*THE HONOURABLE SRI JUSTICE P.S.NARAYANA +W.P.No. 16071 of 2009 % 22-09-2009 # Shaik Osman and another …Petitioners A N D $The District Panchayath Officer, Nizamabad and others …Respondents !Counsel for the Petitioner : M.Surender Rao Counsel for the Respondent No.1: G.P. for Panchayath Raj Counsel for the Respondent No.2: G. Elisha Counsel for the RespondentNo.3: B.Venu Madhav <Gist : >Head Note: ? Cases referred: [1] 2002(3) ALD 163 (DB) 2 2009(1) ALD 465 THE HONOURABLE SRI JUSTICE P.S.NARAYANA TUESDAY, THE TWENTY SECOND DAY OF SEPTEMBER, TWO THOUSAND AND NINE W.P.No. 16071 OF 2009 Between: Shaik Osman and another …Petitioners A N D The District Panchayath Officer, Nizamabad and others …Respondents THE HONOURABLE SRI JUSTICE P.S.NARAYANA W.P.No. 16071 OF 2009 ORDER This Court ordered notice before admission on 10-8-2009, 2nd Respondent filed counter affidavit. 3rd Respondent is represented by Sri K. Venu Madhav. 2. This writ petition is filed for a writ of mandamus declaring that the Proceedings issued by the 1st respondent in Proceedings No.438/2009/B5 (P), dated 30-7-2009 as illegal, arbitrary and one issued without any power and jurisdiction and to set aside the same and pass such other suitable orders. 3. Learned Additional Government Pleader for Panchayath Raj and Mr.G. Elisha representing Respondent No.1 and 2 respectively having taken notice requested time to file counter affidavit and as already stated Sri K. Venu Madhav entered appearance on behalf of Respondent No. 3. 4. Sri M. Surender Rao, learned counsel representing writ petitioners would maintain that the District Panchayat Officer, Nizamabad has no authority or jurisdiction to entertain the appeal and the same being incompetent, the order under challenge is liable to be set aside. Incidentally Sri M. Surender Rao also would maintain that even the subsequent cancellation had been challenged wherein stay of further proceedings had been obtained. At any rate, Sri M. Surender Rao, learned counsel would maintain that even in the light of the stand taken in the counter affidavit, this order under challenge being incompetent or without jurisdiction the same is liable to be set aside. 5. Learned counsel also placed strong reliance on Aljapur Ganga Mohan Vs. District Panchayat Officer, Nizamabad[1] and in Gram Panchayat, Sidhantam, Penugonda Mandal, West Godavari District Vs. District Panchayat Officer, Eluru, West Godavari District and others[2]. 6. Learned Additional Government Pleader for Panchayat Raj had taken this Court through Section 128 of A.P. Panchayat Raj Act, 1994 (Hereinafter referred to as ‘the Act’ for the purpose of convenience) and would maintain that it is true that before the District Panchayat Officer Under Section 128 of the Act only second appeal can be maintained and this appeal, as such, is incompetent. 7. Sri G. Elisha, the learned counsel representing 2nd respondent, however had brought to the notice of this Court, the subsequent events relating to the cancellation and would maintain that when the very foundation for the present lis disappeared it would not seriously alter the situation, whether the order under challenged is set aside or not. 8. Sri K. Venu Madhav learned counsel representing 3rd respondent would maintain that though it is stated that appeal had been preferred no acceptable material, as such, had been placed before this Court and when the very permission had been cancelled, the order under challenge whether disturbed or not, may not in any way alter the situation. Learned counsel would also maintain that even otherwise, the writ petition itself is not a bonafide one for the reason that the writ petitioners along with others had instituted a suit in O.S.No. 41 of 2009, on the file of the Senior Civil Judge, Bodhan as against the 3rd respondent and certain others. Learned counsel would also maintain that in the light of the interim orders obtained in the said suit, no further orders need be passed in the present writ petition. At any rate, on the ground of lack of bonafides, the writ petition is liable to be dismissed. 9. Heard the counsel and perused the respective stands taken by the parties in the affidavit filed in support of the writ petition and also in the counter affidavit and also the material papers placed before this Court. 10. The relief prayed for by the writ petitioners already had been specified supra. It is the case of the writ petitioners that the petitioners purchased Ac.0-16 gts by sale deed bearing document No. 868/84, dated 11-6-1984 from Sri Saibu. By proceedings dated 10-5-1995 Pattedar Pass Books were also issued. Similarly by the very same proceedings Title Deeds in respect of the said property also had been recorded. 11. It is also the case of the writ petitioners that they have been running a saw mill there, they wanted to make construction of shops and residential houses in the remaining part of the land before they thought of making constructions of shop and residential portions, the writ petitioners with their own funds constructed masjid by earmarking land measuring 1 gunta. The said masjid was constructed for general public professing Islamic faith. There is an approach road to the said masjid, from Ward No.14 of Bichkunda village and mandal of Nizamabad District. The above said land is in Survey No. 16 above a 100 feet wide PWD road from Bichkunda to Banswada. 12. It is also the case of the writ petitioners that an application dated 1-9-2004 seeking permission of Gram Panchayat for making construction in their own land in Sy.No16 measuring 0-15 guntas was made and the said application was placed before the Grampanchayat on 4-9-2004. The Grampanchayat passed a resolution on 4-9-2004 resolving to grant permission in accordance with the plan submitted by the petitioners, the Grampanchayat granted permission vide Permit No. 64 of 2004 dated 27-10-2004. The writ petitioners commenced the construction in terms of the said plan within time. 13. It is also the case of the petitioners that they were advised that they should take extension and renewal of the permission, as they have not completed the constructions within the time of one year. The Grampanchayat extended and renewed the permission by endorsement, from 26-10-2005 to 25-10-2006 and it was further extended from time to time and the last extension was granted from 24- 10-2008 to 23-10-2009, they had partly constructed the construction. The construction insofar as shops is concerned the same is under progress. 14. Further, it is stated that one M.A. Lateef s/o: M.A. Mazeed claiming to be Sader of a non existing mask committee of Mastiday Abedien Minority at Bichkunda filed a revision petition before the District Panchayat Officer at Nizamabad purportedly under Section 128 of the Act. The 1st respondent entertained the same and issued proceedings bearing No. 438 of 2009, dated 30-7-2009 directing stay of construction by them in their own site in accordance with permit No. 64 of 2004. Thus they are aggrieved of the said order. 15. Section 128 of the Act reads as hereunder. “128. Appeal from the order of executive authority:- (1) An appeal shall lie to the gram panchayat from:- a) any order of the executive authority granting, refusing, suspending or revoking a licence or permission; b) any other order of the executive authority that may be made appealable by rules made under Section 268. 2) A second appeal shall lie from the decision of the gram panchayat passed in an appeal under sub-section (1) to such authority as may be prescribed whose decision thereon shall be final”. 16. Further it is stated that section 120 of the Act provides for applications to be made for construction of a factory or workshop or work place and the said provision reads as hereunder:- “120. Applications to be made for construction, establishment or installation of factory, workshop or work-place in which steam or other power is to be employed:- (1) Every person intending:- (a) to construct or establish any factory, workshop or workplace in which it is proposed to employ-steam power water power or other mechanical power or electrical power; or (b) to install in any premises any machinery or manufacturing plant driven by steam, water or other power as aforesaid, not being machinery or manufacturing plant exempted by rules made in this behalf shall, before beginning such construction, establishment or installation, obtain the permission of the gram panchayat in the prescribed manner for undertaking the intended work. (2) The application to be made under sub-section (1) shall conform to such rules and shall be processed in such manner and in consultation and approval of such authorities and subject to such conditions as may be prescribed”. 17. It may be appropriate to have a look at Section 121 of the Act and Section 121 of the Act reads as hereunder:- “121. Construction of building:- No piece of land shall be used as a site for the construction of a building and no building shall be constructed or reconstructed and no addition or alteration shall be made to an existing building without the permission of the gram panchayat granted in accordance with the provisions of any rules or bye-laws made under this Act, relating to the use of building sites or the construction or reconstruction of buildings: Provided that the government may, in respect or all gram panchayats or with the consent of the gram panchayat, in respect of any particular gram panchayat or portion thereof, exempt all buildings or any class of buildings from all or any of the provisions of any rules or bye-laws made under this Act”. 18. Thus Section 121 of the Act provides for construction of building in accordance with the permission granted by the Grampanchayat. Rules were framed under G.O.Ms. No. 67, dated 1-5-2002 governing the grant of permission for construction of buildings. Permission was granted by the Grampanchayat after collecting fees and charges. None raised objections from 2004 till now, 3rd respondent filed the so called revision under Section 128 of the Act aforesaid. 19. Section 128 of the Act does not provide for any revision at all and the said provision of the Act referred to supra provides for a second appeal. 20. Rules were framed in G.O.Ms. No. 139, dated 18-4-2000 in terms of the said Rules the second appeal lies to District Panchayat Officer. It is further stated that under Section 129 of the Act, the period of Limitation is one year only for filing an appeal, as stated above permission was granted to the petitioners way back on 27-10-2004, thus, even if so called revision to be treated as Second Appeal, the same is hopelessly barred by time. In such, circumstances, the present writ petition had been filed. 21. Certain papers had been placed before this Court relating to the subsequent cancellation which had been challenged, wherein stay of further proceedings had been granted. This Court is not inclined to express any opinion relating to the said proceedings since the parties are at liberty to agitate their rights in the said pending proceedings. 22. It is also brought to the notice of this Court that a suit already had been initiated as O.S.No.41 of 2009 on the file of the Senior Civil Judge, Bodhan and interim orders had been obtained. The nature of the relief which had been prayed for in the suit and the present writ petition being different, this Court is not inclined to express any opinion and the parties are at liberty to agitate their rights in the light of the respective stands taken by the parties in the said suit as well. 23. Suffice to state that the appellate authority is incompetent to entertain the revision whether it is to be styled as revision or appeal, as such. This question had been argued in elaboration by the counsel on record. In the counter affidavit filed by the 2nd respondent certain facts no doubt had been denied. Certain facts specifically had been admitted. 24. The petitioners had obtained permission from Grampanchyat on 17-10-2004 for construction of residential houses. On the application made by the petitioners along with the application seeking permission the petitioners also annexed a plan of the proposed construction. According to the application and plan the petitioners intended to construct in Survey No.16 of the Bichkunda village. For reasons best known to them, they could not construct within stipulated period. 25. Subsequently, the petitioners sought renewal of the permission for 4 times. However, on 24-10-2008 the permission was renewed, according to which the petitioners had to complete the entire construction within one year. 26. Further, it is stated that the petitioners are absolute owners according to the document filed along with this writ petition is about 16 guntas, but on physical verification by 2nd respondent, the petitioners were unable to show the boundaries of their own lands and moreover the land belongs to Government in Survey No. 15 showing the same as their own property and for which Grampanchayat has raised an objection relating to the further proceedings with the construction. 27. Further stand had been taken while matter stood thus, the 3rd respondent who is a member of Mosque Committee of Bichkunda village has filed a revision petition before the District Panchayat Officer for renewing the permission to the petitioners herein and also the Government land is encroaching upon by the petitioners by proceeding with the illegal construction. The 1st respondent entertained the revision and made an order dated 30-7-2009. Further a specific stand had been taken that the 1st respondent is not competent to entertain the revision, but, however, under Section 128 of the Act appeal lies before the District Panchayat Officer against the order passed by the Grampanchayat. 28. It is pertinent to mention here in view of the urgency pleaded by the 3rd respondent the impugned order had been made by the 1st respondent. Further several other details had been specified in paras 7 and 8 of the counter affidavit and the filing of the suit in O.S.No.41 of 2009 on the file of the Senior Civil Judge, Bodhan also had been referred in para 9 of the counter affidavit. 29. This Court is not inclined to express any opinion on other factual controversies. Section 128 of the Act had been specified supra. The language employed in the said section being self-explanatory the same need not be further elaborately discussed. 30. Strong reliance was been placed on the decision of this Court in Aljapur Ganga Mohan’s case cited 1st supra wherein Division Bench of this Court while dealing with Section128 of the Act held that resolution passed by the Panchayath Board granting permissions to construct. No appeal lies against the said order. Hence, the second appeal is also not valid. Further, the District Collector is not the appellate authority competent to entertain the appeal and dispose of the same. 31. In Gram Panchayat, Sidhantam’s case cited 2nd supra, the learned Single Judge of this Court while dealing with Section 128 of the Act held that the appeal against order of Gram Panchayat cannot be maintained before District Panchayat Officer. What can be maintained before District Panchayat Officer, under Section 128 is only a second appeal, against decision of Gram Panchayat, which in turn, shall be an appeal, against order of Executive Authority. 32. Here it is stated that a revision had been preferred before the 1st respondent. It is needless to say that the revision is incompetent under Section 128 of the Act. Hence, the order impugned cannot be sustained and accordingly, the writ petition is hereby allowed. 33. But however, it is made clear that this Court had not expressed any opinion touching the merits and demerits and liberty is given to the parties to agitate their rights in the pending proceedings before the Competent Authority and also before the learned Senior Civil Judge, Bodhan. No order as to costs. ______________________ Justice P.S. Narayana 22nd September, 2009. Note: L.R. Copy to be marked B/o KM THE HONOURABLE SRI JUSTICE P.S.NARAYANA W.P.No. 16071 OF 2009 22nd September, 2009. [1] 2002(3) ALD 163 (DB) [2] 2009(1) ALD 465