IN THE GAUHATI HIGH COURTghconline.nic.in/Judgment/PIL1252015.pdf · 2017-07-04 · PIL No.125of 2015 Page 1 of 23 IN THE GAUHATI HIGH COURT (High Court of Assam, Nagaland, Mizoram

PIL No.125of 2015 Page 1 of 23

IN THE GAUHATI HIGH COURT

(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

PIL No. 125 of 2015

1. Assam Public Works, a voluntary organization

Having its office at 5A, Subhansiri Appartment

Zoo Road Tiniali, PO-Zoo Road, PS-Geeta Nagar,

Guwahati-24, Kamrup(M), Assam represented by

Its Organizational Secretary Shri Ghanashyam

Kalita S/o Shri Kashi Ram Kalita.

2. Shri Ghanashyam Kalita, S/o Shri Kashi Ram

Kalita authorized representative and Organizational

Secretary of Assam Public Works, c/o 5A, Subhansiri

Apartment, Zoo Road Tiniali, PO-Zoo Road, PS. Geeta

Nagar, Guwahati-24, Kamrup(M), Assam.

.................Petitioner

-Vs-

1. The State of Assam to be represented by the Chief

Secretary to the Government of Assam, Dispur,Ghy-6.

2.The Commissioner and Secretary to the Government

Of Assam, Panchayat and Rural Development

Department, Dispur, Ghy-6.

3. The Commissioner and Secretary to the Government

Of Assam, Agriculture Department, Dispur,Ghy-6.

4. The Commissioner, Panchayat and Rural

Development, Assam, Dispur, Ghy-6,Dist-Kamrup(M)

Assam.

5. The Director of Agriculture, Assam, Khanapara, Ghy-

22, Kamrup (M), Assam.

6. The Indian National Congress, represented by its

State President, c/o Rajib Bhawan, ABC,

Bhangagarh, PO & PS-Bhangagarh, Ghy-32,


Kamrup (M), Assam.

7. The Bharatiya Janta Party, represented by its State

President, having its party office at Atal Bhavan,

Hengrabari, PO-Hengrabari & PS Dispur, Ghy-36,

Kamrup(M), Assam.

8. The Assam Gana Parishad, represented by its

President, having its party office at Ambari, PO & PS

Latasil, Ghy-1, Kamrup (M), Assam.

9. All India United Democratic Front (AIUDF),

Represented by its President, having its party office

At Hatigaon, Friends Path, PO & PS- Hatigaon,

Ghy-38, Kamrup (M), Assam.

.............Respondents.

BEFORE HON’BLE MR JUSTICE T. VAIPHEI, CHIEF JUSTICE (ACTING) HON’BLE MR. JUSTICE M.R. PATHAK

For the petitioner : Mr. D. Saikia, Sr. Advocates

Mr. B. Gogoi,

Mr. R. Baruah,

Mr. KK Dutta,

Mr. A. Deka,

Mr. P. Nayak, Advocates

For the respondents: Mr. AC Buragohain, A.G.

Ms. B. Goyal, GA.

Mr. N. Dutta, Sr. Advocate

Mr. H. Buragohain, advocate

Date of Hearing : 11.12.2015

Date of Judgment : 05-01-2016

JUDGMENT AND ORDER (CAV)


(T.Vaiphei,C.J.(Acting). In this PIL, the petitioners are essentially questioning the legality and

propriety of various schemes launched by the State Government under the

name of “CM’s Special Schemes” for the period 2015-16, which are (i)

“Financial Assistance for construction of one lakh eight hundred Dwelling

House for homeless people/minority people @ ₹ 25,000/- each; (ii) Financial

Assistance for 1000 women SHG per LAC (Legislative Assembly

Constituency) @ ₹ 5,000/- each in 126 LAC,; (iii) Financial Assistance for

Artisans/Petty Traders at @ ₹ 2520/-; (iv) Assistance for 200 poor widow per

LAC in 126 LAC @ ₹ 10,000/-; (v) Old Age Pension for one lakh people (not

covered under Central Government Old Age Pension Schemes); and (vi)

Special Package for Erosion affected families (₹ 5,000/- per family and 2

bundles of GCI Sheets); (vii) Financial assistance to small and marginal

farmers @ ₹ 5000/- each for 1000 farmers per LAC and (viii) Mukhiya

Mantri Mumai Tamuli Borbarua Krikhok Bandhu Achani with budget

allocation of ₹ 6,000 lakhs, on the eve of the election to the Legislative

Assembly of Assam.

2. For implementation of these schemes, the State-respondents have

decided to constitute, and have, in fact, constituted LAC Level Beneficiary

Selection Committees and District Level Selection Committee with political

and non-political members. These Committees have prepared the list of

beneficiaries at the LAC level, which are yet to be finally approved by the

State Government. According to the petitioners, while launching these

schemes, the State-respondents do not lay down adequate guidelines,

criteria, parameters and modalities for implementation and selection of

beneficiaries against each scheme. As a result, allege the petitioners, the

Selection Committee, which have been given the upper hand, have prepared

the list of beneficiaries as per their whims and fancies keeping their political

interest in mind thereby enabling undeserving persons, who are affiliated to

such political parties, to enjoy the benefits leaving out the needy poor and


down-trodden ones high and dry. Further all political parties having

positions in the Committees are utilizing the schemes to further their

electoral prospect by providing benefits to their favoured ones. There is thus

an urgent need for laying down proper and adequate

guidelines/criteria/modalities/parameters for selection of these beneficiaries

so that only deserving people receive the benefits without any political

interference at the time of the selection. The reliefs claimed in the PIL are: to

issue a writ of mandamus directing the respondent authorities to frame

proper and effective guidelines/parameters/criteria for implementation of

the Chief Minister’s Special Scheme referred to earlier; (2) to constitute a

selection committee with non-political members; (3) for directing the

respondent authorities not to proceed with the implementation of the

scheme without laying down the criteria for selection of the beneficiaries.

3. Opposing the PIL, the State-respondents in their affidavit have raised

a preliminary objection against the maintainability of the PIL on the ground

that the same is premature, is filed by a non-registered organization and is

also not filed in conformity with the guidelines for entertaining a PIL

inasmuch as no inquiry was ever made by them as to the source of

knowledge of the facts alleged by them in the PIL or of the further enquiries

made by them to determine the veracity of the same. Nor does the petitioner

no. 2, who is said to be the Organizational Secretary of the petitioner No. 1,

place on record any authorization from the petitioner No. 2 to file the PIL.

The PIL, submits the respondent authorities, is, therefore, not maintainable

and is, therefore, liable to be dismissed at the very threshold. It is stated by

the answering respondents that the petitioners are motivated by self-gain

and politically inspired and have filed the PIL just to malign the image of the

Government. The objection regarding the maintainability of the PIL need not

detain us inasmuch as there is substantial compliance with the guidelines

for PIL worked out by this Court. According to the petitioners, the eligible

intending candidate would apply before the Legislative Assembly

Constituency Level Selection Committee, which after verification of the said

applications would forward the same for the approval of the District Level


Selection Committee, which forwarded the applications to the

Director/Commissioner of the concerned Department for onward

transmission to the Commissioner/Secretary to the Government of Assam

for finalization. The respondents have not received, on record, any complaint

from any of the eligible beneficiaries of the said schemes. The petitioners

also do not implead such deprived eligible beneficiaries as party respondent

in the PIL. The petitioners also do not implead members of the Selection

Committee at the State and District level against whom mala fides/unfair

practices are alleged though they are necessary parties. The answering

respondents deny that any anomalies have occurred in the implementation

of the said schemes or that no criteria or guidelines are laid down by them

for implementation of the said schemes.

4. According to the answering respondents, for example, the Chief

Minister’s Special Scheme providing two bundles of CGI sheets and Cash

Assistance of ₹ 2,000/- (now enhanced to ₹ 5,000/-) to BPL/Rural Poor for

shelter is an ongoing scheme, which were formulated and implemented as

early as 2010 vide the notification dated 2-11-2010. Similarly, the guidelines

of the Chief Minister’s Special Schemes for financial assistance to Women

Self-Help Group for the year 2015-16 have been formulated and the criteria

for selecting the beneficiaries were laid down therein. The financial

assistance to Women Self-Help groups was earlier granted on two occasions

to encourage the well performing Self-Help Groups (SHG) during 2009-10 (₹

2 crores) and during 2010-11 (₹ 5 crores) i.e. during the Eleventh Plan

Period. For the year 2015-16, it is decided to provide such assistance to one

thousand SHGs per LAC in 126 LAC’s covered rural areas, thereby providing

assistance @ ₹ 5,000/- per SHG to 1,26,000 selected SHGs with financial

involvement of ₹ 6,300/- lakhs. As on earlier occasions, only well-

performing SHGs would be granted the financial assistance for

encouragement. In pursuance of the budgetary allocation, the Cabinet

approval and the concurrence of the Finance Department have already been

obtained for implementation of the said schemes.


5. It is also the case of the answering respondents that the guidelines of

the Chief Minister’s Special Schemes for financial assistance to artisans and

petty traders for the year 2015-16 as well as the criteria for selecting them

have already been formulated. The artisans and petty traders who were

earlier provided training on various skill developments by the Panchayat and

Rural Development through SIRD/ASRLM but were unable to start their

own business are the beneficiaries of the said scheme. The Government with

a view to provide an opportunity to the said artisans and petty traders have

proposed to grant financial assistance at the rate ₹ 5,000/- per artisan and

petty trader. It is proposed to provide such assistance to one thousand

artisans and petty traders in 126 LAC covered rural areas with involvement

of ₹ 6,300/- lakhs. According to the answering respondents, only artisans

and petty traders who had undergone the training provided by the

Panchayat and Rural Development Department through SIRD/ASRLM

would be eligible for receiving financial assistance to start their own

business. Following the budgetary allocation, the concurrence of the

Finance Department has been obtained, but the approval of the Cabinet is

still awaited. It is also stated by the answering respondents that the

guidelines of Chief Minister’s Special Scheme for financial assistance for

construction of one lakh six thousand dwelling houses for Homeless People

@ ₹ 25,000/- each (800 beneficiaries from general categories and 200

minority communities) for the year 2015-16 has been formulated and the

criteria for selecting homeless people from rural areas have also been laid

down in the said guidelines. For the year 2015-16, they proposed to provide

such assistance to one thousand homeless persons per LAC in 126 LAC

covered rural areas thereby providing assistance @ ₹ 25,000/- per homeless

persons with a financial involvement of thirty-one lakhs and five hundred.

Only homeless persons from rural areas, who are not entitled to get the

benefits of the Government of India’s Indira Awas Yojana Scheme, shall be

eligible for such financial assistance under the said scheme. Budgetary

support, the concurrence of the Finance Department and the Cabinet

approval for the said schemes have already been obtained, but selection of


the beneficiaries have not been finalized as the schemes are yet to be

finalized.

6. As for the Chief Minister’s Special Scheme for financial assistance to

Widows and Old Age Pension Scheme for the year 2015-16, it is pointed out

that the respondents have formulated the guidelines and the criteria for

selecting the widows and old aged person as evident from the said guidelines

itself. For the year 2015-16, it is proposed to provide such assistance to 833

widows per LAC in 126 LAC covered rural areas thereby providing

assistance @ ₹ 200/- per widow and 1,87,500 old aged persons with financial

involvement of ₹ 25,18,99,200/- and ₹ 45 crores respectively. Only widows

who are not covered by NSAP or any other Central Government Scheme

would be covered under the said scheme of financial assistance to widows

and only poor persons above the age of 60 years, who are not the

beneficiaries under NSAP, would by covered be the Old Age Pension Scheme.

On the basis of the budgetary allocation made by the legislature, the Old Age

Pension Scheme has received the concurrence of the Finance Department

and Cabinet approval. As for Chief Minister’s Special Schemes for financial

assistance to the Erosion Affected Families, it is the case of the answering

respondents that the scheme is an ongoing scheme, the guidelines whereof

were formulated in the year 2010, while the criteria for selection of the

beneficiaries are also laid down therein. For the year 2015-16, it is proposed

to provide such assistance to 360 households per LAC in 126 LAC covered

areas, thereby providing assistance @ ₹ 5,000/- per homeless persons with

financial involvement of ₹ 22.68 crores. According to the answering

respondents, only persons from rural areas who have been rendered

homeless due to erosion, landslide and wild animal depredation are eligible

for such financial assistance under the scheme. Budgetary allocation has

made, while approval of the Cabinet and concurrence of the Finance

Department have also been obtained for implementation of the scheme.

7. We have heard both Mr. D. Saikia, the learned counsel for the

petitioners, Mr. A.C. Buragohain, the learned Advocate General, Assam and


Mr. N. Dutta, the learned senior counsel for the State-respondents. We have

also carefully perused the materials on record placed by both the parties.

The contention of Mr. D. Saikia, the learned senior counsel for the

petitioners, is that such action of the respondent authorities is in blatant

violation of Article 14 of the Constitution of India inasmuch as there are

serious defects in the selection process for the beneficiaries as deserving

people other than those affiliated to political parties never have a chance for

applying such benefits. Drawing our attention to the various schemes

launched by the State-respondents, the learned senior counsel submits that

Article 14 of the Constitution applies to the policy decisions taken by the

Government and such policy or action would be unconstitutional if it fails to

satisfy the test of reasonableness. He argues that the right to equality under

Article 14 of the Constitution requires that the state must make a

reasonable classification based on intelligible differentia, and such

classification must have a nexus with the object of the law. In making free

distributions of State largesse, contends the learned senior counsel, the

State-respondents must show that they have identified the class of persons

to whom such distributions are sought to be made using intelligible

differentia, and that such differential has a rational nexus with the object of

the distribution. For example, the State-respondents have failed to mention

the procedure for implementation of the schemes as well as selection of

beneficiaries in respect of giving publicity by way of advertisement of the

schemes, inviting eligible citizens to apply for the benefits, formats of the

applications to whom they should be submitted, the last date of submission

of the applications, so on and so forth. He also contends that Section 4 of

the Assam Panchayat Act, 1994 categorically provides that the task of

identifying the beneficiaries for implementation of the development schemes

pertaining to villages should be entrusted to the Gaon Panchayat, but the

guidelines annexed to the PIL do not show that such entrustment has been

made: by-passing of the Gaon Panchayat for selection of beneficiaries for

welfare and development programmes is against the constitutional mandate.

In the absence of formulating the criteria for selecting the intended

beneficiaries, which is the case here, all these schemes will be hit by the


mischief of Article 14 of the Constitution and will enable the Selection

Committee dominated by ruling parties to choose the beneficiaries at their

whims and fancies. He, therefore, strenuously urges this Court to strike

down these various schemes as unconstitutional or direct the respondent

authorities to formulate the criteria for selection of the intended

beneficiaries to bring about transparency in the selection of beneficiaries

consistent with Article 14 of the Constitution. He relies on Akhil Bharatiya

Upbhokta Congress v. State of Madhya Pradesh, (2011) 5 SCC 29 and

Common Cause (Petrol Pump Matter) v. UOI, (1996) 6 SCC 530 to

buttress his contentions.

8. Refuting the contentions of the learned senior counsel for the

petitioners, Mr. N. Dutta, the learned senior counsel appearing for the State-

respondents, that the PIL is not maintainable by contending that the

instructions contained in Rule 10 of the Gauhati High Court (Public Interest

Litigation) Rules, 2011 have been violated especially the clause relating to

disclosure of the source of knowledge of the facts alleged in the writ petition

and the further enquiries/investigation made to determine the veracity of

the same and of details of the representation to the authorities concerned for

remedial actions and replies, if any, received thereto. It is the contention of

the learned senior counsel that wide publicity about the Chief Minister’s

Special Scheme have been given in the LAC areas by print and electronics

media, while notices have been displayed in the notice boards of Gaon

Panchayat and every other Government offices; pamphlets have been

circulated in the rural areas for wide publication and for the benefit of the

public at large. It is asserted by the learned senior counsel that adequate

supervision mechanism, contrary to the apprehension expressed by the

petitioners, is provided for to ensure that the applications of the intending

beneficiaries are being processed at four governmental levels, viz. the eligible

intending beneficiaries would apply before the Legislative Constituency Level

Selection Committee, which, after verification of the said applications, would

forward the same for approval of the District Level Selection Committee. The

approved applications, contends the learned senior counsel, would


thereafter be forwarded to the Director/Commissioner of the concerned

Departments for onward transmission to the Commissioner and Secretary to

the Government of Assam of the concerned Departments for finalization. He,

therefore, denies that free hand has been given to the Beneficiary Selection

Committee in the selection of beneficiaries without being answerable to

anyone. The entire process of selection of beneficiaries, according to the

learned senior counsel, is thus open, transparent and fair and free from the

influence, control and domination of political parties including those at the

helm of the affairs of the State Government as well as Zilla Parishal,

Anachalik Panchayat and Gaon Panchayat. It is also denied by the learned

senior counsel that every such entity is desperately trying to garner

maximum mileage by favouring party members and supporters in view of

the ensuing Assembly Election scheduled for April/May, 2016.

9. According to the learned senior counsel for the respondents, local

self-government being the constitutional goal, the State-respondents have to

involve the institutions of Zilla Parishad, Anchalik Panchayat and the Gaon

Panchayat members in the selection of beneficiaries; the grievance of the

petitioners against the involvement of these institutions in the selection of

beneficiaries is, on the contrary, antithesis to the constitutional mandate of

local self government. The learned senior counsel submits that edifice of the

State Government being founded on parliamentary democracy, it cannot

obviously function without the involvement of political parties; the

petitioners cannot, therefore, raise a grievance against the role of political

parties in the governance of the State. He submits that the apprehension of

the petitioners that there is every possibility of clash of political interest in

nominating the members in-Charge, Minister and the local MLA, is a figment

of their imagination. As the beneficiaries are selected on the basis of the

eligibility criteria laid down by the guidelines in the respective schemes,

maintains the learned senior counsel, there is no possibility of the Indian

National Congress, BJP, AGP and AIUDF providing these benefits only to

their supporters/loyalists. According to the learned senior counsel, there is

substantial public interest in the implementation of the Chief Minister’s


Special Schemes: the said schemes have not been formulated on the eve of

the Assembly election to gain political mileage by the present ruling party,

and the same have been continuing for the last more than five years. For

example, the Chief Minister’s Special Schemes for providing two bundles of

GCI sheets and cash assistance of ₹ 2,000/- (now enhanced to ₹ 5,000/-)

to the shelter less was started in the year 2010. He maintains that the

guidelines for the schemes as well as the criteria for selection of the

beneficiaries have been formulated, but the petitioners, without bothering to

find out these guidelines by means of RTI applications, rushed to this Court

through this PIL, and the PIL is, therefore, politically motivated and is based

on apprehensions, presumptions and surmises merely to restrain the State

Government from undertaking welfare works for the poor and the needy

sections of the society; the petitioners are not entitled to any relief claimed

in the PIL. The learned senior counsel finally submits that the Chief

Minister’s special schemes are time-bound schemes and are under lapsable

fund. If the execution of these schemes is interfered with by this Court at

this stage, the welfare of lakhs of intended beneficiaries will be adversely

affected as the funds will lapse on 31-3-2015. He, therefore, submits that

the PIL is premature and is solely based on unreasonable and

unsubstantiated apprehensions and there is no cause of action for filing this

PIL at this stage, and the same is liable to be dismissed in limine with

exemplary costs.

10. Part IV of the Constitution of India contains “Directive Principles of

State Policy” which is fundamental in the governance of the country and it is

the duty of the State to apply these principles in making law. Article 39(b) of

the Constitution provides that the State shall, in particular, direct its policy

towards securing that the ownership and control of the material resources of

the community are so distributed as best to subserve the common good. The

State Governments have, from time to time, framed policies so that the State

wealth and natural resources are equitably distributed among all sections of

people so that the have-nots of the society can aspire to compete with the

haves. The law in this field has now been virtually well-settled, but the


difficulty lies in applying it on the facts obtaining in a particular case.

Though a number of decisions have been cited by both the learned senior

counsel for both the parties, we do not want to burden this judgment with

such decisions for the sake of brevity

11. The first of the scheme is known as “Financial Assistance to the

Women SHGs (Self-help Group) for the year 2015-16”. Annexure-1 to the

affidavit-in-opposition filed by the State-respondents on 11-12-2015 will

show that this is part of the composite schemes announced by the Chief

Minister on 18-5-2015. Annexure-2 is the Notification dated 23-11-2015

cancelling the earlier notification dated 20-8-2015 containing the new

guidelines for the Scheme. The scheme targeted financial assistance to 1000

women SHG per Legislative Assembly Constituency (LAC) in 126 LACs @ ₹

5,000/- per SHG, the total number whereof to be covered under the scheme is

1,26,000 women SHG with a total financial involvement of ₹ 6,300 lakhs. As

the composition of the LAC Level Selection Committee vide the notification

dated 2-7-2015 is virtually common to other schemes, the same is

reproduced is as follows:

Sl. No. Name & designation

1. Circle Officer Chairman 2. Block Development Officer having Member Secretary The largest area with LAC 3. Two women PRI Members as nomin- Members ated by the I/C Minister district. Members 4. Representative of the local MLA Member 5. Two social workers to be nominated Member by the I/C Minister Members 6. Other Block Development Officers Members

In District level Committee (notified on 17-6-2015), the following are the composition of the Committee:

Sl.No. Name and designation 1. In charge Minister of the District Chairman 2. The Deputy Commissioner/Principal Vice-Chairman Secretary in the Sixth Scheduled areas Member 3. Local MLA (from each selected Block) Member


4. Social Worker (one woman) to be nom- Member inated by the I/C Minister 5. Executive Engineer, DRDA Member 6. Two PRI members (both women) to Member be nominated by the I/C Minister Member 7. Block Development Officers Member 8. Project Director, DRDA Member-Secretary

12. It is also interesting that though the functions of the Committee, the

manner in which the scheme is to be implemented, the procedures for

monitoring and maintenance of record or for submission of utilization

certificate or for preparing the progress report or the action calendar for

implementation of the scheme are mentioned in the guidelines, yet the

criteria for the selection of the beneficiaries are conspicuous by their

absence therein. However, Annexure-10 to the affidavit filed by the

respondent authorities shows that notice was published on 7-10-2015

inviting applications from willing and eligible persons for the scheme.

Therefore, it cannot be said that no publicity was given on this scheme at

all.

13. Coming now to CM’s Special Scheme-Financial Assistance to the

Artisans, Petty Traders for the year 2015-16, as in the previous scheme, no

mention is made about the criteria for selection of the beneficiaries for this

scheme. Of course, the composition of the scheme, procedure to be adopted

by the Selection Committee for selection of the intended beneficiaries and

other related items are all there, but not the criteria for choosing the

beneficiaries or for giving adequate publicity to inform the eligible

beneficiaries of their right to apply for the benefits under the scheme. This

scheme was, however, said to be notified on 20-8-2015, but when was the

publication made in the Gazette notification or in the local papers? In the

affidavit, all that they said is that the criteria for selecting the artisans and

petty traders have been laid down in the guidelines and that these artisans

and petty traders who were earlier provided training on various skill

developments by the Panchayat and Rural Development through the

SIRD/ASRLM but were unable to start their own business are the


beneficiaries of the said scheme. The financial grant in the scheme is to the

order of ₹ 5,000/- per artisan and per petty trader and is proposed to be

extended to one thousand artisans and petty traders per constituency in

126 LAC covered rural areas with a financial involvement of ₹ 6,300/-

lakhs. The notice dated 8-10-2015 (Annexure-10 to the affidavit of the

respondents) indicates that the people of Titabor Development Block and

Jorhat Developmen Block were informed about the scheme. But then, there

are many Development Blocks in the State, for which there is no evidence to

indicate that wide publicity for the scheme in the remaining Development

Blocks has been made. Though the criteria for selection of the beneficiaries

given therein are not very satisfactory, they cannot be entirely condemned

as arbitrary or vague.

14. This then takes us to CM’s Special Scheme-Financial assistance for

construction of 1,26,000 dwelling houses for homeless people @ ₹ 25,000/-

each (800 beneficiaries from General Category and 200 dwelling houses for

minority community) for the year 2015-2016 with financial involvement of

₹31,500/- lakhs. In this scheme, the criteria for selecting the beneficiaries

are that only those household who are homeless or residing in a katcha ghar

in rural areas are eligible. Now, when there are likely to be lakhs and lakhs

of homeless people or are residing in katcha houses in the rural areas of this

State, in our opinion, such criteria are hardly adequate for selection of

beneficiaries free from arbitrariness, nepotism and favouritism. Moreover, no

whisper of statement is made by the answering respondents with respect to

the kind of publicity made by them to notify the public about the launching

of the scheme. Coming now to the CM’s Special Scheme for Financial

Assistance to widows for the year 2015-16, this scheme pertains to the

selection of 200 poor widows per LAC for payment of @ ₹ 200/- per month

in 126 LAC. The composition of the Selection Committee is one and the

same like the Selection Committee in all the previous Selection Committees.

The eligibility criteria are that the widow must be a poor person and that she

should not be covered by NSCAP i.e. Central Government scheme till now.


True, the criteria laid down therein are quite adequate to identify and select

the genuine and deserving widow, but except for Titabor Development Block

and Jorhat Development Block, no publicity worth the name was done to

enable interested widow to apply for the benefit under the said scheme.

15. This, then, takes us to the Scheme for Financial Assistance to Small

& Marginal Farmers during 2015-16 under the Chief Minister Special

Scheme, which is meant to improve the economic conditions of the farmers

by way of active participation in agricultural practices. This scheme is said

to have a budgetary provision of ₹ 6,300 lakhs, and is for extending special

assistance to the small and marginal farmers @ ₹ 5,000/- each for 1000

farmers per LAC (126)(Plan) during 2015-16 for purchase of high quality

seeds, fertilizer, PP chemicals, agricultural tools and implements. The

criteria for the selection of the beneficiaries are that the farmers

(male/female) must not be below 21 years of age, that the farmers must not

have land under cultivation above 2 hectares i.e. 15 bighas, that 50% of

total selection of 1000 farmers per LAC to be asmall farmer (7.5 bighas to 15

bighas of land under cultivation), that 50% of total 1000 farmers per LAC to

be marginal farmer (maximum 7.5 bighas of land under cultivation), that the

name must be crop register of VLEW concerns, that he must be a full time

practicing farmer, that at least 30% of selected farmer must be a far women,

that there must 5% ST(H) farmers, 7.5 % SC farmers and 12% ST(P)

farmers, that there should proportionate representation of farmers from

villages of each LAC to be taken into consideration and that interested

farmer will have to apply through an application (standard format at

Annexure-I). In our opinion, there are adequate criteria for selecting the

intended beneficiaries. Annexure-10 series to the same affidavit will also

show that due publicity was given to this scheme on 10-10-2015 vide

“Adinor Sambad”, “The Assam Tribune”, “The Sentinel”, “Dainik Asom” and

the notice issued by the Director, Agriculture.


16. Then, there is Chief Minister’s Special Scheme for providing two

bundles of GCI Sheet and cash assistance for ₹ 2,000/- to the rural poor

and erosion affected families. As evident from the guidelines of the Scheme

at Annexure-9 to the affidavit-in-opposition, it is seen that the scheme was

introduced in 2010 and is, therefore, not of recent origin. Every year, many

rural people are rendered homeless due to erosion, landslides and wild

animal depredation. Under this scheme, the benefits were and are being

extended to such poor houseless/shelter less people of the State who are not

covered by the Indira Awas Yojana of the Central Government/State Rural

Housing Scheme of Assam. The intended beneficiaries are those household

who must belong to BPL/poor and requiring housing shelter, or whose

existing houses should not have GCI roof/pucca roof/Half brick wall and

not beneficiaries of IAY scheme (Rural housing) of Govt. of India or State

Rural Housing Scheme during the recent past or at present. Under this

scheme, assistance should also be given to the erosion/landslide/wildlife

affected household, who must be ordinary residents of rural areas covered

by Gaon Panchayat. The Member Secretary of the Selection Committee is

required to give wide publicity of the scheme. As per the instructions given

by the Deputy Secretary to the Govt. of Assam, Panchayat & Rural

Development Department, in his letter dated 12-11-2010 addressed to the

Principal Secretaries (Sixth Schedule Districts) and the Deputy

Commissioners of Non-Scheduled Districts, it obvious that emphasis has

been given for adequate publicity to the interested beneficiaries. Thus, this

scheme is not a new scheme launched by the State-respondents contrary to

the claim made by the petitioners. As this is an ongoing scheme, we do not

think that the procedure for selection of the beneficiaries or for giving

publicity of the scheme suffers from any constitutional infirmity.

17. In so far as CM’s Special Scheme for financial assistance for

implementation of Special Old Age Pension Scheme for the year 2015-16 is

concerned, the composition of the Selection at the District Level Selection

Committee is as follows:- (1) Chairman is the Minister in Charge of the


District, (2) The Deputy Commissioner of the District/Principal Secretary in

the Six Scheduled Districts as Vice-Chairman, (3) Two Social Workers (one

woman) to be nominated by the in-charge Minister as Member, (4) Chief

Executive Officer of the Zilla Parishad, DRDA, Six Scheduled Areas as

Member Secretary, (5) Two PRI Members (one woman) to be nominated by

the in-Charge Minister as Member, (6) All MLAs of the District as Member

and (7) All Block Development Officers of the District as Member. The

composition of the LAC Level Selection Committee is as follows:- (1) Circle

Officer as Chairman, (2) Development Officer having the largest area within

the LAC as Member-Secretary, (3) Two PRI Members (one woman) as

nominated by the I/C Minister of the district as Members, (4) Representative

of the local MLA as members, (5) Two social workers (one woman to be

nominated by the I/C Minister and (6) Other Block Development Officers as

Members. Eligibility criteria are:- 1. The beneficiary must be a poor person,

2. The beneficiary must be 60 years and above, 3. The beneficiary must not

be benefited under the NSAP. Publicity was given on 7-10-2015 by the

Offices of the Jorhat Development Block, Baghchong and Titabor

Development Block vide Annexure-10 series to the counter affidavit.

18. Then, there is “Mukhya Mantir Momai Tamuli Borbarua Krishak

Bandhu Achani”, which is meant for increasing food grain production and

productivity by means of double cropping, etc. However, no pleading is made

by the respondent authorities about this scheme except enclosing the

handout on the scheme. A perusal of the handout will reveal that sufficient

criteria are laid down therein for selection of the beneficiaries of the scheme,

but there is no provision for publicity at all nor is there any whisper of

statement made therein by the respondent authorities in this behalf. After

perusing the all the booklets containing the schemes under challenge in this

PIL as well as the replies of the respondent authorities, we have come to

conclusion that the respondent authorities did not lay down the criteria for

selection of beneficiaries in some of the schemes and where they do lay

down the criteria, they are hardly adequate thereby exposing them to


arbitrariness and nepotism. Similarly, on the publicity aspect also, the steps

taken or being conceived are far from satisfactory thereby lacking

transparency which is the mantra of these days.

19. In Akhil Bharatiya Upbhokta Congress v. State of MP, (2011) 5

SCC 29, the Apex Court restated the role of the Government as a service

provider by quoting from Ramana Dayaram Shetty v. International

Airport Authority of India, (1979) 3 SCC 489:

“49. The role of the Government as provider of services and benefits

to the people was noticed in Ramana Dayaram Shetty v. International

Airport Authority of India (supra) in the following words:

“11. Today the Government in a welfare State, is the regulator

and dispenser of special services and provider of a large number of

benefits, including jobs, contracts, licences, quotas, mineral rights,

etc. The Government pours forth wealth, money, benefits, services,

contracts, quotas and licences. The valuables dispensed by

Government take many forms, but they all share one characteristic.

They are steadily taking the place of traditional forms of wealth.

These valuables which derive from relationships to Government are

of many kinds. They comprise social security benefits, cash grants

for political sufferers and the whole scheme of State and local

welfare. Then again, thousands of people are employed in the State

and the Central Governments and local authorities. Licences are

required before one can engage in many kinds of businesses or work.

The power of giving licences means power to withhold them and this

gives control to the Government or to the agents of Government on

the lives of many people. Many individuals and many more

businesses enjoy largesse in the form of government contracts.

These contracts often resemble subsidies. It is virtually impossible

to lose money on them and many enterprises are set up primarily to

do business with the Government. The Government owns and

controls hundreds of acres of public land valuable for mining and

other purposes. These resources are available for utilisation by

private corporations and individuals by way of lease or licence. All


these mean growth in the Government largesse and with the

increasing magnitude and range of governmental functions as we

move closer to a welfare State, more and more of our wealth

consists of these new forms. Some of these forms of wealth may be

in the nature of legal rights but the large majority of them are in the

nature of privileges.”

50. For achieving the goals of justice and equality set out in the

Preamble, the State and its agencies/instrumentalities have to function

through political entities and officers/officials at different levels. The

laws enacted by Parliament and the State Legislatures bestow upon

them powers for effective implementation of the laws enacted for

creation of an egalitarian society. The exercise of power by political

entities and officers/officials for providing different kinds of services

and benefits to the people always has an element of discretion, which is

required to be used in larger public interest and for public good. In

principle, no exception can be taken to the use of discretion by the

political functionaries and officers of the State and/or its

agencies/instrumentalities provided that this is done in a rational and

judicious manner without any discrimination against anyone. In our

constitutional structure, no functionary of the State or public authority

has an absolute or unfettered discretion. The very idea of unfettered

discretion is totally incompatible with the doctrine of equality

enshrined in the Constitution and is an antithesis to the concept of the

rule of law.”

20. In Common Cause (Petrol Pumps matter) v. Union of India, (1996)

6 SCC 530, the legal position has been succinctly explained in the following

manner:

“24. …. While Article 14 permits a reasonable classification having a

rational nexus to the objective sought to be achieved, it does not

permit the power to pick and choose arbitrarily out of several persons

falling in the same category. A transparent and objective

criteria/procedure has to be evolved so that the choice among the

members belonging to the same class or category is based on reason,

fair play and non-arbitrariness. It is essential to lay down as a matter of


policy as to how preferences would be assigned between two persons

falling in the same category. If there are two eminent sportsmen in

distress and only one petrol pump is available, there should be clear,

transparent and objective criteria/procedure to indicate who out of the

two is to be preferred. Lack of transparency in the system promotes

nepotism and arbitrariness. It is absolutely essential that the entire

system should be transparent right from the stage of calling for the

applications up to the stage of passing the orders of allotment. The

names of the allottees, the orders and the reasons for allotment should

be available for public knowledge and scrutiny. Mr Shanti Bhushan has

suggested that the petrol pumps, agencies etc. may be allotted by

public auction — categorywise amongst the eligible and objectively

selected applicants. We do not wish to impose any procedure on the

Government. It is a matter of policy for the Government to lay down.

We, however, direct that any procedure laid down by the Government

must be transparent, just, fair and non-arbitrary.”

21. Viewed against the law declared by the Apex Court in the afore-

mentioned cases and on the facts found by us earlier, we are of the

considered opinion that actions taken by the respondent authorities hitherto

for wide publicity of the schemes and selection of beneficiaries except in the

case of the Scheme for Financial Assistance to small and marginal farmers

and the Special Scheme for providing 2 bundles of GCI Sheets and cash

assistance of ₹ 2,000/- to BPL/rural poor and erosion affected families, etc.,

fall far short of the requirement of law for distribution of State largesse

consistent with Article 14 of the Constitution. The final question which now

calls for consideration is what orders can exactly be passed by this Court on

the peculiar facts of this case. There are three undisputed facts which shall

have to be taken into account, firstly, the respondent authorities have

already selected some beneficiaries, if not all, for all or some of the schemes,

secondly, the fund for all these schemes will dry up after 31-3-2016 since

they belong to lapsable fund and, thirdly, all these schemes were not of

recent origin but were conceived and launched in the month of June, 2015.

If, at this stage, all the schemes are quashed, all the funds will lapse thereby


depriving the people of this State of welfare development funds for

sometimes to come, more so, when there is already financial crunch in every

department. This Court cannot shut its eyes to these practical realities and

the disastrous consequences for the State if all such funds dry up after 31-

3-2016; Courts cannot live in an ivory tower nor should they be too trigger

happy to shoot down every State actions for violation of Article 14 of the

Constitution. Secondly, though the schemes were conceived before or during

budget session of the Assembly or launched sometime in June, 2015, which

were publicly announced, filing of this PIL only at the fag end of November,

2015, to be precise, on 30-11-2015, by which time some selections have

been made, this Court should be loath to quash all the actions hitherto

taken by the respondent authorities for the implementation thereof. True,

there is no period of limitation for filing a PIL or, for that matter, a writ

petition. After all, it is doubtful whether any such period of limitation can be

prescribed at all. In every case, it would have to be decided on the facts and

circumstances whether the petitioners are guilty of laches and that would

have to be done without taking into account any specific period as a period

of limitation. There may be cases where even short delay may be fatal while

there may be cases even when a long delay may not be evidence of laches on

the part of the petitioner.─ See Smt. Sudama Devi v. Commissioner and

others, (1983) 2 SCC 1. For example, in the case of R.D. Shetty v.

International Airport Authority, (1979) 3 SCC 524, where the writ

petition was filed by the appellant more than five months after his

acceptance of the tender of the respondent 4 and during this period,

respondent 4 incurred considerable expenditure aggregating to about ₹

1,25,000 in making arrangement for putting up the restaurant and the

snack bars and in fact set the snack bars and started running the same, the

Apex Court held that it would be most iniquitous to set aside the contracts

of respondent 4 at the instance of the appellant. The Apex Court further

observed therein that the position would have been different if the appellant

had filed the writ petition immediately after the acceptance of the tender of

respondents 4 but the appellant allowed a period of five months to elapse

during which respondent 4 altered their position and that it was not a fit


case to interfere and grant relief to the appellant in exercise of their

discretion under Article 226 of the Constitution. In the instant case also,

keeping in mind the facts that the funds for these schemes are to lapse on

31-3-2016, that some selections of beneficiaries, if not all, for the various

schemes, having been made and that the PIL was filed over five months after

the conception and launching of the schemes, we are not inclined to

quashed the schemes or the selections already made by the respondent

authorities as on today. However, if further selections are to be made, such

selections shall have to be made only after formulating workable criteria for

the schemes free from ambiguity or arbitrariness and after making wide

publicity of such schemes in local dailies, etc. to ensure transparency and

also to enable the targeted individuals/groups to apply for the benefits made

available thereunder.

22. The result of the foregoing discussion is that this PIL is disposed of

with the following directions:

1. The respondent authorities are free to release all the benefits

made available under the six of the aforesaid eight schemes,

namely, (i) “Financial Assistance for construction of one lakh eight

hundred Dwelling House for homeless people/minority people @ ₹

25,000/- each; (ii) Financial Assistance for 1000 women SHG per

LAC (Legislative Assembly Constituency) @ ₹ 5,000/- each in 126

LAC,; (iii) Financial Assistance for Artisans/Petty Traders at @ ₹

2520/-; (iv) Assistance for 200 poor widow per LAC in 126 LAC @

₹ 10,000/-; (v) Old Age Pension for one lakh people (not covered

under Central Government Old Age Pension Schemes); and (vi)

Mukhiya Mantri Mumai Tamuli Borbarua Krikhok Bandhu

Achani, to the beneficiaries already selected by them as on 31-12-

2015 in accordance with the procedure laid down in the schemes.

2. The respondent authorities are, however, directed, not to make

fresh selection of beneficiaries for any of such schemes without


first formulating workable criteria and, that too, only after making

due publicity thereof in accordance with our aforesaid

observations to ensure that the mandate of Article 14 of the

Constitution of India is scrupulously complied with.

3. There shall be no interference in the selection of beneficiaries for

the Special Schemes on Financial Assistance to small and

marginal farmers and Special Scheme for granting 2 bundles of

sheets and cash assistance to BPL/rural poors/erosion affected

families, etc., or for the release of such benefits to the selected

beneficiaries.

4. There shall be no order as to cost.

JUDGE CHIEF JUSTICE (ACTING)

Upadhaya

Documents

IN THE GAUHATI HIGH COURTghconline.nic.in/Judgment/PIL1252015.pdf · 2017-07-04 · PIL No.125of 2015 Page 1 of 23 IN THE GAUHATI HIGH COURT (High Court of Assam, Nagaland, Mizoram