Maddela Yadaiah Goud vs The Principal Secretary for Panchayat Raj and Others

P.S. Narayana, J.—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.

Respondents 5 to 12 were impleaded vide order in W.P.M.P. No. 33001/2008.

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 there under 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.

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 u/s 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.

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.

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.

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.

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.

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 u/s 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.

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.

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 u/s 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 No. 96/6 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.

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 u/s 249(1) of Act.

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.

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.

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.

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 u/s 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.

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 u/s 249(1) and u/s 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.

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 u/s 249(1) of the Act.

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 calling for any further clarifications of any discrepancies and discrepancy on any issue and without ong the report of the Audited accounts from the Director of State Audit appointed u/s 3 of A.P. State Audit Act 1989 as contemplated u/s 266(1) of the A.P. Act, but solely on the false and baseless allegation of irregularity, arbitrarily passed the impugned order removing the petitioner which is nothing but abuse of powers vested in the 2nd respondent. It is also further stated that the order of removal of Sarpanch passed by the District Collector solely based on the report submitted the respondents 3 and 4 without applying his mind to the facts of the case especially when the District Collector believed that the petitioner has no adequate knowledge in English and without giving opportunity to the petitioner to prove his case is illegal and the impugned order of the removal of the petitioner from the post of Sarpanch is liable to be set-aside. It is further stated that very show cause notice issued by the District Collector dated 15-7-2008 is illegal and not sustainable in the eye of law.

Further it is stated that 2nd respondent had not applied his mind while exercising his power u/s 249 of the Act and no adequate opportunity was given to the petitioner and the report of the enquiry officer was not supplied to the petitioner and thereby the petitioner had been denied the opportunity of making an effective explanation which is a pre-condition for exercise of power under Sub-section (1) of Section 249 of the Act and therefore the rules of natural justice were not totally complied with. It is further stated that in a similar matter in W.P.M.P. No. 37199/2007 this Court was pleased to pass an interim order suspending Memo No. B/No.B1/1771/2007 dated 5-10-2007 and the said Writ Petition is still pending.

It is further stated in the affidavit filed in support of the Writ Petition that when the statute directs that opportunity shall be given, the same shall be an adequate opportunity to enable the person to make effective explanation. As there cannot be effective explanation to meet the charges without the enquiry report, there was no adequate opportunity and therefore the order of the 2nd respondent dated 24-9-2008 was vitiated as held by the Division Bench of this Court in D. Sathi Reddy v. Commissioner, Panchayat Raj, Hyd AIR 2000 A.P. 91. It is further stated that u/s 25(c) of the Act, the Sarpanch shall exercise administrative control over the Executive officer for the purpose of implementation of resolutions passed by the Gram Panchayat or any Committee thereof and under Clause (g) of Section 25 of the Act and the Sarpanch shall act only within the terms of sanction given in any resolution passed by the Gram Panchayat. It is also further stated that under Clause (ii) of Section 45 of the Act it is the duty of the Gram Panchayat to carry out the requirements of the village in respect of the lighting of public roads and public places. u/s 121 of the Act, the Gram Panchayat is empowered to grant permission for construction of the buildings and u/s 246 of the Act and the District Collector may forward the proposal to the Government for cancellation of the resolution passed by the Gram Panchayat and the Government may, either suo motu or on a reference made by the Executive Officer, M.P.D.O. or as the case may be, the C.E.O., in the manner prescribed by the order in writing, cancel any resolution passed by the Gram Panchayat.

It is also further stated that the petitioner filed an appeal before the 1st respondent on 24-9-2008 u/s 249(7) of Act and the 1st respondent numbered the appeal as 22537/Pts.III/A2/08 and the same was communicated to the petitioner by a telegraphic notice on 30-9-2008 by fax message fixing the date of hearing of the appeal and stay petition on 1-10-2008 in the chambers of the Hon''ble Minister for Panchayat Raj. Against the said communication and numbering of the appeal on 24-9-2008 the petitioner filed W.P. No. 21502/2008 on 26-9-2008 which was listed on 29-9-2008 and upon hearing the arguments at admission stage, this Court was pleased to pass interim order in W.P.M.P. No. 28090/2008 in W.P. No. 21502/2008 dated 29-9-2008 directing the Hon''ble Registrar to post the matter on 17-10-2008 in the ''motion list'' and it was ordered as follows:

Petitioner states that he had availed the remedy of Appeal against the impugned order dated 24-9-2008 before the 1st respondent, together with an application for stay, it is represented that the stay petition had not been taken up as yet. On behalf of the Upa Sarpanch it is stated that the Upa Sarpanch had already taken charge. Be that as it may once the petitioner had availed the remedy of appeal, the petitioner deserves to be continued till the Appellate Authority disposes of the application for stay. Hence it is directed that the petitioner shall remain in office till 17-10-2008 or till the 1st respondent passes the order on the application for stay, whichever is earlier.

It is also further stated that on receipt of the notice of date of hearing from the 1st respondent the petitioner appeared before the 1st respondent on 1-10-2008 along with his Counsel and his Counsel had submitted a detailed argument in the said appeal and stay petition and requested the 1st respondent to grant stay of the impugned order of the 2nd respondent. The 1st respondent who had been impressed with the arguments of the Counsel for petitioner was not inclined to interfere in the interim order passed by the Hon''ble Court till 17- 10-2008, but however the 1st respondent had not passed any orders either in the stay petition or in the appeal till 17-10-2008. It is further stated that on 17-10-2008 this Court in W.P.M.P. No. 29383/2008 was pleased to extend the interim order for one week. It is stated that the 1st respondent appears to have passed orders without any intimation to the petitioner about the pronouncement of the orders and informed to the opponents and Upa Sarpanch in advance before the pronouncement of the orders and as such the Counsel representing the Upa Sarpanch voluntarily interfered in the proceedings before this Court on 17-10- 2008 and represented before this Court that the stay petition filed by the petitioner had been already dismissed. But again the same Counsel represented before this Court whent matter was taken up at 2.15 p.m. to grant interim stay till Monday. However, this Court was pleased to grant extension of interim order till one week from 17-10-2008 and hence the order passed by the 1st respondent is under the influence and pressure from the opponents supported by the local Minister and as such without following the due procedure of giving minimum notice of date of pronouncement of the order, the 1st respondent pronounced the orders and delivered the copy to the opponents of the petitioner even before communicating a copy of the said order to the petitioner.

The petitioner received a copy of the order on 20-10-2008 which revealed that the appeal filed against the order of the 2nd respondent had been dismissed which is contrary to the provisions of Act and also amounts to error apparent on the face of the record of the respondents 1 and 2. The 1st respondent simply adopted the recitals in the foot of the 2nd respondent who passed the orders depending on the enquiry report of the District Panchayat Officer and dismissed the petitioner''s appeal by non-application of mind. The 1st respondent neither considered the detailed arguments submitted by the Counsel for petitioner nor considered the written arguments filed by the Counsel for the petitioner wherein the petitioner categorically mentioned about non application of the mind by the 2nd respondent and passed orders u/s 249(1) of the Act which is contrary to law and against the principles of natural justice. Certain further averments also had been made in paras 44 and 45 of the affidavit filed in support of the Writ Petition.

In the counter affidavit filed by the 3rd respondent it is averred in para-2 that the members of the Gram Panchayat Bandlaguda Jagir had filed representation dated 19-3-2008 to the 2nd respondent leveling certain allegations against the petitioner on committing grave irregularities in the administration of the Gram Panchayat and requested to take necessary action against him. The 3rd respondent-District Panchayat Officer, Ranga Reddy District directed the 4th respondent-Divisional Panchayat Officer, Chevella to conduct enquiry into the matter and submit detailed report for taking necessary action. It is further stated that the Divisional Panchayat Officer, Chevella had conducted enquiry on 10-4-2008 and submitted detailed report and basing on the report of the Divisional Panchayat Officer dated 15-4-2008 the 2nd respondent-District Collector (P.W) Ranga Reddy District had issued show cause notice vide Notice No. 1052/08-B.1(Pts.) dated 15-7-2008 to the petitioner u/s 249(1) of Act for removal from the post of Sarpanch, Gram Panchayat Bandlaguda Jagir and for recovery of the misappropriated amount duly framing the following two charges against the petitioner by giving opportunity to submit his explanation within 15 days from the date of receipt of the notice. Charge No. 1: That the Sarpanch, Gram Panchayat Bandlaguda Jagir has incurred the expenditure on purchase of the electrical goods for Rs. 3,66,194/- and 17,74,867/- during the year 2006-2007 and 2007-2008 respectively as per the resolutions dated 24-8-2006, 8-9-2007 and purchased 14 Hymax lights for Rs. 10.92 lakhs without prior approval of the District Collector (P.W.) wing which is serious nature of irregularity. Thus it is evident that he has willfully violated the orders issued by the Government from time to time. Charge No. 2: That the Sarpanch, Gram Panchayat Bandlaguda Jagir has accorded the building permission in Sy. No. 96/6 to the extent of 20 Guntas at Radhanagar for G+3 floors to M/s. Anuradha Properties and Township Pvt. Limited, Secunderabad as he is not competent which is a serious lapse on his part. Thus it is evident that he has violated the A.P. G.P. Land Development (Layout & Building) Rules 2002 issued in G.O.Ms. No. 67 PR & RD dated 26-2-2002 and HUDA/HADA Rules.

The petitioner had submitted his explanation on 28-7-2008 to the show cause notice dated 15-7-2008. Further it is stated that the 2nd respondent- District Collector (P.W) asked the 4th respondent - Divisional Panchayat Officer, Chevella to submit his remarks on the charges leveled against the petitioner with regard to his explanation and the Gram Panchayat records. Accordingly the 4th respondent verified the connected records and submitted his specific remarks on the explanation of the petitioner to the District Collector vide Lr. No. A/130/2008 with regard to the first charge. It is further stated that the Gram Panchayat funds of Rs. 3,66,194/- were spent in the year 2006-07 on purchase of electrical goods during the year 2006-07 and 2007-08 and this expenditure was incurred on various dates through bills on purchasing and making payment to the supplier. There are bills and vouchers on this purchase. In the year 2007-08 an amount of Rs. 17,74,867/- was spent from Gram Panchayat funds under purchase of electrical goods and out of this amount an amount of Rs. 10,92,000/- was spent on purchase of 14 High Mass lights as per the resolution made by the Gram Panchayat on various dates. An amount of Rs. 6,72,867/- was paid to the supplier on purchase of the electrical goods under various dates in the area of Gram Panchayat in the year 2007-08.

It is further stated that an amount of Rs. 10,92,000/- was spent on purchase of 14 High Mass lights. The details of purchase of the same are as hereunder:

Sl.No. Date Cheque Name of the No. of Date of resolution No. firm from purchased of Gram Panchayat which materials purchased details

1 2 3 4 5 6

1 15-11-2006 439987 Subhodaya 1 23-9-2006 Electricals, Narayanaguda

2 12-2-2007 439999 -do- 1

3 11-8-2007 539483 -do- 2 8-8-2007

4 12-10-2007 539491 -do- 2 24-1-2008

5 6-11-2007 651516 -do- 2 22-12-2006

6 10-12-2007 651546 -do- 2 19-6-2007

7 7-3-2008 651546 -do- 2 24-11-2007

8 7-3-2008 651546 -do- 1

9 29-12-2007 651522 -do- 1

Total 14

It is further stated that as per records, the electrical goods were purchased for Rs. 3,66,194/- in the year 2006-07 and this expenditure was incurred from the Gram Panchayat funds. In the year 2007-08, the electrical goods were purchased and spent a total of Rs. 17,74,867/-. From out of the total expenditure, an amount of Rs. 6,72,867/- was incurred under various dates on purchase of electrical goods. There are vouchers and bills relating to the said purchase. The prior permission was not obtained from the District Panchayat Officers on purchase of high mast light by the Sarpanch as alleged in the charge. It was purchased only as per resolution of the Gram Panchayat. In the year 2007-08 14 high mast lights were purchased as shown above in stead of once purchased. It is necessary to obtain prior approval from concerned authority on purchase of high mast light by the Sarpanch as alleged in the charge. It is further stated that the remarks to the second charge is that the construction permission was accorded to M/s. Anuradha Properties and Township Private Limited on 15-10-2007 as per plan for G+3 floors in Sy. No. 96/6 in an extent of 20 guntas in Radhanagar colony in Gram Panchayat area. The Panchayat Secretary and Sarpanch had approved the plan and orders were issued for the construction permission in 20 guntas place as per application of M/s. Anuradha Properties and Township Pvt. Limited and accorded permission for G+3 floors.

As per G.O.Ms. No. 408, MA & UD dated 8-8-1991 the concerned Executive Authority can accord permission only for construction below 1000 sq. meters plot. The permission was accorded in 20 guntas area as per application and plan for construction of G+3 floors. The Executive authority had accorded construction permission as per the regulation in G.O.Ms. No. 67, PR & RD dated 26- 2-2002 only in the place of 587 sq. yards for construction of G+3 floors. Actually the Gram Panchayat Bandlaguda falls under HUDA. The Layout and Building Regulation 2002 is not applicable in issue of layout as per G.O.Ms. No. 67, P.R. & R.D. dated 26-2-2002. The Regulation issued in G.O.Ms. No. 408, MA & UD dated 8-8-1991 previously is applicable to this Gram Panchayat. The Executive authority concerned had also approved and accorded construction permission within 1000 sq. yards as per regulation of the Government and the building owner had availed the building construction G+3 floors under B.P.S. for which the Executive Authority should have accorded construction permission in Sy. No. 96/6 after obtaining technical approval from HUDA as per the HUDA rules but the regulation was not followed.

It is also further stated that basing on the remarks submitted by the Divisional Panchayat Officer, the District Collector, Ranga Reddy District had issued orders for removal of the petitioner from the post of Sarpanch, Gram Panchayat Bandlaguda Jagir of Rajendranagar Mandal for misuse of powers and misappropriated Gram Panchayat funds and also issued recovery orders for an amount of Rs. 10,92,000/- under R.R. Act from the petitioner vide Proc. No. 1052/2008/B1-(Pts) dated 24-9-2004. Aggrieved by the said orders of the District Collector, the petitioner filed W.P. No. 21502/2008 before this Court and the said Writ Petition was dismissed as withdrawn on 21-10-2008 as the alternative remedy was available by way of an Appeal to the Government u/s 249(7) of the Act. It is also further stated that the petitioner had filed an Appeal petition before the 1st respondent i.e., Government requesting to stay the proceedings order dated 24-9-2009 passed by the 2nd respondent i.e., District Collector (P.W.). It is also further stated that the Government heard the case on 1-10-2008. After verifying the entire record and arguments of both the petitioner and the respondent-authorities, the 1st respondent dismissed the Revision Petition as there is no illegality, irregularity, impropriety in the order passed by the District Collector upon which the present Writ Petition had been filed.

It is also further stated that in G.O.Rt. No. 1571, P.R. & R.D. dated 20-10- 2008, the 1st respondent i.e., the Government had issued orders dismissing the Revision Petition filed by the petitioner after going through the material papers filed by the petitioner. It is further stated that the petitioner had 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 further stated that the petitioner had purchased these High mass lights at different intervals right from 15-11-2006. On 11-8-2007 the petitioner purchased two High Mass lights but obtained Gram Panchayat resolution on 8-8-2007. Likewise on 12-10-2007 the petitioner purchased two High Mass lights but obtained the 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 the higher authorities have to be obtained by the Gram Panchayat. The Hayathnagar Gram Panchayat had obtained prior permission from the District Collector (P.W.) Ranga Reddy District in Proc. No. Ex.A.4/436/2006 dated 20-2-2006 for purchase of two High Mass lights in terms of the rules issued in G.O.Ms. No. 70, P.R. & R.D. (Rules) Department dated 29-2-2000 as per the resolution of the Gram Panchayat dated 24-12-2005 as per the records of the Gram Panchayat. The Yenekepally Gram Panchayat of Ranga Reddy District had also obtained prior permission of the District Collector (P.W.) In the reply to the show cause notice, the petitioner had pleaded that he had purchased the High Mass lights as per the rates indicated by the District Collector (P.W.) in the proceedings issued in respect of Hayathnagar Gram Panchayat and Yenekapally Gram Panchayat.

When the petitioner had adopted the price of each unit permitted by the District Collector, he ought to have also obtained prior permission of the District Collector (P.W.) as was done by the Gram Panchayat. 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 had admitted that he had adopted the prices permitted by the District Collector. With regard to the grant of Building permissions the petitioner had admitted that he had granted construction permissions to several buildings as per the provisions of the Act and Rules.

It is also further stated that as per the records, the limits of the subject Gram Panchayat falls within the limits of HUDA. Therefore the orders issued in G.O.Ms. No. 67, P.R. & R.D. 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, P.R. & R.D. dated 6-8-1994, prior technical approval from DTC/HUDA is necessary for all building permissions in violation of Rules and Regulations and thereby created chaos in the village limits. It was brought to the Government''s notice that 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. It is also further stated that from the aforesaid facts it is clear that the petitioner failed to comply the rules prescribed for incurring huge expenses and also failed to comply the rules in granting permission for construction permission and it is further established that the petitioner first purchased the material and later obtained the approval of the Gram Panchayat by way of resolution. Therefore the Government after careful examination of the matter had not found any illegality, irregularity, impropriety in the orders passed by the District Collector (P.W.), Ranga Reddy District and rightly dismissed the Revision Petition.

In the counter affidavit filed by the respondents 5 to 11, substantially the same stand had been taken explaining the charges and is also averred that it is settled law that the Writ Petition for exercising jurisdiction under Article 226 of the Constitution of India normally would not entertain disputed question of fact. In the entire affidavit the petitioner tried to explain his case and contended that he had not violated any statutory rules and acted in accordance with law. The main contention of the petitioner is that G.O.Ms. No. 67 dated 26-2-2002 empowers the Gram Panchayat to grant permission for G+3 floors building. Such contention is untenable and baseless. The order of the respondents 1 and 2 clearly points out that G.O.Ms. No. 67 is not applicable to Bandlaguda Gram Panchayat and the petitioner is put to strict proof of the contention that he has power to issue G+3 floors building permission. The permission granted in respect of Hydershah Kote Gram Panchayat is not the answer the petitioner is expected to give. The petitioner has to explain how the Gram Panchayat covered by HUDA regulations can suo motu issue building permissions contrary to the rules. So far the petitioner had issued more than 50 ground + three floor permissions. Even after obtaining stay order, the petitioner had issued about 500 building permissions and the petitioner is issuing permissions for ground + 2 floors and permitting the plot owners to construct more than 3, 4 and 5 floors. In P&T colony, two persons by names Sharma and Misba were permitted to construct seven floors apartment complex in utter disregard to the regulations and safety norms and the same demonstrates that the petitioner had abused his official position after obtaining interim orders from this Court and therefore he is not entitled for any equities. The lower and the appellate authority by going into the necessary facts, conducted detailed inquiry and gave categorical findings that the petitioner had violated the Rules and Regulations and acted highhandedly. Unless it is established by the petitioner that the findings given by the original and the appellate authorities are perverse and irrelevant on the face of the record, the petitioner is not entitled for the relief sought for in this Writ Petition. The entire affidavit of the petitioner concentrates on factual issues and so applying any standards the impugned order does not suffer from any infirmities.

Section 25 of the Act deals with Powers and functions of Sarpanch. Section 45 of the Act deals with Duty of Gram Panchayat to provide for certain matters. Section 121 of the Act deals with Construction of building and Section 45(1)(ii) specifies the lighting of public roads and public places.

Gram Panchayat is a unit of local self government and such Gram Panchayats which are created by the statutes initially did not enjoy Constitutional protection. However, by the Constitution 73rd Amendment Act 1982, a new Part had been introduced which deals with Panchayats. Thus, the Village Panchayats are now given Constitutional status. Even prior thereto, no doubt Article 40 of the Constitution of India, had been in operation. Article 243B and Article 243C of the Constitution also may be referred to in this context.

In M.S. Rukmini Vs. District Collector (PTs), Chittor, a learned Judge of this Court at para-2 observed:

I have gone through the order passed by the respondent removing the petitioner from the office of the Sarpanch. It is not in dispute that the District Collector is exercising quasi-judicial functions u/s 249(1) of the Act and he has to pass orders on the information furnished by the Department with reference to the explanation offered by the delinquent, if necessary by giving an opportunity to the affected party to prove his case in person. But, admittedly, in this case, the District Collector called for the report of the Divisional Panchayat Officer and passed the orders on the basis of the findings arrived at by the Divisional Panchayat Officer. It is pertinent to extract paragraph-4 of the impugned order hereunder:

Whereas the irregularities committed by the Sarpanch, remarks of the Divisional Panchayat Officer, Chandragiri and findings of the District Panchayat Officer, Chittoor are enumerated in the Annexure:

(a) Whereas the irregularities Nos. 1, 2, 4, 5 , 6 and 11 are proved.

(b) Whereas the irregularity No. 8 is partially proved.

(c) Whereas the irregularities Nos. 3, 7, 9 and 10 are not proved.

It is seen from the above that on the basis of the report submitted by the Divisional Panchayat Officer, Chandragiri and on the findings arrived at by him, the District Collector passed the impugned order without applying his mind to the facts of the case, more so, having recorded a finding that "I believe that the Sarpanch who does not have adequate knowledge in English or Telugu, could not have done this". Hence, I am inclined to suspend the impugned order till the disposal of the statutory appeal to be filed by the petitioner before the Commissioner as provided under the Act. The petitioner is directed to file her appeal before the Commissioner for Panchayat Raj within one week from today and thereafter the Commissioner shall dispose of the same within a period of two months without reference to the report submitted by his subordinate officer and after hearing the petitioner in person. The Commissioner should also keep in mind that if the allegations made against the petitioner relate to procedural irregularities and when an experienced Government employee i.e., Executive Officer is there who has to give necessary assistance to the Sarpanches on the procedural aspects under the provisions of the Act and when he fails to properly guide the Sarpanches, who are, in most of the cases illiterates or semi- literates, can an elected representative be removed from office for the procedural irregularities committed by him/her. The Commissioner shall also keep in mind that the allegation made against the petitioner is that she tampered the resolutions made in the meeting after the meeting is over. As per the practice, any resolution passed in the meeting has to be ratified or confirmed in the next meeting of the Gram Panchayat. If the Sarpanch (petitioner herein) has really tampered the records and recorded a resolution behind the back of the members of the Gram Panchayat, the same would not have been confirmed in the next meeting. Therefore, the Commissioner is directed to look into the records carefully and see how far the allegations made against the petitioner are true and pass appropriate orders in the appeal. Any order passed by him should be a speaking order adverting to the contentions raised by the petitioner and if any other person is involved in the matter he should also be heard before passing the order.

In D. Sathi Reddy Vs. Commissioner, Panchayat Raj A.P., Hyd. and others, a Division Bench of this Court observed at paras 12, 13, 14 and 15 as hereunder:

The power u/s 249 of the Act enables the District Authority to remove an elected Sarpanch. The power has to be exercised with due care and caution. It has to be exercised with abundant circumspection. If the power is exercised either by the original authority or the appellate authority in a laconic or routine manner without application of mind such action shall be set aside. The rules of fair play should appear to have been followed scrupulously at every stage. At the stage of issuing a show cause notice at the stage of consideration of the explanation of the Sarpanch and at the stage of passing the final order under Sub-section (1) of Section 249 of the Act or the appellate order under Sub-section (7) of Section 249 of the Act, the action should be informed of reasons and fairness.

We have mentioned that the power to remove a person from an elected office is an extraordinary power. Before exercising such power the competent authority should have all the necessary material. The competent authority should consider after due application of mind that the factors mentioned in Clauses (i) to (iv) of Sub-section (1) of Section 249 or either of them exists, then only the competent authority can pass an order removing the Sarpanch. The existence of the factors or either of them mentioned in Clauses (i) to (iv) is essential and mandatory pre-condition for exercise of the power of removal. Not only that, the law further says that the recalcitrant Sarpanch shall be given an opportunity for explanation. The opportunity for explanation is not a "make- believe" opportunity of just serving a show cause notice in all situations. There may be situations where before issuing a show cause notice the District Collector conducts enquiry or gets an enquiry done. In such an event the show cause notice which, obviously is based on such an enquiry, is no show cause notice at all if the material (enquiry report) based on which the show cause notice is issued is not supplied to the Sarpanch who is sought to be removed.

A reading of Sub-section (1) of Section 249 shows that a Sarpanch can be removed when:

(a) he has wilfully disobeyed the orders of the Government;

(b) when he is guilty of misconduct in discharge of his duties;

(c) when he abused the powers vested in him under the Act;

(d) when he failed to perform his functions and duties to the detriment of the Panchayat and/or

(e) when he has become incapable of performing his functions and duties. It is clear that except in situations mentioned at (a) and (e) above, the Collector may cause an enquiry to be done by the officials of the Panchayat Department. If the enquiry report is the basis for issuing a show cause notice, there cannot be an adequate opportunity for the Sarpanch to submit the explanation without a copy of the enquiry report being supplied. Therefore, the words "after giving him an opportunity for explanation" appearing in Sub-section (1) of Section 249 of the Act should be interpreted as casting a duty on the District Collector to supply a copy of the enquiry report to the Sarpanch. Further, the Sub-section (1) gives a right to the Sarpanch to receive a copy of the enquiry report even without there being a demand by him.

Specific stand had been taken relating to non-supply of enquiry report at the time of issuing the show cause notice, this aspect is not put into any serious controversy. Apart from this aspect of the matter, certain submissions had been made by Sri Prakash Reddy, the learned Senior Counsel representing the writ petitioner and also the learned Assistant Government Pleader for Panchayat Raj and Sri Vijaysen Reddy on the aspect of non-nexus between the charges framed and the findings recorded. No doubt, certain further submissions had been made to convince this Court that since the specific charge was within the knowledge of the petitioner as reflected from the explanation also, the same had not caused serious prejudice to him. This Court is not inclined to express any opinion relating to this aspect, but however, this Court is thoroughly satisfied that by non-furnishing of the enquiry report, along with the show cause notice so as to enable the petitioner to make appropriate representation by way of explanation, sufficient opportunity had not been given and this is in clear violation of principles of natural justice.

It is needless to say that the competent authority is at liberty to rectify the defective charges if the competent authority is inclined to do so. At any rate, on a careful analysis of the series of events and also the facts referred to supra, this Court is thoroughly satisfied that the order made by the 2nd respondent which had been confirmed by the 1st respondent cannot be sustained since the principles of natural justice had not been followed. The 1st respondent-Appellate Authority while deciding the statutory appeal while exercising quasi-judicial powers is expected to consider all the grounds raised in the grounds of appeal. A copy of the grounds of appeal also had been placed before this Court and on verification this Court also is satisfied that the 1st respondent had not appreciated all the grounds and had not recorded proper reasons in this regard.

It is also pertinent to note that in matters of this nature, the competent authority, while taking the extreme step of removal of the duly elected Sarpanchas in relation to these "Little Democracies", is expected to act with great care and caution especially after 73rd Constitutional Amendment which conferred Constitutional status on Gram Panchayats and keeping in view the powers and obligations conferred on the Sarpanchas as well by the said 73rd Constitutional Amendment referred to supra.

Accordingly, the Writ Petition is hereby allowed. No order as to costs.