THE HON'BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION Nos.2558 of 2012 AND BATCH0301-2014 T.Lingaiah s/o. Mallaiah and others.... Petitioners The Government of A.P., rep.by its Secretary to Government, Municipal Administration and Urban Development (CELL.I), Department,Secretariat, Hyderabad and others.... Respondents Counsel for the petitioners : Sri M.Rama Rao Counsel for the Respondents:1) Govt.Pleader for Municipal Administration and Urban Development for respondent No.1 2) Govt.Pleader for Revenue for respondent No.2 3) Smt. Shanti Neelam for respondent No.3 4) Govt.Pleader for Panchayat Raj & Rural Development for respondents 5 and 6 : : ?. Cases referred:
1. (1999) 3 Supreme Court Cases 422 2) (2011) 10 Supreme Court Cases 714 3) 2011(13) Scale 511 4) 1971 (1) APLJ18(SN) 5) 2009(6) SCC6816) 1966 II Andhra Weekly Reporter 458 7) 2008 (4) SCC1448) 1994 (5) SCC1989) 2003(2) SCC11110) (2003) 9 Supreme Court Cases 731 11) AIR1982Andhra Pradesh 123 12) 2006 (2) ALD79713) AIR1995AP24614) 2008 (5) ALD585(DB) HON'BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NOs.2558, 3614, 3615, 3616, 3617 and 3618 of 2012 Date:
03. 01-2014 This Court made the following : HON'BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NOs.2558, 3614, 3615, 3616,3617 and 3618 of 2012
Common Order:In this batch of writ petitions, petitioners are residents of six villages in Medak District, which are surrounding Siddipeta Municipality. Petitioners challenge the legality and validity of the Government Order in G.O.Ms.No.13 Panchayat Raj and Rural Development (Pts.IV) Department, dated 21.01.2012 and G.O.Ms.No.28 Municipality Administration and Urban Development (Elec.I) Department, dated 21.01.2012 (In W.P.No.2558 of 2012, only G.O.Ms.No.28 Municipality Administration and Urban Development (Elect.1) Department, dated 21.01.2012 is challenged). By the aforesaid orders, the Government notified six villages surrounding Siddipet Municipality to merge into Siddipet Municipality. The villages notified are 1)Rangadhampally 2)Imamabad, 3)Narsapur, 4)Gadcherlapally, 5) Prashanthnagar and 6) Hanumannagar.
2. The facts in brief which are necessary for consideration of the issue involved in these writ petitions are as under:
3. The Commissioner, Siddipet Municipality issued Notice dated 03.08.2011 stating that six villages mentioned in the notice are proposed to be included in Siddipet Municipality and called for views/objections/suggestions. This notice is based on the decision stated to have been taken by the Government to merge the six Grampanchayats in Siddipet Municipality. Petitioners submitted objections in response to the said notice. Several other persons have also submitted objections. Petitioners averred that without considering the objections filed by the petitioners, impugned orders are passed merging the villages of the petitioners into Siddipet Municipality.
4. Heard Sri M.Rama Rao, learned counsel for the petitioners in all the writ petitions and learned Government Pleader for the Municipal Administration and learned Government Pleader for Panchayat Raj Department.
5. Elaborate submissions are made by the learned counsel for the petitioners pointing out several illegalities in the process, resulting in issuing the impugned Government Orders. Learned counsel pointed out that there is clear violation of mandate in Section 3 of Act 1994 read with Rule 12(2) of Rules 2007 in de-notifying the petitioners villages from the purview of Act, 1994. Learned counsel also made elaborate submissions on violation of provisions of Acts, 1965 and 1994 and the Rules made there under in determining the distance between the Municipality and the petitioners villages before merging the villages. He further contends that the six villages are chosen in a pick and choose method by arbitrary exercise of power, while excluding other villages which are more close to the Siddipet town. Learned counsel also contended that there was total non-application of mind and mechanical determination of issue violating spirit of Panchayat Raj Act and the constitutional mandate. He further contends that the objections filed by the petitioners were not even considered and no reasons are assigned. The objections are not considered by the competent authority as required by law. Learned counsel, therefore, contended that there is total violation of statutory mandate and, therefore, the orders impugned are not sustainable.
6. The learned counsel for the petitioners placed reliance on the decisions of the Hon'ble Supreme Curt in the cases of Babu Verghese and others Vs. Bar Council of Kerala and others1, J&K Housing Board and another Vs. Kunwar Sanjay Krishan Kaul and others2, M/s. Kamal Trading Private Limited (now Known as Manav Investment & Trading Co. Ltd.) Vs. State of West Bengal & Others3, Ipurupalem Gram Panchayat rep.by its Sarpanch Akrathi Ranganayakulu and others Vs. State of A.P., & others4, Ram Suresh Singh Vs. Prabhat Singh alias Chhotu Singh5, Rajahmundry (Rural) Mandal Praja Parishad, rep.by its President Menda Somayya Vs. The Govt. of A.P., rep. by its Secretary, Housing Municipal Administration & Urban Development Department, Hyderabad6, The Prakasam Nagar Co-operative House Construction Society Ltd., by its President and others Vs. The Government of Andhra Pradesh, by its Secretary, Health, Housing and Municipal Administration, Hyderabad and another7, Bhikhubhai Vithlabhai Patel Vs. State of Gujarat8, Pankaj Jain Agencies Vs. Union of India9 and Bhavnagar University Vs. Palitana Sugar Mill Private Limited10.
7. Learned Government Pleaders for Panchayat Raj and Municipal Administration, respectively, justified the impugned action. Both Government Pleaders made elaborate submissions. They have defended the action of the Government in issuing the impugned G.Os. According to the learned Government Pleaders there is full compliance of the statutory mandate. Elaborate procedure was followed and the issue of merger of surrounding villages into Siddipet Municipality was pending consideration since the year 2006 and matter has been examined at various levels. Learned Government Pleaders further submit that grampanchayats of the villages represented by the petitioners have passed resolutions as early as in the year 2010 requesting the Government to merge the villages into Siddipet Municipality and, therefore, there is full compliance of the statutory mandate and that since Grampanchayats have passed resolutions in favour of merger, the question of consideration of individual representations and discussion of the individual objections does not arise and that is not envisaged by the rules governing the issue.
8. Learned Government Pleader placed reliance on decisions of Division Bench in PIL Nos.359, 360, 368 and 369 of 2013 and the decisions of the Supreme Court in the case of State of Maharashtra and others v. Jalgaon Municipal Council and others11, K.Nagabhushanam and others v. Collector, Krishna District and others12, P.V.V.Prasad and others Vs. Government of A.P., and others13, K.Gopi and others Vs. Govt of A.P. and others14 and Mohd. Moazam Khan and others Vs. Government of A.P., and others15.
9. I have given my anxious consideration to rival submissions of counsels and the decisions relied on by them.
10. The six villages which are surrounding Siddipet Municipality, which merger process is under challenge are governed by the Andhra Pradesh Panchayat Raj Act, 1994 (Act, 1994) and rules made thereunder. Act provides for notification/denotifictation of a village and procedure to be followed. Siddipet Municipality is governed by the Andhra Pradesh Municipalities Act, 1965 (Act, 1965) and the rules made thereunder. In exercise of powers vested by Section 268 (1) read with Section 3(1)(2) of Act, 1994, ".The Andhra Pradesh Grama Panchayats ( Declaration of Villages) Rules, 2007". ( Rules 2007) are notified. In exercise of powers vested by Section 326(1) of Act, 1965, ".Andhra Pradesh Municipalities (Inclusion or Exclusion of Areas into/from the Limits of Municipalities/Nagar Panchayat) Rules, 2006". (Rules 2006) are notified. Section 3(2)(f) of the Act, 1994 vests power in Government to cancel the notification issued under sub section 1 of Section 3, treating a revenue village as a village for the purposes of the Act. The exercise of this power is regulated by Rules 2007.
11. The relevant provisions of Acts and Rules:
1. Section 3 (1A) of Andhra Pradesh Municipalities Act, 1965.
3. Constitution of Municipalities : (1A) The Government may, by notification and in accordance with such principles and procedure as may be prescribed in this behalf:- (a) include within a Municipality and local area or part thereof, in the vicinity of such Municipality; (b) exclude from a Municipality, any area comprised therein. 2) Section 3(2)(f) of Panchayat Raj Act, 1994.
3. Declaration of a village for the purposes of this Act: (2) The Government may, by notification and in accordance with such rules as may be prescribed in this behalf --- (f) cancel a notification issued under sub-section(1). 3) Rule 3(i) and Rules 4 and 5 of A.P.Municipalities (inclusion or exclusion of areas into/from the limits of Municipalities/Nagar Panchayats) Rules, 2006: Rule 3. Criteria for Inclusion or Exclusion of Areas: - Wherein an issue raised for inclusion or exclusion of area(s) in/from the Municipalities/Nagar Panchayats at any of the level of official/non-official representation, such cases shall be examined subject to satisfaction of following decisive factors: (i) for inclusion of areas: (a) The areas which are proposed to be included into the limits of Municipality/Nagar Panchayat shall be within a radius of 3 K.M. of a Municipality/Nagar Panchayat. (b)The proposed are shall represent ample number of population to its area(s). (c) The proposed area shall represent economic importance of any specific reason viz., tourist place, historical place etc. (d) Proper justification shall be made for inclusion of an area(s). (e) In no case where an area is away from a distance of 3 K.Ms from the Municipality/Ngar Panchayat and no representation of ample population is made then such proposal shall not be taken into consideration for inclusion. Rule 4. Scope for Inclusion or Exclusion of Areas:- Any proposal for inclusion or exclusion of the areas into/from the limits of the Municipality/Nagar Panchayat shall satisfy one or all the norms as per the provision of Rule 3 of the aforesaid rules. Rule 5. Examination of the proposal: (i) Any representation is made from official/ non-official for inclusion or exclusion of any area, shall be initially placed before the Municipal Council of that particular Municipality/Nagar Panchayat duly giving details of the issue viz., its area, distance from the Municipality, population, economic or any special importance of the area, financial implications on acceptance for inclusion or exclusion and any specific reasons thereof in accordance with Rule 4 above. (a) The Municipal Council before arriving any opinion of the proposal shall take into the public interest as the primary motive for any inclusion or exclusion. (b) The Municipal Council shall also justify its opinion for any inclusion or exclusion of area(s). (ii) Then the Municipal Commissioner shall forward the Council's resolution on the proposal along with his specific observations on the proposal to the Commissioner and Director of Municipal Administration through District Collector concerned. (iii) The District Collector shall examine the proposal in consultation with respective Gram Panchayat/ District Panchayat Officer. On examination of the proposal, the District Collector shall forward the proposal along with his recommendations to Government (Municipal Administration and Urban Development Department) through the Commissioner and Director of Municipal Administration. iv) The Commissioner and Director of Municipal Administration, Hyderabad shall scrutinize the proposal and with his recommendations forward it to the Government (Municipal Administration and Urban Development). (v) Government (in MA & UD Department) after examination, if satisfied to consider the same, shall forward such proposal to the Panchayat Raj and Rural Development Department, provided the said proposal relates to inclusion/ exclusion as the case may be of an area falls under the jurisdiction of Panchayat Raj Department, for examination and orders. (vi) On receipt of acceptance from the PR & RD Department the Government (in MA & UD Department) will issue a show-cause notice to the Council/Special Officer, as the case may be of the Municipality concerned affording an opportunity for submission of views/ objections/suggestions of the Council. The copy of the show-cause notice shall also be affixed in the Notice Board of the Municipality, so that the local people of the concerned Municipality can also submit their views/ objections/suggestions on the proposal to the Government within a period of TEN DAYS from the date of publication of the show-cause notice in the notice board of the Municipality. After receipt of the view of the Municipality and the local people and if there is acceptance from the Municipal Council, Government shall examine the representation of the local people and it shall be open to the government to declare by notification in the A.P.Gazette for inclusion or exclusion of any area(s) into or from the limits of the Municipality/Nagar Panchayat. (vii) If a Municipal Council, is against the proposal, the Government shall examine the points raised by the Municipal Council and the representations made by the local people and if Government feels that the resolution of the Municipal Council is against the larger interest of public or such local body, shall set aside such decision of the Municipal Council and notwithstanding anything contained in Rule (5) it shall be competent for the Government to declare by notification for inclusion or exclusion of any area(s) into or from the limits of the Municipality/Nagar Panchayat for the reasons recorded in writing. (vii) For inclusion or exclusion of any area(s) into or from the Municipality/nagar Panchayat, there will be omission or inclusion of certain area(s) of a specific ward(s) of such Municipality/Nagar Panchayat. Subsequently, for such changes, re-division of Municipality/Ngar Panchayat into equal wards shall be taken up on compulsory basis before conduct of ordinary elections to such Municipality/ Nagar Panchayat. 4) Rule 2(ii) and 12 of A.P.Gram Panchayats (Declaration/Identification/Constitution of Villages) Rules, 2007.
2. In these rules, unless the context otherwise requires,- (ii) 'Distance' means the distance of an area from the office buildings of the Gram Panchayat, if any, or from a central point in the village as fixed by the Government.
12. (1) It shall be competent for the Government to cancel a notification under clause (f) of sub-section (2) of Section 3, in the following circumstances namely:- (i) Where it is proposed to constitute a Municipality or a notified area under Section 389-A of the Andhra Pradesh Municipalities Act, 1965, or a Municipal Corporation for a village or for group of villages or part thereof declared as village under sub-section (1) of Section 3 of the Act; (ii) Where a village declared under sub-section (1) of Section 3 or part thereof is proposed to be merged in a neighbouring Municipality or a Municipal Corporation or a Notified Area constituted under Section 389-A of the Andhra Pradesh Municipalities Act, 1965, and the residuary area is not, in the opinion of the Government, a viable unit for continuing as a Gram panchayat; (iii) Where the revenue village or part thereof declared as a village under sub-section (1) of Section 3 of the said Act ceases to be a revenue village due to submersion or depopulation and the necessity for a Gram Panchayat ceases; (iv) Where it is found in the actual working that the Gram Panchayat for the village declared under sub-section (1) of Section 3 cannot function efficiently as a viable unit of local self-Government. (2) The Government shall, before issuing a notification under Clause (f) of sub-section (2) of Section 3 of the Act, give to the Gram Panchayat, which will be affected by the issue of such notification, an opportunity of showing cause against the proposal to indicate its decision within a period of ten days from the date of receipt of the show-cause notice and consider the objections, if any, of such Gram Panchayat: Provided that if no reply to the show-cause notice from the Gram Panchayat is received within the period aforesaid, the Government shall pass such orders as deemed fit, to give effect to the proposal.
12. Rule 12 (1) of Rules 2007, provide the scope of exercise of power under Section 3(2)(f) of the Act, 1994. Sub Rule (2) of Rule 12 provides procedure for de-notification subject to the scope of power prescribed in Sub rule 1.
13. Rules 2006 provide for expansion or decrease of the boundaries of a municipality. Rule 3 of the Rules 2006 enables consideration for inclusion of surrounding villages into a municipality subject to fulfillment of conditions mentioned in (i). Two principal requirement of this provision are, 1) the proposed village should be within a radius of 3 KMs of a municipality and 2) the proposed area should represent ample number of population to its area. Rule 5 provides for examination of the proposals in terms of Rule 3. Rule 5 pre supposes a representation from official/non official for inclusion of any area into the municipality. Such representation should be placed before the municipal council giving full details of the issue. The Municipal council is mandated to deliberate on the issue as with reference to the public interest as primary motive and should also justify opinion for such inclusion. The council should pass resolution in favour of the inclusion of any area. The Municipality should forward the resolution to the Commissioner and Director of Municipality Administration through District Collector concerned. The District Collector is required to examine the proposal in consultation with the respective Grampanchayats or District Panchayat Officer. On such examination, the District Collector should send proposals along with recommendations to the Government in Municipal Administration and Urban Development Department (MA&UD). Thereafter, the Commissioner should scrutinize the proposals and with his recommendations should forward to the Government in MA&UD.
14. The Government in MA&UD on further examination, if considered for such inclusion, should forward the proposals to the Panchayat Raj and Rural Development Department (PR&RD) if such area is covered by the Panchayat Raj Act, for examination and appropriate orders. The rule envisages further action only after the proposals are accepted by the PR&RD. After the orders are received from the PR&RD, the Government in MA&UD is required to issue show cause notice to the council of the Municipality calling for its views/objections/suggestions. A copy of the show cause notice should also be affixed to the notice board of the Municipality to give an opportunity to the local people of the municipality to offer their views/objections/suggestions. After receipt of the views of the municipality and local people, if the municipal council accepts, the Government should examine the representation of the local people and thereon government can issue declaration for inclusion of an area into the municipality. The Government is also vested power to over rule objections of municipal council, if large public response is in favour of the proposal.
15. As against such an elaborate procedure prescribed in rule 5 of Rules 2006, Rule 12(2) of the Rules 2007 envisage only summary procedure, i.e., calling for objections from the Gram panchayat, before issuing a notification under Section 3(2)(f) of the Act, however, subject to fulfillment of condition in Rule 12(1).
16. Two important exercises required by the Government through various wings to include a village into a municipality are, 1) such village should be de notified as a village under Section 3(2)(f) of the Act, 1994 and 2) following due procedure as mandated by Rules 2006, it should be included in the municipality. Rules 2006 and Rules 2007 complement each other and operate in different fields. There is no overlapping of jurisdiction or area of operation.
17. On an interactive analysis of the provisions of the Acts, 1965 and 1994 and respective Rules, it emerges that it is necessary to follow a detailed procedure to merge a village into a municipality step by step. This is a statutorily engrafted safeguard to ensure democratic institutions are not diluted by some vested interests with political objective.
18. While merging the village into the Municipality, ordinary residents of village are not provided with any mechanism to represent against merger, whereas the residents of the municipal area with which the village is proposed to be merged are given the opportunity to ventilate their views/objections/suggestions and as evident from the scheme of Rule 5 of Rules 2006, such views/objections/ suggestions can play a greater role in deciding an issue by the Government.
19. A village can be de-notified from the Panchayat Raj Act and can be merged into the municipality only after due compliance of the procedure envisaged in Rules 2006 and Rules 2007. For the purpose of de-notification of a village, Rules 2007 mandate such exercise to be carried out by the government in PR&RD. The reasons for initiation of the process for de-notification, can be the proposal received from the MA&UD for merger of the surrounding villages and expanding the jurisdiction of the municipality. However, care was not taken in incorporating appropriate provision while making Rules 2007 to bring them on par with the scheme envisaged in rule 5 of Rules 2006. The exercise of power under Section 3(2)(f) of the Act, 1994 is conditioned by the Rules notified thereunder. Rule 12(1) of the Rules 2007 vests power in the government to de- notify the village only in four contingencies specified therein. A bare look at Rule 12(1) of Rules, 2007, it appears that there is no provision made to deal with the contingency of de-notifying a village for the purpose of merging the said village into a municipality. In the context of the present case, the only provision that is closest to the issue is Rule 12(1)(ii). In the present case, the power exercised is also not governed by the said provision, as what is de- notified is not a residuary area, but entire village. Act, 1994 read with Rules 2007 do not vest power in the government to denotify a village for the purpose of merger into an adjoining municipality. However, this issue need not be dwelled into further in this case for the reasons assigned hereunder.
20. To appreciate the rival contentions, it is necessary to note time line of events. It appears, proposals for merger of adjoining villages generated as early as in the year 2006, when Municipality passed a resolution. In the year 2008, District Collector called for proposals from all Municipalities in the District to merge adjoining villages. In the year 2010, the six gram panchayats have passed resolutions for merger of these villages into Siddipet municipality. On 15.03.2011, the District Collector addressed a letter to the MA&UD proposing for merger of surrounding villages into the Siddipet Municipality. The Commissioner examined the said proposals and sent his recommendations to the Government in MA&UD on 22.03.2011. Based on the proposals of the District Collector, Commissioner and Director of Municipal Administration recommended to Government for merger. On 26.07.2011, Government issued show cause notice to the Municipality calling for its views/objections/suggestions on the proposed merger of surrounding villages. The Commissioner Siddipet Municipality issued notice dated 03.08.2011 calling for the objections. On 30.08.2011 resolution is passed by the Siddipet Municipality accepting the proposal to merge the six villages into Siddipet municipality. The District Panchayat Officer made proposals in his letter dated 22.10.2011 for merger of 12 villages. The proposals of the District Panchayat Officer rests on resolutions passed by the Gram panchayats in the year 2010. Considering the said proposals the District Collector addressed another letter dated 03.11.2011 to the Commissioner of MA&UD recommending merger of the villages. After receipt of the proposals from the District collector, the Commissioner considered the matter further and sent fresh proposals to the government recommending merger of the villages.
21. Referring to the proposals of the District Collect dated 15.03.2011 and proposals of the Commissioner and Director of Municipal Administration dated 22.03.2011, Government issued orders in G.O.Ms.No.13, dated 21.01.2012 exercising the power under Section 3(2)(f) of the Act, 1994, de-notifying the six villages from the purview of Panchayat Raj Act. As a consequence to the above orders of the Government, on the same day, the government in Municipal Administration issued further orders in G.O.Ms.No.28 dated 21.01.2012 including the six villages into Siddipet municipality. It is significant to note that the Gazette publication was intended to be made on 25.01.2012 publishing the cancellation of notification holding six villages as ceased to be villages as per Act, 1994. Thus, the six villages would be out of the purview of Act, 1994 only after the notification was published in the Gazette. But even before the villages are taken out of the purview of the Act, 1994, further orders are issued including these villages into the municipality. The decision taken to include six villages on 21.01.2012 is per se illegal.
22. As briefly analyzed above, Rule 5 of Rules 2006 envisage a detailed and step by step procedure to include any area, which is within the radius of 3 KMs to the municipality into the municipality. As evident from the reading of the G.O.Ms.No.13, the only reason for de notifying the village from the purview of the Act, 1994 was to merge those villages into Siddipet municipality. As per Rule 5 of Rules 2006, such contingency would arise only on a recommendation from the MA&UD. On receipt of such proposals from the MA&UD, the Government should exercise power under Rule 12 (2) calling for objections of the gram panchayats. The date when MA&UD recommended to the Panchayat Raj Department for merger of the six villages into Siddipet municipality is not clearly stated in the counter affidavits filed by the Departments, but it is obviously in the year 2011. After such a requisition by the MA&UD, as evident from the record placed before this Court, no notice was issued by the Government in Panchayat Raj Department and Rural Development to the Grampanchayats calling upon them to show-cause on the proposal of the Government to de-notify the villages from the purview of the Act, 1994. As evident from G.O.No.13, Government acted only on the basis of the letters written by the District Collector on 15.03.2011 and the Commissioner and Director of Municipal Administration on 22.03.2011. After 15.03.2011 and before 21.01.2012, no notice as envisaged by Rule 12(2) of Rules 2007 was issued. There was no resolution passed by the respective gram panchayats after 15.03.2011 and before 21.01.2012 agreeing to the proposals of the Government in PR&RD to delete the six villages from the provisions of the Act, 1994. Thus, even assuming that the action of the Government is covered by the provision in Rule 12(1) of Rules 2007, the statutorily engrafted procedural mandate is not complied with and on that ground alone the entire exercise falls to the ground.
23. The Government has created edifice without proper foundation as mandated by the two statues and the rules made there under. Calling the views/objections/suggestions from the municipal council and the residents of the municipality would arise only after the proposals of the MA&UD are accepted by PR&RD and notification is issued under Section 3(2)(f) of the Act, 1994. Whereas the record discloses and as per the time line stated above, show cause notice was issued by the MA&UD on 26.07.2011, in pursuant to which the commissioner has issued notice on 03.08.2011. The Municipality submitted its report on 22.10.2011. The Commissioner reported to the Government that only four percentage of villagers of the proposed six villages have objected to such merger and, therefore, can be ignored. This reasoning of the commissioner is incorporated into the G.O.Ms.No.28 to justify the decision of MA&UD to merge the six villages. In the process what is ignored by the hierarchy of officers is the question of consideration of objections of the villagers by the Municipal Commissioner in pursuant to the notice by the Government under Rule 5 (vi) does not arise. The notice envisaged in the above rule is applicable to the municipal council and the residents of the municipality, but not to the villagers living in the villages proposed for merger. There appears to be no response from the residents of the municipality, neither the municipal commissioner letter nor counter affidavit filed on behalf of the municipality reflect receipt of views/objections/suggestions of the residents of the Municipality. It is contrary to the statutory mandate. Scope of enquiry was expanded by the Municipal Commissioner who is wholly incompetent and has no jurisdiction to go beyond the boundaries of the municipality to receive the objections of the villagers, consider the same and submit report to the Government. Furthermore, the entire exercise was taken up by the MA&UD even before a notification was issued by the PR&RD in exercise of power under Section 3(2)(f) of the Act, 1994. The procedure envisaged cannot be treated as empty formality and cannot be side stepped by the Government.
24. In Jalgon Municipal Council, Supreme Court held as under: ".One of the principles of good governance in a democratic society is that smaller interest mush always give way to larger public interest in case of conflict. The amendment resulting in curtailing of the period appointed for inviting objections though restricted the period, by shortening it to the extent necessary in the then circumstances, it was done only for achieving larger public interest. No fault can be found therewith. The period allowed for inviting objections conforms to the statutory provision and is not shown to have caused any prejudice to anyone. ".
25. In K.Nagabhushanam, Supreme Court held as under: "....... The Legislature has though fit to empower the Commissioner to cancel a notification issued by him under Sec.3 (1) of the Gram Panchayats Act in the several circumstances enumerated in R.12 of the Declaration of Village Rules. When a Gram Panchayat is sought to be included within an adjoining municipality, it is equally competent for the Collector to cancel the notification of the Gram Panchayat. The Municipality exercising its control over the local area or the Gram Panchayat exercising its control over that area are alike different units of self-Government. The principles of self-Government are not violated in any manner if the Gram Panchayat is denotified and if that local area is included within the adjoining municipality. We do not also find any force in the submission made by the petitioners' counsel that the denotification violates in any manner Art.40 of the constitution. The obligation of the State to organise village panchayats and to endow them with such power or authority as may be necessary to enable them to function as units of self-Government is there only when the local area continues to be a village. When the notification constituting the Gram Panchayat itself is cancelled for valid purposes so as to include it within an adjoining municipality, Art.40 of the Constitution does not come in the way of the Government in including the local area within the limits of the adjoining municipality. ".
26. The merger of certain villages in Warangal Municipal Corporation was challenged by way of Public Interest Litigation Nos.359, 360, 368 and 369 of 2013. One of the contentions urged on behalf of the petitioners was that if the villages are brought under the municipal area, then the villagers will loose their employment. The Division Bench of this Court held as under: ". In my view, on this ground, the decision taken in accordance with law cannot be scrutinized by the Court. It is the decision of the Government that some areas should be brought within the municipal area so as to bring them within the urban life. This policy decision, unless it is absolutely mala fide and with an oblique motive, cannot be examined by the Court. However, we direct the respondent authorities to extend all the civil facilities and amenities, as are available to other areas of the municipal corporation, to these newly brought areas. ".
27. The above decisions relied by the learned Government Pleaders do not come to the aid of the Government. In the instant case, as noticed above there is total violation of statutory mandate and facts in issue are not same. The power of Government is not doubted, but the manner in which it is exercised is.
28. A detailed procedure is engrafted into the rules 2006 and Rules 2007 in de merging the villages from the purview of the Act, 1994 and including them within the jurisdiction of municipality. No scope is provided for deviating from the statutory mandate and the entire exercise resulting in the issuance of impugned G.Os., is totally in violation of the statutory mandate and, therefore, vitiated and unsustainable.
29. No decision is brought to my notice, which has considered the scope of the provisions, which are analyzed in the above paras and validating the decision of the Government taken in similar manner.
30. In the above analysis, there is merit in the contention of counsel for the petitioners that there was total non application of mind before taking such an extreme decision of de notifying the villages from the purview of Act, 1994 and merging those villages into Siddipet municipality. The lapses pointed out above are grave in nature, go to root of the matter and vitiates the entire exercise.
31. During the course of arguments, it was brought to the notice of this Court that the orders in G.O.Ms.Nos.13 and 28 were implemented and these villages are brought under the purview of Siddipet municipality and being administered by the Siddipet municipal council. Thus, while leaving it open to the Government to undertake revised exercise as mandated by the Act, 1994 and Act, 1965 and the rules made there under, if the Government intend to proceed with the de- notification of the villages from the purview of the Act, 1994 and to merge these villages into Siddipet Municipality in accordance with Act, 1965, the status quo obtaining as on today shall be maintained. Government shall take a decision in this regard within a period of six weeks from the date of receipt of copy of this order and proceed accordingly.
32. The writ petitions are allowed accordingly. No order as to costs.
33. Miscellaneous petitions, if any pending, in these writ petitions shall stand closed. _____________________ JUSTICE P.NAVEEN RAO Date:
03. 01-2014