Andhra Pradesh High Court - Amravati
T Subbarami Reddy vs State Of Andhra Pradesh on 24 December, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Writ Petition No.20983 of 2019
ORDER:
This petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, questioning the impugned General Body Resolution of the 7th respondent Vallur Gram Panchayat, dated 04-12-2019 for bifurcation of Gangayapalli hamlet, from 7th respondent Vallur Gram Panchayat, and declare the same as contrary to the expression/desire of the majority Grama Sabha members present, consequently set aside the same with a direction to the respondents to strictly follow the G.O.Ms.No.542, Panchayat Raj & Development, dated 03-12-2007.
The petitioners are members and the residents of the Vallur Gram Panchayat and its hamlets which constituted as major Gram Panchayat and has become one of the good Gram Panchayat with all facilities being provided from the main village of Vallur. While the matter stood thus, due to political reasons the respondents are taking steps to divide Vallur Gram Panchayat into two Gram Panchayats i.e., Vallur and Gangayapalli by way of bifurcation though same is not viable and do not meet the mandatory requirements envisaged under G.O.Ms.No.542, Panchayat Raj & Development, dated 03-12-2007.
In pursuance of the above, the 7th and 8th respondents conducted Grama Sabha of Vallur Gram Panchayat on 04-12-2019 and majority members i.e., 96 members expressed that Vallur Gram Panchayat should not be bifurcated into two Gram Panchayats i.e., Vallur and Gangayapalli, whereas minority members i.e., 33 members only accepted for bifurcation. Though -2- majority members have expressed/desired against bifurcation, in the last three lines of the resolution, it is illegally stated that as Vallur Village and Gangayapalli Hamlet are divided by SH-31 and NH716 and it was agreed for bifurcation. Therefore, the resolution recommending to constitute Gangayapalli Panchayat separating from Vallur Panchayat is illegal, arbitrary and requested to set aside the same.
During hearing, learned counsel for petitioner while drawing the attention of this Court to the contents of resolution under challenge, drawn the attention of this Court to Clause 8 of the G.O.Ms.No.542, Panchayat Raj & Development, dated 03-12-2007 to contend that the purport of the resolution was contrary to Rule 8 of the said G.O., and when majority members of Gram Panchayat were against passing such resolution based minority members opinion, as illegal and contrary to Clause 8 of G.O.Ms.No.542, Panchayat Raj & Development, dated 03-12-2007 and requested to set aside the same.
Whereas the learned Standing Counsel for Gram Panchayats and the learned Government Pleader for Panchayat Raj Department in one voice stated that an appeal under Section 246 is provided against the resolution passed by the Gram Panchayat or Grama Sabha and the petitioner cannot directly approach this Court invoking Article 226 of the Constitution of India and requested to dismiss the petition.
It is no doubt true that a resolution was passed on 04-12- 2019 in Grama Sabha, which is impugned in this Writ Petition and the contents of the resolution would show that majority of members i.e., 93 members of Grama Sabha are not in favour of -3- bifurcation of Gangayapalli Gram Panchayat from Vallur Grama Panchayat. Only 33 members are in favour of separation or bifurcation of Gangayapalli Panchayat from Vallur Gram Panchayat. A resolution is passed taking a decision that it is convenient to separate the same on account of such hurriedness.
According to clause 8 of G.O.Ms.No.542, Panchayat Raj & Development, dated 03-12-2007, subject to the provisions contained in the Act and these rules therein, where a Gram Panchayat passes an unanimous resolution that local area shall not be excluded from or included in a village, the Government, if satisfied that such resolution is not vitiated by any irregularity, impropriety or illegality shall not, except for special reasons to be recorded in writing, exclude from or include in that village any such area.
Therefore, there must be an unanimous resolution of the Gram Sabha either for bifurcation or inclusion of any area in the Village. Section 3(1) and (2) of Gram Panchayat Act are relevant to real controversy between the parties.
3. Declaration of a village for the purposes of this Act:-
(1) The 11[Government] may, by notification and in accordance with the rules made 12[* * *] in this behalf, declare any revenue village or hamlet thereof or any part of a mandal to be a village for the purpose of this Act and specify the name of the village.
Explanation: For the purposes of this sub-section the expressions `mandal' and `revenue village' shall mean respectively any local area which is recognised as a mandal or village in the revenue accounts of Government after excluding therefrom the area, if any, included in -
(a) a municipal corporation governed by the relevant law relating to Municipal Corporations for the time being in force in the State; -4-
(b) a municipality governed by the law relating to Municipalities for the time being in force in the State;
(c) a mining settlement governed by the Andhra Pradesh (Telangana Area) Mining Settlements Act, 1956;
(d) a cantonment governed by the Cantonments Act, 1924. (2) The 13[Government] may, by notification and in accordance with such rules as may be prescribed in this behalf - (a) form a new village by separation of local area from any village or by uniting two or more villages or parts of villages or by uniting any local area to a part of any village: 14 [Provided that the Government shall take into consideration the financial viability of the Gram Panchayat, to be newly created before bifurcation of the said Gram Panchayat, for the purpose.
The prime requirement for separation or inclusion of any area in Gram Panchayat to exercise jurisdiction over any local area, and the discharge of the liabilities of the Gram Panchayat relating to such property or arising from such local area. An order made under this sub-section may contain such supplemental, incidental and consequential provisions as the Commissioner may deem necessary, and in particular may direct -
(i) that any tax, fee or other sum due to the Gram Panchayat or where a Gram Panchayat has ceased to exercise jurisdiction over any local area, such tax, fee, or other sum due to the Gram Panchayat as relates to that area, shall be payable to such authorities as may be specified in the order; and
(ii) that appeals, petitions, or other applications with reference to any such tax, fee or sum which are pending on the date on which the Gram Panchayat ceased to exist or, as the case may be, on the date on which the Gram Panchayat ceased to exercise jurisdiction over the local area, shall be disposed of by such authorities as may be specified in the order.-5-
But, in the present case the only reason assigned for separation of Gram Panchayat from Village Panchayat is separation by SH 13 and NH 17 not otherwise. On the other hand, a unanimous resolution is required under Clause 8 of the said G.O. But, no such unanimous resolution was passed for bifurcation of Gangayapalli Village from Village Panchayat Vallur. Therefore, the resolution passed by the Gram Sabha is not only contrary to Clause 8 of said G.O., but also contrary to Section 3(2) of Andhra Pradesh Panchayat Raj Act. Therefore, the resolution passed for separation of Gangayapalli Village from Vallur Panchyat is contrary to the provisions of the Panchayat Raj Act and also Rule 8 of said G.O. On this ground alone the resolution is liable to be set aside.
On the other hand the contention raised by the learned counsel for respondents is that when a remedy by way of appeal is available under Section 3(2) of Act, the petitioners can approach to the Government against the decision or resolution passed by the Gram Sabha. Section 246 of the Andhra Pradesh Panchayat Raj Act, 1994 deals with power to cancel or suspend resolution of a Gram Panchayat, Mandal Parishad or Zilla Parishad (1) The Government may either suo moto or on a reference made to them by the Executive Officer or Mandal Parishad Development Officer or as the case may be, the Chief Executive Officer, in the manner prescribed by order in writing cancel any resolution passed by a Gram Panchayat, Mandal Parishad or a Zilla Parishad or any standing Committee of a Zilla Parishad if in their opinion such resolution, (a) is not legally passed, or (b) is in excess or abuse of the powers conferred by or under this Act, or any other law; or (c) -6- on its execution is likely to cause danger to human life, health or safety or is likely to lead to a riot or affray. (2) The Government shall, before taking action under sub-section (1), give the Gram Panchayat, Mandal Parishad or the Zilla Parishad as the case may be, an opportunity for explanation. (3) If in the opinion of the District Collector, immediate action is necessary to suspend a resolution on any of the grounds referred to in clause (c) of sub- section (1), he may make a report to the Government and the Government may, by order in writing, suspend the resolution.
Therefore, It is clear from the Section 246 that an appeal lies to the Government such appeal can be taken by the Government itself suomotu or on the reference by Executive Officer or Mandal Parishad Development Officer, but a private individual cannot approach the Government invoking Section 246 by filing an appeal against the decision taken by Gram Sabha, the learned counsel for petitioner has drawn the attention to the judgment of this Court in W.P.No.20163 of 2019 where this Court permitted the parties to prefer an appeal, but it is only a consent order and it is only an order withdrawing the Writ Petition with a liberty to approach the Government under Section 246 and this Order will not have a presidential value to pass similar order as the said Writ Petition was withdrawn with a liberty to appeal under Section 246 of the Act.
Therefore, in view of remedy available under Section 246 of the Act to the Government or to the Executive Officer or Mandal Parishad Development Officer. Thus, the petitioner cannot exercise such remedy to approach the Government as a private individual, as per Section 246 of the Act approach the Government to file -7- appeal against the decision taken by the Gram Sabha. Therefore, no appeal is permitted against the decision of Gram Sabha to the Government by a private individual. Hence, I find no remedy of appeal is available to this petitioner. On this ground alone, the petition cannot be dismissed, since the decision taken by Gram Sabha is contrary to the Rule 8 of G.O.Ms.No.542, Panchayat Raj & Development, dated 03-12-2007 and Clause 3(2) of A.P. Act, consequently, the resolution is liable to be set aside.
In the result, this Writ Petition is allowed declaring the resolution of Gram Sabha as illegal and arbitray, and consequently set aside the same. However, this order will not preclude the Gram Sabha to take decision in accordance with G.O.Ms.No.542, Panchayat Raj & Development, dated 03-12-2007.
Consequently, miscellaneous petitions pending, if any, shall also stand closed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 24-12-2019 Note: Furnish CC by 20-01-2020.
B/o.
IS -8- THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY Writ Petition No.20983 of 2019 Date: 24-12-2019 Note: Furnish CC by 20-01-2020.
B/o.
IS