On District Planning At State’s Behest, Pending SEC Opinion On Feasibility Of Elections To 13 Competent Authorities- (Uttarakhand Highcout Restrains Spending Of 110 Crore) – [Read Order]

Uttrakhand High court

The Uttarakhand High Court on Friday restrained the State Government, from spending the budget of District Planning, of about Rs. 110 crores (as per ANI), on the complaint that the State Election Commission is not holding elections for constitution of the District Planning Committees.

The Chief Justice-led bench observed that the Uttarakhand District Planning Committee Act, 2007 was notified in the gazette on 16.07.2007. Section 2(b) thereof defines a 2 ‘Committee’ to mean the ‘District Planning Committee’ constituted under Section 3 of the Act. Section 3(1) requires a District Planning Committee to be constituted in every district to consolidate the plans prepared by the Panchayats and Municipalities in the district, and to prepare a draft development plan for the district as a whole.

Section 3(2) requires the Committee, in preparing the draft development plan to (a) have regard to (i) matters of common interest between the Panchayats and Municipalities including spatial planning, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation, and (ii) the extent and type of available financial or other resourses; and (b) consult such institutions and organisations as the Governor may, by order, specify.

Section 4 relates to ‘Composition of District Planning Committee’ and Section 9 to the ‘Functions of the Committee’. Section 12 requires the Committee, i.e. the District Planning Committee to finalize the draft development plan for the district. Section 13(1) stipulates that, for the purpose of implementation of the district plan, the State Government may, subject to the District Plan outlay ceiling, make district-wise provisions for money in its annual financial statement and, after due appropriation thereof, to allocate in a lump-sum to the district.

“It is only after the draft development plan for the district is finalized by the District Planning Committee, constituted in terms of Section 3(1) of the 2007 Act, would the question of implementing such a plan, in terms of Section 13(1) of the said Act, arise”, noted the division bench.

The Court appreciated that Section 8 relates to ‘Election of the members of the District Planning Committee’ and, thereunder, the State Election Commission shall have superintendence, direction and control of the preparation of electoral rolls of, and the conduct of, elections of the members of the Committee in such manner as may be prescribed.

“The complaint in the writ petition is that the State Election Commission is not holding elections for constitution of the District Planning Committees. While the reasons for such elections not being held, as also the challenge to the validity of the ordinance, must necessarily await the counter-affidavits of the respondents, the limited question which we are required to consider, in the present Interim Relief Application, is the validity of the order passed by the State Government on 16.06.2020 in terms of which, for the Financial Year 2020-21, amounts were sanctioned, with the approval of the Governor, to each of the 13 districts, and power was conferred on the District Magistrates to utilize the sanctioned amounts”, said the bench.

The Court appreciated that Section 8-A was inserted into the 2007 Act by the Uttarakhand District Planning Committee (Amendment) Ordinance, 2020, which was notified on 12.06.2020. Section 8-A, as inserted by the 2020 Ordinance, reads thus:

“8-A. Approval and application of District Plan in inevitable circumstances: Notwithstanding anything contained in this Act or any other Act when in opinion of the State Election Commission such emergency circumstances exist, that it is not feasible to conduct election then till such circumstances exists proposed district plan after approval of State Government may be approved and applied, in concerned District by District Magistrate of concerned district.”

“Section 8-A enables the State Government to approve the proposed district plan and, after its approval, for the said plan to be applied in the concerned district by the District Magistrate concerned. Unlike Sections 3(2) and 12 of the 2007 Act, in terms of which a draft of the district plan is required to be prepared and finalized by the District Planning Committee, Section 8-A confers power on the State Government to approve the proposed district plan, and to empower the District Magistrates to apply these plans in their respective districts”, said the bench.

It was of the opinion that In view of the non-obstante clause in Section 8-A, the provisions therein will apply notwithstanding any other provisions of the 2007 Act or of any other Act. The Court reflected that Section 8-A is, however, hedged by the pre-condition that the State Election Commission should form an opinion that emergency circumstances exist rendering it non-feasible to conduct elections. It is only on such an opinion being formed by the State Election Commission, and its being communicated to the State Government, would it be open to the State Government thereafter, till such emergency circumstances as opined by the State Election Commission continue to exist, to approve the proposed district plan, and to allocate funds for its implementation in the district.

“No such opinion was formed by the State Election Commission, much less sent to the State Government in terms of Section 8-A of the 2020 Ordinance, after the said Ordinance came into force on 12.06.2020”, recorded the bench.

Accordingly, the Court ordered that As, in terms of Section 8-A of the 2007 Act inserted by the 2020 Ordinance, the pre-condition for exercise of power thereunder by the State Government is the formation of opinion by the State Election Commission, and the impugned order dated 16.06.2020 was issued even without seeking the opinion of the State Election Commission, there shall be an interim order restraining the State Government from spending the budget, allotted in terms of the district plan, pending further orders.

Published by Sneha Vishwakarma

Advocate, Bombay High court.

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