#SupremeCourt: ENABLING #PROVISIONS ARE #SUBJECT TO THE #CONDITIONS AS MAY BE #SPECIFIED THEREIN The operative part of the judgement read as under : The High Court allowed the writ petition filed by Respondent No. 1 on the ground that matters listed in the Eleventh Schedule to the Constitution included the PDS as Item No. 28 and, therefore, the entire PDS could not be carried by G.O.s issued under the EC Act. The High Court found that the delegation of authority to the District Magistrate was not in consonance with Article 243-G of the Constitution and the laws made thereunder were absolute. In view of the constitutional amendment, it was not open to the State Government to assign/confirm such powers upon the District Magistrate. The High Court has taken a view that the provision of Article 243-G is merely an enabling provision, and it is not a source of legislation. This view seems to be in consonance with the law laid down by this Court in U.P. Gram Panchayat Adhikari Sangh & Ors. v. Daya Ram Saroj & Ors. (supra) wherein an observation has been made that Article 243-G is an enabling provision as it enables the Panchayats to function as institutions of self-government. Further, this Court noted that 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 relations 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 conditions and to make laws accordingly. It is also open to the State to eliminate or modify the same. Article 2433-G read with Eleventh Schedule is not a source of legislative power, and it is only an enabling provision that empowers a State to endow functions and devolve powers and responsibilities to local bodies by enacting relevant laws. The local bodies can only implement the schemes entrusted to them by the State. M/s Indra Jaisingh, learned ASG has submitted that the High Court has recorded the finding that the impugned Government Orders (G.Os.) dated 3.7.1990 and 13.1.2000 are ultra vires to clause 28 of Schedule 1 of the Act, 1961, since the said orders conferred the powers to deal with the essential commodities upon the District Magistrate and Sub-Divisional Magistrate though such powers could be conferred only upon the Kshetriya Panchayats, without considering the efficacy of provisions of Article 254 of the Constitution which provide that if the Central Legislation is occupying a field, any law made by the State which is inconsistent or in conflict with the Central law would be void. The issues raised before this Court have neither been agitated before the High Court nor the same have been considered. There are no proper pleadings in respect of the said issues. No factual foundation had been laid down by any of the parties to deal with such issues nor the necessary/proper parties are before us. It is neither desirable nor permissible for us to examine the issues raised by the learned ASG at this stage. The writ petition had been filed by the respondent no. 1 without having any locus standi nor it could claim to be a person aggrieved of the order of the Government dated 13.1.2000, withdrawing the order dated 10.8.1999 conferring the power to allot and cancel the fair price shops in rural areas on the Gram Panchayats. The writ petition was filed in 2003 after a delay of 3 years. The writ petition was liable to be dismissed on the ground of delay and laches. Respondent no. 1 could not maintain in the writ petition as it could not be aggrieved of the Government Order dated 13.1.2000. Reference: #Lawteller-July-2013 (lawteller) #law #legal #advocate #attorney #solicitor #lawyer #vakil #court #barrister #justice #india #judgment #Judge
Posted on: Wed, 31 Jul 2013 09:38:36 +0000
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