JUDGMENT By the Court.—Heard Sri J.P. Singh, Sri D.K.S. Rathor, Sri Manish, Sri Ashwani Kumar Srivastava, Sri Ravesh Kumar Singh, Sri Vidya Kant Shukla, Sri S.K. Yadav, Sri Atul Tej Kushwaha, Ram Chandra Yadav, Sri Ateeq Uddin, Sri M.A. Abbasi, Sri S.D. Yadav, Sri Ashwani Kumar Mishra, Sri Satyavir Singh, Sri R.P. Ranjan and Sri J.J. Munir, learned counsels for the petitioners, Sri M.C. Chaturvedi, Chief Standing Counsel assisted by Sri Suresh Singh, learned Standing Counsel for the State-Respondents. 2. This bunch of writ petitions have been filed by elected Pradhans of various Gram Panchayats/Sabhas of various districts of the State of Uttar Pradesh. 3. The basic facts and the legal aspects raised are identical in all these writ petitions, accordingly, they are being decided by this common judgment. The facts on record of Civil Misc. Writ Petition No. 1509 of 2009 are being stated for the purposes of present judgment treating the same to be the leading case. 4. Petitioners before this Court challenge the Government Order dated 18th July, 2008, copy whereof has been enclosed along with writ petition. The facts leading to the issuance of the same are as under : 5. The Principal Secretary, U.P. Government Lucknow forwarded a letter dated 27th May, 2008 addressed to all the District Magistrates of various districts of the State of Uttar Pradesh, stating that under the Government Order dated 18th January, 2008, a decision has been taken by the State Government for replacement of Khadanja roads by cement concrete roads along with K.C. Drains, inasmuch as maintenance and repairing of Khadanja roads and Nalis requires expenditure year after year, which runs into crores of rupees. The construction of cement concrete roads from wall to wall would help in effective cleaning of the roads as well as of the Nalis. For the purpose, it has been clarified that on Khadanja roads within habitat area of Gram Panchayats, except those which are within the category of Sampark Marg and roads on which normally heavy commercial vehicles are not run, Cement Concrete Roads and K.C. Drains shall be constructed. At the first instance, such constructions will take place in villages selected under the Dr. Ambedkar Samagra Gramin Vikash Yojana. Detail guidelines for carrying out the aforesaid construction work have been provided for. The Government Order provides that the total number of villages selected under Dr. At the first instance, such constructions will take place in villages selected under the Dr. Ambedkar Samagra Gramin Vikash Yojana. Detail guidelines for carrying out the aforesaid construction work have been provided for. The Government Order provides that the total number of villages selected under Dr. Ambedkar village Panchayats is 3738 for the year 2008-09. For construction of Cement Concrete Roads and K.C. Drains, an allocation of 1000 crores of rupees has been made. 6. Clause-2 of the said Government Order provided that in accordance with directions contained in Clause-5, proposals from Gram Panchayat concerned be obtained in respect of the work to be carried out and be forwarded to the District Magistrate through the District Panchayat Raj Officer. The Government Order clarifies that construction of C.C. Roads and K.C. Drains will be executed through competent agencies, including outside construction agencies including those of Union of India. 7. A subsequent Government Order was issued on 23rd June, 2008, which provided for the design as well as expected cost of construction of C.C. Roads and K.C. Drains on per square metre basis with a condition that the nature of construction and cost would be verified by the Panchayat Raj Department. 8. Since Gram Panchayats were involved in submission of proposals as per clause-5 of the said Government Order, for construction of the C.C. Roads and K.C. Drains, they were satisfied with the Government Order so enforced. 9. However, before the aforesaid two Government Orders could be given effect to the State Government came out with another Government Order dated 18th July, 2008. By means of the said Government Order the District Magistrates throughout the State of Uttar Pradesh were informed that C.C. Roads and K.C. Drains shall now be constructed by the Public Works Department/Bridge Corporation of U.P. and concrete roads shall be laid at places (in villages selected for the purpose), over the existing khadanja road. The criteria for the selection of the villages for the purpose was also provided for. The District Magistrate has been authorised, in terms of the policy, for selection of the villages and for final decision, in respect of the aforesaid constructions. The cost of construction etc. of the C.C. Roads and K.C. Drains has been directed to be made by the Rajya Niyojan Sansthan, Uttar Pradesh. The District Magistrate has been authorised, in terms of the policy, for selection of the villages and for final decision, in respect of the aforesaid constructions. The cost of construction etc. of the C.C. Roads and K.C. Drains has been directed to be made by the Rajya Niyojan Sansthan, Uttar Pradesh. The unit selected and made responsible for executing the construction has been directed to make survey/inspection of the villages and to submit its reports with proposed investment in the shape of a primary plan to the District Magistrate, who after verification is to sanction the same for administrative as well as for financial purposes. After such sanction, the Executive Engineers have been directed to provide the technical approval to the said constructions. A Committee of five officers has been constituted for overseeing the quality of the construction to be made. The Committee is to comprise of (a) District Magistrate (President), (b) Chief Officer, Zila Panchayat/Chief Development Officer (Secretary), (c) Additional Chief Officer, Zila Panchayat/Engineer and Finance Advisor (Member), (d) Executive Engineer, Public Works/Rural Service Department (Member) and (e) District Panchayat Raj Officer (Member). Clause-12 of the aforesaid Government Order provides that the funds released by the State Government shall be directly transferred to the Zila Nidhi account. The Government Orders earlier issued dated 27th May, 2008 and dated 23rd June, 2008 have been superseded. 10. Since under the Government Order dated 18th July, 2008, absolutely no role has been assigned to the Pradhans or to the Gram Panchayats in respect of construction of C.C. Roads and K.C. Drains, petitioners, who are elected Pradhans of the Gram Panchayats, feel aggrieved by such exclusion and have therefore, filed these writ petitions challenging the Government Order dated 18th July, 2008. 11. On behalf of the petitioner, it is contended that the Government Order dated 18th July, 2008 is in teeth of Article 243-G read with 11th Schedule to the Constitution of India. It also violates the provisions of Sections 15 and 17 of the U.P. Panchayat Raj Act, 1947. Petitioners state that the Gram Panchayats are the institutions of self-governance at the village level. Such institutions have been conferred the right of determination/local planning to be undertaken by the local people of the locality of the personnel but for the benefit of the community, such determination shall, however, always be subjected to the confines of the Constitution. Petitioners state that the Gram Panchayats are the institutions of self-governance at the village level. Such institutions have been conferred the right of determination/local planning to be undertaken by the local people of the locality of the personnel but for the benefit of the community, such determination shall, however, always be subjected to the confines of the Constitution. It is, therefore, contended that there has to be participation of the Gram Panchayats at all levels of development work to be done at the village level. Complete exclusion of the Gram Panchayats under the Government Order dated 18th July, 2008 in construction of C.C. Roads and K.C. Drains, negates the mandate of Article 243-G of Schedule-11 of the Constitution of India as also provisions of Sections-15 and 17 of the U.P. Panchayat Raj Act, 1947. It is therefore, contended that the earlier Government Orders dated 27th May, 2008 and dated 23rd June, 2008, which provided for the participation of Gram Panchayats in the execution of the work relating to C.C. Roads and K.C. Drains did not require any interference from the State Government and should be directed to be enforced after the Government Order dated 18th July, 2008 is quashed by this Court. 12. Lastly it is contended that absolutely no reasons have been recorded/furnished, as to why earlier Government Orders dated 27th May, 2008 and dated 23rd June, 2008 which permitted the participation of the Gram Panchayats, had to be done away with and therefore, the new scheme framed by the State Government under Government Order dated 18th July, 2008 is totally arbitrary. 13. The contentions so raised on behalf of the petitioners are opposed by Sri M.C. Chaturvedi, learned Chief Standing Counsel for the State respondents and it has been contended that from the language of Article 243-G read with 11th Schedule of the Constitution of India as well as from the language of Sections 15 and 17 of the U.P. Panchayat Raj Act, 1947, it is apparently clear that schemes pertaining to the various development projects within the Gram Panchayats can be handed over to the Gram Panchayats subject to the orders to be passed by the State Government. It is stated that the State Government in its wisdom has taken a decision to execute the scheme of construction of C.C. Roads and K.C. Drains through Government agencies namely, Public Works Department and Uttar Pradesh Setu Nigam. It is stated that the State Government in its wisdom has taken a decision to execute the scheme of construction of C.C. Roads and K.C. Drains through Government agencies namely, Public Works Department and Uttar Pradesh Setu Nigam. He clarifies that such C.C. Roads and K.C. Drains are to be laid down over existing Khadanja roads and Kachcha drains already in existence with the help of the Government Departments. Little or no discretion is left with any person in respect of such constructions. The constructions are to be effected on the parameter provided under the Government Order itself and regulated accordingly. It is, therefore, submitted that in the facts of the present case it is neither legally necessary to involve the Gram Panchayats in the execution of the scheme nor it is factually necessary in the facts of the present case to do so. 14. In rejoinder, learned counsel for the petitioners has referred to the Government Order dated 12th April, 1999 and Section 102 read with Chapter IX of the U.P. Panchayat Raj Act, for the purposes of establishing that the grants received from the State Government for constructions of roads and Nalis within the Gram Panchayats are necessarily to be transferred to Gram Sabha Nidhi account and it is only through such account that the expenditure qua construction of works is to be effected. He therefore, submits that in no case, the Gram Panchayats can be excluded from being part and parcel of the construction of Khadanja roads and nalis within its territorial limits. 15. We have considered the submissions made by the parties and have gone through the records of the writ petitions. 16. 73rd amendment to the Constitution of India brought into force on 24th April, 1993 resulted in introduction of Part-IX to the Constitution of India containing Articles 243 to 243-O. The aforesaid amendment provides for Panchayats at primary intermediate and district level, in accordance with the aforesaid Part IX of the Constitution of India. 17. Article 243-A provides that a Gram Sabha may exercise such powers and perform such functions at the village level, as the Legislature of a State may, by law, provide. Article 243-B to 243-O provides for constitution of Panchayats, composition of Panchayats, reservation of seats, duration of Panchayats, procedure for election of the Gram Sabha, maintenance of accounts etc. have been provided for. 18. Article 243-B to 243-O provides for constitution of Panchayats, composition of Panchayats, reservation of seats, duration of Panchayats, procedure for election of the Gram Sabha, maintenance of accounts etc. have been provided for. 18. Article 243-G provides for powers, authority and responsibilities of Panchayats. For ready reference, Article 243-G reads as follows : “243-G. Powers, authority and responsibilities of Panchayats.—Subject to the provisions of the Constitution, the Legislature of a State may, by law, endow the Panchayats 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 Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to— (a) the preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.” Eleventh Schedule to the Constitution of India referred to in Article 243. Amongst other, Entry-13 is relevant for purpose, which reads as follows: “ELEVENTH SCHEDULE (Article 243-G) 1................................ 2................................ ................................ 13. Roads, culverts, bridges, ferries, waterways and other means of communication.” 19. A bare reading of the aforesaid Article 243-G with Entry-13 of Eleventh Schedule would mean that the State Legislature may, by law, endow the Panchayats with such powers and authority, as may be necessary, to enable them to implement the schemes for economic development and social justice including roads, culverts, bridges, ferries, waterways and other means of communication subject to the condition, as may be specified in the law so enforced. 20. Section 15 read with Clause (xiii) of the U.P. Panchayat Raj Act, 1947 similarly reads as follows : “15. Functions of Gram Panchayat.—-Subject to such conditions as may be specified by the State Government, from time to time, a Gram Panchayat shall preform the following functions, namely,— (i) ................................ ................................ (xiii) Roads, Culverts, bridges, ferries, water-ways and other means of communication : (a) Construction and maintenance of village roads, bridges, ferries and culverts. (b) Maintenance of water-ways. (c) Removal of encroachment on public places.” 21. Section 17 of the U.P. Panchayat Raj Act reads as follows : “17. ................................ (xiii) Roads, Culverts, bridges, ferries, water-ways and other means of communication : (a) Construction and maintenance of village roads, bridges, ferries and culverts. (b) Maintenance of water-ways. (c) Removal of encroachment on public places.” 21. Section 17 of the U.P. Panchayat Raj Act reads as follows : “17. Power of Gram Panchayats as to public streets, waterways and other matters.— A (Gram Panchayat) shall have control of the public streets, water-ways, other than canals as defined in sub-section (1) of Section 3 of the Northern India Canal and Drainage Act, 1873, situate within its jurisdiction not being a private street or water-ways and not being under the control of the State Government or the [Zila Panchayat] or any other authority specified by the State Government and may do all things necessary for the maintenance and repair thereof, and may— (a) construct new bridges and culverts; (b) divert discontinue or close any public street, culvert or bridge; (c) widen, open, enlarge or otherwise improve any public street, culvert or bridge with minimum damage to the neighbouring fields; (d) deepen or otherwise improve water-ways ; (e) With the sanction of the prescribed authority and where a canal exists under the Northern India Canal and Drainage Act, 1873 ; with the sanction also of such officer of the Irrigation Department as the State Government may prescribe, undertake small irrigation projects in addition to those specified by order under clause (u), Section 15 ; (f) cut any hedge or branch of any tree projecting on a public street ; (g) notify the setting apart of any public water-course for drinking or culinary purposes, and prohibit bathing, washing of clothes and animals or doing other acts likely to pollute the course so set apart : Provided that nothing shall be done under clause (g) which may affect a canal governed by the Northern India Canal and Drainage Act, 1873, without the prior permission of the authority prescribed by the State Government in this behalf.” 22. The aforesaid amendments have been incorporated in the U.P. Panchayat Raj Act for giving effect to the Constitutional provisions introduced by 73rd Constitution amendments. 23. Having examined the Constitutional and Statutory provisions applicable on the subject referred to by the learned counsel for the parties, we may now proceed to examine the legality of the contentions so raised. 24. The aforesaid amendments have been incorporated in the U.P. Panchayat Raj Act for giving effect to the Constitutional provisions introduced by 73rd Constitution amendments. 23. Having examined the Constitutional and Statutory provisions applicable on the subject referred to by the learned counsel for the parties, we may now proceed to examine the legality of the contentions so raised. 24. According to the petitioners provisions of Article 243-G read with Eleventh Schedule and read with Sections 15 and 17 of the U.P. Panchayat Raj Act make it mandatory for the State-authorities to ensure that all schemes pertaining to the maintenance and repair, widening of roads etc. are executed through Gram Panchayat only. 25. It has been stated by the learned counsel for the petitioners that the State Government, while issuing the Government Order dated 18th July, 2008, has excluded the Gram Panchayats from execution of the aforesaid works under the scheme and to that extent the Government Order dated 18th July, 2008 is hit by the aforesaid Constitutional and Statutory Provisions. The contention so raised on behalf of the petitioners does not appeal to us. 26. The Hon’ble Supreme Court of India in the case of U.P. Gram Panchayat Adhikari Sangh and others v. Daya Ram Saroj and others, (2007) 2 SCC 138 , in paragraph 37 has held as follows : “37. .......We have already said that the 73rd Amendment was brought into force on 24-4-1993 to give effect to one of the directive principles of State policy, namely, Article 40 of the Constitution. Therefore, it cannot be said that the 73rd Amendment of the Constitution is the basic feature of the Constitution. Article 40 cannot be said to qualify as the basic feature of the Constitution. The 73rd Amendment came to the Constitution by way of amendment under Article 368 and therefore, it cannot be said to be a basic feature of the Constitution. It is an enabling provision and the State is empowered either to eliminate, modify or cancel by exercising power under the enabling provision. Article 243-G is an enabling provision. The 73rd Amendment came to the Constitution by way of amendment under Article 368 and therefore, it cannot be said to be a basic feature of the Constitution. It is an enabling provision and the State is empowered either to eliminate, modify or cancel by exercising power under the enabling provision. Article 243-G is an enabling provision. Article 243-G enables the Panchayats to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, subject to such conditions as may be specified therein, with respect to the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. The enabling provisions are further subject to the conditions as may be specified. Therefore, it is for the State Legislature to consider legal conditions and make the law accordingly. The devolution of exercise (sic) would also be open to the State to eliminate or modify. [See Constitution Bench judgment in M. Nagaraj v. Union of India. Also see Akhil Bharat Goseva Sangh (3) v. State of A.P. and Kuldip Nayar v. Union of India] where a Constitution Bench of this Court considered the basic structure theory in para 107 of the judgment and held as under : (Kuldeep Nayar case, SCC p. 67)” 27. Therefore, Article 243-G only enables the Panchayats to function as institutions of self-government subject to the provisions for the devolution of powers and responsibilities, as the State Legislature may consider appropriate. 28. In paragraph-4 of the aforesaid judgment, it has been stated as follows : “4. Article 243-G, thus, endows the Panchayats with such power and authority as may be necessary to enable them to function as institutions of self-government. Such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, subject to conditions as may be specified with respect to the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule of the Constitution.” 29. From the aforesaid, it is apparently clear that it is only such schemes for the economic development and social justice as may be entrusted to them as the law may provide including those in relation to the matters listed in the Eleventh Schedule of the Constitution. From the aforesaid, it is apparently clear that it is only such schemes for the economic development and social justice as may be entrusted to them as the law may provide including those in relation to the matters listed in the Eleventh Schedule of the Constitution. Thus the Hon’ble Supreme Court of India has clarified that Article 243-G as well as Eleventh Schedule thereto are only enabling provisions with respect to implementation of schemes for economic development, which may be entrusted to the Gram Panchayats by the State Legislature, qua the State of Uttar Pradesh, the State Legislature has framed U.P. Panchayat Raj Act, 1947 and language of Section 15 as quoted herein above is in itself sufficient to demonstrate the duties and responsibilities, which have been entrusted to the Gram Panchayats, have been made subject to such conditions, as may be imposed by the State Government from time to time. 30. In view of aforesaid language of Section 15 of the U.P. Panchayat Raj Act read with the interpretation placed upon Article 243-G by the Hon’ble Supreme Court of India in the case of U.P. Gram Panchayat Adhikari Sangh (supra), it logically follows that it is open to the State Government to entrust the Gram Panchayats for performance of functions and duties qua Roads, Culverts, bridges, ferries, water-ways and other means of communication, subject to such conditions, as the State Government may deem fit. Such power of the State Government to impose conditions or to regulate the peformance of the functions and duties relating to construction of roads,culverts, bridges etc. is left untouched. Therefore, in our opinion it is always open to the State Government to enforce a scheme, the implementation whereof may not be ensured through the Gram Panchayats, inasmuch as the power to impose condition for implementing the scheme necessary includes the power to completely exclude the Gram Panchayats from execution of the scheme by the State Government as the situation may demand. 31. Reference may also be had at this stage to judgment of the Hon’ble Supreme Court of India in the case of Gujarat Pradesh Panchayat Parishad and others v. State of Gujarat and others, (2007) 7 SCC 718 , in paragraph 24, has observed as follows : “24. 31. Reference may also be had at this stage to judgment of the Hon’ble Supreme Court of India in the case of Gujarat Pradesh Panchayat Parishad and others v. State of Gujarat and others, (2007) 7 SCC 718 , in paragraph 24, has observed as follows : “24. .........In our opinion, however, the High Court was right in observing that “a District Panchayat cannot arrogate to itself the status of a body as independent or autonomous as a Province in a Federation.” 32. We may also examine the scope of Section 17 of the U.P. Panchayat Raj Act. From a bare reading of Section 17, it is apparently clear that responsibility of maintenance, repair, widening of roads, bridges, culverts etc. has been brought within the domain of the Gram Panchayats, however, Section 17 has to be read along with Section 15 of the Act. Therefore, in our opinion the maintenance, repairing and widening of the roads etc. which is to be affected by the Gram Panchayats from the funds which are made available under the Gram Nidhi on regular basis have been entrusted to the Gram Panchayats and to that extent the State Government cannot interfere. However, when a new scheme for construction of Cement Concrete Roads and K.C. Drains is being affected by the State Government, the State Government may get the same executed through Government Agencies under the control of the State Government and constitute a Committee for the purpose. We see no infringement either of Article 243-G of the Constitution read with Eleventh Schedule or of Sections 15 and 17 of the U.P. Panchayat Raj Act, 1947. The new scheme, as a whole, which has been enforced within the entire State of Uttar Pradesh cannot be treated to be one referable to Section 17 (c) qua maintenance, repairing and widening of the roads etc. The new scheme is for a different purpose not co-related with the powers vested in the Gram Panchayats under Section 17 (c). 33. Even otherwise, from the records of the writ petitions we find that absolutely no new roads are to be laid so as to require any information or opinion of the villagers at the local level through Gram Panchayats. It has been decided by the State Government, is that on the existence of Khadanja Roads and Kachha Nala/Nalis, Cement Concrete Roads and K.C. Drains shall be constructed. It has been decided by the State Government, is that on the existence of Khadanja Roads and Kachha Nala/Nalis, Cement Concrete Roads and K.C. Drains shall be constructed. Therefore, what is required to be done under the scheme is only the execution of work within the norms framed by the State Government through Government agencies. The places where the Cement Concrete Roads are to be laid, the manner in which the roads are to be constructed has all been provided for in the scheme itself and little or nothing remains to be examined by the Gram Panchayats. 34. Although, it was contended on behalf of the petitioners that power to impose condition would only mean that scheme as a whole would be implemented by the Gram Panchayats subject to the restrictions as the State may impose. The contention has only been stated to be rejected, inasmuch as powers to impose condition within its ambit includes the power to completely exclude the Gram Panchayat from execution of the scheme by the State Government, as it may in its wisdom decide. 35. In these set of circumstances, we are of the considered opinion that the Government order dated 18th July, 2008 cannot be said to infringe any of the Constitutional or Statutory provisions as referred to by the learned counsel for the petitioners, nor on facts, we see any good reason for interference of the Gram Panchayats in the execution of the scheme. We therefore, see no reasonable basis for interfering with the Government Order dated 18th July, 2008 impugned in the writ petitions. All these writ petitions are accordingly dismissed. ————