August, 2017 upon receipt of approval of the proposal of the Odisha Legislative Assembly on 31.03.2017 and on obtaining the concurrence from the Finance Department with an aim and object to ensure convergence of all the schemes and programmes implemented in the Urban Areas with further aim to fill the critical gaps in the infrastructure as well as maintenance and funding with a further view to ensure that the benefits of the schemes reaches the people cutting across all the regions of the State and all section of the society in a speedy and sustainable manner giving the working with a guidelines to treat the DUDA as a nodal agency for 'UNNATI' scheme with assignment of release of funds with DUDA for each Urban Local Body fixing responsibility of monitoring and evaluation of the progress or projects after commencement of DUDA. It is suffice to mention here that in none of the writ petitions involve there is any challenge to introduction of such scheme with fixation of the responsibility on DUDA functioning over several years. From the entire pleadings involving the writ 22 petitions involved herein, this Court also finds, there is no allegation involving malfunctioning or arbitrary release of funds by the DUDA. It is at this stage of the matter, this Court further finds, for proper implementation of the 'UNNATI' scheme, Government of Odisha in Housing and Urban Development Department issued a guideline to the Collector and District Magistrate on 10.10.2017 in the matter of release and utilization of the grants under 'UNNATI' programme by the Urban Local Bodies of the State. It is reiterated here that the Annexure-1 is simply a guideline to the Collector and District Magistrate in the matter of release and utilization of the Grants under 'UNNATI' programme. Reading of the brief vide W.P(C) No.25656 of 2017 this Court, observes, the whole endeavour of the petitioner is to challenge the guidelines, keeping in view the constitutional provision under Article 243G, 243 Q, 243 R, 243 U, 243 ZA and 243 W reading with 12th Schedule dealing with powers and duties vested upon the Urban Local Bodies and further, the provisions at part IX-A of the Constitution (74th amendment) Act, 1992 dealing with composition of election of the Municipalities as well as the powers with the authorities and responsibility vested upon them. Whole reading of the writ petition, it appears to be an accusation against the State Government to the extent that by issuing the guideline, vide Annexure-1 the State Government 23 attempted to curtail the powers of the Urban Local Bodies in the matter of their powers and responsibilities vested under the Constitutional authority but bereft of any foundation.
10. Considering the contention of the learned Advocate General that for the challenge of the petitioner indicated in paragraph no.2 of the writ petition particularly confining the allegation to the clause 3 of the impugned guideline, reading the whole contentions raised in the writ petition, this Court finds, the submission of the learned Advocate General that this Court has no scope for considering beyond the validity of the clause 3, has no force. This Court, therefore, proceeds to consider the writ petition taking it to be a challenge to the guideline itself. Reading the other brief taken up together vide W.P. (C) No.687 of 2018, this Court finds, here the petitioner though specifically challenged the guideline particularly the clause 3 of the guideline as specifically mentioned in paragraph no.4 but considering the whole submissions in the writ petition, this Court for the observation made hereinabove, finds, the submission of the learned Advocate General that this writ petition cannot involve the whole guideline, remained unsustainable. It is, at this stage of the matter, considering the other submission of the learned Advocate General that the writ petition having been filed by the petitioners as appearing from the nomenclature involving both 24 the writ petition and for no locus standi to come forward with such challenge at the instance of the petitioner in the respective writ petitions, this Court observes, for the writ petition being filed by individual(s) though holder of particular position in the Municipality, the writ petitions are sustainable at the instance of the petitioner therein.
11. Now coming to the merit involving the writ petition, considering the rival contentions of the parties and on reiteration of the observation of this Court herein above that the writ petition only involves a challenge to the guideline and there is no challenge to the scheme involving which the guideline is issued, this Court taking into consideration the submission of the learned Advocate General that the utilization of the fund under the scheme source being from the 8th Five Year Plan of the Union of India and the "DUDA" a body corporate to take up the assignments involving the funds of the Union of India under the 8th Five Year Plan and further, looking to the composition of body of DUDA taking into it the Commissioner/the Executive officer and subsequently, the Chairperson of the Urban Local Bodies, this Court finds, the allegation of Shri Pitambar Acharya, learned Senior Advocate as well as Shri Gautam Mishra, learned counsel that there is no involvement of the Urban Local Bodies in working out of the 'UNNATI' scheme under the guidance of the DUDA has 25 no substance. Further looking to the document appended to the writ petition in both the writ petitions vide Annexure-1, the guideline more particularly, this Court finds, under clause 3 the responsibility for selection of agencies includes government agencies or Urban Local Bodies for work execution, thus it cannot be a case construed to be excluding the Urban Local bodies. Further, under clause 5 of the guideline this Court also finds, the 'UNNATI' funds shall also be placed with DUDA and DUDA shall release it for each Urban Local Body on the basis of total numbers of wards in particular Urban Local Bodies to ensure transparency in the implementation of the works. The guideline also ensures providing citizen information boards and DUDA has been fixed with the responsibility of the monetary and evaluation. From both the writ petitions and the submission of the respective counsel appearing in both the writ petitions, this Court finds, apart from alleging that in the introduction of the guideline the powers of the urban bodies have been curtailed, the only other ground on demonstration of document at pages 19 to 22, an attempt has been made by Shri G. Mishra, learned counsel more particularly to demonstrate that in the guise of implementation of the scheme under the protection of the guideline impugned herein, there has been an attempt for favouring party men inclining to the ruling party concerning the urban local bodies 26 run by the members with affiliation to ruling parties and there has been entrustment of majority of work to the Government agencies or other agency in the Urban Local Bodies which have no affiliation with ruling parties. Shri G. Mishra, learned counsel also attempted to highlight the above aspect by taking this Court to the allotment of the work appearing at page 19 to 22 particularly to Sl.nos.2, 8, 16, 21, 22, 33 & 41. On scan of this document available at page 19 of the additional affidavit filed by the opposite party no.1 filed on being directed by this Court, vide order dated 8.08.2018, there is allotment of the work also to other agency involving Sl.nos.6, 10, 11, 15, 18, 23, 30, 31, 34, 36, 41, 46 & 47 as well, this Court finds, though these Urban Local Bodies are manned by the Biju Janata Dal i.e. the ruling party in the State of Odisha, the work under the particular scheme has been assigned also to other Agencies like ITDA, PWD, PHEO, BDO, ITDA, R & B, R & B, ITDA, R & D and RWD, ITDA and RWD, RD, BDO, RD, ITDA, R & B respectively. Accordingly, this Court is not satisfied with the allegation of discrimination in the matter of allotment of work as indicated hereinabove. This Court wants to record the categoric submission of the learned Advocate General during course of argument that works wherever involving the urban local bodies under the "UNNATI" Scheme already assigned are all after entering into the tender process. 27 This Court observes, here that for there is no allegation in the writ petition as to any illegality or irregularities in the tendering process involving any of the work, this Court is not inclined to enter into any such controversy. Reading the purport of 8th Five Year Plan, the Constitution of body like the DUDA, the scheme involved herein, this Court finds, the scheme only supplements the efforts of the State and other local authorities and it nowhere seeks to interference in the functional as well as the financial domain of local planning authority of the State. It is, at this stage of the matter, this Court looking to the controversy involved herein relies upon the citation those are relevant for the purpose of effective adjudication of the dispute at hand and thus takes into account the decision in the case of Bhim Singh versus Union of India and others as reported in (2010) 5 SCC 538 involving a challenge to the MPLAD Scheme specifically involving an allegation that on introduction of such Scheme and on operation of guidelines involving the same, there is a total abdication of powers and functions by Union of India and such a wholesale transfer of funds for the benefits of work or projects cannot be executed under Article 275 as grants in aid of the Revenues of a State without proper recommendation of the Finance Commission and further, the MPLAD scheme is contrary to the 73rd & 74th amendments to the Constitution of India. 28 Further, the MPLAD scheme is inconsistent with pts. IX with pts. IX-A insofar the decision making process is concerned and inconsistent with the local self Government thereby denuding the choice and functions of the Panchayat and Municipalities. In dealing with the contentions therein, the Hon'ble apex Court in the aforesaid judgment in paragraph nos.75, 76, 77, 78 & 88 observed as follows:
"75. All these information which are available through their website clearly show that the Scheme provides various levels of accountability. The argument of the petitioners that the MPLADS is inherently arbitrary seems unfounded. No doubt there may be improvements to be made. But this Court does not sit in judgment of the veracity of a scheme, but only its legality. When there is evidence that an accountability mechanism is available, there is no reason for us to interfere in the Scheme.
76. Further, the Scheme only supplements the efforts of the State and other local authorities and does not seek to interfere in the functional as well as financial domain of the local planning authorities of the State. On the other hand, it only strengthens the welfare measures taken by them. The Scheme, in its present form, does not override any powers vested in the State Government or the local authority. The implementing authorities can sanction a scheme subject to compliance with the local laws. Various Guidelines make it clear that the Scheme has to be implemented with the coordination of various authorities and subject to the supervision and control of the nodal Ministry i.e. Ministry of Statistics and Programme Implementation. The respondents have highlighted that the collective responsibility ensures in implementing the Scheme and over the years, various checks are also put in place, including the measures to make the Scheme more transparent in all respects. We are satisfied that the Government of India is not delegating its power to the Members of Parliament to spend the money contrary to the mandate of the constitutional provisions.
77. Another contention raised by the petitioners is that the Scheme violates the principle of separation of powers under the Constitution. The concept of separation of powers, even though not found in any particular constitutional provision, is inherent in the polity the Constitution has adopted. The aim of separation of powers 29 is to achieve the maximum extent of accountability of each branch of the Government.
78. While understanding this concept, two aspects must be borne in mind. One, that separation of powers is an essential feature of the Constitution. Two, that in modern governance, a strict separation is neither possible, nor desirable. Nevertheless, till this principle of accountability is preserved, there is no violation of separation of powers. We arrive at the same conclusion when we assess the position within the constitutional text. The Constitution does not prohibit overlap of functions, but in fact provides for some overlap as a parliamentary democracy. But what it prohibits is such exercise of function of the other branch which results in wresting away of the regime of constitutional accountability.
88. In the present case, we are satisfied that there is no violation of the concept of separation of powers. As we have noted above, there is no rigid separation of powers under the Constitution and each one of the arms at times performs other functions as well. The Member of Parliament is ultimately responsible to Parliament for his action as an MP even under the Scheme. All Members of Parliament be it a Member of Lok Sabha or Rajya Sabha or a nominated Member of Parliament are only seeking to advance public interest and public purpose and it is quite logical for the Members of Parliament to carry out developmental activities in the constituencies they represent. There is no reason to believe that the MPLAD Scheme would not be effectively controlled and implemented by the district authority in the case of panchayats and Commissioners/Chief Executive Officers, in the case of municipalities and corporations with adequate safeguards under the guidelines."
From the above, this Court finds, the Hon'ble apex Court adjudicating in similar situation was satisfied that there was no violation of the concept of separation of powers. Above decision has clear support to the case of the State Government. This view of the Hon'ble apex Court has been further reiterated in another Bench of the Hon'ble apex Court in the case of Lok Prahari through its General Secretary, S.N. Shukla Versus State of Uttar Pradesh and others as reported in (2017) 1 SCC 244. Reading another decision of the Hon'ble apex Court, vide AIR 30 1965 SC 745 / 1965 (1) SCR 413 this Court finds, the observation made in paragraph no.42 of the said decision reads as follows :-
"42. There is another aspect of this matter which must also be mentioned; whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been passed by Legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are conferred legislative functions, and the functions and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the Judicature in this country lie within the domain of adjudication. If the validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country; and so, we feel no difficulty in holding that the decision about the construction of Art. 194(3) must ultimately rest exclusively with the Judicature of this country. That is why we must over-rule Mr. Seervai's argument that the question of determining the nature, scope and effect of the powers of the House cannot be said to lie exclusively within the jurisdiction of this Court. This conclusion, however, would not impair the validity of Mr. Seervai's contention that the advisory opinion rendered by us in the present Reference proceedings is not adjudication properly so-called and would bind no parties as such."
Other decisions relied on by either side since are not relevant to the case at hand, this Court is not interested to enter into any discussion on the same.
31
12. It is needless to mention here that for the scheme intending for utilization of the additional allocation of funds by the Union of India under the 8th Five Year Plan and for their being no allegation by either of the petitioners that the funds allocated to Urban Local Bodies under the State plan having been diverted and conducted through the agency other than the Urban Local Bodies, this Court finds, there is no substance in the allegation of the petitioners in interfering in the powers and functions of the Urban Local Bodies. It is at this stage of the matter, this Court considering the materials disclosing that lot of works involved herein have already been entrusted to different agencies through tender process, it will be open to the petitioners, if aggrieved in any implementation of the Scheme, may raise grievance regarding any infirmity in the tender process or in utilization of any such fund and/or miss-utilization of fund by moving the competent authority for their consideration and appropriate action at their end.
13. In the circumstances, both the writ petitions fail. No cost.
................................
(Biswanath Rath, J.) Orissa High Court, Cuttack.
The 13th day of February, 2019/mkr, secy./ayas.