...ori COURT OF CHHATTIS6ARH AT BILA^UR Writ Pefition No. 1816/2006 COftAM; Hon'ble Shri S.R. Nccyok. CJ &. Hon'ble Shri Ditip Raosaheb Deshmukh, J. Petitioner Respondents Nand Kumar Shukla, aged about 52 years, son of S^ri Ram Khilawan, Secretary, Sarpanch Sangh Vikos Khand, ©underddii, resident of Mediyapar, PO Sikosa, Tahsil Sunderdehi, Distt. C)urg (C.&) Versus State of Chhattisgarh, through - the 5ecretary, Department of Finoncs and Pkinnin9, t>au Kalyan Singh Bhawwn, Chhattisgarh Secretariat, Raipur (Chhaftisgarh) The Secretary, bepnrtment of Pcmdrioyat ond Rurol Development, Dau Kalyon Singh Bhawcsn, Raipur (CG) The Director, Department of Ponchayat ond Rura! Development and Social Welfare, Dau Kalyan Singh Bhawcm, ftaipur (C.6.) Collector, Distt. Durg (C.6.) PeTittoners W.P.No.1693 of 1. O.R.Nureti, S/o Kflttiram Nureti, Aged about 49 years. 2. S.&.Manjhi, 5/o Lachhiram Manjhi, Aged about 48 years. 3. V.N.Netam, S/o Late Shri Sagram Netam, Aged about 49 years. 4. T.P.Shukla, S/o Shri L.L.Shukla, ^ged about 40 years. 5. S.N.Lakshman Rao, 5/b Late Shri &.N.Lakshman Rao, Aged about 52 years. 6. S.K.AAanjhi, S/o Late Shri Narayan Singh Manjhi, Aged about 51 years. A!! the petitioners are working as 5ub- Auditors in 1+ie Department of Ponchoyat (S Social Welfare with their headqucirters at Bastar, District Bastar (C.6.) Respondents Petitioners Respondents 1. State of Chhattisgarh, Through - the Secretary, Department of Firwnce and Planning, Mantralaya, Dau Kalyan 5ingh Bhawan, Chhattisgarh, Raipur (Chhatt-isgarh) 2. Secretary, bepat'tment of Ponchayat md Rural Deyelopment, Mantralaya, &au Kalyem Singh Bhawan, ftaipur (Chhattisgar+i) 3. t5irector, Panchayat and Rural Development and Social Welfare, ttantraloya, t>cu Kalyan Sin9h Bhawoin, Raipur (Chhoftisgarh) W.P.No.1691 of 2004 1. Top Singh Tandon, 5/o Sokm Dns Tandon, Aged about 50 years. 2. S.K.Sharma, 5/o Late Shri Lakhan Prosad Sharma, Aged about 54 years. 3. R.K.Yadav. S/o Lakhanlal Yadav, Aged about 50 feo.rs. 4. T.K.Chandrakar, 5/o 5hri ffejuram Chandrakar, Agsd about 51 tears. All the petitioners are working as Sub- Aud'tors in 1+ie Department of Panchayat & Sociat Welfare with their headquarl-ers at Bostar, District Bastar (C.6.) Versus 1. 5tate of Chhattisgarh, Through - the 5ecre1wy, Department of Finance ond Planning, Mantralaya, &au Kotyon Singh Bhawan, Chhattisgarh, Raipur* (Chharrisgarh) 2. Secretary, t)epartment of Panchayat and Rural Development, Mantrabya, t>au Kalyan 5ingh Bhawan, Raipur (Chhattis9arh) 3. Director, Panchayat and Rurat Oevetopment ond Social Welfare, Mwi'tra.ksyo, &au Kalyan 5ingh Bhawnan, Raipur (Chhattisgarh) PetiTioners W.P. No. 1692 of 2004 1. B.K.Netam, S/o Late about 53 years. A.R.Netam, Aged ftesoondents Petitioners 2. P.D.Baghel, 5/o Late S.R.Baghel. Aged abouf 45 years. 3. N.R. cpardey, S/o La-te R.S.Khcyardey. Aged about 52 years. 4. B.R.Pate), S/o Fagunaram Patel, Aged about 52 years. 5. J.P.Thakur, 5/o Late Shasia Ram, Aged abouf 54 years. 6. J.LChandrokar, 5/o C.LChandrakar, <4ged about 47 years. 7. Smt. Gouri Banchhore, W/o Late &opal Bcunchhore, Aged about 47 years. All the petitioners are working as Sub- Auditors in -the Oepartment of Panchayat <S Social Welfare witti their headquarters at Bastar, District Bastar (C.6.) Versus 1. State of Chhattisgarh, Through - the Secretary, Oepartment of Finance and Planning, Mantraloya, Dau Kalyan 5ingh Bhawan, Chhattisgarh, Raipur (Chhoifti^arh) 2. Secretary, t>epart'ment of Panchoyat ond Rural Development, Mantralaya, Dau Kalyan 5ingh Bhawoin, Raipur (Chhattisgarh) 3. Director, Panchayot and Rural ttevelopment mid Social Welfare, ontraloya, t>au Kalyan Sin9h Bhawon, Raipur (Chhati-isgarh) W.P.No.2174 of 2004 1. F.B.farre, 5/o 5hri J.R-Kurre, Aged about 35 years, 2. B.K-yadu, S/o Shri K.P.Yadu, Aged about 49 years. 3. K.L.5ahu, S/o Shri Sadhuram Sahu, Aged about 49 years. All the petitioners are working as Sub- Auditors in the Depart-ment of Ponchayat <S Social Weffare with tiieir headquarters at Bastar, District Bastar (C.G.) Versus 4 Res&ondents Petitioner Resepndents 1. State of Chhattisgarh, Through - the Secretary, Department of Finance and Planning, Atantralaya, &au Kalyan Singh Bhawon, Chhattisgarh, Raipur (Chhatt-isgar+i) 2. Secretary, &epartment of Ponchctyat and Rural Development, Mantralaya, Dau Ralyan 5ingh Bhawm, Raipur (Chhattisgarh) 3. Director, Panchayat and Rural Development ond 5ocial Welfare, Montralaya, t)au Kalyon Sin9h Bhawon, Raipur (Chhatt-isgarh) 4. Oirector, Local Fund Audit Department, ftaipur, District: Raipur (C.S.) W. P.No. 1035 of 2005 Kamat Singh Kunjam, 5/o Shri Shyam Singh Kunjam, Aged about 40 yeors, Presently Elected Sarpanch of Srwn Ponchayaf; Chikhli, Block: Oondi, District; Durg (€.6.) Versus 1. State of Chhattisgarh, Through - the 5ecretary, Oepartment of pinonce and Planning, Mantralaya, Dau Kalyan Singh Bhawan, Raipur (Chhattisgarh) 2. Secretary, Department of Panchayat and Rural &evelopnnent, Mantraloyo, t>au falyan Singh Bhawan, Raipur (Chhatfisgarh) 3. Oirector, , Panchayat and Rural Development and Social WeWare, Mantralaya, Dau Kalyan Singh Bhawan, Raipur (Chhattisgar+i) 4. Director, Local Fund Audit Deparf'ment, Raipur, OistricT: Raipur (C.6.) Shri B.D.Suru, Counse! for the petitioners. (W.P.Nos.1691/2004, 1692/2004,1693/2004 and 2174/2004) Shri Y. Chaturvedi, Counsel for the petitioner (W.P. No.1816/2006) Shn' Mcslay Kumar Bhaduri, Counsel for the petitioner (W.P.No.l035/200S) Shri ^avi^i Chandra Agrawal, Advocate Seneral with Shri Utkarsh Verma, Dy. fi.,.6. for ths State. ORAL OR&ER yassed on 27th June 2006) The foliowing oral order of the Court was passed by S.R.Nayak, C.J. In this batch of writ petitions, tfae validity of notification dated 5.2.2004 issued by the fiovernment of Chhattisgarh under suh- section (1) of Section 4 of the Chhattisgarh Stfianiya Nidhi Sampariksha Adhini'yam, 1973 (for short '1973 Adhiniyam') is assailed. 2. There is no need for the Court to refer to the facts of these cases. The validity of the impugned notification is assailed only on one ground. The common contention of the learned counsel for the petitioners is that inclusion of &ram Panchayats in the impugned notification is inyalid and unconstitutiona! for the reason that Section 129 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (for short '1993 Adhiniyam') aiso proyides for auditing the accounts of the Panchayats; since 1993 Adhiniyam is a specia\ enactment in relation to 1973 Adhiniyam which is a general enactment, the provisions of 5ection 129 of Adhiniyam 1993 are prevailed over the provisions of 5ection 4 of 1973 Adhiniyam. That was the only contention urged before us by the fearned counsel for petitioners led by Shri B.D.Suru, leamed counsel for the petitioner in W.P.No.1693/2004. 3. Shri Ravish Chandra Agrowal, leamed Advocaie Seneral who cppeared for the State supported the validi-ty of impugned notification and dr-ew our- attention to the history of the legislation as set out in the return and pointed that Gram Panchayats were in fact included in the schedule as far back as on 9.8.1983 itself and since then the accounts of the Gram Panchayats have been regularly audited under the 1973 Adhiniyam. Leamed Advocate &eneral would also submit that there is absolutely no conflict between 1973 Adhiniyam and 1993 Adh'miyam, ond that though the Rules framed under these Adhm'syams, in certain respects, are overlapping, they are not identical. In other words, according to the learned ^dvocate ©eneral, the Rules framed under the above two Adhiniyams cover certain ospects, not covered by each other. He would also submit that since sub-fection (2) of Section 4 of 1973 Adhiniyam has enacted non- obsfante clduse, the notification issued under sub-Section (1) of Section 4 of 1973 Adhiniyam has overriding effect over the provisions of Section 129 of 1993 Adhiniyam and the Rules framed thereunder. 4. Having heard the leamed counsel for the parties, we are of the considered opinion that the petitioners have not made out any ground uvhatsoever to inva!idate the impugned notification on any permissible legaf or unconstitutional ground. It is trite that the inipugned notification is a piece of delegated legislation made by the State Sovernment by virtue of the power conferred under sub-section (1) of Sectton 4 of Adhiniyam 1973. It is well settled that the vatidity of a delegated legislation could be impugned successfully only on certain grounds, such as; tiiat the impugned detegated legislation is u/fra vires the Parent act; that it violates part-III of the Constitution of India or any other provisions of the Constitution; the mondatory procedure prescribed under Parent Act was not adhered to by the Rule-making Authority in enacting such delegated legislation or in certain cases the delegated legislation is ex. facie arbitrary, unreasonable or mala fide etc. 5. The only point urged by the leamed counsel for the petitioner noted above, in our considered opinion, is not well founded. At the threshold, it needs to be noticed that simply because the accounts of the ©ram Panchayat ar® liable to be audited both under 1973 Adhiniyara as well as 1993 Adhiniyam, only on that ground and without anything further it, could not be said that the impugned notification renders itself as invalid. There is no legal or constitutionat impediment for the law-maker to enact a provision within the domain of their legitimate legislative sphere to subject the accounts of the 6ram Panchayats to audit ond commond submission of the audit reports. It also needs to be noticed that .in the instant case, there is 43 -V absolutely no conflict or repugnancy between the provisions of Section 4 of 1973 Adhiniyam and Section 129 of 1993 Adhiniyam. 6. Provisions of Section 4 of 1973 Adhiniyam and Seetion 129 of 1993 Adhiniyam read as under; "4.Submissisn of accounts for audit and payment of audit fess.-(l) The Stste ©ovemment may, by notification declare that the accounts of such local authority, as may be specified in the notification shall be subject to audit under this Act. (2) On the issue of a notification under sub-section (1), the accounts of •tfie (ocal authority specified therein shall, notwi'Astanding cBiything contained in any enactment by which such local authority is constituted or in any rules made thereunder, be subject to audit in all respects in the inanner provided by or under the 1973 Adhiniyam. (3) The local authority shall be liable to pay such audit fees as The 5taTe ©overnmentmay, from fime to time, specify in •tfiat behalf." "129. Audit ef Panchayol^.-(l) There shall be a sepcunte ond independenf Audit Organisation under The control of the 5'hate 6overnment to perform audit of accounts of Ponchayats. (2) The Audit Orgomisation shall consist of such .officers and ^rvanfs, to be appointed by the State (Sovernrnent, ois ihe State Government moy deem fit from time to time. (3) The manner of audit of PoBichayat accounts, paymenf of cudit fees and action on aich audif rsport's shall be such as may be prescribed." It is clear that botfi the provisions are intended to achieve the same objective, i.e., the funds and finances of the local bodies in which the State has high 3take should be audited regularly under both the enactments so that the State could know whether local bodies spend public money for the purposes for which it is intended and in uccor-dance with the law and the prescribed procedure so that in cass of default, -rtie State can take corrective measures to safeguard the public interest. Since there is no conflict between the two provisions, there is no need for us in thls case to decide whether between the two provisions i.e. Section 4 of 1973 Adhiniyam and Section 129 of 1993 Adhiniyam, which is generol provision and which is specia! provision. Suffice it to state that even assuming that the 1993 Adhiniyaffl is a special enactment, as contended by Shri B.D.&iru, that fact itseif would not in any wdy help the petitioners to sustain their chailenge successfuily. It. is for the simpie reason that sub-section (2) of Section 4 of 1973 Adhiniyam enacts a non-obstan'fe clause. Sub-section (2) of Section 4 provides that on the issue of a notification envisaged under sub-clause (1) of Section (4) of 1973 Adhiniyam, the accounts of the local authorities specified therein shall, notwithstanding anything contained in any enactment by which such local aul+iority is constituted or in any rules made thereunder, shalt be subject to audit in al! respects in the manner provided by or under the 1973 Adhiniyaro. Though we have aiready stated that there is no confiict between the two enactments, altematively it needs to be noticed that even assuming that there is a conflict between the two provisions, by virtue of the non-obstan+e clause enacted in sub- Section (2) of Section 4 of the 1973 Adhiniyam, the provisions of Section 4 of 1973 Adhiniyam shall have overriding effect over the provisions of Section 129 of 1993 Adhiniyaro and the Rules framed thereunder. 6. We have compared the provisions of Section 4 of Adhiniyam 1973 with the provisions of Section 129 of Adhi'niyam 1993 and the Rules framed thereunder. As rightly subroitted by iearned Advocate fieneral that some provisions of both the Adhiniyams and the Rules framed thereunder are identical, but the fact remains that the provisions enacted in 1973 Adhiniyam and the Rules framed thereunder are quite comprehensive and deal with all aspects of accounting and auditing and it afso enacts a penalty clause for non- ^ \ compliance with the obligation to audit the accounts of 6raro Panchayats. In other words, 1973 Adhiniyam is a Code in itself and it completeiy covers all aspects of submission of accounts as well as audit of the accounts on payment of audit fees not only with regard to <5ram Panchayats but nl! loca! bodies. 7. In the result and for the foregoing reasons, •rfie wr-tt petitions are dismissed. No costs. -^— Sd7- ChiefJustice Sd/- Dilip Raosaheb Deshmukh Judge ?4T)tan(, u