WP(C) 4998/2010 BEFORE THE HON’BLE MR JUSTICE T VAIPHEI This batch of 30 writ petitions virtually involving identical facts and a common of question of law were heard together on 11-11-2010, and are now being dispose d of by this common judgment. In all these petitions, the grievances of the peti tioners are directed against the decision of the State-respondents to entrust th e task of identifying the beneficiaries for the scheme under Mukhiya Mantrir An na Suraksha Yojana, 2010 ( MMASY for short) to a Selection Committee constitute d by them and not to Gaon Sabha and Gaon Panchayats constituted under the Assam Panchayat Act, 1994. As the facts in all the writ petitions are somewhat identic al, it is not necessary to deal with individual cases separately. Suffice it to refer to the facts in W.P.(C) No. 4543 of 2010., which are illustrative of the m aterial facts in the remaining writ petitions, for deciding the controversy: thi s decision will then automatically govern and decide the remaining 29 writ petit ions. 2. In WP(C) No. 4543 of 2010, all the petitioners are Gaon Panchayats estab lished under Section 5 of the Assam Panchayat Act, 1994 ( the Panchayat Act for short) falling within the Pachim Mangaldai Development Block and are represente d by their respective elected Presidents. The petitioner No. 1 is the Aula Chowk a Gram Panchayat with a population of 12,000, while the petitioner No. 2 is the Jaljali Gaon Panchayat having a population of 10,500. The petitioner No. 3 is th e Dahi Gaon Panchayat with a population of 11,500, while the petitioner No. 4 is the Janaram Chowka Gaon Panchayat having a population of 11,000. Similarly, the petitioner No. 5 is the Rangmati Gaon Panchayat with a population of 13,000. Al l the petitioners admittedly belong to the opposition political party. It is the case of the petitioners that under the provisions of the Act, various functions are assigned to the Gaon Panchayat such as mobilizing voluntary labor and contr ibution in kind and cash for the community welfare programmes and identification of beneficiaries for the implementation of development scheme pertaining to vil lages, which are implemented by them through Gaon Sobha. The Gaon Panchayats are discharging their duties on the recommendations of their respective Gaon Sobhas , and identification of the beneficiaries for various schemes are also done by t hem on the suggestions of the Gaon Sobhas. It is also the case of the petitioner s that the devolution of activities concerning the public distribution systems a mong the various Panchayats has also been reiterated by a Gazette Notification p ublished in the Assam Gazette Extraordinary, dated June 25, 2007. By this Notifi cation, it has been made clear that the selection of beneficiaries for various s chemes shall be done by the Gaon Panchayat and accordingly all the Gaon Panchaya ts headed by the petitioners have been identifying and selecting the list of ben eficiaries for various schemes till today in consultation with their respective Gaon Sobhas: at no point of time was there any complaint made against the petiti oners from any quarter in the identification exercises carried out by them. 3. It is the further case of the petitioners that the Government of Assam has recently introduced the MMASY scheme for the economically backward fa milies who could qualify for inclusion in the BPL (Below Poverty Line) category, but due to the norms prescribed by the Government of India, have remained depri ved of the benefits of such BPL scheme. This scheme was proposed to be implement ed from 15-8-2010 by the Food and Civil Supplies and Consumer Affairs Department through Public District System (PDS) network. In furtherance of this scheme, th e Principal Secretary to the Government of Assam, FCS & CA Department issued the Notification No. FSA-42/2010 dated 18-6-2010 constituting the Selection Committ ee for different Block Development Officer of Darrang District for the purpose o f selection of the beneficiaries in accordance with the Guidelines of the State Government for providing 10 Kgs. of subsidized rice at BPL rates to the poorest of the poor families from the lower strata of the APL (Above Poverty Line) categ ory who were thus left out of the BPL category. As per the said Guidelines, sele ction of beneficiaries is to be done by the Notified Selection Committee, which comprises of the Block Development Officer of the area as the Chairman with thre e Members, one of whom will be one PRI (Panchayati Raj Institution) member and t wo Social Workers, one of whom will be a woman. By the same Notification dated 1 8-6-2010, Committee for Pachim Mangaldai Development Block was constituted with the following: 1. BDO Pachim Mangaldai --- Chairman 2. Smt. Anupama Kalita, President, --- Member Chapoi G.P. 3. Yunus Ali --- Member 4. Lakhan Saharia --- Member 4. It is alleged by the petitioners that all the 3 Members of this Selectio n Committee belong to the ruling Congress Party: Smt. Anupama Kalita was elected as Chapoi Gaon Panchayat on Congress ticket while Shri Yunus Ali is an active m ember of Darrang District Congress Committee. Similarly, Shri Lakhan Saharia is the President of Darrang Congress Kishan Morcha. The contention of the petitione rs is that the task of selecting the beneficiaries for MMASY and other schemes m eant for the economically backward families is entrusted by the provisions of th e Act upon Gaon Sobhas and Gaon Pachayats and the impugned notification constitu ting the Selection Committee with members of the ruling party is in contraventio n of Sections 4 and 19 of the Panchayat Act. It is also contended by the petitio ners that the device adopted by the State-respondents in selecting the members f or the said Selection Committee is not only illegal but is also done to ensure s election of the beneficiaries on purely political consideration. The impugned ac tion has also deprived the petitioners of their legitimate functions to select t hose beneficiaries under the Panchayat Act and is therefore, discriminatory, arb itrary, mala fides, unjust, unfair and unreasonable. Hence, this writ petition s eeks the intervention of this court for safeguarding the legitimate functions an d powers of the Gaon Panchayats. 5. The writ petition is opposed by the State-respondents. As desire d by the learned Additional Advocate General, the affidavit-in-opposition filed by State-respondents in W.P.(C) No. 4767 of 2010 is treated as the common affida vit-in-opposition for all the writ petitions. Shorn of unnecessary details, the case of the State-respondents is that the MMASY scheme is the outcome of the Bud get Speech, 2010-11 made by the Hon’ble Chief Minister on the floor of the Assem bly. Under this scheme, 10 Kgs of Grade ’A’ rice are intended to be provided to each of the selected 13 lakhs poor beneficiary families of the lowest strata of the APL and other families every month at the rate of ‘6/- per Kg. The scheme is meant to provide food security to the deprived families, who, but for the up-gr adation of Government of India guidelines on poverty identification, would have been included in the BPL category. 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 mother stat ute 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. 6. The Constitution of India envisages the establishment of Panchayati Raj Institutions in rural areas to provide institutions of self- government at the g rass root level and to give these institutions continuity, certainty and strengt h. In fact, this is the mandate of the Directive Principles of the State Policy. Article 40 of the Constitution, which is fundamental to the governance of this country, says that the State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. Part IX of the Constitution containing Ar ticles 243 to 243-O has been inserted by the Constitution (Seventy-third Amendme nt) Act, 1992 to make constitutional provisions for setting up institutions of s elf-government in rural areas to be called Panchayats. Article 243-B deals with the constitution in every State of Panchayats at the village, intermediate and district levels. Article 243-C provides for the composition of Panchayats, while Article 243-D prescribes reservation of seats for Scheduled Caste and Scheduled Tribes in every Panchayat. Article 243-E fixes the tenure of Panchayats, while Article 243-F prescribes the conditions for disqualification of membership of th e Panchayats. Then there is Article 243-G, which is the meat of the matter here and is engrafted in the following terms: 243-G. Powers, authority and responsibilities of Panchayats.? Subject to th e provisions of the Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisi ons for the devolution of powers and responsibilities upon Panchayats, at the ap propriate level, subject to such conditions as may be specified therein, with re spect to? (a) the preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justic e as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. 7. Thus, under Article 243-G of the Constitution, the State Legisla tures, subject to the provisions of the Constitution and also subject to such co nditions as may be specified therein, may, by law, devolve upon the Panchayats p owers and responsibilities at the appropriate levels concerning the preparation of plans for economic development and social justice and the implementation of s chemes for economic development and social justice as may be entrusted to them i ncluding those in relation to the matters listed in the eleventh Schedule. In vi ew of the aforesaid Amendment of the Constitution, it became necessary to amend and consolidate the existing laws relating to Panchayats in Assam. Consequently, the Legislative Assembly of Assam enacted The Assam Panchayat Act, 1994 ( Pan chayat Act for short). The Panchayat Act also envisages the constitution of Zil la Prasad at the district levels, Anchalik Panchayats at the intermediate level and Gaon Panchayat at the village level. It may be noted that the subjects, name ly, poverty alleviation programme and public distribution system are enumer 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 Gram Panchay at . 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: (8) Functions ? The Gaon Sabha shall perform the following functions namely ? (a) mobilizing voluntary labor and contribution in kind and cash for the Com munity Welfare Programmes; (b) identification of beneficiaries for the implementation of development sc heme pertaining to the villages: *** The rest omitted as irrelevant *** 8. Coming now to the provisions dealing with Gaon Panchayats in the Panchay at Act, Sections 19, 21 and 22 which are the relevant provisions, say: 19. Functions of Gaon Panchayat.? Subject to such conditions as may be spec ified by the Government from time to time, the Gaon Panchayat shall perform the functions specified below- *** Omitted as irrelevant *** XII. POVERTY ALLEVIATION PROGRAMME (1) Promotion of public awareness and participation in implementation of pov erty alleviation programme for fuller employment and creation of productive asse ts for the community. (2) Selection of beneficiaries under various programmes including IRDP throu gh Gaon Sabha. (3) Participation in effective implementation of various schemes and monitor ing thereof. *** Omitted as irrelevant *** XXII. PUBLIC DISTRIBUTION SYSTEM ? (1) Promotion of public awareness with regard to the distribution of essenti al commodities. (2) Monitoring the public distribution system including keeping sharp vigila nce to ensure full and equitable distribution of essential commodities allotted by the State Government. *** Rest omitted as irrelevant *** 21. General Powers of Gaon Panchayat.? A Gaon Panchayat shall have powers t o do all acts necessary for or incidental to the carrying out of the functions e ntrusted, assigned of delegated to it and, in particular, and without prejudice to the foregoing powers, to exercise all powers specified in this Act. 22. Standing Committees.? (1) Every Gaon Panchayat shall constitute the fo llowing Standing Committees by election from amongst the elected members of the Gaon Panchayat? (i) development committee for performing functions relating to agricultural production, animal husbandry and rural industries and poverty alleviation pro grammes; (ii) *** Omitted as irrelevant **** (iii) Social welfare committee to perform functions in respect of education, p ublic health, public works and other functions of the Gaon Panchayat. *** Rest omitted as irrelevant *** 9. The first question which falls for consideration in this writ pe tition is whether the selection of beneficiaries belonging to APL category under MMASY for subsidized rice is the exclusive function of the Gram Panchayat? It i s the contention of Mr. H.R.A. Choudhury, the learned senior counsel for the pet itioners, that the provisions extracted above clearly indicate that the Gram Pan chayats are constitutionally and statutorily guaranteed the power to select bene ficiaries for any scheme launched by the Government for the economic development of the villagers including IRDP and MMASY: this is in consonance with the legis lative intention of Parliament in enacting Part IX of the Constitution to meet o ne of the Directive Principles of State Policy enshrined in Article 40. Accordin g to the learned senior counsel, identification of genuine persons to be the ben eficiaries under the MMASY scheme is a onerous task, which can be effectively do ne only by Gram Panchayats on the recommendation of the Gaon Sabha, who have per sonal knowledge about the true economic conditions of persons residing within th eir territorial jurisdictions. 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. 11. Mr. K.N. Choudhury, the learned Additional Advocate General, appearing f 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, Subject to the general order s of the Government and Subject such conditions as may be specified by the Gov ernment from time to time 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 ( PDS )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: 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, no interference by other organs of the State, including judiciary, etc. In our opinion, however, the High Court was right in observing that a District Panchay at cannot arrogate to itself the status of a body as independent or autonomous a s a Province in a Federation . Part IX of the Constitution or Article 243-G make s no