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Gram Panchayat, Kolanapalle Vs. the Collector, West Godavari, Eluru and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 34 of 1979
Judge
Reported inAIR1986AP240
ActsAndhra Pradesh Gram Panchayat Act, 1964 - Sections 3; Andhra Pradesh Gram Panchayat (Declaration of Village) Rules, 1969 - Rule 8
AppellantGram Panchayat, Kolanapalle
RespondentThe Collector, West Godavari, Eluru and ors.
Appellant AdvocateA. Panduranga Rao, Adv.
Respondent AdvocateGovt. Pleader for Home and K. N. Raju, Adv.
Excerpt:
civil - bifurcation of areas - section 3 of andhra pradesh gram panchayat act, 1964 and rule 8 of andhra pradesh gram panchayat (rules), 1969 - writ appeal filed against dismissal of writ petition demanding quashing of notification bifurcating areas under one gram panchayat - unanimous resolution passed by gram panchayat against bifurcation of areas under it - as per rule 8 where unanimous resolution passed without irregularity it should be considered before notifying bifurcation - held, dismissal of writ petition not justified. - - this is clearly a check on the commissioner's power. 8. subject to the provision contained in these rules, where a gram panchayat passes an unanimous resolution that local area should not be excluded from, or included in, village, the commissioner, if..........writ petition filed by the gram panchayat of kolanapalli, west godavari district. the kolanapalli gram panchayat comprises certain areas of which komatigunta, is the panchayat raj commissioner for his area. by his notification dated 13-4-78, he had carved out certain areas from kolanapelli gram panchayat and constituted those areas into a separate gram panchayat. the kolanapalli gram panchayat is not agreeable to this bifurcation of these areas from its jurisdiction. it has therefore filed the aforesaid writ petition assailing the correctness of the collector's action. the learned single judge has dismissed that writ petition against which the present writ appeal has been filed.2. the district collector, west godavari exercised the powers of the commissioner of the panchayat raj under.....
Judgment:

P.A. Choudary, J.

1. This writ appeal is filed against a judgment of our learned brother Raghuvir, J., dismissing the writ petition filed by the Gram Panchayat of Kolanapalli, West Godavari District. The Kolanapalli Gram Panchayat comprises certain areas of which Komatigunta, is the Panchayat Raj Commissioner for his area. By his notification dated 13-4-78, he had carved out certain areas from Kolanapelli Gram Panchayat and constituted those areas into a separate gram panchayat. The Kolanapalli Gram Panchayat is not agreeable to this bifurcation of these areas from its jurisdiction. It has therefore filed the aforesaid writ petition assailing the correctness of the Collector's action. The learned single Judge has dismissed that writ petition against which the present writ appeal has been filed.

2. The District Collector, West Godavari exercised the powers of the Commissioner of the Panchayat Raj under S. 3 of the A. P. Gram Panchayat Act. Exercising the powers under S. 3, Cl. (2) of the A. P. Gram Panchayat Act (hereinafter referred to as ' the Act') he first called upon the Gram Panchayat of Kolanpalli in his show-cause notice dated 27-3-78 to show-cause why R. S. No. S. 1 to 31, 34 to 40, 45 to 161, 167 to 178, 387 to 389 and 402 to 407 of Komatigunta hamlet of Kolanapalli revenue village should not be excluded from the existing limits of Kolanapalli Gram Panchayat and constitutes into a separate gram panchayat with the name of Komatigunta. On receipt of this show-cause notice the Kolanapalli gram panchayat met and passed the following resolution :-

'It is unanimously resolved to form Komatigunta Panchayat as new Panchayat with Komatigunta and Suryaraopet areas from the present Kolanapalli Gram Panchayat but with western boundary with S. Nos. 58, 57, 56, 54 and 173 i.e., boundary as Toranalakodu channel and not western boundry with S. Nos. 1, 2, 3, 4, 31, 34, 40, 45, 46, 47 as indicated in the Roc. No. 2675/78 of District Collector. West Godavari Panchayat wing.'

The above resolution was passed unanimously. On receipt of the above resolution unanimously passed by the Kolanapalli Gram Panchayat, the Collector, West Godavari, by his notification dated 13-4-78 constituted Komatigunta as a gram panchayat under S. 3 (1) of the Act with the boundaries specified by him in his who-cause notice dated 27-3-78. In doing, the District Collector did not pay heed to the boundary changes suggested by the resolution. The result was that a new gram panchayat with the boundaries mentioned in the Collector had come to be constituted.

3. In the writ petition filed by the Kolanapalli Gram Panchayat, the validity of the Collector's notification dated 13-4-78 was assailed. The petitioner gram panchayat argues that although the Collector has powers under S. 3 of the Act to exclude certain areas from the boundaries of the existing gram panchayat and to constitute the same into a new gram panchayat, he cannot exercise that power where the existing Gram Panchayat unanimously opposed such an exercise of power by the Collector except for special reasons recorded by him in writing. The argument of Kolanapalli Gram Panchayat is that the power of the Collector in constituting Komatigunta as a gram panchayat without giving special reasons in writing for overruling the unanimous opposition of Kolanapalli Gram Panchayat regarding the boundaries of the new gram panchayat, is ultra vires of his powers under S. 3 of the Act. This argument of the Kolanapalli Gram Panchayat was rejected by the learned single Judge leading to the filing of this writ appeal.

4. Now, under S. 3 of the Act, wide powers are conferred on the Commissioner of Panchayat Raj to bifurrcate local areas from an existing gram panchayat and to constitute them into a separate gram panchayat. The width of this power is the view of S. 3 of the Act which mentions no limitations whatsoever on the exercise of the powers of the Commissioner of Panchayat Raj. But the State Government, acting under its rule making authority, made rules providing scheme of safeguards against any possible arbitrary action of the Commission of Panchayat Raj under S. 3 of the Act. Of these safeguarding rules made by the State Government, R. 9 provides that before an area is sought to be excluded from the boundary of an existing gram panchayat and its views should be obtained. But this part of the rule may not be regarded of much consequence. This safeguard is already to be found in S. 3 of the Act itself. The real safeguard against the possible arbitrary action of the Commissioner is to be found in R. 8, R. 8 of the aforementioned rules provides that where a gram panchayat passes unanimous resolution that a local area hitherto comprised in an existing gram panchayat should not to be excluded from that gram panchayat and thus opposes the proposal of the Commissioner of Panchayat Raj, the Commissioner of Panchayat Raj shall not exercise his powers under S. 3 of the Act and constitute a new Gram Panchayat by overruling the unanimous opposition of the gram panchayat except for special reasons to be recorded by him in writing. Thus R. 8 envisages Commissioner giving considerable weightage and consideration to the unanimous opposition of the gram panchayat voiced in resolution of the gram panchayat. Thus by means of R. 8, the somewhat unlimited powers of the Commissioner of the Panchayat Raj to constitute new gram panchayat by taking out any areas from the existing gram panchayat are limited and controlled. This is clearly a check on the Commissioner's power. This system of checks and balances devised by the rules should not be allowed to be lightly evaded by the Commissioner of Panchayat Raj. So far there is agreement in the case. The real point in this case is, whether the aforementioned unanimous resolution in Kolanapalli Gram Panchayat should be regarded as expressing unanimous opposition to the constitution of Komatigunta Gram Panchayat Raghuvir, J., held that the resolution of Kolanapalli Gram Panchayat cannot be considered as expressing unanimous opposition to the proposal of the Commissioner to constitute Komatigunta into a separate gram panchayat. The learned Judge observed :

'The resolution of March 30, 1978 shows the gram panchayat was not opposed to the bifurcation of the village or formation of Komatigunta as a separate village. The gram panchayat was opposed to certain areas of land to be formed as Komatigunta as opposed to the area or land proposed in the show cause notice. In that sense, there was no unanimous opposition to the suggestion made by the Commissioner as to the bifurcation of the village.'

On that basis, the learned Judge held that the resolution of Kolanapalli Gram Panchayat cannot be regarded as expressing unanimous opposition to the proposal of the Commissioner. Accordingly he held that it does not come within the purview of the above-mentioned R. 8. It is the view that is assailed in this appeal R. 8 is in the following terms.

'R. 8. Subject to the provision contained in these rules, where a gram panchayat passes an unanimous resolution that local area should not be excluded from, or included in, village, the Commissioner, 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.'

The language used in R. 8 contemplates the Commissioner to give special reasons where a gram panchayat passes unanimous resolution that a local area shall not be excluded from, or included in new gram panchayat. Now, the question is whether Kolanapalli Gram Panchayat 'passed a unanimous resolution that a local area should not be excluded from or included in the proposed gram panchayat of Komatigunta. It is clear from the facts stated above that Kolanapalli gram panchayat has unanimously opposed the inclusion of S. Nos. 1, 2, 3, 4, 31, 34, 40, 45 to 47 in the new Komatigunta Gram Panchayat. That resolution clearly attracts application of R. 8. But it is argued in support of the collector's action that what R. 8 contemplates is passing of a resolution opposing the idea of new panchayat and not its boundaries. According to this argument, so long as the idea of creating a new gram panchayat is agreed by the old gram panchayat, opposition to the boundaries of new gram panchayat cannot be regarded as a unanimous resolution within the meaning of R. 8. We cannot agree. There can be no gram panchayat without a special area. The area which is proposed to be included in the new gram panchayat is called by the rule as local area. If the resolution of the old gram panchayat opposes for the inclusion of the whole or major part of that area in the proposed new gram panchayat, it should be taken to be opposition on the part of the old gram panchayat to the constitution of new gram panchayat as proposed. The area covered by the S. Nos, which the Commissioner proposed to be included in the new Komatigunta Gram Panchayat and which was opposed unanimously by the Kolanapalli Gram Panchayat to be included in the new gram panchayat falls within the definitional meaning of the words, 'local area'. The aforementioned rules define the words, 'local area' to mean any area comprised within the jurisdiction of that gram panchayat. Now this definition of the words, 'local area', is clearly capable of taking in part of the area such as that comprised in the above S. Nos. If that were to be so, the unanimous resolution of the Kolanapalli Gram Panchayat opposing the exclusion of that local area clearly falls under R. 8. Thus R. 8 would be attracted and the consent given by the Kolanapalli Gram Panchayat for the constitution of Komatigunta gram panchayat by bifurcating other areas from Kolanapalli Gram Panchayat would be ineffective to exclude the application of R. 8. For the exclusion of R. 8 no amount of consent would be sufficient so long as there is unanimous opposition of the existing gram panchayat to the transfer of any part of its territory. Raghuvir, J., read the resolution of the Kolanapalli Gram Panchayat as amounting to giving a unanimous consent to the constitution of Komatigunta Gram Panchayat. But that circumstances in out view, is neither relevant nor decisive for the exclusion of application for the aforesaid R. 8. The crucial question that should be asked is whether Kolanapalli Gram Panchayat was unanimously opposed to the exclusion of its local area. The answer to that question does not admit any doubt and it is clearly in the affirmative. This would clearly attract the application of R. 8. It is not as if this situation cannot be remedied. If the Commissioner still sticks to his original proposal all that R. 8 would require him to do is to give special reasons in writing for overruling the unanimous resolution of the Komatigunta Gram Panchayat. The intention is that a dissenting resolution of a gram panchayat passed unanimously and without being vitiated by fraud or other irregularity should not be light-heartedly disregarded by the Commissioner. As this requirement of R. 8 is a salutary safeguard against any arbitrary exercise of the power by the Commissioner and that safeguard was built into a scheme we think we should not weaken the system. On the other hand we think we should call for strict compliance with R. 8. Since no special reasons have been given by the Commissioner in writing justifying his action ignoring the unanimous opposition of the Kolanapalli Gram Panchayat, we are left with no alternative except to set aside the Commissioner's order. Accordingly we set aside the judgment of out learned brother and allow the writ petition.

5. But we observe that his judgment should not prevent the Commissioner from giving special reasons for constituting Komatigunta into a separate gram panchayat as proposed by him. We also note that the general policy of the A. P. Gram Panchayat Act is to favour constitution of local areas into separate gram panchayat. This writ appeal is accordingly allowed and the judgment under appeal is set aside. No costs.

6. Appeal allowed.


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