ORDER
1. Heard Mr. Ramana Reddy, senior Counsel for the petitioner, the learned AGP for Panchayat Raj and Rural Development and Mr. P. Gangaiah Naidu, the learned Counsel for the 4th Respondent.
2. All the Counsels have agreed to dispose of the main writ petition.
3. The petitioner has preferred this fourth-writ petition questioning the orders of the 2nd respondent-District Collector (Panchayat-Wing) Krishna District, Machilipatnam bifurcating Marribandam revenue village from the Seetharampuram Gram Panchayat and constituting separate Marribandam Gram Panchayat.
4. The admitted facts are that the petitioner is the Ex-Sarpanch and Ex-person-incharge of Seetharampuram Gram Panchayat in Nuzvid Mandal. Seetharampuram Gram Panchayat was constituted in the year 1970 and in pursuance of the proceedings of the Collector in RC No.2620 of 1971, dated 14-4-1972, Marribandam Revenue village was excluded from Mirzapuram Gram Panchayat and included in Seetharampuram Gram Panchayat. The 2nd respondent-District Collector issued notice to the Seetharampuram Gram Panchayat for bifurcation of the said Gram Panchayat. In reply, the Gram Panchayat passed a resolution opposing the bifurcation on 1-5-1995 and on 5-5-1995, written representations to the 2nd respondent were filed by the Gram Panchayat objecting to the bifurcation.
5. On 12-5-1995, final notification for bifurcation of the Seetharampuram Gram Panchayat was issued by the 2nd respondent-Collector. On 22-5-1995, the petitioner filed Writ Petition No.10225 of 1995 in this Court questioning the notification of the 2nd respondent dated 12-5-1995. On 25-5-1995 interim suspension of the proceedings of the 2nd respondent was issued by the Court; later
on 22-11-1995, the Division Bench of this Court by its judgment, set aside the impugned proceedings of the Collector and directed that the Collector should pass orders giving reasons as no reasons were given in the impugned order. On 15-10-1996 and 31-10-1996 the Revenue Divisional Officer and the Panchayat Extension Officer conducted survey with regard to the distance between the Seetharampuram Gram Panchayat and Marribandam revenue village and reported the distance as 2.2 Kilometres. On 23-10-1996, the Minister for Panchayat Raj under the mistaken impression that the matter should be heard by the Government, issued notices to the parties to appear before the Government on 1-11-1996.
6. The petitioner filed WP No.23084 of 1996 before this Court challenging the notice dated 23-10-1996. The Division Bench of this Court held that on submission of the GP for Panchayat Raj that the impugned notice was issued by the Government due to oversight and mistake and the Government does not propose to proceed with the case and that the notice may be quashed, the impugned notice was quashed.
7. On 8-11-1996, the Government
issued Telegram to the Collector to hear and dispose of the matter as directed by the High Court. The Collector heard the parties and again passed orders on 25-11-1996 bifurcating Marribandam revenue village from Seetharampuram Gram Panchayat and constituting Marribandam Gram Panchayat. The petitioner preferred WP No.26872 of 1996 on 16-12-1996 before this Court questioning the order of the 2nd respondent dated 25-11-1996 bifurcating Marribandam revenue village from Seetharampuram Gram Panchayat. At the time of hearing the petitioner challenged mainly on the ground that as per the partial modification of the Rules issued by the Government for bifurcation in G.O. Ms. No.515, Rural Development and Relief (Mandal-I) Department, dated 17-8-1994 and G.O. Ms. No.225, Panchayat Raj, Rural Development and Relief (Panchayats-lV) Department, dated 114-1995, the Government issued G.O. Ms. No.232 Panchayat Raj, Rural Development and Relief (Panchayats-lV) Department, dated 18-4-1995 stating that the distance between the areas to be bifurcated should not be less than 2 kilometres. As the controversy was as to what is the exact distance between the Seetharampuram Gram Panchayat And Marribandam revenue village, the Court appointed Mr. Chinnappa Reddy, Advocate-Commissioner in WP No.26872 of 1996. It is stated in his report dated 26-7-1997 that the distance between the entry point of the Marribandam revenue village and the Gram Panchayat building of Seetharampuram is 1080 Metres. The distance between Seetharampuram Gram Panchayat building and the Central Point of Marribandam village is 1210 metres. After the report of the Advocate-Commissioner, the Division Bench of this Court in its judgment dated 30th December, 1997, set aside the order of the 2nd respondent dated 25-11-1996 and remanded the matter to the Collector with observations thus:
“As per his report, the distance between the panchayat building in Seetharampuram village and the centre point (NTR statue) of Marribandam village is 60.5 chains or 1210 metres or 1.2 kilometres. This inconsistency, however, needs to be set at naught. Since it is only a fact finding exercise which is not possible for us exercising the jurisdiction under Article 226 of Constitution, we are not inclined to delve much upon this aspect. But, we wish to add that as per the Rules and the Instructions issued by the Government with regard to bifurcation of villages, the distance is not the sole determining factor for passing an order of bifurcation. If the geographical features, communication facilities or the financial position of a particular village warrant bifurcation and if the Collector is of the opinion, basing on the material available before him, that the interests of the village will be better
safeguarded by bifurcating that village from the existing Gram Panchayat, he can as well pass orders bifurcating the village by giving special reasons for the same.”
8. The 2nd respondent passed the impugned proceedings in this writ petition giving reasons and bifurcating Marribandam revenue village from the Scetharampuram Gram Panchayat and constituting Marribandam Gram Panchayat.
9. Mr. Ramana Reddy, the learned Counsel for the petitioner submits that the impugned order suffers from legal infirmity, as it is contrary to Section 3 of the A.P. Panchayat Raj Act, 1994 (hereinafter referred to as the ‘Act’) and Rules framed by the Government in G.O. Ms. No.515, Panchayat Raj, Rural Development and Relief (Mandal-IV) Department dated 17-8-1994 and G.O. Ms. No.232 Panchayat Raj, Rural Development and Relief (Panchayats-IV ) Department dated 8-4-1995. Placing reliance on Section 3 of the Act and Rules 3, 6 and 7 of A.P. Gram Panchayats {Declaration of Villages) Rules 1994 (hereinafter referred to as the ‘Rules’) framed under G.O. Ms. No.515 Panchayat Raj, Rural Development and Relief (Mandat-IV) Department dated 17-8-1994 and as modified in G.O. Ms. No.232, Panchayat Raj, Rural Development and Relief (Panchayats-IV), dated 18-4-1995, he submits that under Section 3 of the Act, before bifurcation, there must be declaration of village for the purpose of the Act. By virtue of Section 3, the Commissioner may, by notification and in accordance with the rules made by the Government in this behalf, declare any revenue village or hamlet thereof or any part of a Mandal to be village for the purpose of this Act and specify the name of the village.
10. He submits that according to
Section 3 of the Act, there is no declaration of Marribandam as a village and the distance between the Seetharampuram Gram Panchayat and Marribandam village is only 1210 metres i.e., 12 kilometres which is contrary to Rule 6 as modified by the Government in G.O. Ms. No.232, Panchayat Raj, Rural Development and Relief (Panchayats-IV) Department dated 18-4-1995. Rule 6 states that the bifurcation of the Gram Panchayat can be considered if the following criteria is satisfied:
(1) If the distance between the areas to be bifurcated is not less than two kilometres.
(2) If the population is 1000 or more.
(3) The number of Gram Panchayats in a Mandal Parishad Territorial constituency may not exceed three, after bifurcation/ amalgamation as far as practicable.
(4) The income criteria as specified in G.O. Ms. No.515, Panchayat Raj, Rural Development and Relief (Mandal-I) Department dated 17-8-1994 is deleted.”
11. He also submits that the impugned orders have been passed under the political influence and that the same is illegal and liable to be quashed.
12. He further submits that the judgment of the Division Bench of this Court in WP No.26872 of 1996 in the same proceedings, is per incuriam – for the learned Judges have not considered the clause (1) of modified Rule 6 issued in G.O. Ms. No.232, Panchayat Raj, Rural Development and Relief (Panchayats-IV) dated 184-1995.
13. In support of his contention, he relied on a decision reported in A.R. Antulay v. R.S. Nayak, , wherein it is held thus:
“Constitution of India-Articles 134, 136 and 137 – Directions of a Bench (of five Judges) of Supreme Court, given suo motu in violation of fundamental rights and principles of natural justice and per incuriam were without jurisdiction and nullity – Such directions even if subsequently questioned in another appeal instead of in a review petition
under Article 137, can be set aside by another Bench (of seven Judges in this case) of the Court ex debito justitiae in exercise of the inherent power (per majority, Venkatachalaiah and Ranganathan, JJ. contra)
He relied on paras-42 and 43 which are to the following effect:
“It appears that when this Court gave the aforesaid directions on February 16, 1984, for the disposal of the case against the appellant by the High Court the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkar case. See Halsbury’s laws of England, 4th Edn. Vol. 26, page 297, para 578 and page 300, the relevant notes 8, 11 and 15; Dias on Jurisprudence 5th Edn., pages 128 and 130; Young v. Bristol Aeroplane Co., Ltd. Also see the observations of Lord Goddard in Moore v. Hewitt ‘s and Penny v. Nicholas “per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle v. Wakeling, Also see State of Orissa v. Titaghur Paper Mills Co.Ltd. We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act 1952 and Articles 14 and21 of the Constitution, these directions were legally wrong.
The principle that the size of the Bench -whether it is comprised of two or three or more Judges – does not matter, was enunciated in Young v. Bristol Aeroplane Co.Ltd and followed by Justice Chinnappa Reddy in Javed Ahmad Abdul Hamid Pawala v. State of Maharashtra where it has been held that a Division Bench of three Judges should not overrule a Division Bench of two Judges, has not been followed by our Courts. According to well settled law and various decisions of this Court, it is also well settled that a Full Bench of, a Constitution Bench decision as in Anwar All Sarkar case was binding on the Constitutional Bench because it was a Bench of seven Judges.”
14. He also relied on a decision rendered by this Court in T. Onnuramma v. Tahsildar, Kadiri, , wherein the learned single Judge held at para 17 thus:
“But there is equally another reason that impels me to hold the later part of the opinion of Kondaiah J., as not constituting ratio decidendi of the Judgment rendered by him. The judgment of Kondaiah J., merely considered Section 3(1) of the Act 9 of 1977 without even glancing at such other vital and significant provisions of the Act such as Section 3(5) and Section 6. Section 3(5) speaks in clear language of a ‘land purchased by a landless poor person’ prior to the commencement of the Act, showing thereby that but for the exemption granted by Section 3(5) the Act would have applied even to that category of purchases of the lands prior to the Act by the landless poor persons from the landless poor persons. Similar is the legal effect of Section 6 in relation to the lands held by Government et cetera on the date of the commencement of the Act under mortgages.
It is now well settled that a decision rendered overlooking a statutory provision shall be treated as per incitriam and cannot be regarded a binding precedent. Salmond on Jurisprudence (12th Edition page 150) says “A precedent is not binding if it was rendered in ignorance of a statute or a Rule having the force of a statute i.e., delegated legislation. Salmond cites in support of this proposition the high authority of Lord Halsbury in the House of Lords in London Street Tramways v. London County Council, 1898 AC 375, and of Lord Greene M.R. in Court of
Appeal in that well known, case of Young v. Bristol Aeroplane Co. Ltd, (1944) 1 KB 718. As examples of per incuriam judgments Salmond cites a case where the Court knew the statute but did not refer to the precise terms of the statutes as well as to a case where the Court knew the statute but failed to appreciate its relevance to the matter in hand. On the extensive scope of the doctrine of per incuriam Salmond says that , “Even a Lower Court can impugn a precedent on such grounds”. Vol.22 of Halsbury’s Laws of England Third Edition, page 799 says that a “Court is not bound to follow a decision of its own given per incuriam”. “A decision may also be given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute.” This principle is referred to with approval by our Supreme Court in Jaisri v. Rajdewan, .
15. He relied on a Full Bench judgment of this Court reported in Yadaiah v. Government of A.P., 1983 (1) ALT 233, wherein he relied on para 40 of the Judgment which is as under:
“But the decisions rendered in forgetfulness or ignorance of the relevant statutory provisions or binding Judgments of a hierarchically superior Court would not acquire any authority as a precedent. Such decision would be treated as rendered merely per incuriam. Lord Halsbury’s statement of law on this point made in London Street Tramways v. LCC is generally accepted as an authority for the position that a decision rendered in ignorance of a statute acquires no authority as a precedent: But more recent and comprehensive statement of law on this subject is the one made by Lord Green M.R. in Bristol Aeroplane Company case, (1944) KB 718, where he said that “The Court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, for example, where a statute or Rule having statutory effect which would have effected the decision was not brought to the attention of the earlier Court”. Even more recent observations of Lord Evershed M.R. Morrelle Ltd. Wakeling had clearly recognised that the “cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provisions or of some authority binding on the Court concerned, so that in such cases some feature of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong.” Salmond in his jurisprudence described what type of decisions would be treated as having been rendered per incuriam and when they carry no binding force in these words:
A precedent is not binding if it was rendered in ignorance of a.statute or a rule having the force of statute i.e., delegated legislation. This rule was laid down for the House of Lords by Lord Halsbury in the leading case (infra 28) and for the Court of Appeal it was given as the leading example of a decision per incuriam which would not be binding on the Court (Young v. Bristol Aeroplane Co. Ltd), (1994 KB 729, (CA). The rule apparently applied even though the earlier Court knew of the statute in question, if it did not refer to and had not present to its mind, the precise terms of the statute Lancaster Motor Co. (London) Ltd. v. Bremith Ltd., (1994) 1 KB 675 at 678 (AA). Similarly, a Court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuria as to vitiate the decision Gower v. Gower, (1970) 1 ALL ER 804 at 806 (CA). Even a lower Court can impugn a precedent on such grounds.”
In Jaisri Sahu v. Rajdevan Dubey our Supreme Court accepted this doctrine of per incuriam as an exception to the theory of stare decisis. In this Court I have myself applied the doctrine
of per incuriam in Ponnuramma v. Tahsildar, Kadiri. In that case I said:
“As examples of per incuriam judgments Salmond cites a case where the Court knew the statute but did not refer to the precise terms of the statutes as well as to a case here the Court knew the statute but failed to appreciate its relevance to the matter in hand.”
16. He also relied on a decision of the Apex Court reported in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Assn., , wherein at para 10 of the judgment it is held thus:
“In the instant case, the proceedings before the Board under Sections 15 and 16 of the Act had been terminated by order of the Board dated April 26, 1990 whereby the Board, upon consideration of the facts and material before it, found that the appellant-Company had become economically and commercially non-viable due to its huge accumulated losses and liabilities and should be wound up. The appeal filed by the appellant-Company under Section 25 of the Act against said order of the Board was dismissed by the Appellate Authority by order dated January 7, 1991. As a result of these orders, no proceedings under the Act were pending either before the Board or before the Appellate Authority on February 21, 1991 when the Delhi High Court passed the interim order staying the operation of the order of the Appellate Authority dated January 7, 1991. The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order docs not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority.”
17. Next, he relied on the decision of the Apex Court reported in M/s. Amar Nath Om Prakash v. State of Punjab, , wherein it is stated that,
“Judgments of Courts arc not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret words of statutes their words are not to be interpreted as statutes.”
18. Relying on the last para of the impugned proceedings, dated 16-9-1998, wherein it is stated that the orders are hereby issued to implement the orders, issued by this office in the reference first cited, as it is, bifurcating Marribandam village from Seetharampuram Gram Panchayat, he submits that the 2nd respondent cannot revive the orders which have already been set aside, for the orders issued by the 2nd respondents in RC No.2578 of 1995 dated 12-5-1995 were already set aside by this Court in WP No.10255, dated 22-11-1995 and also the orders issued by the 2nd respondent dated 25-11-1996 which were challenged in WP No.26872 of 1996 were set aside by this Court on 30-12-1997; as such, the impugned order is illegal.
19. Relying on Rule 3 of the Rules, he
submits that in Rule 3, the opening words “Save as otherwise provided in these rules” means that the authorities can exercise their powers declaring the bifurcation of the villages only in accordance with the authorities vested under the Rules. For this proposition he relied on a decision reported in State of Rajasthan v. Noor Mohammad, , wherein at para 8 it is held thus:
“This power under clause (b), however, is subject to certain limitations. Sub-section (3) begins with the words “A State Transport Authority shall give effect to any directions issued under Section 43 and subject to such directions and save as otherwise provided by or under this Act shall exercise and discharge throughout the State following powers and functions, including those in sub-clause (b). It is clear, therefore, that the functions under sub-clause (b) could be discharged by the State Transport Authority subject to directions given to it under Section 43 of the Act and save as otherwise provided by or under the Act. In the present case it is urged that directions have been issued by the State Government under Section 43. We shall deal with this point in another place. The other limitation is that the State Transport Authority could perform the duties of the Regional Transport Authority under sub-clause (b) save as otherwise provided by or under this Act. It was contended that the Regional Transport Authority is a separate authority on which the duties referred to in clause (b) have been imposed by other provisions in Chapter IV and since the State Transport Authority is required to act “save as otherwise provided by or under the Act” it would be dis-entitled to take over the functions under sub-clause (b). Such an interpretation would obviously lead to grave incongruity. Sub-clause (b), as we have already seen provides for the exercise of the powers of the Regional Transport Authority by the State Transport Authority in certain contingencies.”
20. He submits that as the impugned order is contrary to clause 1 of Rule 6 issued in G.O. Ms. No.232, Panchayat Raj, Rural Development and Relief (Panchayats-IV) dated 184-1995, the same is illegal.
21. The learned AGP on behalf of respondents 1 to 3 submits that the petitioner who was a former ex-sarpanch and ex-person-inchargc of Seetharampuram Gram Panchayat Nuzvid Mandal, has no locus standi to question the impugned proceedings dated 16-9-1998 issued by the 2nd respondent, which is in accordance with law and as per Rule 10 of the Rules. As per 1991 census, the total population of the Seetharampuram Gram Panchayat is 3070 and the distance between Seetharampuram and Marribandam village was 2.3 kilometres; as per the certificate issued by the Assistant Engineer (Panchayat Raj – Revenue Division), the distance is 2.2 kilometres.
22. The income source is mainly from Marribandam village and as per the village, the total income was being spent by the main village viz., Seetharampuram; as such, they requested for bifurcation of their village as separate. As per the rules issued in G.O. Ms, No.515, Panchayat Raj, Rural Development and Relief (Mandal-I) Department dated
17-8-1994, G.O. Ms. No.225, Panchayat Raj, Rural Development and Relief (Panchayats-IV) Department dated 11-4-1995 and G.O. Ms. No.272 and 273, Panchayat Raj, Rural Development and Relief (Panchayats-IV) dated 18-5-1995 and G.O. Ms. No.232, Panchayat Raj, Rural Development and Relief (Panchayats-IV) Department dated
18-12-1995, the criteria laid down for bifurcation is:
(1) If the distance between the areas to be bifurcated is not less than two kilometres.
(2) If the population is 1000 or more.
(3) The number of Gram Panchayats in a Mandal Parishad Territorial Constituency may not exceed three, after bifurcation/amalgamation as far as practicable.
23. It is further submitted that the population of Marribandam village is 1571 and in the impugned proceedings, the 2nd respondent-Collector has given specific reasons for bifurcating Marribandam village and from Sectharampuram Gram Panchayat.
24. It is further submitted that the 2nd respondent has complied with the observations made in the judgment of the Division Bench of this Court in WP No.26872 of 1996 dated 30-12-1996 and on the material on record and held that the interests of the villagers of Marribandam will be better safeguarded by bifurcating that village from the existing Gram Panchayat (Scetharampuram) – for the majority of the villagers of Marribandam requested for exclusion of Marribandam from Scetliarampuram Gram Panchayat on the ground that the entire income from Marribandam village was being spent for the development of Seetharampuram Gram Panchayat by neglecting Marribandam village. Due to this, the development activities of Marribandam village were completely neglected, AGP has filed a certificate issued in LDis. No.886 of 1998 by the Mandal Revenue Office, Nuzvid, dated 7-11-1998 to the effect that Marribandam village of Nuzvid mandal is separate Revenue village as per Revenue records.
25. Mr. Gangaiah Noicin, the learned Counsel appearing for 4th respondent submits that the petitioner who was ex-sarpanch and ex-person-inchargc of Seetharampuram Gram Panchayat, has no locus standi to challenge the impugned proceedings issued by the 2nd respondent as it comes within the mischief of Rule 10 of the Rules framed under the Act. Referring to the order passed by the Division Bench of this Court in WP No.26872 of 1996, dated 30-12-1997, he submits that there is no infirmity in the impugned proceedings – for the 2nd respondent has complied with the observations of the Division Bench Judgment and lias given the cogent reasons for bifurcation of Seetharampuram Gram Panchayat and constituting Marribandam village as Gram Panchayat. He lays stress to the observation of the Bench in its remand order at page 22 of the material papers which is to the following effect:
“But, we wish to add that as per the Rules and the Instructions issued by the Government with regard to bifurcation of villages, the distance is not the sole determining factor for passing an order of bifurcation. If the geographical features, communication facilities or the financial position of a particular village warrant bifurcation and if the Collector is of the opinion, basing on the material available before him, that the interests of the village will be better safeguarded by bifurcating that village from the existing Gram Panchayat, he can as well pass orders bifurcating the village by giving special reasons for the same.”
26. He submits that the above Bench judgment has become final as no appeal was preferred by the petitioner. In view of this, it is not open for the petitioner to reagitate the same plea in this writ petition with regard to the distance between the two villages viz., Seetharampuram and Marribandam.
27. He further submits that the majority of the villagers requested the Collector to bifurcate Marribandam village from Seetharampuram Gram Panchayat on the ground that the entire income of Marribandam village was being spent for the development of Sectharampuram Gram Panchayat neglecting Marribandam village.
28. He also submits that the submission of Mr. Ramana Reddy, the learned Counsel
for the petitioner that the judgment of the Division Bench rendered in WP No.26872 of 1996 filed by the petitioner, is per incuriam, is not correct. The learned Judges have considered clause (1) of Rule 6 issued in G.O. Ms. No.232, Panchayat Raj, Rural Development and Relief (Panchayats-IV) Department, dated 18-4-1995 and already rejected the plea of the petitioner that the distance between the two villages to be bifurcated is not the sole criteria and the submission of the learned Counsel for the petitioner that the judgment is per-incuriam, is misplaced for the said judgment is not being cited as a precedent; but it is in continuation of the proceedings from the first writ petition to the third writ petition in the same proceedings of the bifurcation of the Seetharampuram Gram Panchayat and that the judgments relied on by the learned Counsel for the petitioner, have no relevance to the matter in question. Marribandam village was already declared as village as submitted by the AGP which is evidenced by the certificate issued by the Mandal Revenue Officer, which is filed in the material papers.
29. In so far with regard to the locus standi of the petitioner, he relied on a Division Bench judgment of this Court reported in SK. Khasim Bee (Smt.) v. State Election Commissioner (supra) wherein at para 28 it is held thus:
“In the present case, Rules 34, 35 and 37 specifically provide that the Election officer alone is the authority to order recounting and conducting recounting of votes. Without there being any reference under Rule 37, if the Election Authority or the Election Commissioner exercises its powers, it amounts to usurping the powers conferred on the Election officer which will be contrary to the Rules and the provisions of the Act. It is settled principle of law that where the field is occupied by a legislation, executive directions cannot be issued. In the present case, the Rules are complete Code of recounting as provisions relating to recounting and procedure for recounting are made explicit. Therefore, the directions issued by the first respondent, vide impugned notification, are beyond his constitutional and statutory power and are accordingly ultra vires the provisions of the Act and the Rules.”
30. Relying on this decision, he also relied on Rule 10 of the Rules wherein it is stated thus:
“Where a notification for the declaration of a village has been issued by the Commissioner, it shall be open to any Gram Panchayat affected to prefer revision petition to the Government through the Commissioner, within 15 days from the date of publication of such notification and the Government, may pass such order thereon as they deem fit.”
31. By virtue of this rule, no single individual or any resident of the village or Gram Panchayat, can question the impugned bifurcation orders passed by the 2nd respondent, as such, the petitioner has no locus standi to question the impugned proceedings; but only the Gram Panchayat can question the same.
32. Further, the learned AGP and as well as the learned Counsel for the 4th respondent submit that the impugned proceedings issued by the 2nd respondent bifurcating Seetharampuram Gram Panchayat and constituting Marribandam village Gram Panchayat, have already been implemented on 17-9-1998. Marribandam Gram Panchayat was duly constituted and office was opened by the Special Officer-cum-Divisional Panchayat Officer, Nuzvid. The Gram Panchayat has been functioning since 17-9-1998. The petitioner suppressing this fact approached this Court on 28-9-1998 and obtained interim suspension of the orders of the 2nd respondent dated 16-9-1998 and the interim orders are infructuous. They submit that the writ petition lacks merits and is liable to be dismissed.
33. On the above submissions of both the parties, the points that arise for consideration in this writ petition are:
(1) Whether the petitioner has no locus standi to question the impugned proceedings RC No.2578 of 1995 Panchayats III, dated 16-9-1998 issued by the 2nd respondent?
(2) Whether the distance between Seetharampuram Gram Panchayat and Marribandam village is less than 2 kilometres and the bifurcation proceedings issued by the 2nd respondent dated 16-9-1998 are illegal?
(3) Whether Marribandam village is declared as Revenue village prior to bifurcation of Seetharampuram Gram Panchayat and if not, whether the impugned proceedings dated 16-9-1998 issued by the 2nd respondent, are illegal?
(4) Whether the Division Bench judgment of this Court in WP No.26872 of 1996 dated 30-12-1997 remanding the matter of bifurcation of Seetharampuram Gram Panchayat and constituting Marribandam Gram Panchayat as per the proceedings dated 25-11-1996 of the 2nd respondent is per incuriam and not binding?
(5) Whether the impugned proceedings of the 2nd respondent have been passed under the political influence, as such, are liable to be quashed?
(6) Whether the impugned proceeding?, suffers from the legal infirmity as it revives previous proceedings issued by the 2nd respondent-Collector bifurcating Seetharampuram Gram Panchayat and constituting Marribandam Gram Panchayat, which have already been set aside in WP Nos. 10255 of 1995 and WP No.26872 of 1996 by the Division Bench judgments dated 22-11-1995 and 30-12-1997 respectively?
(7) To what relief?
34. Point No. 1: “Whether the petitioner
has no locus standi to question the impugned proceedings RC No.2578 of 1995 Panchayats-III, dated 16-9-1998 issued by the 2nd respondent?”
It is not in dispute that the petitioner was the former Sarpanch of the Seetharampuram Gram Panchayat and also acted as person-in-charge.
35. Rule 10 of the Rules states as under:
“Where a notification for the declaration of a village has been issued by the Commissioner, it shall be open to any Gram Panchayat affected to prefer revision petition to the Government through the Commissioner, within 15 days from the date of publication of such notification and the Government, may pass such order thereon as they deem fit.”
36. Relying on the above rule, the learned AGP and Mr. Gangaiah Naidu, the learned Counsel for the 4th respondent submit that it is only the affected Gram Panchayat which can question the impugned proceedings by a revision to the Government; but the petitioner has no competency to question the impugned proceedings passed by the 2nd respondent excluding Marribandam revenue village from Seetharampuram Gram Panchayat and constituting Marribandam revenue village as separate Gram Panchayat.
37. It is also not in dispute that the petitioner has challenged the proceedings of the 2nd respondent dated 12-5-1995 excluding Marribandam revenue village from Seetharampuram Gram Panchayat and constituting Marribandam revenue village as separate Gram Panchayat and the Division Bench of this Court by its order dated 22-11-1995 disposed of the writ petition No. 10255 of 1995 with a direction to consider the matter afresh and pass appropriate orders giving reasons. Again, the 2nd respondent,
after complying with the directions of this Court, passed the orders a second time dated 25-11-1996 bifurcating Seetharampuram Gram Panchayat and constituting Mambandam revenue village as separate Gram Panchayat. This was again challenged by the petitioner in writ petition No.26872 of 1996 and the Division Bench of this Court by its order dated 30-12-1997 again remanded the matter to the 2nd respondent-Collector with the observation that as per the Rules and the instructions issued by the Government with regard to bifurcation of villages, the distance is not the sole determining factor for passing of an order for bifurcation, together with other observations made therein. After the second remand of the case in writ petition No.26872 of 1996 dated 30-12-1997, the 2nd respondent-Collector has passed the impugned orders dated 16-9-1998 afresh bifurcating the Seetharampuram Gram Panchayat and constituting Marribandam village as separate Gram Panchayat, assigning reasons, against which, the present writ petition is filed.
38. In this regard, the reliance placed by the learned Counsel for the 4th respondent on the Division Bench Judgment of this Court reported in Sk. Khasim Bee (Smt.) v. State Election Commissioner (supra) has no application to the present case.
39. It is significant to note that Rule 10 excludes other persons except the Gram Panchayat, which is affected by the action of the Commissioner/Collector bifurcating the two villages, to prefer a revision. In such circumstances, the petitioner has approached this Court by filing this writ petition questioning that order. Rule 10 may exclude the right of any person to challenge the orders passed by the 2nd respondent-the authority under the A.P. Panchayat Raj Act for bifurcating Gram Panchayats or constituting separate Gram Panchayat; but it cannot put fetters on the right of any resident of Gram Panchayat as interested person or the Ex-Sarpanch, to question the proceedings of the 2nd respondent under Article 226 of the Constitution of India and earlier in the same proceedings of bifurcation, three Division Benches of this Court have entertained the writ petitions in the bifurcation proceedings, which were filed by the same petitioner, questioning the bifurcation of Seetharampuram Gram Panchayat and constituting Marribandam revenue village as separate Gram Panchayat; as such, there is no substance in the plea of the respondents that the petitioner has no locus standi to file the writ petition.
40. Point No. 2 : “Whether the distance between Seetharampuram Gram Panchayat and Marribandam village is less than 2 kilometres and the bifurcation proceedings issued by the 2nd respondent dated 16-9-1998 are illegal?”
When the self same plea was raised with regard to the distance between Seetharampuram Gram Panchayat and Marribandam revenue village as less than 2 kilometres in Writ Petition No.26872 of 1996, the Division Bench of this Court by its order dated 30-12-1997, considering clause (1) of Rule 6 of the Rules issued in G.O. Ms. No.232, Panchayat Raj, Rural Development and Relief (Panchayats-IV) Department, dated 18-4-1995, held in their concluding para that “we wish to add that as per the Rules and the instructions issued by the Government with regard to bifurcation of villages, the distance is not the sole determining factor for passing an order of bifurcation.
41. The above judgment of the Division Bench of this Court has become final as it is admitted that no appeal was preferred against the same. In such circumstances, the petitioner cannot raise the self-same plea that the distance between Seetharampuram Gram Panchayat and Marribandam Revenue village is less than two kilometres as the impugned proceedings have been passed after remand of the matter in WP No.26872 of 1996 with regard to bifurcation of Seetharampuram Gram Panchayat; as such, the said plea cannot be reagitated.
42. Point No.3: “Whether Marribandam village is declared as Revenue village prior to bifurcation of Seetharampuram Gram Panchayat and if not, whether the impugned proceedings dated 16-9-1998 issued by the 2nd respondent, are illegal?”
Reiving on Section 3 of the Act which is as under:
“Declaration of a village for the purposes of this Act” (1) The Commissioner may, by notification and in accordance with the rules made by the Government in this behalf, declare any revenue village or hamlet thereof or any part of a Mandal to be village for the purpose of this Act and specify the name of the village”
it is submitted by Mr. Ramana Reddy, senior Counsel for the petitioner that there is no declaration of Marribandam as revenue village prior to the bifurcation of Seetharampuram Gram Panchayat; as such, the impugned proceedings are illegal.
43. Jt is not disputed that Marribandam revenue village was earlier constituted as part of the Mirjapuram Gram Panchayat and by the proceedings of Collector in ROC No.7630 of 1971, S1, dated 14-4-1972, Marribandam village was excluded from Mirjapuram Gram Panchayat and amalgamated in Seetharampuram Gram Panchayat as per the Rules in G.O. Ms. No.64, Panchayat Raj, dated 30-1-1964 under the AP Gram Panchayat Act 2 of 1964.
44. The GP for Panchayat Raj has filed the certificate issued by the Mandal Revenue Officer that Marribandam village is separate revenue village as per revenue records, and the same is filed as material paper.
45. It is also significant to note Section 8(c) of the A.P. General Clauses Act (No.1 of 1891) which reads as under:
“Where any Act, to which this Chapter applies, repeals any other enactment, then the repeal shall not: affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment repealed.”
46. In view of the above proceedings of the Collector and the certificate issued by the Mandal Revenue Officer, read with Section 8(c) of the A.P. General Clauses Act. I hold that Marribandam is already declared as Revenue village and the impugned proceedings arc not illegal.
47. Point No.4: “Whether the Division Bench Judgment of this Court in WP No.26872 of 1996 dated 30-12-1997 remanding the matter of bifurcation of Seetharampuram Gram Panchayat and constituting Marribandam Gram Panchayat as per the proceedings dated 25-11-1996 ofthe 2nd respondent is per incuriam and not binding?”
In this regard, I must say that there is fallacy in the contention of Mr. Ramana Reddy, senior Counsel for the petitioner that the judgment rendered by the Division Bench of this Court in WP No.26872of 1996 dated 30-12-1997, is per incuriam and not binding. The doctrine of per incuriam has no application in this case – for it is well settled law that the decision rendered over looking the statutory provision, shall be treated as per incuriam and cannot be regarded as a binding precedent. A precedent is not binding, if it was rendered in ignorance of a statute or a rule having the force of a statute i.e., delegated legislation as held in para 17 of the judgment reported in T. Onnuramma v. Tahsildar, Kadiri, (supra).
48. The various above decisions (supra) cited by Mr. Ramana Reddy, senior Counsel for the petitioner relate to a decision cited as a precedent in a given case, but not the judgment rendered by the Court in the same proceedings as the judgment of the Division Bench in WP No.26872 of 1996, dated 30-12-1997 was rendered remanding the matter with certain observations to the 2nd respondent for fresh disposal and holding that “we wish to add that as per the Rules and the instructions issued by
the Government with regard to bifurcation of villages, the distance is not the sole determining factor for passing an order of bifurcation.” In the light of this observation by their Lordships, they have interpreted clause (1) of Rule 6 issued in G.O. Ms. No.232, Panchayat Raj, Rural Development and Relief (Panchayats-IV) Department, dated 18-4-1995 and the present impugned proceedings have been passed after the remand of the case by their Lordships; it cannot be said that this judgment is per incuriam for the judgment has been rendered in continuation of the same proceedings of bifurcation of Seetharampuram Gram Panchayat and constituting Marribandam revenue village as separate Gram Panchayat and it has not been cited as a precedent. As such, the said contention of Mr. Ramana Reddy, senior Counsel for the petitioner, is wholly misconceived and not tenable in law.
49. Point No. 5: “Whether the impugned proceedings of the 2nd respondent have been passed under the political influence, as such, are liable to be quashed?”
The submission of Mr. Ramana Reddy, senior Counsel for the petitioner is that the impugned orders have been passed under political influence or at the behest of the Minister – for a notice was issued on 23-10-1996 to the parties to appear before the Government on 1-11-1996. The said notice was challenged by the petitioner in WP No.23084 of 1996 on 30-10-1996. The Division Bench of this Court held as under:
“The learned Advocate appearing on behalf of the Government Pleader for Panchayat Raj submits that the impugned notice by the Government has been issued by oversight and mistake and the Government does not propose to proceed with the hearing of the case. He submits that the notice may be quashed. In view of such submissions, the impugned notice is quashed and the writ petition is allowed.”
50. Subsequent to that, the Government issued a Telegram on 8-11-1996 to the 2nd respondent-Collector to hear and dispose of the matter as directed by the High Court. In view of this, Mr. Ramana Reddy, senior Counsel for the petitioner submits that the Minister has used his influence and wanted to hear the revision after the case was remanded in WP No. 10255 of 1995 dated 22-11-1995. When it was clearly stated before the Division Bench of this Court that the notice by the Government has been issued by oversight and mistake and the Government does not propose to proceed with the hearing of the case and in view of the telegram issued by the Government on 8-11-1996 to the 2nd respondent-Collector to hear the matter and dispose of the same as per the directions of the High Court, it cannot be said that the impugned proceedings issued by the 2nd respondent, is at the behest of the political influence.
51. Point No.6: “Whether the impugned proceedings suffers from the legal infirmity as it revives previous proceedings issued by the 2nd respondent-Collector bifurcating Seetharampuram Gram Panchayat and constituting Marribandam Gram Panchayat, which have already been set aside in WP No.10255 of 1995 and WP No.26872 of 1996 by the Division Bench Judgments dated 22-11-1995 and 30-12-1997 respectively?”
The submission of Mr. Ramana Reddy, senior Counsel for the petitioner is that the impugned proceedings suffers from legal infirmity as it orders revival of earlier orders issued by the 2nd respondent, dated 12-5-1995 and 25-11-1996 bifurcating Seetharampuram Gram Panchayat and constituting Marribandam revenue village as separate Gram Panchayat, which have already been set aside by the Judgment of the Division Bench of this Court in WP No.10255 of 1995, dated 25-5-1996 and WP No.26872 of 1996, dated 30-12-1997, for which reliance is placed on the decision of the Apex Court reported in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association (supra) wherein their Lordships have held thus:
“While considering the effect of an interim order staying the operation of the order under challenge a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order by the Appellate Authority.”
52. Applying the above said principles, it must be said that there is force in the contention of Mr. Ramana Reddy senior Counsel for the petitioner that the orders of bifurcation of Seetharampuram Gram Panchayat and constituting Marribandam as separate Gram Panchayat passed by the 2nd respondent, dated 12-5-1995 and 25-11-1996, which have already been set aside by the Division Bench of tfiis Court by its Judgment in WP No.10255 of 1995, dated 22-11-1995 andWPNo.26872of 1996, dated 30-12-1997, cannot .be revived. As such, the impugned proceedings issued by the 2nd respondent dated 16-9-1998 bifurcating Seetharampuram Gram Panchayat and constituting Marribandam as separate Gram Panchayat, arc illegal and liable to be set aside.
53. Point No. 7: “To what relief?”
In the result, in view of my finding on Point No.6, I set aside the impugned proceedings in RC No.2578 of 1995 Panchayats ffl, dated 16-9-1998 issued by the 2nd respondent and remand the matter back to the 2nd respondent to pass orders afresh expeditiously as the matter is being protracted since 12-5-1995.
With the above directions, this writ petition is disposed of.