The vs Government Of A.P. Rep on 10 July, 2020

[Cites 10, Cited by 0]

Andhra Pradesh High Court - Amravati

The vs Government Of A.P. Rep on 10 July, 2020

Bench: U.Durga Prasad Rao

      THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

                     Writ Petition No.4281 of 2020

ORDER:

The petitioner seeks to issue writ of mandamus declaring the order of 1st respondent issuing G.O.Ms.No.336 Panchayat Raj & Rural Development (E&R) Dept. dated 12.02.2020 whereby constituting a new gram panchayat namely Bonthupeta by bifurcating villages from Bejjipuram and Sigiri Kothapalli Grama Panchayats of Laveru Mandal, Srikakulam District as illegal, arbitrary and contrary to the rules and consequently set aside the aforesaid G.O.

2. The petitioner is the resident of Bonthupeta village in Bejjipuram Gram Panchayat of Laveru Mandal, Srikakulam District. His case is that Bejjipuram Gram Panchayat consists of three villages viz., Bejjipuram, Bonthupeta and Borapeta. The 1st respondent issued G.O.Ms.No.336 dated 12.02.2020 bifurcating Bonthupeta village from Bejjipuram and Sigiri Kothapalli Gram Panchayats to form a new Gram Panchayat. The said action of 1st respondent is illegal and arbitrary.

(a) The impugned G.O. shows that it was issued by the 1st respondent by relaxing the criteria mentioned in the G.O.Ms.No.542 dated 03.12.2007 without following the procedure.

(b) As per Rule 3 of A.P. Gram Panchayat (Declaration of Villages) Rules, 2007 (for short, "AP Rules, 2007") every revenue village in the areas other than schedule areas with the population of 2 UDPR, J WP.No.4281 of 2020 3000 and more and with an income of Rs.3,000/- and above per annum in A.P. shall be declared as a village. However, as per Rule 6, the Government for the reasons specified in the notification, may, irrespective of the population and income, also declare a village as a separate village. In the instant case, while invoking the power under Rule 6, no reasons have been recorded in the notification though Rule 6 obligates 1st respondent to give reasons. Non-mentioning of the reasons would vitiate the order passed by 1st respondent and therefore, the impugned notification is illegal and hence, liable to be set aside.

(c) In the impugned notification, it is mentioned, Grama Sabha was conducted. Section 6 of The Andhra Pradesh Panchayat Raj Act, 1994 (for short, "AP PR Act") deals with the conducting of Grama Sabha. In Bejjipuram and Sigiri Kothapalli Gram Panchayats there are three villages each and it is obligatory on the part of 4th respondent to issue notice to all the residents of the six villages mentioning the date of Grama Sabhas. However, the dates on which said notices were issued or published is not mentioned in the impugned G.O. None of the petitioner or other villagers were aware of the alleged Grama Sabhas and therefore, the statement that the Grama Sabhas were conducted as mentioned in the impugned G.O. is false. Even the neighbouring villagers also stated that they were not aware of the alleged conduction of Grama Sabhas or issuance of notice by the 4th respondent. Hence, the impugned G.O. is liable to be set aside on that ground also.

UDPR, J WP.No.4281 of 2020 Hence, the writ petition.

3. The 5th and 6th respondents filed counter by denying the allegations mentioned in the writ petition, contending that the villagers of Bonthupeta and Borapeta which are in Bejjipuram Gram Panchayat made a request to the authorities that new Gram Panchayat has to be established with those two villages and Bonthupeta (Part) and Venkataraopet with the name of Bonthupeta Gram Panchayat and on the request of four villagers, Grama Sabhas were conducted on 09.12.2019, wherein the villagers accepted the new proposal and passed the resolutions on 14.12.2019 and sent the proposals to the government. Further, while conducting the respective Grama Sabhas, the villagers of the two Gram Panchayats were informed by way of tomtom. He thus, prayed to dismiss the writ petition.

4. Heard Sri O. Manoher Reddy, learned counsel for petitioner, and learned Government Pleader for Panchayat Raj & Rural Development representing the respondents 1 to 4, and Sri I. Koti Reddy, Standing Counsel for 5th and 6th respondents.

5. Severely fulminating the impugned G.O.Ms.No.336, learned counsel for petitioner Sri O.Manoher Reddy would argue that under Section 3 of the AP PR Act r/w Rules 3 to 6 of the 'AP Rules, 2007', the Government no doubt have power to bifurcate one or more villages from a Gram Panchayat and reconstitute them into a separate Gram Panchayat. However, before exercising such powers, the 4 UDPR, J WP.No.4281 of 2020 Government have to scrupulously follow the concerned Rules. In the instant case, he would argue, originally Bejjipuram Gram Panchayat consists of three villages of which Bonthupeta is one of the constituent villages and its population is only 554. He would submit, by virtue of the impugned G.O.Ms.No.336, the Government sought to disband Bonthupeta village from Bejjipuram Gram Panchayat and by adding Borapeta village from Bejjipuram Gram Panchayat and Venkatapuram and Bonthupeta Part villages from Sigiri Kothapalli Gram Panchayat to Bonthupeta, a new Gram Panchayat with the headquarters at Bonthupeta is proposed. By such bifurcation, he lamented, the Bejjipuram and Sigiri Kothapalli Gram Panchayats are left with one village each. Learned counsel would vehemently argue that during the relevant period, the tenure of elected body of 5th and 6th respondents was over and since then it has been represented by Persons-in-charge. In that view, as per Rule 9 the Person-in- charge/Special Officer shall conduct Grama Sabha and take into consideration the views expressed by the members in the said Grama Sabha and submit his representation to the government on the aspect of bifurcation. However, learned counsel argued, no Grama Sabha as required under the AP PR Act and 'AP Rules, 2007' was conducted by the authorities to secure the opinion of all the six villages in two Gram Panchayats about the proposed bifurcation and reconstitution of the Gram Panchayats.

UDPR, J WP.No.4281 of 2020 Nextly, he would argue, in the impugned notification no reasons, much less special reasons are mentioned which prompted the Government to bifurcate Bejjipuram and Sigiri Kothapalli Gram Panchayats. Therefore, the notification is vitiated by crucial procedural deviations. Learned counsel argued that non-giving of reasons would vitiate the order passed by the 1st respondent. Learned counsel vehemently argued that when the statute and rules mandate that a thing has to be done in a particular manner, it ought to be done in that manner only. Any deviation or violation will make the act done illegal and liable to be set aside. He placed reliance on Kurapati Bangaraiah and others vs. Government of A.P. rep., by Principal Secretary, Municipal Administration & Urban Development (ELC- I) and others1. He thus, prayed to allow the writ petition.

6. Per contra, learned Government Pleader for Panchayat Raj & Rural Development and learned Standing Counsel for 5th and 6th respondents have, while supporting the impugned G.O, argued that all the relevant rules have been scrupulously and meticulously followed for bifurcation of Bonthupeta from Bejjipuram and Sigiri Kothapalli Gram Panchayats and to constitute a separate Grama Panchayat with two villages each of the two Grama Panchayats. They argued, before issuing notification, Grama Sabhas were indeed conducted in Bejjipuram and Sigiri Kothapalli Grama Panchayats wherein all the concerned villages have unanimously agreed for bifurcation of 1 2015 (6) ALT 573 = MANU/AP/1849/2014 6 UDPR, J WP.No.4281 of 2020 Bejjipuram Grama Panchayat and to constitute Bonthupeta Village as a new Grama Panchayat. Accordingly, a resolution was passed and the 2nd respondent who is the Commissioner of Panchayatraj and Rural Development addressed a letter 5th cited in the impugned G.O., basing on which the Government have issued G.O.Ms.No.336 bifurcating Bonthupeta Village from Bejjipuram and Sigiri Kothapalli Grama Panchayats and constituting Bonthupeta as a Grama Panchayat along with Borapeta, Venkatapuram and Bonthupeta Part villages. While agreeing that Bonthupeta is at a distance of 6 KMs. from the Headquarters of Bejjipuram Grama Panchayat and its population is far lesser than 3000 i.e., 554 and further agreeing that as per First Proviso to Rule 6 of 'AP Rules, 2007', in order to declare a local area as a separate village, special reasons are to be recorded in the notification, they argued that the special reason for bifurcation of Bonthupeta and notifying it as a separate Grama Panchayat is to economically strengthen the same by including three villages to it. Thereby, the population of Bonthupeta Grama Panchayat will increase to 860 and its income will also reach to Rs.3,93,936/-. That is how, Bejjipuram, Sigiri Kothapalli and Bonthupeta Grama Panchayats will flourish. They thus argued that there was no violation or deviation from the mandatory rules and prayed to dismiss the writ petition.

7. In reply, learned counsel for petitioner argued that none of the so called special reasons as proponed in the argument of learned Government Pleader and learned Standing Counsel are mentioned in 7 UDPR, J WP.No.4281 of 2020 the impugned G.O and therefore, such argument is not legally sustainable.

8. The point for consideration is whether the impugned G.O.Ms.No.336 Panchayat Raj & Rural Development (E&R) Dept. dated 12.02.2020 is violative of mandatory procedure contemplated under A.P. Grama Panchayat (Declaration of Villages) Rules, 2007 and hence liable to be set aside?

9. POINT: As can be seen, as per G.O.Ms.No.336 Panchayat Raj & Rural Development (E&R) Dept., dated 12.02.2020, the Government of Andhra Pradesh have decided to bifurcate Bonthupeta village from Bejjipuram Grama Panchayat and to constitute Bonthupeta as a new Grama Panchayat in relaxation of the criteria fixed in Rule 6 of 'AP Rules, 2007'.

The Annexure appended to the aforesaid G.O. would show that the existing Bejjipuram Grama Panchayat consists of three villages viz., (1) Bejjipuram, (2) Bonthupeta and (3) Borapeta. All these villages have different population and are at a distance of 6 KMs and below from headquarters. Similarly, Sigiri Kothapalli Grama Panchayat consists of 3 villages viz., (1) Sigiri Kothapalli, (2) Venkatapuram and (3) Bonthupeta Part. Now, by virtue of the aforesaid G.O, the government contemplates to bifurcate Bonthupeta and Borapeta villages from Bejjipuram Gram Panchayat and also Venkatapuram and Bonthupeta Part villages from Sigiri Kothapalli Grama Panchayat and constitute the bifurcated four villages as a 8 UDPR, J WP.No.4281 of 2020 separate gram panchayat with Bonthupeta as its headquarters. The notification further shows that for this exercise, the Government draws power under Section 3 of AP PR Act.

10. The statutory power of State Government conferred under section 3 of AP PR Act extends to:

(i) The creation of a village by carving out from a revenue village or hamlet thereof or any part of Mandal;

(ii) Forming a new village by separating a local area from any village or uniting two or more villages or parts of villages or by uniting any local area to a part of any village;

(iii) Increasing the local area of any village, diminishing the local area of any village, altering the boundaries of any village;

(iv) Altering the name of any village;

(v) Cancelling the notification issued earlier to create a village etc., It should be noted that while Section 3 (1) gives the power to create a panchayat village (as per Section 2(42), "Village" means any local area which is declared to be a village under AP PR Act) from out of a Revenue village o r a hamlet thereof of a Mandal, Section 3(2) in its turn, lends power to accomplish other tasks, such as, separating a local area from any village to form a new village, or uniting two or more villages to create a new village, increase or diminish the local area of any village, alter the boundaries of the village, alter the name of any village, cancel the notification issued under Section 3 (1) etc. 9 UDPR, J WP.No.4281 of 2020 Thus, it is manifest that the present act of the Government under the impugned G.O.Ms.No.336 falls within the domain of Section 3 (2) of AP PR Act.

11. Be that it may, the Government have, in exercise of the rule making power conferred on it under Section 3 r/w 268 of AP PR Act, framed Rules for creation or changing the contours of a village under Section 3 as discussed supra. These rules are called Andhra Pradesh Gram Panchayat (Declaration of Villages) Rules, 2007 and they were notified through G.O.Ms.542 Panchayat Raj & Rural Development (PTS.IV) Department dated 03.12.2007.

(a) The above rules expound the conditions required for notifying a village. For instance, Rule 3 says that every revenue village, in areas other than scheduled areas, with a population of 3000 and more and with an income of Rs.3,000/- and above per annum in A.P and population of 1000 and more and with an income of Rs.1,500/- and above per annum in Telangana area shall be declared as a village.

(b) Rule 4 lays down that any hamlet of a revenue village which is declared as a village under Rule 3, lying within a distance of 3 KMs shall ordinarily be included in that village irrespective of the population and income of that hamlet. Provided that the Government for special reasons, such as, geographical features, communication facilities or viability may declare one or more such hamlets into a 10 UDPR, J WP.No.4281 of 2020 separate village.

(c) Rule 6 lays down that if a local area comprised in a revenue village or villages, which is not in the scheduled area, is beyond a distance of 3 KMs from the revenue village or villages and has population of 3000 and income of Rs.3,000/- and above per annum in the A.P and population of 1000 and more and income of Rs.1,500/- and above per annum in Telangana may be declared as a separate village.

Provided that, for the reasons to be specified in the notification, any such local area, which is beyond a distance of 3 KMs may, irrespective of its population and income also be declared as separate village.

Provided further that the Government, for special reasons, such as geographical features, communication facilities or viability, may declare one or more revenue villages, which are at a distance of 3 KMs or less, into a separate village irrespective of its population and income.

(d) Rules 9 and 10 are als o germane for our case. They read as follows:

"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 village any local area or unite two or more villages or parts of villages or to alter the boundaries of any villages or to alter the name of any village in giving effect to these rules, the Government shall, before issuing a notification therefor, give the Gram Panchayat, which will be affected by the issue of such 11 UDPR, J WP.No.4281 of 2020 notification, an opportunity of showing cause against the proposal to indicate its decision within a period of ten 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 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 Government shall pass such orders as deemed fit to give effect to the proposal.

10. Where a notification for the declaration of a village has been issued by the Government, it shall be open to any Gram Panchayat affected to prefer revision petition to the Government through the Commissioner, within fifteen days from the date of publication of such notification and the Government, may pass such orders thereon as they may deem fit."

12. Thus, as already stated supra, the present exercise of the Government under the impugned G.O.Ms.No.336 falls within the domain of Section 3 (2) of AP PR Act and therefore, it has to follow the 'AP Rules, 2007'. The Government, by virtue of the present G.O, proposes to bifurcate the two villages from Bejjipuram Gram Panchayat and two villages from Sigiri Kothapalli Gram Panchayat and constitute them into a separate Gram Panchayat with Bonthupeta as the headquarters of the new Gram Panchayat. As can be seen from the Annexure appended to impugned G.O.Ms.No.336, the two 12 UDPR, J WP.No.4281 of 2020 constituent villages of Bejjipuram Gram Panchayat are at a distance of above 3 KMs from the headquarters i.e., Bejjipuram village proper and the remaining two constituent villages of Sigiri Kothapalli Gram Panchayat are at a distance of 3 KMs from the headquarters i.e., Sigiri Kothapalli village proper. Therefore, to effect this bifurcation, obviously the government have to follow the mandatory procedure prescribed under Rule 6 'AP Rules, 2007'. The First proviso to Rule 6 lays down that the government have to assign special reasons in the notification to declare the new gram panchayat, since all the villages proposed to be included in the new gram panchayat (i.e., Bonthupeta village) are at a distance of only 3 KMs and above from the headquarters of the existing gram panchayats. However, except mentioning that the notification under G.O.Ms.No.336 was issued in relaxation of Rule 6, no special reason has been pellucidely mentioned in the notification. Except the oral submission of learned Government Pleader and Standing Counsel that the bifurcation has been made to economically strengthen the Bonthupeta Gram Panchayat, the said fact has not been mentioned in the notification. This is a grave violation of Rule 6.

13. The next argument of the petitioner is that the Persons-in- charge has not conducted Grama Sabhas of 5th and 6th respondent panchayats to ascertain the views and therefore the villagers of 5th and 6th respondents had lost valuable opportunity to express their 13 UDPR, J WP.No.4281 of 2020 views on the proposed bifurcation. I find considerable force in this argument.

14. The proviso to Rule 9 lays down that when the regularly elected body of Gram Panchayat exhausted its tenure and it is represented by Persons-in-charge/Special Officers, in such an event, the Special Officers, shall be given an opportunity and they shall make their representations within ten days from the date of receipt of show cause notice, after taking into consideration the views expressed by the members of the Grama Sabhas held at a special meeting convened for that purpose. Thus, the State Government is obligated to issue show cause notice to the Special Officers giving them ten days time for making their representations within which time, they shall convene the Grama Sabhas in terms of Section 6 of AP PR Act and ascertain the views expressed by the members of the Grama Sabhas and submit such views through their representations. In the instant case, though in the impugned G.O it was mentioned as if Grama Sabhas were conducted in Bejjipuram and Sigiri Kothapalli Grama Panchayats and resolved as if there was no objection to bifurcate Bonthupeta Grama Panchayat, however, no material is placed before this court in proof of holding Grama Sabhas. It is stated as if the 4th respondent reported that the Grama Sabhas were conducted. In such an event, the respondents must have possessed abundant evidence to establish the said fact. However, no piece of 14 UDPR, J WP.No.4281 of 2020 paper is filed by respondents to buttress their claim, in spite of the vehement contention of the petitioner that no Grama Sabhas were conducted and none of the villagers were given an opportunity to express their views. Therefore, I am constrained to hold that the impugned G.O violates Rule 9 of 'AP Rules, 2007' also.

15. It must be noted that the 'AP Rules, 2007' are statutory rules framed in exercise of the powers conferred under Section 3(1)(2) r/w.Sec.268(1) of AP PR Act. These rules are a part of Subordinate legislation or delegated legislation and have the force of a statute.

16. In Sukhdev Singh and others vs. Bhagat Ram and others2, the question fell for the decision of Hon'ble apex court was whether regulations framed under Oil and Natural Gas Commission Act, 1959; the Industrial Finance Corporation Act, 1948 and Life Insurance Corporation Act, 1956 have the force of law. In this context, the Supreme Court observed that Rules, Regulations, Schemes, Bye-laws, orders are the facets of delegated legislation and they have the force of parent legislation. The observations are as follows:

xxxx 12. Rules, Regulations, Schemes, Bye-laws, orders made under statutory powers are all comprised in delegated legislation. The need for delegated legislation is that statutory rules are framed with care and minuteness when the statutory authority making the rules is after the coming into force of the Act in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statues.

xxxx 2 MANU/SC/0667/1975 = (1975) 1 SCC 421 15 UDPR, J WP.No.4281 of 2020

14. Subordinate legislation is made by a person or body by virtue of the powers conferred by a statute. By-laws are made in the main by local authorities or similar bodies or by statutory or other undertakings for regulating the conduct of persons within their areas or resorting to their undertakings. Regulations may determine the class of cases in which the exercise of the statutory power by any such authority constitutes the making of statutory rule.

15. The words "rules" and "regulations" are used in an Act to limit the power of the statutory authority. The powers of statutory bodies are derived, controlled and restricted by the statutes which create them and the rules and regulations framed thereunder. Any action of such bodies in excess of their power or in violation of the restrictions placed on their powers is ultra vires. The reason is that it goes to the root of the power of such corporations and the declaration of nullity is the only relief that is granted to the aggrieved party.

16. In England subordinate legislation has, if validly made, the full force and effect of a statute, but it differs from a statute in that its validity whether as respects form or substance is normally open to challenge in the Courts.

17. Subordinate legislation has, if validly made, the full force and effect of a statute. That is so whether or not the statute under which it is made provides expressly that it is to have effect as if enacted therein. If an instrument made in the exercise of delegated powers directs or forbids the doing of a particular thing the result of a breach thereof is, in the absence of provision to the contrary, the same as if the command or prohibition had been contained in the enabling statute itself. Similarly, if such an instrument authorises or requires the doing of any act, the principles to be applied in determining whether a person injured by the act has any right of action in respect of the injury are not different from those applicable whether damage results from an act done under the direct authority of a statute, Re Langlois and Biden (1891) 1 Q.B. 349 and Kruse v. Johnson (1898) 2 Q.B. 91.

17. In The State of Uttar Pradesh and others vs. Babu Ram Upadhya3, the apex court observed thus:

"Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation" : see Maxwell "On the Interpretation of Statutes", 10th edn., pp. 50-51.

MANU/SC/0312/1960 = AIR 1961 SC 751 16 UDPR, J WP.No.4281 of 2020

18. The above jurimetrical jurisprudence expounds that the rules, regulations, bye-laws etc., framed under the delegated power of a statute will have the statutory force as that of a parent Act. Viewing in that manner, the inescapable conclusion is that the Andhra Pradesh Grama Panchayats (Declaration of Villages) Rules, 2007 which were framed by exercising the powers conferred under sub section (1) and (2) of Section 3 r/w.Section 268 of PR Act have the same statutory force as that of the parent enactment and they should be followed in letter and spirit. Then the first proviso to Rule 9 says that the Special Officer "shall" be given the opportunity to show cause against the proposal of the government to bifurcate the Grama Panchayat. In Kurapati Bangaraiah's case (1 supra), a learned Single Judge while upholding the mandatory nature of the proviso to Rule 9, observed thus:

42. xxxx Where an elected gram panchayat is not in office, the representation which the Special Officer is empowered to make against the proposal, under the first proviso to Rule 9, is only after taking into consideration the views expressed by the members of the gram sabha at a special meeting convened for the purpose.

While Rules 9 and 12(2) empower the Gram panchayat to indicate its "decision" and submit its "objections" to the Government, the first proviso to Rule 9 enables the Special Officer to submit his "representation". This power conferred on the Special Officer to submit a representation is also fettered by the requirement of taking into consideration the views expressed by the members of the Gram sabha. The Rule making authority was conscious of the possibility of Special Officers, who are government servants, readily accepting the proposal of the Government to denotify gram panchayat and terminate its very existence. Bearing in mind that "gram panchayats" are "institutions of selfgovernment", the Rule making authority has cast an obligation on the Special Officer, who holds office only in the absence of the elected body of the gram panchayat, to ascertain and take into consideration the views of the gram sabha.

UDPR, J WP.No.4281 of 2020

19. Thus, it is manifest that in the instant case, the respondents have committed gross infraction of Andhra Pradesh Grama Panchayats (Declaration of Villages) Rules, 2007, in as much as, no special reason as mandated in Rule 6 has been assigned for bifurcation of Bejjipuram Gram Panchayat; further, no Grama Sabhas as stipulated in Rule 9 has been conducted to elicit the views of the effected villages. Therefore, the impugned G.O fell foul of 'AP Rules, 2007' and hence the inevitable consequence is that the impugned G.O is liable to be set aside. However, it must be hastened, the Government can, if wish, initiate bifurcation proceedings afresh, by scrupulously following the law and rules.

20. In the result, the writ petition is allowed and the G.O.Ms.No.336 Panchayat Raj & Rural Development (E&R) Department, dated 12.02.2020 is set aside. However, this order will not preclude the concerned authorities from initiating the proceedings afresh to constitute Bonthupeta as a new Grama Panchayat by bifurcating villages from Bejjipuram and Sigiri Kothapalli Grama Panchayats by strictly adhering to the governing law and rules. No costs.

As a sequel, Interlocutory Applications, if any, pending for consideration shall stand closed.

__________________________ U. DURGA PRASAD RAO, J Dt: 10.07.2020.

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