IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 15833 of 2011 Date of Decision: August 26, 2011 Gram Panchayat Village Mann. ….Petitioner Versus The State of Punjab and others. … Respondents CORAM: HON’BLE MR. JUSTICE ALOK SINGH Present: Mr. Baltej Singh Sidhu, Advocate, for the petitioner. 1. Whether reporters of local news papers may be allowed to see judgment? yes 2. To be referred to reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes Alok Singh, J. (Oral) Petitioner – Gram Panchayat, Village Mann, has invoked writ jurisdiction of this Court under Articles 226/227 of the Constitution of India for issuing a writ in the nature of mandamus commanding the respondents to hand over the grants meant for the development works of the village mentioned in Annexure P/3 to the petitioner – Gram Panchayat. Vide Annexure P/3, Government has released grant of Rs.95,000/- for drainage of rainy water upto the CWP No.15833 of 2011 house of Darshan Singh son of Jagroop Singh within the jurisdiction of petitioner – Gram Panchayat and has also released grant of Rs.1,10,000/- for construction of culverts of common path within the jurisdiction of petitioner – Gram Panchayat and has also released grant of Rs.6,55,000/- for construction of streets / sewerage drains within the jurisdiction of petitioner – Gram Panchayat, however, as per Annexure P/3, grant released for the above said purposes was directed to be utilized through XEN, Panchayati Raj, Muktsar and B.D.P.O., Lambi. The sole question which arises for consideration of this Court is As to whether funds/grants released in favour of the Panchayat can be utilized by the Panchayat directly under its own supervision or can be directed to be utilized through the Government officers as provided in Annexure P/3? To decide the question raised in the petition, I deem it proper to deal with the Constitution provisions as amended and inducted by Seventy-third Amendment in the Constitution of India w.e.f. 24.04.1993. Article 243-B and G read as under:- “243-B. Constitution of Panchayats – There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part. 2 CWP No.15833 of 2011 (2) Notwithstanding anything in clause (1), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs. 243-G. Powers, authority and responsibilities of Panchayats – Subject to the 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 provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to – (a) the preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.” As per Article 243-B of the Constitution of India, there should be a Panchayat at the village, intermediate and district levels in accordance with the provisions of this Part. As per Article 243-G, the Legislature of a State may, by law, endow the Panchayats with such powers and authority to 3 CWP No.15833 of 2011 enable the Panchayats to function as institutions of self- government with respect to the preparation of plans for economic development and social justice; the implementation of schemes for economic development and social justice as maybe entrusted to them including those in relation to the matters listed in the Eleventh Schedule. As per Article 243-N, any law in force which is contrary to the Part IX of the Constitution of India shall remain in force only for the period of one year or for such period till State Legislature enacts the law as per Part IX of the Constitution of India whichever is earlier. Section 30 of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as the Act), which came into force after the introduction of Part IX of the Constitution of India, wherein functions of Gram Panchayats are defined. Section 30 of the Act reads as under:- “30. Functions of Gram Panchayats – Subject to such conditions as may be prescribed by the State Government form time to time, the Gram Panchayat having regard to the availability of funds at its disposal, shall perform the functions specified below:- (I) General functions - (i) preparation of annual plans for the development of the panchayat area; 4 CWP No.15833 of 2011 (ii) preparation of annual budget; (iii) mobilizing reliefs in natural calamities including relief to the poor; (iv) removal of encroachments on public properties; (v) organizing voluntary labour and contribution for community works; (vi) maintenance of essential statistics of village; (vii) rendering assistance and implementation of development schemes pertaining to the village through its Gram Sabha; (viii) promotion of unity and harmony among all the sections of society in the village; (II) Construction, repair and maintenance of community assets - (a) any public including its sanitation and drains; (b) wells, water-pumps, baolies, springs, ponds and tanks for the supply of water for drinking, washing and bathing; (c) burial and cremation grounds; (d) the lighting of public places; (e) buildings for the accommodation of travelers; (f) ponds for animals, cattle and sheds for cart, bicycle, rick-shaw, and auto stand; (g) public gardens, playgrounds, establishment and maintenance of recreation parks, 5 CWP No.15833 of 2011 organization of games and sports, supply of sports materials and holding of tournaments; (h) libraries and reading-rooms; (i) the construction, repair and maintenance of public places and buildings of public utility under its own control or transferred to it by the State Government or any other authority; (j) allotment of places for preparation and conservation of manure; and shifting them to far away places; (k) construction and maintenance of culverts and bridges; and slaughter-houses; (l) the laying out of new roads and pathways and maintenance of existing ones; (m) supply of water for domestic use and for cattle; (n) community listening; (o) prevention and control of pollution; (p) maintenance of boats, ferries and all water ways; (q) promotion of family welfare and population control; (r) cleaning of public roads, drains, tanks, wells and other public places; (s) construction and maintenance of public latrines; 6 CWP No.15833 of 2011 (t) disposal of unclaimed corpses and carcasses; (u) management and control of washing and bathing ghats; (III) Agriculture including Agriculture Extension:- (a) promotion and development of agriculture and horticulture; (b) development of waste lands; (c) development and maintenance of grazing lands and preventing their unauthorized alienation and use; (d) destruction of weeds and pests; (e) training and carrying out schemes for the improved methods of cultivation and management of lands to increase production; (f) the organization of young Farmers Clubs; (g) promotion of agricultural credit and of measures including establishment of provision and implement stores and credit centres to relieve rural indebtedness and poverty; (IV) Animal Husbandry, Dairying and Poultry- (a) improvement of breed of cattle, poultry and other livestock; (b) promotion of dairy farming, poultry and piggery; 7 CWP No.15833 of 2011 (c) grass-land development, preparation and distribution of improved variety of seeds of fodder and grass; (d) the voluntary registration of sales of cattle, camels and horses; (e) collection and destruction of stray animals; (f) first-aid centres, dispensaries and hospitals for animals including their health-care. (V) Fisheries- Promotion and development of fisheries in the village; (VI) Social and Farm Forestry, Minor Forest Produce Fuel and Fodder - (a) planning and preservation of trees on the sides of roads and other public lands under its control; (b) fuel plantations and fodder development; (c) promotion of farm forestry; (d) development of social forestry. (VII) Khadi, Village and Cottage Industries- (a) promotion of Agro based rural and cottage industries; (b) organization of awareness camps, seminars and training programmes, agricultural and 8 CWP No.15833 of 2011 industrial exhibitions for the benefit of the rural areas; (VIII) Rural Housing (a) distribution of house sites within its jurisdictional; (b) maintenance of records relating to the house sites and other private and public properties; (IX) Rural Electrification including Distribution of Electricity – providing for and maintenance of lighting of public streets and other places; (X) Non-Conventional Energy Source- (a) promotion and development of non- conventional energy schemes; (b) maintenance of community non-conventional energy devices, including bio-gas plants; (c) propagation of improved chulhas and other efficient energy devices; (XI) Poverty Alleviation Programme – (a) promotion of public awareness and participation in poverty alleviation programmes for fuller employment and creation of productive assets etc; (b) selection of beneficiaries under various programmes through Gram Sabhas; 9 CWP No.15833 of 2011 (c) participation in effective implementation and monitoring; (XII) Education including primary and secondary schools – (a) promotion of public awareness and participation in primary and secondary education; (b) ensuring full enrolment and attendance in primary schools and its management; (c) providing such educational facilities as may be deemed necessary and desirable; (XIII) Adult and Non-formal Education – Promotion of Adult Literacy; (XIV) Cultural Activities - (a) promotion of social and cultural activities; (b) the organization of Mahila Mandals, organisation of Youth Clubs for promoting games an sports and execution of development, social and cultural activities in the Sabha areas; (XV) Fairs and festivals – (a) organization and celebration of public festivals and fairs other than religious festivals; (b) to organize, regulate and control local markets for sale and purchase or any product; 10 CWP No.15833 of 2011 (XVI) Public health and Family Welfare- (a) implementation of family welfare and population control programmes; (b) prevention and remedial measures against epidemics; (c) regulation of sale of meat, fish and other perishable food articles; (d) participation in programmes of human and animal vaccination; (e) licensing of eating and entertainment establishments; (f) destruction of stray dogs; (g) regulation of curing, tanning and dyeing of skins and hides; (h) regulation of offensive and dangerous trades; (XVII) Women and Child Development- (a) participation in the implementation of women and child welfare programmes; (b) promotion of school health and nutrition programmes; (c) establishment, maintenance and management of maternity and child welfare centres and the construction and repair of all buildings connected therewith; 11 CWP No.15833 of 2011 (XVIII) Social Welfare including welfare of the handicapped and mentally retarded – (a) participation in the implementation of the social welfare programmes, including welfare of the handicapped, mentally retarded and destitute; (b) monitoring of the old age and widows pension schemes; (XIX) Welfare of Weaker sections and in particular the Scheduled Castes – (a) promotion of public awareness with regard to welfare of Scheduled Castes and other weaker sections; (b) participation in the implementation of the specific programmes for the welfare of the weaker sections; (XX) Public Distribution System- (a) promotion of public awareness with regard to the distribution of essential commodities; (b) monitoring the public distribution system.” From the combined reading of Section 30 of the Act, as well as, Article 243-G of the Constitution of India, Panchayat has sole jurisdiction to utilize the funds for the purposes mentioned in Section 30 of the Act. Section 86 of the Act reads as under:- 12 CWP No.15833 of 2011 “86. Gram Panchayat Fund - (1) For every Gram Panchayat there shall be constituted a Gram Panchayat Fund bearing the name of the Gram Panchayat and there shall be placed to the credit thereof- (a) all grants from Government or other local authorities; (b) the balance (if any) standing at the credit of the Gram Panchayat at the commencement of this Act; (c) the balances and proceeds of all funds which, in the opinion of the Collector, were or are being collected for common secular purposes of the village or villages comprised in the Gram Sabha area; (d) all donations; (e) all taxes, duties, cesses, tolls and fees imposed and realized under this Act (f) the sale proceeds of all dust, dirt, dung or refuge collected by the servants of the Gram Panchayat and dead bodies of animals not claimed by any person in accordance with any custom or usage and the trees and other produce of the land vested in the Gram Panchayat. 13 CWP No.15833 of 2011 (g) income derived form the village fisheries which are under the management of the Gram Panchayat; (h) income derived from common lands vested in the Gram Panchayat under any law for the time being in force; (i) any other amount to be received by the Gram Panchayat from any other source or assigned by the Panchayat Samiti or the Zila Parishad or Government; (2) The State Government shall every year assign to every Panchayat a portion of the land revenue not being less than forty percentum of the total annual land revenue realizable within the limits of the Gram Sabha area which shall be credited to the Gram Panchayat Fund. (3) Every Gram Panchayat shall set apart and apply annually such sum as may be required to meet – (a) the cost of its own administration including the payment of salary, allowances, provident fund and gratuity to the officers and employees and to the secretary: 14 CWP No.15833 of 2011 Provided that the total expenditure on establishment shall not exceed one-third of the total expenditure of the Gram Panchayat in any year; (b) every Gram Panchayat shall have the power to spend such sums as it thinks fit for carrying out the purposes of this Act; (c) the Gram Panchayat Fund shall be vested in the Gram Panchayat and the balance to the credit of the Fund shall be kept deposited with a Scheduled Bank.” As per Section 86 of the Act, all the grants from the Government or other local authorities shall constitute the Gram Panchayat Fund. Section 2(za) and Section 10 of the Act are being reproduced as under:- “2(za) “Gram Panchayat” means an institution of self-government for a Gram Sabha area constituted under Section 9;” “10. Constitution of Gram Panchayat – (1) Every Gram Sabha shall elect from amongst its members a Gram Panchayat for the Gram Sabha area bearing the name of its Gram Sabha and consisting of a such number of Panches as indicate below against each slab of population taking Gram 15 CWP No.15833 of 2011 Sabha to be a multi-member single constituency, namely:- Sl.No . Population Number of Panches (1) For population exceeding 200 but not exceeding 1,000 Five (2) For population exceeding 1,000 but not exceeding 2,000 Seven (3) For population exceeding 2000 but not exceeding 5,000 Nine (4) For population exceeding 5,000 but not exceeding 10,000 Eleven (5) For population exceeding 10,000 Thirteen (2) Every Gram Panchayat constituted under this section shall be notified by its name in the Official Gazette and it shall by the name so notified come into office with effect from the date of its first meeting at which quorum is present and be a body corporate having perpetual succession and a common seal, and subject to any restriction by or under this Act or any other law, shall have power to acquired, hold, administer and transfer property movable or immovable, and to enter into contracts and shall by the said name sue and be sued.” From the combined reading of Sections 2(za), 10, as well as, Article 243-G of the Constitution of India, it can 16 CWP No.15833 of 2011 safely be said that Gram Panchayat shall be constituted for the area which shall be body corporate and institution of self- Government having independent jurisdiction for the purposes defined under Article 243-G of the Constitution of India, as well as, under Section 30 of the Act. In the opinion of this Court, if Gram Panchayat is the body corporate and is an institution of self-Government after the induction of Part IX, then, of course all the funds of the Gram Panchayat for the purposes mentioned in Section 30 of the Act can only be utilized by the Panchayat and not by any officer of the Government. Therefore, action on the part of the government directing to utilize the funds of the panchayat through the Government officer is totally unconstitutional, illegal and ipso facto nullity. Thus, petitioner is right in saying that grant issued in favour of the petitioner – Gram Panchayat cannot be directed to be utilized through the Executive Engineer or Block Development and Panchayat Officer. State Government has no jurisdiction to issue directions that Panchayat Funds (in the shape of Government grant) shall be utilized by the Government officers/officials. However, if Government finds that grants are not being utilized for the purpose grants were sanctioned or are being embezzled, government can take suitable action against the Sarpanch/Panches, in accordance with law i.e. 17 CWP No.15833 of 2011 under Section 20(1)(e) explanation (iii) of Punjab Panchayati Raj Act, 1994 and under the penal laws. Petitioner has moved a representation (Annexure P/2) requesting the Deputy Commissioner, Sri Muktsar Sahib, to release the grant in favour of the panchayat for its utilization for the purposes mentioned in Annexure P/3, which has not been decided as yet. Therefore, present petition is decided at the admission stage with direction to the Deputy Commissioner, Sri Muktsar Sahib, to take decision on the representation (Annexure P/2) within 30 days from the date certified copy of this order is placed before him, in accordance with the observations made in body of the judgment. It goes without saying that till decision is taken on the representation moved by the petitioner, fund/grant released for the purposes of the petitioner – Gram Panchayat shall not be utilized by any officer of the Government. Present petition stands disposed of. August 26, 2011 ( Alok Singh ) vkd Judge 18