High court Judgement on G.O.37 date 18-02-2005

Rahmanpuram Gram Panchayat & Others
v./s
The Government of Andhra Pradesh, Rep. by its Secretary, Panchayat Raj Department, Hyderabad & Others

(High Court Of Telangana)

Writ Petition No. 4311, 4321, 4343, 4348, 4372 & 4540 Of 2010 | 07-06-2010

These six writ petitions can be conveniently disposed of by a common order as all the writ petitions are filed by Village Gram Panchayats represented by Sarpanches aggrieved by the action of the respondents in not entrusting the construction of Watershed to the Village Habitation Works Committee (VHWC) constituted by the respective Gram Panchayats in accordance with G.O.Ms.No.37, Panchayat Raj & Rural Development (PROGS.IA) Department, dated 18.02.2005, and G.O.Ms.No.10, dated 10.01.2006.

It is the contention of the petitioners that all the works under Food for Work Programme (FWP) with or without rice component whose value is less than Rs.5,00,000/- are ought to be entrusted to VHWC and the watershed construction/maintenance works are also ought to be entrusted to the Gram Panchayats. They relied on the two Government Orders referred to hereinabove and also a judgment of this Court in Pallamalli Gram Panchayat, Pallampalli Village v Government of Andhra Pradesh (2008 (5) ALD 246) in support of the contention. Respondents who filed counter affidavit of respondent No.3 opposed the writ petition. Their grievance is that the construction/maintenance of Watershed is a programme fully/partly funded by the Central Government, that the project of Watershed in identified places has to be carried out in accordance with the Common Guidelines for Watershed Development Projects, 2008 (hereinafter referred to as, Guidelines), issued by the Government of India and that as per these Guidelines the Gram Panchayats have a limited role of supervising the works and they cannot be entrusted with the construction of the watershed projects. After giving due consideration to rival submissions and examining them in the light of the Guidelines, this Court is of considered opinion that these writ petitions should be dismissed for the reasons that follow.

The purpose and purport of G.O.Ms.No.37 has been elucidated in Pallamalli Gram Panchayat (supra). Instead of again redoing exercise, for the sake of convenience, paragraphs 7 and 8 from the said judgment may be adopted herein also.

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.

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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:

1. 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.
2. The concerned Gram Panchayat will resolve and from the above Committee (HWC) for execution of works dovetailed with rice in that Gram Panchayat.
3. 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.
4. 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.
5. 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.,
6. 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.
7. Durable assets which are useful for community shall be taken up.
8. Under no circumstances, the works shall be grounded prior to issue of Administrative clearance.
9. Only workers from the same village shall be engaged.

(6. (j) to (p) omitted)

The Government order on which much emphasis is laid consists of eight paragraphs. Paragraphs 7 and 8 are the direction portions with which we are not concerned. Paragraph 1 is like a preamble to the order and paragraph 3 and paragraph 4 speak of background, whereas paragraph 6 contains guidelines. Paragraph 2 contains historical aspects, besides explaining the scope of entrustment of works to Panchayats. Paragraph 2 reads as under.

Government have issued detailed guidelines for implementation of Food for Work Programme. The Food for Work Programme should be implemented by all departments of the Government /agencies /Corporations /Self Help Groups, Habitation Committees, Panchayat Raj Institutions, Market Committees. Works may also be entrustment to NGOs, Voluntary agencies on the Certification that the works taken up by such agency for creation of community assets. Works shall not be let out on nomination. However, execution of works may be entrusted to self Help Group, School Education Committee, Gram Panchayats, Rytu Mitra-farmers club. Whenever watershed/VSS/Water User Committees are not constituted formally, the works can be executed by the User Groups consisting of stake holders for a given work/structure.

A bare perusal of paragraph 2 extracted hereinabove would show that as a part of inclusive development at the gross roots level in the Villages, the Government issued guidelines from time to time for implementation of FWP which are to be implemented by Governmental agencies as well as non Governmental agencies in addition to Panchayat Raj Institutions. Such works can be entrusted to Self Help Groups, School Education Committees, Gram Panchayats, Rytu Mitra-Farmers Club. However, an exception is carved out in respect of Watershed/Vana Samrakshana Samithi/Water User Committees. Whenever Watershed construction works are taken up, they are to be entrusted exclusively to Watershed Committees, if they are formed, and in the absence of such committees, the work has to be entrusted to User Groups. The Panchayat Raj Institutions like Gram Panchayats have no right to claim the allotment of watershed project works. Therefore, ex facie the reliance placed by these Gram Panchayats on G.O.Ms.No.37 is misconceived, and the two Government Orders and judgment of this Court in Pallamalli Gram Panchayat (supra) do not support, nor sustain the petitioners’ contention.

The Guidelines issued by the Central Government in 2008 for Watershed Development Projects are elaborate and comprehensive. Guidelines 5.4, 6.3, 8.2 and 11.4 would show that the Gram Panchayat has a limited role after completion of construction of watershed, that too, if the Gram Panchayat is willing to take up the maintenance of Watershed the same may be entrusted to Gram Panchayats. The Gram Panchayats have no say or role in execution of watershed project works although they may play some role in identifying the projects for development of Watershed. For the sake of ready reference, the relevant guidelines referred to in this paragraph are extracted below.

5.4 Role and Responsibilities of WDT

The WDT (Watershed Development Team ) will guide the Watershed Committee (WC) in the formation of the watershed action plan. An indicative list of the roles and responsibilities of the WDT would include among others, the following.

1. Assist Gram Panchayat/Gram Sabha in constitution of the Watershed Committee and their functioning.
2. Organizing and nurturing User Groups and Self-Help Groups.
3. Mobilising women to ensure that the perspectives and interests of women are adequately reflected in the watershed action plan.
4. Conducting the participatory base-line surveys, training and capacity building.
5. Preparing detailed resource development plans including water and soil conservation or reclamation etc. to promote sustainable livelihoods at household level.
6. Common property resource management and equitable sharing.
7. Preparing Detailed Project Report (DPR) for the construction of Gram Sabha.
8. Undertake engineering surveys, prepare engineering drawing and cost estimates for any structures to be built.
9. Monitoring, checking, assessing, undertaking physical verification and measurements of the work done.
10. Facilitating the development of livelihood opportunities for the landless.
11. Maintaining project accounts.
12. Arranging physical, financial and social audit of the work undertaken.
13. Setting up suitable arrangements for post-project operation, maintenance and future development of the assets created during the project period.

6.3 Watershed Committee (WC)

The Gram Sabha will constitute the Watershed Committee (WC) to implement the Watershed project with the technical support of the WDT in the village. The Watershed Committee (WC) has to be registered under the Society Registration Act, 1860. The Gram Sabha may elect/appoint any suitable person from the village as the Chairman of Watershed Committee. The secretary of the Watershed Committee (WC) will be a paid functionary of the Watershed Committee (WC). The Watershed Committee (WC) will comprise of at least 10 members, half of the members shall be representatives of SHGs and User Groups, SC/ST community, women and landless persons in the village. One member of the WDT shall also be represented in the Watershed Committee (WC). Where the Panchayat covers more than one village, they would constitute a separate subcommittee for each village to manage the watershed development project in the concerned village. Where a watershed project covers more than one Gram Panchayat, separate committees will be constituted for each Gram Panchayat. The Watershed Committee (WC) would be provided with an independent rented office accommodation.

The Watershed Committee will open a separate bank account to receive funds for watershed projects and will utilize the same for undertaking its activities. The expenses towards the salaries of the WDT members and Secretary of Watershed Committee (WC) shall be charged from the administrative expenses under the professional support to the PIA (Project Implementing Agency).

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8.2 Watershed Works Phase

This phase is the heart of the programme in which the DPR (Detailed Project Report) will be implemented. Some of the important activities to be included in this phase are:

1. Ridge Area Treatment: All activities required to restore the health of the catchment area by reducing the volume and velocity of surface run-off, including regeneration of vegetative cover in forest and common land, afforestation, staggered trenching, contour and graded bunding, bench terracing etc.
2. Drainage line treatment with a combination of vegetative and engineering structures, such as earthen checks, brushwood checks, gully plugs, loose boulder checks, gabion structures, underground dykes etc.
3. Development of water harvesting structures such as low-cost farm ponds, nalla bunds, check-dams, percolation tanks and ground water recharge through wells, bore wells and other measures.
4. Nursery raising for fodder, fuel, timber and horticultural species. As far as possible local species may be given priority.
5. Land Development including in-situ soil and moisture conservation and drainage management measures like field bunds, contour and graded bunds fortified with plantation, bench terracing in hilly terrain etc.
6. Crop demonstrations for popularizing new crops/varieties, water saving technologies such as drip irrigation or innovative management practices. As far as possible varieties based on the local germplasm may be promoted.
7. Pasture development, sericulture, bee keeping, back yard poultry, small ruminant, other livestocks and other micro-enterprises.
8. Veterinary services for livestock and other livestock improvement measures.
9. Fisheries development in village ponds/tanks, farm ponds etc.
10. Promotion and propagation of non-conventional energy saving devices, energy conservation measures, bio fuel plantations etc.

11.4 Outcomes/End Results

Each Watershed Development Project is expected to achieve following results by the end of the project period:

1. All the works/activities that are planned for the treatment and development of the drainage lines, arable and non-arable lands in the watershed area are completed with the active participation and contribution of the user groups and the community at large.
2. The user groups/panchayats have willingly taken over the operation and maintenance of the assets created and make suitable administrative and financial arrangements for their maintenance and further development.
3. All the members of the Watershed Committee and staff such as Watershed Secretary and Volunteers have been given orientation and training to improve their knowledge and upgrade technical/management and community organizational skills to a level that is appropriate for the successful discharge of their responsibilities on withdrawal of the Watershed Development Team from the Project.
4. The village community would have been organized into several, homogeneous self-help groups for savings and other income generation activities which would have achieved sufficient commitment from their members and built up financial resources to be self sustaining.
5. The increase in cropping intensity and agricultural productivity reflecting in overall increase in agriculture production.
6. Increase in income of farmers/landless labourers in the project area.
7. Increase in groundwater table due to enhanced recharge by watershed interventions.

(emphasis supplied)

Counsel for the petitioners relies on Article 40 and Article 243B of the Constitution of India in support of the contention that all developmental works in the Gram Panchayat are to be executed by VHWC. The submission cannot be accepted. There is no dispute or denial that Article 40 being a Directive Principle is unenforceable in Court of law. There is also no dispute or denial that under Article 243G(b) so far no law has been made by the State Legislature endowing Gram Panchayat with powers in relation to Watershed. That leaves the only Guidelines issued by Central Government which have given a limited role to the Gram Panchayat in identifying areas for Watershed Committees, constitution of Watershed Committees to Gram Sabha, and, if willing, to take up the maintenance of watershed after completion of its construction. Therefore, viewed in any view of the matter the writ petitions are filed without having any right to seek such a remedy. Furthermore, no resolution of the Gram Panchayat is filed before this Court authorizing the Sarpanch to approach the Court. This Court is, therefore, of considered opinion that the Sarpanches who appear to have some vested interest in procuring Watershed projects have filed these writ petitions without proper authority of the Gram Panchayat or Gram Sabha.

The Writ Petitions are without any merits, and therefore, they are accordingly dismissed.

Rahmanpuram Gram Panchayat & Others v. The Government of Andhra Pradesh, Rep. by its Secretary, Panchayat Raj Department, Hyderabad & Others.

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