ORDER
1. The writ petition is filed for a Writ of Mandamus declaring the Memo No. 2001/D3/ADB/ASC/01-02/1042, dated 15.9.2001 issued by the respondent No.2 as illegal and null and void, without jurisdiction and contrary to the proceedings issued by the respondent No.1 in D.O. Lr. No.503/T2/201, dated 5.9.2001 and also the provisions of the Municipality Act and direct the respondents 2 and 3 to consult with the Bhainsa Municipality to formulate the proposals for additional grants for drinking water works and to pass such suitable orders.
2. Though the respective pleadings of the parties are lengthy and elaborate, the short question that is raised by the writ petitioner is the interference of the State Government in the affairs of the Municipality in spending the amounts which had been allotted to the concerned Municipality.
3. The facts in brief which will be essential for the purpose of disposal of this writ petition are as follows:
It is stated that the writ petitioner is the Chair Person of the Bhainsa Municipality (in short hereinafter referred to as the 'Municipality') running second term as Chair Person and they have undertaken lot of developmental activities relating to the Municipality. It is also stated that by virtue of Sections 30,35 and also Sections 133 to 145 of the A.P. Municipalities Act, 1965 (in short hereinafter referred to as the 'Act'), all these water works exclusively vest in the Municipality and the work in question also relates to the same category and in this view of the matter, the request to formulate proposals for additional grants in respect of Municipalities under their jurisdiction in consultation with the concerned M.L.As. for the amount equal to the indication made in the Engineer in Chief's DO Lr. No.503/T2/201, dated 5.9.2001 within 3 days, is totally contrary to the said provisions and the same is without jurisdiction.
4. No doubt, in the affidavit filed in support of the writ petition, the impugned proceedings had been referred to in detail and the main grievance ventilated is the interference of M.L.A., which had been introduced in pursuance of the said proceedings. The 2nd respondent had filed counter affidavit in detail taking the stand that the District Development Review Committee in the meeting held on 11.9.2001 at Hyderabad Collectorate Chaired by the Honourable Minister of Urban Developmentbeing in-charge Minister and Chairman of D.D.R.C., Adilabad, the M.L.As., represented to the Chairman, D.D.R.C., that adverse seasonal condition works in Municipalities are being finalized without their consultation, the funds being released by Government are not municipal general funds and the Honourable Minister of Urban Development, A.P. and in-charge Minister for D.D.R.C orally instructed in the meeting to formulate the proposals in respect of Municipalities (urban areas) for the present with the concerned M.L.As., only and the District Collector reiterated the instructions issued by the in-charge Minister.
5. No doubt, the impugned proceedings had been justified on the ground that it is a policy decision and the funds which had been released in fact will not constitute the municipal funds as such and hence the mere participation of an M.L.A. is not going to alter the situation or in any way going to affect the rights of the Municipality as such.Respondent No.4 also filed a counter affidavit virtually taking the same stand. A reply affidavit is filed narrating several details and stating that in the entire State no such action was initiated by D.D.R.C., except in respect of the subject municipality in Adilabad District.
6. Sri K. Manik Prabhu, learned counsel representing the writ petitioner had contended that the question raised by the writ petitioner Municipality is a question of serious concern, in fact, the constitutional provisions themselves had envisaged that the interference of the State Government in the affairs of the Municipality should be minimized and the view is to safeguard the independence of the Local Bodies. The learned counsel further contended that the introduction of the M.L.A's role into the affairs of the Municipality in spending the funds virtually will amount to encroaching into the powers of the authorities of the Municipality specified by different provisions of the Act. The learned counsel also had drawn my attention to Section 35, Section 65, Sections 133 to 145 of the said Act and had contended that whatever may be the source from which the funds are received by the Municipality, when once the funds are allotted to the Municipality, it is the prerogative of the authorities specified under the Act to deal with the funds and hence there cannot be any interference either by the state Government or by any other committee as such or introducing the participation of the local M.L.A. The learned counsel also had pointed out that by virtue of these statutory provisions and also 12th Schedule of the Constitution of India, all these works, in fact, vest in the Municipality and it is implied that even in the case of execution of such works, if no funds are allotted, the funds should be treated as the municipal funds and hence the authorities under the Act alone should have the domain and power to deal with such affairs and the interference of M.L.A. is totally unwarranted. The learned counsel also had drawn my attention to certain provisions of Indian Constitution and also the other provisions of the Act, i.e., Sections 4,5 and 6 of the Act which deal with the General Powers.
7. The Government Pleader for G.A.D., Sri Rama Rao had contended that these funds had been allotted under the 'Calamity Relief Fund' which is a separate scheme altogether and the State Government is definitely empowered to supervise over the utilization of such funds. The learned counsel also had drawn my attention to G.O. Ms. No.26, Fin & Plg. (Plg. DP.III) Dept., dt. 22.6.1995 and the other relevant G.Os. under which the objectives of the District Development Review Committee (in short referred to as 'D.D.R.C.') had been specified. Learned counsel further pointed out that this decision had been taken in fact in the interest of the concerned Municipalities to see that the concerned people's representative also either supervises or monitors the funds which are allocated for a specific purpose. Learned counsel further submitted that these funds allotted totally under a different scheme at no stretch of imagination could be said to fall under the municipal funds as defined under the Act. The learned counsel had drawn my attention to the elaborate counter affidavit filed by Respondent No.2 explaining the stand in this regard.
8. Sri V. Ravinder Rao, learned counsel representing Respondent No.4 had drawn my attention to Sections 34 and 65 of the Act and also Sections 35 and 133 of the Act and had contended that these provisions of the Act deal with the vesting of the properties in the concerned Municipality and the learned counsel further contended that the present dispute is relating to the utilization or spending of funds allotted under a particular scheme by the State Government and what is done by way of the impugned proceedings is only the participation of the local M.L.A. for the limited extent specified thereon which is more supervisory in nature. The learned counsel further contended that these orders relate to the administration of the State Government, in as much as, these orders are of administrative nature, normally they are not amenable to judicial review under Article 226 of the Constitution.It was further contended that even otherwise, the State Government while allotting the funds not falling under the Municipal Fund as defined under the Act, should be given a say even in the case of the utilization of such funds and while taking such a policy decision, in fact, a decision was taken specifying certain objectives under G.O. Ms. No.26, dated 22.6.1995 and in pursuance thereto not only in the present subject Municipality even in other Municipalities the participation of the local M.L.A. had been in fact referred to in the proceedings. So, absolutely, there is no arbitrariness in the impugned orders and hence the said orders need not be interfered with. He has also further contended that even otherwise no prejudice is caused in the participation of the local M.L.A. and the local M.L.A. having a say in the matter. The learned counsel also had placed reliance on the judgment of the Supreme Court in J.R. RAGHUPATHY v. STATE OF A.P. & OTHERS (1) and the judgment of this Court in SOCIETY FOR PRESERVATION OF ENVIRONMENT & QUALITY OF LIFE vs. STATE OF A.P. & OTHERS (2) in this regard.
9. Heard the counsel at length and perused the material available on record.
10. As already stated supra, the question raised by the Municipality is one of confrontation between the local Body and the State Government as such in the case of spending or utilization of certain funds which had been allotted by the State Government under a particular scheme. In a nutshell, the stand taken by the Municipality is that whenever a particular fund had been allotted to the Municipality, automatically it will go into the main pool of the Municipal Fund and hence when it assumes the character of the Municipal Fund, the State Government must have no say at all in the matter and hence whether the present participation of M.L.A. is in pursuance of the instructions or objectives of D.D.R.C. or or the directives of the State Government or this action should be held to be without jurisdiction. It may be appropriate to look into the provisions of the Act.
11. Section 125 of the Act defines Municipal Fund and the provisions read:
'Definition of Municipal Fund: All moneys received by the council shall constitute a fund which shall be called the municipal fund and shall be applied and disposed of subject to the provisions of this Act or other laws.'
12. In this context, it can be stated that the specific stand taken by the 2nd respondent is that these funds are allotted under a separate scheme and merely because the funds are being utilized for the purpose of execution of certain works in a particular municipality, that will not change the character or the nature of the fund as such. The learned government Pleader had drawn my attention to the specific stand taken by the Government in this regard in the counter affidavit filed by Respondent No.2.
13. In the counter affidavit, it was specifically stated that as per the A.P. Municipalities Act, under sections 30,35 and Part V of Chapter I of Sections 133 to 145 vest the administration and all water works in the Municipality and hence under the said provisions the works shall be done from general funds of Municipality and in this case the proposals to be formulated for the funds released by the Government are not by the General funds and the administrative sanction for works are to be given by the District collectors vide Engineer-in-Chief, (PH), Hyderabad, D.O.Lr. No. 503/T2/2001, dated 5.9.2001. At this juncture, it may be relevant to have a look at the portions of the impugned proceedings also. Under the proceedings dated 5.9.2001, the beginning portion itself reads as follows:
'The Government has released Rs.10.00 Crores for augmenting drinking water supply in Urban areas from Calamity Relief Fund District wise vide G.O. 1st cited and the said amounts has been kept at the disposal of Executive Engineers, Public Health concerned following Letter of Credit procedure for utilizing the funds for the purpose for which they are sanctioned. The Rs.10.00 Crore funds released vide G.O. 1st cited have been distributed Urban Local Body wise vide G.O. 2nd cited.'
14. In the Memo 2001/D3/ADB/ASC-01-02/1042, dated 15/19.9.2001 at para-3 it is specified that:
'While enclosing a copy of Engineer-in-Chief, (PH)'s D.O. Lr. 2nd read above, the Dy. Executive Engineer, (PH) Adilabad and Mancherial are hereby requested to formulate the proposals for additional grants in respect of Municipalities under their jurisdiction in consultation with the concerned M.L.As, for amount equal to the indication made in the Engineer-in-Chief's D.O. Lr. Within 3 days.'
15. As already referred to supra, the writ petitioner is mere aggrieved of the words 'in consultation with the concerned MLAs'. Now adverting to the other relevant provisions which may have a bearing to decide the present question is Section 4 of the Act deals with Municipal authorities and Section 5 of the Act deals with Constitution of municipal council and Section 6 of the Act deals with the Incorporation of council as such. Much stress had been placed on Section 65, which deals with Government's power to undertake work for Municipality and the said provision reads as follows:
'(1) The Government may, with the consent of council, undertake on its behalf the construction of water supply, drainage or other works, appoint persons to carry out construction of such works and direct that the expenses including the pay of such persons be paid from the municipal fund and thereafter the provisions of Sub-sections (3) and (4) of Section 64 shall apply.'
16. The other provisions on which reliance was placed is Section 133 dealing with vesting of works in Councils, Section 35 of the Act dealing with vesting of public streets and appurtenances in the council.
17. Learned counsel for the writ petitioner had been stressing on the words 'Municipal Fund or otherwise' in Section 35 and also 'at the cost of the Council or otherwise' under Section 133 and had contended that the specific word 'otherwise' employed in these provisions clearly goes to show that the funds allotted by any Government be that a State Government or a Central Government, automatically, are to be treated as Municipal Fund only and hence the Municipality alone will have the exclusive authority and power to deal with such funds.
18. Article 243W of the Constitution of India deal with the powers, authority and responsibilities of Municipality etc. It reads as follows:
'Art.243W:- Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow-
(a) the Municipalities 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 Municipalities, subject to such conditions as may be specified therein, with respect to-
(1) the preparation of plans for economic development and social justice
(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;
(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule.'
19. Clause 5 of the 12th Schedule of the Constitution specifies 'water supply for domestic, industrial and commercial purposes.'
20. On a close reading of all the provisions, it is no doubt true that under these provisions the subject works after execution, they do vest in the Municipality.
21. But, however, as could be seen from the facts and circumstances of the case, we are not at that stage.Here is a case, where the State Government had released or allocated certain funds for the purpose of utilization of execution of certain developmental works in the Municipalities and as a matter of policy, a decision was taken and also the objectives of the aforesaid Committee also had been specifically specified in G.O. Ms. No.26, 22.6.1995, and in pursuance thereof an administrative decision had been taken relating to the participation of the M.L.A. Hence, at this stage, there cannot be any serious complaint by the writ petitioner relating to the impugned proceedings on the ground that the participation of the M.L.A. in pursuance of the directions of the State Government or the recommendations of the Committee, as such, will be contrary to any one of the provisions of the Act as such. It is no doubt true that when certain statutory functions are entrusted to the specified authorities under the statute they are expected to discharge those duties and even in the case of Local Bodies the State Government is not empowered to encroach upon such specified statutory duties under the Act, unless otherwise, amended or authorized to do so by any legislative action. But, in my considered opinion, in the present case, that is not so. In fact, it was rightly contended that as can be seen from the material available on record, it is a matter where in its wisdom the State Government thought in the case of utilization of these funds the participation of the local M.L.A., people's representative will in fact promote the public interest and in that view of the matter, these decisions had been taken and definitely those decisions are administrative in nature and in my opinion such decisions normally are not amenable to juridical review under Article 226 f the Constitution of India. A similar view was in fact expressed by the Supreme Court in Raghupathi's case cited supra-1. A similar question in a slight different factual situation arose before this Court in Society for Preservation of Environment & Quality of Life's case cited supra-2 wherein at page 386 it was held by the Division Bench:
'It is nowhere, however, seen in the Hyderabad Municipal Corporation Act that obligations for the construction, maintenance, alteration and improvements of streets, bridges, sub-ways, culverts, cause-ways or the like vested in the self-government called Municipal Corporation would denude the State Government of its power to create roads and other necessary facilities for the City of Hyderabad.'
22. No doubt, several G.Os., had been brought to my notice under which scheme is being executed and the allotment of the funds are being made and all the details which had been narrated and argued at length by the learned Government Pleader need not be considered since the short question involved in the writ petition in fact had been answered as referred to above.
23. In the light of the facts and circumstances of the case, I do not find any merits in the writ petition and the writ petition is accordingly dismissed. But, however, in view of the nature of the litigation, this Court makes no order as to costs.