High Court · 2009

4. For the sake of brevity and clear understanding of the respective cases of the parties concerned, the writ petitioners of WP(C) No. 748/2009 are hereina fter referred to as ’the first group of petitioners’ and the writ petitioners of WP(C) No. 1922/2009 are hereinafter referred to as ’the second group of petitio ners’.

5. What clearly emerges from the above discussion is that while ’the first group of petitioners (i.e. petitioners in WP(C) No. 748/2009) plead that the lis t, which had been prepared by ’Gram Sabha’ on 11-10-2008, be acted upon, the sec ond group of petitioners (i.e. petitioners in WP(C) No. 1922/2009) submit that t heir list, dated 21-09-2006, which the Block Development Officer had sought to a ct upon, is a valid list and the same shall be allowed to be acted upon, particu larly, when the said list was prepared way back in the year 2006 and, acting upo n the said select list, benefit of the said scheme has already been extended to some of the selected persons.

6. The moot question, therefore, which falls for determination, in these tw o writ petitions, is : Which one of the said two lists, one prepared on 11-10-20 08 and the other one, prepared on 21-09-2006, is the valid list and shall be dir ected by this Court to be acted upon?

7. As both these writ petitions are inextricably inter-linked and decision, in any of these two writ petitions, would have a bearing on the out-come of the other writ petition, both these writ petitions, on the request made by the lear ned counsel for the parties, have been heard together for the purpose of final d isposal.

8. I have heard Mr. AM Buzarbaruah, learned counsel, for the first group of petitioners, and Mr. M Sarania, learned counsel, for the second group of petiti oners. I have also heard Ms. VL Sinha, learned Government Advocate, appearing on behalf of the State respondents, Mr. AR Bhuyan and Mr. P Das, learned counsel f or the remaining respondents.

9. Before coming to the question as to which one of the two lists, in quest ion, is the valid one, it needs to be noted that IAY is a centrally sponsored sc heme to help, by extending financial assistance, construction/upgradation of dwe lling houses for the members of Scheduled Caste/Scheduled Tribe/Physically Handi caped and other persons, who fall below poverty line. Guidelines have been issue d by the Central Government with regard to implementation of the said scheme. As regards the persons, who would be entitled to make selection by identifying tho se persons, who would be eligible to receive the benefits of the said scheme, th e guidelines read as under: (cid:28)The District Panchayat/Zilla Panchayat/District Rural Development Agencies (DRD A) on the basis of allocations made and targets fixed shall decide the number of houses to be constructed/upgraded Panchayat wise under IAY, during a particular financial year. The same shall be intimated to the Gram Panchayat concerned. Th ereafter, the ’Gram Sabha’ will select the beneficiaries from the list of eligib le BPL households. Restricting this number to the target allotted as per the pro gramme Guidelines. Selection by the ’Gram Sabha’ is final. No approval by a high er body is required. Zilla Parishads/DRDAs and Block Development Officers should , however, be sent a list of selected beneficiaries for their information. (cid:29)

10. A bare reading of what have been reproduced above clearly shows that the authority to prepare the select list is the ’Gram Sabha’ and the list of benefi ciaries, which a ’Gram Sabha’ so prepares, would be final and would not require approval by any higher authority. As defined by Section 2(1) of the Assam panchayat Act, 1994, ’Gaon Sabha 11. ’ means a body consisting of persons ››››››registered in the electoral rolls rel ating to a village comprised within the area of (cid:28)Gaon Panchyat (cid:29); whereas a Gaon Panchyat, as defined in Section 2(2), means a Gaon Panchayat established under t he said Act. Section 4(ii) of the said Act read with Section 2(1) shows that ’Ga on Sabha’ shall consist of persons registered in electoral rolls relating to a v illage or a group of villages comprised within the area of the Gaon Panchayat. U nder Section 4(6), the quorum for a meeting of the Gaon Sabha shall be one-tenth of the total members or one hundred number of voters of the village/villages, w hichever is less.

12. From what have been pointed out above, it becomes clear that a ’Gaon Sab ha’, which stands on the same footing as the Gram Sabha, consists of persons reg istered in the electoral roll, relating to a village or group of village, compri sed within an area of the Gram Panchayat, and the quorum for meeting of the ’Gao n Sabha’ is one-tenth of the total members of the Gaon Sabha or 100 number of vo ters of the village or villages comprised within the territorial limits of a Gao n Panchayat, whichever is less.

13. The fact that the first group of petitioners were selected by a ’Gaon Sa bha’, in the meeting held on 11-10-2008, is not in dispute. What is, however, in dispute is the validity of the list, which the Block Development Officer seeks to act upon, for, it is contended, on behalf of the first group of petitioners, that the list, in respect of the second group of petitioners, had not been prepa red in any meeting of Gaon Sabha.

14. For the purpose of determining the question as to whether the list, whic h was prepared on 21-09-2006, is a valid list or not, it needs to be noted that the Project Director, DRDA, Kamrup, has contended, in his affidavit, that the li st, which he seeks to act upon, is in terms of the minutes of the meeting of the Gram Sabha held on 21-09-2006. The translated copy of the minutes has been plac ed as Annexure-E to the affidavit, which the Block Development Officer has filed . The Affidavit reads as under: (cid:28) Signature of the persons present in the Gram Sabha held on 21-09-06 in the off ice of the Muktapur Gaon Panchayat for approving the IAY Permanent Wait List. 1. 2. Sd/- Sri Suren Bania (Vice-President, Muktapur GP) 3. Sd/- Sri Dhiren Deka (Member, Muktapur Ward) 4. Sd/- Syed Afluruja Ahmed (Member, Soulmari Ward) 5. Sd/- Sri Mirali Das, (Member, Belkona Ward) 6. Sd/- Smti. Sabita Deka, (Member, Tulamati Ward) 7. Sd/- Smt. Prabha Devi 8. Sd/- Md. Ajijur Rahman, (Member, Bargaon Ward) 9. Sd/- Md.Forman Ali, (Member, Saledol Ward) 10.--------------- 11. --------------- 12. ---------------- Agenda / Programme 1. ----------------------- 2. ----------------------- 3. Discussion regarding IAY Wait List and acceptance of the list 4. ------------------------- 5. -------------------------- 6. -------------------------- 7. --------------------------- Resolution No.1 Todays meeting unanimously accepted the approved Permanent IAY Wait List from th e Higher Authority and resolved that there should be rectification of some names of the list. Accepted Sd/- Suren Bania Sd/- Amrit deka Secretary Mukatapur GP 25-09-2006 (cid:29)

15. On a minute scrutiny of the contents of Annexure-E, as reproduced above, what becomes transparent is that the meeting, which selected the second group o f petitioners, was held on 21-09-2006. This meeting was held in the office of Mu ktapur Gaon Panchayat and it was not a meeting of Gaon Sabha (Gram Sabha), but of Muktapur Gaon Panchayat. Thus, the select list, which the Block Development O fficer seeks to act upon, was prepared not in any meeting of ’Gram Sabha’; rathe r, the meeting was attended by only the Vice-President of the said Gaon Panchaya t and seven other members of the said Gaon Panchayat. Clearly, therefore, the li st, dated 21-09-2006, was prepared by a body, which was not authorized and compe tent to make any list under the said scheme.

16. Mr. M Sarania, learned counsel, appearing on behalf of the second group of writ petitioners, has, at the time of hearing of these writ petitions, produc ed, before this Court, a copy of a letter, dated 27-05-2009, issued by Deputy Co mmissioner, Kamrup, as an Executive Director, DRDA, to show that ’Gram Panchayat ’ and ’Gram Sabha’ are one and the same body.

17. From a cautious reading of the contents of the letter, dated 27-05-2009, what becomes abundantly clear is that the Executive Director, DRDA, Kamrup, has directed the Block Development Officer, Bihdiya Developmental Block, to convene ’Gram Sabha’ in all the Gaon Panchayats by 06-10-2009 and finalise the list of such persons, who are yet to get IAY houses from the permanent IAY list and subm it the same to the Project Director, Kamrup, by 15-06-2009. There is nothing in the letter, dated 27-05-2009, showing that the Gaon Panchayat has to be treated as ’Gram Sabha’. Far from this, the letter, dated 27-05-2009, clearly reflects t hat the select list has to be prepared by convening a meeting of ’Gram Sabha’. T he letter, dated 27-05-2009, therefore, does not confer, and cannot be said to h ave conferred, any authority on Gaon Panchayat to prepare the list of persons, w ho are to be extended the benefit of the said Scheme. The authority to make sele ction of the beneficiaries was given to the ’Gram Sabha’ and has remained vested in the ’Gram Sabha’.

18. Situated thus, one has no option, but to hold, and this Court does hold, that the list, which the Block Development Officer had sought to act upon and t he same list, which even the second group of petitioners have sought enforcement of, was clearly a list prepared by an authority, which was wholly incompetent a nd could not have, therefore, prepared any such list. As against this categorica l finding, the list, which has been prepared by the Gaon Sabha, on 11.10.2008, i s a valid list and needs to be, therefore, enforced.

19. Yet another submission made by Mr. Sarania, learned counsel for the seco nd group of petitioners, is that the list, which the DRDA seeks to act upon, is a waiting list and many persons, out of the said waiting list, have already rece ived benefits and, hence, it would be, according to Mr. Sarania, unfair and unju st to refuse to extend the benefit of the said waiting list to the second group of petitioners.

20. While dealing with the above submission, it needs to be pointed out that a Court cannot give direction in the name of removing discrimination if such di rection would amount to enforcing any authority to repeat or perpetuate an illeg al act. Before giving any direction to any authority to act in a manner in which it had acted in the past, the Court must be satisfied that the act, which had b een done in the past by the authority concerned, was an act done in accordance w ith law. If the act done in the past was contrary to law, the authority cannot b e directed to repeat its illegal act on the ground that not repeating such an ac t would amount to discriminating a person, who was similarly situated as a perso n, who had received the benefit of an illegal act of the authority concerned.

21. In the case at hand too, when it is the clear finding of this Court that the list of beneficiaries ought to have been prepared by the Gram Sabha and the list, which has been prepared on 21.09.2006, was a list, which had been prepare d by a body, which had no such authority to prepare the list, this Court cannot permit the State respondents, nor can it direct the State respondents, to make t he benefit of the scheme available to the remaining persons of the said waiting list inasmuch as any such direction would be a direction to the respondents to a ct contrary to law.

22. The mere fact that an authority has passed a particular order in the cas e of another person, similarly situated, cannot be a ground for issuing a writ i n favour of the petitioner on the plea of discrimination if the order, in favour of other the person, is found to be contrary to law or not warranted in the fac ts and circumstances of his case. Noticing that the High Courts, in exercise of their writ jurisdiction, have been passing orders in the name of removing discri mination and thereby asking the authorities concerned to repeat illegality, the Apex Court has expressed its anxiety on such approach and has laid down the posi tion of law in Chandigarh administration and anr. -vs- Jagjit Singh and anr. Rep orted in (1995) 1 SCC 745, in the following words: \8. We are of the opinion that the basis or the principle, if it can be called o ne, on which the writ petition has been allowed by the High court is unsustainab le in law and indefensible in principle. Since we have come across many such ins tances, we think it necessary to deal with such pleas at a little length. Genera lly speaking, the mere fact that the respondent authority has passed a particula r order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. T he order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed i n the case of the petitioner. If the order in favour of the other person is foun d to be contrary to law or not warranted in the facts and circumstances of his c ase, it is obvious that such illegal or unwarranted order cannot be made the bas is of issuing a writ compelling the respondent authority to repeat the illegalit y or to pass another unwarranted order. The extraordinary and discretionary powe r of the high Court cannot be exercised for such a purpose. Merely because the r espondent authority has passed one illegal/unwarranted order, it does not entitl e the High Court to compel the authority to repeat the illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done acco rding to law- indeed, wherever it is possible, the Court should direct the appro priate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent authority to repeat the il legality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such please would be prejudicial to the interests of law and w ill do incalculable mischief to public interest. It will be a negation of law an d the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar reli ef can be given to the petitioner if it is found that the petitioners’ case is s imilar to the other persons’ case. But then why examine another person’s case in his absence rather than examining the case of the petitioner who is present bef ore the Court and seeking the relief. Is it not more appropriate and convenience to examine the entitlement of the petitioner before the Court to the relief ask ed for in the facts and circumstances of his case than to enquire into the corre ctness of the order made or action taken in another person’s case, which other p erson is not before the case nor is his case. In our considered opinion, such a course - barring exceptional situations -would neither be advisable nor desirabl e. In other words, the High Court cannot ignore the law and the well-accepted no rms governing the writ jurisdiction and say that because in one case a particula r order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and lega l, in accordance with relevant legal principles. The orders and actions of the a uthorities cannot be equated to the judgments of the Supreme Court and High Cour ts nor can they be elevated to the level of the precedents, as understood in the judicial world. (What is the position in the case of orders passed by authoriti es in exercise of their quasi-judicial power, we express no opinion. That can be dealt with when a proper case arises)\ (Emphasis is added)

23. Because of what have been discussed and pointed out above, while the wr it petition, namely, WP(C) No. 1922/2009, is dismissed, the writ petition, namel y, WP(C) No. 748/2009, is hereby allowed and the State respondents, particularly , the DRDA, is hereby directed to act upon the list, which has been forwarded to Block Development Officer by the Secretary, Muktapur Gaon Panchayat, by letter, dated 17-11-2008, aforementioned.

24. tand disposed of. With the above observations and directions, these writ petitions shall s

25. No order as to costs.