IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI (Special Original Jurisdiction) WEDNESDAY. THE FIFTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR WRIT PETITION NO: 26235 OF 2024 RAO Between ; 1. Narthu Varaprasad Rao, S/o late Sarpanch of Edupuram Gramapanchayat Resident Ichapuram Mandal Srikakulam District 2. P. Rajasekhar Reddy, S/o late P. Krishna Murthy, Aged about 44 years Sarpanch of Teukunchi Gramapanchayat Resident of Teukunchi Village Ichapuram Mandal Srikakulam District 3. Rokalla Parvathi. W/o late Medayya, Tulasigam Gramapanchayat Resident Mandal Srikakulam District Sriramulu, Aged about 45 years of Edupuram Village Aged about 49 years Sarpanch of of Tulasigam Village Ichapuram 4. Ch. Vijaya Lakshmi, W/o Krishna Reddy, of Haripuram Gramapanchayat Resident Mandal Srikakulam District 5. Dukka Dhana Lakshmi. W/o Anand Kotari Gramapanchayat Resident Srikakulam District 6. Sadi Nukamma. W/o Mohan Aged about 72 years Sarpanch of Haripuram Village Ichapuram Aged about 39 years Sarpanch ol of Kotari Village Ichapuram Mandal Rao. Aged about 38 years Sarpanch of Muchindra Gramapanchayat Resident of Muchindra Village Ichapuram Mandal Srikakulam District 7. Karingi Trinath Reddy, S/o late Tulasayya, Aged about 54 years Sarpanch 0 Barahmpuram Gramapanchayat Resident of T. Barahmpuram Village Ichapuram Mandal Srikakulam District 8. Valapala Ranjitha. W/o Ramana. Keerthipuram Gramapanchayat Ichapuram Mandal Srikakulam District 9. Saradhi Neelapu. S/o late Bemayya. Kedharipuram Gramapanchayat r Ichapuram Mandal Srikakulam District 10. Budda Mohanangi, W/o Lachayya, Burjapadu Gramapanchayat Resident Mandal Srikakulam District 11. K. Lalitha Nayak, W/o Kunderi Hari of Paithari Aged about 35 years Sarpanch of Resident of Keerthipuram Village Aged about 42years Sarpanch of Resident of Kedharipuram Village Aged about 65 years Sarpanch of of Burjapadu Village Ichapuram Nayak, Aged about 50 years Sarpanch Gramapanchayat Resident of Paithari Village Ichapuram Mandal Srikakulam District 12. Pitta Rukmini, W/o Pitta Balayya, Aged about 32 years Sarpanch of Resident of Dharmapuram Dharmapuram Gramapanchayat r Ichapuram Mandal Srikakulam District 13. Sulochani Reddy Asi, W/o Asi TulasI Village Rao, Aged about 34 years Sarpanch of Loddaputti Gramapanchayat Resident of Loddaputti Village Ichapuram Mandal Srikakulam District ...PETITIONER(S) AND SoTTn'" a| AND Rural Development Department Secretariat Buildings, Velagapudi, Amaravati, Andhra Pradesh 2. The Mandal Parishad Development Officer, District 3. The Panchayat Raj Divisional Executive Srikakulam District Ichapuram Mandal Srikakulam Engineer, Ichapuram Mandal 4. The Assistant Programme Officer. National Rural Employment Scheme,J:hapuram Mandal Srikakulam District Guarantee ...RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith pleased to issue the High Court may be order more to declare the action of the Respondents in not following the provisions of Mahatma Gandhi National Rural Employment Guarantee Act, 2005 a Writ or any other appropriate Writ. Direction, particularly in the nature of Writ of Mandamus more particularly Section 16 to 18 of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 and allotting the works under the Mahatma Gandhi National Rural Employment Guarantee scheme to various vendors without taking into consideration of Grama Sabha resolutions of the Petitioners Gramapanchayats as illegal, natural justice and violative of Article and the Mahatma Gandhi National Rural J consequently direct the Respondents authorization and arbitrary, unjust, against to principles of 14 and 21 of the Constitution of India Employment Guarantee Act, 2005 and not to allot/ assign any work to any vendor without confirmation from the Grama Sabha resolutions of the Petitioner Grama Panchayats of their respective Grama Panchayat. lA NO: 1 OF 2074 Petition under Section 151 CPC in the affidavit filed i praying that in the circumstances stated may be any vendor in support of the writ petition, the High Court pleased to direct Respondents not to allot / assign any work to — j from the Grama Sabha resolutions of without authorization and confirmation the Petitioner Grama Panchayats of their respective Grama Panchayats under the Mahatma Gandhi National Rural Employment Guarantee scheme. I.A.No.2 of 7n9A- Petition under Section 151 CPC in the affidavit filed i praying that in the circumstances stated in support of the writ petition, the High Court pleased to direct the Respondents may be not to release any funds to the under the employment Guarantee scheme. Mahatma Gandhi National Rural Counsel for the Petitloner(s);SRI Counsel for the Respondent No. R YELLA REDDY 1: GP FOR PANCHAYAT RAJ RURAL development SRI Y KOTESWARA RAO (SC FOR ZPP, MPP) Counsel for the Respondents No.2,3; Counsel for the Respondent No.4: SRI M S R CHANDRA MURTHY (SC FOR NREGS The Court made the following; ORDER 1 THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO WRIT PETITION No.26235 of 2024 ORDER: The present Writ Petition is filed under Article 226 of Constitution of India for the following relief/s: ....pleased to issue a Writ, or any other appropriate Writ, Direction, order more particularly in the nature of Writ of Mandamus to declare the action of the Respondents in not following the provisions of Mahatma Gandhi National Rural Employment Guarantee Act, 2005 more particularly Section 16 to 18 of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 and allotting the works under the Mahatma Gandhi National Rural Employment Guarantee scheme to various vendors without taking into consideration of Grama Sabha resolutions of the Petitioners Gramapanchayats as illegal, arbitrary, unjust, against to principles of natural justice and violative of Article 14 and 21 of the Constitution of India and the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 and consequently direct the Respondents not to allot/ assign any work to any vendor without authorization and confirmation from the Grama Sabha resolutions of the Petitioner Grama Panchayats of their respective Grama Panchayats and to pass such other order or orders 2. Learned counsel for Government of India the petitioner submit that the enacted Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (MGNREGA) with an object to provide for (for short the Act) the enhancement of livelihood security of the households in the rural areas of the country by wage employment in whose adult members manual work and for matters providing at least 100 days of guaranteed every financial year to every household volunteer to do unskilled with or incidental thereto, section (5) of Section 16 of the Act, the connected And further submits that under sub programme officer shall allot at least 50% of the work in terms of its cost under a scheme to be implemented throughout the present case the respondents have not Gram Panchayats despite resolution. Without following the due vendors is nothing but flagrant violation Gram Panchayats. In the allotted the work to the the Gram Panchayats passed process allotting the work to of the fundamental rights and the s Grampanchayats are not have any sanctity to the of the Act face serious hardship and as guaranteed under the Constitution of India and the Act Scheme. If the resolution of the petitioner’ not complied with then there would provisions of the Act and its scheme and clearly breach and the Grampanchayats would 3 irreparable loss. Hence, prayed to direct the respondents to allot the work to the petitioner’s Grampanchayats as per the resolution of the Grampanchayat dated 23.08.2024. 3. Initially the programme officer/Mandal Parishad Development Officer, Ichapuram Mandal has intimated, this Court that they selected vendors for supply of the sand, cement, metal. graveland stone dust under the scheme for 21 Panchayats in Ichapuram Mandal for 154 works. Out of 154 works, 153 works are works are laying cement roads and another one is laying of Bitumen road and subsequently furnished proceedings. Be that as it may, learned counsel for the petitioner has 4. filed a photocopy of measurement book which also known as MB which is a document used in construction of engineering projects to record measurements, quantities, and other relevant information related to the work and also filed photographs, which indicates the cement road was laid in the Grampanchayats to support the case of the petitioners that the respondents authorities have entrusted the works to the vendor. 5. The counsel for the petitioner has emphasised his arguments mainly on the provision Section 16 of the act, for the facility the section 16 is extracted hereunder. 4 Responsibilities of the Gram Panchayats. (1) The Gram Panchayat shall be responsible for identification of the projects in the Gram Panchayat area to be taken up under a Scheme as per the recommendations of the Gram Sabha and the Ward Sabhas and for executing and supervising such works. (2) A Gram Panchayat may take up any project under a Scheme within the area of the Gram Panchayat as may be sanctioned by the Programme Officer. (3) Every Gram Panchayat shall, after considering the recommendations of the Gram Sabha and the Ward Sabhas, prepare a development plan and maintain a shelf of possible works to be .taken up under the Scheme as and when demand for work arises. (4) The Gram Panchayat shall forward its proposals for the development projects including the order of priority between different works to the Programme Officer for scrutiny and preliminary approval prior to the commencement of the year in which it is proposed to be executed. (5) The Programme Officer shall allot at least fifty per cent, of the works in terms of its cost under a Scheme to be implemented through the Gram Panchayats. (6) The Programme Officer shall supply each Gram Panchayat with— (a) the muster rolls for the works sanctioned to be executed by it; and (b) a list of employment opportunities available elsewhere to the residents of the Gram Panchayat. (7) The Gram Panchayat shall allocate employment opportunities among the applicants and ask them to report for work. 5 (8) The works taken up by a Gram Panchayat under a Scheme shall meet the required technical standards and measurements. As seen from sub-section (5) of Section 16 of the act it 6. manifests that allot at least fifty per cent of the works in terms of its cost under a Scheme to be implemented through the Gram Panchayats. And under the Annual Master Circular memo dated 2024- 7. 2025 which is a comprehensive document covering all aspects of implementation of (MGNREGA) The clause 7.1.1 of chapter 7 divulges that at least 50% in terms of its cost under a Scheme to be implemented through the Gram Panchayats to the gram panchayats. Now the issue for consideration is that whether the said 8. sub-section (5) of section 16 is mandatory or directory. The known rule of interpretation is to examine whether the use of expression "shall" is mandatory or directory, the Court is not only to consider the actual words used but also the scheme of the statute, the intended benefit to public or what is enjoined by the provision and material danger to the public by the contravention of the same has to be seen. 6 9. In larger bench judgment of seven judges of the apex court in the case of Hah Vishnu Kamath v. Ahmad Ishaque and others. AIR 1955 SC 233, the Supreme Court held that an enactment in form mandatory might in substance be directory, of the word "shall" does not conclude the held as under:- and that the use matter., when it was (26). It is well established that an enactment in form mandatory might in substance be directory, and that the use of the word "shall" does not conclude the matter. The question was examined at length in Julius v.Bishop of Oxford, (1880) LR 5 AC 214 (S). and various rules were laid down for determining when construed as mandatory and when as directory. They are well-known, and there is a statute might be no need to repeat them. But they are all of them only aids for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context. What it has to be seen whether in sub-section (5) of section 16 the shall" could be construed as meaning "may". word 10. The Supreme Court judgment in Dhampur Sugar Mills Ltd. V. State of U.P. reported in (2007) 8 SCC 338 held "The use of word as under may or "shall" is not conclusive. Whether the provision is merely directory or mandatory, was examined by Hon’ble the Supreme Court wherein \t 7 has been held that whether the provision is directory or mandatory is required to be decided by ascertaining the intention of the Legislature and not by looking at the language in which the provision is clothed. The Court must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue." In Collector of Monghyr v. Keshav Prasad Goenka and others\ the Supreme Court held that the question as to whether the provision is mandatory or directory has to be decided not merely on the basis of any specific provision, which for instance sets out the consequences of the omission to observe the requirement but for the purpose for which the requirement has been enacted particularly in the context of the other provisions of 11 the Act and the general scheme thereof. In another judgment in Municipal Corporation of Greater Bombay v. The B.R.S.T. Workers Union (1973) 3 SCC 546:- the Supreme Court held that the Court is required to ascertain the real intention of the legislature which will include the examination, nature and design of the statute, the consequences which would 12. AIR 1962 SC 1694 8 follow from construing it one way or the other and whether the object of the legislation would be defeated or furthered by a particular construction. The relevant excerpt from the decision reads, thus:- "After elaborate discussion by the Apex Court in State of Uttar Pradesh V. Babu Ram Upadhya [AIR 1961 SC 751] regarding, whether the use of the word 'shall' in a statute makes the provision mandatory or directory various principles that have to be borne in mind in deciding. It has been emphasised that for ascertaining the real intention of the Legislature the court, among other things, may consider the nature and the design of the statute, the consequences which would follow from construing it one way or other and whether the object of the legislation will be defeated or furthered by a particular construction. In a judgment reported as Amardeep Singh Vs. Harveen Kauf^, the Supreme Court held that the Court is required to consider the nature and design of the statute; the consequences which would follow from construing it the one way or the other; 13. the impact of other provisions whereby necessity of complying with the provisions in question is avoided; the circumstances. namely, that the statute provides for contingency of the non- compliance with the provisions; the fact that the non-compliance ^(2017) 8 see 746 9 with the provision is or is not visited with some penalty: the serious or the trivial consequences, that flow therefrom; and the factors which are required to be determined whether the provision is mandatory or directory. "The scheme of MGNREGA aims to strengthen the households in rural areas. The provision indicating the use of the word 'shall' is mandatory." Should it be carried out via the contractors or vendors, the act's main goal will be undermined. That a part that where the sub-section (5) of Section 16 of 14. the act clearly mandates that at least fifty per cent of the works in terms of its cost under a Scheme to be implemented through the Gram Panchayats when it deviated it is contrary to the provisions of law. When the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure. Hence this court is of the opinion that word “shall” in sub-section (5) of section of the act is mandatory. Even the word 'shall' is mandatory, as evidenced by the 15. documents filed by the petitioner, including the measurement 10 book and photographs. These documents show that the vendors to whom the subject work was entrusted commenced and completed the work, though the bills remain unpaid. Under these circumstances, this court should be cautious in granting relief, as the vendors who were entrusted with the work have completed it and should not be penalized. 16. A similar issue has come for consideration before the erstwhile High Court of Andhra Pradesh in W.P. No.6849 of 2012 then the Hon’ble the Acting Chief Justice of the common High Court has disposed of the Writ Petition on the ground that the cause in the Writ Petition does not survive, necessitating any further adjudication by the Court as the writ petition rendered as infructuous on the ground that the vendor has executed work. 17. In this case, as the work was already executed by the vendors, this Court cannot give any directions to the respondents at this stage. The relief prayed in the Writ Petition is to direct the respondents not to allot/assign any work to any vendor. Accordingly, the Writ Petition has become infructuous. 18. Accordingly, Writ Petition is dismissed as infructuous. No order as to costs. As a sequel, interlocutory applications, if any pending in this Writ Petition shall stand closed. Sd/- V SAVITRI GOWRI ASSISTANT REGISTRAR I SECTION OFFICER //TRUE COPY// To, One CC to SRI R. YELLA REDDY, Advocate [OPUC] Two CCS to GP FOR PANCHAYAT RAJ RURAL DEV, High Court of Andhra Pradesh [OUT] One CC to SRI Y. KOTESWARA RAO, Advocate (SC FOR ZPP, MPP)[OPUC] One CC to SRI M.S.R. CHANDRA MURTHY, Advocate (SC FOR NREGS) [OPUC] Three C.D. Copies 1. 2. 3. 4. 5. nm % X HIGH COURT DATED:05/02/2025 ORDER WP.No.26235 of 2024 ANOH^ 2 7 MAR 2025 § ^ . Current Section ^ DISMISING THE WP AS INFRUCTUOUS WITHOUT COSTS