Andhra HC (Pre-Telangana)
Vaddepalli Narsimulu And Others vs The Government Of Andhra Pradesh Rep., ... on 2 June, 2014
Author: Ramesh Ranganathan
Bench: Ramesh Ranganathan
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION NO.23023 OF 2013
02-06-2014
Vaddepalli Narsimulu and others .Petitioners
The Government of Andhra Pradesh rep., by Principal Secretary, Panchayat Raj &
Rural Development, A.P. Secretariat Building, Hyderabad and othersRespondent
Counsel for the petitioners: Smt. K.V. Rajasree
Counsel for respondents: GP for Municipal Admn & Urban Dev;
GP for Panchayat Raj & Rural Dev;
Sri B. Mahender Reddy
Mr. Shanthi Neelam
<GIST:
> HEAD NOTE:
?Citations:
1) (1881)17 Ch.D 746
2) (1884)9 AC 448
3) AIR 1953 SC 333
4) (1986) 1 SCC 465
5) (1996)4 SCC 76
6) (2003) 11 SCC 632
7) (1951) 2 ALL ER 587 (HL)
8) AIR 1964 Allahabad 353 (DB)
9) AIR 1959 SC 352
10)(2004) 6 SCC 59
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION NO.23023 OF 2013
ORDER:
The petitioners herein, eight in number, are aggrieved by the action of the respondents in de-notifying Polampally, Wadiaram, Redypally, Vallur, Rukmapur, Ananthasagar, Ullithimmaipally, Chinnashivnoor, Chittojipally and Karnalpally as gram panchayats vide G.O.Ms. No.304, PR & RD (Pts.IV) Department dated 29.06.2013; and the consequential order in G.O.Ms. No.300 MA & UD (Elec.I) Department dated 29.06.2013 merging these gram panchayats and in constituting them as the Chegunta Nagar Panchayat.
It is the petitioners case that there is no justification in forming the Chegunta Nagar panchayat by merging ten villages located far and wide; the merger does not satisfy the criteria stipulated in G.O.Ms. No.16 MA & UD (Elec.I) Department dated 16.01.2013; for constitution of a Nagar Panchayat, the population should be 20,000 and above; it is only to bring the population above 20,000, have the subject 10 villages been merged with Chegunta village - whose population is only 5,000 - to constitute it as a Nagar Panchayat; the other criteria i.e., market potential, economic importance, scope for industrialization are absent; as against the statutory requirement of 25%, the percentage of employment in non-agricultural activities is less than 10%; the impugned G.Os were issued with a malafide intention just three days before the notification, for the panchayat elections, was issued by the State Election Commission; the local ruling party representative, knowing fully well that the villagers were going to vote against their party sponsored candidates, had worked out a strategy to prevent elections to the subject gram panchayat; in all these villages, 95% of employment is in agricultural activity, and 50% of the population is dependent on the Mahatma Gandhi National Rural Employment Guarantee programme (MGNREGP for short) for their sustenance; the object of the 73rd Constitutional Amendment, which is to protect the gram panchayat and develop them into self sustainable units, is being subverted; the villagers would be subjected to higher taxes if these villages are merged with Chegunta Nagar Panchayat; in the absence of proper means of communication, it would be difficult for the villagers to travel to Chegunta; the Special Officers of the subject Gram panchayats, who are government servants, appear to have sent the resolution since there is no elected body; such a resolution cannot be considered as the will of the people; and the action of the officers, in sending such proposals, is arbitrary and illegal.
In the counter-affidavit filed on behalf of the 1st respondent, it is stated that the Mandal Parishad Development Officer, Chegunta had, vide proceedings 18.05.2013, submitted proposals for upgradation of Chegunta Gram Panchayat, along with the 10 surrounding Gram Panchayats, into a Nagar Panchayat; he had informed that merging Chegunta with these ten gram panchayats would satisfy the norms of population, distance, revenue and percentage of employment in non-agricultural activities; he had submitted resolutions, which the Gram Panchayats had passed in the Gram Sabhas and in the Gram Panchayat meetings, expressing their willingness to merge their Gram Panchayats for formation of a Nagar Panchayat; he had also enclosed a distance certificate certified by the Assistant Engineer; the Government, vide memo dated 17.05.2013, had called for a detailed report on the representation of the local MLA of Chegunta; proposals were submitted by the DPO, in his letter dated 18.05.2013, to the District Collector; the District Collector, in turn, submitted his report to the Government on 20.05.2013; the criteria, for constitution of Chegunta Nagar Panchayat, is fully satisfied; the requirements of market potential, income importance, and scope for industrialization are fulfilled; more than 25 industries are functioning, to their full potential, in various sectors such as paper mills, railway infrastructure companies, steel industries, mineral ore processing industries etc; they are providing more than 30% employment to the inhabitants of Chegunta Nagar Panchayat; the distance from the outer periphery of Chegunta village to the other ten merged villages is less than 3km, and has been so certified by the Assistant Executive Engineer, Panchayat Raj Department, Chegunta Mandal; the entire Nagar Panchayat is divided into 20 council wards, and all of them are well connected with black top roads; the sanitary conditions of all the roads, and the drains adjacent thereto, are excellent; more than 50 trade licenses have been issued to various business establishments; it is not correct to state that the percentage of employment, in non-agricultural activities, is less than 10%; it is more than 50%, well above the prescribed criteria of 25% for constitution of a Nagar Panchayat; the contention, that the merger was without considering either the will of the people or their objections, is not correct; gram sabhas were conducted in all the 10 gram panchayats which are sought to be merged with Chegunta Gram Panchayat to constitute a Nagar Panchayat; all the members of the Gram sabhas gave their consent; and they, overwhelmingly, supported the resolution to form the gram panchayat into a Nagar Panchayat. The counter affidavit contains a tabular statement of the criteria prescribed in G.O.Ms. No.16 dated 16.01.2013, and its compliance in the constitution of Chegunta Nagar Panchayat, including those stipulated under Section 2(42-a) of the A.P. Municipalities Act, 1965. It is also stated that Chegunta Nagar Panchayat is just about 60 km from Hyderabad the state capital; an area of upto 50 km from Hyderabad has been notified as falling within the limits of Hyderabad Metropolitan Development Authority; the Chegunta Nagar Panchayats is located around 20 km from HMDA limits; and the entire land limits, in the Nagar Panchayat, are acquiring urban characteristics. The counter-affidavit furnishes details of the distance from the periphery of the outer habitation of Chegunta Gram Panchayat to the outer periphery of the habitation of the merged villages which varies from 0.5 kms to 2.9 kms. According to the 1st respondent the distance criteria is also satisfied, since G.O.Ms. No.16 requires the distance not to be more than 3 kms from the periphery of the outer habitation of the Gram Panchayat; Rule 10 of the Rules, notified in G.O.Ms. No.542 dated 03.12.2007, enables the affected Gram Panchayat to file a revision before the Government, through the Commissioner, within fifteen days from the date of orders of de-notification; in the instant case all the 11 gram panchayats have passed resolutions, after conducting gram sabhas, in favour of constitution of the Chegunta Nagar Panchayat; the Government had issued G.O.Ms. No.304 dated 29.06.2013 denotifying 11 Gram Panchayats of Chegunta Mandal for constituting them into Chegunta Nagar Panchayat; thereafter G.O.Ms. No.1188 dated 26.07.2013 was issued appointing a Municipal Commissioner; all the erstwhile gram panchayats have handed over their records to the Municipal Commissioner on 29.07.2013; since then, the entire administration is under the control of the 5th respondent; and no interference is, therefore, called for.
In the counter-affidavit, filed on behalf of the 2nd respondent, it is stated that the population of Chegunta Nagar Panchayat is 22, 162; it is fully qualified to be a Nagar Panchayat in terms of G.O.Ms. No.16 dated 16.01.2013 whereunder the criteria of population for constitution of a Nagar Panchayat, as per the last census, is between 20,000 and 40,000; the market potential, income importance and scope for industrialization criteria are also satisfied; 25 industries are functioning therein; the distance from the outer periphery of Chegunta village to the other merged villages is less than 3 kms; and constitution of the Chegunta Nagar Panchayat fully satisfies all the requirements of Section 2(42-a) of the A.P. Municipalities Act, and G.O.Ms. No.16 dated 16.01.2013, such as population of the area, density of population, revenue, percentage of employment in non-agricultural activities, economic importance, and other factors such as the local area acquiring urban characteristics. The counter affidavit contains a table wherein details are furnished regarding the manner in which these parameters are satisfied. It is further stated that the apprehension of the petitioners, that their sustenance would be in danger, is misplaced; since the distance is less, and the main village is well connected by well developed BT roads, the inhabitants can easily travel to the office of Chegunta Nagar Panchayat for redressal of their grievances; and all the ten gram panchayats and gram sabhas had resolved to merge the respective gram panchayats with the Chegunta Nagar Panchayat.
In the counter-affidavit, filed on behalf of respondents 6 and 7, it is stated that respondents 1 to 4 had followed the prescribed procedure under the provisions of the A.P. Municipalities Act and the A.P. Panchayat Raj Act and the Rules made thereunder; G.O.Ms.No.304 dated 29.06.2013 and G.O.Ms.No.300 dated 29.06.2013 were issued merging the subject gram panchayats for formation of Chegunta Nagara Panchayat; the petitioners lack locus standi to question the notifications issued by respondents 1 and 2, in denotifying the subject gram panchayats, for the purpose of formation of Chegunta Gram panchayat as a Nagar Panchayat; Chegunta Gram Panchayat has attained the character of an urban agglomeration; it has also fulfilled the criteria laid down under G.O.Ms.No.16 dated 16.01.2013; geographically, Chegunta is surrounded by 10 villages within a distance of 2 to 3 K.Ms; the urban agglomeration of Chegunta has drastically increased; increase in demand, and problems attendant thereto, cannot be met locally by these small gram panchayats; these demands must be tackled in an integrated manner with proper planning in terms of available resources; the transitional area of Chegunta Nagar Panchayat has a population of 22,162 which is more than the stipulated minimum population under the impugned G.Os; the Government has the power to denotify the villages for the purpose of formation of Chegunta Nagar Panchayat; the ex-Sarpanch of Wadiaram village and other villages had submitted a number of representations to the District Collector, and to the Local M.L.A, requesting that Chegunta Gram Panchayat be upgraded as a Municipality by merging the surrounding villages which are situated at a distance of 2 to 3 K.Ms from Chegunta; acting on their representations, the Government had initiated action; all the gram panchayats were duly informed about the decision to form a Nagar Panchayat; in accordance with the above proposals, gram sabhas were conducted on 16.03.2013 in all the villages; it was unanimously resolved to merge all the subject villages into the proposed Chegunta Nagar Panchayat; the petitioners failed to oppose the overwhelming public opinion in the gram sabhas; they are now trying to stall the proceedings on one pretext or the other; all the villages have conducted gram sabhas, and have passed unanimous resolutions for merger of these villages into the Chegunta Nagar Panchayat; there is no necessity for the Government to issue any notice calling for objections from the respective gram panchayats; the petitioners are not persons aggrieved, and cannot question the resolutions passed by the respective gram panchayats, or the decision taken by respondents 1 and 2 in issuing the impugned G.Os; it is only the affected gram panchayats which can claim to be aggrieved, and which are entitled to file an appropriate petition; if individuals are allowed to question the policy decision of the State government, administration of the villages would be brought to a grinding halt; individual interests cannot have overriding effect over larger public interest; Chegunta Gram Panchayat has an annual income of Rs.28,16,922/-; all the gram panchayats, which were merged with Chegunta Nagar Panchayat, are located at a distance of 70 to 80 K.Ms. from the centre of Hyderabad; more than 50% of the land, located in these villages, has developed commercially for the purposes of real estate; the allegation that 95% of the population is involved in agricultural activity, and 50% of the population is dependent on MGNREGS is false, and has been invented only for the purposes of this Writ Petition; policy decisions of the Government do not necessitate interference in proceedings under Article 226 of the Constitution of India; the allegation that the impugned G.Os. were issued at the instance of a political party is false; these G.Os. were issued pursuant to the representations and resolutions passed by the subject Gram Panchayats; the petitioners have filed this Writ Petition with mala fide intentions, and for political gain; none of them are engaged under the MGNREGS; no right, much less the fundamental rights, of the petitioners have been violated; and they are, therefore, not entitled to invoke the extra-ordinary jurisdiction of this Court, under Article 226 of the Constitution of India, to declare the policy decision of the State Government as illegal and arbitrary.
In their reply affidavit, the petitioners state that all the villagers of the gram panchayats, which were merged to form the Chegunta Nagar Panchayat, are affected persons and have locus standi to challenge the impugned G.Os; constitution of Chegunta Nagar Panchayat is illegal; the distance certificate, furnished for these villages, is incorrect; the distance certificate issued by the Roads and Buildings Department dated 12.07.2013, in respect of Rukmapur village, shows the distance between Rukmapur and Chegunta as 6 K.Ms.; curiously the Assistant Engineer, Mandal Praja Parishad, Chegunta Mandal now claims that the distance is only 2.9 K.Ms; the distances have been shown as less than 3 K.Ms only to bring it within the limits prescribed under the Rules; the distance cannot be measured from the outer periphery of Chegunta to the outer periphery of the other gram panchayats; the rules require only the centre of the village to be taken; no gram sabhas were conducted; the villagers were never informed of any proposal to convene a special meeting of the gram sabha; they did not give their support or consent for merger of their villages into Chegunta Nagar Panchayat; from the counter-affidavit it is evident that an officer, by name Sri M. Jaipal Reddy, claims to have conducted gram sabhas in six villages at the same date and at the same time i.e. 16.03.2013 at 11.00 A.M; likewise another officer, by name Sri B. Mahipal, is stated to have conducted gram sabhas in Chittojipally and Rukhmapur villages at 11.00 A.M. on 16.03.2013; yet another officer, by name Sri P. Chaitanya, is said to have conducted gram sabhas in Chinna Shivanoor and Karnalpally at 11.00 A.M. on 16.03.2013; it is impossible for one officer to conduct a gram sabha in more than one village on the same date and at the same time; this itself shows that the gram sabhas were never conducted; there is no justification in merging 11 gram panchayats together to constitute a Nagar Panchayat; even if one or two gram panchayats are excluded, the statutory requirement of the population criteria would not be satisfied; while Chegunta, which is 60 K.Ms. away from Hyderabad has been constituted as a Nagar Panchayat, major towns such as Toopran with a population of more than 15,000 and located at a distance of 40 K.Ms on the same highway, and Narsapur with a population of nearly 30,000 and at a distance of 40 K.Ms from Hyderabad, have not been constituted as a Nagar Panchayat; Chegunta Nagar Panchayat has been constituted only to satisfy the wishes of the ruling party local M.L.A; the statutory requirements have not been complied with; the jurisdiction of this Court under Article 226 of the Constitution of India can always be invoked by citizens, and it is not necessary that one should file a revision before the Government through the Commissioner; the local villagers were never consulted; and the whole exercise was carried out by officials under the dictates of the local public representative.
Part IX of the Constitution of India relates to Panchayats. Article 243(d) thereunder defines a panchayat to mean an institution (by whatever name called) of self-government constituted under Article 243-B for the rural areas. Article 243B(1) stipulates that there shall be constituted, in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of Part IX of the Constitution. Article 243E(1) stipulates that every panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. Chapter-I of Part-II of the Andhra Pradesh Panchayat Raj Act, 1994 (hereinafter called the 1994 Act) relates to the constitution, administration and control of gram panchayats. Section 3 thereunder relates to declaration of a village for the purposes of the 1994 Act. Section 3(1) enables the Government, by notification and in accordance with the rules made in this behalf, to declare a revenue village, or hamlet thereof or any part of a Mandal, to be a village for the purposes of the Act, and to specify the name of the village. Section 3(2)(f) enables the Government, by notification and in accordance with such rules as may be prescribed in this behalf, to cancel a notification issued under sub- section (1).
Part IX-A of the Constitution of India relates to Municipalities. Article 243P(e) thereunder provides that, in this Part unless the context otherwise requires, a municipality shall means an institution of self-government constituted under Article 243-Q. Article 243-Q(1)(a) stipulates that there shall be constituted, in every State, a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area. Article 243Q(2) stipulates that, in this Article, a transitional area shall mean such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of Part IX-A of the Constitution. Section 2(42-a) of the Andhra Pradesh Municipalities Act, 1965 (hereinafter called the 1965 Act), defines a transitional area or a smaller urban area to mean such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purpose of the Act, subject to such rules as may be made in this behalf.
Section 2-A of the 1965 Act relates to constitution of Nagar Panchayats and, under sub-section (1) thereof, where an area is specified as a transitional area under Section 2(42-a), a Nagar Panchayat shall be deemed to have been constituted for such a transitional area. Under sub-section (2), the provisions of the 1965 Act shall apply to a Nagar Panchayat deemed to have been constituted under Section 2-A as they apply to a municipality; and to facilitate such application a Nagar Panchayat shall be deemed to be a Municipality. The word deemed is used a great deal in modern legislation. Sometimes it is used to impose, for the purposes of a statute, an artificial construction of a word or phrase that would not otherwise prevail. When a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to. After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion and to that end it would be proper and even necessary to assume all those facts on which alone the fiction can operate, (Levy, Re, ex p Walton ; Hill v. East and West India Dock Co. State of Travancore Cochin v. Shanmugha Vilas Cashewnut Factory ; American Home Products Corpn. v. Mac Laboratories (P) Ltd. ; Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi ; and Ali M.K. v. State of Kerala ), for if you are bidden to treat an imaginary state of affairs as real you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had, in fact, existed must inevitably have flowed from or accompanied it and having done so, you must not cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. (East End Dwellings Co. Ltd. v. Finsbury Borough Council ). The legal fiction requires legislative authority, and cannot be indulged in by the Court without it. (Sheikh Ghulam Maula v. State of U.P. ). It is a well settled rule of interpretation that, in construing the scope of a legal fiction, it would be proper and even necessary to assume all those facts on which alone the fiction can operate. (Commissioner of Income Tax, Delhi v. S. Teja Singh ). The court must ascertain the purpose for which the fiction is created and, having done so, must assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. (State of W.B. v. Sadan K. Bormal ). In view of the deeming provision, in sub-sections (1) and (2) of Section 2-A, as soon as an area is specified as transitional area under Section 2(42-a), a Nagar Panchayat is deemed to have come into existence in such an area, and the said Nagar Panchayat must be deemed to be a municipality for the purposes of the 1965 Act.
Section 326 of the 1965 Act confers power on the Government to make rules and, under sub-section (1) thereof, the Government may, by notification in the A.P. Gazette, make rules for carrying out all or any of the purposes of the Act. Section 326(2)(a) enables the Government to make rules with reference to all matters expressly required or allowed by the Act to be prescribed by rules. As noted hereinabove, Section 2(42-a) enables the Government to specify an area as a transitional area subject to such rules as may be made in this behalf. In the exercise of the powers conferred by Section 326 r/w.2(42-a) of the 1965 Act, and in supersession of the rules issued in G.O.Ms. No.39, Municipal Administration and Urban Development Department dated 03.02.1995, the Andhra Pradesh Transitional Area and Smaller Urban Areas (Fixation of Criteria) Rules, 2013, (hereinafter called the 2013 Rules) were made and notified in G.O.Ms.No.16 dated 16.01.2013 for fixing the criteria for a transitional area and a smaller urban area. Rule 2 of the 2013 Rules stipulates the criteria for constitution of a Nagar Panchayat and, thereunder, an area may be notified as a transitional area (Nagar Panchayat) under Section 2(42-a) of the 1965 Act, if the following criteria is satisfied:
(a) Population (as per : 20,000 to 40,000
Last Census)
(b) Density of population 400
per Sq. Km.
[c] Revenue : Rs.40.00 Lakhs
Provided that local area with a
lesser income may also be
considered if it has acquired
urban characteristics.
(d) Percentage of employment : 25%
in Non-agricultural
activities.
Provided that a local area with
a lesser percentage of
employment in Non-
agricultural activities may
also be considered if it is not
more than 20 Kms away from
a Municipality (District Head
Quarter) or Municipal
Corporation.
(e) Economic importance : Availability of market facilities
and potentialities to attract
Industries.
(f) Other factors : Local area acquiring Urban
Characteristics.
Under the proviso to Rule 2 whenever a main urbanized gram panchayat is proposed to be constituted as a Nagar Panchayat, with the merger of other surrounding villages of the gram panchayat, such villages shall fulfill the following criteria:
The proposed villages, going to be merged, shall not be more than 3 K.Ms. from the periphery or outer habitation of the main gram panchayat to the outer periphery of the habitation of villages.
The requirement of the proviso to Rule 2 is that the distance between the main gram panchayat, and the to be merged gram panchayats, shall not be more than 3 K.Ms. from the periphery of the outer habitation of the main gram panchayat to the out periphery of the habitation of the to be merged gram panchayats. The contention of Sri S.Satyam Reddy, Learned Senior Counsel appearing on behalf of the petitioners, that the outer periphery cannot be taken as the basis for measuring the distance does not, therefore, merit acceptance. It is also evident from the counter- affidavits filed by the official respondents, and the tabular statement therein, that the criteria stipulated in clauses (a) to (f) of Rule 2 of the 2013 Rules are fulfilled in constituting these gram panchayats/villagers as a Nagar Panchayat.
Whether a gram panchayat should be denotified as such, and whether it should be constituted as a Nagar Panchayat, are matters in the executive realm and this Court would not take upon itself the task of examining the wisdom or otherwise of such executive decisions - save resultant constitutional and statutory violations. While Part-IX and Part-IX-A of the Constitution of India place emphasis on establishing and promoting local bodies as self- sustainable institutions of self-Government, they do not disable a gram panchayat from being constituted as a Nagar Panchayat provided the statutory provisions in this regard both plenary and subordinate are satisfied.
In the exercise of the powers conferred by sub-sections (1) & (2) of Section 3 r/w. Section 268(1) of the 1994 Act, the Andhra Pradesh Gram Panchayats (Declaration of villages) Rules, 2007, were made and notified in G.O.Ms.No.542 dated 03.12.2007 (hereinafter called the 2007 Rules). Under Rule 9 thereof, where it becomes necessary to take action under Section 3 (2) of the Act to exclude from a village any local area or include in a village any local area or unite two or more villages or parts of villages or to alter the boundaries of any village 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 a 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. Under the proviso thereto, 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 a Special Officer shall be given the aforesaid opportunity to 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 a special meeting convened for the purpose.
It is not in dispute that Special Officers were appointed, in all the subject villages, to exercise the powers and perform the functions of the gram panchayats and its Sarpanches. If the provisions of Rule 9 of the 2007 Rules were attracted, the concerned Special Officers would have been entitled to submit their representations, within ten days of receipt of the show-cause notice issued by the Government, as to why a notification should not be issued under Section 3(2) of the Act. The pre-requisite, for the exercise of the right of the Special Officer to submit a representation on behalf of the gram panchayat, is the stipulation of taking into consideration the views expressed by the members of the Gram Sabha at a special meeting convened for the said purpose.
The assertion in the counter-affidavits of the official respondents that Gram Sabhas were held, in all the merged villages, on 16.03.2013 at 11.00 hours does not appear to be true as the respective Special Officers could not have been physically present in different villages on the same date and at the same time. I find considerable force in the submission of Sri S. Satyam Reddy, Learned Senior Counsel appearing on behalf of the petitioners, that the Special Officers appear to have submitted their representation to the Government without convening a special meeting of the Gram Sabha much less taking into consideration the views expressed by the members therein, as it would be physically impossible for one Special Officer to be present at more than one Gram Sabha, all of which are said to have been convened in different villages on the same date and at the same time. The fact, however, remains that Rule 9 is applicable only where a local area is excluded from one village and included in another; or where two or more villages or parts of villages are united; or where the boundaries of any village are altered; or the name of any village is altered in accordance with Section 3(2)(a) to (e) of the 1994 Act. Rule 9 of the 2007 Rules has no application to cases where Section 3(2)(f) of the 1994 Act is attracted. In the present case the notification issued earlier under Section 3(1), constituting the subject villages as Gram Panchayats, has been cancelled by the Government, by way of G.O.Ms. No.No.304 dated 29.06.2013, in the exercise of its powers under Section 3(2)(f) of the Act. The procedure prescribed for the exercise of powers conferred under Section 3(2)(f) of the Act, to cancel the notification issued earlier under Section 3(1) of the 1994 Act, is stipulated under Rule 12 of the 2007 Rules. Rule 12(1)(i) of the 2007 Rules enables the Government to cancel a notification issued earlier under Section 3(i) of the 1994 Act, in the exercise of its powers under Section 3(2)
(f) of the said Act, where it proposes to constitute a municipality. It is necessary to note that G.O.Ms. No.300, Municipal Administration and Urban Development Department dated 29.06.2013 was issued, in the exercise of the powers conferred by Section 2(42-a) of the 1965 Act r/w.Rule 2 of the 2013 Rules specifying the areas, covered under the erstwhile Chegunta and ten other gram panchayats, as the Chegunta Transitional Area (Nagar Panchayat) with immediate effect. As a result, Chegunta Nagar Panchayat must be deemed to have been constituted under sub-section (1) of Section 2 of the 1965 Act. As a Nagar Panchayat is deemed to be a municipality, under Section 2-A(2) of the 1965 Act, the proposal, to cancel the earlier notification constituting a gram panchayat, is only to constitute a municipality.
Rule 12(2) of the 2007 Rules requires the Government, before issuing a notification under Section 3(2)(f) of the Act, to give the gram panchayat, which will be affected by such a notification being issued, an opportunity to show-cause against the proposal; to permit it to submit a representation, if any, within a period of ten days from the date of receipt of the show-cause notice; and to consider the objections, if any, of the said gram panchayat. Under the proviso to Rule 12(2), if no reply is received from the gram panchayat, to the show-cause notice, within the period specified, the Government is empowered to pass such orders as it deems fit to give effect to the said proposal.
Unlike the proviso to Rule 9 of the 2007 Rules, which enables a Special Officer to submit a representation only after taking into consideration the views expressed by the members of the Gram Sabha at a special meeting convened for the said purpose, Rule 12(2) of the 2007 Rules does not require either a special meeting of the Gram Sabha to be convened or for the views of the members expressed in the Gram Sabha to be taken into consideration, by the Special Officer before submitting his representation in reply to the show cause notice issued by the Government. As they have been appointed, to exercise the powers and perform the functions of the subject gram panchayats and its sarpanches, it is the Special Officers who are entitled to submit representations, on behalf of the gram panchayats, in reply to the show-cause notices issued by the Government, under Rule 12(2) of the 2007 Rules, proposing to cancel the notification issued earlier under Section 3(1) of the 1994 Act, in the exercise of its powers under Section 3(2)(f) thereof. In terms of the proviso to Rule 12(2), if no reply is submitted to the show-cause notice within a period of ten days from the date of its receipt, the Government is empowered to pass such orders as it deems fit. It is not even the petitioners case that the Special Officers of the concerned gram panchayats have objected to the merger of these eleven gram panchayats, and in constituting them as a Nagar Panchayat. While it would, undoubtedly, have been desirable for an elected gram panchayat to have expressed its views on whether or not the gram panchayats should be merged in order to constitute a Nagar Panchayat, the question, whether or not the Government should have waited for an elected body of the Gram Panchayat to be constituted before making the proposal to de-notify the Gram Panchayats and constitute them as Nagar panchayats, is not a matter for examination by this Court in proceedings under Article 226 of the Constitution of India. Whether and which gram panchayats should be denotified, merged and constituted as a Nagar Panchayat are again matters in the executive realm and it would be wholly inappropriate for this Court to undertake the task of determining whether some other gram panchayats should have been denotified and constituted as Nagar Panchayats before the subject gram panchayats were so constituted. No statutory provision plenary or subordinate has been brought to the notice of this Court which requires the Government to issue a show- cause notice, under Rule 12(2) of the Rules, only to the elected body of a gram panchayat; and not to the Special Officers, appointed for such gram panchayats, in the place of the elected body. It is evident, therefore, that the requirement of Rule 12 of the 2007 Rules has not been violated by the respondents in issuing the impugned notification, under Section 3(2)(f) of the 1994 Act, to cancel the notifications issued earlier constituting them as gram Panchayats so that they can, thereafter, be constituted as a Municipality (Nagar panchayat). The statutory provisions, either under the 1994 Act and the 2007 Rules or the 1965 Act and the 2013 Rules, have not been violated in issuing the impugned G.O.Ms. No.304 dated 29.06.2013 or G.O.Ms. No.300 dated 29.06.2013 respectively.
The Writ Petition fails and is, accordingly, dismissed. The miscellaneous petitions, if any pending, are also dismissed. No costs.
_______________________________ (RAMESH RANGANATHAN, J) Date: 02.06.2014