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2010 DIGILAW 37 (AP)

Ganna Sarvaiah v. State of Andhra Pradesh

2010-01-29

L.NARASIMHA REDDY

body2010
Judgment :- (1) The petitioners are the owners of 658.42 sq. yards Of land in Kodad Gram Panchayat. They submitted an application to the Grampanchayat, Kodad, the 2nd respondent herein, with a request to accord permission to construct a building with ground and two upper floors. Permission was accorded on 15.12.2008. (2) The Secretary of the Grampanchayat issued proceedings dated 30.10.2009 to the petitioners, stating that on receiving objections from the neighbours of the petitioners, the Grampanchayat held emergency meeting on 26.10.2009 and resolved to send proposals to the District Collector, for cancellation of the permission accorded to the petitioners. He directed the petitioners not to proceed with the construction, till the District Collector issues any directions, in this regard. The petitioners assail the said proceedings. They contend that the Grampanchayat has no jurisdiction to send proposals to the District Collector, to cancel its own permission. It is also their case that, as long as the permission is intact, the respondents 1 and 2 cannot stop the construction, being undertaken by the petitioners. (3) The Grampanchayat filed a counter- affidavit, stating that the petitioners obtained permission from the Grampanchayat by making misrepresentation and suppressing certain facts. It is also stated that the permission accorded to the petitioners is contrary to the AP Grampanchayat Land Development (Layout and Building) Rules, 2002 (for short 'the Rules'). The 2nd respondent alleges that the petitioners are making construction, without giving any setbacks, nor any fire safety measures are provided. (4) Claiming to be the immediate affected persons, respondents 3 to 6 got themselves impleaded. In the counter-affidavit filed by them, it alleged that the permission accorded to the petitioners is contrary to law, and that the construction of a Kalyana Mandapam in the locality, that too, without providing any setbacks, would lead to problems of traffic, sound pollution, etc. (5) Sri N. Subba Reddy, learned Counsel for the petitioners, submits that the order impugned in this writ petition is without jurisdiction. He contends that it is only the Government, on its own accord, or on a reference made by the Executive Officer of the Grampanchayat, that can initiate action under Section 246 of the A.P. Panchayat Raj Act, 1994 (for short 'the Act'), for cancellation of the resolution passed by the Grampanchayat, and that the steps initiated in the instant case are contrary to law. He further contends that the Grampanchayat has no power to direct stoppage of construction, even where the proceedings under Section 246 of the Act are validly initiated. (6) Learned Government Pleader for Panchayat Raj, learned Standing Counsel for the Grampanchayat and learned Counsel for the respondents 3 to 6, on the other hand, submit that the very permission accorded to the petitioners was contrary to law, inasmuch as no specifications were made in it, as to the setbacks, frontage etc. They contend that the Grampanchayat realized the mistake committed by it and passed a resolution to request the Government, to cancel the resolution, through which permission was accorded to the petitioner. It is also their case that the petitioners did not leave an inch of setback, on any side, and apart from becoming a source of inconvenience and nuisance, it would also pose threat to the safety of inmates and neighbours. (7) On an application submitted by the petitioners, the Grampanchayat accorded permission on 15.12,2008 for construction of ground and two upper floors. A perusal of the plan, that was approved by the Grampanchayat discloses that no stipulation was made, as to the setbacks, frontage, height of the building, and other particulars. The petitioners started construction, on the basis of the sanctioned plan. The neighbours felt aggrieved and raised objections. The Grampanchayat took the view that it ought not to have accorded sanction to the petitioners. It passed a resolution on 26.10.2009 and requested the District Collector, Nalgonda, to submit proposals before the Government to cancel its earlier resolution, through which, permission was accorded, Consequently proceedings were issued by the Panchayat Secretary, on 30.10.2009. Apart from referring to the resolution, the Panchayat Secretary insisted that the petitioners shall not proceed with the construction. (8) The Act provides the remedy of appeal for anyone, who feels aggrieved by the decision taken by the Grampanchayat. Obviously, being under the impression that the permission was accorded by the Panchayat Secretary, respondents 3 to 6 seem to have approached the Grampanchayat Since the permission was accorded on the basis of the resolution of the Grampanchayat, there was no possibility for the Grampanchayat to entertain the appeal. It has chosen to submit proposals to the District Collector. The exercise mentioned in the impugned order is referable to Section 246 of the Act. The provision reads as under : "'Section 246. It has chosen to submit proposals to the District Collector. The exercise mentioned in the impugned order is referable to Section 246 of the Act. The provision reads as under : "'Section 246. Power to cancel or suspend resolution of a Gram Panchayat, Mandal Parishad or a Zilla Parishad;-(1) The Government may either suo motu 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, Mandat 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) 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." (9) The manner in which the resolution passed by a Panchayat Institution can be cancelled by the Government, is stipulated therein. Normally, Government can initiate the action, on its own motion. The other eventuality is, where the Executive Officer of the Grampanchayat, Mandal Parishad, or Zilla Parishad, refer the matter to it By no stretch of imagination, that provision would enable the very agency, i.e., Grampanchayat, Mandal Parishad or Zilla Parishad, to recommend or appeal to the Government to cancel the resolutions passed by themselves. (10) In Eguvakammakandriga Gram Panchayat v. District Collector, Chittoor, 2004 (2) ALD 299 (DB), a Division Bench of this Court held that even the District Collector cannot interfere with the resolution passed by a Grampanchayat. (10) In Eguvakammakandriga Gram Panchayat v. District Collector, Chittoor, 2004 (2) ALD 299 (DB), a Division Bench of this Court held that even the District Collector cannot interfere with the resolution passed by a Grampanchayat. The role assigned to the District Collector is only the one, under sub-section (3) of Section 246 of the Act, viz., to submit a report to the Government, explaining the necessity to suspend the resolution, pending cancellation thereof. None of the steps referable to Section 246 of the Act have taken place in the instant case. The resolution passed by the Grampanchayat on 26.10.2009, as well as the consequential proceedings issued by the Panchayat Secretary, are therefore, without jurisdiction. (11) This Court, however, finds that the Grampanchayat is not acting in accordance with law, particularly, in the matter of stipulating the setbacks and frontage, whenever permission is accorded. The former Panchayat Secretary, who processed the application of the petitioners, is said to have been placed under suspension. It is directed that, henceforth the Grampanchayat shall mention the setbacks, that are to be given on the respective sides, as provided for under the relevant Rules, in the permission itself, and ensure that the setbacks are maintained, when the buildings are constructed. (12) However, if any other course, in accordance with law, is available, either to the Grampanchayat, or District Collector, or to respondents 3 to 6, they can have recourse to the same, vis-a-vis the petitioners. (13) For the foregoing reasons, the writ petition is allowed directing that, (a) the impugned proceedings dated 30.10.2009, issued by the 2nd respondent are set aside, as having been issued without jurisdiction; (b) it shall be open to the Grampanchayat; Government, or respondents 3 to 6, to take such steps, as are open to them, in law, vis-a-vis the permission accorded to the petitioners. (c) the Grampanchayat, Kodad, shall henceforth insist on leaving of setbacks to the buildings, in accordance with taw, whenever it accords permission for construction of buildings, and ensure that they are maintained in the course of construction. (14) There shall be no order as to costs.