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Judgment
S.J. Mukhopadhaya, J.—This appeal has been preferred by the State of Tamil Nadu against the judgment dated 24th Nov., 2004, passed
by the learned single Judge in W.P. No. 15347/97. By the aforesaid judgment, learned single Judge, while allowed the writ petition, declared Rule
2(e) of the Tamil Nadu Panchayats Building Rules, 1997, made under the Tamil Nadu Panchayats Act, 1994, as illegal and unconstitutional.
The appellant has assailed the judgment mainly on the ground that the learned single Judge failed to consider the mandate of Constitution
empowering the Panchayat under Part IX of the Constitution and the rule has been declared ultra vires on mere presumption that the delegation of
power to the ''Head of the Panchayat'' is excessive and uncalled for.
Inspite of service of notice, the contesting respondent/writ petitioner has not appeared to oppose the appeal.
For determination of the issue, it is necessary to discuss relevant background of the rules, including Rule 2(e), as noticed hereunder.
Prior to issue of the present Tamil Nadu Panchayats Building Rules, 1997, (hereinafter referred to as ''Rules, 1997''), the Tamil Nadu Panchayats
Building Rules, 1970, (hereinafter referred to as ''Rules, 1970'') were in force. Under Rule 2(e) of rules, 1970, the ''Commissioner of the
Panchayat Union'' was the ''Executive Authority'', who was empowered to grant approval of a site and to grant permission to execute any work.
Now, pursuant to present Rules, 1997, the ''Head of the Village Panchayat'' has been made ''Executive authority'' for exercising such power, which
reads as follows:
* * * * * * * *
(e) ""executive authority"" means the president of the village panchayat.
* * * * * * * *
Under Rule 3 of Rules, 1997, no owner or other persons could layout a street, lane, passage or pathway or subdivide or utilise the lane or any
portion or portion of the same on the sides for building purposes until a layout has been approved by the executive authority, who is supposed to
get prior concurrence of the Director of Town and Country Planning. The said Rule 3 of Rules, 1997, reads as follows:
Application for approval of layout of sites. - (1) No owner of other persons shall layout a street, lane, passage or pathway or sub-divide or
utilise the land or any portion or portions of the same on the site or sites for building purposes until a layout plan has been approved by the
executive authority who shall get prior concurrence of the Director of Town and Country Planning or his authorised Joint Director or Deputy
Director of Town and Country Planning for such approval. In cases of layout abutting national highways, State highways and by-pass roads
thereof, the concurrence of the divisional Engineer (Highways and Rural Works) under whom the control of the road is vested shall also be
obtained by the executive authority. The application for approval or such layout plan or sub-division shall be submitted to the executive authority in
the form specified in Appendix-A with such variation as circumstances may require;
(2) The application shall be accompanied by a layout plan or plans (in triplicate) of the land to be laid out into house-sites, as far as may be
necessary.
(3) The application for layout approval shall be accompanied by an up-to-date encumbrance certificate of the land specifying ownership and also
the authenticated survey sketch. It shall be entertained only from the owner of the land or from any other person who possesses the power of
attorney duly registered.
(4) The owner of the land to be laid out shall while submitting the application and plans required under Sub-rule (1) submit a letter of consent
relinquishing the land required for such streets, lanes, passages, common construction and pathways in favour of the executive authority.
(5) Every street, lane, passage and pathway shall be demarcated formed and constructed including paving, metalling, flagging, channelling,
sewering, draining, conserving and lighting by the owner of the land in accordance with the provision of the layout for the proper development of
the area ensuring safety and convenience of the public and all expenses incurred thereof shall be paid by the owner of the land at his expenses,
while submitting the application required under Sub-rule (1).
(6) The owner of the land to be laid out shall not proceed to sub-divide or utilise the site or sites intended for building purposes unless he has
complied with the requirements of Sub-rules (1), (2), (3), (4) and (5).
(7) The executive authority may require the applicant to furnish any information which has not already been furnished or to satisfy him that there are
no objections which may lawfully be taken to the grant of approval.
(8) If, any information required under Sub-rule (7) is in the opinion of the executive authority, incomplete or defective, he may require further
information to be furnished.
(9) If, any requisition made under Sub-rule (7) or (8) is not complied with, within one month, the application shall be rejected.
(10) The executive authority may as soon as may be, after sixty days from the date of receipt of the application --
(a) grant the approval applied for either absolutely or subject to such conditions as he thinks fit to impose; or
(b) refuse approval if he is of opinion that such work is contrary to the conditions specified under the approved plan.
(11) No site or any new layout of site lying within a distance of thirty metres from the railway boundary shall be used as a site for the construction
of a building or to a hut shall masonry construction.
It is pertinent to mention that the respondent/writ petitioner had not challenged Rule 3, but has challenged only the definition of ''Executive
Authority'' as prescribed under Rule 2(e) of Rules, 1997.
From the impugned judgment, it will be evident that the learned single Judge has not declared Rule 3 as ultra vires Article 14 of Constitution of
India. No declaration has been given that the executive authority has been vested with excessive or unbridled power, which will tend to
arbitrariness and will give rise to violation of Article 14. Learned single Judge has declared Rule 2(e) of Rules, 1997, unconstitutional mainly on the
basis of the following grounds:
a) The State Government has exercised powers u/s 242 of the Tamil Nadu Panchayats Act, 1994, for supersession of the Tamil Nadu Panchayats
Building Rules, 1970, but has not mentioned or made it known its object sought to be achieved.
b) The very scheme of formulation of the act, particularly the vesting of the powers of approval of layouts and sites for buildings and huts if taken
out from the Panchayat Commissioner and vested with the village panchayat, must be built on sound principles and strong reasons in making such
legislation or rule, which has not been done.
c) The power has been vested with the President of the village panchayat designating him as ''executive authority'' for approving layouts and plans,
though he has no technical knowledge.
d) The very term ''executive authority'' itself would go a long way to convey the meaning that the authority must be an executive and qualified to
deal with subjects, which are technical in nature, such as one in hand, which pertains to granting approval to building structures and layouts.
e) The elected members, such as President, need not necessarily be well versed to grant such permission or approval or in sanctioning layouts. The
Commissioner of Panchayat Union, being a public servant, revolving under the Government, is in a far better position to deal with the subject within
the panchayat.
Before deciding such issue, it is desirable to notice the object of repeal of Tamil Nadu Panchayats Act, 1958 and Rules, 1970 framed
thereunder and for re-enacting a new Act, ""The Tamil Nadu Panchayats Act, 1994"" (Tamil Nadu Act 21 of 1994) and framing a new rule, ""The
Tamil Nadu Panchayats Building Rules, 1997) thereunder.
Initially there was no constitutional mandate to have a panchayat in each village. Acts and rules were framed in different State for the constitution of
such panchayats, such as the Tamil Nadu Panchayats Act, 1958. In the year 1992, the Constitution (73rd Amendment) Act, 1992 was introduced
and came into effect. The main feature of the amendment was to introduce panchayat system at the grass-root level to strengthen the panchayat
system by giving it a constitutional basis. A new part, Part-IX, was added to the Constitution consisting of Article 243 to 243(O) and a new
Schedule, viz., Eleventh Schedule was added. The underlying idea was to make the panchayat as vibrant units of local administration in the rural
area. It was designed to establish strong, effective and democratic local administration, which may lead to rapid implementation of rural
development programmes. It was passed pursuant to directive principles contained in Article 40, which lays down that the State shall take steps to
organise village panchayats and endow them with such powers as may enable them to function as units of self-government.
Article 243-G deals with power, authority and responsibility of panchayats, as quoted hereunder:
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.
Entry-2 to Eleventh Schedule deals with and improvement, implementation of land reforms, land conciliation and soil conservation. Entry-10 of the
said schedule relates to rural housing and Entry-13 deals with roads, culverts, projects, ferries, waterways and other means of communication.
After the Constitution (73rd Amendment) Act, the State of Tamil Nadu had to repeal its earlier Act, i.e., the Tamil Nadu Panchayats Act, 1958
by the Tamil Nadu Panchayats Act, 1994, village panchayats having been empowered to implement scheme for economic development and social
justice, including land improvement, rural housing, roads, culverts, etc. For its proper implementation, the State of Tamil Nadu, in exercise of
powers conferred by Clause (XXXIII) of Sub-section (2) to Section 242 of the Tamil Nadu Panchayats Act, 1994, repealed the earlier rules, viz.,
Rules, 1970, by the Tamil Nadu Panchayats Building Rules, 1997. Section 242(2)(XXXIII) of the Tamil Nadu Panchayats Act, 1994, though
relates to regulation or restriction of building and use of sites for buildings by the panchayat, but it was not challenged by the respondent in the writ
petition.
In view of the fact that the aforesaid provision was not challenged, Article 243-G of the Constitution, which empowers village panchayat to deal
with the matter under Eleventh Schedule, it was not open for the learned single Judge to question the qualification and power of the village
panchayat, including its ''Head''. The question whether the ''Executive Authority'' will be a technical or non-technical person can be determined by
the State and not by the Court. In the State Government, under the rules of Executive Business, such power has been delegated to the officers of
one or other departments, who may not be technical persons, but they deal with such matter with the aid of technical persons. Once such power is
delegated, though it is open to a Court to find out validity of such delegation, but Court cannot delegate such power to any officer of its choice.
The Commissioner of the panchayat union, having not been empowered under Article 243-G, learned single Judge had no jurisdiction to delegate
such power to the Commissioner nor it was open to give such suggestion.
Further, for giving a declaration that a particular provision of law is ultra vires, a foundation of fact is necessary and without necessary pleading it is
not desirable for a Court to decide the validity of any law.
In the present case, no pleading was made by respondent as to how a definition clause viz., Rule 2(e), which defines ''executive authority'' is
ultra vires of any particular provision of the Constitution or the Act, on the basis of oral submission and presumption that excessive power has been
delegated to the executive authority, learned single Judge declared the definition of ''executive authority'' as ultra vires.
For the reasons, as recorded above, while we uphold Rule 2(e) of the Tamil Nadu Panchayats Building Rules, 1997, being legal and intra
vires, the impugned judgment of the learned single Judge, being based on presumption, and personal opinion of the respondent/writ petitioner, and
having passed without noticing the relevant provisions of the Constitution of India, is set aside. The writ appeal is allowed. However, there shall be
no order as to costs.