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Andhra Pradesh High Court
Judges : B.SUBHASHAN REDDY, DEVENDER GUPTA, GODA RAGHURAM, MOTILAL B.NAIK, P.S.NARAYANA
Ranga Reddy District Sarpanches Association - Appellant
Versus
Government Of A.P., Panchayat Raj Department, Hyderabad - Respondent
Decided On : 01-29-04
Constitution of India – Articles 245, 256, 243-G, 226, 143, 16(4),19 (1) (a) – A. P. Panchayat Raj Act, 1994 – Sections 32, 60, 62, 77, 137, 167, 174, 186, 199, 31, 32 (c), 43, 60, 61,62, 71,77, 137,158, 167, 174,186, 187 193 199, 249 and 250 – A. P. Urban areas (Development) Act – Section 43 –Issue on flaws of Powers of Panchayat Raj –The challenge by the petitioners and the defence of the State Government, to the state action qua the provisions of the Act, rules and administrative instructions are primarily predicated upon adversarial interpretations of the provisions of articles 243-G and 243-H of the Constitution – learned counsel appearing for the intervenes has supplemented the arguments urged on behalf of the writ petitioners –He has placed before this court for its perusal, a report of the Lok Satta Committee on empowerment of Local Government –This report points out serious flaws and shortcomings in the process of decentralization and devolution of powers to Panchayat Raj institutions in the state in the area of endowment of functions, finances and functionaries –This process has negated the fundamental postulate of good governance which requires that those who exercise power and accountable to those from whom they derive such power –Held, Court has noticed earlier in this judgment that the State is a component of the federal structure under our Constitution and the Panchayats are not –However, consequent on the 73rd Amendment, the panchayats are guaranteed a role in governance, at the sub-state level –Their governance structure is democratic and republican –This characteristic of the panchayats is a constitutional grant and must be accorded a meaning, which needs be effectuated –The Panchayats are legal inhabitants of the constitutional space and have a legitimate share in the governance process though at the sub-State level –They are more than mere dependencies of the state – They are also self-goernment (s ) –Court has identified the constitutional mandate and the instructions contained in the provisions of Part-IX, in particular articles 243-G and H and have pointed out the balancing requirements obligated on the state, in the post 73rd Amendment constitutional context –The overlapping and manifolding constitutional principles require sensitive legislative approach to effectuate the purposes and the mandate of Part-IX of the Constitution while preserving the larger state concerns – Writ Petition involves a specific and narrow issue challenge to the memo issued by the State Government –This Bench need not consider the lis presented in this writ petition –This writ petition is accordingly remitted for consideration to the appropriate bench for disposal on its merits and in the light of the analyses, conclusions and declaration, in this judgment – Writ Petitions dismissed
( 1 ) THE impact of Part IX of the Constitution on the existing constitutional scheme and distribution of legislative powers under the panchayat Raj System;; and whether part IX gives limited autonomy or confers full autonomy without State s role in the functioning of the Panchayats are the core questions involved in these petitions. Whether Part IX of the Constitution overrides articles 245, 256 and List-II of the Seventh schedule of the Constitution is one of the consequential questions, which also fall for consideration. But the basic question is about the extent of the power of judicial review available in such like matters where the question is about the sufficiency or inadequacy of power or authority conferred upon the Panchayat Raj institutions.
( 2 ) WE had the benefit of perusing the separate Judgments prepared by our learned brothers G. Raghuram, J. and p. S. Narayana, J. Both the learned Judges have analysed the issues in detail with reference to the various provisions of the constitution, the A. P. Panchayat Raj Act, 1994 (Act, No. 13 of 1994), the constitutional validity of which has been challenged in the petitions, the Rules framed thereunder and various administrative instructions issued by the State Government. Brother g. Raghuram, J. in his separate opinion has held that organising the Panchayat Raj institutions do not constitute the third tier of the federal structure exemplifying a further unit in the vertical division of the governance power under the Constitution, with which we fully agree.
( 3 ) BROTHER G. . Raghuram, J has further opined that the discretion with the legislature of a State in the matter of the extent of power, authority and responsibilities to be conferred on the panchayats is not absolute rather it is obligatory on the part of the State Legislature to apportion and devolve powers and responsibilities upon the Panchayat Raj institutions in the State (Village, Intermediate and District levels) in respect of the matters enumerated in Clauses (a) and (b) of article 243-G of the Constitution including the matters listed in Eleventh Schedule. The discretion is conditioned by the constitutional instructions that the Panchayats should be enabled to function as institutions of self Government. Any effort on the part of the state Legislature that divests or withholds conferment of effective power of self- governance on the elected representatives of the Panchayats would tantamount to a legislation that subverts the constitutional powers delineated in Part IX of the constitution. He has also taken a view that denial by the State Legislature of any financial resources to the Panchayts would negate the Constitutional purpose. In the view of the matter, he has observed that some of the provisions of A. P. Panchayat raj Act, 1994 including Sections 32, 60 to 62, 77, 137, 167, 174, 186 and 199 negatively impact the "self-Government" characteristics of the Panchayats without discernible and redeeming State interest and legitimate governmental purposes and the complementary statutory rules and the administrative instructions also transgress the constitutional limitations on the States role and are far beyond the permissible limits of participation and control with respect to the Panchayats. The offending provisions of the Act in his view are so interwoven with the other provisions of the Act, they cannot be considered or treated as stand alone provisions and has thus proposed to declare the said Act as unconstitutional. He has opined that what the Constitution implies, intends, means, commands and expects is not fulfilled by the A. P. Panchayat Raj Act, 1994.
( 4 ) WITH due respect, we are unable to agree with the above views expressed by our esteemed brother G. Raghuram, J. in his separate Judgment.
( 5 ) BROTHER P. S. Narayana, J. in his separate Judgment after observing that provisions of 1994 Act have been challenged only on the ground that they contravene part IX of the Consti
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