WP/14932/2008 of Kalavakuru Washerman Cooperative Society Ltd.,Rep. by its Vs The District Collector, Prakasam District. on 30 December 2008

COMMON ORDER:

The petitioner, a washerman cooperative society, invokedthis court’s jurisdiction, in W.P.No.14932 of 2008, to declare thepublic auction notice dated 23.6.2008 issued by the 3[rd] respondent– Gram Panchayat for leasehold rights of fishing in respect of thetank in Sy.No.138 situated at Kalvakuru village of Addanki Mandal,Prakasam District for the years 2008-09 to 2010-11, as arbitraryand illegal and for a direction to the respondents to grant leaseholdrights in its favour for the said period. W.P.No.26197 of 2008 isfiled by the very same society to declare resolution No.4 dated9.10.2006 of the 3[rd] respondent as arbitrary, illegal, contrary toSection 81 of the A.P. Panchayat Raj Act, 1994, in violation ofprinciples of natural justice and for a consequential direction to setaside the same.

Facts, in brief, are that the petitioner was formed in the year1996 under the A.P. Cooperative Societies Act, 1964. The 3[rd]respondent-gram panchayat, in its resolution R.S.No.138/1 dated3.3.1996, had allegedly set apart the said tank to the members ofthe petitioner – society for washing of clothes. The rules, notifiedin G.O.Ms.No.343 dated 10.4.1978, relate to grant of fishing rightsin tanks situated in gram panchayats and for preference to begiven to washermen cooperative societies. For the years 1999- 2000, 2001 and 2002, the 1[st] respondent had directed the 3[rd]respondent to give fishing rights to fishermen cooperativesocieties. Contending that the rules, notified in G.O.Ms.No.343 dated 10.4.1978, required preference to be given to washermencooperative societies, the petitioner herein filed W.P.No.26078 of1996 and this Court, by order dated 20.4.1999, held that thepetitioner was entitled for grant of leasehold fishing rights in thesubject tank. Thereafter, the 1[st] respondent issued orders infavour of the petitioner for three years from 1999-2000 till 2002. Subsequently, for the years 2005-06 till 2008, the 2[nd] respondent,vide proceedings dated 9.11.2005, fixed the upset price at Rs.2.00lakhs for each year totaling to Rs.6.00 lakhs and granted lease tothe petitioner – society. The period of lease subsisted till30.6.2008. In the interregnum, the 2[nd] respondent issuedproceedings dated 19.6.2008 proposing to auction leasehold rightsto catch fish in the tank for the years 2008-2009 and 2010-2011fixing the upset price at Rs.15.00 lakhs. The petitioner submittedits representation to the 2[nd] respondent requesting him to issuerevised orders and to direct the 3[rd] respondent to grant fishingrights at the upset price fixed under the proceedings dated19.6.2008. The 3[rd] respondent, however, published an auctionnotice dated 23.6.2008 inviting sealed tenders by 14.7.2008 onwhich date auction was to be held.

The petitioner would contend that, since they were willing topay the upset price fixed by the 2[nd] respondent, and as there wasno default on their part in the earlier lease terms, the 3[rd]respondent had, necessarily, to grant leasehold rights for fishing intheir favour for the 3 years ending 2011. According to the

petitioner, though they fulfilled the conditions stipulated inG.O.Ms.No.343 dated 10.4.1978, the 3[rd] respondent had forciblyobtained a letter from the President of the Society that he had noobjection for the same to be leased out by public auction, that theletter of consent said to have been given by the president was notwith the society’s approval, that he was not competent to giveconsent on the society’s behalf and that they had not waived theirrights.

This Court, by order in W.P.M.P. No.29869 of 2008 dated20.11.2008, impleaded the gram panchayat, represented by itsSarpanch, as respondent No.4. In his counter affidavit, theSarpanch would submit that it was evident from the audit reportsthat the petitioner society was not genuine and was being runwithout even a managing committee, that it was classified as “C”and “D”, that it had ceased to function, that unauthorized andbogus persons were managing the illegal affairs of the society,that the Assistant Registrar had conducted an enquiry into theaffairs of the petitioner society, that most of the directors of thesociety were not residing in the village, that some of the memberswho had received notices did not turn up for the enquiry which wasscheduled to be held on 24.11.2008, that the petitioner, which wason the brink of liquidation, should not be permitted to deprive thegram panchayat of its income, and that it was not entitled to claimbenefits under G.O.Ms.No.343 dated 10.4.1978. He would furtherstate that the present auction had fetched Rs.45.00 lakhs and thatthe petitioner – society was not entitled for grant of leaseholdrights of the tank at a meager sum of Rs.15.00 lakhs. The statusof the petitioner society is referred in detail in the counteraffidavit. The 4[th] respondent would contend that, if indeed the resolution dated 3.3.1996 had been passed, a copy thereof shouldhave been produced by the petitioner, that there was no suchresolution, that the records were not handed over by the previoussarpanch who was behind the bogus society, that cases had beenfiled against him to hand over the records, that till date he had nothanded over the entire records and that, in such circumstances,the gram panchayat had passed the resolution dated 9.10.2006. The 4[th] respondent would, further, state that as many as sixmembers, including the chairman of the petitioner society, hadgiven their consent to the gram panchayat to proceed with theauction, that till date no director, including the chairman, had filedany affidavit stating that consent was given under duress or that itwas not binding, that the vice-chairman of the petitioner societydid not have locus-standi to file the writ petition as his period inoffice had expired and that this fact, coupled with the mal-functioning of the affairs of the petitioner society, disentitled themfrom claiming leasehold rights over the said tank causingmonetary loss to the gram panchayat.

In W.P.No.26197 of 2008, the petitioner would state that the3[rd] respondent had, vide resolution dated 9.10.2006, cancelled theearlier resolution dated 3.3.1996, that the rights which weregranted to the petitioner society to wash clothes and raise fishwere also cancelled and that the concerned authorities wererequested to take steps to cancel registration of the petitionersociety. Petitioner would contend that cancellation of the earlierresolution dated 3.3.1996 had deprived them of their fishing rights,that their entry into the subject tank was consequently prohibited,that, before passing the resolution, the 3[rd] respondent ought tohave issued notice to the petitioner society and it is only after

hearing them should the resolution have been passed. Petitionerwould contend that the benefits which accrued in their favour,under Section 81 of the A.P. Panchayat Raj Act, were taken awayby the gram panchayat, that the power of the gram panchayat wasnot absolute and had to be exercised in conformity with the rulesframed by the Government, that they had come to know of theresolution dated 09.10.2006, only after the sarpanch of the grampanchayat had filed an implead petition before this Court, that,thereafter, they had caused enquiries at the office of the GramPanchayat, that some of the members had stated that, while nosuch resolution had been passed, an entry was, however, made inthe records of the gram panchayat after W.P.No.14932 of 2008was filed and that the resolution was invented only to deprive thepetitioner of its legitimate rights and to deny them the benefitswhich had accrued in their favour under G.O.Ms.No.343 dated10.4.1978. Petitioner would contend that the gram panchayat hadno jurisdiction to cancel an earlier resolution which could only beannulled, if carried in appeal, by the appellate authority, that thegram panchayat had no jurisdiction to prohibit usage of the tankwithout recording a finding that it was opposed to public health,that the gram panchayat had annulled the earlier resolution,earmarking the tank for washing clothes, without following theprocedure prescribed under Section 81, that it was ex-faciemalafide as it was intended to deprive the petitioner of their legalrights, that it was ante-dated and created subsequent to the filingof the earlier writ petition and that it was not binding on thepetitioner.

In the counter affidavit filed on behalf of the 3[rd] respondent,the petitioner’s locus-standi to challenge the resolution dated

9.10.2006 is called in question. It is contended that the petitioneris not in existence, that the earlier resolution dated 3.3.1996 wasevidently false as it did not see the light of the day till date, thatthe erstwhile sarpanch did not maintain any record nor were therecords handed over to the present sarpanch after he assumedoffice on 23.8.2006, that the entire process of fixing the upsetprice, for grant of fishing rights for the period upto 30.6.2008, wasstage managed by the family members of the said sarpanch, onpayment of a meagre amount of Rs.2.00 lakhs per annum asagainst the present bid of Rs.45.00 lakhs. It is stated that themembers of the petitioner society were the henchmen of theformer sarpanch’s family, that no washing activity was undertakenin the said tank at any point of time, that the petitioner society hadbecome de-funct, that it did not work as a society at any point oftime, that the petitioner had no right to insist on fishing rights beingleased in its favour, that no clothes were washed in the said tank,that the resolution dated 9.10.2006 was passed withdrawing thesaid tank from being earmarked for washing purpose, that theyhad requested the authorities to enquire into the functioning of thepetitioner society, that the Joint Registrar, vide proceedings dated13.10.2008, had informed them that the petitioner was dormant,defunct and had to be liquidated, that no society, much less, thepetitioner had any right to claim fishing rights in terms ofG.O.Ms.No.343, that the petitioner was not entitled to any noticeor for an opportunity of being heard before the resolution dated9.10.2006 was passed, that the petitioner was well aware of theresolution even before filing of the earlier writ petition i.e.W.P.No.14932 of 2008 and that, having not challenged theresolution therein, the petitioner was precluded from questioningthe same by way of a separate writ petition as it was barred by the provisions of Order 2 Rule 2 C.P.C. read with Rule 24 of the writproceedings rules. The 3[rd] respondent would deny the allegationthat no resolution was passed and that an entry was made in therecords. They would state that the resolution was dulycommunicated, that an entry was recorded in the Agenda book on4.10.2006 informing the members of the gram panchayat that ageneral body meeting would be held on 9.10.2006 at 11.00 a.m.,that, out of 12, 11 members had received notices, and had signedin the Agenda book, that only one member was not available, thatthe general body meeting was conducted on 9.10.2006 at 11.00a.m., that resolution No.4 was unanimously passed and enteredinto the minutes book of the gram panchayat, that the membershad signed in the attendance register, that the sarpanch had dulycertified the same, that the letter secured by the petitioner fromthe four members alleging that the resolution was passed in theminutes book, after filing of the writ petition, was false, that thesame persons were signatories to the said resolution, that theerstwhile sarpanch must have induced his followers and procuredthe said letters, that the 3[rd] respondent had the power to pass theresolution dated 09.10.2006, particularly in the light of lack ofwashing activity in the said tank at any point of time, the bogusnature of the petitioner society and non-existence of washingnecessity, that, in recent times, public water distribution wasprovided everywhere, including in the 3[rd] respondent village, thatpeople were washing their clothes at home, that the members ofpetitioner society were residents of Gurramvanipalem which was 3KM away from the said tank, that from that village nobody cameand washed clothes in the subject tank, that NargarjunasagarProject canal ran in the midst of Gurramvanipalem village, thatthere were 12 public hand pumps, that the residents used to wash

Arguments

clothes at their residence, that the petitioner had no right to fishand that they had the power to withdraw the tank from beingearmarked for washing purposes. The 3[rd] respondent wouldsubmit that if, as contended by the petitioner, the resolution wasreferable to Section 246 of the A.P. Panchayat Raj Act, 1994, thepetitioner had an alternative remedy of approaching thegovernment, that the present writ petition was not maintainableand, without any preferential legal right of fishing, the petitionercould not seek a writ of mandamus from this Court.

Sri P. Sriraghuram, learned counsel for the petitioner, wouldcontend that the impugned resolution dated 09.10.2006, cancellingthe earlier resolution dated 03.03.1996, is illegal and is liable to beset aside and that the Gram Panchayat does not have the power tocancel a resolution passed earlier as such a power is conferred,under the A.P. Panchayat Raj Act, only on the Government. According to the learned counsel, it was evident from a conjointreading of Section 41 and Section 246 (1), that the power to cancelor suspend a resolution passed by the Grampanchayat could onlybe exercised by the Government either suo motu or on a referencemade to it and, that too, on formation of the opinion that such aresolution contravened the conditions stipulated in Clauses (a) to(c) of Section 246(1) of the Act. Learned counsel would submitthat the resolution of the Gram Panchayat dated 09.10.2006, ineffect, prohibits washing of clothes in the public tank and that thepower to so prohibit could only be exercised by the executiveauthority, that too only on grounds of public health. Learnedcounsel would submit that, while the power to cancel a resolutionis referable under Sections 246 and 41 of the Act, the grounds forexercise of the power to pass a resolution, such as the onepassed on 03.03.1996, is referable to Section 81 of the Act.

Learned counsel would state that, since the subsequent resolutiondated 09.10.2006 canceling the earlier resolution dated 03.03.1996is illegal, the public tank would remain to be set apart for washingpurposes, and would confer a right on the petitioner, a washermencooperative society, to be given preference in the grant of fishingrights over the tank in question. Learned counsel would submitthat the petitioner is a registered society and, under Section 6(3)of the A.P. Cooperative Societies Act, once registration is grantedthere is a statutory presumption that the society is genuine, that,under G.O.Ms. No.343, dated 10.04.1978, the washermencooperative society is entitled for preference in the grant of fishingrights in the subject tank on payment of the upset price, that thecompetent authority to fix the upset price was the DivisionalPanchayat Officer, that he had fixed the upset price as Rs.15.00lakhs which amount the petitioner was ready and willing to pay,that as the validity of the rules in G.O.Ms. No. 343 is not underchallenge in these proceedings, the mere fact that theGrampanchayat would be able to secure a higher amount in apublic auction would not disentitle the petitioner society fromclaiming preference in the grant of fishing rights in the publictank. Learned counsel would submit that, under Section 32 of theA.P. Panchayat Raj Act, it was the executive authority alone whowas conferred the power to cancel a resolution and that theGrampanchayat had no power to do so. Learned counsel wouldrely on Fishermen Co-operative Society Ltd., Kothapeta v.District Collector, East Godavari and others[[1]],in this regard. Sri Seetharam Chaparla, learned counsel appearing for thefourth respondent, on the other hand, would contend that the powerof the Gram Panchayat to pass a resolution is traceable to Section81(1)(a), that it was open to an aggrieved person to question the

Conclusion

legality of the resolution under Section 246 and that the petitionersherein were not entitled to invoke this Court’s jurisdiction underArticle 226 of the Constitution of India questioning the legality ofthe resolution passed as early as in October, 2006. Learnedcounsel would highlight the absence of any averment in either ofthe writ petitions that the petitioners were washing clothes. Hewould contend that the power to pass a resolution would includethe power to rescind or cancel the resolution and, while theGovernment had the power under Section 246(1) to cancel theresolution, such a power was available to be exercised by theGram Panchayat also. Learned counsel would state that, since nowashing activity was being carried on in the subject tank, theGram Panchayat was of the view that it was no longer necessaryto set apart the public tank for washing clothes, more so as aneffective public water distribution system had resulted in thevillagers washing their clothes in their respective houses insteadof doing so at the public tank. Learned counsel would state that,since the tank or a portion thereof, is no longer set apart forwashing clothes, a washermen cooperative society could nolonger claim preference in grant of fishing rights in the said tank. Learned counsel would also refer in detail to the bogus nature ofthe petitioner society to contend that the earlier resolution dated03.03.1996 had not seen the light of the day, that it was created bythe petitioners only to legally enrich itself at the cost of the GramPanchayat, that in the auction held for grant of fishing rights thehighest bid received was for Rs.45.00 lakhs, which was threetimes more than the upset price of Rs.15.00 lakhs, fixed by theDivisional Panchayat Officer. Learned counsel would furthercontend that grant of preferential fishing rights to the petitionersociety at the upset price of Rs.15.00 lakhs would result in the Gram Panchayat being deprived of a huge sum of Rs.30.00 lakhswhich it would have received if the auction was confirmed, thatsome of the members of the petitioner society had given letters ofconsent agreeing that the fishing rights in the tank could be put toauction, that the petitioner had, without authority, filed the presentwrit petition and that larger public interest would only be served ifthe Gram Panchayat was permitted to auction the leasehold rightsand maximize its revenues.

Sri P. Venugopal, learned counsel for the Gram Panchayat,would submit that the entire basis on which W.P. No. 14932 of2008 was filed is the judgment of this Court in W.P. No.26078 of1996 dated 20.04.1999, that in the pleadings, and the documentsenclosed to W.P. No.14932 of 2008, it had come on record that thepetitioners were aware of the resolution dated 09.10.2006 and thatthey should have questioned its legality in the very same writpetition. According to the learned counsel, the petitioners, havingfailed to do so, were barred from making a challenge to theresolution dated 09.10.2006 by way of a subsequent writ petition. Learned counsel would submit that the resolution dated 09.10.2006was legal and valid, that the power to make a resolution includedwithin it the power to rescind the resolution, that the GramPanchayat was free to discharge its functions within the ambit ofA.P. Panchayat Raj Act and that the petitioner could not deprivethe Gram Panchayat of its legitimate revenues.

Before dealing with the rival contentions, it is necessary tonote that the petitioner society had earlier filed W.P. Nos.26078 of1996 and 4053 of 1998, wherein they had sought a declaration thatthe minor irrigation tank of Kalvakur Gram Panchayat vested withthe Gram Panchayat as per the provisions of Section 65(1) (a) and(b) and Section 80(1) and (2) of the A.P. Panchayat Raj Act and

that earmarking of the tank for washing purposes, under Section81(1)(c) of the A.P. Panchayat Raj Act, was valid. Even in theearlier writ petitions, a contention was raised that the grampanchayat had never passed the resolution dated 03.03.1996 andthat it had been incorporated in the minutes book by way ofmanipulation. This Court, in its order dated 20.04.1999, held that itdid not propose to express any opinion on this question, that thefact was that, as on date, the resolution dated 03.03.1996 passedby the Gram Panchayat was not set aside or modified by anycompetent authority, that the said resolution had not beenquestioned and must be held to be in existence on date and, aslong as the resolution dated 03.03.1996 held the field, the GramPanchayat was bound to grant lease of fishing rights to the localRajaka Seva Sangham. The writ petitions were allowed declaringthat, under the Rules, the washermen cooperative society wasentitled for grant of lease of fishing rights in the minor irrigationtank of the Gram Panchayat.

The Rules, which give the washermen cooperative societypreference in grant of fishing rights in the village tank, are thosenotified in G.O. Ms. No.343 dated 10.04.1978. These rules weremade in exercise of the powers conferred by Sections 65(1)(b)and Section 89(2) read with Section 217(1) of the A.P. GramPanchayat Act, 1964. Rule 3 thereof reads thus:

“3.(a)(i) The Gram Panchayat shall lease out, except sourcesset apart for washing of clothes by the local washermen, the rights offishing in Minor Irrigation tanks and other tanks vested in it underclause (b) of sub-section (1) of section 65 and under sub-section (2) ofsection 85 of the Andhra Pradesh Gram Panchayat Act, 1964(hereinafter called the Act), without public auction to the FishermenCo-operative Society of the local area.”

This Court in Fishermen Co-operative Society Ltd.,Kothapeta v. District Collector, East Godavari (1 supra), observed:

“……….The policy of the Government to offer the fishingrights in the minor irrigation tanks and other sources vesting inGram Panchayats (there are innumerable such tanks in the State)is a step towards achieving social justice. The purpose is not onlythe welfare of the Fishermen but also the economic well-being ofthe Gram Panchayat. The under-lying object of G.O. Ms. No.343is to see that the tank is put to proper use by the Gram Panchayatas well as fishermen can be benefited. Therefore, adequate stepswere taken to see that the Executive Authorities do not have anydiscretion in the matter. Unfortunately in this case, the 3[rd]respondent has ignored the object of the Rules and flouted theRules which are very clear. In a number of cases, this hasrepeatedly stated that if the public auction is conducted ignoringthe rights of the Fishermen Co-operative Society, the auctionwould be illegal. In Pamarru Fishermen Co-operative Society Ltd.v. Government of A.P., 1981 (2) ALT 40 (NRC), this Court struckdown the circular issued by the District Collector directing thelease of fishing rights in public auction without first making offer tothe Fishermen Co-operative Society of the local area. This Courtalso held that the Circular amounts to amendment of the Rules andthe District Collector has no power to do so. In DoddiguntaFishermen Co-operative Society Ltd. v. Venkatapuram GramPanchayat, 1984 (2) ALT 18 (NRC), this Court held that rule ismandatory and any action contrary to the Rules is illegal. InFishermen Co-operative Society, Kandibanda v. Sarpanch, GramPanchayat, Kandibanda, 1986 (1) ALT 113 (NRC), JusticeRamaswamy (as his Lordship then was) observed that the Act andthe Rules give a beneficial right that when a society consisting offishermen has been found existing in the local area of GramPanchayat, it shall be the duty of that Gram Panchayat to sell thefishing rights to the Society alone. The recourse to public auctionwould arise only in the absence of such a Society or othersocieties enumerated in the Rules or non-acceptance of the offerof upset price by the Society……….”

While, the policy of giving preference to washermen co-operative societies has a social objective, the question of givingpreference, under G.O.Ms. No. 343 dated 10.04.1978, would ariseonly if the public tank is set apart for washing clothes. Once theearlier resolution dated 03.03.1996, setting apart the tank forwashing clothes, has been cancelled by the subsequent resolution dated 09.10.2006, the public tank is no longer set apart forwashing and, consequently, the preference under G.O.Ms. No. 343would no longer be available to a washermen cooperativesociety.

The preference, which the local Rajaka Seva Sanghamcould claim for grant of lease of fishing rights in the tanks, underRule 3(a)(ii), was in respect of those tanks set apart for washingclothes. As noted above this Court, in its order in W.P. Nos.26078of 1996 and 4053 of 1998 dated 20.04.1999, observed that theGram Panchayat had, vide resolution dated 03.03.1996, set apartthe village tank for washing clothes, which entitled the washermencooperative society to claim preference under Rule 3(a)(ii) of theRules notified in G.O.Ms. No.343 dated 10.04.1978. Sincepreference can be claimed by a washermen cooperative societyonly with respect to tanks which are set apart for washing and asthe Gram Panchayat, vide resolution dated 09.10.2006, hadcancelled its earlier resolution dated 03.03.1996, whereby the tankwas set apart for washing clothes, the consequence of theresolution dated 09.10.2006 is that the village tank in question isno longer set apart for washing and, as a result, the washermencooperative society is no longer entitled to claim preference in thegrant of fishing rights in the tank in question.

The other contentions regarding the nature of the petitioner’ssociety, its manner of functioning etc., pale into insignificance andthe only question which assumes relevance is whether the GramPanchayat had the power to cancel the earlier resolution dated03.03.1996. Under Section 32(a) the executive authority isresponsible for implementing the resolutions of the GramPanchayat. In cases where he is satisfied that a resolution hasnot been legally passed or is in excess of the powers conferred by the Act or that, if carried out, it is likely to endanger human life orhealth or public safety, he may refer the matter to theCommissioner, whose decision shall be final. Under Section 41,the proceedings of every gram panchayat shall be governed bysuch rules as may be prescribed. Under Section 46(xxvii) theGram Panchayat is empowered to make such provisions as isnecessary for carrying out other measures of public utilitycalculated to promote the safety, health, convenience, comfort ormoral, social and material well being of the residents of thevillage. Section 81(1)(a) empowers the Gram Panchayat, in theinterests of public health, to regulate or prohibit the washing ofclothes in any tank and to set apart any such place for drinking orfor bathing or for washing animals or clothes or for any otherspecified purpose. It is evident, from Section 81(1)(a), that theGram Panchayat has the power, in the interest of public health, notonly to regulate or prohibit washing of clothes in a public tank, butalso to set apart any such place for washing purposes. Thecontention, urged on behalf of the petitioners, is that, while Section81(1)(a) enables the Gram Panchayat to pass a resolution, oncesuch resolution is passed, it is denuded of the power either tomodify or rescind such a resolution and that such a power isconferred only on the Government under Section 246(1). I amafraid I cannot agree. The scope of Section 246(1), wherebypower is conferred on the Government to cancel the resolution of aGram Panchayat, is limited. Section 246(1) confers powers on theGovernment to cancel any resolution passed by a GramPanchayat, if it is of the opinion that such resolution (a) is notlegally passed, or (b) is in excess or abuse of the powersconferred by or under the Act, or any other law, or (c) on itsexecution it is likely to cause danger to human life, health or

safety or is likely to lead to riot or affray. It is evident, therefore,that the Government has the power under Section 246(1) to cancela resolution of the Gram Panchayat in certain limitedcircumstances. Does this mean that the Gram Panchayat isdevoid of the power to cancel its earlier resolution?. Theresolution of a Gram Panchayat, if legally passed, cannot besubjected to cancellation by the Government under Section 246(1)of the Act. The entire case of the petitioner rests on the premisethat the earlier resolution of the Gram Panchayat dated03.03.1996, whereby the tank was set apart for washing clothes, islegally passed. In such an event, the said resolution of the GramPanchayat could not have been cancelled by the Governmentunder Section 246(1). There could be myriad situations where aresolution passed by the Gram Panchayat earlier has ceased to berelevant, and is no longer necessary because of passage of time. Even in the case on hand, the Gram Panchayat contends that it isno longer necessary to set apart the tank for washing clothes inview of the effective public water distribution system in existencein the village. Can it be said that, even in such circumstances, theGram Panchayat is denuded of the power to cancel/rescind theearlier resolution?. The answer can only be in the negative. It iswell settled that the power to make an order or a resolution wouldinclude the power to cancel/rescind the order or resolution. Therule of construction, embodied in the General Clauses Act that thepower to make an order would include a power, exercisable in thelike manner, to rescind the order made earlier, would apply to theprovisions of a statute where the subject matter, context andeffect of such provisions are in no way inconsistent with suchapplication (State of Bihar v. D.N. Ganguli[[2]]:Government of Andhra Pradesh v. Y.S. Vivekananda Reddy[[3]]). There isnothing in the A.P. Panchayat Raj Act which prohibits applicationof the aforesaid rule of construction. Consequently, as the GramPanchayat has the power to pass a resolution it can, in the likemanner, also rescind the resolution passed earlier. Once it isheld that the Gram Panchayat has the power to cancel its earlierresolution, and as the village tank is no longer set apart forwashing clothes, the petitioner, a washermen cooperative society,can no longer claim preference, under Rule 3(a)(ii) of the rulesnotified in G.O.Ms. No. 343, dated 10.04.1978, in the grant offishing rights in the village tank. The decision to set apart a publictank for washing clothes is for the Gram Panchayat to take and noperson can claim, as of right, that he should be permitted to washclothes in a minor irrigation tank. As such principles of naturaljustice are inapplicable where the Gram Panchayat resolves not tocontinue to set apart the tank for washing clothes. In the absenceof any legal rights of the petitioner being infringed, their claim forbeing put on notice or for being heard before the resolution dated09.10.2006 was passed by the Gram Panchayat does not meritacceptance.

A feeble attempt is made to contend that the resolutiondated 09.10.2006 was not passed, but was merely recorded in theminutes book. As this assertion in the affidavit is denied in thecounter affidavit, I see no reason to examine these disputedquestions of fact in proceedings under Article 226 of theConstitution of India. Since the Gram Panchayat has now beenheld entitled to cancel its earlier resolution dated 03.03.1996, andas its resolution dated 09.10.2006 must consequently be upheld, itis wholly unnecessary for this Court to examine the contentionsurged on behalf of the Gram Panchayat regarding the bogus nature

of the petitioner society or that the earlier resolution dated03.03.1996 was bogus and had never seen the light of the day. Suffice to hold that, since the resolution of the Gram Panchayatdated 09.10.2006 is upheld, the Gram Panchayat is entitled toproceed and finalize the auction for grant of fishing rights in thevillage tank, wherein the highest bid received is said to be for asum of Rs.45.00 lakhs.

Both the writ petitions fail and are, accordingly, dismissed. However, in the circumstances, without costs.

______________________________

RAMESH RANGANATHAN, J.

Dated: 30[th] December 2008

LR Copy to be marked(B/O)ASP/NSR

[1] 1999 (4) ALD 270 1999 (4) ALD 270

[2] AIR 1958 SC 1018 AIR 1958 SC 1018

[3] AIR 1995 (AP) 1 (FB) AIR 1995 (AP) 1 (FB)