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2003 DIGILAW 624 (AP)

Tippineni Ramesh v. Government Of A. P.

2003-04-23

V.V.S.RAO

body2003
V. V. S. RAO, J. ( 1 ) ORDER :the petitioner is Upa- sarpanch of Bhimavarappadu village in nellore District. He assails the order of the government of Andhra Pradesh in Memo. No. 6497/pts. 11/a3/2003-1, dated 28-3-2003 whereby and whereunder, while taking revision petition filed by the fourth respondent on its file and requesting the district Collector to submit a detailed report along with the connected record to the Government, the Government directed that the orders of the District Collector dated 16-2-2003 be kept in abeyance and the fourth respondent be reinstated as sarpanch of the said village. Be it also noted 2003 (3) ALD June 15* that by order dated 16-2-2003, the District collector, the second respondent herein, purporting to exercise powers under section 249 (6) of the A. P. Panchayat Raj act, 1994 ( the Panchayat Act for brevity) suspended the fourth respondent as Sarpanch while authorising the petitioner herein to exercise the powers and perform the functions of the Sarpanch. ( 2 ) THE fourth respondent was elected as Sarpanch in the year 2001, whereas the petitioner was elected as Upa-Sarpanch. It appears that the second respondent allotted 114. 8 qtls. of Rice to bhimavarappadu village under Food For work Programme (FFWP ). As per the procedure, the rice has to be lifted by the concerned fair price shop dealer from Mandal level stock point (MLSP) and has to be distributed to the workers engaged in the food for work programme on production of printed coupons issued to the agency undertaking the work. The Mandal Revenue officer (MRO), Kondapuram along with the station House Officer, Vinjamuru P. S. inspected the fair price shop being run by one V. Venugopal of Bhimavarappadu village on 9-2-2002. The inspecting party seized the stock of rice and it was found that fair price shop dealer sent the fourth respondent to MLSP for taking delivery of 114. 8 qtls. of rice. Accordingly, a report was filed by the MRO before the joint Collector. ( 3 ) THE Joint Collector, Nellore, initiated proceedings under Section 6-A of the Essential Commodities Act, 1955 ( the e. C. Act for brevity) for confiscation of rice seized from the fair price shop and issued a show cause notice to the dealer and the fourth respondent. Two charges were framed as under:1. During the inspection, the complainant noticed that the respondent (F. P. shop dealer) diverted 114. Two charges were framed as under:1. During the inspection, the complainant noticed that the respondent (F. P. shop dealer) diverted 114. 8 qtls. of rice 10 to black market which is meant for Food for Work Programme with the connivance of the Sarpanch of bhimavarappadu village without maintaining true and correct account for selling the same at higher prices and thereby contravened Conditions 7 and 11 of authorization and Clause 4 of A. P. Scheduled Commodities (Regulation of Distribution by Card System) order, 1973. 2. The dealer diverted FFWP rice with the connivance of the Sarpanch of bhimavarappadu village and thereby indulged in clandestine business and thereby contravened Condition No. 7 (l) of the licence issued under A. P. Scheduled Commodities Dealers (Licensing and Distribution) Order, 1982. ( 4 ) THE dealer submitted explanation inter alia contending that as he was going on pilgrimage to Sabarimalai, he sent the sarpanch to MLSP to take delivery of rice and that he has not contravened any of the provisions of the E. C Act and/or the provisions of A. P. Scheduled Commodities (Regulation of Distribution by Card System) order, 1973 (hereafter called the Control order ). The fourth respondent also filed an explanation to the show cause notice stating that the Government allotted certain works like construction of roads from bhimavarappau village to Yerrabalem and bhimavarappadu-Mittapalem internal road under FFWP and allotted 114. 8 qtls. of rice. The fair price shop dealer was making preparation to go to Sabarimalai and, therefore, entrusted him to receive and keep ffwp rice. He received the rice and kept the same in the house of village elder, g. Malakondaiah as he has to go to hyderabad to attend the Sarpanchs meet. After coming from Hyderabad, he came to know about the inspection by the MRO, and he immediately showed the rice to the MRO who took possession of the stock from the village elder and that there is no misuse of ffwp rice and that the allegations of diversion of FFWP rice are not correct. After coming from Hyderabad, he came to know about the inspection by the MRO, and he immediately showed the rice to the MRO who took possession of the stock from the village elder and that there is no misuse of ffwp rice and that the allegations of diversion of FFWP rice are not correct. ( 5 ) AFTER considering the explanation and also hearing the learned Advocate for the fair price shop dealer as well as the fourth respondent, the Joint Collector, by proceedings dated 7-7-2002 directed the revenue Divisional Officer, the competent authority under the Control Order to take action against the fair price shop dealer and also directed the District Panchayat officer to take appropriate action against the fourth respondent forthwith. The joint Collector did not record any specific finding as to whether FFWP rice was diverted by the fourth respondent though he observed that "sarpanch is not concerned with the distribution of rice and that he cannot take the rice meant for FFWP". ( 6 ) IN furtherance of the orders of the Joint Collector dated 7-7-2002, the district Collector issued a show cause notice dated 6-11-2002 to the fourth respondent. He submitted explanation whereupon in exercise of powers under sub-section (6) of Section 249 of the Panchayat Act, the second respondent placed the fourth respondent under suspension directing the petitioner to perform the functions of the Sarpanch. The revision petition filed by the fourth respondent under Section 264 of the Panchayat Act was taken on file and by the impugned order dated 28-3-2003 he was reinstated as Sarpanch pending revision petition. ( 7 ) LEARNED Counsel for the petitioner submits that the impugned order is vitiated by non-application of mind. Having regard to the fact that the petitioner has taken over charge of the post of Sarpanch, the fourth respondent ought not to have directed reinstatement of the fourth respondent as the balance of convenience is not in his favour, that the Government ought to have issued notice to the petitioner before passing the impugned order and that the order passed by the second respondent under Section 249 (6) of the Panchayat Act does not in any manner suffer from any illegality. The learned Counsel also submits that the fourth respondent has resorted to number of illegal activities and, therefore, continuing him as Sarpanch is not in the interest of the Gram Panchayat and that the impugned order is arbitrary and illegal. ( 8 ) THE submission that the first respondent ought to have issued notice to the petitioner before passing the impugned order as he has taken charge of Sarpanch is devoid of any merits. Under Section 26 (1) of the Panchayat Act, Upa-Sarpanch can be authorised to exercise powers or perform functions of Sarpanch during the period of suspension. Therefore, Upa- sarpanch has got limited right of discharging the functions of Sarpanch in his absence. He has no say in the matter of suspension or removal of Sarpanch. If an order of suspension passed under Section 249 (6) of the Panchayat Act, which is admittedly subject to a revision under Section 264 is set aside, the Upa-Sarpanch cannot be heard to say that he is an aggrieved party. This aspect of the matter has been considered by me in Buntupally Pathana v. District collector, Panchayat Wing, AIR 2000 AP 258 = 2000 (2) ALT 172 = 2000 (2) ALD 773 , wherein the order of revocation of suspension passed by the District Collector was subject matter of challenge. After considering Section 26 of the Panchayat act, this Court ruled thus:. . . . . . . . . . . As per sub-section (1) of Section 26, the Upa-Sarpanch can be authorized to exercise the powers or perform functions of sarpanch during the period of suspension of the Sarpanch. Further, even by the order dated 24-1-2000, when the second respondent was placed under suspension, the petitioners herein was authorized to be Sarpanch until further orders. In my considered opinion, the petitioners herein cannot be said to have any grievance, especially when the collector has considered the various allegations and revoked the suspension order. It is needless to point out that an Upa- sarpanch has no say in matters of suspension of Sarpanch or removal of a Sarpanch. It is for the competent authority to take action having regard to the various parameters of law. ( 9 ) IN the present case, the order of suspension has been kept in abeyance by the revisional authority by reason of which the fourth respondent was directed to be reinstated. It is for the competent authority to take action having regard to the various parameters of law. ( 9 ) IN the present case, the order of suspension has been kept in abeyance by the revisional authority by reason of which the fourth respondent was directed to be reinstated. Therefore, it must be held that the fourth respondent cannot be considered to be an aggrieved party. The Upa-Sarpanch also cannot be heard to say that as he has taken charge pursuant to the order of suspension of the Sarpanch, balance of convenience is not in his favour not to grant any interim order in favour of the Sarpanch by the revisional authority. If such argument is accepted, the very remedy given to a sarpanch who is suspended under section 249 (6) of the Panchayat Act would be rendered useless if no interim orders are passed. Be it noted that under Section 249 (6) of the Panchayat Act, a Sarpanch can be placed under suspension initially for a period of three months, it can be extended for another period of three months and, therefore, if pending revision, a Sarpanch is denied opportunity to continue as Sarpanch, the same would cause prejudice to the sarpanch. ( 10 ) LEARNED Counsel for the petitioner submits that the petitioner is not interested to continue as Sarpanch, but as a villager he is interested in the well-being of the gram Panchayat. Therefore, he has locus standi to question the impugned order. He also placed reliance on the judgment of the supreme Court in Haryana Financial Corpn, v. Jagdamba Oil Mills, (2002) 3 SCC 496 , in support of the contention that the judgment of this Court in Buntupally Pathana v. District Collector, Panchayat Wing (supra) is not an authority for the proposition that Upa-Sarpanch has no locus standi to question the order of suspension. ( 11 ) AFTER perusing the judgment of the supreme Court, I am not able to countenance the submission. The principle that Upa- sarpanch has no say in matters of suspension of Sarpanch or reinstatement of Sarpanch or revocation of suspension is the proposition of law laid down by this court in the judgment referred to hereinabove having regard to Section 249 of the panchayat Act. The principle laid down therein squarely applies to the facts of this case also. The principle laid down therein squarely applies to the facts of this case also. Further, a perusal of paragraphs 11 and 13 of the affidavit accompanying the writ petition would belie the contention that he is acting pro bono publico in seeking redressal. The vain effort of the petitioner, to my mind, appears to be to continue as sarpanch. ( 12 ) INSOFAR as the contention that as the fourth respondent has resorted to illegal activities he should not be continued as Sarpanch and that there is no illegality or irregularity in the orders passed by the District Collector, whether or not the order is correct, it must be held that the submission is misconceived. Admittedly, the impugned order is interlocutory in nature and the Government has yet to pass final orders in the revision petition filed by the fourth respondent. Merely because it refers to the revision petition filed by the fourth respondent as appeal petition in paragraph 2 of the impugned order, it does not mean that there is no application of mind. Even on merits of the case, I have already referred to the orders passed by the Joint Collector. Except observing that sarpanch was not authorised to receive the stocks of FFWP rice and take the rice, there is no finding recorded against the Sarpanch that he has diverted the rice. Indeed, the fair price shop dealer as well as the fourth respondent submitted before the Joint Collector that the rice was taken delivery by the fourth respondent as the dealer was going to Sabarimalai. That rice was kept with the village elder, Sri malakondaiah which was handed over to the MRO on coming to know about the inspection. Therefore, the Government was justified in issuing the impugned order. The question whether the order passed by the District Collector on 27-3-2003 placing the fourth respondent under suspension is vitiated by irregularity and impropriety or illegality must be gone into by the government at the time of final disposal of the revision petition. At the interlocutory disposal, these issues do not require to be adjudicated. ( 13 ) IN the result, for the above reasons, the writ petition fails and is accordingly dismissed. There shall be no order as to costs.