Andhra Pradesh High Court - Amravati
The vs Government Of A.P. Rep on 10 July, 2020
Author: U.Durga Prasad Rao
Bench: U.Durga Prasad Rao
THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
Writ Petition No.4238 of 2020
ORDER:
The petitioners seek to issue writ of mandamus declaring the order of 1st respondent issuing G.O.Ms.No.338, Panchayat Raj & Rural Development (E&R) Dept. dated 12.02.2020 whereby bifurcating Patha Routhupeta Village from Thamada Gram Panchayat of Laveru Mandal, Srikakulam District and constitute the same as new Gram Panchayat as illegal, arbitrary and contrary to the rules and consequently set aside the aforesaid G.O.
2. The petitioners are the residents of different villages in Thamada Gram Panchayat in Laveru Mandal, Srikakulam District. Their case is that Thamada Gram Panchayat consists of Thamada, Rayiniguvarpeta, Nadupuripeta, Kotha Routhupeta, Suryanarayanapuram and Patha Routhupeta Villages. The 1st respondent issued G.O.Ms.No.338 dated 12.02.2020 bifurcating Patha Routhupeta village from Thamada Gram Panchayat 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 2 UDPR, J WP.No.4238 of 2020 village in the areas other than schedule areas with the population of 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 Thamada Gram Panchayat there are six villages 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 Sabha. However, the dates on which said notices were issued or published is not mentioned in the impugned G.O. None of the petitioners or other villagers were aware of the alleged Grama Sabha and therefore, the statement that the Grama Sabha was 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 Sabha or issuance of notice by the 4th respondent. Hence, the impugned G.O. is liable to be set aside on that ground also.
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(d) Without prejudice to the above grounds, it is submitted that Kotha Routhupeta is having population of 701 and the income of the said village is also more than Rs.3.00 lakhs per annum. Even assuming that the action of 1st respondent in bifurcating the Gram Panchayat is valid, however, there is no justification in choosing Patha Routhupeta as the headquarters. Kotha Routhupeta is centrally located and it would be convenient for all the villagers if it is declared as Gram Panchayat. Hence, there are no valid reasons for locating Patha Routhupeta as headquarters.
Hence, the writ petition.
3. No counter is filed by the respondents.
4. Heard Sri O.Manoher Reddy, learned counsel for petitioners, and learned Government Pleader for Panchayat Raj & Rural Development representing the respondents 1 to 4, and Sri I.Koti Reddy, Standing Counsel for 5th respondent.
5. Severely fulminating the impugned G.O.Ms.No.338, learned counsel for petitioners 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 Government have to scrupulously follow the concerned Rules. In the instant case, he would argue, originally Thamada Gram Panchayat 4 UDPR, J WP.No.4238 of 2020 consists of six villages of which Patha Routhupeta is one of the constituent villages and its population is only 343. He would submit, by virtue of the impugned G.O.Ms.No.338, the Government sought to disband Patha Routhupeta village from Thamada Gram Panchayat and by adding the four out of remaining five villages of Thamada Gram Panchayat to Patha Routhupeta, a new Gram Panchayat with the headquarters at Patha Routhupeta is proposed. By such bifurcation, he lamented, the Thamada village alone is left for Thamada Gram Panchayat. Learned counsel would vehemently argue that during the relevant period, the tenure of elected body of 5th respondent was over and since then it has been represented by Person-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 about the proposed bifurcation and reconstitution of the Gram Panchayats.
Nextly, he would argue, in the impugned notification no reasons, much less special reasons are mentioned which prompted the Government to bifurcate Thamada Gram Panchayat. Therefore, the notification is vitiated by crucial procedural deviations. Learned counsel vehemently argued that when the statute and rules mandate 5 UDPR, J WP.No.4238 of 2020 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 respondent have, while supporting the impugned G.O, argued that all the relevant rules have been scrupulously and meticulously followed for bifurcation of Patha Routhupeta from Thamada Grama Panchayat and to constitute a separate Grama Panchayat with four villages of Thamada Grama Panchayat. They argued, before issuing notification, Grama Sabha was indeed conducted in Thamada Grama Panchayat wherein all the concerned villages have unanimously agreed for bifurcation of Thamada Grama Panchayat and to constitute Patha Routhupeta 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.338 bifurcating Patha Routhupeta Village from Thamada Grama Panchayat and constituting Patha Routhupeta as a Grama Panchayat along with Rayiniguvaripeta, Nadupuripeta, 1 2015 (6) ALT 573 = MANU/AP/1849/2014 6 UDPR, J WP.No.4238 of 2020 Kotha Routhupeta and Suryanarayanapuram. While agreeing that Patha Routhupeta is only at a distance of 3 KMs. from the Headquarters of Thamada Grama Panchayat and its population is far lesser than 3000 i.e., 343 and further agreeing that as per Second 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, they argued that the special reason for bifurcation of Patha Routhupeta and notifying it as a separate Grama Panchayat is to economically strengthen the same by including four villages to it. Thereby, the population of Patha Routhupeta Grama Panchayat will increase to 2370 and its income will also reach to Rs.10,16,730/-. That is how, both Thamada and Patha Routhupeta 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 petitioners 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 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.338 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? 7
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9. POINT: As can be seen, as per G.O.Ms.No.338 Panchayat Raj & Rural Development (E&R) Dept., dated 12.02.2020, the Government of Andhra Pradesh have decided to bifurcate Patha Routhupeta village from Thamada Grama Panchayat and to constitute Patha Routhupeta 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 Thamada Grama Panchayat consists of six villages viz., (1) Thamada, (2) Rayiniguvaripeta, (3) Nadupuripeta, (4) Kotha Routhupeta, (5) Patha Routhupeta and (6) Suryanarayanapuram. All these villages have different population and are at a distance of 3 KMs from headquarters.
While so, by virtue of the said G.O., the Government contemplates to append Rayiniguvaripeta, Nadupuripeta, Kotha Routhupeta and Suryanarayanapuram to Patha Routhupeta to make it a separate Grama Panchayat. 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;8
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(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. Thus, it is manifest that the present act of the Government under the impugned G.O.Ms.No.338 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 9 UDPR, J WP.No.4238 of 2020 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 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.
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UDPR, J WP.No.4238 of 2020 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 also 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 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.11
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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.338 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 remaining five villages from Thamada Gram Panchayat and constitute them into a separate Gram Panchayat with Patha Routhupeta as the head quarters of the new Gram Panchayat. As can be seen from the Annexure appended to impugned G.O.Ms.No.338, the five constituent villages of Thamada Gram Panchayat are at a distance of 3 KMs from the headquarters i.e., Thamada village proper. Therefore, to effect this bifurcation, obviously the government have to follow the mandatory procedure prescribed under Rule 6 'AP Rules, 2007'. The second proviso to Rule 6 lays down that the government have to assign special reasons such as geographical features, communication facilities or other viability to declare the new gram panchayat, since all the villages proposed to be included in the new gram panchayat (i.e., Patha Routhupeta village) are at a distance of only 3 KMs from the headquarters of the existing gram panchayat. However, except 12 UDPR, J WP.No.4238 of 2020 mentioning that the notification under G.O.Ms.No.338 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 Patha Routhupeta 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 petitioners is that the Person-in- charge has not conducted Grama Sabha of 5th respondent panchayat to ascertain the views and therefore the villagers of 5th respondent had lost valuable opportunity to express their 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 Person-in-charge/Special Officer, in such an event, the Special Officer, shall be given an opportunity and he shall make his representation 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 Sabha held at a special meeting convened for that purpose. Thus, the State Government is obligated to issue show cause notice to the Special Officer giving him ten days time for making his representation within which time, he shall convene the Grama Sabha in terms of Section 6 of AP PR Act and ascertain 13 UDPR, J WP.No.4238 of 2020 the views expressed by the members of the Grama Sabha and submit such views through his representation. In the instant case, though in the impugned G.O it was mentioned as if Grama Sabha was conducted in Thamada Grama Panchayat and resolved as if there was no objection to bifurcate Thamada Grama Panchayat, however, no material is placed before this court in proof of holding Grama Sabha. It is stated as if the 4th respondent reported that the Grama Sabha was conducted. In such an event, the respondents must have possessed abundant evidence to establish the said fact. However, no piece of paper is filed by respondents to buttress their claim, in spite of the vehement contention of the petitioners that no Grama Sabha was 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 2 MANU/SC/0667/1975 = (1975) 1 SCC 421 14 UDPR, J WP.No.4238 of 2020 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.
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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 15 UDPR, J WP.No.4238 of 2020 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.
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 3 MANU/SC/0312/1960 = AIR 1961 SC 751 16 UDPR, J WP.No.4238 of 2020 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.
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 Thamada Gram Panchayat; further, no Grama Sabha as stipulated in Rule 9 has been conducted to elicit the views of the effected villages. Therefore, the impugned G.O. is liable to be set aside as it fell foul of 'AP Rules, 2007'. The essential consequence is 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.338 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 17 UDPR, J WP.No.4238 of 2020 to bifurcate Patha Routhupeta from Thamada Grama Panchayat 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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