The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.2991 of 2023 Kalpana Jena, Wife of Judhisthir Jena of village Mahanga Pada, P.O.- Anlo, P.S.- Niali, Dist-Cuttack, Sarpanch of Anlo GramPanchayat, Niali. …. Appellant Mr. Sukanta Kumar Dalai, Advocate -versus- …. Respondents 1. State of Orissa represented through the Secretary to Government, Department of Panchayati Raj and Drinking Water, Lokseva Bhawan, Bhubaneswar, Dist. Khurda. 2. Collector, Cuttack, At/P.O/Dist - Cuttack. 3. Project Director, DRDA, Cuttack, At/P.O./Dist. -Cuttack. 4. Sub-Collector, Cuttack, At/P.O./ Dist- Cuttack. 5. District Panchayat Officer, Cuttack, At/P.O/.Dist- Cuttack. 6. Ullash Kumar Sethi, Block Development Officer, Niali, At/P.O. -Niali, Dist-Cuttack. 7. Asst. Engineer, Niali Block, At/P.O-Niali, Dist-Cuttack. 8. Sagar Mallick, J.E, Niali Block, At/P.O-Niali, Dist-Cuttack. 9. Pramod Mallik, MLA, Niali Assembly Constituency, At/P.O.-Niali, Dist- Cuttack.
Legal Reasoning
Mr. L. Samantaray, A.G.A. CORAM: THE CHIEF JUSTICE MISS JUSTICE SAVITRI RATHO Page 1 of 9 Order No.
Decision
ORDER 24.07.2024 06. This matter is taken up through Hybrid mode. 2. The appellant in the present intra-court appeal is the Sarpanch of Anlo Gram Panchayat under Niali Police Station in the District of Cuttack. She filed a writ petition before this Court registered as W.P.(C) No.20133 of 2023 seeking following reliefs: “(i) The opposite parties more especially opposite party no.6 to 8 be directed to allow the Gram in independently strictly Panchayat consonance with the mandates of the Constitution. function to (ii) The opposite parties 6 to 8 be directed to assist the Gram Panchayat in discharging their duties in terms of the statutory provisions and resolutions of the Gram Panchayat. (iii) The action of the opposite parties more especially opposite party no-6 & 8 be declared as bad in law with appropriate direction to act accordingly.” 3. A learned Single Judge of this Court, after having considered the averments made in the writ petition and in the counter affidavit filed on behalf of the State-opposite parties, and after having taken into account the rival submissions made on behalf of the appellant and the State, has dismissed the writ petition by the impugned judgment dated 02.11.2023. 4. Learned Single Judge, in the impugned judgment has taken aid of the allegations made in the writ petition so as to connect the nature of relief which the appellant was seeking, as the relief portion was found to be patently vague. Page 2 of 9 5. The allegations in the writ petition in paragraphs 9 and 10 were to the effect that though certain development works (five in number) had been completed by the Gram Panchayat in accordance with law, but because of non-cooperation of respondent No.8, who was posted as Junior Engineer of the Niali Block, the payments had not made, and despite repeated resolutions of Panchayat for such payments, which were communicated to the Block Development Officer, Niali; AEE, Niali; Project Director, DRDA; Collector; Secretary to Panchayat Raj and also the 5T Secretary, no steps were being taken for payment. 6. We have heard Mr. S.K. Dalai, learned counsel appearing on behalf of the appellant and Mr. L. Samantaray, learned Additional Government Advocate representing the State-respondents. 7. Mr. Dalai, learned counsel with his usual vehemence has referred to the grounds taken in the present memo of appeal which read thus: “A. For that the judgment dtd.2.11.2023 in W.P.(C) No.20133 of 2023 is wrong, perverse, illegal, unjust and contrary to the constitutional mandates and statutory provisions. B. For that the aforesaid order has been delivered without application of judicial mind and by way of misread and misinterpretation of both constitutional and statutory provisions. C. For that the inconsistent view taken by the Hon’ble Single Judge is against law of parity which has to be interfered by this Hon’ble Court. D. For that while considering the writ petition, the Hon’ble Single Judge has not considered the authority of the order and also the Hon’ble Single Page 3 of 9 Judge has not examined both in statutory and constitutional provisions. E. For that, on mere reading of the contents of Para-3 it appears in confirmatory to the interim order passed by this Hon’ble Court, the prayer of the petitioner has been allowed. the petitioner has given F. For that, peculiarly while doing so the Hon’ble Single Judge with an aggressive manner has taken into consideration the averments of the writ petition, where few examples regarding interference of the District Administration more especially Respondents No.6 to 8 and took a very negative view and has dismissed the writ petition. Hence, this present writ appeal. G. For that, the Hon’ble Single Judge while doing so has ignored not only the judicial discipline but also order has been passed without sanction of law which has to be interfered with to prevail rule of law. H. For that, the Hon’ble Single Judge while doing so has travelled beyond the prayer of the petitioner and while allowing the prayer of the petitioner has dismissed the writ petition, accordingly cause interference of this Hon’ble Court. I. For that, the Hon’ble Single Judge has ignored the admission of the opposite parties the works in question have been completed by the Govt. officials and the order is silence on to that effect. J. For that, the same humiliation the appellant has faced by approaching before this Hon’ble Court. K. For that, the order of Hon’ble Single Judge is wrong, illegal, perverse and contrary to the settled principles of Law.” 8. He has further argued, referring to the statement made in paragraph-6 of the present intra-court appeal that though the Gram Panchayat had taken up a number of development works, Page 4 of 9 respondents No.6 and 8 have been interfering with the works of the Gram Panchayat and they have been insisting the appellant to join BJD and also approach the local MLA. The MLA had also suggested her to constitute ten-member committee consisting of six MLAs and four Gram Panchayats including the Sarpanch, whereafter only the development-works would be allowed to be completed. He has submitted that with the incorporation of provisions under Odisha Grama Panchayats Act, 1964 (“the Act”, in short) in terms of Article 243-G of the Constitution, the Panchayats have been endowed with requisite power and authority to enable them to function as the institutions of the self-governance which includes inter alia preparation for plans for economic development and social justice and implementation of such schemes as may be entrusted to them including those in relation to the matters listed in the 11th Schedule. He has argued that respondents No.6 to 8, who have no authority, have been unnecessarily interfering with the functioning of the Panchayat, which warrants this Court’s interference. 9. A counter affidavit was filed in the writ proceeding sworn by Ullash Kumar Sethi, the Block Development Officer, Niali stating specifically that during the Financial Year 2022-23, development works have been undertaken against various schemes worth Rs.50.38 lakhs by the Panchayat Samiti, Niali. Besides other developmental schemes, the works, such as rural water supply, sanitation work, Swachh Bharat Mission and construction of Anganwadi Centre building and ongoing 31 number of projects under MGNREGS at Anlo Gram Panchayat have been executed. As regards the projects which the appellant claimed to have executed Page 5 of 9 against which the payments were not being released, the respondents took specific plea in the counter affidavit that the same were executed without any plan and estimate of concerned Junior Engineer and technical sanction of the Assistant Executive Engineer as well as administrative approval of the Sarpanch. The appellant did not follow the requirements under Rules 15, 16, 19 and 20 of the Odisha Grama Panchayat Rules, 2014 (“the Rules”, in short) because of which, the said works were not measured for preparation of the bills. They denied the allegation of mala fides and non-cooperation. The deponent further stated in the counter affidavit, as regards the projects in dispute, that on submission of records by the Gram Panchayat for execution of the said works, respondent No.8 was asked to prepare the plan estimate for execution of the works. However, after physical visit of the proposed worksite, the Junior Engineer (respondent No.8) reported on 24.02.2023 that the works had already been completed without any plan estimate and thus the Junior Engineer expressed his inability to prepare the plan estimate as the work had already been executed and completed without his knowledge and supervision. The deponent reiterated in the counter affidavit that as regards the projects mentioned in the writ petition, the Sarpanch had issued work orders to get the work executed departmentally without any plan estimate, administrative approval and technical sanction of the Assistant Executive Engineer. The work was executed without knowledge and assistance of the concerned Junior Engineer. It was pleaded that before execution of the work, the feasibility, quality, standard of the projects is to be assessed by the concerned Junior Engineer by preparation of plan estimate. Page 6 of 9 10. The appellant filed a rejoinder to the counter affidavit stating therein that respondent No.8, the Junior Engineer is merely an employee of the Gram Panchayat and his duty is confined only to measure the works which have been undertaken by the Gram Panchayat. The appellant also stated in the rejoinder affidavit “if opposite party No.8 has become unruly (sic) then another Junior Engineer can be deputed to serve the Gram Panchayat”. 11. As regards the stand taken by the respondents in the counter affidavit filed in the writ petition regarding approval of the said five projects, the appellant asserted that all the projects had been approved by the Panchayatraj Department and the works had been approved by the Gram Panchayat and estimate had also been made by the Junior Engineer. The appellant alleged that estimate papers had been detached from the office records by respondent No.8 on the way while presenting file before the BDO and returning the same to GP Office. The statements made in the counter affidavit had been termed to be false, in the rejoinder affidavit. The appellant reiterated in the rejoinder affidavit, the nexus of respondent Nos.6 to 8 with the local MLA. Discussion and Conclusion 12. To begin with, we do not at all approve of the language used in the memo of appeal in the grounds, which have been quoted herein above, to assail a judgment passed by learned Single Judge of this Court in the present intra-court appeal. Terming the behavior of the Junior Engineer in the counter affidavit to be ‘unruly’ in the pleadings was wholly unwarranted. We deprecate such conduct of the appellant. Secondly, the allegations of mala fides against Page 7 of 9 respondents No.6 to 9 are not substantiated even prima facie. Rule 15 (1) of the Rules clearly stipulates that Sarapanch or Members of the Gram Panchayat as well as functionaries of Panchayat Samiti and Zilla Parishad and employees of Gram Panchayat shall on no account take up the execution of any work. When the works are executed departmentally under Sub-Rule 2 of Rule 27, responsibilities may be given to the employees for execution of the works as per the guidelines of the respective scheme. Rule 15 (5) of the Rules requires that before drawing up tender notices, the Sarpanch of Gram Panchayat shall consult the authorities mentioned. A Sarapanch is required to consult the Junior Engineer of the Block for works upto one lakh and Assistant Engineer of the Block for works beyond one lakh. The appellant is under patent misconception that the Junior Engineer is an employee under the Gram Panchayat. Junior Engineer of the Block has been assigned functions and duties under the Rules for execution of development works in Gram Panchayat. 13. Learned Single Judge after having duly taken note of the pleadings on record has rightly reached a conclusion that in the absence of substantial material to prove availability of technical sanction and the plan estimate, the appellant’s plea that there was technical sanction and plan estimate could not be accepted. It has been noted hereinabove that the appellant in her rejoinder affidavit in the writ proceeding had taken a plea that respondent No.8 had detached from the file, relevant documents. Learned Single Judge has also noted that the appellant did not specifically respond to the statements made in the counter affidavit as regards availability of Page 8 of 9 technical sanction by the Assistant Executive Engineer as well as the plan estimate of the Junior Engineer before the start of the work. 14. In such view of the matter, the appeal has no merit and is accordingly dismissed. 15. Before we part with the present order, we may indicate that the dismissal of the writ petition and the present intra-court appeal may not be treated as the closed chapter for the works alleged to have been completed by the appellant in breach of the provisions under the Rules. The competent authority shall be at liberty to invoke the power under Section 115 of the Act, if the same is considered desirable. Chief Justice (Chakradhari Sharan Singh) (Savitri Ratho) Judge S.K. Guin/P.A. Signature Not Verified Digitally Signed Signed by: SUBASH KUMAR GUIN Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Aug-2024 15:41:32 Page 9 of 9