Pawan Rana Vs. State of M.P. and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/505851
SubjectCivil
CourtMadhya Pradesh High Court
Decided OnAug-28-2009
JudgeA.K. Patnaik, C.J., ;Subhash Samvatsar and ;A.K. Shrivastava, JJ.
Reported inAIR2010MP1; 2009(4)MPHT377
AppellantPawan Rana
RespondentState of M.P. and ors.
Cases ReferredSmt. Madhu Bhadoria v. State of M.P. and Ors. (supra
Excerpt:
- - 11. this interpretation of sections 86 (1) and (2) suggested by us is in accordance with the well settled principle of interpretation that the provision of a statute must be so construed as to make it effective and operative. hence, only where there are persistent defaults by a panchayat in the performance of its duties imposed under the act or by any other law for the time being in force, or in case of abuse of powers or exercise of powers in excess of what is conferred or failure to carry out the order of the state government or the prescribed authority, the state government or the prescribed authority may dissolve the panchayat.a.k. patnaik, c.j.1. this is a reference made to the full bench by a learned single judge of this court because of difference of opinion in the judgments of two different division benches of the high court on interpretation of section 86 of the madhya pradesh panchayat raj adhiniyam, 1993 (for short 'the adhiniyam, 1993').2. the background facts leading to this reference are that under section 69 of the adhiniyam, 1993, the state government or the prescribed authority has the power to appoint secretary for a gram panchayat or group of two or more gram panchayats and under section 70 of the adhiniyam, 1993, a gram panchayat has the power to appoint such other officers and servants as it considers necessary for the efficient discharge of its duties with the previous approval of the prescribed authority. the state government issued a circular dated 12-9-1995 regarding appointment of panchayat karmis by the gram panchayats and issued another circular dated 27-1-2006 clarifying that in case within a period of one month a gram panchayat fails to make the appointment of panchayat karmi, the collector of the concerned district in exercise of powers under section 86 (1) of the adhiniyam, 1993, may direct the chief executive officer of the janpad panchayat within whose territorial jurisdiction the gram panchayat is situated to complete the process of selection of panchayat karmi. the chief executive officer of the janpad panchayat, dabra, by an advertisement called for applications from the eligible and qualified persons to fill one post of panchayat karmi in gram panchayat chiruli and the petitioner amongst others applied. when the appointment of the panchayat karmi was not made in the gram panchayat chiruli, the collector, gwalior district, who is the prescribed authority, directed the chief executive officer of the janpad panchayat dabra to make appointment of panchayat karmi and the chief executive officer appointed the respondent no. 4 as panchayat karmi of gram panchayat, chiruli. aggrieved, the petitioner has filed the present writ petition for quashing the order of appointment of the respondent no. 4 as panchayat karmi and for directing the gram panchayat, chiruli, to make an appointment strictly on the basis of merit.3. when the present writ petition came up for hearing before a learned single judge of the high court at gwalior on 23- 6-2009, the petitioner contended that the power to appoint a panchayat karmi is vested in a gram panchayat under section 70 of the adhiniyam, 1993, and the prescribed authority in exercise of powers under section 86 (1) of the adhiniyam, 1993, cannot change the appointing authority and confer jurisdiction on the chief executive officer of the janpad panchayat to make the appointment of panchayat karmi. in support of this contention, the petitioner cited a division bench judgment of this court in smt. madhu bhadoria v. state of m.p. and ors. w.p. no. 206/2008.4. the respondent nos. 1 and 2, on the other hand, contended that in leelawati and anr. v. state of m.p. and ors. reported in 2008(4) m.p.h.t. 470 (db), another division bench has taken a view that the collector as the prescribed authority in exercise of powers under section 86 (1) of the adhiniyam, 1993, can issue a direction to the chief executive officer to appoint a panchayat karmi and by virtue of such direction the chief executive officer has a power to appoint a panchayat karmi.5. the learned single judge in his order dated 23-6-2009 found that there was difference of opinion of the two division benches of this court on the interpretation of section 86 (1) of the adhiniyam, 1993, while in smt. madhu bhadoria v. state of m.p. and ors. (supra), the division bench has held that only a gram panchayat can appoint a panchayat karmi as per the provisions of the adhiniyam, 1993, in leelawati and anr. v. state of m.p. and ors. (supra), another division bench has taken a view that under section 86 (2) of the adhiniyam, 1993, the chief executive officer of the janpad panchayat can be directed by the collector as the prescribed authority to make an appointment of panchayat karmi of the gram panchayat. in the order dated 23-6-2009 passed in the present case, the learned single judge has observed that this controversy deserves to be put to rest by a larger bench and accordingly, the difference of opinion in the judgments of two division benches has been referred to this full bench.6. sections 69 (1), 70 (1), 86 (1) and 86 (2) of the adhiniyam, 1993, which are relevant to answer the reference are quoted herein below:section 69. appointment of secretary and chief executive officer.- (1) the state government or the prescribed authority may appoint a secretary for a gram panchayat or group of two or more gram panchayats:provided that the person holding the charge of a secretary of gram panchayat immediately before the commencement of this act shall continue to function as such till a secretary is appointed in accordance with this section:provided further that a person shall not hold charge of a secretary of gram panchayat, if such a person happens to be relative of any office bearer of the concerned gram panchayat.section 70. other officers and servants of panchayat.- (1) subject to the provisions of section 69 every panchayat may with previous approval of prescribed authority appoint such other officers and servants as it considers necessary for the efficient discharge of its duties.section 86. power of state government to issue order directing panchayat for execution of works in certain cases.- (1) the state government or the prescribed authority may, by an order in writing, direct any panchayat to perform any duty imposed upon it, by or under this act, or by or under any other law for the time being in force or any work as is not being performed or executed, as the case may be, by it and the performance or execution thereof by such panchayat is, in the opinion of the state government or prescribed authority, necessary in public interest.(2) the panchayat shall be bound to comply with direction issued under sub-section (1) and if it fails to do so the state government or the prescribed authority shall have all necessary powers to get the directions complied with at the expense, if any, of the panchayat and in exercising such powers it shall be entitled to the same protection and the same extent under this act as the panchayat or its officers or servants whose powers are exercised.7. section 69 (1) quoted above thus provides that the state government or the prescribed authority may appoint a secretary for a gram panchayat or group of two or more gram panchayat and section 70 (1) states that subject to the provisions of section 69, every panchayat may with the previous approval of the prescribed authority appoint such other officers and servants as it considers necessary for the efficient discharge of its duties. section 86 (1) states that the state government or the prescribed authority may, by an order in writing, direct any panchayat to perform any duly imposed upon it, by or under the act. section 86 (2) further stated that the panchayat shall be bound to comply with the direction issued under section 86 (1) and if it fails to do so the state government or the prescribed authority shall have all necessary powers to get the directions complied with at the expense, if any, of the panchayat and in exercising such powers it shall be entitled to the same protection and the same extent under the act as the panchayat or its officers or servants whose powers are exercised.8. on an interpretation of the provisions of sections 69 (1) and 70 (1), it is clear that the state government or the prescribed authority has the power to appoint a secretary for a gram panchayat or a group of two or more gram panchayats under section 69 (1) and the gram panchayat has the power to appoint other officers and servants as it considers necessary for efficient discharge of its duties including panchayat karmis with the previous approval of the prescribed authority. it is further clear on an interpretation of section 86 (1) that the state government or the prescribed authority may direct the panchayat to perform any duty imposed upon it under the act.9. according to mr. m.p.s. raghuvanshi, learned counsel for the petitioner, under section 70, the gram panchayat is not conferred with any duty but with the power to appoint such other officers and servants including panchayat karmis as it considers necessary for the efficient discharge of its duties. we are unable to accept this submission of mr. raghuvanshi. it will be clear from section 86 (2) that the panchayat is bound to comply with the direction issued under section 86 (1) and if it fails to do so, the state government or the prescribed authority shall have 'all necessary powers' to get the directions complied with and in exercising such powers it shall be entitled to the same protection and to the same extent under the act as the panchayat or its officers and servants whose powers are exercised. thus, in sections 86 (1) and 86 (2), the words 'duties' and 'powers' have been interchangeably used. in section 86 (1) the word 'duties' has been used by legislature to emphasise on the statutory function of the gram panchayat under the act and in section 86 (2) the legislature has used the word 'powers' to emphasise that if the gram panchayat fails to perform its statutory function, the state government or the prescribed authority will have the powers to perform such statutory function.10. the expression 'all necessary powers' in section 86 (2) is very wide and will mean all the powers that the panchayat has under the adhiniyam, 1993. this will be clear from section 86 (2) which states that in exercising such powers, the state government or the prescribed authority 'shall be entitled to the same protection and the same extent under the act as the panchayat whose powers are exercised'. the object of the legislature in making such a provision in section 86 (2) is to ensure that if the panchayat fails to perform any particular duty conferred on its under the act despite directions issued by the state government or the prescribed authority under section 86 (1), the state government or the prescribed authority must have the required powers to get the directions complied with and when the state government or the prescribed authority exercises such necessary powers, it will be deemed as if the panchayat has exercised its powers under the act.11. this interpretation of sections 86 (1) and (2) suggested by us is in accordance with the well settled principle of interpretation that the provision of a statute must be so construed as to make it effective and operative. in tinsukhia electric supply co. ltd. v. state of assam and ors. : air 1990 sc 123, m.n. venkatachaliah, j., as he then was, speaking for himself and r.s. pathak, cj., s. natrajan and s. ranganathan, jj., observed in paragraph 49 at page 152 of the air:the courts strongly lean against any construction which tends to reduce a statute to a futility. the provision of a state must be so construed as to make it effective and operative, on the principle 'ut res majis valeat quam periat'.unless, therefore, we take the view that under section 86 (2) the state government or the prescribed authority can exercise the same powers as that of the panchayat through one officer or the other where the panchayat fails to comply with the directions of the state government or the prescribed authority, the provision in section 86 (2) will be rendered futile and unworkable.12. however, the division bench has also taken in view in smt. madhu bhadoriya v. state of m.p. and ors. (supra), that if the directions of the state government or the prescribed authority are not complied with by the panchayat then the state government has the power to dissolve the gram panchayat under section 87. section 87 (1) empowering the state government or the prescribed authority to dissolve the panchayat is quoted hereinbelow:section 87. power of state government to dissolve panchayat for default, abuse of powers, etc.- (1) if at any time it appears to the state government or the prescribed authority that a panchayat is persistently making default in the performance of the duties imposed on it by or under this act or under any other law for the time being in force, or exceeds or abuses its powers or fails to carry out any order of the state government or the competent authority, the state government or the prescribed authority, may after such enquiry as it may deem fit, by an order dissolve such panchayat and may order a fresh constitution thereof.on a reading of section 87 (1), we find that the power to dissolve the panchayat can be exercised by the state government or the prescribed authority only where the panchayat persistently makes default in the performance of the duties imposed on it by or under the act or by any other law for the time being in force or exceeds its powers or fails to carry out any order of the state government or the prescribed authority after such enquiry as it may deem fit but not otherwise. hence, only where there are persistent defaults by a panchayat in the performance of its duties imposed under the act or by any other law for the time being in force, or in case of abuse of powers or exercise of powers in excess of what is conferred or failure to carry out the order of the state government or the prescribed authority, the state government or the prescribed authority may dissolve the panchayat. this appears to be a drastic measure contemplated by the legislature against a panchayat and can be resorted to strictly in the circumstances mentioned in section 87 (1) and not otherwise and these circumstances are different from those mentioned in section 86 (2).13. mr. raghuvanshi, learned counsel for the petitioner, submitted that where the panchayat fails to perform its duties to make an appointment of officers and services including panchayat karmis under section 70, the state government can take action under section 53 (2). section 53 (2) of the adhiniyam, 1993, is quoted hereinbelow:section 53. power of state government in relation to functions of panchayats.:(1) *** *** ***(2) the state government may, by general or special order, add to any of the functions of panchayats or withdraw the functions and duties entrusted to such panchayats, when the state government undertakes the execution of any of the functions entrusted to panchayat. the panchayat shall not be responsible for such functions so long as the state government does not re-entrust such functions to the panchayats.a plain reading of section 53 (2) would show that the state government may, by general or special order, add to any of the functions of panchayats or withdraw the functions and duties entrusted to such panchayats, when the state government undertakes to execute any of the functions entrusted to panchayat and in such a situation, the panchayats shall not be responsible for such functions so long as the state does not re-entrust such functions to the panchayats. this general provision will apply where instead of the panchayats performing functions entrusted to them, the state government itself undertakes to execute such functions of the panchayats through its own agencies. this provision obviously does not apply where the panchayat fails to perform a particular duty conferred on it under the adhiniyam, 1993 despite a direction by the state government or the prescribed authority to perform such duty.14. we are thus of the considered opinion that under section 86 (2) of the adhiniyam, 1993, the state government or the prescribed authority can direct the chief executive officer of the janpad panchayat within whose territorial jurisdiction a gram panchayat is located, to appoint a panchayat karmi in case the gram panchayat fails to make such appointment despite directions for such appointment issued by the state government or the prescribed authority and that the view taken by the division bench in leelawati and anr. v. state of m.p. and ors. (supra), on this point is correct and the view taken by the division bench in smt. madhu bhadoria v. state of m.p. and ors. (supra), that under section 86 (2) of the adhiniyam, 1993, the state government or the prescribed authority has no powers to change the authority for appointment of panchayat karmi of a gram panchayat, is not correct.the reference is answered accordingly. the writ petition be now placed before the learned single judge for hearing on merits.
Judgment:

A.K. Patnaik, C.J.

1. This is a reference made to the Full Bench by a learned Single Judge of this Court because of difference of opinion in the judgments of two different Division Benches of the High Court on interpretation of Section 86 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (for short 'the Adhiniyam, 1993').

2. The background facts leading to this reference are that under Section 69 of the Adhiniyam, 1993, the State Government or the Prescribed Authority has the power to appoint Secretary for a Gram Panchayat or group of two or more Gram Panchayats and under Section 70 of the Adhiniyam, 1993, a Gram Panchayat has the power to appoint such other officers and servants as it considers necessary for the efficient discharge of its duties with the previous approval of the Prescribed Authority. The State Government issued a circular dated 12-9-1995 regarding appointment of Panchayat Karmis by the Gram Panchayats and issued another circular dated 27-1-2006 clarifying that in case within a period of one month a Gram Panchayat fails to make the appointment of Panchayat Karmi, the Collector of the concerned District in exercise of powers under Section 86 (1) of the Adhiniyam, 1993, may direct the Chief Executive Officer of the Janpad Panchayat within whose territorial jurisdiction the Gram Panchayat is situated to complete the process of selection of Panchayat Karmi. The Chief Executive Officer of the Janpad Panchayat, Dabra, by an advertisement called for applications from the eligible and qualified persons to fill one post of Panchayat Karmi in Gram Panchayat Chiruli and the petitioner amongst others applied. When the appointment of the Panchayat Karmi was not made in the Gram Panchayat Chiruli, the Collector, Gwalior District, who is the Prescribed Authority, directed the Chief Executive Officer of the Janpad Panchayat Dabra to make appointment of Panchayat Karmi and the Chief Executive Officer appointed the respondent No. 4 as Panchayat Karmi of Gram Panchayat, Chiruli. Aggrieved, the petitioner has filed the present writ petition for quashing the order of appointment of the respondent No. 4 as Panchayat Karmi and for directing the Gram Panchayat, Chiruli, to make an appointment strictly on the basis of merit.

3. When the present writ petition came up for hearing before a learned Single Judge of the High Court at Gwalior on 23- 6-2009, the petitioner contended that the power to appoint a Panchayat Karmi is vested in a Gram Panchayat under Section 70 of the Adhiniyam, 1993, and the Prescribed Authority in exercise of powers under Section 86 (1) of the Adhiniyam, 1993, cannot change the Appointing Authority and confer jurisdiction on the Chief Executive Officer of the Janpad Panchayat to make the appointment of Panchayat Karmi. In support of this contention, the petitioner cited a Division Bench judgment of this Court in Smt. Madhu Bhadoria v. State of M.P. and Ors. W.P. No. 206/2008.

4. The respondent Nos. 1 and 2, on the other hand, contended that in Leelawati and Anr. v. State of M.P. and Ors. reported in 2008(4) M.P.H.T. 470 (DB), another Division Bench has taken a view that the Collector as the Prescribed Authority in exercise of powers under Section 86 (1) of the Adhiniyam, 1993, can issue a direction to the Chief Executive Officer to appoint a Panchayat Karmi and by virtue of such direction the Chief Executive Officer has a power to appoint a Panchayat Karmi.

5. The learned Single Judge in his order dated 23-6-2009 found that there was difference of opinion of the two Division Benches of this Court on the interpretation of Section 86 (1) of the Adhiniyam, 1993, while in Smt. Madhu Bhadoria v. State of M.P. and Ors. (supra), the Division Bench has held that only a Gram Panchayat can appoint a Panchayat Karmi as per the provisions of the Adhiniyam, 1993, in Leelawati and Anr. v. State of M.P. and Ors. (supra), another Division Bench has taken a view that under Section 86 (2) of the Adhiniyam, 1993, the Chief Executive Officer of the Janpad Panchayat can be directed by the Collector as the Prescribed Authority to make an appointment of Panchayat Karmi of the Gram Panchayat. In the order dated 23-6-2009 passed in the present case, the learned Single Judge has observed that this controversy deserves to be put to rest by a Larger Bench and accordingly, the difference of opinion in the judgments of two Division Benches has been referred to this Full Bench.

6. Sections 69 (1), 70 (1), 86 (1) and 86 (2) of the Adhiniyam, 1993, which are relevant to answer the reference are quoted herein below:

Section 69. Appointment of Secretary and Chief Executive Officer.- (1) The State Government or the Prescribed Authority may appoint a Secretary for a Gram Panchayat or group of two or more Gram Panchayats:

Provided that the person holding the charge of a Secretary of Gram Panchayat immediately before the commencement of this Act shall continue to function as such till a Secretary is appointed in accordance with this Section:

Provided further that a person shall not hold charge of a Secretary of Gram Panchayat, if such a person happens to be relative of any office bearer of the concerned Gram Panchayat.Section 70. Other officers and servants of Panchayat.- (1) Subject to the provisions of Section 69 every Panchayat may with previous approval of Prescribed Authority appoint such other officers and servants as it considers necessary for the efficient discharge of its duties.

Section 86. Power of State Government to issue order directing Panchayat for execution of works in certain cases.- (1) The State Government or the Prescribed Authority may, by an order in writing, direct any Panchayat to perform any duty imposed upon it, by or under this Act, or by or under any other law for the time being in force or any work as is not being performed or executed, as the case may be, by it and the performance or execution thereof by such Panchayat is, in the opinion of the State Government or Prescribed Authority, necessary in public interest.

(2) The Panchayat shall be bound to comply with direction issued under Sub-section (1) and if it fails to do so the State Government or the Prescribed Authority shall have all necessary powers to get the directions complied with at the expense, if any, of the Panchayat and in exercising such powers it shall be entitled to the same protection and the same extent under this Act as the Panchayat or its officers or servants whose powers are exercised.

7. Section 69 (1) quoted above thus provides that the State Government or the Prescribed Authority may appoint a Secretary for a Gram Panchayat or group of two or more Gram Panchayat and Section 70 (1) states that subject to the provisions of Section 69, every Panchayat may with the previous approval of the Prescribed Authority appoint such other officers and servants as it considers necessary for the efficient discharge of its duties. Section 86 (1) states that the State Government or the Prescribed Authority may, by an order in writing, direct any Panchayat to perform any duly imposed upon it, by or under the Act. Section 86 (2) further stated that the Panchayat shall be bound to comply with the direction issued under Section 86 (1) and if it fails to do so the State Government or the Prescribed Authority shall have all necessary powers to get the directions complied with at the expense, if any, of the Panchayat and in exercising such powers it shall be entitled to the same protection and the same extent under the Act as the Panchayat or its officers or servants whose powers are exercised.

8. On an interpretation of the provisions of Sections 69 (1) and 70 (1), it is clear that the State Government or the Prescribed Authority has the power to appoint a Secretary for a Gram Panchayat or a group of two or more Gram Panchayats under Section 69 (1) and the Gram Panchayat has the power to appoint other officers and servants as it considers necessary for efficient discharge of its duties including Panchayat Karmis with the previous approval of the Prescribed Authority. It is further clear on an interpretation of Section 86 (1) that the State Government or the Prescribed Authority may direct the Panchayat to perform any duty imposed upon it under the Act.

9. According to Mr. M.P.S. Raghuvanshi, learned Counsel for the petitioner, under Section 70, the Gram Panchayat is not conferred with any duty but with the power to appoint such other officers and servants including Panchayat Karmis as it considers necessary for the efficient discharge of its duties. We are unable to accept this submission of Mr. Raghuvanshi. It will be clear from Section 86 (2) that the Panchayat is bound to comply with the direction issued under Section 86 (1) and if it fails to do so, the State Government or the Prescribed Authority shall have 'all necessary powers' to get the directions complied with and in exercising such powers it shall be entitled to the same protection and to the same extent under the Act as the Panchayat or its officers and servants whose powers are exercised. Thus, in Sections 86 (1) and 86 (2), the words 'duties' and 'powers' have been interchangeably used. In Section 86 (1) the word 'duties' has been used by Legislature to emphasise on the statutory function of the Gram Panchayat under the Act and in Section 86 (2) the Legislature has used the word 'powers' to emphasise that if the Gram Panchayat fails to perform its statutory function, the State Government or the Prescribed Authority will have the powers to perform such statutory function.

10. The expression 'all necessary powers' in Section 86 (2) is very wide and will mean all the powers that the Panchayat has under the Adhiniyam, 1993. This will be clear from Section 86 (2) which states that in exercising such powers, the State Government or the Prescribed Authority 'shall be entitled to the same protection and the same extent under the Act as the Panchayat whose powers are exercised'. The object of the Legislature in making such a provision in Section 86 (2) is to ensure that if the Panchayat fails to perform any particular duty conferred on its under the Act despite directions issued by the State Government or the Prescribed Authority under Section 86 (1), the State Government or the Prescribed Authority must have the required powers to get the directions complied with and when the State Government or the Prescribed Authority exercises such necessary powers, it will be deemed as if the Panchayat has exercised its powers under the Act.

11. This interpretation of Sections 86 (1) and (2) suggested by us is in accordance with the well settled principle of interpretation that the provision of a statute must be so construed as to make it effective and operative. In Tinsukhia Electric Supply Co. Ltd. v. State of Assam and Ors. : AIR 1990 SC 123, M.N. Venkatachaliah, J., as he then was, speaking for himself and R.S. Pathak, CJ., S. Natrajan and S. Ranganathan, JJ., observed in Paragraph 49 at Page 152 of the AIR:

The Courts strongly lean against any construction which tends to reduce a Statute to a futility. The provision of a State must be so construed as to make it effective and operative, on the principle 'ut res majis valeat quam periat'.

Unless, therefore, we take the view that under Section 86 (2) the State Government or the Prescribed Authority can exercise the same powers as that of the Panchayat through one Officer or the other where the Panchayat fails to comply with the directions of the State Government or the Prescribed Authority, the provision in Section 86 (2) will be rendered futile and unworkable.

12. However, the Division Bench has also taken in view in Smt. Madhu Bhadoriya v. State of M.P. and Ors. (supra), that if the directions of the State Government or the Prescribed Authority are not complied with by the Panchayat then the State Government has the power to dissolve the Gram Panchayat under Section 87. Section 87 (1) empowering the State Government or the Prescribed Authority to dissolve the Panchayat is quoted hereinbelow:

Section 87. Power of State Government to dissolve Panchayat for default, abuse of Powers, etc.- (1) If at any time it appears to the State Government or the Prescribed Authority that a Panchayat is persistently making default in the performance of the duties imposed on it by or under this Act or under any other law for the time being in force, or exceeds or abuses its powers or fails to carry out any order of the State Government or the Competent Authority, the State Government or the Prescribed Authority, may after such enquiry as it may deem fit, by an order dissolve such Panchayat and may order a fresh constitution thereof.

On a reading of Section 87 (1), we find that the power to dissolve the Panchayat can be exercised by the State Government or the Prescribed Authority only where the Panchayat persistently makes default in the performance of the duties imposed on it by or under the Act or by any other law for the time being in force or exceeds its powers or fails to carry out any order of the State Government or the Prescribed Authority after such enquiry as it may deem fit but not otherwise. Hence, only where there are persistent defaults by a Panchayat in the performance of its duties imposed under the Act or by any other law for the time being in force, or in case of abuse of powers or exercise of powers in excess of what is conferred or failure to carry out the order of the State Government or the Prescribed Authority, the State Government or the Prescribed Authority may dissolve the Panchayat. This appears to be a drastic measure contemplated by the Legislature against a Panchayat and can be resorted to strictly in the circumstances mentioned in Section 87 (1) and not otherwise and these circumstances are different from those mentioned in Section 86 (2).

13. Mr. Raghuvanshi, learned Counsel for the petitioner, submitted that where the Panchayat fails to perform its duties to make an appointment of officers and services including Panchayat Karmis under Section 70, the State Government can take action under Section 53 (2). Section 53 (2) of the Adhiniyam, 1993, is quoted hereinbelow:

Section 53. Power of State Government in relation to functions of Panchayats.:

(1) *** *** ***

(2) The State Government may, by general or special order, add to any of the functions of Panchayats or withdraw the functions and duties entrusted to such Panchayats, when the State Government undertakes the execution of any of the functions entrusted to Panchayat. The Panchayat shall not be responsible for such functions so long as the State Government does not re-entrust such functions to the Panchayats.

A plain reading of Section 53 (2) would show that the State Government may, by general or special order, add to any of the functions of Panchayats or withdraw the functions and duties entrusted to such Panchayats, when the State Government undertakes to execute any of the functions entrusted to Panchayat and in such a situation, the Panchayats shall not be responsible for such functions so long as the State does not re-entrust such functions to the Panchayats. This general provision will apply where instead of the Panchayats performing functions entrusted to them, the State Government itself undertakes to execute such functions of the Panchayats through its own agencies. This provision obviously does not apply where the Panchayat fails to perform a particular duty conferred on it under the Adhiniyam, 1993 despite a direction by the State Government or the Prescribed Authority to perform such duty.

14. We are thus of the considered opinion that under Section 86 (2) of the Adhiniyam, 1993, the State Government or the Prescribed Authority can direct the Chief Executive Officer of the Janpad Panchayat within whose territorial jurisdiction a Gram Panchayat is located, to appoint a Panchayat Karmi in case the Gram Panchayat fails to make such appointment despite directions for such appointment issued by the State Government or the Prescribed Authority and that the view taken by the Division Bench in Leelawati and Anr. v. State of M.P. and Ors. (supra), on this point is correct and the view taken by the Division Bench in Smt. Madhu Bhadoria v. State of M.P. and Ors. (supra), that under Section 86 (2) of the Adhiniyam, 1993, the State Government or the Prescribed Authority has no powers to change the authority for appointment of Panchayat Karmi of a Gram Panchayat, is not correct.

The Reference is answered accordingly. The writ petition be now placed before the learned Single Judge for hearing on merits.