W.P.(C) No. 4543 of 2010 · Gauhati High Court

With a view to implement the scheme, the Stat e-respondents have formulated the guidelines stipulating that this special schem e would be done by the Department of Food, Civil Supplies, while the distributio n of the subsidized rice would be done through the PDS network. The (cid:28)mother stat ute (cid:29) that would regulate the effective implementation of the scheme is the Essen tial Commodities Act, 1955 and the control orders framed thereunder. It is reite rated that the scheme is a special scheme designed to provide food security to t he deprived families and the Government took a conscious policy decision to impl ement the scheme through the Department of Food and Civil Supplies. The answerin g respondents assert that MMASY is not a rural development scheme under the prov isions of the Panchayat Act and, as such, reliance placed by the petitioners upo n Section 4(8) and Section 19(XII)(2) and (3) of the Panchayat Act is misconceiv ed.

It is also asserted by the answering respondents that MMASY cannot strictly be construed as a poverty alleviation scheme: it rather is a food security syste m to provide subsidized rice of 10 Kgs per month per family at the rate of ‘6/- per Kg to the targeted group. According to the respondents, the State-respondent s, having regard to impracticability aspect also, does not consider it expedient to directly involve the Gaon Sabha in the process of selection of the beneficia ries of this scheme. The answering respondents emphasize the fact that the schem e, which is not otherwise violative of any constitutional or statutory provision s, is a time-bound programme which is to be implemented between 15-8-2010 and Ma rch, 2011. As the writ petition is devoid of merits, so submits the answering re spondents, the same is liable to be dismissed with costs. These are the sum and substance of the case of the State-resapondents.

It may be noted that the subjects, name ly, (cid:28)poverty alleviation programme (cid:29) and (cid:28)public distribution system (cid:29) are enumera ted in item Nos. 16 and 28 respectively of the Eleventh Schedule to the Constitu tion. In this writ petition, we are primarily concerned with Gaon Panchayat. Cha pter III contemplates the existence of Gaon Sabha, which is defined by Section 2 (1) of the Panchayat Act to mean a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of (cid:28)Gram Panchay at (cid:29). Section 4(1) of the Panchayat Act says, inter alia, that subject to the gen eral orders of the Government, the Gaon Sabha shall consider the following matte rs and may make recommendations and suggestions in the Gaon Panchayats concernin g the report in respect of Development Programme of the Gaon Panchayat relating to the preceding year and development programme proposed to be undertaken during the current year; the promotion of unity and harmony among all sections of soci ety in the villages and such other matters as may be prescribed.

Section 4(2) ma kes it clear that the Gaon Panchayats shall give due consideration to the recomm endations and suggestions of the Gaon Sabha. The functions of the Gaon Sabha are provided for in Section 4(8), which says: (cid:28)(8) Functions ? The Gaon Sabha shall perform the following functions namely ? (a) munity Welfare Programmes; (b) heme pertaining to the villages: mobilizing voluntary labor and contribution in kind and cash for the Com identification of beneficiaries for the implementation of development sc *** The rest omitted as irrelevant ***

The constitution of a separate Committee to the e xclusion of the Gram Panchayats for selection of such beneficiaries is, contends the learned senior counsel, violative of Sections 4 and 19 of the Panchayat Act . The learned senior counsel further points out that there are altogether 11 Gao n Panchayats under Pachim Mangaldai Development Block with a population of over one lakh and submits that the Committee with the composition already noticed und er the guidance of the State Government sitting at Dispur cannot accurately and fairly identify genuine persons eligible for those beneficiaries, more so, when the members of the Committee are selected on the basis of their political affili ation to the ruling party: the State-respondents are indulging in colourable exe rcise of power to deprive the Gaon Panchayats run by the opposition political pa rties of their statutory rights to make the selection of such beneficiaries.

It is vehemently submitted by the learned senior counsel that the Committee constit uted under the impugned guidelines is merely a device evolved by the State Gover nment to circumvent the constitutional and statutory mandate of devolution of mo re powers to the Gram Panchayats and to ensure selection of the beneficiaries pu rely on political considerations to benefit the ruling party and has the effect of destroying the very fabric of Panchayati Raj Institutions in the State and, is, therefore, unconstitutional. He, therefore, urges this Court to quash the im pugned notification to prevent grave public mischief and to safeguard the functi onal autonomy of the Gram Panchayats conferred by the Seventy-third Amendment of the Constitution. The learned counsel appearing for the remaining writ petition ers fully endorse the submissions of the learned senior counsel. While supporti 10. While supporting the contentio ns of the learned senior counsel, Dr.

B. Ahmed, the learned counsel appearing fo r the petitioners in WP(C)No. 5206 of 2010, also contends that Clause 15 of the guidelines provides that where local bodies in rural or urban areas are not in e xistence, the Deputy Commissioner/Principal Secretary shall evolve a suitable me chanism for identification of beneficiaries in an impartial and objective manner , but in Barpeta District where Panchayat and local urban elected bodies are fun ctioning, the constitution of a Committee other than Panchayati Raj Institutions is clearly untenable and illegal. He also submits that in all the schemes launc hed by the Government of India, it is invariably the local Panchayat which imple ments such schemes, but a sharp departure has been made in the case of MMASY in contravention of Section 4(8)(b) the Panchayat Act and Section 22(1)(i) of the P anchayat Act: MMASY being a scheme for poverty alleviation programme, it is the prerogative of the Gram Panchayat to select the beneficiaries on the recommendat ion of the Gram Sabha to the exclusion of other bodies or committees.

It is also submitted by the learned counsel that the impugned circular issued by the Deput y Commissioner on 29-6-2010 and the Notification issued by the Government on 30- 6-2010 are not prescribed by law nor do they have any legal basis thereby warran ting the quashing of the circular/order on this ground alone. Mr. K.N. Choudhury, the learned Additional Advocate General, appearing f 11. or the State-respondents in all the writ petitions, refutes the contentions of t he learned counsel appearing for the writ petitioners and submits that the schem e under MMASY cannot, by its very nature, by any stretch of imagination be const rued to be a poverty alleviation programme. He contends that the opening words o f Sections 4 and 19 of the Panchayat Act, namely, (cid:28)Subject to the general order s of the Government (cid:29) and (cid:28)Subject such conditions as may be specified by the Gov ernment from time to time (cid:29) respectively, clearly indicate that all the statutory prescriptions enumerated therein have to be subordinated to the general orders and conditions as may be specified by the Government from time to time and so re ad, the Government reserves to itself the power to float schemes for bringing ab out and economic justice and economic development of its citizens otherwise than through the Panchayati Raj Institutions.

According to the learned Additional Ad vocate General, the Government in exercise of its powers under Article 162 of th e Constitution read with the aforesaid exceptions carved out in Sections 4 and 1 9 of the Panchayat Act have taken a policy decision to launch MMASY to provide s ubsidized rice to APL category through the Public Distribution System ( (cid:28)PDS (cid:29))on the recommendations of the Selection Committees set up by it: the petitioners ca nnot, therefore, be permitted to contend that the provisions of Section 4(8) and Section 19(XIII)(2) and (3) of the Panchayat Act would override any policy deci sion taken by the Government. He further submits that in any case, as per the gu idelines, the Selection Committee will comprise of an elected representative of Panchayati Raj Institution thereby removing the apprehensions of the petitioners that there would be no transparency in the selection of the beneficiaries of th e scheme: the names of the selected beneficiaries will also be displayed in the notice boards of the offices of the Gram Panchayats/Municipalities by inviting c laims and objections, if any, against the selected beneficiaries by giving seven days’ times for disposal of such claims and objections.

The learned Additional Advocate General maintains that MMASY is conceived under the Essential Commoditi es Act, 1955 and the Control Orders framed thereunder from time to time, which s pecifically requires Family Identity Cards/Ration Cards and the existence of a l icensee/trading agency for implementation of PDS and as the PDS is channelized t hrough GPSS/WCCS/LAMPs as intermediate agencies and Fair Price Shops at the gras s root level: the Gaon Panchayats can at best play a monitoring and awareness ge neration role. These are the sum and substance of the contentions of the learned Additional Advocate General in defending the impugned decisions of the state-re spondents. 12. That the nature of the powers devolved upon the Panchayati Raj Instituti ons by Article 243 cannot be equated with the distribution of powers between the Centre and the States in a federation has been made clear by the Apex Court in Gujarat Pradesh Panchayat Parishad v.

State of Gujarat, (2007) 7 SCC 718 when it said at paragraph 24 of the judgment: (cid:28)24. The argument that the view taken by the High court has destroyed or con siderably eroded constitutional set-up in Part IX of the Constitution has not im pressed us. In our opinion, it cannot be said that interpretation of various pro visions of the Constitution or the Act has disturbed, truncated or adversely aff ected the status of Panchayat guaranteed by the Constitution. Part IX of the con stitution confers certain powers on local self-government. It promises duration of five years, free and fair election, representation of Scheduled Castes and Sc heduled Tribes in the administration of institutions of local self-government, (cid:28) no interference (cid:29) by other organs of the State, including judiciary, etc. In our opinion, however, the High Court was right in observing that (cid:28)a District Panchay at cannot arrogate to itself the status of a body as independent or autonomous a s a Province in a Federation (cid:29).

Part IX of the Constitution or Article 243-G make s no change in the essential feature of the Panchayat organization. What was sou ght to be done by the Seventy-third Amendment was that constitutional status to the local self-government was conferred to District Panchayats, Taluka Panchayat , Taluka Panchayats and Village Panchayats. A State Legislature, in the light of constitutional provisions in Part IX, cannot do away with these democratic bodi es at the local level nor their normal tenure be curtailed otherwise than in acc ordance with law nor can the State Government delay elections of these bodies. (cid:29) (Underlined for emphasis) In other words, it can safely be said that the Panchayati Raj Institutio ns constituted under Article 243-G of the Constitution, unlike State Governments , do not enjoy wide executive powers or plenary powers of legislation nor can it arrogate to itself the status of a body as independent or autonomous as a Provi nce in a federation.

It is true that the subjects of (cid:28)poverty alleviation progra mmes (cid:29) and (cid:28)public distribution system (cid:29) are included in the Eleventh Schedule, fo r which powers, authorities and responsibilities have been devolved upon the Pan chayats under Article 243-G. It must not, however, be overlooked that Section 4 of the Panchayat Act dealing with the powers and functions of Gaon Sabha such as identification of beneficiaries for the implementation of development scheme pe rtaining to the villages is (cid:28)[S]ubject to the general orders of the Government (cid:29). The words (cid:28)subject to (cid:29) is defined by Black’s Law Dictionary, 5th Edn. at p. 127 8 as ’liable, subordinate, subservient, inferior, obedient to; governed or affec ted by; provided; answerable for. Homan v. Employers Reinsurance Corpn.’ As alre ady noticed, all the powers and functions enjoyed by the Gram Panchayats under S ection 19 of the Panchayat Act are subject to such conditions as may be specifie d by the Government from time to time.

The expression (cid:28)subject to (cid:29) conveys the i dea of a provision yielding place to another provision subject to which it is ma de. In Bashiruddin Ashraf v. Bihar Subai Sunni Majlis-Awaaf, AIR 1965 SC 1206, t he Apex Court has an occasion to interpret the expression (cid:28)subject to any order by the competent court (cid:29) under the Bihar Wakfs Act, 1948. Section 34 of the Wakfs Act conferred power upon the Majlis to make temporary appointment in the office of the Mutawalli subject to any order by a competent court. It was contended th erein that the Majlis was not competent to appoint Moulvi on a temporary basis e ven if there was a vacancy without obtaining prior permission of the court. Nega tiving the argument, the top court held: (cid:28)6. The two appeals were heard together. The High Court by a common judgme nt delivered on December 21, 1960 dismissed the appeal of the appellant and acce pted that of Maulvi Md.

Shoeb. In dealing with the appeal of Maulvi Md. Shoeb th e High Court pointed out that S. 32 of the Act was clear in conferring jurisdict ion on Majlis to make temporary appointment when there was a vacancy in the offi ce of the Mutawalli and that the words in that section (cid:28)subject to any order by the competent Court (cid:29) did not mean that there had to be either prior permission o r subsequent assent before the appointment was complete. The High Court rightly pointed out that those words denoted that the appointment was to endure accordin g to its tenor till an order to the contrary was passed by a competent Court. Th is conclusion is so patently correct that we need say nothing more than this. (cid:29)

Therefore, under Section 4, the State Government has the power to take away t hose functions of the Gaon Sabha and Gaon Panchayat as and when it pleases. In m y opinion, as the impugned decision of the State-respondents has now constituted a Selection Committee for identification of the beneficiaries for scheme under MMASY, the powers and functions of the Gaon Sabha and Gaon Panchayat in this beh alf are deemed to have been taken away. The alternative question to be considere d is whether the scheme under MMASY for granting the subsidized rice is a scheme under the poverty alleviation programme or under the public distribution system . In the case of public distribution system, the functions of the Gaon Sabhas an d Gaon Panchayats are limited to promotion of public awareness with regard to th e distribution of essential commodities and of monitoring the public distributio n system including keeping sharp vigilance to ensure full and equitable distribu tion of essential commodities allotted by the State Government.

In other words, identification of beneficiaries for MMASY is not a part of the function of the G aon Panchayat. Similarly, the functions of the Gaon Panchayats in respect of pov erty alleviation programme are concerning fuller employment and creation of prod uctive assets for the community, selection of beneficiaries under various progra mmes including IRDP through Gaon Sabha and participation in the effective implem entation of various schemes and monitoring thereof. True, there may be overlappi ng between the functions and powers given to the Gaon Panchayat and the powers a nd functions of the State Government, but it must be remembered that the relatio nship between the two bodies is not that of Central Government and Provincial Go vernment in a federation wherein both the bodies enjoy wide executive powers and plenary powers of legislation in respect of the functions assigned to each of t hem.

Therefore, in my opinion, the rule of widest interpretation of a subject/en try applicable to the Centre and the States under Constitution cannot be placed upon Section 19(XII) and (XXIII) of the Panchayat Act. Necessarily, the powers a nd functions of the Gram Panchayats shall have to be, and are expressly limited by, the provisions of the Panchayat Act which created them and they can do nothi ng beyond the limits which circumscribe their powers and functions. It is beyond the domain of this Court to enlarge constructively the functions and powers of the Gram Panchayats.

Undoubtedly, the State Government, in exercise of its power under Sect ion 123(2) of the Panchayat Act has the power to alter or delete any of the func tions of the Gaon Panchayats. The scheme and the guidelines of the MMASY have ad mittedly been published in the Gazette notification. In my opinion, the impugned notification has the effect of amending, or, at any rate, by necessary implicat ion, has amended, Section 19(XII) and (XXIII) of the Panchayat Act. Though the S tate-respondents did not mention the provision under which the impugned notifica tion was issued by them, this is hardly of any significance. The law is now well -settled without reference to cases that so long as the impugned power is tracea ble to the statute concerned, mere omission or error in reciting the provision o f law or the correct provision of law does not denude the power of authority to take a statutory action so long as its action is legitimately traceable to a sta tutory power governing such action.

In such cases, this Court will rely on Secti on 114 Ill. (e) of the Evidence Act to draw a statutory presumption that the off icial acts are regularly performed and if satisfied that the action in question is traceable to a statutory power, the court will uphold such State action. As a lready noted, the Gram Panchayats or, for that matter, even Zilla Parishads, can not arrogate to themselves the status of a body as independent and autonomous as a province in a federal set-up.

In the first place, as found by me earlier, Article 243-G of the Constitution an d the Panchayat Act do not indicate in any manner that selection of beneficiari es under MMASY is to be undertaken only by the Gram Panchayats. Therefore, there is no illegality or arbitrariness on the part of the State-respondents in devis ing separate mechanism for identifying the beneficiaries for the scheme under MM ASY. Secondly, to avoid arbitrariness and to ensure transparency in selecting th e beneficiaries of the scheme, the following decisions, among others, were taken by the Group of Ministers in the minutes of their meeting held on 7-7-2010, nam ely, (i) the application for the scheme under MMASY are to be distributed and ac cepted through Gram Panchayat offices apart from Block offices (ii) applications forms on plain paper are also to be accepted at the Gaon Panchayat and Block of fices for consideration if submitted in prescribed format and (iii) the Deputy C ommissioners are required to arrange wide publicity of the scheme by displaying its criteria, inclusion and exclusion lists of beneficiaries: such publicity are being done through Public Address System and in official website of DC office, P&RD Deptt., CEO, Silla Parishad offices.

It was also indicated therein that the Deputy Commissioners should take all possible action to ensure that only eligib le beneficiaries should get benefits of the scheme. Displaying the list of benef iciaries in the notice boards of the officers Gaon Panchayats/Municipalities is one definite way of ensuring transparency in the process of selection of benefic iaries. In addition to that, the minutes of Group of Ministers held on 23-8-2010 clearly stipulates that seven days’ time is to be allowed for filing of claims and objections against the list of beneficiaries. In so far as the composition o f the Selection Committee is concerned, the Block Development Officer, who is th e Chairman of the Committee, has not only the machinery and manpower to help the Committee in identifying the beneficiaries: the resolution adopted by the Group of Ministers on 7-7-2010 also associate the Gram Panchayats in the selection pr ocess.