Andhra HC (Pre-Telangana)
Maineni Prabhakara Rao And Ors. vs Collector, Guntur (Panchayat-Wing) ... on 4 February, 2002
Equivalent citations: 2002(3)ALD370, 2002(3)ALT114, AIRONLINE 2002 AP 10
Author: N.V. Ramana
Bench: N.V. Ramana
ORDER N.V. Ramana, J.
1. Petitioners are the elected Members of Kolluru Gram Panchayat, Guntur, District. They are questioning the validity of the notification issued by the District Collector (Panchayat Wing), Guntur in Roc. No. 14062/92-G8, dated 15-10-1994, deleting a part of area from Kolluru Gram Panchayat and forming a separate Gram Panchayat for Yadavapalem village (named as "Gopalapuram").
2. The Collector, Guntur District issued a show-cause notice dated 9-10-1994 to show-cause why the hamlet "Yadavapalem", comprising Survey Nos.389 to 393 and 613 to 668 should not be excluded from the Revenue village of "Kolluru" and formed into a separate Gram Panchayat. According to the petitioners, as per Section 3(2) of A.P. Panchayat Raj Act, 1994 read with Rule 4 of the Rules framed in G.O. Ms.No. 364, Panchayat Raj and Rural Development Department, dated 10-7-1969 ( which rules are still in force since no rules are framed under the A.P. Panchayat Raj Act 1994), any hamlet of a Revenue village, declared as a village under Rule 3 lying within a distance of five kilometers irrespective of its population and income, shall ordinarily be included in that village provided, the Commissioner of Panchayat Raj (Collector), for special reasons, such as geographical features, communication facilities or viability, may declare one or more such hamlets into a separate village.
3. Petitioners submit that, "Yadavapalem" is a hamlet of Kolluru village, which is within a distance of one and half kilometres from Kolluru village and Yadavapalem has got all the facilities such as communication facilities, electricity, drinking water etc. Petitioners case is that unless there are special reasons as contemplated in proviso to Rule 4, the hamlet cannot be separated from the main village and formed into a separate village. They contend that the Collector without assigning any reasons, muchless special reasons for forming a separate village, has mechanically issued the show-cause notice. Petitioners contend that even though the residents of the hamlet of Yadavapalem never requested for formation of a separate village and even though the residents of Yadavapalem submitted a representation to the District Panchayat Officer and the District Collector, Guntur on 26-11-1992 stating that Yadavapalem is having all the facilities and there is no necessity to form a separate village, the impugned notification is issued. Petitioners submit that as per Rule 9 of the A.P. Gram Panchayat Rules, the Collector shall have to give a minimum period one month's time to the petitioners to represent their case against the proposed action, but the Collector has given only ten day's time in this case.
4. It is the case of the petitioners that the Kolluru Gram Panchayat held a meeting on 14-10-1994 to consider the proposal for formation of a separate village and all the 17 members of the Kolluru Gram Panchayat attended the meeting. Nine members out of the seventeen members have mechanically agreed to the proposal. The other eight members (petitioners 1 to 8 herein) opposed formation of a separate village stating that the distance between Kolluru village and Yadavapalem is below one and half kilometeres and the yearly income is only Rs. 1,750/-, while a sum of about Rs. 40,000/- is being spent for developmental works of Yadavapalem and a part of Yadavapalem consisting of 110 voters was included in another Gram Panchayat called 'Boddulurupadu and there are no reasons for formation of a separate Gram Panchayat for Yadavapalem. Petitioners' allege that the 9th petitioner herein (Kethavath Hanuman) was forced to support the proposal for formation of a separate village in the meeting of the Gram Panchayat held on 14-10-1994 at the instance of the local MLA.
5. The petitioners claim that the impugned notification is not yet implemented and that they filed this writ petition (WP No. 19847 of 1994) because they, being Members of Kolluru Gram Panchayat, are interested in the villagers and the welfare of the Gram Panchayat, Kolluru. The petitioners, therefore, filed this writ petition "to call for the records relating to the impugned notification Roc.No. 14062/92-G8, dated 15-10-1994 from the Office of the Collector, Guntur (Panchayat Wing) and issue an appropriate writ, order or direction declaring the impugned notification as illegal, arbitrary, contrary to law" and to quash the same.
6. On 8-11-1994, the writ petition (WP No. 19847 of 1994) was admitted and on the same day in WPMP No. 24436 of 1994 interim suspension of operation of the impugned notification Roc.No. 14062/92-G8 dated 15-10-1994 was ordered.
7. One Dokku Panduranga Rao, claiming to be a resident of Yadavapalem, opposing the writ petition, filed WPMP No. 3844 of 1995 to implead him as 2nd respondent in this writ petition. He also filed WVMP No. 302 of 1995 praying to vacate the interim order dated 7-11-1995 passed in WPMP 24436 of 1994. On 6-3-1995, the implead petition WPMP No. 3844 of 1995 was ordered. Some other sixteen other persons (third parties), claiming to be the voters of Kolluru Gram Panchayat, filed WPMP 23860 of 2000 praying to implead them as party-respondents 3 to 18 to the writ petition. They also filed WVMP 2602 of 2000 praying to vacate the interim order dated 8-11-1994 passed in WPMP No. 24436 of 1994. On 29-9-2000, the implead petition WPMP No. 23860 of 2000 was ordered.
8. The first respondent filed counter stating that after the A.P. Panchayat Raj Act, 1994 came into force, the Government framed fresh rules and issued G.O. Ms. No. 515 dated 17-8-1994 specifying norms for bifurcation of Panchayats. As per the said rules, every village with a population of 3000 and more and with an income of Rs. 3,000/- shall be declared as a separate village. As per Rule 6 of the said G.O, any hamlet of a revenue village can be declared as a separate village, it if is at a distance of more than 2 KMs from the main village, irrespective of its population and income. It is stated that the distance between the main village and Gopalapuram is 3.5 KMs as per the certificate counter-signed by the Mandal Revenue Officer, Kolluru. The Extention Officer (Panchayats), Vemur, in his reports Roc No. 1/93 dated 15-1-1993 and Roc. No. 174/94 dated 22-9-1994 while recommending the proposal for constituting separate Panchayat of Gopalapuram felt that there is need for constitution of a separate Gram Panchayat and final action was taken based on the said report. Even though there was no representation from the villagers for constitution a separate Gram Panchayat for Gopalapuram, the local M.L.A. represented to the Government, on behalf of the residents of Gopalapuram for bifurcation of the village. It is stated that after issuing the show-cause notice for bifurcation of Kollur Gram Panchayat and after inviting objections from the local people and after considering the same, and taking into consideration the resolution passed by the Kolluru Gram Panchayat on 14-10-1994 the impugned notification was issued, duly constituting Gopalapuram as a separate Gram Panchayat, in accordance with the statutory provisions and the rules. It is stated that after the impugned notification, the Extension Officer (Panchayats), Vemru, was appointed as Special Officer to the newly constituted Gopalapuram Gram Panchayat and has taken charge on 16-10-1994 and hence the writ petition has become infructuous. It is also stated that the writ petition is not maintainable since the petitioners have got effective alternative remedy by way of statutory appeal to the Government.
9. The 2nd respondent-Dokku Panduranga Rao filed counter stating that a separate Gram Panchayat is constituted for Yadavapalem (name as Gopalapuram) at the instance of the residents of Yadavapalem village and that Yadavapalem is at a distance of more than 4 kilometers from the main village Kolluru and there are no reasons to interfere with the impugned notification.
10. Respondents 3 to 18 (third parties), who are voters of Kolluru Gram Panchayat, filed counter opposing the writ petition and supporting formation of a separate Gram Panchayat for Yadavapalem (Gopalapuram).
11. The grievance of the petitioners is that the show-cause notice is vague and without considering the resolution passed by Kolluru Gram Panchayat on 14-10-1994 or the representations of the residents of Yadavapalem village, the impugned notification is issued by the District Collector, that too without passing a speaking order and without assigning any special reasons for forming a separate village, as required under the proviso to Rule 4 of the Rules. Petitioners submit that about 200 voters of the newly formed village are the residents of Kolluru main village and those 200 voters cannot be included in Yadavapalem Gram Panchayat. Sri M. Chandrasekhar Rao, learned senior Counsel appearing for the petitioners, argued the writ petition at length, pointing out various irregularities committed by the respondents in issuing the show-cause notice and the notification for bifurcation of Kolluru Gram Panchayat and for formation of a separate Gram Panchayat for Yadavapalem. His contentions can be summarised thus:
(a) the show-cause notice does not spell out any valid reasons for bifurcation of Kolluru Gram Panchayat and for formation of a separate Gram Panchayat for Yadavapalem, in order to enable Kolluru Gram Panchayat to submit its explanation/objection for such bifurcation;
(b) as per Rule 4 of the Andhra Pradesh Gram Panchayats (Declaration of Villages) Rules, 1994 ( for short "the Rules") issued in G.O.Ms.No. 515, Panchayat Raj and Rural Development Department dated 17-8-1994, if a hamlet of a revenue village has to be declared as a separate Gram Panchayat, the distance between the main village and the hamlet must be above two kilometers, and that special reasons are to be recorded by the Commissioner if he wants to form a separate Gram Panchayat for Yadavapalem contrary to Rule 4. In this case, the distance between the main village Kolluru and the hamlet Yadavapalem is one and half kilometers, i.e., less than two kilometeres. No special reasons are recorded by the Commissioner for passing bifurcation orders, as required under the proviso to Rule 4 of the Rules:
(c) the resolution dated 14-10-1994 passed by the Kolluru Gram Panchayat favouring bifurcation is a minority resolution. In the meeting of the Gram Panchayat, Kolluru held on 14-10-1994, seventeen members participated and out of them, eight members opposed bifurcation giving specific reasons. Even though nine members favoured bifurcation, learned senior Counsel contends that the 9th writ petitioner was forced to vote in favour of bifurcation;
(d) as required under Rule 9 of the Rules, Kolluru Gram Panchayat was not given due and effective opportunity by the authorities to submit its objections to the proposed bifurcation.
12. Sri A.V. Sivaiah, learned Government Pleader for Panchayat Raj, appearing for the official respondents, would contend that as per the provisions of Section 264 of the A.P. Panchayat Raj Act, 1994 (for short "the Act") an individual or group of individuals cannot maintain a writ petition questioning the orders of bifurcation and it is only aggrieved Gram Panchayat that can maintain the writ petition. According to him, every reason for bifurcation need not be reflected in the show-cause notice or in the impugned order. Since the bifurcation orders are issued based on the majority resolution and the material available on record, there are no valid grounds to interfere with the impugned order.
13. Sri S. Srinivasa Reddy, learned Counsel appearing for the 2nd respondent, while supporting the impugned order and also the argument of the learned Government Pleader, would contend that the impugned order is passed after giving opportunity to all concerned as contemplated under Rule 9 of the Rules. So far as the issue relating to the distance between the main village Kolluru and the hamlet Yadavapalem is concerned, he submits that if at all anybody is aggrieved in this behalf, the aggrieved party can file a revision before the Collector and the Collector can direct the MRO concerned to get the distance between the two villages measured and take a decision. He submits that in this case no such revision is filed by anyone before the Collector. According to him, once the Gram Panchayat passes a resolution, private individuals have no right to file the writ petition questioning bifurcation.
Heard the arguments.
14. The question regarding maintainability of the writ petition is no longer res integra. Answering a similar question, a Division Bench of this Court in M. Narasimha Reddy v. Government of A.P. (1997 (3) ALD 636), while considering another Division Bench decision of this Court in D. Venkata Rushi Reddy v. Divisional Panchayat Officer (1996 (1) ALD 76), held that the said Division Bench decision (Rushi Reddy's case) is per incuriam because the said Division Bench has not considered the provisions of Section 264 of the A.P. Panchcyat Raj Act. The Division Bench in Narasimha Reddy's case (supra) held that under Section 264 of the A.P. Panchcyat Raj Act, 1994, the Government has got every right and power to entertain a revision either suo motu or on an application filed by any person interested relating to any matter relating to a Gram Panchayat, Zilla Parishad or of its Standing Committees, even if the said orders are passed by the District Collectors.
15. In this case, I have perused the show-cause notice issued by the District Collector, Guntur dated 9-10-1994 in Roc. No. 14062/92-G.1. The show-cause notice is in a format shape. The Collector issued the said show-cause notice under Sub-sections (1) and (2) of Section 3 read with Sub-section (1) of Section 268 of the A.P. Panchayat Raj Act, 1994 and in accordance with the Rules (A.P. Panchayat Raj (Declaration of Villages) Rules, 1994 issued in G.O. Ms. No. 515, Panchayat Raj and Rural Development and Relief Department dated 17-8-1994). For proper appreciation, it is useful to extract the show-cause notice which runs thus:
"It has been considered desirable to exclude Yadavapalem from the Revenue Village of Kolluru of Kolluru Mandal, Guntur District and constitute a separate Gram Panchayat for the excluded area after such exclusion.
In exercise of the powers delegated to him by the Government under Sub-sections (1) and (2) of Section 3 read with Sub-section (1) of Section 268 of the APPR Act (Act 13 of 1994) and in accordance with the provisions contained under the APPR Act, 1994 (Declaration of a Village Rules, 1994) issued in G.O.Ms.No. 515/P.R & R.D and Relief (Mandal-I) Department, dated 17-8-1994, in partial modification of notification issued in and any other notification if any constituting the Panchayat and any other notification pertaining to the reconstitution, the District Collector, Guntur, hereby proposes--
(1) That under Section 3(1)(2) of the APPR Act, 1994 to exclude the hamlet of Yadavapalem (Gopalapuram) comprising survey Nos. 389 to 393, 613 to 668 of revenue village from the existing Kollur Gram Panchayat and constitute the same into a separate Gram Panchayat by name Yadavapalem (named as Gopalapuram).
(2) That the jurisdiction of the residuary Gram Panchayat will be the existing Kollur Gram Panchayat excluding its hamlet Kolluru Yaadavapalem.
The Kolluru Gram Panchayat in Kolluru Mandal is hereby directed to show-cause within ten days from the date of receipt of this notice as to why the above proposal should not be given effect to immediately. If no reply is received within the time stipulated, it will be presumed that the Gram Panchayat has no cause to show against the proposed bifurcation and further action wilt be taken on that presumption."
16. The learned senior Counsel appearing for the petitioners has pointed out various irregularities committed by the respondents while issuing the impugned notification.
17. I have perused the records produced by the learned Government Pleader. From the record it is clear that there is no representation or request received by the authorities from any of the villagers of Yadavapalem to constitute a separate Gram Panchayat. In the first instance, the bifurcation proposal was initiated at the instance of the then local MLA and it ended in rejection as could be seen from Memo No. 2913/CPR-C.1/93, dated 'nil'- 3-1993. Thereafter, the Extension Officer (Panchayats), Vemuru, in his report dated 22-9-1994 has recommended for bifurcation of Kolluru Gram Panchayat and for formation of a separate Gram Panchayat for Yadavapalem. So, the second proposal culminated in the impugned proceedings. A perusal of the impugned order as well the records produced by learned Government Pleader would reveal that for the second time the bifurcation proceedings started again at the instance of the Extension Officer, Vemuru. In this, there is no mention about the rejection of the first proposal by the Commissioner of Panchayat Raj earlier. The District Collector, Guntur, has issued the show-cause notice on 9-10-1994 giving ten day's time to the Kolluru Gram Panchayat to show-cause why the bifurcation should not be effected. In pursuance of the said show-cause notice, on 14-10-1994 at 4 p.m., the members of Gram Panchayat, Kolluru, met and passed resolution No. 68 on 14-10-1994. On that day, in the special discussion that has taken place in the Gram Panchayat meeting, eight members of the Gram Panchayat have opposed the bifurcation on three ground, viz., (a) the orders of the Collector are not properly informed/notified to all the villagers by way of beat of tomtom in the village; (b) 108 voters of Yadavapalem given a representation opposing the bifurcation which fact was not brought to the notice of the Collector by the Executive Officer and (c) Yadavapalem village is at a distance of less than one and half kilometres from the main village, Kolluru. It is surprising that the District Collector, even before receiving the said resolution of Kolluru Gram Panchayat passed on 14-10-1994, has passed the impugned order on the very next day i.e., on 15-10-1994. It is nowhere stated in the impugned order about the consideration of the resolution dated 14-10-1994 of Kolluru Gram Panchayat or the representation of the villagers opposing bifurcation. So, it clearly shows the non-application of mind and non-consideration of the resolution and the representation of the villagers by the District Collector, Guntur, while passing the impugned order.
18. In the show-cause notice dated 9-10-1994 issued by the District Collector, Guntur, it is clearly stated that the Kolluru Gram Panchayat is given ten days' time from the date of receipt of the said show-cause notice for filing its objections, if any. Even without waiting for the minimum period of ten days for receiving objections from Kolluru Gram Panchayat to the show-cause notice, the Collector has passed the impugned order hastily. As rightly contended by the learned Counsel for the petitioners, no special reasons are assigned by the Collector for passing bifurcation orders and the Collector has issued the impugned order mechanically. The records in this case reveal that the impugned order is passed without considering the objections raised by the Gram Panchayat, Kolluru and without giving any special reasons for bifurcation.
19. In this context, it is useful and necessary to notice certain settled principles of law laid down by this Court relating to the need and necessity of affording real and reasonable opportunity to the Gram Panchayat from which any hamlet is to be deleted for formation of a separate Gram Panchayat, and the requirement of recording special reasons in case the distance between the main village and the hamlet is less than two kilometers.
20. A learned single Judge of this Court, in Gram Panchayat Kolanapalli v. Collector, West Godavari (1984 (2) APLJ 272, while considering the provisions of Section 3(2) of the A.P. Gram Panchayats Act, 1964 and Rule 8 of the A.P. Gram Panchayats (Declaration of Villages) Rules, 1969 held that the Commissioner in exercise of power under Section 3 cannot overrule the resolution of Gram Panchayat expressing unanimous opposition regarding boundaries of new Gram Panchayat without giving special reasons in writing.
21. Dealing with the provisions of Section 3 of the A.P. Gram Panchayats Act, in Gram Panchayat, Mannegudem v. Government of A.P., 1978 (1) APLJ 24 (S.N.), a learned single Judge of this Court held that an order passed by the Collector bifurcating a village without considering the objections of the Gram Panchayat is not valid. In that context, the Court observed:
"When the statute provides for affording an opportunity to the petitioner Gram Panchayat to show-cause against the proposal of bifurcation and when an obligation is cast upon the statutorily constituted authority under Section 3 of the Act to consider the objections of the petitioner-Gram Panchayat, omission to consider those objections would vitiate the order and any order passed suffering from such a vice cannot be said to be an order in the eye of law and muchless can it be considered to be an order or notification under Section 3 of the Act. It may be considered to be non est for all practical purposes."
22. In S. Surapa Raju v. District Collector (1971 (2) APLJ 128), this Court held that special reasons and real opportunity of showing cause against the proposed bifurcation have to be given by the authorities concerned. The Court held:
"A reading of Rules 3 and 4 of the Rules under G.O.Ms.No. 364 with the proviso to Section 3(2) of the Act makes it abundantly plain that special reasons which had prompted the District Revenue Officer to make the proposal of bifurcation should have been stated in the show-cause notice. In the absence of any such indication it is manifest that the Gram Panchayat had no opportunity of showing cause against the proposal, because they had no knowledge of the special reasons which formed the basis for the proposal. The conclusion that the showcause notice is not in conformity within the requirements of the law and thus had denied to the Gram Panchayat a real opportunity of showing cause against the proposal is mere inescapable."
23. It is clear from the above legal position that real and effective/reasonable opportunity has to be given to the Grain Panchayat concerned before bifurcating it, and that special reasons have to be recorded in writing in case the authorities intend to form a separate Gram Panchayat for any hamlet which is already included in the local area of another Gram Panchayat if it is at a distance of less than two kilometers from the main village.
24. During the course of arguments, learned Government Pleader, adverting to the contention of learned Counsel for the petitioners that the distance between the main village Kolluru and the hamlet Yadavapalem is less than two kilometers, has suggested that the matter may be remanded back to the District Collector for fresh consideration and the issue relating to the distance between the main village (Kolluru) and the hamlet (Yadavapalem) can also be decided by the Collector by ascertaining the same, if necessary by getting the actual distance between the two villages measured, either from the concerned MRO or the R&B Department authorities. Considering the said factors, the entire issue requires to be reconsidered afresh by the respondent-authorities once again. Therefore, it is not proper for this Court to express any view on the merits of the matter.
25. Even though the learned Counsel on both sides raised contentions regarding the distance between the two villages as well as the procedure contemplated for bifurcation of the villages, I am not inclined to go into these aspects for the reason that prima facie I am satisfied that the impugned notification does not reflect consideration of the resolution passed by the Gram Panchayat or the representation of the villagers opposing bifurcation.
26. For the above reasons, the impugned notification is hereby quashed and the writ petition is allowed. However, I direct the respondent-authorities to reconsider the entire matter afresh after following the due procedure contemplated under the A.P. Panchayat Raj Act and the rules and also after ascertaining the actual distance between the main village (Kolluru) and the hamlet (Yadavapalem), if necessary by getting the distance between the two villages measured, either from the concerned MRO or the R&B Department officials.
There shall be no order as to costs.