* THE HONOURABLE SRI JUSTIC V.V.S.RAO + WRIT PETITION Nos.9215, 11165, 11166, 11939, 14686, 14689 and 15254 of 2007 % 27-07-2007 # Pallamalli Gram Panchayat, Pallamalli Village, Chimakurthy Mandal, Prakasam District, and others. ... Petitioners Vs. $ The Government of Andhra Pradesh, rep.by its Secretary, Hyderabad, and others. ...Respondents ! COUNSEL FOR PETITIONERS: MR.M.RAVINDRA NATH REDDY ^ COUNSEL FOR RESPONDENTS 1 TO 3: GOVERNMENT PLEADER FOR PANCHAYAT RAJ COUNSEL FOR RESPONDENT 4: MR.I.KOTIREDDY <GIST >HEAD NOTE: ? CASES REFERRED: 2004(2) ALD 1 (LB) THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.9215, 11165, 11166, 11939, 14686, 14689 and 15254 of 2007 Dated: 27-07-2007 Between: Pallamalli Gram Panchayat, Pallamalli Village, Chimakurthy Mandal, Prakasam District, and others. ..... PETITIONERS AND The Government of Andhra Pradesh, rep.by its Secretary, Hyderabad, and others. .....RESPONDENTS THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.9215, 11165, 11166, 11939, 14686, 14689 and 15254 of 2007 COMMON ORDER: Some of these writ petitions are filed by various Gram Panchayats (GPs) in Prakasam District constituted or deemed to have been constituted under the Andhra Pradesh Panchayat Raj Act, 1994 (the Act, for brevity). Some are filed by the individuals. In all these petitions, writ of Mandamus is sought directing respondents, namely, the Government of Andhra Pradesh, Panchayat Raj Department, and the Mandal Parishad Development Officer (MPDO), to implement the orders of former in G.O.Ms.No.37 Panchayat Raj & Rural Development (Progs.I A) Department dated 18.02.2005. The petitioners also pray for a direction to MPDO to allot various works to Works Committee (WC) of the Gram Panchayat (GP) for being entrusted to Habitation Works Committee (HWC) or Habitation Level Committee (HLC). In some writ petitions, allotment of work to the group leader of DWACRA[1] is also assailed. Therefore, it is expedient to dispose of all these writ petitions by a common order. For the sake of convenience the fact of the matter in W.P.No.9215 of 2007 be noticed. Pallamalli GP of Chimakurthy Mandal, Prakasam District, filed W.P.No.9215 of 2007. In brief, it is the case of petitioner that after issue of Government order in G.O.Ms.No.37, dated 18.02.2005, laying down guidelines for entrustment and execution of works tied up with rice component, GP in its meeting held on 23.08.2006, appointed a WC. The Mandal Parishad (MP) in its meeting held on 16.10.2006 resolved to allot seven works in said Village and issued proceedings on 05.01.2006 sanctioning works to GP. However, the work orders were issued only in respect of five works and two other works were allotted to fourth respondent i.e., Raghavendra DWACRA group leader of same Village. It is alleged that DWACRA group was formed in January 2007, and by that time there is already a Self-Help Group (SHG) in the Village, which was formed on 08.01.2002. The group leader of SHG is also a member of WC and ignoring this aspect, two works were allotted in contravention of the guidelines in G.O.Ms.No.37 dated 18.02.2005 to fourth respondent. This Court, while admitting the writ petition on 01.05.2007, in W.P.M.P. No.11767 of 2007 suspended the proceedings of MPDO dated 05.03.2007 allotting the works to the fourth respondent while observing that it shall be open to MPDO to entrust the works to WC nominated by GP. Fourth respondent as well as MPDO moved applications, being W.V.M.P.Nos.1203 of 2007 and 1345 of 2007 respectively, for vacating the interim orders. They also filed counter-affidavits in support of the vacate petitions. As other matters were also coming up at the interlocutory stage, all the writ petitions were heard together and are being disposed of by this common order. In the counter-affidavit filed by MPDO, Chimakurthy Mandal, it is alleged that as per the guidelines issued in G.O.Ms.No.37 dated 18.02.2005, it is permissible to entrust works with an upper limit of Rs.5,00,000/- either to WC or to other SHGs like Village Habitation Committee (VHC) or DWACRA groups. It is further alleged that five works were allotted to Pallamalli GP and two works were allotted to fourth respondent as its member is residing in the ward where the works were taken up. In the counter-affidavit filed by fourth respondent, similar contentions are raised. In addition it is alleged that after entrustment of the works to fourth respondent by MPDO on 05.03.2007, substantial quantities of works were completed but the payments have been withheld by MPDO due to pendency of these writ petitions. The learned counsel for the petitioners submit that MPDO failed to implement the guidelines contained in G.O.Ms.No.37 dated 18.02.2005 in letter and spirit. The purpose behind issue of this G.O., was to entrust the works to WC or an agency nominated by WC. The intention was not to allot/entrust works to SHGs. They also relied on the other Government orders issued amending G.O.Ms.No.37 dated 18.02.2005 as well as various Government orders laying down the guidelines for taking up various works under Assembly Constituency Development Programme (ACDP). Opposing the writ petitions, the learned Government Pleader for Panchayat Raj and Rural Development and the learned counsel for the contesting respondents justify the action of MPDO in allotting part of the works to DWACRA/SHGs. They would contend that there is no bar in G.O.Ms.No.37 dated 18.02.2005 or subsequent Government orders for entrusting works with an upper limit of Rs.5,00,000/- to DWACRA/SHGs. It is their submission that even without consulting GP/WC, it is competent to MPDO to entrust works to DWACRA/SHGs, provided the members of such groups are residing in the wards where the works are taken up. The short point for consideration is whether it is competent for MPDO to entrust various works in the Panchayat area to any other agency other than the agency nominated by WC constituted by GP or WC itself? The Engineer-in-chief (E-in-C), Panchayat Raj, Hyderabad, addressed a letter No.T1/18233/75, dated 12.01.2005, to the Government informing that the contractors/middlemen avoided the execution of works, which are tied up with rice component. He, therefore, requested that such works need to be grounded and completed immediately by entrusting to the local bodies/user groups instead of following normal procedures like tender procedures, which are likely to take time and allows the contractors/middlemen. He also requested for permission to entrust the works like cement roads and other works taken up with rice component costing up to Rs.10,00,000/- by entrusting the same to user groups. By the time E-in-C addressed the letter to Government, the Government had initiated several rules tendering for public works with a view to bring in simplification of procedures, great transparency and better quality of works. The Government were also aware of various guidelines laid down by them with regard to Food for Work (FFW) programme as well as the works taken up under different programmes like Sampoorna Grameen Rozgar Yojana (SGRY). With this experience in the background, the Government contemplated to generate employment of the villages giving opportunity to the local people through the committees to plan, execute and monitor the works as per the budget allocations to the villages in order to ensure better quality in execution and subsequent maintenance. This was done as disclosed in G.O.Ms.No.37 dated 18.02.2005 itself, as a precurse to decision of Government in devolution of powers to the Panchayat Raj institution. Paragraph 6 of G.O.Ms.No.37 dated 18.02.2005 holds the key for understanding the purport of the guidelines, insofar relevant it reads as under. 6. Government hereby decide to entrust the works, with an upper limit of Rs.5.00 Lakhs (Rupees Five lakhs only) to WC/Self Help Groups at the Village Level and the nominee of the Committee or Group Leader be enter into agreement with the executing Agency with the following Guide Lines: a) The works shall be entrusted to Habitation Level Committee (HLC)/Habitation WC/Village Level Committee etc., as was done in earlier Janmabhoomi Programme and Food For Work Programme. b) The concerned Gram Panchayat will resolve and from the above Committee (HWC) for execution of works dovetailed with rice in that Gram Panchayat. c) WC will be formed by Gram Panchayat with Sarpanch as Chairman and MPTC members, Gram Panchayat members, Self Help Group leader will be the members of the Committee. Due representation to SC/ST members may be considered. Village Secretary to be the Convener of WC. d) The HCL/HWC/VLC shall comprise of people pertaining to the Gram Panchayat only like VSS Chairman, MPTC, VEC, elderly persons with works knowledge DWCRA Group of Women etc., and authorize one person of the said committee, designated as Chairman/President of the Habitation WC to execute the works dovetailed with rice. e) The President of the HWC and the nominee of Committee or Group Leader will perform all the Departmental legal formalities on behalf of the committee like entering into agreement drawing the bills, etc., f) In case any Gram Panchayat fails to constitute the above said Committee due to various reasons, with in a time frame fixed by the concerned MPDO/DLPO then the MPDO concerned to the Gram Panchayat will constitute the HWC in the interest of development in that village. g) Durable assets which are useful for community shall be taken up. h) Under no circumstances, the works shall be grounded prior to issue of Administrative clearance. i) Only workers from the same village shall be engaged. (6. (j) to (p) omitted) Considerable stress is laid by the learned Government Pleader at paragraph 6 of G.O.Ms.No.37, dated 18.02.2005, excluding various clauses thereunder. On the contrary the learned counsel for the petitioners lays stress on clauses 6(h)&(i) to press their contentions that works, under any circumstance, should be entrusted to WC alone. If paragraph 6 of G.O.Ms.No.37, dated 18.02.2005 alone is read in isolation it would certainly – of course prima facie, led to an inference that the Government intended to entrust the works to WC or SHGs at the village level. Curiously clauses 6(a) to 6(e) nowhere even refer DWACRA/SHG. Therefore, a harmonious reading of the guidelines is necessary. Paragraph 6 of G.O.Ms.No.37, dated 18.02.2005 deals with “entrusting works” and or “executing works through agency”. First part of paragraph 6 of G.O.Ms.No.37, dated 18.02.2005, speaks of Government’s decision to entrust works to WC or SHGs. Second part of paragraph 6 of G.O.Ms.No.37, dated 18.02.2005, deals with duty of the nominee of WC or group leader to enter into an agreement with the executing agency. Keeping this in light, a reading of clauses 6(a) to 6(e) would show that the leader of DWACRA or SHG can be nominated to enter into an agreement with the executing agency, which is entrusted with the works with the upper limit of Rs.5,00,000/-. This is supported by a reading of 6(a) and (b). These are to the effect that the works shall be entrusted to HLC/HWC/Village Level Committee (VLC) as was done earlier in Janma Bhoomi programme and FFW programme. The power is given to GP to pass resolution to that effect. Omission to mention DWACRA/SHGs in paragraph 6(a) appears to be intentional. The Government issued G.O.Ms.No.37 dated 18.02.2005 based on letter of E-in- C requesting to entrust works in Panchayat area to local bodies/user groups. This letter would have thrown light on intention behind G.O.Ms.No.37 dated 18.02.2005. The learned Government Pleader was directed to produce the file concerning G.O.Ms.No.37 dated 18.02.2005, who on instructions from Sri C.Manmohan Reddy, the Joint Secretary to Government, Panchayat Raj Department, submits that from 2006 onwards the relevant file is not traceable in the secretariat. Therefore, this Court has to rely only on paragarah 4 of G.O.Ms.No.37 dated 18.02.2005 where the Government refers to the contents of letter dated 12.01.2005 issued by E-in-C. A reading of some of the clauses - 6(a) and (b) of G.O.Ms.No.37, dated 18.02.2005, would leave no doubt that Government intended to entrust works to WC or an agency nominated by WC. Be it noted WC itself is constituted by GP with Sarpanch as Chairman, MPTC members, GP members and the leader of SHG. Therefore, participation of SHG is very much ensured in constitution of HWC. The above view is also supported by various Government orders issued subsequently. G.O.Ms.No.10 dated 10.01.2006 was issued again considering the letter dated 19.12.2005 issued by E-in-C requesting to extend the powers of entrustment of Panchayat Raj works on nomination basis costing up to Rs.5,00,000/- without rice component. Here also the intention was to entrust works to WC nominated by GP. Various Government orders in relation to ACDP[2] are also placed before this Court which would show that such works should be entrusted to WC or HLC/HWC nominated by them. That the executive power of Government under Article 162 of Constitution of India (Constitution, for brevity) should be exercised in accordance with Constitution is an unimpeachable proposition. Therefore, a question would arise whether the interpretation of G.O.Ms.No.37 dated 18.02.2005 as suggested by the learned Government Pleader would be justified having regard to the directive principles of state policy and the provisions contained in Part IX of Constitution as amended by the Constitution (Seventy-third Amendment) Act, 1992. The constitutional advice in Article 40 of Constitution that State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-Government remained, as empty formality till 1992. This was realised and Parts IX and IXA of Constitution were enacted by Constitutional amendment Acts giving the constitutional status to local bodies – Panchayats at the rural level and municipalities at the urban level. Article 243G of Constitution requires the State to 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 devolution of powers and responsibilities on the Panchayats. These powers are intended to enable GPs to take up activity for economic development and social justice as well as implementation of schemes in relation to matters listed in Eleventh Schedule of Constitution, which contains eleven entries. These embrace all activities of economic development and social justice. A Full Bench consisting of five learned Judges of this Court in Ranga Reddy District Sarpanches’ Association v. Government of A.P.[3] considered the impact of Part IX of Constitution on the existing constituency scheme. Incidentally the question whether Part IX of Constitution gives limited autonomy or confers full autonomy on panchayats without State’s role in the functioning of the panchayats was considered. By a majority of 4:1, the larger Bench held that Article 243G of Constitution is an enabling provision, that the directives envisaged by Article 243G of Constitution are discretionary in nature and that they do not in any manner divest the State from regulating and controlling the functioning of the Panchayats. The majority also held as under. “Good governance also is one of the essential facets of democracy. Public administration is an art and a science as well. Local self-Government is a part of this system. Policy making and implementation mechanism, though are two different concepts, in certain areas the demarcating line between these two will be very thin and even overlapping at times. Panchayat as an institution should be viewed for conferment of powers in administering them and the elected representatives cannot be viewed in total isolation of the other part of this Institution. It is true that democratically elected representatives should have a say in the policy making subject to the checks and balances within the limits and parameters of limited autonomy. The statement of objects and reasons of the Act do reveal that the legislation had been thought of only to further the intent of 73rd Constitutional Amendment…” Thus whenever the State legislature enacts a law on panchayats or State executive steps in to issue guidelines and executive instructions with a view to confer powers on the panchayats to enable them to implement schemes of economic development, such instructions cannot ignore the constitutional provisions in Part IX of Constitution and the underlying principle of democratic decentralization and empowerment of people. It is well settled proposition of interpretation of law that the Court should adopt such interpretation, which would render legislature or an executive action constitutional. Interpretation, which would render any provision of law or any Government Order constitutionally invalid, should be avoided. Section 45 of the Act enumerates the duties of GP and Section 46 of the Act contains the powers of GP to provide for certain matters. All the developmental activities like construction of buildings, laying of public roads, construction of drains, cleaning of streets and providing of burial grounds are entrusted to GP. Section 46 of the Act confers powers on GP to take up these works. Indeed there are provisions in the Act, which vest lands, water bodies, open spaces etc., in GP. Ultimately either under Article 243G of Constitution read with Eleventh schedule or Sections 45 and 46 of the Act, responsibility for the welfare of villagers in GP lies with the duly elected panchayat. Apart from the above general provisions regarding entrustment of works and services to GP, Section 49 of the Act directly deals with the matter, which reads as under. 49. Transfer to panchayats of institutions of works: - (1) Subject to such rules as may be prescribed, the Government, the District Collector or the Revenue Divisional Officer, Mandal Parishad or Zilla Parishad or any person or body of persons, may transfer to the gram panchayat, with its consent and subject to such conditions as may be agreed upon, the management of any institution, or the execution or maintenance of any work, or the exercise of any power or the discharge of any duty, whether within or without the village and whether provided for in this Act or not. (2) When the management of any institution is transferred to the gram panchayat under sub-section (1), all property, endowments and funds belonging thereto, shall be held by the gram panchayat in trust for the purposes to which such property, endowments and funds were lawfully applicable at the time of such transfer. In plain terms Government, District Collector, RDO, Mandal Parishad or Zilla Parishad or any body of persons to transfer to GP management of an institution or execution or maintenance of any work or exercise of any power or discharge of any duty under the Act. When G.O.Ms.No.37 was issued it is reasonably to infer that Government were aware of Section 49 of the Act, so to say G.O.Ms.No.37 cannot be treated as an administrative order simpliciter. It has the backing and support of Constitution as well as relevant provisions in the Act. The purpose behind this is that the benefit of economic activity undertaken by GP should be enjoyed by all the villagers/constituents of GP and not DWACRA/SHGs, which have basically an element of selfish interest, namely, provision of work for their members. It was never the intention of the Government to provide and entrust works to such self-serving groups. If G.O.Ms.No.37 dated 18.02.2005 is read as enabling sanctioning authorities like MPDO of MPs or Chief Executive Officer (CEO) of Zilla Parishad (ZP) to allot/entrust works to DWACRA/SHGs, the same would deviate from the purpose behind issue of G.O.Ms.No.37. Such interpretation cannot be adopted. The submission made by the learned counsel for the petitioners commends itself to this Court that though paragraph 6 of G.O.Ms.No.37 dated 18.02.2005 also refers to SHG, the intention was to entrust the works to HLC/HWC/VLC. An argument has been put forth by the learned standing counsel for GP. He submits that when funds allocated to GP are spent for various works, then only GP has exclusive authority to allot the works to HLC/HWC. According to the learned counsel the same is not the case when the funds are initially allotted to MPs and ZPs who in turn reallot the funds to GPs. The submission is wholly misconceived and ignores the concept of panchayat administration. A reading of Articles 243 and 243B of Constitution would show that at macro level “Panchayat” includes all units of local governance at village, intermediate and district level. In common parlance though the term “Panchayat” refers to the unit of administration at the village level, as per Constitution, entire three tire panchayat system (apex organisation is ZP, intermediate unit is MP and the gross root village Panchayat) is included in the term “Panchayat”. If the funds are allotted to ZP or MP, they cannot probably claim that those funds exclusively belong to them. One should not forget that all duly constituted village level GPs form part of a particular MP and also ZP. For the sake of administrative and political convenience tricotomy is maintained but in allocation of funds and spending of funds, it is ultimately GP, which is beneficiary. The argument of learned Government Pleader is also weak for two reasons. First, when the funds are placed with ZP either under Central Government Scheme or State Government Scheme, these funds are intended to be distributed to GPs through MPs or directly to GPs. Similar is the case when funds are allocated to MPs. Secondly order in G.O.Ms.No.37 dated 18.02.2005 do not make any distinction. It is to the effect that whenever works are taken up at Panchayat level either utilizing panchayat funds or MP funds or ZP funds, all works upto Rs.5.00 lakhs shall have to be entrusted to HLC/HWC/VLC. The submission, therefore, is rejected. Again reverting to G.O.Ms.No.37 dated 18.02.2005, in the considered opinion of this Court, the Government order enables GP to constitute WC. Such WC will this constitute HWC for execution of works. Such HWC shall comprise of people pertaining to GP only like VSS Chairman, MPTC, VEC, elderly persons with works knowledge, DWACRA group and such WC will designate one of them as Chairman. If GP fails to constitute either WC or HWC within the time fixed by the concerned MPDO or Divisional Panchayat Officer, MPDO concerned will constitute HWC in the interest of development in the village. As and when works are taken up either by utilising panchayat funds or as and when funds are sanctioned by MPDO/CEO, WC has to select an agency to execute the work. Under no circumstances, an individual can be entrusted with works on nomination basis. It is only the agency like HWC/HLC/VLC that can be entrusted the work. Though the leader of SHG is one of the members of WC, curiously such leader of HWC is not included in HWC. This would show that SHG/DWACRA have some say in the allotment of works to an agency but such SHG/DWACRA cannot claim allotment of work to themselves. This Court directed the learned Government Pleader to produce necessary District-wise details in regard allotment of works to GPs. He has produced these details in support of his submission that in all the districts, works are being allotted to HWCs through WC of GP in full compliance with the guidelines in G.O.Ms.No.37 dated 18.02.2005. These are as follows. TABLE – I Total number of works in Panchayat Raj including works below Rs.5.00 lakhs and allotment thereof . Name of the District Name of the Agency GP/ MP/PR Div/ ZP Total works executed in Panchayat Raj since inception of the G.O.Ms. No.37 under… No. of works en- trusted to GPs upto R.5 lakhs under GO Ms. No.37 Total value of works in Rs. Lakhs No. of works en- trusted to others under nomi- nation basis Total value of works in Rs. lakhs SGRY 11th Fin. Com Other schemes Total 2 3 4 5 6 7 8 9 10 11 Adilabad All 5142 --- 1008 6150 526 932.31 52 100.18 Ananthapur All 2767 --- 3587 6354 2082 983.73 1784 2755.39 Chittoor All ---- --- 3265 3265 --- --- 3265 4080.468 Kadapa All 2384 --- 1406 3790 1406 Executed Departmentally East Godavari All Nil Nil Nil Nil Nil Nil Nil Nil Guntur All 418 67 1410 1895 371 638.94 772 1825.95 Karimnagar All Nil 369 2928 3297 1317 1492.34 1980 1168.76 Khammam All --- --- 470 470 442 1070.30 28 96 Krishna All 972 359 1020 2351 1356 2648.51 455 1081.496 . Kurnool All 136 89 399 624 371 258.51 253 160.40 . Mahab’nagar All 5229 6199 --- 11528 9881