Andhra HC (Pre-Telangana)
V.V. Raghava Reddy vs Govt. Of A.P. And Others on 27 October, 1998
Equivalent citations: 1998(6)ALD512, 1998(6)ALT531
Author: A.S. Bhate
Bench: A.S. Bhate
ORDER
1. The writ petition is essentially filed for challenging the trifurcation of Gram Panchayat, Komarolu, Prakasam District. The said Gram Panchayat consisted of seven hamlets of Komarolu village. The seven hamlets were; (i) Gopaluripalle; (ii) Bhavapuram; (in) Purushottampalle; (iv) Sarivireddypalle; (v) Tatireddypalle; (vi) Bontipalle and (vii) Hanumantharayudupalle. The petitioner was formerly Sarpanch of the said Gram Panchayat continuously from 1973 to 1995 and was later as Person-incharge of the said Gram Panchayat. Subsequently he was elected as member of the Zilla Parishad Territorial Constituency and hence demitted Office of Sarpanch/person-incharge of Komarolu Gram Panchayat. The second respondent (Collector) issued a notification vide proceedings in ROC No.4177/94, dated 13-10-1994 with a proposal of trifurcation of Komarolu of Gram Panchayat into (1) Komarolu (2) Bhavapuram and (3) Tatireddipalle Gram Panchayats and called upon the undivided Komarolu Gram Panchayat to convene a Special Meeting for consideration of the said proposal. The petitioner alleges that the undivided Komarolu Gram Panchayat passed an unanimous resolution on 22-10-1994 opposing any such trifurcation. It was stated further that the division was contrary to the provisions of the Andhra Pradesh Panchayat Raj Act, 1964 (hereafter referred to as 'the Act') and that the undivided Gram Panchayat was fiinctioning very well and had secured fifteen Awards, within a period of 22 years, as the best Gram Panchayat. The second respondent inspitc of this unanimous Resolution went allied with the proposal. Respondent No.2 instead of taking into consideration the unanimous resolution of the Gram Panchayat dated 22-10-1994, relied upon an earlier resolution of the Gram Panchayat which was passed before the objections were called by the Collector. Relying on the said earlier resolution of 28-9-1994, respondent No.2 passed an order on 19-11-1994 vide ROC No.4177/94 (Pts). By the said proceedings the Gram Panchayat was trifurcated as was proposed. It is alleged that the said proceedings ordering trifurcation are illegal and invalid apart from being arbitrary. The petitioner filed a revision petition against the said order. The said revision was dismissed by the Government by G.O.Rt. No.1086 dated 18-8-1997. The petitioner then challenged the order of the Government in the writ petition by filing WP No.24087 of 1997 in this Court. The said writ petition was allowed on 2-12-1997 by Hon'ble Justice Sri S.R. Nayak, a learned single Judge of this Court. While allowing the said writ petition the learned single Judge set aside the order of the Collector dated 19-11-1994 as well as the Government Order dated 18-8-1997 but remitted the matter to the Government with a direction to consider the objections of the Gram Panchayat and after applying its mind to take a final decision in the matter. The said order in the writ petition was challenged in WA No. 1422 of 1997 by one Mr. M.C. Subbaiah, who was an impleaded petitioner in WP No.24087 of 1997. The said writ appeal was disposed at the stage of admission by a Division Bench of this Court (of which 1 was a member) by modifying the order of the learned single Judge. The Division Bench modified the order in view of the fact that the learned single Judge had remitted the matter to the Government and not to the Collector. It was therefore directed that it was not necessary at that stage to quash the Collector's order. As the matter was remitted to the Government and quashing of the Government Order was upheld. The Government was directed to dispose of the revision petition within two months from the date of receipt of the order from the High Court. However disposal was not made within that time. That "has however no effect on" the merits of the case.
2. Before the Government disposed of the revision petition the State Election Commission issued a notification on 30th May, 1998 for holding elections to the casual as well as the left over vacancies in the Office of the members of the various Gram Panchayats. The vacancies included those in the trifurcated Gram Panchayat of Komarolu, Bhavapuram and Tatireddypalle as the Collector's order was still not set aside and was the subject matter of revision pending before the Government. The Election Commission issued election programme of the Gram Panchayat by order dated 30-5-1998, along with notified vacancies. The petitioner claims that he had filed WP No.13328 of 1998 on 4-5-1998 for challenging the action of the Election Commission in holding elections. However, as the Courts were closed due to Summer vacation, the writ petition did not come up for admission and hearing and when it came up after vacation, the learned single Judge disposed of the writ petition observing that since the election process had already commenced, he was not inclined to stop the election in exercise of powers under Article 226 of the Constitution of India. The learned single Judge however, directed the Government to dispose of the revision which was still pending before it and further directed that the result of election shall not be declared until disposal of the revision/ petition by the Government. This order of the learned single Judge was challenged in a writ appeal by the petitioner by filing WA No. 1046 of 1998. The said writ appeal was disposed of at the submission stage by a Division Bench of this Court, presided by the Hon'ble the Chief Justice, by order dated 25-6-1998. By the said order, the Court directed that the election should go on without prejudice to the rights and contentions of the parties and subject to decision in revision petition and the State Government was directed to dispose of the revision petition expeditioiisly within six weeks. The Court further directed that while dealing with the revisional application, the Government should take into consideration orders passed by this Court in earlier writ petition and writ appeal and also the order passed in WP No. 13328 of 1998 by the learned single Judge, which was a subject matter of appeal before the Court. Finally the Court observed that effect of holding elections for the trifurcated Gram Panchayat should not be taken into consideration at the time of disposal of the revision application. Meaning thereby that while deciding the revision the effect of elections having been held for a trifurcated original Gram Panchayat should be ignored by the Government.
3. Ultimately the Government dismissed the revision application filed by the petitioner by an order vide G.O. Rt. No.1504, Panchayati Raj and Rural Development (Pts.IV) Department dated 25-9-1998. The petitioner has now challenged the said order passed in revision as also the original order passed by the Collector on 19-11-1994 which was subject matter in revision.
4. The petitioner subsequently filed WPMP No.34934 of 1998 for amendment to the original writ petition. I do not think that the amendment is necessary. The question is only legal one. The amendment being uncalled for the WPMP No.34934 of 1998 is dismissed.
5. There are four implead petitions filed by various persons, who are supporting the trifurcation. The implead petitions WPMP Nos.34446 of 1998, 35035 of 1998, 35036 of 1998 and 35236 of 1998 are ordered
6. I have heard the learned Counsel for the petitioner, the learned Government Pleader for respondents 1 and 2 and the learned advocates appearing for the implead petitioners- I have also perused the record which has been produced by the learned Government Pleader in respect of all the steps before ordering trifurcation.
7. The learned Counsel for the petitioner Mr. Muvva Chandrasekhara Rao has contended that the impugned order passed by the Government in revision, as well as original order passed by the Collector are bad as they show non-application of mind, lack any reasons for ignoring the unanimous resolution passed by the undivided Komarolu Gram Panchayat and ignoring the objections raised by the undivided Gram Panchayat to the proposal. It is argued, that apart from the fact that both the authorities were required to consider the objections on their own, the direction given by the learned single Judge in WP No.24087 of 1997 has also been ignored to consider the objections of the Gram Panchayat. It is further argued that the Andhra Pradesh Gram Panchayats (Declaration of Villages) Rules, 1994 (hereafter referred to as 'Rules') issued under G.O.Ms. No.515 dated 17-8-1994 have not been properly applied. Rule 8 very clearly states that when a Gram Panchayat passes a unanimous resolution that a local area shall not be excluded from the village, the Commissioner is bound to respect the same unless the resolution is vitiated by any irregularity or impropriety or illegality. Further, the Commissioner can overcome the unanimous resolution of the Gram Panchayat only for special reasons to be recorded in writing. In the instant case it is not disputed that the Collector was delegated the powers of the Commissioner but the order passed by the Collector should have been in compliance to Rule 8. Reference is made to Rule 4 of the Rules for urging that any hamlet of revenue village lying within a distance of two Kilometres shall ordinarily be included in that revenue village. It is only for special reasons such as geographical features and other facilities or viability with such hamlet or hamlets when they can be declared as a separate village. It is argued that the hamlets which have now been declared as separate villages do not fulfill the said requirement. Next it is argued tliat act of trifurcation is arbitrary because the united Komarolu Gram Panchayat was functioning very efficiently and had secured several prizes for efficient functioning. Lastly it is urged that the trifurcation is done for extraneous reasons under political pressures.
8. The learned Government Pleader has supported the order passed by contending that the order in revision sets out adequate reasons, for the trifurcation. The implead petitioners have taken a some what common stand that all the requirements for dividing existing Gram Panchayat have been fulfilled. The writ petitioner is unnecessarily coming in way. He has no business to dispute the division of the Old Gram Panchayat. The petitioner has purposely not impleaded all the necessary parties including the impleaded petitioners. Lastly it is urged that the elections having been held for three Gram Panchayats upon trifurcation and holding of elections having been approved by the High Court, UK question of challenging the trifurcation now docs not arise. It is pointed out that the results of the elections have also been declared. Meaning thereby the writ petition according to the impleaded petitioners, has become infructuous in a way.
9. Rules 8 and 9 of the Rules are important Rules and are very relevant and may be extracted. They are as follows:
"5. Subject to the provisions contained in the Act and these rules, where a Gram Panchayat passes an unanimous resolution that a local area shall not be excluded from or included in a village, the Commissioner, if satisfied that such resolution is not vitiated by any irregularity, impropriety, or illegality shall not, except for special reasons to be recorded in writing, exclude from or include in that village any such area.
9. Where it becomes necessary to take action under sub-section (2) of Section 3 of the Act, to exclude from a village any local area or include in a village any local area or unite two or more villages or parts of village in giving effect to these rules, the Commissioner shall, before issuing a notification therefor, give the Gram Panchayat which will be affected by the issue or such notification an opportunity of showing cause against the proposal to indicate its decision within a period often days from the date of receipt of the show-cause notice and consider the objections, if any, of such Gram Panchayat:
Provided that where a Special Officer has been appointed to exercise the powers and perform the functions of the Gram Panchayats and its Sarpanch and Executive Authority, such Special Officer shall be given the aforesaid opportunity and the Special Officer shall make his representation within a period of ten days from the date of receipt of the show-cause notice after /taking into consideration the views expressed by the members of the Gram Sabha at a special meeting convened for the purpose;
Provided, further that if no reply to the show-cause notice from the Gram Panchayat or the Special Officer is received within the period aforesaid, the Commissioner shall pass such orders as deemed fit to give effect to the proposal."
The declaration of village for purposes of the Act has to be done in accordance with Section 3 of the Act. Section 3(2) of the Act empowers the Commissioner to form new villages by issuance of notification in accordance with such Rules as may be prescribed. Section 3 of the Act by itself gives a great deal of width to the Commissioner to divide or bifurcate local areas from any existing Gram Panchayat for constituting them into a separate Gram Panchayat. It was probably due to the undefined width of the said power that the State Government framed Rules in exercise of its power. The Rules have hedged the unbridled powers of the Commissioner to a reasonable extent. The Rules provide safeguards, for example the Rule 9 referred above, provides that whenever action under Section 3(2) of the Act to divide an existing village is to be taken or whenever the boundaries of any village are to be altered, the Commissioner shall (underlined to give emphasis) before issuing any notification in that respect give the existing Gram Panchayat an opportunity of showing cause against the proposal within certain period. The Rule requires the Commissioner to consider the objections, if any, of such Gram Panchayat. Thus the Commissioner is bound to call for the objections of the existing Gram Panchayat and is bound to consider the same before passing any orders for issuing an ultimate notification. Similarly Rule 8 mandates that when a Gram Panchayat passes a unanimous resolution that a local area shall not be excluded from the existing village, the Commissioner shall normally not exclude the said area, if the resolution is otherwise legal and proper. The Commissioner can overcome the resolution only by giving special reasons to be recorded in writing. Thus these two Rules read together have put considerable fetters on the power of the Commissioner in dividing the existing Gram Panchayat. The effect is that normally the Commissioner shall not overrule the unanimous resolution of the existing Gram Panchayat. Having regard to this legal position, it is necessary to consider the notification issued by the District Collector, exercising functions of the Commissioner, dated 19-11-1994 which has been affirmed by Government in revision in G.O.Rt. No.1504 dated 25-9-1998. The order of the Collector does not refer anywhere as to what was the objection raised by the Gram Panchayat, Komarolu under Rule 9. The said order only says that on 28-9-1994 the Gram Panchayat had passed a resolution and then goes on to say that there is no valid ground for rejection of the proposal. As rightly pointed out by the learned Counsel for the petitioner the resolution dated 28-4-1994 is totally irrelevant for the proceedings in question. The Commissioner had on 13-10-1994 issued notification proposing trifurcation of Komarolu Gram Panchayat and calling for objections. Any resolution prior to 13-10-1994 was in no way relevant for the purpose. The objections which were submitted by the Gram Panchayat subsequent to the show-cause notice in consequence of proceeding dated 13-10-1994, have no where been referred. A single line statement appears that there is no valid ground for rejection of the proposal. It is quite obvious that the Commissioner did not abide by the mandate of either Rule 8 or Rule 9 of the Rules. There is absolutely no indication anywhere as to whether the unanimous resolution of Gram Panchayat, Komarolu dated 22-10-1994 was irregular, illegal or improper. Further, there is absolutely nothing to show that the Collector was aware of the Rule position as incorporated in Rule 8 that special reasons have to be recorded in writing for overruling the unanimous resolution. In fact no reason, much less special reason, has been recorded for overcoming the unanimous resolution.
10. Similarly the impugned order passed by the Government in G.O.Rt. No.1504 dated 25-9-1998 is not very different. Most of the part of the said G.O. is consumed in recording the facts leading to the rehearing of the revision by the Government in consequence of writ petition and writ appeal. Surprisingly in the revision for the first time the Government has referred to population of the three proposed villages and also distances of Bhavapuram and Tatireddypalle from Komarolu have been referred to. This material was collected during pendency of revision. This was really a factual aspect and could not have been considered in the revision for the first time. The scope of revision is stated in Section 264 of the Act. In revision the power of Government is only restricted to satisfy itself about the 'regularity' or 'correctness' or 'legality', or the 'propriety' of the decision which is under challenge. The term 'legality of the proceeding' obviously refers to the procedure adopted in the proceeding by the subordinate authority i.e., Collector discharging functions of Commissioner. The word 'legality' confines to the legality of the order which obviously means over stepping law or misreading or misdirection regarding any legal position. The phrase 'propriety of any order' envisages the correctness of a finding on facts if perverse, but certainty docs not envisage gathering of new facts of referring to facts which are not appearing anywhere in the record. In the instant case the Government appears to have called for certain report from Assistant Executive Engineer regarding distances of Bhavapuram and Tatireddypalle from Komarolu. Even otherwise the mere fact that these two villages were at a distance of 3 K.Ms from Komarolu ipso facto does not justify bifurcation. No doubt under Rule 3 ordinarily every revenue village in an area with population of 1000 shall be declared as a village. However, this Rule 3 is controlled by Rule 8 whenever an existing Gram Panchayat is to be divided, bifurcated or trifurcated. Rule 6 states that if a local area comprised in a revenue village or villages is beyond distance of 2 K.Ms from the revenue village or villages and has a population, of 1000, it may be declared as a separate village. Even this Rule is controlled by Rule 8 and Rule 9. It was therefore, necessary for the primary authority as well as the Government exercising powers in a revision, to give special reasons for overcoming the unanimous resolution of the Gram Panchayat and to overcome objections filed in reply to the proposed trifurcation vide proceedings dated 13-10-1994 issued by the Collector. Both the challenged orders are totally silent on the point. The only speaking part of the order in the revision is in para-7 and is as follows:
"Government heard the case on 31 -7-1998. The parties concerned attended the hearing, Government after carefully hearing the parties and after considering the distance between the villages and population as per the Census 1991, found that the trifurcation of the Gram Panchayat, Komarolu into three Gram Panchayats viz., (i) Residuary Komarolu, (ii) Bhavapuram and (iii) Tatireddypalli vide G.O. third read above holds good."
11. In my view the G.O. disposing the revision suffers from vice of non-application of mind inasmuch as the Rule position has been ignored. The compliance to Rule 8 and Rule 9 has not been made. No reasons much less special reasons have been given to overcome the unanimous resolution passed by the undivided Komarolu Gram Panchayat. What is meant by special reasons is quite well settled by various decisions of the Apex Court and various High Courts. Special reasons have to be such as would justify overruling the view depicted in the unanimous resolution. Normally reasons which are already embodied in the foregoing Rules will not be Special Reasons. They are normal reasons. There is no reference to the objections raised by the Komarolu Gram Panchayat in answer to the proceeding dated 13-10-1994. In the circumstances, the orders of both the authorities are unsustainable, untenable and will have to be set aside. As far back as in 1977 in WP No.3651 of 1996 disposed of on 31-10-1977 (The Gram Panchayat, Mannegu Dem v. Government of Andhra Pradesh and others, 1978 (1) ALT (NRC) 14), the learned single Judge of this Court had held that if the Collector discharging the functions of Commissioner issued any notification under Section 3 of the Act without giving any consideration to the objections putforth by the Government, the order of Collector would be non est in eyes of law for all purposes. Again in Gram Panchayat, Kalanapalli v. Collector and others, , a Division Bench of this Court held that while exercising powers under Section 3 of the Act, the Commissioner cannot overrule resolution of the Gram Panchayat which expressed unanimous opposition regarding the Constitution of a new Gram Panchayat without giving special reasons in writing. It also held that not giving of reasons vitiates the whole proceedings. In that case the Commissioner proposed to constitute a new Gram Panchayat by excluding an area from the existing Gram Panchayat. The existing Gram Panchayat by unanimous resolution opposed a formation of new Gram Panchayat. In these circumstances it was held that since in effect the resolution opposed exclusion of certain areas from the existing Gram Panchayat, Rule 8 was attracted and non-giving of reasons for overruling the opposition vitiated the whole action. In Danevath Jayaram and others v. the District Collector (Panchayat), , a learned single Judge of this Court held that action of the District Collector in issuing notification constituting a Gram Panchayat ignoring Statutory Rules 3 and 9 was bad and deserved to be quashed. Further more in C. Bhaskara Reddy v. District Collector, Chittoor, , a Division Bench of this Court observed that for purpose of constituting one or more villages into Gram Panchayat, the Commissioner has to give special reasons. If no special reasons are mentioned as to why the existing village was divided and part of it was tagged to some olher, the said proceedings are bad and vitiated, Apart from this established legal position, the facts of the present case show the scant regard shown by respondents to the directions given by the learned single Judge in WP No.24087 of 1997. The learned single Judge had directed that the objections of the Gram Panchayat shall be considered by the Government and final decision shall be taken by giving reasons for the same. The petitioner was permitted to raise question of viability of the proposed trifurcation of the Gram Panchayat. These directions appear to have fallen on deaf ears. It may be pointed out that in WA No. 1422 of 1997 these directions were in no way modified. In the writ appeal the only modification was regarding quashing of the proceedings before Collector. That was done because the matter was remitted by the learned single Judge to the Government. Had the matter been remitted back to the Collector perhaps even that modification would not have arisen. In short the proceedings of respondent No.2 followed by that of respondent No.1 are vitiated and show complete non-application of mind and have to be set aside. Normally after setting aside both the proceedings, the matter could have been sent back to the Collector for deciding the matter afresh. However, in the facts and circumstances of the case, I think that it will be a futile exercise to send back matter again and again when the authorities have not cared to apply its mind inspite of the directions of the learned single Judge. In the circumstances, I feel that the matter need not be remitted back.
12. The contention of the impleaded petitioners that as the elections have already taken place in respect of trifurcated Gram Panchayat, the writ petition has become infructuous, I think is meritless. In WA No. 1046 of 1998 which was decided by a Division Bench presided by the Hon'ble Chief Justice it was made very clear that the effect of holding elections for the three separate Gram Panchayats shall not be considered for purposes of deciding the revisional application. The holding of election for trifurcated Gram Panchayat was dependent essentially on the Court holding the action of trifurcation as valid. If the trifurcation itself is found to be invalid, holding of the elections to the trifurcated Gram Panchayat becomes a futile exercise. That is a necessary consequence.
13. In the result the writ petition is allowed. The orders vide proceedings in Roc. No.4177/94 (Pts) A1, dated 19-11-1994 iissued by the District Collector (Panchayat Wing). Ongole discharging the functions of Commissioner and the orders of respondent No. 1 in G.O.Rt. No. 1504, Panchayati Raj and Rural Development (Pts.IV) Department, dated 25-9-1998 are both set aside. It is however quite obvious that fresh proceedings can be issued in accordance with law after following due procedure.
The writ petition is accordingly allowed without any order as to costs.