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2006 DIGILAW 210 (AP)

P. v. V. Prasad VS Government Of A. P.

2006-02-16

B.SESHASAYANA REDDY

body2006
( 1 ) THESE three writ petitions are filed by the petitioners who are Sarpanchs of Gram Panchayats namely Adivivaram Gram Panchayat, pendurthi Gram Panchayat, Purushothapuram gram Panchayat, Pulaganipalem Gram panchayat, Lakshmipuram Gram Panchayath, porlupalem Gram Panchayat, Narava gram Panchayat, Sathiwanipalem Gram panchayat, Gudlavanipalem Gram Panchayat, bakkannapalem Gram Panchayat, yellapuvanipalem Gram Panchayat, paradesipalem Gram Panchayat, Kommadhi gram Panchayat, Madhuravada grampanchayat, China Mushidivada Gram panchayat, Palavalasa Gram Panchayat and devada Gram Panchayat assailing the action of the Government in merging their areas in Visakhapatnam Municipal Corporation for formation of Greater Visakhapatnam municipal Corporation. ( 2 ) THE case of the petitioners as disclosed in the affidavits filed in support of the writ petitions, in brief, is as follows: the petitioners in these writ petitions are directly elected as Sarpanches of pendurthi Gram Panchayat, Purushothapuram gram Panchayat, Pulaganipalem Gram panchayat, Lakshmipuram Gram Panchayat, porlupalem Gram Panchayat, Narava gram Panchayat, Sathiwanipalem Gram panchayat, Gudlavanipalem Gram Panchayat, bakkannapalem Gram Panchayat, yellapuvanipalem Gram Panchayat, paradesipalem Gram Panchayat, Kommadhi gram Panchayat, Madhuravada Gram panchayat, China Mushidivada Gram panchayat, Palavalasa Gram Panchayat and Devada Gram Panchayat respectively in the elections held in the month of august, 2001 and they assumed the office. 32 Gram Panchayats are sought to be merged with Visakhapatnam Municipal corporation (for short VMC) for formation of Greater Visakhapatnam Municipal corporation (for short GVMC ). The tenure of the Sarpanches of the above Gram panchayats is five years and they are entitled to hold office by virtue of the Constitutional command contained in Article 243-E till 15-8-2006. As far as Gajuwaka Municipality is concerned, the term of the elected municipal Councilors was already over by march, 2005 and it is now headed by a special Officer. No election to Gajuwaka municipality has been conducted even after the expiry of the term of the elected body in March, 2005. The Constitution mandates that elections should be held before the term of the elected bodies is expired. The term of the elected bodies of the VMC had also expired by March, 2005 and it is under the control of the Special Officer. Neither gajuwaka Municipality nor the Visakapatnam municipal Corporation is no longer considered to represent the democratic view of the people, since the peoples representatives term of five years for which they are elected had expired by March, 2005. Neither gajuwaka Municipality nor the Visakapatnam municipal Corporation is no longer considered to represent the democratic view of the people, since the peoples representatives term of five years for which they are elected had expired by March, 2005. The proposal of the Government for inclusion of 32 Gram panchayats has been opposed by 23 Gram panchayats, which have unanimously resolved opposing merger of their areas in VMC for formation of GVMC and whereas 9 Gram Panchayats, dominated by the ruling party, have favoured the move of the Government. Article 243-E assured the period of five years unless so sooner dissolved under any law for the time being in force. The only power to dissolve the gram Panchayat is contained in Section 250 of the A. P. Panchayat Raj Act, 1994 and the power conferred on the Government to dissolve such Panchayat is only for misconduct i. e. not competent to perform its functions or has failed to exercise its powers and perform its functions or has exceeded or abused any of the powers conferred upon it by or under this Act, or any other law for the time being in force. There is no othe^ situation in the A. P. Gram panchayat Act, 1994, where five years term assured in the Constitution by Article 243-E can be reduced. There is no provision for dissolution of Gram Panchayat for the purpose of merging its area with a municipality or a Corporation. There is no provision in A. P. Panchayat Raj Act, 1994 enabling the Government to dissolve the panchayats for merging its area with higher tier like Municipality or Corporation. Section 3 (1) of the Visakhapatnam Municipal corporation Act, 1979 empowers the government only to alter the limits of the city by including other areas after consultation with the Corporation. The said provision has nothing to do with the dissolution of the elected Panchayats before expiry of their term. Article 243-D defines "panchayat" as an institution of self Government constituted under Article 243-B. Sub-section (1) of section 3 of Visakhapatnam Municipal corporation Act, 1979 empowers only to alter the limits of the city but it does not enable the dissolution or abolition of an elected Panchayat for the purpose of including it in an enlarged body. There is no provision for the dissolution of the Panchayat for the purpose of inclusion in either municipality or a Municipal Corporation. There is no provision for the dissolution of the Panchayat for the purpose of inclusion in either municipality or a Municipal Corporation. The provisions relied upon and used by the government are traceable and confined to the expansion or contraction and enlargement of the territorial limits only. The attempt of the Government abolishing 32 Gram panchayats in the name of merging their areas with a larger body called Greater visakhapatnam Municipal Corporation, without there being a proper dissolution, is totally unsustainable, unconstitutional, inoperative and is void ab-initio. After issuing the Government Order impugned in these writ petitions, the officials of Visakhapatnam municipal Corporation took away all the records by force despite protest from the writ petitioners and thus Special Officers are appointed to take charge of the records and to administer the villages for which the petitioners were duly elected. ( 3 ) GOVERNMENT of Andhra Pradesh represented by its Secretary, Municipal administration and Urban Development (Ele. II) Department, Secretariat, Hyderabad-1st respondent, the District Collector, visakhapatnam-3rd respondent and District panchayat Officer, Visakhapatnam-4th respondent in W. P. No. 25147 of 2005 resisted the writ petitions by filing counter-affidavit. One Sista Viswanath Rao has sworn to the counter-affidavit. It is stated in the counter-affidavit that Visakapatnam is the second largest urban agglomeration both in terms of population and area in the State of andhra Pradesh with a population of 13. 29 lakhs as per 2001 census and an area of 111 sq. km. The large-scale expansion of visakhapatnam and its suburbs began since 1970 s with the setting up of Visakahapatnam steel Plant at Gajuwaka and also in view of the townships development undertaken by Visakhapatnam Urban Development authority. The Government keeping in view the growth of Visakhapatnam and its population and various other factors proposed to expand the area of Visakapatnam municipal Corporation limits by merging gajuwaka Municipality and 32 surrounding gram Panchayats with Visakhapatnam municipal Corporation with a view to facilitate and improve high standard of civic services, and better civic administration mechanism ensuring better planning and development of the city with more equitable devolution of finances and utilization of resources, ensuring uniform enforcement and to make the city internationally competitive with world class infrastructure and services. The Government proposed to merge 32 Gram panchayats in VMC. The Gram Panchayats proposed to be merged with the Municipal corporation of Visakhapatnam are as follows: