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2002 DIGILAW 140 (AP)

T. v. NAGENDRAM VS Government Of A. P. , PANCHAYAT RAJ DEPT.

2002-02-04

N.V.RAMANA

body2002
N. V. RAMANA, J. ( 1 ) THE three writ petitioners filed this writ petition seeking a writ, order or direction calling for the records relating to the order made by the first respondent in G. O. Rt. No. 816, dated 20-6-1997 for implementation of the order in G. O. Rt. No. 817, Panchayat raj and Rural Development and Relief (Pts. IV) Department dated 31-5-1995 and quash the same as arbitrary and unjust and contrary to the A. P. Gram Panchayats (Declaration of Villages) Rules, 1994 and the g. Os. issued by the Government from time to time and contrary to the directions issued by this Court on 28-9-1995 in Writ Petition no. 10957 of 1995. ( 2 ) PETITIONERS are the members of Athota Gram Panchayat, which is a major Gram panchayat with an yearly income of about rs. 1,00,000/ -. The population of the said athota Gram Panchayat is about 5,600 with an electorate of 4,300. The Gram Panchayat consists of three villages, viz. , Athota, yadavapalem @ Gollapalem, and harijanawada. The Gram Panchayat which is located at Athota is at equi distance from gollapalem and Harijanawada, the distance being 1. 5 Kms. The petitioners state that the 5th respondent and others made an application to the District Collector, guntur/2nd respondent seeking deletion of gollapalem and Harijanawada from Athota gram Panchayat and for constitution of a separate Gram Panchayat at Gollapalem. The District Collector, refused to bifurcate athota Gram Panchayat as requested in the said application by his order in Roc. N0. 14833/94-G1 dated 24-4-1995, on the ground that the distance between the areas to be bifurcated is only 1. 5 Kms. and it would be violative of Rule 6 of the A. P. Gram Panchayats (Declaration of Villages) rules, 1994 and also the various G. Os. issued by the Government from time to time. Challenging the said order, the 5th respondent filed a revision before the respondent-Government. Considering the revision, the Government issued G. O. Rt. No. 817, Panchayat Raj and Rural development (Pts. IV) Department dated 31-5-1995, bifurcating the Athota Gram panchayat and constituting a separate Gram panchayat at Gollapalem. According to the petitioners, before passing the orders on the revision, no prior notice was issued to the gram Panchayat, Athota and no reasons were given in the said G. O. with regard to the necessity for bifurcating the Gram panchayat. Petitioners filed Writ Petition no. According to the petitioners, before passing the orders on the revision, no prior notice was issued to the gram Panchayat, Athota and no reasons were given in the said G. O. with regard to the necessity for bifurcating the Gram panchayat. Petitioners filed Writ Petition no. 10957 of 1995 in this court challenging g. O. Rt. No. 817, dated 31-5-1995 and this court admitted the above writ petition and suspended the operation of G. O. Rt. No. 817. In the said writ petition 5th respondent filed counter enclosing a certificate issued by the deputy Executive Engineer, Panchayat Raj, emani, certifying that the distance between athota village and Yadavapalem is 2 to 2. 5 kms. Petitioners submit that the certificate issued by the Dy. Executive Engineer cannot be relied upon for any purpose. Along with the said counter, the 5th respondent also filed two resolutions said to have been passed by the Members of the Gram panchayat. Petitioners submit that the said resolutions were clandestinely passed without the knowledge of the members of the Gram Panchayat. This Court by order dated 28-9-1995 disposed of Writ Petition no. 10957 of 1995 directing the petitioners to file objections within 30 days from the date of receipt of the order before the authorities concerned, with a direction to the respondents therein to pass appropriate orders within 60 days from the date of receipt of objections, in accordance with the provisions of A. P. Panchayat Raj Act, 1994, the rules made thereunder and the G. Os. issued by the Government. Petitioners submit that a copy of the order in the writ petition was made available to them on 13-3-1996 and on 19-3-1996 they filed objections before the first respondent- government in the form of a counter in the revision filed by the 5th respondent, and the copy of the counter was received by the office of the first respondent on 19-3-1996 in inward No. 124442/96. ( 3 ) PETITIONERS aver that even though objections were filed in the month of March 1996 itself, no notice of hearing was issued by the first respondent and, on 7-7-1997 the petitioners received the impugned order in g. O. Rt. No. 816, Panchayat Raj and Rural development Department dated 20-6-1997. In the said G. O. it is stated that considering the representation of 5th respondent for implementation of the orders passed in G. O. Rt. No. 816, Panchayat Raj and Rural development Department dated 20-6-1997. In the said G. O. it is stated that considering the representation of 5th respondent for implementation of the orders passed in G. O. Rt. No. 817 dated 31-5-1995, the Government issued orders bifurcating Athota Gram panchayat constituting Gollapalem as a separate Gram Panchayat. It is also stated therein that no representations have been received from the petitioners as per the order dated 28-9-1995 of this court in Writ petition No. 10957 of 1995. ( 4 ) PETITIONERS state that the impugned order is passed by the first respondent without applying its mind and without considering the objections of the petitioners and without issuing any notice or opportunity to the petitioners. Petitioners state that Athota Gram Panchayat is a viable gram Panchayat with a total population of about 5,600 and there is no necessity to bifurcate the same and form a separate gram Panchayat. Hence, the petitioners filed this writ petition. ( 5 ) ON behalf of respondents 1 to 3, the first respondent-Government filed counter denying the averments in the writ petition. It is stated that nobody filed representations, or objection petitions in respect of bifurcation of Athota Gram Panchayat into two separate Gram Panchayats of Athota and Gollapalem within the stipulated time as per the order of this Court dated 28-9-1995 in the Writ Petition No. 10957 of 1995. If any revision petition is filed as per the directions of this Court, the Government has to receive the same through the commissioner of Panchayat Raj and Rural development. The Commissioner of panchayat Raj in his letter No. l7644/c2/96 dated 27-11-1996 has informed the government that the District Collector, guntur, as well as the Commissioner for panchayat Raj have not received any representation. It is stated that on 9-10-1996, one T. Amma Rao, a resident of Gollapalem submitted a representation to the government requesting to implement the orders of the Government issued G. O. Rt. No. 817, dated 31-5-1995 bifurcating Athota gram Panchayat into two separate Gram panchayats, constituting Gollapalem as a separate Gram Panchayat, which has become final. It is stated that the writ petitioners filed objections on 19-3-1996 to the revision filed by T. Amma Rao, but the revision dated 9-10-1996 was received by the government on 3-12-1996, and hence the contention of the petitioners that their objections were not considered is unbelievable. It is stated that the writ petitioners filed objections on 19-3-1996 to the revision filed by T. Amma Rao, but the revision dated 9-10-1996 was received by the government on 3-12-1996, and hence the contention of the petitioners that their objections were not considered is unbelievable. It is stated when there was no revision petition filed on 19-3-1996 by t. Amma Rao, the question of filing objections by the writ petitioners does arise at all. ( 6 ) THE 5th respondent filed counter-affidavit stating that Athota Revenue village is having two hamlets, viz. , Yadavapalem and Harijanawada. It is stated that there are 4,200 voters in the Gram Panchayat and majority voters are in Athota village and as such the villagers of Yadavapalem resolved to report to the competent authority, viz. , the District Collector, Guntur, for constituting a separate Gram Panchayat for yadavapalem. Accordingly, the 5th respondent and some other 578 persons made a representation to the District collector, Guntur, stating that the population of Yadavapalem is around 1,600 and there are more than 800 voters and yadavapalem is around 31/2 Kms. from athota village. It is stated that Athota Gram panchayat also passed a resolution dated 6-5-1995 requesting the Collector to consider the representation of 5th respondent and others for constituting a separate Gram panchayat for Yadavapalem and harijanwada. It is stated that the petitioners have not filed objections before the government as directed by this Court in writ Petition No. 10957/1995 and the writ petition is liable to be dismissed. ( 7 ) THE petitioners filed reply-affidavit to the counter-affidavit of respondents 1 to 3. ( 8 ) THE petitioners herein have earlier filed Writ Petition No. 10957/1995 praying this Court to issue a Writ of Certiorari to quash the order passed by the 4th respondent/minister for Panchayat Raj, government of Andhra Pradesh, in G. O. Rt. No. 817, Panchayat Raj, Rural Development and Relief (Pts. IV) Department dated 31-5-1995 bifurcating Athota Gram panchayat and constituting a separate Gram panchayat at Yadavapalem alias Gollapalem consisting of Harijanwada, reversing the order of the 2nd respondent-District collector, Guntur in Roc. No. l4838/94-G. 1 dated 2-4-1995 refusing to bifurcate without issuing any prior notice to Athota Gram panchayat, at the behest of the 5th respondent. IV) Department dated 31-5-1995 bifurcating Athota Gram panchayat and constituting a separate Gram panchayat at Yadavapalem alias Gollapalem consisting of Harijanwada, reversing the order of the 2nd respondent-District collector, Guntur in Roc. No. l4838/94-G. 1 dated 2-4-1995 refusing to bifurcate without issuing any prior notice to Athota Gram panchayat, at the behest of the 5th respondent. ( 9 ) WHEN Writ Petition No. 10957/1995 and batch came up for hearing before a division Bench of this Court, the Division bench passed the following Order on 28-9-1995:"heard both sides. It is submitted that the points raised in this batch of writ petitions are squarely covered by a decision of this Court rendered on 27th september, 1995 in Writ Petition no. 21367 of 1995. Accordingly, these writ petitions are disposed of in terms of the above writ petitions. There shall be no order as to costs. " ( 10 ) IN Writ Petition No. 21367 of 1995, the Division Bench by its order dated 27-9-1995, held that an individual cannot question bifurcation of a Gram Panchayat and it is only the affected Gram Panchayat that can question the same. While holding that an individual cannot question bifurcation of a gram Panchayat, and directing the petitioner therein to approach the government to ventilate his grievance, the division Bench held:-"since the main grievance of the petitioner is that the notification under section 3 (1) or 3 (2) of the Act bifurcating or refusing to bifurcate, including or excluding some villages to or from the Gram Panchayats, forming new gram panchayats or changing the headquarters of the Gram Panchayat etc. , as issued yielding to political pressure, we think justice would be done if either the concerned Gram panchayat which is aggrieved by issue of such a notification or the petitioner in the writ petition is given an opportunity of submitting explanation and a final decision is taken, though it is purely an administrative act and scope to interfere with such an act under Article 226 of Constitution of india is very much limited, since the authorities have to act in accordance with law, particularly as per Sections 3 and 4 of the Act and Rules 7 to 12 of the rules. It is needless to say that there shall be proper application of mind on the part of the authorities before a decision is taken regarding issue of notification, bifurcating or refusing to bifurcate, including or excluding some villages to or from the Gram panchayats, shifting of headquarters or forming new Gram Panchayats etc. " ( 11 ) THE contention of the learned counsel for the petitioners is that the Division Bench disposed of the writ petition on 28-9-1995, order copy was made available to the petitioners on 13-3-1996, and on 19-3-1996 the petitioners filed a counter-affidavit to the revision petition filed buy the 5th respondent in the office of the first respondent and an inward No. 12442 was also given to it. In spite of that the first respondent has not informed anything about the hearing and passed the impugned proceedings dated 20-6-1997, i. e. , G. O. Rt. No. 816 and according to the petitioner, the first respondent without giving any opportunity and without considering the objections in the counter-affidavit filed by the petitioners passed the impugned order behind his back. ( 12 ) IT may be noted that in the counter-affidavit filed on behalf of respondents 1 to 3, it is contended that the petitioners have not filed any revision petition as per the orders of this Court in the writ petition. Instead of filing revision petition, the petitioners have filed objections to the disposed of revision petition filed by the 5th respondent. So, when there is no revision petition pending before the first respondent- government, there is no meaning in filing objections to the revision petition. After considering the material on record, the government has passed the present impugned order. ( 13 ) IN this case, Writ Petition No. 10957/95 was disposed by the Division Bench of this Court on 28-9-1995 with directions to the petitioners therein to file objections or other material or revision petition. Liberty is given to the petitioners therein to file objections or revision petition or other material. The Division Bench observed:"hence, the writ petition is disposed of directing the petitioner to approach, if he so desires, the District Collector, if not already approached, or the Government through the commissioner in case he has already approached the District Collector and obtained adverse orders, by way of revision petition, within thirty days from the date of receipt of this order. If any Gram Panchayat is not before this court, yet it feels to avail of the opportunity of ventilating its grievance before the District Collector or the government, as the case may be, still it can do so by filing objections before the concerned authority, within thirty days from the date of receipt of this order. The concerned authority, i. e. , the district Collector or the Government shall on receipt of such representation or objection petition, issue a notice tc the Gram Panchayat and the writ petitioner concerned and receive objections and other material, if any, and then to apply its mind to the facts and circumstances and to the effect of provisions of the Act, Rules and regulations and other G. Os. including the principles laid down by the supreme Court in the cases cited supra, and pass appropriate orders within sixty days from the date of receipt of objection petitions, or representations or revision petitions, as the case may be, in accordance with law. " ( 14 ) ONCE the Division Bench of this Court has granted such a liberty to the petitioners, normally it is expected that the respondents will re-hear the matter, i. e. , revision petition filed by the 5th respondent before them. It is the admitted case of the first respondent that the petitioners have filed some objections to the revision petition filed by the 5th respondent. So, the respondents have to consider the said objections filed by the writ petitioners before passing the impugned order. Simply on the ground of technicalities and stating that the revision is disposed of long back, rejecting the objections filed by the writ petitioners is not correct. Once the court granted liberty to the writ petitioners to represent the matter to the respondents, it is the duty of the respondents to consider the objections of the petitioners, even if the objections are filed by the petitioners on 19-3-1996 by way of counter-affidavit to the revision petition of the 5th respondent, because the Division Bench of this Court has granted such liberty to the petitioners to file the objections. It is the obligation on the part of the respondents to comply with the above extracted directions of the Division Bench of this Court. Admittedly, the petitioners have filed objections by way of counter-affidavit to the revision petition. It is the obligation on the part of the respondents to comply with the above extracted directions of the Division Bench of this Court. Admittedly, the petitioners have filed objections by way of counter-affidavit to the revision petition. ( 15 ) FOR the aforementioned reasons, the impugned order is liable to be and is hereby set aside. The respondents are directed to rehear the matter and to consider the objections filed by the petitioners by giving opportunity of hearing to the petitioners by fixing a date and giving advance notice to the petitioners about the said re-hearing and pass appropriate orders as per law after completion of such re-hearing. The respondents are directed to follow the procedure laid down by law in this behalf and the directions issued by the Division bench of this Court, extracted supra. The writ petition is allowed accordingly. There shall be no order as to costs.