IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWELFTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION No. 2353 of 2008 Between: Grameena Santhala Abhivruddi Society, Rep. by its President T. Sudheer Reddy, S/o. Anantha Reddy, Aged about 45 Yars, Occ: Business, R/o. Gajnagar Village and Mandal, Devarakonda, Nalgonda District. ..... PETITIONER AND 1 The State of Andhra Pradesh, Rep. by its Secretary Department of panchayat Raj and Rural Employment, Secretariat, Hyderabad. 2 The District Collector (Panchayat Wing), Nalgonda, Nalgonda Ditrict. 3 The District Panchayat Officer, Nalgonda, Nalgonda District. 4 The Divisional Panchayat Officer, Nalgonda District. 5 Gajinagar Gram Panchayat, Rep. byits Secretary, D. Konda Mandal, Nalgonda District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate Writ or order or direction more particularly one in the nature of Writ of mandamus declaring the impugned proceedings No. 1729/2007-B3(PTCS) dated 25-01-2008 issued by the 2nd respondent directing the 5th respondent not to allow the petitioner society to conduct cattle market (Angadi) on every Sunday as arbitrary, illegal, contrary to law and violation of Article 14, 19 (1) (g) and 21 of the Constitution of India and violation of Principles of natural justice and set aside the same and consequently direct the respondents to allow the Petitioner society to conduct cattle market (angadi) on every Sunday in S.No. 55 of Gajinagar Village, Devarakonda Mandal, Nalgonda District. pursuant to the permission/license granted by the 5th respondent. Counsel for the Petitioner : MR. G.NATHESH REDDY Counsel for the Respondents : GP FOR PANCHAYAT RAJ & RURAL DEV. The Court made the following: THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION NO.2353 OF 2008 ORDER : The petitioner society, which is conducting cattle market on every Sunday in Gazi Nagar Gram panchayat filed this writ petition seeking a declaration that the proceedings of the 2nd respondent - District Collector (P.W.), Nalgonda, dated 25.1.2008 directing the Gazi Nagar Gram Panchayat not to allow the petitioner society to conduct cattle market on Sunday is arbitrary, illegal and without jurisdiction. The case of the petitioner, in brief, is as under : By resolution, dated 18.01.2007, passed by the 5th respondent (hereinafter referred to as Gazi Nagar Gram Panchayat) in its General Body Meeting, the petitioner society was granted the leasehold rights for a period of four years from 2007 to 2011 to conduct cattle market once in a week within the area of operation of Gazi Nagar Gram Panchayat, D.Konda Mandal, Nalgonda District. Pursuant thereto, the petitioner society, having paid the requisite amount, has been conducting cattle market on every Sunday at Gazi Nagar Village. While so, certain third parties started interfering with its activities in the cattle market. In the circumstances, the petitioner society made a representation dated 16.11.2007 requesting Gazi Nagar Gram Panchayat to provide protection. Alleging that the Gram Panchayat failed to take any action, the petitioner society filed W.P.No.24960 of 2007. The said writ petition was disposed of by this Court, by order, dated, 26.11.2007, with a direction to Gazi Nagar Gram Panchayat to consider the petitioner’s representation dated 16.11.2007 and take appropriate action in accordance with law. In pursuance thereof, the 2nd respondent – District Collector (Panchayat Wing), by Memo dated 28.12.2007 directed Gazi Nagar Gram Panchayat to dispose of the petitioner’s application dated 16.11.2007 in compliance with the order of this Court and in turn the Panchayat Secretary of Gazi Nagar Gram Panchayat, requested the Station House Officer, Devarakonda, to provide police protection to enable the petitioner to run the cattle market on every Sunday. However, immediately thereafter the 2nd respondent issued the impugned proceedings dated 25.1.2008 directing Gazi Nagar Gram Panchayat not to conduct cattle market on Sunday on the ground that cattle market is being conducted on Sunday by Kondamallepally Gram Panchayat which is situated at a distance of less than 5 kms. from Gazi Nagar Gram Panchayat and that in similar cases instructions were issued in G.O.Ms.No.1403, dated 17.10.1961 and G.O.Ms.No.370, dated 1.6.1981 not to allow conduct of new market on the same day on which a market is already being conducted. Aggrieved by the same, the present writ petition is filed contending inter alia that the 2nd respondent has no power or authority to pass the impugned order. It is further contended that the 2nd respondent is not competent to vary the resolution passed by Gazi Nagar Gram Panchayat granting lease in favour of the petitioner on any ground whatsoever since the appellate power under Section 246 of the Act is vested only in the Government. The 2nd respondent filed a counter-affidavit stating that the Sarpanch and Ward Members of Kondamallepalli Gram Panchayat of Devarakonda Mandal made a representation dated 18.12.2007 stating that whereas Kondamallepalli Gram Panchayat has been conducting cattle market on every Sunday for the past 30 years, the 5th respondent – Gazi Nagar Gram Panchayat granted a licence in favour of the petitioner society to conduct a cattle market on every Sunday which is contrary to G.O.Ms.No.370, P.R. (PTS.III) Department, dated 1.6.1981. In pursuance thereof, the 2nd respondent, by order dated 22.12.2007 directed Gazi Nagar Gram Panchayat not to allow the petitioner society to run the cattle market until further orders and further directed the Divisional Panchayat Officer, Miryalaguda to conduct an enquiry. After conducting such enquiry, the Divisional Panchayat Officer submitted his report dated 5.1.2008 stating that the cattle market situated in Gazi Nagar is within 5 kms. radius of Kondamallepalli Gram Panchayat and therefore granting of licence to conduct a cattle market at Gazi Nagar is contrary to G.O.Ms.No.370, dated 1.6.1981. It is also stated that no meeting was conducted by the Gazi Nagar Gram Panchayat on 18.1.2007 and the resolution dated 18.1.2007 granting licence in favour of the petitioner society was not true. On the basis of the said report, the 2nd respondent passed the impugned proceedings dated 25.1.2008 directing Gazi Nagar Gram Panchayat not to conduct cattle market on Sunday at Gazi Nagar. However, it was made clear that the Gram Panchayat may permit cattle market on any other day other than Sunday without hindrance to Gram Panchayat Kondamallepalli. It is also contended by the 2nd respondent that not only the resolution dated 18.1.2007 passed by Gazi Nagar Gram Panchayat was not only contrary to G.O.Ms.No.370, dated 1.6.1981, but it was also contrary to t h e procedure contemplated under the statutory rules made in G.O.Ms.No.496, P.R., dated 11.6.1966. It is pointed out that as per the statutory rules the lease for more than one year cannot be granted without prior approval of the 2nd respondent and the lease, if any, shall be granted by conducting a public auction and not by mere passing a resolution by the Gram Panchayat. Thus, it is contended that the action of the 5th respondent – Gazi Nagar Gram Panchayat in granting the lease in favour of the petitioner society being illegal, the impugned notice was rightly issued. The lessee who was granted a lease by Kondamallepalli Gram Panchayat for running the weekly cattle market on every Sunday in the said Gram Panchayat got himself impleaded as 6th respondent and filed a counter-affidavit stating that Gazi Nagar Gram Panchayat is at a distance of 1 ½ kms. from Kondamallepalli Gram Panchayat. It is also alleged that the writ petitioner in collusion with the Sarpanch and Panchayat Secretary of Gazi Nagar Gram Panchayat managed to obtain a lease for conducting the weekly cattle market on every Sunday at Gazi Nagar Gram Panchayat for a period of four years on the basis of a manipulated resolution. Since the lease in favour of the petitioner itself was illegal, the 6th respondent made a representation before the 2nd respondent and after making the necessary enquiry the impugned order dated 25.1.2008 was passed restraining the petitioner from conducting the cattle market on Sunday. I have heard the learned counsel for both the parties and perused the material on record. As could be noted from the pleadings, there appears to be a dispute with regard to the legality of the leasehold rights granted in favour of the writ petitioner on the ground that the same were granted by Gazi Nagar Gram Panchayat without following the procedure laid down under the statutory rules made under G.O.Ms.No.496, P.R., dated 11.6.1966. As per Section 276(2) of the A.P. Panchayat Raj Act, 1994, the above said Rules are saved and it is not in dispute that the same are applicable as on today. As a matter of fact, the resolution dated 18.1.2007 said to have been passed by Gazi Nagar Gram panchayat itself is alleged to be manipulated and created by the Sarpanch of the Gram panchayat and on that ground disciplinary proceedings are initiated against the Sarpanch as well as the Panchayat Secretary of the Gram Panchayat which are also pending. Even assuming that the resolution dated 18.01.2007 passed by Gazi Nagar Gram Panchayat is illegal or irregular on any ground whatsoever, the question that arises for consideration is whether the 2nd respondent is competent to suspend or cancel the said resolution. In this regard, it is necessary to refer to Section 246 of the A.P. Panchayat Raj Act, 1994, which deals with cancellation or suspension of the resolution passed by a Gram Panchayat. 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 Authority or Mandal Parishad Development Officer or as the case may be, the Chief Executive Authority, in the manner prescribed by order in writing cancel any resolution passed by a Gram Panchayat Mandal 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.” As could be seen, under sub-section (1) of Section 246 of the Act, if in the opinion of the Government the resolution passed by a Gram Panchayat is not legally passed or it is in excess or abuse of the powers conferred by the Act or any other law or the execution of such resolution is likely to cause danger to human life, health or safety or is likely to lead to a ryot or affray, the Government is empowered to cancel such resolution after giving an opportunity for explanation to the concerned Gram Panchayat. Though sub-section (3) of Section 246 of the Act enables the 2nd respondent to make a report to the Government that in his opinion immediate action is necessary to suspend a resolution on any of the grounds referred to in clause (c) of sub-section (1) of Section 246 of the Act, the power to suspend the resolution by order in writing is also conferred only on the Government. The above legal position has been reiterated by a Division Bench of this Court in EGUVAKAMMAKANDRIGA GRAM PANCHAYAT v. DISTRICT COLLECTOR, CHITTOOR. Having regard to the specific powers conferred on the Government under Section 246 of the Act and in the light of the ratio laid down by the Division Bench in the above decision, it is clear that the Government alone is competent to cancel or suspend the resolution passed by the Gram Panchayat. Section 246 (3) of the Act confers limited powers on the 2nd respondent to make a report to the Government, if he is of the opinion that immediate action is necessary to suspend a resolution on any grounds referred to in clause (c) of Section 246 (1) of the Act. On such report, the power to suspend the resolution by order in writing is again vested in the Government. In the circumstances, I find force in the submission of the learned counsel for the petitioner that the impugned order dated 25.1.2008 directing the Gazi Nagar Gram Panchayat not to allow the petitioner society to conduct the cattle market on Sunday which virtually amounts to suspension of the resolution dated 18.1.2007 passed by the Gram Panchayat is without jurisdiction. However, the learned Government Pleader for Panchayat Raj as well as the learned counsel for the 6th respondent contended that since the 6th respondent has been operating a cattle market on every Sunday at Kondamallepally, which is at a distance of less than 5 Kms. from Gazi Nagar on the basis of a valid lease granted by Kondamallepally Gram Panchayat, no new market can be conducted on Sunday by the petitioner society. It is pointed out by the learned counsel for the respondents that in identical circumstances, while dealing with a dispute between Kondamadugu Gram Panchayat and Bibinagar Gram Panchayat of Nalgonda District with regard to conducting of cattle market, the policy that no permission or licence should be granted which would be prejudicial to the interest of the existing markets in the neighbourhood was upheld by the Government. The said decision of the Government in G.O.Ms.No.1403, dated 17.10.1961 and G.O.Ms.No.379, dated 1.6.1981 in which Bibinagar Grampanchayat was directed to hold the market on any day other than Tuesday since Kondamadugu Gram Panchayat was holding its weekly cattle market on Tuesdays has also been placed before this Court. The learned counsel for the 6th respondent while placing reliance upon the said Government Orders contended that th e impugned proceedings of the 2nd respondent dated 25.1.2008 prohibiting the petitioner from conducting cattle market on Sunday, being in conformity with the policy of the Government, does not suffer from any infirmity. The learned counsel also pointed out that since it is open to the petitioner to conduct cattle market on any other day of the week except Sunday, the impugned order does not interfere with the leasehold rights granted in favour of the petitioner under the resolution dated 18.1.2007 and therefore the same cannot be held to be without jurisdiction. The learned counsel for the 6th respondent also made an attempt to justify the impugned proceedings contending that the powers under Section 246 of the Act were delegated in favour of the 2nd respondent under the repealed A.P. Gram Panchayats Act, 1964 and the same continued under the A.P. Panchayat Raj Act, 1994 by virtue of savings clause under Section 276 (2) of the Act. However, nothing could be placed before this Court to show that the powers conferred on the Government under Section 246 of the Act are delegated in favour of the 2nd respondent. The respondents also could not point out any provision under the Act under which the 2nd respondent is conferred with any power of superintendence with regard to affairs of all the Gram Panchayats in the District. The material placed before this Court shows that pursuant to the resolution passed by the Gazi Nagar Grampanchayat, the petitioner has been conducting cattle market on every Sunday within the area of operation of Gazi Nagar Gram Panchayat and a lease deed dated 8.01.2008 was also executed in favour of the petitioner to conduct cattle market on every Sunday. As expressed above, even assuming that the said resolution dated 18.1.2007 was illegal and consequently the petitioner did not acquire any legal right to conduct cattle market on Sunday, the only course open to the respondents is to pursue the remedy available under Section 246 of the Act. Admittedly, the 2nd respondent, on the basis of the complaint received from the Sarpanch and ward Members of Kondamallepalli Gram Panchayat, after conducting necessary enquiry, submitted a report dated 4.03.2008 to the 1st respondent stating that the resolution dated 18.1.2007 was illegal and, therefore, liable to be set aside under Section 246(1) of the Act. The original record placed before this Court by the learned Government Pleader further shows that on the basis of the report of the 2nd respondent dated 4.03.2008, the 1st respondent having taken cognizance of the matter, by order dated 5.5.2008 directed to maintain status quo as an interim measure under sub-section (3) of Section 246 of the Act. In the circumstances, it is neither necessary nor proper for this Court to express any opinion as to the legality of the resolution dated 18.1.2007. Since the matter is already taken cognizance by the 1st respondent under Section 246 of the Act, it is for the 1st respondent to make necessary enquiry and pass appropriate orders following due process of law. So far as the impugned order dated 25.1.2008 under which the Gazi Nagar Gram panchayat was directed not to conduct cattle market on Sunday is concerned, as expressed above, since the same amounts to modifying the resolution dated 18.1.2007 passed by the Gazi Nagar Gram Panchayat, the same is impermissible and without jurisdiction. Even where immediate action is necessary to suspend the resolution, the 2nd respondent is competent only to make a report and thereupon the power to suspend the resolution is vested in the Government. Accordingly, the writ petition is disposed of with a direction to the 1st respondent to make necessary enquiry on the basis of the report received from the 2nd respondent dated 4.03.2008 and pass appropriate orders in accordance with law after hearing all the parties concerned as expeditiously as possible preferably within a period of four weeks from the date of receipt of this order. The writ petitioner as well as the 6th respondent herein are also granted liberty to appear before the 1st respondent and to make their submissions. The impugned order passed by the 2nd respondent, which is already declared as without jurisdiction, is hereby set aside. Writ Petition is accordingly disposed of. No costs. ______________ G. ROHINI, J. Dt. 12.08.2008 gbs Note:- LR copy to be marked. (B/O) gbs