IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 338 of 2007. Reserved on: 11.01.2008. Decided on: 25.02.2008. Gram Panchayat, Gondpur Jai Chand, Una. … Petitioner. Versus State of Himachal Pradesh & Others. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner: Mr. Subhash Sharma, Advocate. For the Respondents: Mr. R.K. Bawa, Advocate General with Mr. M.A. Khan and Ms. Meenakshi Sharma, Deputy Advocate Generals. Rajiv Sharma, Judge: The brief facts necessary for the adjudication of this petition are that a sum of Rs.2 lacs was sanctioned by the respondent No.3 for the repair of the main road (Gali) vide communication dated 29.9.2005. The work was to be undertaken by the petitioner-Gram Panchayat. However, vide communication dated 19.6.2006, the work was proposed to be got executed through respondent No.4. It appears from the pleadings that a sum of Rs.40,000/- was released in favour of the petitioner-Panchayat on 9.6.2006. The Gram Panchayat immediately after the issuance of letter dated 19.6.2006 whereby the executing agency was changed passed a Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - resolution on 24.6.2006 vide which a clarification was sought whether the H.P.PWD was competent to execute the work worth Rs.3 lacs in the Gram Panchayat. The respondent No.3 sent two communications to the Gram Panchayat on 27.6.2006 and 19.7.2006 impressing upon it to refund a sum of Rs.40,000/- which was released to it by way of first installment for undertaking the repair work of the main gali. The petitioner-Panchayat passed a resolution on 24.7.2006 informing the respondent No.2 that the Panchayat was competent to execute the works worth Rs.3 lacs. The petitioner-Panchayat also passed a resolution on 24.1.2007 whereby a decision was taken to approach the Court for the redressal of its grievance. A legal notice was also served upon the State functionaries on 27.1.2007 highlighting therein that as per Chapter XIII, Technical & Operational Guidelines regarding Construction and other Development Works, all works costing upto Rs.3.00 lacs were to be executed only through the agency of Gram Panchayat and only in case of refusal by the Gram Panchayat to execute such work, that work could be executed departmentally. In compliance to letter dated 19.6.2006, the Block Development Officer, i.e. respondent No.3 has sent communication to respondent No.4 informing him to execute the work, i.e. R/O Main Road (Gali) in village Gondpur Jai Chand, Gram Panchayat, Gondpur Jai Chand, District Una. Mr. Subhash Sharma had strenuously argued that once the sanction has been accorded to the petitioner-Panchayat on 29.9.2005, the executing agency could not be changed and the work could not be allotted to the H.P.,PWD vide communication dated 19.6.2006 and 17.2.2007. He further contended that the work in question could only be executed through the agency of Gram Panchayat as per the Himachal Pradesh Panchayati Raj Act, 1994 (Amended upto March 2006) and the Rules framed thereunder as well as Himachal Pradesh Panchayati Raj - 3 - (Finance, Budget, Accounts, Audit, Works, Taxation and Allowances) Rules, 2002 upto the tune of Rs.3 lacs. Mr. Sharma also contended that no reason has been assigned why the work which was earlier sanctioned in favour of the petitioner-Panchayat has been abruptly entrusted to the H.P.,PWD. The learned Advocate General with Mr. M.A. Khan and Ms. Meenakshi Sharma, Deputy Advocate Generals have supported the decision dated 19.6.2006 read in conjunction with letter dated 17.2.2007. Mr. Bawa also contended that the decision to allot the work in question to the H.P., PWD was taken for expert and speedy execution of the work. I have heard the learned counsel for the parties and perused the record carefully. It will be apt to take note of certain constitutional as well as statutory provisions before adverting to the merits of the case. An amendment was carried out whereby Part-IX was inserted in the Constitution by way of 73rd Amendment Act, 1992. It will be pertinent to quote in its entirety the statement of objects and reasons for carrying out the 73rd Amendment, which reads thus: “Though the Panchayati Raj Institutions have been in existence for along time, it has been observed that these institutions have not been able to acquire the status and dignity of viable and responsive people’s bodies due to a number of reasons including absence of regular elections, prolonged supersessions, insufficient representation of weaker sections like Schedule Casts, Scheduled Tribes and women, inadequate devolution of powers and lack of financial resources. 2. Article 40 of the Constitution which enshrines one of the Directive Principles of State Policy lays down that the State shall take steps to organise village panchayats and endow them with such powers and authority as may be - 4 - necessary to enable them to function as units of self- government. In the light of the experience in the last forty years and in view of the short-comings which have been observed, it is considered that there is an imperative need to enshrine in the Constitution certain basic and essential features of Panchayati Raj Institutions to impart certainty, continuity and strength to them. 3. Accordingly, it is proposed to add a new Part relating to Panchayats in the Constitution to provide for among other things, Gram Sabha in a village or group of villages; constitution of Panchayats at village and other level or levels; direct elections to all seats in Panchayats at the village and intermediate level, if any, and to the offices of Chairpersons of Panchayats at such levels; reservation of seats for the Scheduled Castes and Scheduled Tribes in proportion to their population for membership of Panchayats and office of Chairpersons in Panchayats at each level; reservation of not less than one-third of the seats for women; fixing tenure of 5 years for Panchayats and holding elections within a period of 6 months in the event of supersession of any Panchayat; disqualifications for membership of Panchayats; devolution by the State Legislature of powers and responsibilities upon the Panchayats with respect to the preparation of plans for economic developments and social justice and for the implementation of development schemes; sound finance of the Panchayats by securing authorisation from the State Legislatures for grants-in-aid to the Panchayats from the Consolidated Fund of the State, as also assignment to, or appropriation by, the Panchayats of the revenues of designated taxes, duties, tolls and fees; setting up of a Finance Commission within one year of the proposed amendment and thereafter every 5 years to review the financial position of Panchayats; auditing of accounts of the Panchayats; powers of State Legislatures to make provisions with respect to elections to Panchayats under the superintendence, direction and control of the chief electoral officer of the State; application of the provisions of the said - 5 - Part to Union territories; excluding certain States and areas from the application of the provisions of the said Part; continuance of existing laws and Panchayats until one year from the commencement of the proposed amendment and barring interference by courts in electoral matters relating to Panchayats.” Article 243-B enunciates that there shall be constituted in every State, Panchayat at the village, intermediate and district levels. Article 243-C provides for the composition of the Panchayat. Article 243-G deals with the powers, authority and responsibility of Panchayats. The Legislative Assembly of Himachal Pradesh has enacted the Act called the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the Act for brevity sake). Section 11 provides for the functions to be discharged by the gram panchayats. Item No.3 of Schedule-I deals with construction and maintenance of village paths etc. Item No.13 of Schedule-II deals with roads, culverts, bridges etc. The State has also framed rules called the “Himachal Pradesh Panchayat Raj (Finance, Budget, Accounts, Audit, Works, Taxation and Allowances) Rules, 2002 under Section 186 of the Himachal Pradesh Panchayat Raj Act, 1994. Chapter XI of these rules deals with Panchayati Raj Public Works Rules. The manner of execution of works by the gram panchayats is provided under Rule 93. Rule 94 provides for the preparation of estimates and Rule 95 deals with administrative approval and technical sanction. Rule 96 provides for awarding of works and signing of agreements etc. Mr. Subhash Sharma had also drawn the attention of the Court to Chapter XIII (Technical & Operational Guidelines Regarding Construction & Other Developmental Works) to be carried out by the gram panchayats. The relevant text of the same reads thus:- “1. MODE OF EXECUTION 1.1 Executing Agency - 6 - In order to ensure participation of local people and elimination of contractors, it has been decided that all works costing upto Rs.3.00 lacs will be executed only through Gram panchayats. However, technically complex works, which require specific structural designing and close technical supervision (e.g. bridges with large spans, RCC frame structure, multi-storeyed buildings lift irrigation schemes), may be executed departmentally. Technically simple works costing more than Rs.3.00 lacs also can be executed through Panchayats with the approval of Directorate. It is clarified that the contractors shall not be engaged under any circumstances. If due to any specific reasons, it is not possible to get the work executed through Panchayat or if the Panchayat does not want to undertake any particular work, the work should preferably be got executed through the User Groups (such as Yuvak Mandals, Mahila Mandals etc.). If even User Groups are unable to undertake the works, such works can be executed departmentally. Works will not all be got executed through any private person(s). Elected Panchayat will not be ignored. If the BDO is of the opinion that in case of a particular Panchayat, its Pradhan or its members have indulged in defalcation of Government money in the past or have persistently failed in the discharge of its duties or execution of works given in the past, strict action under the provisions of H.P. Panchayat Raj Act, 1994 or as per earlier agreements should be initiated. In the absence of any such prima-facie credible grounds, Panchayat cannot be by- passed.” - 7 - It is in this back-drop that the present lis is to be adjudicated upon on the basis of the rival submissions made by the learned Advocates. The work in question, i.e. repair of main gali was entrusted to the petitioner-Panchayat and a sum of Rs.40,000/- was also released by way of first installment to enable the Gram Panchayat to undertake the necessary repair work of the gali. A sum of Rs.2.00 lacs could only be sanctioned after the estimate had been prepared by the Panchayat and administrative approval has been obtained by it from the competent authority. The Gram Panchayat was always ready and willing to execute the work as is evident from the first resolution passed by the Gram Panchayat on 8.3.2006. The respondent No.2 has abruptly decided to get the work executed by the agency of H.P.,PWD (B&R) vide communication dated 19.6.2006. The Court had directed the respondents on 9.1.2008 to produce the entire record to enable the Court to see whether any reasons were assigned while changing the executing agency or not. I have gone through the entire record with the assistance of the learned counsel appearing on behalf of the parties, but did not come across any noting whereby the decision was taken abruptly to change the executing agency from petitioner-Panchayat to H.P.,PWD(B&R). The whole-some principal for inserting Part-IX in the Constitution was to strengthen the Panchayati Raj institutions at the grass root level. Chapter-IX deals with constitution and the functions to be discharged by the gram panchayats. The Legislative Assembly of Himachal Pradesh has enacted the Act called the Himachal Pradesh Panchayati Raj Act, 1994. It is one of the functions of the Panchayat to maintain the relevant registers etc. To ensure transparency and accountability the manner in which the funds of the Gram Panchayat are to be utilized, the State has enacted the Rules called the Himachal Pradesh Panchayati Raj (Finance, Budget, Accounts, - 8 - Audit, Works, Taxation and Allowances) Rules, 2002. It appears from these rules that detailed procedure has been given the manner in which the funds of the Panchayat are to be maintained, utilized and audited. Rule 93 in particular deals with the manner of execution of works and Rule provides for preparation of estimates as noted above. There is a detailed procedure provided under Rule 95 which deals with administrative approval and technical sanction. Once a sum of Rs.2.00 lacs was sanctioned vide communication dated 29.9.2005 and out of this amount a sum of Rs,.40,000/- was released in favour of the gram Panchayat, it presupposes that the codal formalities under the law have been undergone by the Gram Panchayat in consultation with the State functionaries. Since the work had been allotted to the Gram Panchayat, the same was required to be executed through the agency of the Gram Panchayat alone. It was only if the State Government was not satisfied with the execution of the work, the same could be entrusted to some other agency, that too, by assigning cogent reasons. In the present case, no reasons could be spelt out either from the two communications, dated 19.6.2006 as well as dated 17.2.2007. The only explanation which has come in the reply is that the executing agency was changed for the speedy and expert execution of the work in the larger public interest. This explanation, in view of the discussion made hereinabove cannot be accepted. The Panchayati Raj Institutions are to be strengthened and encouraged to discharge their constitutional and statutory duties as enshrined under the Constitution of India, Himachal Pradesh Panchayati Raj Act, 1994 and the Rules framed thereunder. The Gram Panchayat has passed two resolutions bringing to the notice of the State functionaries that it was within the sole jurisdiction of the Gram Panchayat to execute the work, but the Gram Panchayat did not receive any communication from the State functionaries. The legal - 9 - notice served upon the State functionaries on 27.1.2007 did not yield any fruitful result. It is also evident from the contents of Technical and Operational Guidelines Regarding Construction and Other Development Works as quoted hereinabove that the works costing upto Rs.3.00 lacs are to be executed only through Gram Panchayats. The underlying principle for entrusting the work to the gram panchayats is to exclude/eliminate the contractors from executing the works. It is only if it is not possible to get the work executed through panchayats due to any specific reason or if the gram Panchayat does not want to undertake any particular work, in that eventuality, the work can be got executed through the User Groups (Yuvak Mandals and Mahila Mandals). If even the User Groups are unable to execute the work, such work can be executed departmentally. In the present case the gram Panchayat was ready and willing to execute the work after a sum of Rs.2.00 lacs was sanctioned in its favour on 29.9.2005. The learned Advocate General has drawn the attention of the Court to communication dated 20.4.2007 sent by respondent No.4 to respondent No.2 informing him that the work allotted has been completed. There is no complaint/misconduct brought to the notice of the Court by any office bearer or member of the Gram Panchayat during the course of hearing. In the absence of any misconduct or any complaint with regard to defalcation and loses of the funds by the gram Panchayat, the work was required to be got executed from the petitioner-gram Panchayat instead of allotting it to H.P., PWD. Even though the work has been completed by the agency of H.P., PWD during the course of hearing of this petition, it will be in the larger - 10 - public interest to issue the following mandatory directions to the respondents:- i) The respondents are directed to ensure that once a work has been entrusted to the Gram Panchayat, the same is to be executed and completed by the Gram Panchayat concerned and in no eventuality, the same will be withdrawn and entrusted to any other agency without assigning any cogent reasons; ii) The respondents while entrusting the work to the Gram Panchayats will ensure the compliance of the H.P. Panchayati Raj (Finance, Budget, Accounts, Audit, Works, Taxation and Allowances) Rules, 2002 for maintaining transparency and accountability while executing the public works by the Panchayati Raj Institutions; and iii) The functionaries of the State must ensure that the Panchayati Raj Institutions are strengthened and their jurisdiction and powers are not diluted in any manner. This Court does not approve the manner in which the work has been taken away from the petitioner-Panchayat and entrusted to H.P., PWD. However, no mandamus can be issued to the respondent since the work has already been executed, but in future, the respondents will be bound by the instructions issued hereinabove for the purpose of executing the public works in the Gram Panchayats. No order as to costs. February 25, 2008. (Rajiv Sharma) (sck). Judge.