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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. ANAND VENKATESH, J.
C. Mamimala – Appellant
Versus
Director, Rural Development & Panchayat Raj Department, Panagal Building, Chennai & Another – Respondent
WP. Nos. 14020, 12471, 11009, 11515, 1693, 11742, 11749, 12091, 12098, 12118, 12141, 2159, 12163, 12169, 12172 of 2020 etc.,
Decided on : 09-10-2020
PANCHAYAT - TENDER - 14TH FINANCE COMMISSION GRANT - UTILIZATION - BYPASSING ELECTED BODY - VALIDITY - GUIDELINES OF FINANCE COMMISSION - VIOLATION - INDEPENDENCE OF PANCHAYAT - CONSTITUTIONAL STATUS - INTERFERENCE - PROHIBITION - TENDER PROCESS - TERMINATION - FRESH PROPOSALS - SUBMISSION BY PANCHAYAT - DIRECTIONS.
Fact of the Case:
Petitions challenging the action of Respondents in utilizing the funds meant for the Panchayats from and out of the 14th Financial Commission (FFC) and utilizing the same for carrying out the works and particularly, the work of upgradation of roads in the respective villages falling within the panchayats, without the concurrence of the elected body in the respective panchayats. Petitioners also questioned the calling of tender by the Respondents for carrying on with the upgradation of road work in the respective panchayats.
Finding of the Court:
1. The tender process initiated by the Respondents was interfered with and the entire process was terminated. 2. Wherever, the work orders have already been issued, the work can continue and this order will not stand in the way for the completion of the work which has already commenced. 3. The concerned panchayats shall deliberate and decide on the works to be carried out after consultation with the Gram Sabha and submit fresh proposals for the utilization of the funds and the Respondents shall thereafter, act in accordance with law by expediting the works and ensure proper utilisation of the funds. 4. Fresh tender process shall thereafter, be initiated in accordance with law for the purpose of identifying the contractor for carrying out the work.
Issues: 1. Whether the Respondents can proceed further to issue tender notification to appoint contractors for carrying on the road works without any consultation with the elected body. 2. Whether the initiation of work had started even before the elected body took charge.
Ratio Decidendi: 1. The elected body of the panchayat has been completely bypassed and the Executive is proceeding further to independently implement the works. The same is clear from the communication dt. 05.11.2019 made by the Director of Department of Rural Development and Panchayat Raj to all the District Collectors and also the letter dt. 17.06.2020 again issued by the Director of Department of Rural Development and Panchayat Raj to all the District Collectors. 2. A careful reading of the judgment rendered by the learned Single Judge shows that the scenario that was prevailing is the same as in the present case also. The same is clear on a careful reading of paragraph 17 of the said judgment. The learned Single Judge has taken note of the fact that when the communication dt. 05.11.2019, was issued by the Director of Department of Rural Development and Panchayat Raj, there was no elected body available. After giving such a finding, the learned Single Judge takes note of the fact that the elected body assumed charge during January 2020. Thereafter, the learned Single Judge has directed the tender process to be terminated and allowed the Village Panchayat to deliberate and submit fresh proposals for utilisation of the funds to carry on with the work.
Final Decision: All the Writ Petitions were allowed on the above terms. No costs.
JUDGMENT :
(Prayer in W.P. No.:- Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus forbearing the 1st and 2nd respondents dated 18.08.2020 in Lr.No.16909/2020/TU1 from processing, conducting or finalizing any tenders in any form relating to any works mentioned in the said letter.)
1. These batch of Writ Petitions have been filed by the Presidents of various Panchayats challenging the action of the Respondents in utilizing the funds meant for the Panchayats from and out of the 14th Financial Commission (hereinafter referred to as “FFC”) and utilizing the same for carrying out the works and particularly, the work of upgradation of roads in the respective villages falling within the panchayats, without the concurrence of the elected body in the respective panchayats. Apart from the said challenge, the Petitioners have also questioned the calling of tender by the Respondents for carrying on with the upgradation of road work in the respective panchayats.
2. The common grievance of the Petitioners is that the local body elections which were due in October 2016, was not conducted till the year 2019. During the interregnum period, in order to administer the local bodies such as the Corporations, Municipalities, Town Panchayats, District Panchayats, Panchayat Unions and Village Panchayats, Special Officers were appointed in all the local bodies to perform the functions of the respective local bodies. Ultimately, the elections were held in December 2019 and all the office bearers took charge during the first week of January 2020. Thereby, the tenure of the Special Officer came to an end and the elected body assumed charge. In spite of the same, the Respondents were utilising the funds from and out of the 14th FFC and started calling for tenders to appoint contractors to carry on with the work of upgradation of roads in various panchayats. According to the Petitioners, this was done without the concurrence of the elected body and the elected body was completely side-lined and the Executive was continuing to call for the tenders independently and was also taking hasty steps to commence the work. Aggrieved by the same, the above batch of Writ Petitions have been filed before this Court.
3. The Director of Department Rural Development and Panchayat Raj has filed a common counter affidavit in all the Writ Petitions. The relevant portions in the counter affidavit are extracted hereunder:
“8. The Government of India has earmarked a sum of Rs.1516.12 Crore for 2017-l8, Rs.1753.87 crore for 2018-19 and Rs.2369.86 crore for 2019-20 under Fourteenth Finance Commission Basic Grant for Tamil Nadu. While the funds earmarked for the year 2017-2018 and 2018-19 were released to all the Village Panchayats. The funds earmarked for 2019-20 was released only to the Village Panchayats in 27 districts, i.e. an amount of Rs.1820.11 crore, where the local bodies have been constituted.
9. It is submitted that considering the importance of improving the Village Panchayat Roads as indicated earlier it was decided to utilize the funds under 14th Finance Commission for the purpose of improving the Village Panchayat roads in a project mode. Accordingly, during the financial year 2018- 19, 1,504 KM length of Village Panchayat roads were taken up for improvement at a cost of Rs.300.33 crore. In continuation of this, 1622 KM length of roads was sanctioned at a cost of Rs.359.83 crore under 14th Finance Commission during 2019-20 using 1st installment of funds and another 399.33 crore was proposed to be taken up by using 2nd instalment funds under the financial year 2019-20, which is being challenged now. The works taken up by using 1st instalment of funds for the year 2019-20 was tendered at the District Level only and the same procedure was adopted for the 2nd installment also. In short, considering the quantum of funds involved the implementation process was conceived as a scheme and directions issued accordingly.
10. It is submitt
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