Polampalli Krishna Murthy vs The District Panchayat Officer and Others

C.V.N. Sastri, J.—In this writ petition, the petitioner seeks to question the validity of an order dated 6-7-1995 passed by the District Panchayat Officer, Adilabad District, the first respondent herein and the consequential order dated 17-7-1995 issued by the Executive Officer, Asifabad Gram Panchayat the second respondent herein, directing the petitioner to stop the house construction work being carried on by the petitioner till the disposal of the appeal/revision petition filed by respondents 3 and 4 before the District Panchayat Officer. The facts leading to the writ petition may be stated briefly.

The petitioner claims to be the absolute owner and possessor of the house bearing No. 6-140 situated at Asifabad, Adilabad District According to him, he purchased the vacant plot of land from one Noorjahan Begum under a registered sale deed dated 9-5-1977 and constructed the house bearing No. 6-140 therein in the year 1985 after obtaining permission from the local Gram Panchayat. With the view to make some further constructions in the said land by extending the existing ground floor and by putting up a first floor on the same, the petitioner applied to the Gram Panchayat for permission in the year 1995. It is claimed that after calling for objections permission was granted to the petitioner by proceedings dated 4-4-1995 issued by the Executive Officer of the Gram Panchayat i.e., the second respondent herein. After obtaining the said permission, the Writ Petitioner started making further constructions. Respondents 3 and 4 herein filed an appeal/revision petition before the District Panchayat Officer (first respondent) questioning the grant of permission to the petitioner by the Executive Officer on the ground that the property in question is their joint family property and it was acquired with joint family funds and as such they are also entitled for a share therein and the petitioner has no right to make any constructions without their consent. Entertaining the said petition filed by respondents 3 and 4, the first respondent passed the impugned order dated 6-7-1995 granting interim stay of the operation of the order of the Executive Officer pending disposal of the appeal/revision petition. Basing on the said order passed by the first respondent, the second respondent issued the consequential order dated 17-7-1995 directing the petitioner to stop the construction work forthwith till the appeal/revision filed by respondents 3 and 4 is finalised.

Questioning the said orders dated 6-7-1995 and 17-7-1995 the petitioner has filed the present writ petition contending that against the order passed by the Executive Officer of the Gram Panchayat, an appeal lies to the Gram Panchayat u/s 128 of the A.P. Panchayat Raj Act, 1994 and as such the appeal/revision filed by respondents 3 and 4 before the first respondent is incompetent and the impugned order dated 6-7-1995 passed by the first respondent is illegal and without jurisdiction.

This writ petition was initially disposed of at the admission stage by a learned Single Judge of this court by an Order dated 28-7-1995 directing the petitioner to raise his objections before the District Panchayat Officer and further directing the District Panchayat Officer to dispose of the stay petition within one week from the date of the receipt of the said order. Questioning the said order of the learned Single Judge, the petitioner filed W.A.No. 947 of 1995. The Division Bench was of the view that since the writ petition raised a serious question as to the maintainability of the appeal filed by respondents 3 and 4 before the first respondent, it merited admission and a full hearing and that the order of the learned Single Judge dismissing the writ petition in limine was not justified. Accordingly the Division Bench set aside the order of the learned Single Judge, admitted the writ petition and remitted it back for hearing by the appropriate Bench in accordance with law. That is how the writ petition has come before me for hearing.

The learned counsel for the writ petitioner besides reiterating the objection with regard to the maintainability of the appeal filed by respondents 3 and 4 before the first respondent, has raised a further contention that in any case, the first respondent is not competent to decide the dispute with regard to the title and the proper remedy for respondents 3 and 4 is only to approach a competent civil Court to establish their rights, if any, in the property.

In the counter-affidavit filed on behalf of respondents 3 and 4, it is stated that when respondents 3 and 4 came to know that the petitioner applied for permission to the Gram Panchayat, they filed objections opposing his request for the grant of permission but without conducting any enquiry the second respondent granted permission to the petitioner by his order dated 4-4-1995. Since it is stated in the said order that Gram panchayat has passed a resolution according permission to the petitioner to make the construction, respondents 3 and 4 approached the District Panchayat Officer by filing the appeal/revision petition before him. It is further stated that the District Panchayat Officer is competent to entertain the same, that the order dated 6-7-1995 passed by the first respondent is perfectly valid and that the writ petition filed by the petitioner without approaching the District Panchayat Officer to vacate the said interim order and without exhausting the alternative remedy of a further revision to the Government is not maintainable. It is also further stated in the counter-affidavit of respondents 3 and 4 that on enquiry and verification, they came to know that no resolution was, in fact, passed by the Gram Panchayat according permission to the petitioner for making the construction as stated in the order dated 4-4-1995, that the petitioner obtained the said order dated 4-4-1995 in collusion with the second respondent and by playing fraud, that the petitioner has not approached the Court with clean hands and for that reason also the writ petition is liable to be dismissed. In support of their allegation mat no resolution was passed by the Gram Panchayat according permission to the petitioner, respondents 3 and 4 filed along with their counter-affidavit, eight affidavits of the members of the Gram Panchayat.

The learned Government Pleader for Panchayat Raj argued that inasmuch as the order dated 4-4-1995 is purported to be passed by the second respondent on the basis of a resolution said to have been passed by the Gram Panchayat according permission to the petitioner, the question of filing any appeal to the Gram Panchayat against the said order of the second respondent does not arise and consequently the District Panchayat Officer (first respondent) is (sic.) (not) competent to entertain the appeal/revision filed by respondents 3 and 4.

On the aforesaid rival contentions advanced by the learned counsel, the question for consideration is:

Whether the appeal/revision filed by respondents 3 and 4 before the first respondent is maintainable?

At the outset, it is pertinent to notice mat in W.A.No. 947 of 1995, the Division Bench observed as follows:

"Prima facie, if the order is passed by someone subordinate to the Gram Panchayat, appeal is provided u/s 128 of the Andhra Pradesh Panchayat Raj Act and a second appeal against the appellate order is provided before the District Panchayat Officer. If the Original order itself is based upon a resolution of the Gram Panchayat, it is obvious no appeal can be filed before the Gram Panchayat and since there is no appeal in such a situation before the Gram Panchayat, there is no occasion for a second appeal as provided under the said section of the A.P. Panchayat Raj Act. However, we do not propose to go into this issue any further............."

The above view tentatively expressed by the Division Bench reflects the correct legal position as manifested by Section 128 of the A.P. Panchayat Raj Act, 1994. At the time of arguments before me, the learned counsel appearing for the parties including the learned Government Pleader have not disputed the correctness of the above view expressed by the Division Bench. I have no reasons to take a different view. It is not in dispute that Section 264 of the A.P. Panchayat Raj Act, 1994, confers revisional powers on the Government only but not on the first respondent (District Panchayat Officer). I, therefore, hold that the appeal/revision filed by respondents 3 and 4 before the first respondent is not maintainable. This does not, however, put an end to the controversy since respondents 3 and 4 are disputing that any resolution was passed by the Gram Panchayat according permission to the petitioner for making the construction as stated in the order dated 4-4-1995 passed by the second respondent. If, as a matter of fact, no such resolution was passed by the Gram Panchayat, obviously the order dated 4-4-1995 passed by the second respondent cannot stand. On the other hand, if there was such a resolution on the basis of which the second respondent passed the order dated 4-4-1995, the remedy of respondents 3 and 4 lies either in filing a revision before the Government u/s 264 of the Act or to agitate their rights before a competent civil Court. As this is a disputed question of fact which has to be settled after due enquiry, I think it is just and proper to direct the first respondent to conduct an enquiry in this behalf and after verification of the records of the Gram Panchayat find out whether there is any such resolution passed by the Gram Panchayat according sanction to the petitioner for making the construction in question. It is not disputed that as per the rules issued in G.O.Ms.No. 997 Panchayat Raj dated 23-11-1966 as amended by G.O.Ms.No. 558 dated 11-7-1967 under the A.P. Gram Panchayats Act, 1964, the District Panchayat Officer has the power of supervision and control over Gram Panchayats and their executives in his jurisdiction in the administration of Gram Panchayats and he is competent to inspect the Gram Panchayats and also hold enquiries and submit reports to higher authorities on complaints of maladministration of Gram Panchayats etc. The first respondent is, therefore, directed to complete the enquiry in this behalf and communicate the result thereof to the parties within two months from the date of receipt of this order. Till then the status quo as on to-day with regard to the construction will be maintained. If the District Panchayat Officer finds that there is, in fact, a resolution passed by the Gram Panchayat according sanction to the petitioner, the petitioner will be at liberty to proceed with the construction. It will also be open to the third respondent to pursue the other remedies available to him under law in the matter. If, on the other hand, the District Panchayat Officer finds that there was no such resolution passed by the Gram Panchayat according sanction to the petitioner, it is obvious that he cannot proceed with the construction.

The writ petition is disposed of accordingly. No Order as to costs.