TaxTMI 
TaxTMI 
2013 (2) TMI 131
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....elp the beneficiaries, such as Annapurna Anna Yojana, Antyodaya Ann Yojana, BPL, etc. B. In order to achieve the aforesaid objectives, the Government of India, in exercise of its power under Section 5 of the Essential Commodities Act, 1955 (hereinafter referred to as the 'EC Act'), issued Notification dated 9.6.1978 delegating the power to the State Governments to pass orders specifying certain conditions pertaining to the PDS. C. In pursuance of the said instrumental delegation, the State Government passed the Uttar Pradesh Scheduled Commodities Distribution Order, 1990 (hereinafter called as 'Order 1990') on 3.7.1990. The said Government Order (in short G.O.) conferred the power on the District Magistrate or an authority designated by him to grant/cancel the licenses for Fair Price Shops. D. In view of the 73rd Constitutional Amendment Act, w.e.f. 14.4.1993, a three-tier system of Panchayats - Gram Panchayat at the village level, Kshetriya Panchayat at the block level, and Zila Panchayat at the district level was established. In the State of U.P., the Gram Panchayat is governed by the U.P. Panchayat Rajya Act, 1947 (hereinafter called as 'U.P. Act 1947'); ....
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....d 13.1.2000, read with G.O. dated 3.7.1990. Direction was also sought for further mandamus to the State Government to confer the power to deal with the essential commodities to the Zila Panchayats for the purpose of distribution in rural areas with the co-operation of Kshetriya Panchayat and Gram Panchayat. The said writ petition was opposed by the State Government. However, it has been allowed vide impugned judgment and order. Hence, this appeal. 3. Before taking up the appeal on merit, it may be necessary for this Court to deal with the procedural requirement in filing the writ petition and appeal. In fact, in view of the instrumental delegation by the Central Government, the State Government had conferred the power to grant and cancel the licence of fair price shops to the Gaon Sabha, and it had never been conferred upon the Kshetriya Panchayat or Zila Panchayat. Power to deal with PDS by Gram Panchayat was withdrawn by the State of U.P. vide order dated 13.1.2000. Respondent, Zila Parishad filed writ petition for quashing of the order dated 13.1.2000, though by no stretch of the imagination the said respondent No.1 could claim itself to be an aggrieved ....
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....hat writ petition would not have been entertained by the High Court for want of necessary parties. The Government of U.P. was competent to withdraw the allocation made in favour of the Gram Panchayat. None of the Gram Panchayats had ever approached the court for any relief. The judgment and order impugned is liable to be set aside. 6. Per contra, Mr. Ashok Mathur, learned counsel appearing for Respondent No.1 has submitted that if the submissions advanced on behalf of the appellants are accepted, the amendment in the Constitution introducing the Articles 243-G and 243-N become meaningless. The said amendment had been made for the purpose of decentralisation of power and thus the High Court reached the correct conclusion in regard to giving effect to the legislative intent of decentralisation of power and conferring the PDS to the local authorities who could better cater to the needs of the poor people. Thus, the appeal is liable to be dismissed. 7. We have considered the rival submissions made by learned counsel for the parties and perused the record. The U.P. Act 1947 is referable to Entry 5 of List II of the Seventh Schedule to the Constitution and Sectio....
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....9. Clause 6 provides for monitoring, and Clause 7 thereof provides that State shall appoint the appellate authority for the purpose of its order. Pursuant to the said order, the State of U.P. issued a G.O. dated 28.12.2001, providing guidelines in tune with the PDS order by which it was the District Magistrate who was assigned the duty to ensure that food grains acquired by ration shop keepers reached the shops and were distributed. The Government of U.P. issued another G.O. dated 17.8.2002, providing reservation in allotment of fair price shops in conformity with Article 243-G of the Constitution, which had a provision for reservation of vacant shops for Scheduled Castes, Scheduled Tribes and Other Backward Classes. 10. The High Court allowed the writ petition filed by Respondent No.1 on the ground that matters listed in the Eleventh Schedule to the Constitution included the PDS as Item No. 28 and, therefore, the entire PDS could not be carried by G.O.s issued under the EC Act. The High Court found that the delegation of authority to the District Magistrate was not in consonance with Article 243-G of the Constitution and the laws made thereunder were absolute. In v....
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....on 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." (Emphasis added) 14. The High Court has considered the nature of the aforesaid Constitutional provision and held as under: "In our opinion, this provision is only an enabling provision, it enables the Legislature of a State to endow the Panchayats with certain powers.........Hence, the Legislature of a State is not bound to endow the Panchayats with the powers referred to Article 243-G, and it is in its discretion to do so or not. At any event there is no mention of the public distribution system in Article 243-G of the Constitution." Thus, it is evident that the High Court has taken a view that the provision of Article 243-G is merely an enabling provision, and it is not a source of legislation. This view seems to be in consonance with the law laid down by this Court in U.P. Gram Panchayat Adhikari Sangh & Ors. v. Daya Ram Saroj & Ors., (2007) 2 SCC 138, wherein an observation has been made that Article 243-G is an enabling provision as it enables the Panchayats to function as institutions of self....