Kommisiddulu Naidu. vs The State Of Andhra Pradesh
2021 Latest Caselaw 1402 AP

       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                    W.P.No.2210 of 2020
ORDER :

This writ petition is filed by two villagers, who are

residents of Pullaneellapalli and Pelleru Gram Panchayat.

They are questioning G.O.Ms.No.154 dated 11.01.2020 which

has been issued by the State for bifurcation of the existing

Pelleru Gram Panchayat. By this notification/G.O., Pelleru

village/hamlet has been separated from Thurpupalli,

Reddyvarikandriga, Pullaneellapalli and Chalapanaidupelli.

These five small villages which constituted the Panchayat had

a total population of 1651. Now Pelleru is a residuary village

and a Gram Panchayat. A new Gram Panchayat called

Thurpupalli is formed consisting of hamlets of Thurpupalli,

Reddyvarikandriga, Pullaneellapalli and Chalapanaidupelli.

The total population of these four hamlets which have been

formed into Village Gram Panchayat is 1035. Questioning the

manner in which the bifurcation is done, the writ petition has

been filed. It is mentioned in the writ affidavit that the

procedure stipulated under the Andhra Pradesh Grama

Panchayats (Declaration of Villages) Rules, 2007 (for short

'the 2007 Rules') were not followed. It is stated that no show

cause notice was issued, that a Gramasabha was not

conducted, no "tomtom" or publicity was made in the village

etc., to enable the Gramasabha to express its opinion.

Questioning the same, the writ petition is filed.

This Court has heard Sri A.Chandraiah Naidu, learned

counsel for the petitioners, Government Pleader for Panchayat

Raj and Sri Vinod K.Reddy for the respondents.

When the writ petition is taken up for hearing, it was

noticed that an implead petition (IA.No.1 of 2021) is filed. The

petitioners in this implead petition are residents of

Pullaneellapalli and Pelleru villages. They want to join as

respondent Nos.7 and 8 in the writ petition. This petition was

heard along with the writ petition and an opportunity was

also given to the respondents to make their submissions.

The implead petition is allowed since this Court is of the

opinion that the petitioners herein have also raised points

which improve the consideration of the issue and which are

necessary for the disposal of the writ petition. Their presence

is necessary for an effective adjudication of the matter.

The essential argument in this case was advanced by

Sri A.Chandraiah Naidu, learned counsel for the petitioners

who entered appearance in place of the previous counsel. It

is his contention that the procedure prescribed under

G.O.Ms.No.542 dated 03.12.2007 otherwise known as the

2007 Rules, was not followed. The learned counsel took

pains to argue that as per the Rules, a show cause notice

must be issued to the Gram Panchayat which has to intimate

its decision within a period of 10 days. Even if a Special

Officer has been appointed as per the proviso to Rule 9, he

submits that the Special Officer should be given the

opportunity. However, a duty is cast according to the learned

counsel on the Special Officer in these circumstances to call

for a meeting of the Gramasabha and take into consideration

the views expressed by the members of the Gramasabha. The

contention of the learned counsel for the petitioners is that

this procedure was not at all followed. According to him, no

notice was issued, no tomtom was made or other publicity

was made in the village and the consent or the opinion of the

Gramasabha was not at all taken into consideration. Learned

counsel states that the conditions mentioned in the G.O. are

also not followed in the present case and he attempted to

demonstrate that the villages are within the 3 kms.,

distance. In the written submissions that were filed by the

learned counsel for the petitioners, certain additional points

were also raised of lack of a quorum etc. These are not issues

that are raised in the writ petition. The essential issue raised

in the writ petition is that Gramasabha was not held and the

opinion of the villagers was also not taken etc. A fleeting

submission is also made about the distances which are

involved.

The respondent Nos.4 and 6 filed detailed counter

affidavits. The Government Pleader for Panchayat Raj and

Rural Development argued the matter extensively as did Sri

Vinod K.Reddy appearing for the 6 respondent Panchayat.

th

Their essential submission is that the procedure stipulated is

followed. They also raised an issue about the locus standi of

the petitioners to file this case. According to them, as per

Rule 10, it is only the Panchayat that can file a revision and

that since the Panchayat has an effective alternative remedy,

individual writ petitions are not maintainable. As far as

respondent No.4 is concerned, it is reiterated that the

procedure stipulated was strictly followed. According to him,

the bifurcation and the leaving behind of Pelleru village is in

accordance with law. He points out that the procedure

stipulated was followed. The resolutions were passed in the

Gramasabha and thereafter only the G.O. was issued. The

show cause notice issued on 20.12.2019 is filed along with

the counter. In addition, the resolutions dated 23.12.2019

passed by the Gramasabha are also enclosed to the counter

affidavit. The argument therefore is that the procedure as

stipulated was followed.

For the 6 respondent also, Sri Vinod K.Reddy argues th

that the procedure has been followed. Learned counsel relies

upon the tomtom notices which has been filed and are signed

by the villagers. Apart from the tomtom, notices, the

resolution passed on 23.12.2019 by the Gramasabha are also

enclosed. This resolution is also signed by about 230 people.

Learned counsel therefore submits that the procedure

stipulated under the law has been strictly followed. For the

implead petitioner also arguments were advanced essentially

supporting the respondents counsels and raising an issue

about the locus of the petitioners.

Apart from the submissions, Sri A.Chandraiah Naidu

also relies upon case law reported in A.Jalaiah v.

Government of Andhra Pradesh1, Kurapati Bangaraiah v.

Government of Andhra Pradesh rep., by its Principal

Secretary, Municipal Administration & Urban

Development2, Mukka Narasimha Reddy v. Government of

Andhra Pradesh, Panchayat Raj & Rural Development

Department, Hyderabad and others3. For the respondents,

particularly for the implead petitioners, a Division Bench

judgment reported in D.Venkata Rushi Reddy v. the

Divisional Panchayat Officer, Anantapur and others4 and

Kurapati Bangaraiah (2 supra) are relied upon.

This Court after hearing all the learned counsel notices

that it is not in dispute that the procedure to be followed is

stipulated in G.O.Ms.No.542. The power of the Government

is traceable to section 3 of the Panchayat Raj Act, 1994.

These are the rules framed in 2007. Of these rules, for the

purpose of this case, Rule 6 and its proviso are reproduced

hereunder:

2017 (2) ALD 373

(2015) 5 ALD 622

1997 (3) ALD 636

(1996) 1 ALD 76 (DB)

6. If a local area comprised in a revenue village or villages which is not in the Scheduled Areas is beyond a distance of 3 K.Mts. from that revenue village or villages, as the case may be, and has a population of three thousand in Andhra Area and one thousand and more in Telangana Area and an income of rupees three thousand and above per annum in the Andhra Area and rupees one thousand and five hundred and above per annum in the Telangana Area, it may be declared as a separate village: Provided that, for the reasons to be specified in the notification, any such local area, which is beyond a distance of three kilometers may, irrespective of its population and income also be declared as separate village:

                   Provided      further      that    the
           Government, for special reasons, such as
           geographical      features,    communication

facilities or viability, may declare one or more revenue villages which are at a distance of three kilometers or less into a separate village, irrespective of its population and income.

In the opinion of this Court, as can be seen from the

enclosure to the impugned G.O., the distance between Pelleru

and Thurpupalli is less than 3 kms. As far as the population

is concerned, all the five villages have a population below

3000. Only point urged by the learned counsel for the

petitioners is that the distance is below 2.5 k.m. for

Thurpupalli and Pelleru. It is to be noted that the Pelleru is

the main village and now the others have been separated from

it. The proviso on which the learned counsel relies upon

deals with declaration of one or more villages as a separate

village by the Government on the basis of reasons like

geographical features, communication facilities and viability.

The village more than 3 k.m., away may be declared as a

separate village. A village less than 3 k.m. away can also be

declared as a separate village, but under certain conditions.

In the opinion of this Court; the issue of distance is thus not

strictly mandatory. On facts, Thurpupalli which is 2.5 k.m.

from Pelleru is now created as a separate Gram Panchayat

with four villages. However, what is more important is Rule 8

of the 2007 Rules, which gives the right to the Gram

Panchayat to pass its own resolution. Rule 8 is reproduced

hereunder:

8. Subject to the provisions contained in the Act and these rules, where a Gram Panchayat passes an unanimous resolution that a local area shall not be excluded from or included in a village, the Government, if satisfied that such resolution is not vitiated by any irregularity, impropriety or illegality shall not, except for special reasons to be recorded in writing, exclude from or include in that village any such area.

In rule 9 proviso, it is stipulated that where the

Panchayat is not functioning and a Special Officer is

appointed; the view of the Gramasabha is ascertained.

Therefore, in the opinion of this Court, it is ultimately

the will of the Gram Panchayat or the Gramasabha that is to

prevail. The final decision is with the Gram

Panchayat/Gramasabha. In the opinion of this Court, Rule 8

is to be given the requisite importance and if the Government

is satisfied that the resolution of the Gram Panchayat is

unanimous and not vitiated, it is bound to implement the

same and can only refuse to do so for reasons to be recorded

in writing.

Rule 9 of the 2007 Rules also deals with the procedure

which has to be followed. The respondents have come on

record in this case by filing all the documents and asserting

that a Gramasabha was conducted on 23.12.2019. Show

cause notice was issued to the Grama Panchayat on

20.12.2019. However, as a Special Officer was appointed,

proviso to Rule 9 came into play and the opinion of the

Gramasabha was sought and obtained on 23.12.2019. This

Court does not find any reason to suspect the genuineness of

these documents. In the decision relied upon by the learned

counsel for the petitioners, Kurapati Bangaraiah (2 supra),

the learned single Judge held that the records were created

for the purpose of the writ petition. The same is not the fact

situation in the present case.

Apart from this on facts and on a question of procedure,

on the basis of the pleadings, documents and the

submissions, this Court has to hold that the procedure

stipulated under the 2007 Rules has been followed. Nothing

to the contrary has been pointed out by the learned counsel

for the petitioners. The affidavits of the villagers are not filed

to show that their signatures/thumb impressions on the

resolutions are not correct, or that they were not present at

the Gramasabha at all etc. In the course of his submissions,

learned counsel raised some issues about lack of a quorum

etc. This Court however notices that a distinction between a

Gramasabha and Gram Panchayat meetings have to be kept

in view as stipulated under sections 4, 6 and 7 of the

Panchayat Raj Act, 1994. In the written submissions, learned

counsel for the petitioners relied upon the Rules which apply

to a Gram Panchayat. The meeting contemplated in this case

and as per the 2007 Rules is of the Gramasabha. The

petitioner who contends that no meeting has taken place now

argues about the lack of a quorum in the meeting. This is a

mutually destructive plea.

Lastly, this Court also notices the decision reported in

D.Venkata Rushi Reddy (4 supra). The Division Bench

clearly held in this case at para 16 that any bifurcation,

declaration etc., can be challenged only when the order is

said to have been made in arbitrary manner or for mala fide

purposes. In the present writ petition, arbitrariness or mala

fides are not raised and urged as separate and distinct

grounds for the challenge. Arbitrariness/mala fides must be

pleaded with certainty and also proven. The Division Bench

also held that any challenge to such an order cannot be made

by an individual and must be challenged by the Panchayat.

The Division Bench held that the writ was therefore not

maintainable. The decision in this case was considered by a

learned single Judge in the judgment reported in Kurapati

Bangaraiah (2 supra). In that case, learned single Judge

found that the Panchayat did not have an existence after the

de-notification. Therefore, in para 96, learned single Judge

held that as per Rule 10 of the 2007 Rules, the non-existing

Panchayat cannot file a revision. He further discussed the

issue of the locus standi. However, if the present case is

examined in detail, it is found that from these six villages, two

Panchayats have been constituted. (a) Pelleru

(residuary)Panchayat and (b) Thurpupalli consisting of the

other 4 villages. Therefore, the fact situation mentioned in

Kurapati Bangaraiah (2 supra) does not exist as per Rule

10. A revision is to be filed by the affected Gram Panchayat

Pelleru (which continues to exist) within 15 days from the

date of publication of the notification. Learned counsel for

the petitioners also relied upon a Division Bench judgment of

the A.P.High Court reported in Mukka Narasimha Reddy (3

supra). In this case, the Division Bench was called upon to

decide if there is any conflict between Section 264 of the

Panchayat Raj Act and Rule 10 of the 1994 Rules, which is in

pari materia with present Rule 10 of the 2007 Rules. Their

lordships have held that both these provisions are co-

extensive and do not clash with each other. Under Section

264, the Government has been given the power to receive a

revision from any person affected by the decision taken while

under Rule 10 of 2007 Rules, a Gram Panchayat has been

given right to prefer a revision. This Court notices that the

revision has not been filed by the existing Gram Panchayat

and it is only the individuals who have approached this Court

by filing a writ. They do not in the opinion of this Court have

a right to approach this Court directly. If they are aggrieved,

they could have approached the State/Government under

264 of the A.P.Panchayat Raj Act, 1994. If the Panchayat is

aggrieved, it has to follow the procedure stipulated under

Rule 10 of the 2007 Rules. Therefore, this Court holds that

as there is an effective alternative remedy, the writ petition is

also not maintainable.

Apart from that, this Court also finds that the

procedure stipulated under the Act/Rules has been followed

and nothing to the contrary has been pointed out by the

petitioners. Therefore, for all the above reasons, the writ

petition is dismissed. No order as to costs. As a sequel, the

miscellaneous petitions if any shall stand dismissed.

As IA.No.1 of 2021 filed for impleadment of the

petitioners as respondent Nos.7 and 8 is allowed, Registry is

directed to make the necessary amendment to the writ

petition accordingly.

________________________ D.V.S.S.SOMAYAJULU,J

Date : 05.03.2021 KLP