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2022 DIGILAW 54 (AP)

Rajanikanth v. State of Andhra Pradesh

2022-01-17

BATTU DEVANAND

body2022
ORDER : This Writ Petition has been filed declaring the action of the Respondent Nos.2 to 5 in issuing the auction notification vide R.K.No.20/2019, dated 10.07.2020 to the Shop Nos.1 to 41 situated at V. Kota Town and Mandal, Chittoor District, as illegal, arbitrary and violation of principles of natural justice and consequential direction to set aside the said auction notification. 2. The Respondent Nos.5 and 7 filed counter-affidavits. 3. Heard learned counsel for the petitioners and learned counsels appearing for the Respondents. 4. The case of the petitioners is that all the petitioners are residents of V. Kota Village and eking out their livelihood by doing petty business in the shops relating to the Respondent Nos.3 to 5, which were leased out in the year 1991 and 2005 to the petitioners. The rents has been enhanced from time to time and at present the rent ranges from Rs.600/- to 2,500/- per month and as on date all the petitioners have paid their respective rents till 31.03.2012. Thereafter, the Respondents enhanced the rent by 30% orally in the month of April, 2011 and the same was accepted by the petitioners and paid the enhanced rent. Thereafter, the petitioners submitted a representation to the Respondent Nos.3 to 5 stating that they are ready to pay the enhancement of the rents from 15% to 20%. But the elected body did not take any decision due to political scenario. While so, the Respondent Nos.3 to 5 issued auction notification vide R.K.No.20/2019, dated 10.07.2020 to conduct auction on 22.07.2020 basing on the orders passed by the 2nd Respondent vide R.K.No.2419/2019C2(P), dated 11.12.2019 as per the Resolution of the Grama Panchayat No.89, dated 27.09.2019. 5. The grievance of the petitioners is that there is no committee in the Gram Panchayat to pass Resolution No.98, dated 27.09.2019, as the tenure of the local body committee was expired in the month of August, 2019. The petitioners made a representation on 27.11.2019 to the Gram Panchayat Special Officer (i.e.) MPDO to inform the balance of the rent and lease period, but he did not give information. Aggrieved by the same, the petitioners approached 1st Appellate authority (i.e.) Sub-Collector, Mandanapalli, Chittoor District, to direct the Gram Panchayat to furnish information regarding balance of the rent and lease period. Aggrieved by the same, the petitioners approached 1st Appellate authority (i.e.) Sub-Collector, Mandanapalli, Chittoor District, to direct the Gram Panchayat to furnish information regarding balance of the rent and lease period. The 1st Appellate authority passed orders to furnish the information vide L.Dis.B5/RTI/395/2020, dated 31.01.2020 to the Gram Panchayat, but till date the no information has been furnished. 6. Learned counsel for the petitioners submits that the petitioners are running businesses for their livelihood without being any disturb and also invested the huge amounts on the business premises and without issuing prior notices to the petitioners, directly issued the public auction notice on 11.07.2020 which is illegal, arbitrary and violation of principles of natural justice. 7. In the counter-affidavit, the 5th Respondent submitted that as per Section 143 of Andhra Pradesh Panchayat Raj Act, 1994, the Commissioner shall appoint a Special Officer to exercise the powers and to perform the functions of the Gram Panchayat and its Sarpanch and Executive Authority until the Members and Sarpanch thereof, who are duly elected to assume office. As per Sub-Section 3 of Section 143, in the case may be an officer authorized by the Government shall appoint Special Officer or Person-in-Charge to Gram Panchayat, if for any other reasons the process of elections to such Gram Panchayat is not completed. As contained in Sub-Section 4 of Section 143, the Special Officer or person-in-charge appointed under Sub-Section 3 shall exercise the powers and perform the functions of the Gram Panchayat. As such, the Special Officer is having every power to act as a body of the Gram Panchayat and empowered to pass resolutions as Sarpanch. 8. It is further submitted that the shops/rooms were constructed in various phases from the year 1991 to 2006 and leased out to the vendors by way of open public auction. Though the period of lease was expired long back, due to political motivation, the then elected Sarpanches of the Gram Panchayat have continued their lease for more than 10 years by enhancing meager amounts. As heavy financial loss sustained to the Gram Panchayat, they decided to conduct auction and passed a resolution No.73, dated 20.12.2011 and obtained upset price from the Divisional Panchayat Officer, Mandanapalle. Thereafter a notification was issued in Roc.No.16 of 2011, dated 22.03.2011 by the then Sarpanch and Panchayat Secretary. As heavy financial loss sustained to the Gram Panchayat, they decided to conduct auction and passed a resolution No.73, dated 20.12.2011 and obtained upset price from the Divisional Panchayat Officer, Mandanapalle. Thereafter a notification was issued in Roc.No.16 of 2011, dated 22.03.2011 by the then Sarpanch and Panchayat Secretary. As such, there is no any illegality or irregularity in issuing auction notification and it is issued in the interest of Gram Panchayat and its revenue. 9. The 7th Respondent filed his counter-affidavit contending that the Gram Panchayat had constructed 41 shopping rooms at V. Kota Village & Mandal, Chittoor District and the same were let out by it’s the then administration as per their whims and fancies more than 22 years ago that too on nominal rent ranging from Rs.550/- to Rs.5040/- in favour of the persons of their choice (i.e.) the petitioners herein without conducting public auction. Most of the petitioners, who got the leasehold rights in their favour, sublet the same in favour of the third parties on higher rentals and enriching themselves for all these years at the cost of the Gram Panchayat in active collusion of the then administration. 10. It is also contended that with a view to fetch more rents, the Gram Panchayat sought for permission to conduct public auction to the said shop rooms from the District Collector, Chittoor District through proceedings, dated 11.12.2019 and permitted the Panchayat Secretary and Executive Officer of the 5th Respondent to conduct public auction of the said shops. Accordingly, the Panchayat Secretary issued auction notification, dated 10.07.2020 and published in the local daily newspapers proposing to conduct public auction for grant of leasehold rights for a period of three years in the presence of the Divisional Panchayath Officer, Madanapalli at Sri Sakthi Bhavan, V.Kota subject to the auction conditions mentioned therein. 11. It is further contended by the 7th Respondent that in pursuance of the auction notification, dated 10.07.2020 issued by the 5th Respondent, this Respondent along with several individuals have been participated in the public auction held on 10.07.2020 and bid for a total sum of Rs.15,52,880/- per month as against the present meager rent of a sum of Rs.66,750/- per month being paid by the petitioners herein. In so far as the 7th Respondent is concerned, for Shop No.35 he bid for Rs.14,000/- per month against the sum of Rs.2,550/- per month and the bid was confirmed through the proceedings, dated 23.07.2020. Most of the bidders have also deposited three months advance rents as per the conditions of the auction notification. When the 5th Respondent is postponing to handover the possession of the Room No.35, this Respondent enquired and came to know that in view of the pendency of the writ petition, the 5th Respondent is not handing over the possession of the same. It is also submitted that the petitioners taking advantage of filing of writ petition is not allowing the 5th Respondent either to collect the reasonable rents or to auction the same in favour of the persons, who are interested to bid more rents. 12. The 7th Respondent has deposited a sum of Rs.1,50,000/- towards E.M.D. and as sum of Rs.42,000/- towards three months advance amount as successful bidder in the auction conducted by the 5th Respondent. In view of pendency of this writ petition, the 5th Respondent is not handing over the shop to the 7th Respondent and for the same, this Respondent is suffering irreparable loss and hardships and sought to dismiss the writ petition. 13. Learned counsel for the petitioners filed a reply affidavit. He also filed a copy of Model Governance Code for meetings of Gram Panchayat. Learned counsel relied on an unreported order of this Court in W.P.No.32346 of 2018. 14. Learned counsels appearing for the respective parties advanced their arguments as per the averments made in the affidavits filed by the respective parties. 15. The order in W.P.No.32346 of 2018, relied by the learned counsel for the petitioners, is not applicable to the present facts and circumstances of the case. 16. Having considered the submissions of the respective counsels and upon careful perusal of the material available on record, it is an admitted fact that the Gram Panchayat constructed shops in various phases from the year 1991-2006 and leased out to the vendors by way of open public auction. 16. Having considered the submissions of the respective counsels and upon careful perusal of the material available on record, it is an admitted fact that the Gram Panchayat constructed shops in various phases from the year 1991-2006 and leased out to the vendors by way of open public auction. It is also an admitted fact that though the period of lease was expired long back, the lease period has been continued for all these years by enhancing meager amounts by the concerned for the reasons best known to them and due to the same, the Gram Panchayat has sustained heavy financial loss. 17. In the interest of revenue to the Gram Panchayat, the Gram Panchayat has passed resolution No.73, dated 20.12.2011 and obtained upset price from the Divisional Panchayath Officer, Madanapalle and issued a notification in ROC.No.16 of 2011, dated 22.03.2011. Against the said notification, the petitioners filed a Writ Petition No.7892 of 2012 in which this Court passed interim orders of Status quo for four weeks. After expiry of the interim orders again the Gram Panchayat decided to conduct public auction to lease out the shops for getting income for the Gram Panchayat development. However, the said writ petition was dismissed by this Court by order, dated 06.06.2017. In the light of theorder of the High Court, the Gram Panchayat has taken unanimous decision to conduct public auction to lease out shopping rooms. The lessees have approached the District Collector requesting to continue them by enhancing 10% of lease amount. The District Collector directed the Gram Panchayat to take appropriate action on the representation of the leaseholders. After hearing the leaseholders, the Gram panchayat has prepared a comparative statement to the present rents and rents proposed by enhancing 20% and present market rates, which are comparatively very low when compared to the present market rates and the same has been reported to the District Collector through the Divisional Panchayath Officer. The Divisional Panchayat Officer has given endorsement to the Gram Panchayat to take action as per the Gram Panchayat decision. 18. It appears, thereafter the Gram Panchayat has passed a resolution to conduct public auction in view of the Gram Panchayat financial status and obtained upset price from the Divisional Panchayat Officer, Madanapalle on 12.12.2019 and accordingly took a decision to conduct open auction in March, 2020 for a period from 01.04.2020 to 31.03.2023. 18. It appears, thereafter the Gram Panchayat has passed a resolution to conduct public auction in view of the Gram Panchayat financial status and obtained upset price from the Divisional Panchayat Officer, Madanapalle on 12.12.2019 and accordingly took a decision to conduct open auction in March, 2020 for a period from 01.04.2020 to 31.03.2023. But, due to the sudden pandemic of COVID-19and lockdown, the auction could not be conducted. The Gram Panchayat informed the leaseholders to vacate the shops with effect from 01.04.2020, as their lease period was over. But, the shop-holders did not take any initiation to vacate the shops. The Gram Panchayat has issued notices to the leaseholders to vacate the shops immediately, but they have not responded. Subsequently, the Gram Panchayat decided to conduct public auction on 22.07.2020 and accordingly, auction was conducted and nearly 106 persons paid E.M.Ds. and participated in the public auction. 19. It appears, as per the averments of the counter filed by the Gram Panchayat (i.e.) 5th Respondent that all the petitioners and other leaseholders have also paid the deposits in their names or their spouses names, kith and kin names and 22 members of the petitioners or their spouse are the successful bidders in the said auction. 20. The main contention of the petitioners is that when there is no elected body to the Gram Panchayat, the Special Officer has no authority to take decision to conduct public auction and to pass resolution accordingly. In our considered view, the contention of the petitioners is not acceptable and untenable in view of Section 143 of the Andhra Pradesh Panchayat Raj Act, 1994. 21. For proper adjudication of the issue, Section 143 of the Andhra Pradesh Panchayat Raj Act, 1994 is extracted as hereunder: 143. Special provisions in the case of 1[* * *] Gram Panchayats:- (1) Notwithstanding anything in this Act, when a local area is notified as a village under section 3, for the first time, the Commissioner shall appoint a special officer to exercise the powers and perform the functions of the Gram Panchayat and its Sarpanch and Executive Authority until the members and Sarpanch thereof who are duly elected assume office. (2) The special officer shall cause arrangements for the election of the members of the Gram Panchayat to be made before such date as may be fixed by the Commissioner in this behalf: Provided that the Commissioner may, from time to time, postpone the date so fixed, if for any reason, the elections cannot be completed before such date. 2[(3) The Government, or as the case may be, an officer authorised by the Government, shall appoint a special officer or a person-in-charge or a committee of persons-in-charge to a Gram Panchayat, if for any reason, the process of election to such Gram Panchayat is not completed. (4) The special officer or person-in-charge or the committee of persons-in-charge, appointed under sub-section (3) shall exercise the powers and perform the functions of the gram panchayat and its Sarpanch and executive authority until the members and Sarpanch elected thereof assume office.] 22) On careful examination of Section 143 as extracted above, in our view, the Special Officer is empowered to act as a body of the Gram Panchayat and perform the functions of he Gram Panchayat. This Court also satisfied with the contention of the Respondent Nos.5 and 7 that due to non-conducting auction to the shops periodically, the Gram Panchayat is losing its revenue. In the affidavit filed by the 7th Respondent it is contended that the individuals, who have been participated in the public auction held on 10.07.2020 and bid for a total sum of Rs.15,52,880/-. The present rents, the Gram Panchayat getting from the petitioners is a sum of Rs.66,750/-. As such, we have no doubt to hold that the Gram Panchayat is sustaining heavy loss due to non-conducting auction for all these years. 23) The main functions of the Gram Panchayat under Section 45 of the Andhra Pradesh Panchayat Raj Act, 1994 is extracted as hereunder: 45. As such, we have no doubt to hold that the Gram Panchayat is sustaining heavy loss due to non-conducting auction for all these years. 23) The main functions of the Gram Panchayat under Section 45 of the Andhra Pradesh Panchayat Raj Act, 1994 is extracted as hereunder: 45. Duty of Gram Panchayat to provide for certain matters:- (1) Subject to the provisions of this Act and the rules made thereunder, it shall be the duty of a Gram Panchayat within the limits of its funds to make reasonable provisions for carrying out the requirements of the village in respect of the following matters, namely:- (i) the construction, repair and maintenance of all buildings vested in the Gram Panchayat and of all public roads in the village (other than the roads vested in the Mandal Parishad and Zilla Parishad and the roads classified by the Government as National and State Highways) and of all bridges, culverts, road dams and causeways on such roads; (ii) the lighting of public roads and public places; (iii) the construction of drains and their maintenance and the disposal of drainage water and soilage; (iv) the cleaning of streets, the removal of rubbish heaps, jungle growth and prickly-pear, filling in of the disused wells, insanitary ponds, pools, ditches, pits or hollows and other improvements of the sanitary condition of the village; (v) the provision of public latrines and arrangements to clean latrines, whether public or private; (vi) the opening and maintenance of cremation and burial grounds, and the disposal of unclaimed dead bodies of human beings or of animals; (vii) preventive and remedial measures connected with any epidemic or with malaria; (viii) the sinking and repairing of wells, the excavation, repair and maintenance of ponds or tanks and the construction and maintenance of water works, for the supply of water for washing and bathing purposes and of protected water for drinking purposes; (ix) the conservation of manurial resources, preparation of compost and sale of manure; (x) the registration of births and deaths; (xi) the establishment and maintenance of cattle ponds; and (xii) all other matters expressly declared obligatory by or under this Act or any other law. 24) To discharge the above functions for the benefit of the villagers and to provide bitter amenities to the villagers, the Gram Panchayat has to collect taxes, fees, rents, etc. from the concerned. 24) To discharge the above functions for the benefit of the villagers and to provide bitter amenities to the villagers, the Gram Panchayat has to collect taxes, fees, rents, etc. from the concerned. Without getting proper revenue, the Gram Panchayat would not be in a position to provide better amenities to the residents of the villager. For these reasons, the Gram Panchayat has to conduct public auction of its shops to get reasonable rents at the interest of Gram Panchayat. As such, in our considered opinion, there is no any irregularity or illegality on the part of the Gram Panchayat in conducting auction to lease out the shops periodically. 25) For the aforesaid reasons, we hold that the Special Officer is empowered to conduct auction to the leasehold rights of the shops of the Gram Panchayat in the interest of it’s revenue in exercise of powers vested under Section 143 of the Andhra Pradesh Panchayat Raj Act, 1994, and there is no any illegality or irregularity on the part of the Gram Panchayat in conducting public auction to lease out the shops periodically to get revenue for the interest of Gram Panchayat. 26) Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. As a sequel, miscellaneous petitions pending, if any, in the writ petition shall stand closed.