Patna High Court
Bihar Pradesh Zila Parishad Adhyaksh ... vs The State Of Bihar & Anr on 25 April, 2018
Author: Rajeev Ranjan Prasad
Bench: Chief Justice, Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7688 of 2017
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1. Bihar Pradesh Zila Parishad Adhyaksh Sangh Through Its Convener Priyanka
Jaiswal W/o-Pawan Kumar Jaiswal, R/o Vill + P.O.-Phulwariya, P.S.-Dhaka, Dist.-
East Champaran.
2. Sunil Kumar Singh, Son of Udit Narayan Manday, R/o Village +P.O.-Soutadin,
P.S.-Belhar, District-Banka.
3. Nathuni Ram, Son of Late Sitaram Paswan, R/o Village + P.O. + P.S.-Darihar,
District-Rohtas
4. Prabhu Sah, S/o Basant Sah, R/o Vill + P.O.-Bhaikunthpur, P.S.-Rajapakar,
District-Vaishali
5. Anju Devi, Husband of Kumar Rajnish, R/o Vill- Lahladpur, P.O.-Mohanpur,
P.S.-Gauriyak, District-Patna.
6. Arhul Devi, Wife of Gajendra Prasad Yadav, R/o Vill-Chakla, P.S.-Saur Bazar,
Dist.-Saharsa.
.... .... Petitioner/s
Versus
1. The State of Bihar through Chief Secretary, Government of Bihar, Patna.
2. Secretary, Panchayati Raj Department, Govt. of Bihar, Patna.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Dinu Kumar, Adv.
For the Respondent/s : Mr. Kumar Alok, SC-7
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date: 25-04-2018
The present writ application has been preferred for the
following reliefs:-
"A. For quashing office order vide memo
no.4039 dated 19.04.2017 issued by Secretary,
Panchayati Raj Department, Govt. of Bihar as
contained in Annexure-3 by which decision has
been taken in stopping Zila Parishad & Panchayat
Samiti to utilise devolution fund allotted under 5 th
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Finance Commission in relation to Mukhiyamantri
Gramin Payjal Nishchay and Mukhyamantri
Gramin Gali-Nali Pakkikaran Nishchay Yojna and
fund allotted under devolution in relation to
Mukhyamantri Gramin Payjal Nishchay and
Mukhyamantri Gramin Gali-Nali Pakkikaran
Nishchay Yojna will be executed by ward
development committee on priority basis through
panchatat..
B. Also for directing to not give effect of the
order vide No.4039 dated 19.04.2017 as contained
in Annexure-3 in way of utilizing the fund of
allotted to Zila Parishad and Panchatat Samiti
under devolution after approval of 5 th State
Finance Commission for the Financial year 2016-
17 in execution of Mukhyamantri Gramin Payjal
Nishchay and Mukhyamantri Gramin Gali-Nali
Pakkikaran Nishchay Yojna as usual..
C. Also for commanding the respondent to allow
Zila Parishad & Panchatat Samiti in the State of
Bihar to utilize the devolution fund amounting to
Rs.73.85 crore on Panchayat Samiti & 147.71
Crore for Zila Parishad for financial year 2016-17
allotted on 23.1.2016 and 29.03.2017 as per its
guideline.
D. Also for restraining the State respondent to
not utilize devolution fund allotted to the
Panchatat Samiti and Zila Parishad vide order
dated 23.12.2016 and 29.03.2017 by Panchatat
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Development committee throught Gram Panchatat
on priority basis of wards.
E. And also for any other relief or reliefs for
which the petitioners are found entitled in the eye
of law."
2. Learned counsel representing the petitioners while
referring to Article 243 of the Constitution of India and various
provisions of the Bihar Panchayat Raj Act, 2006 has raised a
grievance against memo no.4039 dated 19.04.2017 (Annexure-3 to the
writ application) by which the Secretary, Bihar Panchayat Raj
Department has restrained the Panchayat Samiti and Zila Parishad
from utilizing the devolution fund allotted on 23.12.2016 as contained
in Annexure-1 and vide letter no.18 dated 29.03.2017 as contained in
Annexure-2 to the writ application in so far as it relates to the works
being executed under Mukhyamantri Gramin Payjal Nishchay and
Mukhyamantri Gramin Gali-Nali Pakkikaran Nishchay Yojna.
According to Annexure-3 to the writ application in the light of the
recommendations of the 5th State Finance Commission for the
financial year 2016-17 separate funds have been provided to the
Panchayat Samiti and Zila Parishad. According to this Annexure-3 (i)
Mukhyamantri Gramin Payjal Nishchay and (ii) Mukhyamantri
Gramin Gali-Nali Pakkikaran Nishchay Yojna are executed through
Gram Panchayat and for this purpose the Gram Panchayats have been
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provided funds out of which 90% funds are to be spent on these two
Yojnas. Annexure-3 further provides that in the light of the
recommendations of the 5th State Finance Commission Panchayat
Samiti and Zila Parishad would be eligible to spend money from
Pratinidhayan fund in the given manner. It is further provided that if
the Zila Parishad and the Panchayat Samiti take any decision to spend
money received by them by virtue of the recommendations of the 5th
State Finance Commission, on account of Mukhyamantri Gramin
Payjal Nishchay and Mukhyamantri Gramin Gali-Nali Pakkikaran
Nishchay Yojna, then the procedures laid down for execution of such
Yojnas and the standards fixed for that such as - Yojna must be
executed through gram panchayat by Ward Development Committees
and the preferences to the wards will be in accordance with the criteria
fixed for such preference under the Yojna by the Gram Panchayat,
shall be adhered to.
3. Mr. Dinu Kumar, learned counsel representing the
petitioners submits that devolution fund has been provided by the
State government to the Panchayat Samiti and Zila Parishad and after
receipt of the devolution fund it becomes a property of the Panchayat
Samiti and Zila Parishad in terms of Bihar Panchayat Raj Act, 2006,
therefore, works towards execution of the scheme of drinking water
supply through pipes and street drainage sanitation cannot be diverted
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to the Panchayat with specific mode of execution by ward
development committee through Panchayat and such exercise of
power by the State Government is in violation of the provisions of the
Bihar Panchayat Raj Act, 2002. It is alleged that the government does
not want independence of duty being assigned to the Zila Parishad and
the Panchayat Samiti and, therefore, government is always issuing
such orders which are contrary to the provisions of the Act. It is
pointed out that in LPA No. 1376/12 in the case of Kamlesh Kumar
Vs. State of Bihar this Court has taken a view that the role of Zila
Parishad and the Panchayat Samiti which are local self-government
cannot be taken away in execution of the schemes of MANREGA. It
is further pointed out that the power of government under Section
156(1) of the Act of 2006 in entrusting the work of implementing the
scheme at the ward level through Ward Vikash Samiti has been
decided in CWJC No.19591/2016 (Saran Zila Mukhiya Sangh Vs.
State) vide order dated 17.05.2017 holding that the State has no power
under Section 156(1) of the Act, 2006 to issue such direction. It is
thus submitted that from Annexure-6 it will appear that the power of
Zila Parishad under Section 73, 74, 77, 80 and 81 of the Act, 2006
have not been amended.
4. A counter affidavit has been filed on behalf of the
respondents sworn by Additional Secretary, Panchayat Raj
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Department, Government of Bihar. It is submitted that the petitioner
has no locus standi in view of the provisions contained in Section 62
of the Act 2006 as amended till date. It is submitted that every Zila
Parishad is a body corporate by the name of its Zila Parishad, having
perpetual succession and a common seal, the petitioner claims himself
to be a 'Sangh' cannot be allowed to sue in the present matter. The
Zila Parishad is itself competent to sue or to be sued. Thus, a serious
challenge has been made to the maintainability of the present writ
application at the instance of the present petitioners.
5. By filing further supplementary counter affidavits
respondent no.2 has clarified the stand of the Department in the matter
of allocation of funds to the Zila Parishad and Panchayat Samiti. It has
been submitted that the allocation of fund made available to
Panchayat Samiti and other tiers of the panchayat are in accordance
with the formula recommended by the 5th State Finance Commission
constituted under Article 243(1) of the Constitution of India read with
Section 168 of the Bihar Panchayat Raj Act, 2006 as well as Section
71 of the Bihar Municipal Act, 2007 adopted by the State Government
vide Notification No.12530 dated 13.12.2013. The allocation of funds
has been made accordingly and no challenge may be made by the
petitioners to the allocation of 30% of the funds to Zila Parishad. As
regards the guidelines issued vide memo no.4039 dated 19.04.2017
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(Annexure-3 to the writ application) is concerned, it has been stated
that there has been doubts amongst certain Zila Parishad and the
Panchayat Samiti on the manner of spending of funds allocated to
them under the recommendation of the 5th State Finance Commission.
The guidelines provides for Zila Parishad and the Panchayat Samiti to
spend the fund on Mukhyamantri Gramin Payjal Nishchay and
Mukhyamantri Gramin Gali-Nali Pakkikaran Nishchay Yojna. At the
same time, it has been made clear that it is not compulsory for the
Panchayat Samiti and the Zila Parishad to spend the fund on the
Mukhyamantri Gramin Payjal Nishchay and Mukhyamantri Gramin
Gali-Nali Pakkikaran Nishchay Yojna.
6. It is stated that recently one day workshop of
chairpersons and members of certain Zila Parishad and the Chief
Executive Officers-cum DDCs as well as Pramukhs and Block
Development Officers-cum-Executive Officers of certain Panchayat
Samiti was convened in the Panchayati Raj Department and based
upon the issues raised therein a letter vide memo no.7796 dated
07.09.2017has been issued stating that the construction of such rural roads and nail-gali can also be get done by the Zila Parishad and Panchayat Samiti out of the fund devolved upon them under the recommendation of the 5th State Finance Commission which are not covered by any of the other schemes, but at the same time, it has to be Patna High Court CWJC No.7688 of 2017 dt.25-04-2018 8/9 ensured that such proposed construction work(s) is/are not included or being carried out under two Yojnas by the particular Gram Panchayat. The clarification has been issued in order to ensure that there could not be any overlapping on construction of rural road or nail-gali scheme of the Zila Parisha/Panchayat Samiti vis-à-vis the scheme of the particular Gram Panchayat.
7. In this regard the concerned Zila Parishad and the Panchayat Samiti will have to get prior no objection certificate from the concerned Gram Panchayat before taking a scheme under the Mukhyamantri Gramin Payjal Nishchay and Mukhyamantri Gramin Gali-Nali Pakkikaran Nishchay Yojna, if they so desire to implement such schemes for that Gram Panchayat.
8. Having heard learned counsel for the petitioners and learned counsel representing the State, we find that the grievance raised by the petitioners has already been taken care of by subsequent clarification issued vide memo no.7796 dated 07.09.2017. The reasons and rationale provided in the second supplementary counter affidavit filed on behalf of the respondent no.2 are correct and a reasonable one which we agree to. The Zila Parishad and the Panchayat Samiti have been conferred with the powers to go for implementation of the two schemes mentioned hereinabove following the guidelines and the procedures prescribed therein so that there Patna High Court CWJC No.7688 of 2017 dt.25-04-2018 9/9 should not be any overlapping in the matter of implementation of the two schemes. Prior no objection certificate from the concerned Gram Panchayat before taking a scheme has been rightly provided therein as a safeguard.
9. In view of the above, nothing remains for interference with the impugned orders in the writ application. The writ application, is, thus, dismissed.
(Rajendra Menon, CJ) (Rajeev Ranjan Prasad, J) Arvind/-
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