Andhra HC (Pre-Telangana)
Moode Lakshma Naik vs Government Of A.P. And Ors. on 17 July, 2006
Equivalent citations: 2006(5)ALD23
ORDER P.S. Narayana, J.
1. This Court issued Rule Nisi and called for records on 14-7-2006. The learned Assistant Government Pleader for Panchayat Raj had taken notice and requested time to get instructions in the matter. Thus, as per the directions of this Court, the matter is appearing in the Motion List today.
2. Sri Subramanyam Reddy, learned Senior Counsel representing the petitioner had submitted that the impugned action, virtually is a suo motu action by the Government and such suo motu action relating to amalgamation is impermissible and the learned Counsel also had drawn the attention of this Court to G.O. Ms. No. 232, Panchayat Raj and Rural Development, dated 18-4-1995. The learned Senior Counsel also would submit on the aspect of the power to be exercised under Article 226 of the Constitution of India. The learned Counsel would maintain that even if otherwise, prima facie, this Court arrives at a conclusion that the impugned action is invalid, there is no point in permitting the elections to be further proceeded with, since it would be a wasteful expenditure. The learned Counsel also had drawn the attention of this Court to Article 329 of the Constitution of India, which had been there originally in the Constitution of India and how subsequent thereto the 73 rd and 74th Amendment had been introduced for the purpose of giving better status to the local bodies. The learned Senior Counsel would submit that these elections may have to be treated slightly on a different footing. The learned Senior Counsel also had placed strong reliance on Harnek Singh v. Charanjit Singh and Ors. , wherein it was held that Article 243(0) of the Constitution of India mandates that all elections disputes to be determined only by way of Election Petition, but this by itself may not per se bar judicial review, which is the basic structure of the Constitution, but ordinarily such jurisdiction would not be exercised. However, there may be some cases where a writ petition would be entertained but in this case, the Court was not concerned with the said question. In the light of the said decision, the learned Senior Counsel would contend that inasmuch as now a stand is being taken by virtue of certain resolutions passed by the Special Officer, the amalgamation had been effected, even if the said contention to be accepted, it is clear that there is no elected body during the period and the view of the general public could not be ascertained and hence, such action would be bad. The learned Senior Counsel placed strong reliance on the decision of the Division Bench of this Court, decided, no doubt, under Andhra Pradesh Gram Panchayats Act 1964, in a similar situation in Tirumalchetty Kotaiah etc v. District Collector (Panchayat Wing), Guntur 1968 (1) An. WR 155. The learned Senior Counsel also placed strong reliance on a decision in State of U.P. and Ors. v. Pradhan Sangh Kshetra Samiti and Ors. 1995 Supp. (2) SCC 305.
3. Per contra, the learned Assistant Government Pleader for Panchayat Raj had drawn the attention of this Court to Section 6 of the A.P. Panchayat Raj Act 1994 (hereinafter, in short, referred to as 'Act' for the purpose of convenience) and would maintain that twice in an year meetings are to be held and in the absence of an elected body, the Special Officer will convene the meeting and there has been no elected body in relation to these panchayats from the year 1995. In view of the same, the Special Officer, Gram Panchayat alone had been discharging the duties and in pursuance thereto resolutions were sent, and in pursuance of the resolutions, a decision had been taken hence, it cannot be said it is a suo motu decision on the part of the Government, The learned Counsel also, in relation to the Z.P.T.C. and M.P.T.C. elections, had pointed out that care had been taken to see that the reservation or other aspects are left un-affected and hence, the mere fact that these panchayats were referred to during those elections, would not alter the situation in anyway. The Counsel also had drawn the attention of this Court to G.O. Ms. No. 367 dated 20-8-1998 and would point out to Rule-5 and would maintain that inasmuch as in the absence of elected body the Executive Officer concerned being the competent person to convene the meetings, the resolution sent are in accordance with law and inasmuch as this is not a suo motu action, the guidelines or instructions relied upon by the learned Senior Counsel are not applicable to the facts of the case. While further elaborating his submissions, the learned Counsel would contend that inasmuch as the notification already had been issued, this Court normally not to disturb the process of the election at this stage and hence, it is not a fit case to grant any interim order, whatsoever. Further, the learned Counsel would contend that in the event of this Court interfering with the conduct of elections at this stage, the whole Mandal would be affected and hence, prima facie case also to be considered. It is also stated that the care had been taken even in relation to reservations and hence, the amalgamation made is in order and the same need not be disturbed at this stage.
4. Heard the Counsel on record and perused the material available on record. As already referred to supra, this Court already issued rule nisi and on the request of the learned Assistant Government Pleader, the matter is coming up today.
5. The writ petition is filed for a writ of mandamus declaring the proceedings in G.O. Ms. No. 204, Panchayat Raj Rural Development (PTS-IV), dated 6-5-2006, Gazetted on 17-5-2006, whereby a Single Gram Panchayat of Settipalli is constituted by merging three Gram Panchayats, i.e., Settipalli, Chinna Bidiki and Adavikampalli Gram Panchayats, as illegal and arbitrary and contrary to the earlier G.O. issued by the Government in G.O.Ms.No. 347 PR & RD (PTS-IV) Department, dated 2-6-1995 and the provisions of A.P. Panchayat Raj Act and Articles 15(4) and 243-D of the Constitution of India and consequently direct the respondents to conduct the elections to the above three Gram Panchayats independently in the interest of justice and pass suitable orders.
6. In W.P.M.P. No. 18067 of 2006 interim relief prayed for is to stay the election process in respect of Settipalli Gram Panchayat, Sambepally Mandal, Kadapa District pending disposal of the writ petition and pass such other suitable orders.
7. It is stated by the petitioner that he was recently elected as MPTC Member of Chinnabidiki of Sambepalli Mandal, Kadapa District. It is also stated that in Sambepalli Mandal, the Gram Panchayat of Settipalli was earlier bifurcated into three Gram Panchayats vide G.O. Ms. No. 347, dated 2-6-1995 and they are Settipalli Kaspa Gram Panchayat, Adavikammaplli Gram Panchayat and the China Bidiki Gram Panchayat. It is further stated that from the date of inception of these Gram Panchayats, these three are constituted as individual Mandal Parishad Territorial Constituencies and recently elections were held for the respective constituencies and in these elections, the petitioner was elected as M.P.T.C. Member of Chinnabidiki Mandal and the certificate dated 4-7-2006 had been issued. The same was produced in the material papers. It is also stated that questioning the said bifurcation in G.O. Ms. No. 347, dated 2-6-1995, W.P. No. 11008 of 1995 was filed and this Court granted stay and ultimately the said writ petition was dismissed by order dated 13-12-1996. Thus the bifurcation had attained finality and they had been continued as independent Gram Panchayats. Because there is no elections conducted to these Gram Panchayats, they are manned by Special Officers. Basing on these circumstances recently a memo dated 16-6-2006 was issued by third respondent reserving the said Gram Panchayats as hereunder :
a. Settipalli Gram Panchayat is reserved for B.C. b. The Adavikammpalli Gram Panchayat is reserved for B.C., and c. Chinnabidiki Gram Panchayat is reserved for S.T. It is further stated that in the recent elections for MPTC also the above MPTCs were reserved for B.C., S.C, and S.Ts., respectively and the candidates were elected accordingly. It is stated that the petitioner and the public were eagerly waiting for contesting elections basing on the above reservation, but they were surprised to know recently in the last week of June that the Government had issued the present impugned G.O., whereby the bifurcation which was earlier made was set at naught by merging three Gram Panchayats into a single Gram Panchayat, i.e., Settipalli Gram Panchayat, It is stated that the respondents had not followed the instructions in bifurcating and amalgamating the Gram Panchayats as provided in G.O. Ms. Nos. 225 and 232. It was also stated that there was no representation for amalgamation into three Gram Panchayats as such the merger of these Gram Panchayats by the respondents suo motu without notice is in violation of Paras-3 and 5 of the Rules issued in G.O. Ms. No. 232, Panchayat Raj and Rural Development, dated 18-4-1995. It is also stated that no opportunity was given either before allotting particular wards in respect of women, SCs., S.Ts., B.Cs., and O.Cs., etc. It was further stated that they made enquiries relating to the situation and there was no response from the officials. It is also stated that prior bifurcation was undertaken by the Government by taking into consideration the relevant circumstances and the Rules i.e., the population is more than 1000 in respect of each Gram Panchayat and also the distance is more than 10 Kms., from the main village to the other. Settipalli Gram Panchayat is largest village in Kadapa District wherein 40% S.Ts., 30% B.Cs., 20% S.Cs., and 10% O.Cs. are residing. The entire area is forest area and the majority are illiterates. It is also further stated that when the three villages are merged together to form Gram Panchayat no notice was given to merge all the three villages as one Gram Panchayat and the public had no opportunity to make representation either to the District Collector or to the Government. Hence, the merger of three villages as one without notice or opportunity offends the principles of natural justice. Further it is stated that the distance between the villages is more than 10 miles and one Sarpanch of the Gram Panchayat cannot effectively represent all the three villages and attend to the needs of all the people in view of the distance between the villages. It was also stated that there are no valid reasons given by the authority and the Government for the merger particularly in view of the judgment of this Hon'ble Court in W.P.No. 11008 of 1995 wherein this Court had validated the bifurcation made earlier. Thus, without verifying the things and without issuing any notice to any of the Grama Sabhas, the present notification had been issued basing on the proposals of the District Collector without any reason, and the said action is violative of principles of natural justice, and also the G.O. Ms. Nos. 225 and 232, referred to supra. Certain other particulars also had been narrated relating to the hamlets and other details and a reference had been made to the 73rd Constitutional Amendment.
8. The main submission of the learned Assistant Government Pleader for Panchayat Raj is that though elections were not held to these respective Gram Panchayats from 1995 onwards, these Gram Panchayats are being manned by the Special Officers and inasmuch as Special Officers had represented the Grama Sabhas by making the required resolutions, on the strength of those resolutions, the present action had been taken by the Government and it is not a suo motu action. In G.O. Ms. No. 232, referred to supra, on the aspect of bifurcation and amalgamation further instructions issued. Clause-3 specifies that further there had been representations from the public that the Gram Panchayats have been constituted and bifurcated based on the needs of the villagers, as such the process of bifurcations and amalgamations be taken up only on the public representations but not suo motu, as envisaged in the reference Tirumalchetty Kotaiah etc. v. District Collector (Panchayat Wing), Guntur (supra), cited. Further Clause-5 specifies that the Government also consider it necessary to consider bifurcation or amalgamation only on application but not suo motu. Clause-7 specifies further to remove any doubts it is also hereby clarified that a resolution of the affected Gram Panchayats consenting to the proposed bifurcation is not necessary. It is enough if a show-cause notice, as prescribed is given to the Gram Panchayat providing an opportunity to it to state its views on the proposed bifurcation. Reliance also was placed on Rule 5 of G.O. Ms. No. 367, dated 28-8-1998 and the said rule reads as hereunder :
5. (1) The Sarpanch shall, on a requisition in writing from not less than 50 or 10% of the Members of the Gram Sabha, whichever is higher, convene a meeting of the Gram Sabha, provided the requisition specifies the day, when, and the purpose for which the meeting is to be held. The requisition to be delivered at the office of the Gram Panchayat during office hours to the Sarpanch or the Executive Officer or any other person, who may be then in charge of the office, atleast five days before the day of the proposed meeting.
(2) If the Sarpanch fails to call a meeting on the day specified therein, the meeting may be called by the members who signed the requisition on giving the notice provided for in Rule-4.
9. There cannot be any doubt or controversy that when an elected body is not there, the same would be manned by the concerned Special Officer. It is stated that inasmuch as from 1995 there are no elections at all to these respective Gram Panchayats, the resolutions were forwarded by the concerned Special Officers and in pursuance thereof, the present impugned action had been taken and hence, it is not a suo motu action. These are little democracies. The fundamental principles of democratic concept is that the views of the elected bodies are to be ascertained. The views of the Special Officer or the Executive Officer may not be of any consequence since the spirit of the Panchayat Raj institutions may have to be kept alive.
10. In Pradhan Sangh Kshetra Samiti's case (supra), the Apex Court at Para-51 observed as hereunder :
We must also make it clear that we had passed the interim order, as stated earlier, pending the decision and without prejudice to the contentions of the State Government that the election process once started could not be set at naught by raising objections on the ground that the delimitation of the panchayat areas was defective. We have pointed out that the original delimitation of the panchayat areas having been made much prior to the election notification of 31-8-1994, the respondent-writ petitioners could not have challenged the same after the said notification and the Court could not have entertained the challenge. There was, therefore, no invalidity in the action taken by the State Government by its notification of 31-8-1994 to commence the election process. We are, in these proceedings, referring to the lacuna in the steps taken by the State Government to finalise the panchayat areas only with a view to point out that it was obligatory on the State Government to hear the objections before the panchayat areas were finalized. The ratio of the decisions of this Court in Visakhapatnam Municipality v, Kandregula Nukaraja ; S.L. Kapoor v. Jagmokm , Baldev Singh v. State of H.P. , Sundarjas Kanyalal Bhatija v. Collector and Atlas Cycle Industries Ltd. v. State of Haryana 1993 Supp (2) SCC 278, requires that a reasonable opportunity for raising the objections and hearing them ought to be given in such matters since the change in the areas of the local bodies results in civil consequences. It was not disputes before us that the action of bringing more villages than one under one Gram Panchayat when they were earlier under separate Gram Panchayats, does involve civil consequences. However, as held in Visakhapatnam Municipality, S.I. Kapoor, Baldev Singh, S.K. Bhatija and Atlas Cycles cases (supra), in matters which are urgent even a post-decisional hearing is a sufficient compliance of the principle of natural justice, viz., audi alterant partem. It is in view of this position in law that the State Government had offered to hear the grievances of the writ petitioners before the High Court and before us.
11. Likewise, in Harnek Singh's case (supra), at Para 16, the Apex Court observed :
Article 243-0 of the Constitution mandates that all election disputes must be determined only by way of an election petition. This by itself may not per se bar judicial review which is the basics structure of the Constitution, but ordinarily such jurisdiction would not be exercised. There may be some cases where a writ petition would be entertained but in this case we are not concerned with the said question.
12. Now the question which may have to be decided is whether at this juncture, this Court to exercise the powers under Article 226 of the Constitution of India. It is true that this Court may have to be slow in interfering after issuance of the notification. Strong reliance was placed on the decision of the Division Bench of this Court in Tirumalchetty Kottaiah's case (supra), wherein the Division Bench while dealing with a similar case under the A.P. Gram Panchayats Act, 1964 Section 3(2) of the said Act and the powers to be exercised under Article 226 of the Constitution of India held that the notification issued by the Government bifurcating one Gram Panchayat into two or more Panchayats, appointing one Special Officer under Section 226 of the Act to two or more Panchayats, such Special Officers passing resolutions accepting merger of those Panchayats with the original Panchayat, no rules framed by the Government under Section 3(2) for effecting merger of Panchayats, the notification by the Collector merging two or more newly constituted Panchayats into one, and accepting the resolutions of Special Officers, invalid and single Special Officer for two or more Panchayats cannot be appointed under Section 226 of the aforesaid Act.
13. On a careful analysis of the principle which had been laid down by the Division Bench of this Court, this Court is satisfied that the fundamental democratic principle of ascertaining views of the concerned public of the Panchayats, especially through the elected bodies, the same had not been complied, the mere fact that Special Officer submitted certain views, the same would be against the democratic spirit.
14. Common ordinary prudent man's faith in this institution is the strength of the institution. Judicial anger should never kill judicial wisdom. Judicial family to be vigilant of the same. Serious legislative pitfalls and executive wrongs are bound to be corrected by the judiciary. Judicial error, if any, to be corrected by the judicial hierarchy. Judiciary is not concerned with the pleasure or dis-pleasure of the other wings. All are equal before Courts of Law unless there is constitutional protection or statutory exceptions, as the case may be. Judiciary may have to rise upto the occasion and if this wing fails to discharge its duties effectively, it would be a serious blow to the democratic institutions. Law is a living organism. The Courts are expected to be live and to respond to the justice aspirations of the public at large. It is needless to say that this is the beauty of the working of the system.
15. This is a typical case where it is clearly shown that the very fundamental principle of the democratic concept had been given a go bye and the amalgamation was effected without atleast giving the minimum opportunity to the concerned public. It is needless to say that the democratic principles and the concept of democracy, these are the basic structure of the Indian Constitution. When an executive wrong is brought to the notice of the constitutional Court, the same may have to be rectified. This is a case where the very constitution of the Gram Panchayats is being questioned, this would be a serious question to be considered after giving opportunity to opposite parties to file counter-affidavits in detail, at the appropriate stage, i.e., at the stage of final hearing. When such serious question, a basic question relating to the very constitution of the Gram Panchayats is raised, it would not be just and proper to permit the further proceedings to go on. There is no point in permitting the further proceedings in relation there to be proceeded with, especially in the light of the binding decision of the Division Bench of this Court, already referred to supra.
16. Viewed from any angle, even taking the prima facie case and balance convenience into consideration, this Court is satisfied that the further proceedings in relation to the elections of these Panchayats in question, cannot be proceeded with, in the peculiar facts and circumstances of the case. It is no doubt true that when certain Panchayats in a Mandal are affected, the whole Mandal ultimately would be affected and, it is stated that the Settipalli and other Gram Panchayats are in Sambepalli Mandal. It is needless to say that inasmuch as all the Gram Panchayats in relation to the reservation or otherwise of Sambepalli Mandal would be effected, it would be just and proper, in the facts and circumstances of the case, to stay the further proceedings of the elections in relation to the Gram Panchayats of Sambepalli Mandal, until further orders.
17. Inasmuch as it is stated that larger question is being argued before the concerned Division Bench, it would be appropriate to place these papers before the Hon'ble the Chief Justice, so that this matter also may be conveniently heard by the Division Bench. It is also brought to the notice of this Court that already nomination process had been commenced, in ordinary course this Court would have granted stay in relation to the concerned Gram Panchayat in question only, but however, in view of the fact that there will be chain reaction relating to the reservations and other aspects, this Court is left with no other option except to pass this order in the interest of justice and also to avoid unnecessary expenditure to the public exchequer.