*THE HON'BLE SRI JUSTICE P.S.NARAYANA +W.P.No.23036 of 2008 % 3-9-2009 # Maddela Yadaiah Goud .. Petitioner And $ The Principal Secretary for Panchayat Raj, Secretariat, Hyderabad and others .. Respondents <GIST: >HEAD NOTE: ! Counsel for petitioner : Sri D.Prakash Reddy ^ Counsel for respondents 1 to 4 : Assistant Government Pleader for Panchayat Raj Counsel for respondents 5 to 12 : Sri B.Vijaysen Reddy ? CASES REFERRED: 1. AIR 2000 A.P. 91 2. 1999(4) ALT 80 3. 1999(5) ALT 535 (DB) THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.23036 of 2008 Date : 3-9-2009 Between : Maddela Yadaiah Goud .. Petitioner And The Principal Secretary for Panchayat Raj, Secretariat, Hyderabad and others .. Respondents ORDER: 1. Maddela Yadaiah Goud, the writ petitioner, filed the present Writ Petition for a writ of mandamus for setting aside the impugned Order of the 1st respondent passed in Appeal No.22537/Pts-III/A2/08 dated 20-10-2008 and consequently to set aside the order of the 2nd respondent in file No.1052/2008-B1(Panchayat) dated 24-9-2008 declaring the same as null and void, arbitrary, illegal and unconstitutional and against the principles of natural justice and not substantial in the eye of law and to pass such other suitable orders. 2. Respondents 5 to 12 were impleaded vide order in W.P.M.P.No.33001/2008. 3. The relevant portion of the order under challenge in G.O.Rt.No.1571, Panchayat Raj and Rural Development (Pts-II) Department dated 20-10-2008 reads as hereunder:- “Government have gone through the material papers filed by the petitioner. It is on record that the petitioner has incurred a total expenditure of Rs.17,74,867/- during the year 2007-08 including the expenditure of Rs.10,92,000/- for purchase of High mass lights. It is also on record that the petitioner has purchased these high mass lights at different intervals from 15-11-2006. On 11-8-2007 he purchased 2 High mass lights but obtained Gram Panchayat resolution on 8-8-2007. Likewise on 12-10- 2007 he purchased 2 High Mass lights but obtained Gram Panchayat resolution on 24-1-2008 though there are standing instructions issued by the competent authority that before incurring such huge expenditure prior permission of higher authorities have to be obtained by the Gram Panchayat. It is rather surprising to see in the material papers filed by the petitioner that the Hayathnagar Gram Panchayat has obtained prior permission from the District Collector (PW), Ranga Reddy in Proc.No.A4/436/2006 dated 20-2-2006 for purchase of 2 Nos. High Mass lights in terms of rules issued in G.O.Ms.No.70, PR&RD (Rules) Department dated 29-2- 2000 as per the resolution of Gram Panchayat dated 24- 12-2005. Likewise the Yenekapally Gram Panchayat of Ranga Reddy District has also obtained prior permission of the District Collector (PW). In his reply to the show cause notice the petitioner has pleaded that he has purchased the High mass lights as per the rates indicated by the District Collector (PW) in the proceedings issued in respect of Hayathnagar Gram Panchayat and Yenekapally Gram Panchayat. When the petitioner has adopted the price of each unit permitted by the District Collector he ought to have also obtained prior permission of the District Collector (PW) as was done by the Gram Panchayat referred to above. The plea taken by the petitioner that as there was no regular Panchayat Secretary, nobody is there in the Gram Panchayat to guide him to obtain prior permission has no force, inasmuch as he himself has admitted that he has adopted the prices permitted by the District Collector. This attitude of the petitioner amply shows that he has no respect to follow the rules issued in G.O.Ms.No.70, PR&RD dated 29-2-2000. Being an elected representative he must be an example to follow the rules and be a law abiding citizen. Coming to the grant of Building Permissions the petitioner has admitted that he has granted construction permissions to several buildings as per the provisions of Act and Rules. The petitioner relied on the provisions of Section 121 and rules made thereunder and also G.O.Ms.No.67, PR&RD dated 26-2-2002. After verifying the connected records, the limits of the subject Gram Panchayat falls within the limits of HUDA. Therefore the orders issued in G.O.Ms.No.67, PR&RD dated 26-2-2002 has no application to Bandlaguda Gram Panchayat. As per Rule 31 of the rules issued in G.O.Ms.No.506, PR&RD dated 6-8-1994, prior technical approval from DTC/HUDA is necessary for all building permissions for heights more than 3 floors. Whereas the petitioner has granted several building permissions in violation of rules and regulations and thereby created a chaos in the village limits. It was brought to Government’s notice that the petitioner has granted irregular and illegal building permissions for construction of G+3 floors and more in the Gram Panchayat limits disregarding all the norms and regulations, which is nothing but misuse of powers and behaved in an irresponsible way.” It is needless to say that this order was made in a statutory appeal preferred by the petitioner before the 1st respondent and the said 1st respondent made the said order. The said statutory appeal was filed as against an order made by the 2nd respondent dated 24-9-2008. 4. Submissions of Sri Prakash Reddy: Sri Prakash Reddy, the learned Senior Counsel representing the writ petitioner had pointed out to the contents of the show cause notice and the charges levelled against the petitioner and the findings recorded and would point out that there appears to be no nexus between the charges framed and the findings recorded. The learned Senior Counsel also would comment that the District Collector-2nd respondent made the order relying on the order of the District Panchayat Officer but however the 2nd respondent failed to apply mind and further failed to observe the procedure as contemplated by Section 249(1) of A.P. Panchayat Raj Act (hereinafter in short referred to as “Act” for the purpose of convenience). The learned Senior Counsel also would comment that the 2nd respondent had not supplied the copy of the report of the Enquiry officer—District Panchayat Officer along with the show cause notice and the effect of it would be denying opportunity to the writ petitioner to make appropriate explanation. The learned Senior Counsel also would maintain that this is a pre-condition for exercise of power under Section 249(1) of the Act and thus it may have to be taken that the principles of natural justice also had not been followed. The learned Senior Counsel also relied upon certain decisions in this regard. While further elaborating his submissions, the learned Senior Counsel also touched the merits and demerits and made an attempt to demonstrate how the findings of the 2nd respondent and also the 1st respondent cannot be sustained in the light of the provisions of the Act and Sections 25, 45, 121, 249 and 265 of the Act as well. 5. Submissions of the learned Assistant Government Pleader for Panchayat Raj: the learned Assistant Government Pleader for Panchayat Raj would maintain that the members of Gram Panchayat Bandlaguda had made a representation on 19- 3-2008 to the 2nd respondent leveling certain allegations against the petitioner relating to grave irregularities in the administration of the Gram Panchayat and also made a request to take necessary action. The 3rd respondent-District Panchayat Officer, Ranga Reddy District directed the 4th respondent- Divisional Panchayat Officer, Chevella to conduct enquiry into the matter and to submit detailed report for taking necessary action. The 4th respondent-Divisional Panchayat Officer, Chevella had conducted enquiry and submitted a detailed report. The learned Assistant Government Pleader also had pointed out to Charge Nos.1 and 2 and also the clear findings recorded by the Primary Authority-2nd respondent and also the Appellate Authority-1st respondent and in the light of the grave irregularities inasmuch as convincing reasons had been recorded both by the Primary Authority and also the Appellate Authority, this is not a fit matter to be interfered with under Article 226 of the Constitution of India. 6. Submissions of Sri Vijaysen Reddy: Sri Vijaysen Reddy, the learned Counsel representing the respondents 5 to 12 would maintain that at their instance only action had been initiated. The learned Counsel also would maintain that it may that there is some discrepancy in the charge framed and the findings recorded. But however, it is not as though the petitioner is not aware of the substance of the charge and this is clear from the explanation submitted by the petitioner and hence it cannot be said that any prejudice had been caused in this regard. Even otherwise, in the light of the clear findings which had been recorded by both the 2nd respondent and also the 1st respondent, especially in view of the fact that these irregularities are grave irregularities, this is not a fit matter to be interfered with by the writ Court under Article 226 of the Constitution of India. 7. Heard the Counsel, perused the affidavit filed in support of the Writ Petition, the respective counter affidavits and also the order made by the Primary Authority-2nd respondent, the order made by the Appellate Authority in the statutory Appeal-the 1st respondent and the other material papers which had been placed before this Court. 8. The only question to be considered in the present Writ Petition is whether the findings recorded by the Primary Authority – 2nd respondent, which had been confirmed by the Appellate Authority – 1st respondent, in the order under challenge before this Court in the present Writ Petition to be confirmed or to be disturbed in the facts and circumstances of the case. 9. The relief prayed for in the Writ Petition already had been specified above. It is the case of the writ petitioner that the petitioner had taken charge as Sarpanch of A-Grade Gram Panchayat, Bandlaguda Jagir, Ranga Reddy District on 23-8- 2006 and after taking charge, the petitioner had initiated several developmental programmes and successfully conducted all the programmes in the welfare of the citizens of the Gram Panchayat. Further it is stated that the 2nd respondent passed an erroneous order under Section 249(1) of A.P. Gram Panchayat Act to remove the petitioner from the post of Sarpanch and directed the Mandal Parishad Development Officer to recover a sum of Rs.10,92,000/- from the petitioner under Revenue Recovery Act and as per Section 265 of the Act within two months and to credit the amount to the account of the Gram Panchayat and to report the same. The Mandal Parishad Development Officer had been authorized as per G.O.Ms.No.118 (Revenue) dated 18-3-2002. It is also further directed that Smt.Fatima Bee, Upa-Sarpanch of the Gram Panchayat takes charge as incharge Sarpanch and to report the same to the office of the 2nd respondent. 10. It may be appropriate to have a glance at Section 265 of the Act which deals with Liability of Sarpanch, President, “Chairperson” etc., for loss, waste or misapplication of property and the same reads as hereunder: (1) If, after giving the Sarpanch, Upa-Sarpanch, President, Vice-President, “Chairperson”, “Vice-Chairperson or the executive authority, the Mandal Parishad Development Officer, the Chief Executive Authority an opportunity of showing cause to the contrary, the Commissioner is satisfied that the loss, waste or misapplications of any money or other property owned by or vested in the gram panchayat, Mandal Parishad, or as the case may be the Zilla Parishad is a direct consequence of misconduct or gross neglect, on the part of such person, the Commissioner may, by order in writing, direct such person to pay to the Gram Panchayat, Mandal Parishad or as the case may be, the Zilla Parishad before the date fixed by him, the amount required to reimburse it for such loss, waste or mis-application, unless such person proves that he had acted in good faith. (2) If the amount is not so paid, the Commissioner shall cause it to be recovered as arrears of land revenue and credited to the fund of the Gram Panchayat, Mandal Parishad or as the case may be, Zilla Parishad. (3) An appeal shall lie within thirty days from any decision of the Commissioner under this section to the Government whose decision thereon shall be final”. 11. Further it is the case of the petitioner that the petitioner had been elected as Sarpanch on 2-8-2006 with majority votes and he had taken charge as Sarpanch of the Gram Panchayat, Bandlaguda on 23-8-2006 and hence the question of removing the petitioner under false and baseless allegations made by some of the Ward members is illegal. The District Collector (Panchayat Raj Wing), Ranga Reddy District without following the due procedure as contemplated under Section 249(1), 249(7) and 265 of the Gram Panchayat Act had made the order illegally and the same is not sustainable and is liable to be set- aside. It is also stated that the alleged irregularity under notice dated 15-7-2008 bearing file No.1052/2008-B1(Pts) issued by the 2nd respondent had been duly clarified through reply letter dated 23-7-2008 submitted by the petitioner that the petitioner had purchased 14 High Mass lights based on the resolution passed by the Gram Panchayat with the approval of the Panchayat Secretary, Bandlaguda Jagir, Rajendranagar Mandal, Ranga Reddy District and hence the petitioner had not violated any provisions of the Act. It is further stated that the petitioner had also submitted a letter to the 2nd respondent to accord sanction on 23-7-2008 and the alleged irregularity of according building permission in building permission No96/6 to M/s. Anuradha Properties and Township Pvt. Limited. is baseless and false. The alleged permission is accorded as the said firm had paid the due amount vide Receipt No.94 dated 15- 10-2007 to the Gram Panchayat and also the said firm had submitted its application to HUDA authorities and paid the requisite fees vide its application No.12557/08. As held by the District Collector in his order dated 24-9-2008 vide G.O.Ms.No.408 the Sarpanch and Executive Officer are endowed to accord permission for construction upto 1000 sq. mtrs. 12. It is also further stated that the Upa Sarpanch who is aware that this Court was pleased to pass an interim order directing the petitioner to continue as Sarpanch on 29-9-2008 knowingly and wantonly in dispense of the orders of this Court with unlawful assembly of the other respondents 2 to 12 passed resolution on 29-9-2008, issued the building permissions for 73 buildings and 24 tap connections out of which some are open plots. Even there is no resolution for 30 buildings for which sanction was granted. The action of the respondents from the date of taking the charge on 4-10-2008 till the date of passing the interim order by this Court clearly establishes the mala fide intention to step down the petitioner from the post of Sarpanch either hook or crook and by adopting illegal methods. Even the respondent had not hesitated to violate and commit breach of the interim orders granted by this Court on 29-9-2008 while sanctioning the building permissions for 73 buildings. Even otherwis, the very charge leveled against the petitioner is that the petitioner had granted permission for one of the building which is also permitted under G.O.Ms.No.67, P.R. & R.D. and for no fault of the petitioner, the petitioner had been removed by the District Collector by misusing the powers under Section 249(1) of Act. 13. Further it is stated that the 1st respondent confirmed the allegation No.1 only on the finding that the petitioner had not obtained prior permission of the District Collector before purchasing the High Mass lights. In respect of allegation No.2, the 1st respondent held that the attitude of the petitioner amply shows that he has no respect to follow the rules issued under G.O.Ms.No.70, P.R. & R.D. dated 29-9-2000. Being an elected representative, the petitioner must be an example to follow the rules and be a law abiding citizen. It is further observed by the 1st respondent that as per Rule 31 of the Rules issued under G.O.Ms.No.506, P.R. & R.D. dated 6-8-1994, prior technical approval from DTC/HUDA is necessary for all building permissions for heights more than three floors. It was further held that the petitioner had granted several building permissions in violation of Rules and Regulations and thereby created chaos in the village limits. It was further held by the 1st respondent before bringing to the notice of the Government that the petitioner had granted irregular and illegal building permissions for construction of G+3 floors and more in the Gram Panchayat limits disregarding all the norms and regulations which is nothing but misuse of powers and behaved in an irresponsible way. 14. Further it is stated that the 1st respondent also erroneously held that the petitioner had granted several building permissions without any iota of evidence or record before him whereas the very allegation No.2 levelled against the petitioner that he had accorded only one building permission in Sy.No.96/6 for G+3 floors, but contrary to the allegations by highlighting the allegations with an intention to dismiss the petition, the 1st respondent wrongly mentioned that the petitioner had granted permission for building G+3 and G+4 which clearly establishes the policy of the Government keeping in view of the coming elections the opponent Sarpanchs ought to be removed from the post of Sarpanch to facilitate the Sarpanchas supporting the ruling party. The endorsement of the District Panchayat Officer in the records of Hydershakhot Gram Panchayat which is quite adjacent to the petitioners Gram Panchayat and near to the Hyderabad city than the petitioner Gram Panchayat had been filed which states “G.O.Ms.No.67 PR & RD dated 26-2-2002 permits to grant permission to G+2 and G+3”. It is further stated that G.O.Ms.No.67 dated 26-2-2002 had been issued under A.P. Gram Panchayat Land Development (Layout and Building) Rules 2002 and under Clause 20(1)(ii) of the said G.O. the minimum open spaces/setbacks (open sky and height restriction) to height permissible had been stated as 9 metres or G+2 floors in Gram Khantam and 13 metres or G+3 floors height in Revenue survey number areas and hence it is stated that it is crystal clear that the alleged contravention is 96/6 Radhanagar colony and permitted layout is G+3 floors in favour of M/s. Anuradha Properties & Township Pvt. Limited, Secunderabad and hence the question of violation and misuse of powers by the petitioner does not arise. 15. Further it is stated that G.O.Ms.No.67 dated 26-2-2002 supercedes Rule 31 of the Rules issued under G.O.Ms.No.506, P.R. & R.D. dated 6-8-1994 and as such the allegation leveled against the petitioner that the petitioner contravened G.O.Ms.No.506 is imaginary by-product and non-application of mind by the 1st respondent and hence the impugned order of the 1st respondent is liable to be set-aside and consequently the order of the 2nd respondent in File No.1052/2008-B1(Panchayat) dated 24-9-2008 be set-aside. The petitioner further reserved his right to initiate contempt proceedings against the Upa- Sarpanch and other members in due course of time. Further it is stated that the petitioner had undoubtedly purchased the High Mass lights based on the lowest quotation which clearly establishes that the petitioner is maintaining clean record and got elected as Sarpanch for the first time and hardly having the experience as Sarpanch of two years had carried out the developmental works. As such the 2nd respondent ought to have appreciated the dynamic work undertaken by the petitioner for maintaining good records. 16. Further, if the competent authority is placing reliance on any part of any report before issuing a show cause notice, the Sarpanch shall have to be supplied with a copy of such report and failure to do so could not be sufficient compliance with the principles of natural justice. It is also further stated that after Constitution 73rd Amendment, the Sarpanch of a Gram Panchayat is a constitutionally recognized office. The Sarpanch is elected by direct election and shall hold office for a period of five years and he has statutory functions to perform under Section 25 of the Act. The democratically elected Sarpanch is however subject to the powers of the District Collector who can remove a Sarpanch from the office and therefore the power of the District Collector under sub-section (1) of Section 249 of the Act in so far as it deals with removal of the Sarpanch is an extraordinary power which is to be exercised with due care and keeping in view the letter and spirit of the provisions of law. The impugned order of the 2nd respondent is contrary to the provisions of the Act especially is in violation of Section 249(1) and Section 265 of the Act and as such the impugned order is not sustainable and is liable to be set-aside. 17. The impugned order is also contrary to law and the provisions of the Act inasmuch as the 2nd respondent failed to investigate into the matter thoroughly in respect of the allegations made against the petitioner. The 2nd respondent without applying his mind to the facts of the case, especially that the Sarpanch has no adequate knowledge and experience and without giving sufficient opportunity to the petitioner to prove his case, passed the impugned order is the same is liable to be set- aside. The alleged irregularity committed by the petitioner for purchase of High Mass lights and for permission for certain construction without obtaining the sanction of the 2nd respondent does not come within the purview of irregularity and merely the charges had been framed and the finding of the authorities that the said charges were proved does not necessarily mean that the case falls within sub-clause 249(1) of the Act. It is further stated that the very show cause notice issued under Section 249(1) and under Section 265(1) by the 2nd respondent dated 15-7-2009 in Notice No.1052/2008-B1(Pts) calling upon the petitioner to show cause why the petitioner shall not be removed from the post and recover an amount of Rs.10,92,000/- without giving an opportunity to the petitioner either to serve the copy of enquiry report or to submit his explanation itself clearly establishes the firm intention of the respondents to remove the petitioner from the post of Sarpanch who is lawfully elected by the public in general election of the Gram Panchayat. 18. The concerned authorities had not appointed any person as Panchayat Secretary on permanent basis and at the same time the M.P.D.O. of Rajendranagar Mandal is acting as incharge Panchayat Secretary who will take charge as Panchayat Secretary for few days at regular interval of four months. The 2nd respondent without any iota of evidence and without any basis for the alleged misappropriation, contrary to Section 266(1) and 267(1)(a)(b)(c) passed the impugned order for removal of the petitioner from the post of Sarpanch of Bandlaguda Jagir which is undemocratic and unconstitutional act of the 2nd respondent. Further it is stated that the 2nd respondent ought to have taken note that the petitioner’s Gram Panchayat being a Grade-A Gram Panchayat and all accounts had been supervised by the Executive Officer, Gram Panchayat and that the petitioner has no individual cheque power but all the note files had been approved by the Executive Officer (E.O. (PRD). As due to recent allegations the cheque power had been amended by introducing joint signatures of the Extension Officer/P.R.D. and the third signature of elected Ward member of the Gram Panchayat and the countersignature of the Extension Officer, PR & RD. Hence the mere allegations making the petitioner a scapegoat and without applying the mind about the procedure involved in utilizing the funds is not just and proper. When the funds were utilized with the approval of the resolution passed by the Gram Panchayat, making the petitioner alone as responsible for the alleged irregularities under baseless allegations will not attract Section 249(1) of the Act. The 2nd respondent committed grave irregularity vested in him by arbitrarily exercising the powers under Section 249(1) of the Act. 19. It is also further stated that the petitioner submitted his clarifications with suitable replies towards all the allegations of irregularities against the show cause notice. The same aspect had not been proved by the 4th respondent in his report and there is no report of any irregularity committed by the petitioner, but the 2nd respondent without