News: Menace of encroachments on public properties rising: Punjab and Haryana High Court [23.10.2021]

The Punjab and Haryana High Court has ruled that the menace of encroachments on public properties was “creeping up” day by day and creating obstructions to the planned development of the nation.

Saurabh Malik

Chandigarh, October 22

The Punjab and Haryana High Court has ruled that the menace of encroachments on public properties was “creeping up” day by day and creating obstructions to the planned development of the nation. The Bench also made it clear that any attempt to regularise illegal construction was deplored by the Supreme Court (SC).

The assertion by the Bench of Justice Augustine George Masih and Justice Ashok Kumar Verma came on a petition filed against the state of Haryana and other respondents in a case allegedly involving illegal and unauthorised possessions over shamlat land.

The Bench was told that the petitioners were found to be in illegal possession of shamlat land of a gram panchayat within the revenue estate of a village, following which Bhiwani assistant collector came to the conclusion that great loss had been suffered by the gram panchayat. Accordingly, he ordered the removal of the encroachments from the panchayat land.

Bhiwani Collector dismissed their appeal by passing a detailed speaking order dated February 20, 2020. Maintaining the order on the removal of the encroachments, he recorded that full opportunity was provided to the petitioners. The revision filed against the orders, too, was dismissed by Rohtak Division Commissioner.

The Bench asserted that the SC took note of the fact that village common land in large parts of the country had been grabbed by unscrupulous persons, using muscle, money and political power to the extent that such land existed only on paper in many states.

It was held that the encroachers must be ordered to remove such constructions and hand over land possession to the gram panchayat even if they had built houses.

Shamlat is for common use

The encroachers must be ordered to remove illegal constructions and hand over land possession to the gram panchayat even if they had built houses there. The gram sabha/gram panchayat land must be kept for the common use of the village residents, the court said.

Madras High Court in R. Vellaichamy & Ors. vs. Vairavan & Ors. [14.09.2021]

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)

W.A. (MD) No. 710 of 2018 and C.M.P. No. 4127 of 2018

Decided On: 14.09.2021

R. Vellaichamy and Ors.

Vs.

Vairavan and Ors.

Hon'ble Judges/Coram:

Pushpa Sathyanarayana and T. Krishnavalli, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: V. Venkataseshan

For Respondents/Defendant: C. Selvakumar, J. Padmavathi Devi, Special Government Pleader, P. Mahendiran, Murugavel Rajan, K.K. Kannan, P. Banu Prasath, S. Ramesh, Advocate Commissioner and G. Narayanasamy

JUDGMENT

Pushpa Sathyanarayana, J.

1. The validity of the order dated 21.12.2017 made in W.P.(MD) No. 1734 of 2017 by a learned Single Judge of this Court is put to challenge in this appeal by the third parties.

2. Originally, the facts leading to the filing of the writ petition in W.P. No. 1734 of 2017 are as follow:

2.1. The first respondent is the petitioner before the writ court. According to him, he was permitted to occupy the land measuring 200 sq. ft. in S. No. 933 belonging to Arulmigu Mariamman Temple by the erstwhile trustees for a monthly rent of Rs. 200/-, besides a sum of Rs. 10,000/- being paid towards Security Deposit. He put up a superstructure with ACC Roof in the year 1997 and had been running a Vessel shop.

2.2. While so, the Temple was taken over by the Hindu Religious and Endowments Department (HR & CE Department) and the fifth respondent herein has been looking after the affairs of the temple on behalf of the Department. According to the petitioner, he started to pay the rent to the fourth respondent herein.

2.3. The fifth respondent herein contemplated an action under Section 78 of the Hindu Religious and Charitable Endowments Act, 1959 (in short, "HR & CE Act") and recommended to the fourth respondent to take action against the encroachers. Based on the same, the fourth respondent vide order dated 30.09.2013 directed the writ petitioner to vacate the subject premises and handover the possession of the same.

2.4. Aggrieved over the said order, the first respondent herein/writ petitioner preferred an appeal before the Commissioner, HR & CE, on 03.01.2014 and also filed a writ petition in W.P.(MD) No. 670 of 2014 before this Court. A Division Bench of this Court by order dated 10.01.2014 directed the Commissioner to take up the appeal and the interlocutory application and decide the same on merits on or before 10.02.2014.

2.5. Pursuant to the said order, the Commissioner, HR & CE passed order dated 09.06.2014 in R.P. No. 37/2014/D2 confirming the order dated 30.09.2013. The first respondent/writ petitioner filed a revision on 18.08.2014 before the Government under Section 114 of the HR & CE Act.

2.6. The writ petitioner, who was before the Madurai Bench of this Court in the first round of litigation, had filed W.P. No. 22987 of 2014 at the principal seat seeking a direction to dispose of the said revision. This Court disposed of the said writ petition on 22.08.2014, without expressing anything on merits, and thus, directed the Secretary to the Government to dispose of the revision within a period of three months from the date of receipt of a copy of the said order. Pursuant to the said direction, G.O. (Ms) No. 313, Tourism, Culture and Religious Endowments Department, dated 17.12.2014, was passed dismissing the revision filed by the petitioner.

2.7. The petitioner questioned the said order before this Court in W.P.(MD) No. 1885 of 2015, which was disposed of on 06.12.2016 permitting him to make a request to the HR & CE authorities for extending the lease, as it was his claim that he was in possession and enjoyment of the property.

2.8. The petitioner made a representation dated 12.01.2017 to the authorities armed with the said order. However, his request was repudiated vide order of the fifth respondent dated 22.01.2017. The said order was questioned before the writ court.

3. A counter-affidavit had been filed by the Assistant Commissioner before the writ court denying the tenancy of the first respondent herein/petitioner. It is submitted that the petitioner was the permissive occupant by one of the erstwhile trustees, without the knowledge of the other trustees, which was admitted by him, and such permission was never authorised by the HR & CE Department and hence, the petitioner is only an encroacher and following due process of law, eviction process was initiated. It was submitted that the temple administration was attempting to provide better basic amenities to the devotees, however, the encroachment made by the petitioner and other similarly placed persons caused hindrance in construction of such new facilities.

4. A perusal of the record would go to show that the writ Court, while hearing the writ petition appointed an Advocate Commissioner to cause inspection at the temple premises and ascertain the correct position. Accordingly, the Advocate Commissioner filed a report dated 05.09.2017. Based on the report, the writ court passed the order dated 21.12.2017, which is impugned in this appeal by the third parties.

5. The grievance of the appellants herein, who were not parties before the writ court, is that the existing shop owners and 50 other shop owners have been legally running their business, are put to heavy loss by the illegal occupants of the temporary shops. Already the existing shops constructed by the temple were not brought to the knowledge of the writ court and the order has been obtained from the writ court as if only hereafter, the construction has to be completed by the temple authorities.

6. The appeal filed by the third parties have now widened the scope of the writ petition. The larger interests that has to be addressed are:

(1) to maintain the temple,

(2) to streamline the allotment of shops,

(3) to remove the encroachers and trespassers who have temporary shops or sheds,

(4) to do the fencing of the temple,

(5) whether a new entrance can be created for coming into the temple, as the existing one is coming through the river path/river way, and

(6) to restore the river stream/way by removing the encroachers.

7. To give a neutral picture of the existing position, an Advocate Commissioner was appointed by this court, who had filed his report with annexures dated 10.09.2018.

8. Before we delve further into the matter, let us travel to know more about the temple, its location and its importance:

Arulmighu Mariamman Temple, is situate in Irukkangudi village, Sattur Taluk in Virudhunagar District. The said temple is located between two rivers, namely Arjuna and Vaippar. The river that is flowing on the South side of the temple is called Vaippar river. The said river Vaippar flows through Karivalam Vandha Nallur, Sattur, Kollampatti and joins Arjuna river in Irukkangudi village and flows further through Muthulapuram and Vilathikulam, before it reaches Ocean. Vaippar river has a reservoir at Vembakottai and it includes a dam in Irukkangudi. On the East of the temple, after 20 feet pathway a Pongal Mandapam is situate. Further east of the Pongal Mandapam, a 30 feet pathway leads to Arjuna river. On the South of the Pongal Mandapam, a shopping complex with two blocks is constructed and only in one building/block, business is being carried on. The existing building intended for letting out for shops, is not properly designed and it is not accessible for the devotees to visit them and make their purchases. On the South-East of the Temple, there is a Guest House, which is maintained by the Temple. On the South of the Temple also there is a Mudi Kanikkai Mandapam (Tonsure House), adjacent to which, there are toilets and bathrooms. The West of the Mudi Kanikkai Mandapam is the Annadhana Koodam, the Devasthanam Board office, etc. Immediately on the North-South of the Devasthanam Board, the pathway runs East to West which leads to a dam on the Arjuna river. The sluice gates are visible from the temple on the pathway. On both sides, there are temporary shops roofed with Tin sheets situate. On the Northern side of the temple, an Arch has been put up. From the stone inscription, it is noted that it is of the year 1984. The Arch is on the banks of the Arjuna river. The devotees or anybody intend to enter into the temple on the Northern side, have to cross Arjuna river through the Arch and reach the temple. From the Arch, the check dam is visible, which is within a distance of 100 metres. In the event of the dam being opened, the entire area will be flooded. Though there is a road on the western side of the temple, there is no defined entrance to get into the temple. It would be a risk factor to continue to have the entrance on the North-East side of the temple getting through the river, without a causeway or a bridge.

9. It is also brought to our notice that a proposal is made by the Executive Officer of the temple for the development of the temple and its surroundings. As per the report, the existing shopping complexes, which does not serve the purpose and also are in dilapidated condition have to be pulled down and the same can be shifted to the Western side of the Temple and a permanent structure can be brought up on the North-South and North-West of the temple. In fact, once the concrete structure, adjacent to Pongal Mandapam are removed, the said place can be developed as a garden (Nandavanam), as it would be on the banks of the river Arjuna. Besides these permanent structures there is a slaughter house, which is semi-permanent and during the special days and important festival days, the slaughtering happens in the said place emanating foul smell and waste causing health hazard. Apart from the slaughter house, there are live offerings by the devotees and there should be a proper shed for the maintenance of the same. The slaughter house should be maintained in a hygienic way with proper drainage and facilitate for disposal of the wastage, etc.

10. The temple is situate in a total extent of around 29 Acres. The Commissioner also has recommended that covering the entire temple with a compound wall is feasible and a representation in this regard has been made by the temple authorities to Public Works Department. Upon getting a nod from the Public Works Department and also from the Commissioner, HR & CE, the construction of the compound wall can be completed. While doing so, the Arch on the North-East can be closed and compounded and opening has to be given only on the North-West, so that in the event of water flowing from the nearby dam, it would not cause any risk to anybody and also to prevent encroachers occupying the river space.

11. Apart from the report of the Advocate Commissioner, a Status Report was also filed by the fifth respondent, who is the Assistant Commissioner/Executive Officer of Arulmighu Mariamman Temple. She has also stated that the temple is situate in an extent of 11.68 hectares in Survey No. 933.2 of Melamadai, Irukkangudi village. The Commissioner Report also stated that if a permanent solution is given for the vendors by having a permanent structure and letting out on lease, it will bring an end to the existing problem. Once such a construction is made, irrespective of the fact whether they are existing lessees or encroachers or trespassers, everyone has to take part in public auction and get their rights of lease.

12. While hearing the appeal, this court had impleaded the Superintending Engineer, Public Works Department, Vaippar Basin, Virudhunagar, suo motu vide order dated 16.08.2018. The Executive Engineer also in his report dated 24.08.2018 stated that there is a separate engineering wing to carry out construction and other work/activities. The temple authorities can provide for fencing to the extent of 29.03 Acres. Any other required features can be also provided, in consultation with the Public Works Department. It is also feasible and the Public Works Department has no objection for providing a compound wall for the area for protection. The maintenance and up-keeping of the temple including managing the tenancy rights of the appellants as well as the writ petitioner and other stakeholders, can be resolved not only by the Temple and the HR&CE, but also the other departments of the Government, namely the Revenue, Public Health, Electricity Board, Rural Development Department, Public Works Department and Police.

13. Even though the appeal is preferred by third parties, considering the larger perspective, namely the development of the temple and resolve the existing tenancy, this court is of the view that, based on the report of the Advocate Commissioner and the status report of the Assistant Commissioner/Executive Officer, Arulmighu Muthumariamman Temple, Irukkangudi, we propose to issue certain directions to the Departments concerned.

14. The HR&CE and other temple trustees are aware of the facilities that are required for the devotees, who visit there from various places, near and far. The devotees have to be given sufficient facilities, including supply of drinking water, maintenance of the slaughter house with appropriate disposal and drainage facilities and sanitary upkeep. As lot of devotees offer their hair, the Tonsure House has to be maintained hygienically with sufficient number of bath rooms. In this regard, the temple has to engage Sanitary workers and Security Guards. In spite of sufficient space available, the same is not put to optimum use. There is no proper car parking facility also. If the temple authorities are directed to earmark a convenient place for parking the vehicles and the parking area also should be maintained clean with fencing, garbage bins and toilet facilities.

15. The Public Health Department also has to ensure that the surroundings are kept clean and sanitized. The food prepared and sold to the public shall ensure Food Safety and Standards.

16. Not only the river poramboke has been occupied by the shops by trespassing, but also the Electricity Board has given them power supply. It is the TANGEDCO, which has to take action against those who are unauthorisedly using the power and take appropriate action against them.

17. The Rural Development Department also can step into the maintenance of the temple and the surroundings by erecting street lamps and maintaining the crowd during festival days.

18. Policing is necessary to ensure that the devotees make worship without the fear of losing their valuable to the bandits. The presence of the Policemen will minimize intimidation in the temple precincts and surroundings.

19. The Public Works Department (PWD), which is in-charge of the maintenance of the rivers and river basin and it allowed the trespassers to occupy in the river area and put up some permanent structures for sale of pooja articles, etc.,. Miracles do happen in our daily lives. Miracles of God cannot be taken advantage of by the PWD. If there is a torrential rain leading to deluge necessitating the PWD authorities to open the sluice Gates of the Irukangudi Dam, not only the shops would be inundated, but also the shopkeepers and also the devotees lives would be in peril. PWD, being the custodian of the Dam and the rivers, is duty bound to apply "precautionary principle" anticipating and preventing any flood like situation in the river way. The authorities should not put the lives of the Tradesmen and the devotees at risk.

20. At this juncture, it would be appropriate to touch upon the need to protect the environment, more particularly, tanks, rivers, waterbodies, etc., which are all public properties. It is an undisputed fact that the Government alone is not the custodian of waterbodies, but it is the responsibility of the people. However, the authorities should have watch over the protection of waterbodies and they should not allow it to be destroyed. Knowing the importance of protecting the water environment, a Division Bench of this Court (in which one of us is a party and authored the judgment [PSNJ]) in T.K. Shanmugam, Secretary, C.P.I. (M), V. State of Tamil Nadu, 2016-1-L.W. 168, has held as follows:

"27. It has become inevitable for this Court to put on record that the authorities in power cannot destroy the water bodies or water courses formed naturally for the benefit of mankind for ever and it is beyond the power of the State to alienate or re-classify the water bodies for some other purposes without compensating the effect of such water bodies."

21. Earlier, a Full Bench of this Court in T.K. Shanmugam, Secretary, C.P.I. (M), V. State of Tamil Nadu, 2015-5-L.W. 397, following the judgments of the Hon'ble Supreme Court and touching upon the "public trust doctrine", held as follows:

"44. Moreover, Article 51-A of the Constitution of India enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve the national environment including forests, lakes, rivers, wildlife and to have compassion for living creatures. This Article is not only fundamental in the governance of the country but a duty on the State to apply these principles in making laws and further to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the Constitution including Articles 14, 19 and 21 of the Constitution and also the various laws enacted by Parliament and the State Legislatures. But unfortunately, the State, by passing the above said Government Orders, actively encourages encroachers of water bodies, to indulge in illegal and unlawful activities and also bent upon regularizing their possession which has to be deprecated.

45. In the light of the above, we answer the reference on the following terms:--The provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, does not in any manner dilute the observations/directions issued in L. Krishnan v. State of Tamil Nadu reported 2005-3-L.W. 313: 2005 (4) CTC 1, as quoted with the approval by the Hon'ble Supreme Court in Jagpal Singh v. State of Punjab, reported in 2011-3-L.W. 17: (2011) 11 SCC 396, and the observations contained in paragraph 20(d)(e) of the judgment of the Division Bench in T.S. Senthil Kumar v. Government of Tamil Nadu, reported in  2010-3-MLJ-771 and that the tanks which do not fall within the purview of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, also require protection from encroachment and any encroachment made in such tanks or water bodies have to be removed by following the provisions of the Tamil Nadu Land Encroachment Act, 1905."

22. Before holding so, the Full Bench took note of the various earlier judgments of the Hon'ble Supreme Court and Division Benches of this Court and also made certain observations. It is apposite to quote the following paragraphs in this regard:

"20. In the case of R. Lakshmnan (supra), a Public Interest Litigation was filed before the Madurai Bench of this Court to restore the capacity of the water bodies as on date of the 1923 survey. The Writ Petition was disposed of by directing the Government to issue appropriate direction which should be mandatory in nature to all local bodies, including Corporation, Municipalities and Panchayats not to grant any planning permission for any construction that is put up in a water body and not to grant approval for any lay out or building plan, if the land is located either in part or in whole, in a water body and directing the Government to contemplate issuing of an order under the Tamil Nadu Town and Country Planning Act making it mandatory to enclose a certificate of the Revenue Authority along with building plan application, certifying that no part of the land is located in a water body and wrong information if provided, the person who issued the certificate to be held responsible. Further direction was issued to preserve and protect the water bodies and complete the exercise already undertaken within a period of one year and Civil Courts not to grant any interim protection order restraining the authorities from evicting a person from a water body. This decision was rendered by the Division Bench on 06.08.2014, fixing a prematory time limit of one year which has already lapsed. Nothing has been placed on record by the first and second respondents that the order of Division Bench has been complied with. Thus, this is the third default committed by the Government of Tamil Nadu.

21. We may now refer to certain provisions of the RSOs with particular reference to water bodies. .... RSO 15(38)(ii) deals with water course poramboke and states that great care should be taken to preserve the margins of canals, channels and streams and the transfer and assignment of such water course source poramboke can be ordered only by Government in consultation with the Commissioner of Land Administration and the Chief Engineer (PWD), vide G.O.Ms. No. 1267, Revenue, dated 29.12.1997. General Instructions given for Land Administration states that encroachments in poramboke lands like water sources/courses, gracing grounds, temple lands, kalam, etc., are considered as highly objectionable and these encroachments have to be evicted. The Revenue, Public Works and Highways Department authorities and local bodies like Municipalities and Corporation have been empowered to evict unauthorised encroachments after giving due notice under the Tamil Nadu Land Encroachment Act, 1905, for which a District level Committee under the Chairman of the District Collector has been constituted. Insofar as the directions contained in the RSO which are inconsistent with any other subsequent enactment or decision of this Court or the Hon'ble Supreme Court are deemed to have been superseded.

22. The common thread which runs through the manual of Revenue Administration is to preserve water courses as such. Though certain Government Orders were issued during 1970s, permitting assignment of Tank-beds with due permission, if those Government Orders seek to regularise illegal encroachment in tank-beds, water channels or area abutting and on margins of water channels to that extent the Manual of Revenue administration and the Government Orders are deemed to have been superseded, more particularly in the light of the directions issued by the Hon'ble Supreme Court in the case of Jagpal Singh (supra). However, the manual of Revenue Administration does not specifically state about assigning tank beds for a different user or concession to house site etc after reclassification.

.....

24. The Division Bench in L. Krishnan's case referred to the decision of the Hon'ble Supreme Court in the case of Hinch Lal Tiwari, wherein the importance of tanks/ponds etc was highlighted in the following terms:--

"13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13 having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites."

(emphasis supplied)

25. After referring to the above observations, it was pointed out that having regard to the precarious water situation prevailing in major part of the year in the State of Tamil Nadu, it is imperative that water storage resources such as tanks, ponds, odai, canals, etc., are not obliterated by the encroachers. The observations made by the Hon'ble Supreme Court in the case of M.C. Metha, (supra), observing that the 'precautionary principle' makes it mandatory for the State Government to anticipate, prevent and attack the cause of environment degradation. Ultimately, the Division Bench directed the State Government to identify all such water resources in different parts of the State and wherever illegal encroachments are found, initiate appropriate steps in accordance with the relevant provisions of law for restoring such natural water storage resource which has been classified, as such in the revenue records to its original position.

26. Thus, the Division Bench in L. Krishnan, did not limit its direction to water bodies under the control of the Public Works Department. In fact, it has issued directions for all natural water resources in the different parts of the State of Tamil Nadu and wherever illegal encroachments are found to take steps for removal of the encroachments in accordance with the relevant provisions of law. The State Government thought fit to enact the Tank Act and though the object of the enactment was couched on a border principle, the Act was restricted to the encroachments in tanks which are under the control and management of the Public Works Department. The question would be as to whether this would in any manner alter the position or could have an effect of diluting the directions/observations of the Division Bench in L. Krishnan's case. The answer to this question shall be an emphatic 'NO'.

27. Section 11 of the Tank Act, specifically states that the operation of other laws not to be affected, as the provisions of the Tank Act shall be in addition to and not in derogation of any other law for time being in force. Thus, the encroachments in respect of water bodies which are not covered under the provisions of the Tank Act have to be necessarily removed by resorting to the procedure under the Land Encroachment Act. We are not inclined to ignore the directions issued by the Division Bench in L. Krishnan's case, as general observations, as observed in Sivakasi Region Tax Payers Association's case. We may hasten to add that in L. Krishnan's, the Division Bench issued positive direction to the State Government and this cannot be brushed aside as general observations and more so in the light of the observations in the case of Jagpal Singh, wherein pointed directions were issued by the Hon'ble Supreme Court to all the Chief Secretaries. In Sivakasi Region Tax Payers Association's case though the Division Bench upheld the G.O.Ms. No. 854, it held that the said G.O., must read along with the provisions of the Land Encroachment Act, Tank Act and Standing Orders of Board of Revenue. If that be the interpretation, the question would be whether the State Government would be empowered to issue Government Orders for regularising encroachments in water bodies on the ground that the water body has lost its character and it is no longer a water body on account of disuse. We may answer this query by referring to the observations of the Hon'ble Supreme Court in the case of Jagpal Singh:--

"19. In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, which served them for thousands of years.

20. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials, and even this money collected from these so called auctions are not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop."

28. The Hon'ble Supreme Court further observed that when a pond is falling to disuse, the Government including the Revenue Authorities should bestow their attention to develop the same. Their Lordships further held that the Government Orders issued by the various State Governments permitting allotment of Grama Sabha lands to private persons and commercial enterprises to be illegal and to be ignored. Commenting upon the Government letter dated 26.09.2007, issued by the Government of Punjab, regularising the possession of unauthorised occupant, as not valid opined that such letters (Government Letters) are wholly illegal and without jurisdiction and such illegality cannot be regularised.

29. Reverting back to the Sivakasi Region Tax Payers Association's case, in paragraph 28, it was observed that it should not be misunderstood, as if the Division Bench was suggesting that all encroachments should be regularised or encouraged, but the State Government to take a conscious decision, if the land on which there are encroachments for a long period and such land is not required for any public purpose or for the State and a person remaining in adverse possession for more than 30 years acquires such right over the property. The other observations contained in para 30 of the judgment are that the Government Order (G.O. No. 854) makes it amply clear, where the environment is not affected in the sense, the area is not in use as lake or water source either natural or artificial and not required for any public use and for the use of the State then only the property can be settled.

.....

34. In Michigan Law Review, Vol. 68, No. 3 (Jan. 1970), Pages 471-566, Prof. Sax said that three types of restrictions on governmental authority are often thought to be imposed by the public trust doctrine, namely:

'1. the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public;

2. the property may not be sold, even for fair cash equivalent;

3. the property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resources.'

35. The Hon'ble Supreme Court in Indian Council for Enviro-Legal Action v. Union of India, [(1996) 5 SCC 281], held that there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment.

36. Thus, the public trust doctrine requires that natural resources such as lakes, ponds etc., are held by the State as a 'trustee' of the public and can be disposed of only in a manner that is consistent with the nature of such a trust."

23. The aforesaid judgment of the Hon'ble Full Bench, following the judgments of the Hon'ble Supreme Court lays emphasize on the importance of preservation of waterbodies and the authorities, even for the benefit of the rural masses, cannot be allowed to permit disuse of the waterbodies.

24. It is also apt to state that in terms of another order passed by this Court, the Engineer-in-Chief, WRD & Chief Engineer (General), PWD, Government of Tamil Nadu, sent a communication to the Chennai Engineer, WRD of Regions, in Letter No. 27(1)/00127/OT5/2018-5, dated 05.08.2021 and the relevant portion of the said letter reads as follows:

"A copy of the Government counsel letter and the order of the Hon'ble High Court of Madras cited are appended herewith wherein, it is requested to form a committee at every Panchayat Union level to inspect the water channels and restore the same as per revenue records in compliance with the High Court Order. In this regard, the Chief Engineers are requested to take necessary action and form the committee comprising Assistant Engineer of WRD, Official of other departments, namely, Revenue, Rural Development and Panchayat Raj and Local Bodies/Municipal Corporations in compliance with the Court order and furnish action taken report immediately to this office for taking further necessary action."

Thus, it is incumbent on the part of the stakeholders to maintain the water resources from free encroachment and restore the same in their original form.

25. In the instant case, as stated hereinabove, the temple is located between two rivers and entry to the temple on the North side is crossing through one of the rivers. The said entrance has to be shifted to restore the river stream. PWD, who is the 189th respondent, is directed to identify trespassers and remove the encroachers from the river area. Upon such removal, the PWD may consider constructing an over bridge connecting the temple and the road across the river on the Northern side, without disturbing the river passage. It is high time for the PWD and temple authorities to think of either shifting the Arch from the Northern Gate to the North-West side or erecting a new Arch on the North West side, by closing the ingress at the North Arch Gate side. This will serve twin purposes of removing the unauthorized shops in the riverway and also avoiding devotees thronging in the riverway.

26. To sum up, (i) The authorities of the HR & CE Department and the Temple are directed to lease out the required number of shops, by auction, to the willing tradesmen making it clear that no unauthorized vendor would be allowed to have shop hereafter and ensure that the shops so allotted have sufficient ingress and egress facilities for the devotees to have their purchase. This has to be done after demolishing all the unauthorized and temporary shelters erected by the individuals, so also the temple, so as to pave way for the legally allotted shopkeepers to have good and genuine trade with the devotee customers with proper ingress and egress facilities;

(ii) While doing so, the said authorities shall take steps in accordance with law to evict the unauthorized occupants/shopkeepers with police aid and no one should be allowed to have their shops without any valid licence/lease;

(iii) The HR & CE/Temple Authorities are also directed to ensure that the drinking water tanks and taps are placed in sufficient gaps with uninterrupted water supply;

(iv) The Tonsure House shall be maintained by the temple and HR & CE Department neat and tidy;

(v) The Slaughter House shall be kept clean, by providing necessary water, drainage and sanitations facilities, as cleanliness is Godliness, which, the Deity would also like;

(vi) Required number of security guards and sanitary staff shall be engaged by the temple authorities and the localbody in co-ordination;

(vii) Proper four wheeler and two wheeler parking facilities with sign boards shall be provided and the entire available space shall be put to optimum use by the temple authorities and they shall ensure that the space is kept clean, tidy and congestion free;

(viii) Proper toilet and bathing facilities shall be given at appropriate places with cleanliness without causing any odour to the other facilities;

(ix) The Health officials of the District shall depute required number of health workers both to ensure sanitation and also food safety and standards;

(x) The TANGEDCO authorities concerned are directed to ensure the supply of electricity only to the authorized/licensed shopkeepers and none should be allowed to unauthorizedly use the electricity. It is their duty to ensure that the live wires are kept safely without causing any hazard to the devotees and general public, at large;

(xi) The authorities of the concerned local body, so also the higher officials of the Rural Development and Panchayat Raj Department shall ensure that their duties, including providing proper streets with lights, are fulfilled, both festival days and non-seasonal days;

(xii) The PWD authorities, in co-ordination with the temple authorities, shall take steps to construct bridge, as has been stated by its Executive Engineer, WRD, Vaippar Basin Division, Virudhunagar District, and to remove unauthorized occupation and restore the river-way and riverbeds and also to prevent further occupation. In this regard, the letter of the Engineer-in-Chief, WRD & Chief Engineer (General), PWD, Chennai, dated 05.08.2021 may be taken note of and complied with. Similarly, they shall endeavour to provide compound wall on all the directions, in view of the fact that the temple is located in an island, so as to avoid flooding, in the event of opening the sluice gates of the Dam.

(xiii) The District Police administration shall give necessary protection to the temple and its devotees, in implementing the above directions. While doing so, required number of women police personnel shall also be deployed;

(ix) The District Revenue administration shall discharge the duties to be performed by them in time without any delay, by co-ordinating with the temple authorities and the other departments.

(x) The second/third respondent is directed to address the Secretaries/Heads of the concerned Departments in implementing the above directions.

(xi) The fifth respondent is directed to take appropriate follow-up action to ensure that the appropriate course of action has been taken, in implementing the above directions.

27. With the above directions and observations, this writ appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed.

28. A report qua the status of the compliance of the above directions shall be filed by the third respondent before this Court once in three months, i.e., in the first working of every quadrant, until further orders.

29. The Registry is directed to list this appeal on 01.12.2021 for placing first of such report.

Andhra Pradesh HC in Kumpatla Appa Rao & Ors. vs. Govt. of Andhra Pradesh & Ors. [05.10.2021]

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

Writ Petition No. 14705 of 2021

Decided On: 05.10.2021

Kumpatla Appa Rao and Ors.

Vs.

Government of Andhra Pradesh and Ors.

Hon'ble Judges/Coram:
M. Satyanarayana Murthy, J.

Counsels:
For Appellant/Petitioner/Plaintiff: V.V.L.N. Sarma, Advocate
For Respondents/Defendant: GP

ORDER

M. Satyanarayana Murthy, J.

1. This writ petition is filed under Article 226 of the Constitution of India initially against respondent Nos. 1 to 4 seeking the following relief:

"to issue a Writ of Mandamus or any other appropriate Writ, order or direction declaring the action of the Respondents in seeking to utilise the land of an extent of Ac. 0.72 cts in S. Nos. 385 and 380 with all subdivisions therein situate in Tatiparthi Village, Gollaprolu Mandal, East Godavari District, acquired and earmarked for community purposes in the year 1985, for purpose of house sites under Navaratnalu-Pedalandariki Illu Scheme as illegal or arbitrary."

2. Later, respondent Nos. 5 to 9 are impleaded as per the orders in I.A. No. 02 of 2021 dated 18.08.2021.

3. The case of the petitioner, in brief, is that respondent No. 1 acquired an extent of Ac. 5.11 cents in S. No. 385/1, 2, 3, 3A, 3B, 4, 5, 6, 380/2, 3 in Tatiparthi Village, Gollaprolu Mandal, East Godavari District for the purpose of distribution of house sites to the houseless poor persons. Respondents prepared layout and got approved the layout, house sites were distributed to the landless poor in the year 1985 by respondent No. 4 each of an extent of Ac. 0.03 cents in the above land. All the petitioners and other patta holders constructed their houses and living therein. Thus, the petitioners are in possession and enjoyment of the assigned land along with 80 other persons, who constructed their houses and living therein. At the time of approval of layout, Ac. 0.72 cents was left in the layout for community purpose i.e. for Public Park, playground and community hall etc. The petitioners have been submitting representations from time to time for utilisation of the same for community purpose without any avail. While so, the officials from the revenue department visited the village especially layout and promised to take steps for sanction of funds for construction of public park, community hall etc. So far, no action is taken in the said direction though decades are rolling by.

4. The State Government in the recent past took a policy decision to distribute house site under the flagship programme "Navaratnalu-Pedalandariki Illu". In pursuance of the same, some officials from the office of respondent Nos. 2 to 4 came to the land i.e. Ac. 0.72 cents, which is earmarked for community purpose, along with police people, inspected the same for distribution of the said land to the houseless poor in the village. There are no houseless poor people in the village, but house sites are sought to be given once again to the persons of choice of person in political power. The petitioners brought to the notice of the officials that the land was earmarked for communal purpose. Later, the petitioners submitted a detailed representation dated 17.06.2021 to respondent No. 2 bringing to his notice that the land meant for communal purpose. No reply was given and no action was taken on the representation of the petitioners.

5. It is further submitted that the son of petitioner No. 1 applied for the necessary information under the Right to Information Act, but the information was not furnished. On that, son of petitioner No. 1 filed an appeal before respondent No. 3. Finally, respondent No. 3 sent an endorsement of respondent No. 4 in Rc. A/112/2021 dated 05.07.2021. The said endorsement shows that an extent of Ac. 0.72 cents was earmarked as community site in the year 1985. Respondent No. 4 could not give details as to how many pattas were issued in the site. It is informed that the possession of the site was taken as per G.O.Ms. No. 510 Revenue (Lands-I) Department dated 30.12.2019 issued by respondent No. 1, house site pattas were granted, and the said site is in Sy. No. 380 and 385 and its subdivisions. It is also informed that an extent of Ac. 5.11 cents in the above survey numbers was purchased from the ryots for distribution as house sites. A copy of the report of the village Surveyor, Tatiparthi village Secretariat I and II, Gollaprolu Mandal submitted to respondent No. 4 was also sent, in which it was stated that after acquisition of the land, which disclosed that an Award No. 11/80 dated 10.03.1980 was passed and that changes were made in FMB; later S. Nos. 385/1, 2, 3A, 4, 5, 6 were changed as S. No. 380/1 and that the vacant land in question is in S. No. 380/1.

6. It is also contended that the Apex Court consistently held that the Government cannot re-allot the land for any purpose other than the one for which it was originally earmarked. The High Court of Court of Andhra Pradesh reiterated the same principle in W.P. No. 26276 of 1996.

7. Respondent No. 1 also issued G.O.Ms. No. 72 Municipal Administration and Urban Development (G1) Department dated 20.02.2002 directing all Nagar Panchayats/Municipalities/Municipal Corporations in the State shall not propose to utilise the reserved open spaces of a layout for the purpose other than the intended original use such as a park, play ground, community structure, urban forestry and similar eco-conservation programme.

8. It is further contended that the impugned action of the respondents in taking possession of Ac. 0.72 cents, which was originally earmarked for community purpose, allotting the same as house site under the present populist Government scheme "Navaratnalu-Pedalandariki Illu" is illegal, arbitrary and contrary to the law declared by the Apex Court in several judgments, so also violative of G.O.Ms. No. 72 Municipal Administration and Urban Development (G1) Department dated 20.02.2002, requested to issue a direction as claimed in the writ petition.

9. Respondent Nos. 1 to 4 did not file any counter.

10. Respondent Nos. 5 to 9 being the beneficiaries filed counter along with vacate stay petition denying material allegations inter alia contending that respondents Nos. 5 to 9 are land less poor persons, therefore, respondent Nos. 5 to 9 and some of the villagers made application for grant of houses under "Navaratnalu-Pedalakandariki Illu" house scheme. Later, considering their eligibility, living conditions and also taking into consideration the availability of Government land, the official respondents called for objections, but no objections were filed by anybody at that point of time, as such the eligibility list was published. Respondent No. 4 granted house site pattas to respondents Nos. 5 to 9 and some of the Villagers Vide Ref. No. B/42/2019 dated 21.12.2020. Thereafter, respondents Nos. 5 to 9 and others have started construction by availing housing scheme/loan provided by the Government to the landless poor persons in the village and invested their earning and savings for construction of the same, raised foundations, pillars and invested substantial amount for construction and the petitioners are aware of the constructions raised by them. The petitioners suppressed the fact as to the stage of construction and averred that respondents 2 to 4 are trying to make construction as on 19.07.2021, whereas respondent Nos. 5 to 9 have started construction in the said land in the month of June 2021. At this stage, the petitioners approached this Court and got the interim orders "directing the respondents not create any third party interest in the subject property" and respondent Nos. 5 to 9 denied the allegation that there are no houseless people in the village.

11. It is further contended that G.O.Ms No. 72 dated 20.02.2002 is related to the all Nagar Panchayats/Municipalities/Municipal Corporations in the state shall not propose to utilize the reserved open spaces of a layout for the purpose other than the intended original use. The site allotted area in the present writ petition is within Rural limits of Tatiparthi Villlage, Gollaprolu Mandal. G.O.Ms. No. 72 dated 20.02.2002 does not apply to the present case, as the area falls within the limits of Rural area. In view of the allotment of the land in the month of December, 2020 the claim of the petitioners is belated and there is exorbitant delay in filing the present Writ Petition, thereby the writ petition is not maintainable, requested to dismiss the writ petition.

12. Sri V.V.L.N. Sarma, learned counsel for the petitioners, contended that Ac. 0.72 cents in Sy. No. 385 and 380 Tatiparthi Village, Gollaprolu Mandal, East Godavari District is earmarked for public purpose/community purpose and it cannot be utilised for any other purpose since it is mandatory to provide necessary civic amenities such as temple, park etc. for the use of residents of the layout. But, now the respondents are proposing to convert the same into house site contrary to the purpose for which it is meant and in contravention of the law laid down by the Apex Court in various judgments so also G.O.Ms No. 72 dated 20.02.2002, requested to issue a direction as stated above.

13. Learned Assistant Government Pleader for Revenue contended that the State issued G.O.Ms. No. 510 dated 30.12.2019 authorising all the District Collectors to resume the unutilised Government land on the ground of violation of conditions or non-utilisation of the allotted land which was earlier alienated in favour of private individuals/private organizations/Government organisations/Government departments/Public Sector Undertakings/state Government Corporations/Urban Development Authorities and Urban local bodies on the grounds of violation of conditions or non-utilisation of the alienated lands in terms of G.O.MS. No. 57, Revenue (Assn.I) Department, Dated 16.02.2015 and they are further authorised to utilise the land acquired by various Government departments/organisations for any public purpose but not put to use for the same purpose. It is further mentioned in the said G.O.Ms. No. 510 dated 30.12.2019 that "these lands shall be utilised for providing House sites to eligible beneficiaries under the flagship programme "Navaratnalu-Pedalandariki Illu". Taking advantage of G.O.Ms. No. 510 dated 30.12.2019, learned Assistant Government Pleader for Revenue contended that the said property of Ac. 0.72 cents, which was earmarked for public purpose is not put to use, therefore, State can take possession of the same, though meant for communal purpose, for distribution of house site pattas under the flagship programme "Navaratnalu-Pedalandariki Illu". Therefore, the act of the respondents is justifiable and such act of the State cannot be declared as illegal and arbitrary, and not violative of G.O.Ms. No. 72 dated 20.02.2002 as the same was superseded by G.O.Ms. No. 510 dated 30.12.2019, requested to dismiss the writ petition.

14. Sri G. Eswaraiah, learned counsel for respondent Nos. 5 to 9 reiterated the contentions urged in the counter while submitting that the possession of the land was taken over by the Government and distributed pattas in their favour, started construction therein and produced photos to establish the ongoing construction in the land, and in case the action of the respondents is set aside, respondent Nos. 5 to 9 will be put to serious loss, requested to dismiss the writ petition.

15. Considering rival contentions, perusing the material available on record, the points need to be answered by this Court are as follows:

(1) Whether extent of Ac. 0.72 cents in Sy. Nos. 385 and 380 situated in Tatiparthi Village, Gollaprolu Mandal, East Godavari District is meant for communal purpose like construction of school, temple or public park etc.?

(2) Whether the said land meant for communal purpose, which is not put to use, can be assigned to the houseless poor under the scheme "Navaratnalu - Pedalandariki Illu"? If not, the impugned action of respondents be declared as illegal, arbitrary and violative of G.O.Ms. No. 72 dated 20.02.2002?

POINT No. 1:

16. The respondents did not dispute the nature of the land and the purpose for which it was earmarked. During hearing, learned Assistant Government Pleader for Revenue, though counter is not filed, specifically contended that though the land was earmarked for public purpose, if it was not put to use, the possession of the property can be taken by the State based on G.O.Ms. No. 510 dated 30.12.2019 for utilising the same under the scheme "Navaratnalu - Pedalandariki Illu". At this stage, it is relevant to extract the paragraph No. 5 of G.O.Ms. No. 510 dated 30.12.2019, which is as follows:

"5. Accordingly, Government hereby authorize the District Collectors of the respective districts to resume the unutilized Government lands on the grounds of violation of conditions or non-utilisation of the allotted land which was earlier alienated in favour of private individuals/private organizations/Government organizations/Government departments/Public Sector Undertakings/state Government Corporations/Urban Development Authorities & Urban Local Bodies on the grounds of violation of conditions or non-utilisation of the alienated lands in terms of G.O.MS. No. 57, Revenue (Assn.I) Department, Dated 16-02-2015 and they are further authorised to utilise the lands acquired by various Government departments/organisations for any public purpose but not put into use for the same purpose. These lands shall be utilised for providing House sites to eligible beneficiaries under the flagship programme "NAVARATNALU-PEDALANDARIKI ILLU"."

17. According to the information furnished under Right to Information Act to the son of petitioner No. 1, an extent of Ac. 0.72 cents in Sy. No. 380 and 385 is earmarked as community site, but could not furnish the details of beneficiaries, to whom the pattas were granted.

18. The information obtained under Right to Information Act is substantiating the contention of the petitioners that the land to an extent of Ac. 0.72 cents in Sy. No. 380 and 385 is earmarked for communal purpose at the time of approving layout. This fact is not disputed by respondent Nos. 5 to 9 in their counter or even the learned Assistant Government Pleader for Revenue did not deny the same. Thus, the petitioners established that Ac. 0.72 cents in Sy. No. 380 and 385 is earmarked for communal purpose. Accordingly, the point is answered in favour of the petitioners.

POINT No. 2:

19. As held in point No. 1, extent of Ac. 0.72 cents in Sy. No. 380 and 385 is earmarked for communal purpose. What is 'communal purpose' is not stated anywhere. At best, it can be said to be 'for use of community at large', but not for individual purpose. When layout is approved, certain extent of land is to be earmarked for 'communal purpose' for using the same by public at large/community at large for their better standard of living and such land cannot be utilised for any other purpose in view of G.O.Ms. No. 72 dated 20.02.2002, wherein it is stated as follows:

"In this regard, the High Court of Andhra Pradesh in its order in W.P. No. 26276/96 based on Supreme Court Judgment in SC 1902 and SC 577 had concluded that the Government have no jurisdiction to convert the site reserved for part or play ground for some other purpose. The Court has also opined that any buildings or construction in such places necessarily affect the health, sanitation and the environment adversely affecting the residents of the locality."

20. In view of the said Government Order (referred above), the land earmarked for public purpose while approving the layout, cannot be utilised for any other purpose. In the present case, the Revenue department based on G.O.Ms. No. 510 dated 30.12.2019 wanted to take away the land earmarked for public purpose/communal purpose when it is not put to use. When a layout is approved by the Director of Town Planning, earmarked land for public purpose, it will vest on the Municipality or Panchayat and deemed to be in the custody of the concerned local government. Unless, such land is divested on the Government by necessary Government Order, the Revenue department has no control over the same. Even assuming for a moment, that the land is divested on the Government by any Government Order, still it cannot be utilised for any other purpose when it is earmarked for public/communal purpose.

21. Conversion of land reserved for public purpose into house sites by the State depriving the residents of the layout to enjoy the amenities like school, temple, community hall and park is a grave illegality and contrary to the G.O.Ms. No. 72 dated 20.02.2002.

22. Rule 13 of the Andhra Pradesh Land Development (Layout and Sub-division) Rules, 2017 is relevant for the purpose of deciding the present issue, which reads as under:

"13. Reservation and Allotment of Land:

(1) The reservation and allotment of land for various purposes in the land/layout development shall be as follows:

(a) In layouts of 5 Ha. and below: 2% of the layout area for Amenities and 0.5% of the layout area for Utilities.

(b) In layouts of above 5 hc : 3% of the layout area for Amenities and 1% of the layout area for Utilities.

(c) 10% of the layout area for Public Open Space.

(d) 30% of the layout area for Roads. In case of roads area arrived below 30% the public open space shall be increased proportionately so that the area under roads and open space put together shall be minimum of 40% of layout area.

(2) The area reserved for Public Open Space shall be handed over to the Local Authority free of cost through a registered gift deed. This area shall be used only for Parks, Playgrounds, Gardens, Nursery, Recreational Open space etc. and shall not be utilized for any purpose other than the purpose for which it is transferred. The Applicant shall construct a compound wall as per the design prescribed for this site and handover to the Local Authority.

(3) The areas reserved for utilities shall be handed over to the Local Authority free of cost through a registered gift deed. This area shall be utilized only for community facilities such as Electrical Substation, Government school, Government Dispensary, Ward Office, Public Utility Office, Public Library, Water Reservoir, Rain water harvesting structures, Police Station/outpost, Public Parking, Fire Station, Bus Station, Septic Tank, Solid Waste Collection point etc.

(4) The area reserved for Amenities shall be used only for the purposes earmarked in the Final Layout Plan [FLP] by the Competent Authority for educational, commercial facilities etc. The Owner/Developer may also sell or lease this area but only for the purposes earmarked in the Final Layout Plan [FLP].

(5) The stamp duty is exempted for handing over the areas reserved for public purpose and utilities to the concerned local authorities through Registered Gift/settlement deed.

(6) Every open space shall have independent means of access.

(7) In case, the area for which the Land/Layout Development sought for falls in sanctioned Master Plan or Zonal Development Plan or Draft Plan, if a portion of this land falls in the area earmarked/reserved in such plans for a common public purpose in the interest of general development of the locality, the owner of such land shall transfer such percentage of the area of layout as prescribed in sub-rule (1) free of cost to the Local Authority.

(8) In other cases i.e., if the area so earmarked in the Land/Layout Development under reference for roads and public open space are more than such percentage as prescribed in sub-rule (1) he shall Page 36 also transfer the entire area so proposed to be reserved in the layout and he is entitled to receive Transferable Development Rights (TDR) from the Local Authority for the part of his site which is in excess of the extent of lands which he was to provide as per sub-rule (1).

(9) The areas allotted for Affordable Housing if any, shall be utilized only for the specific purpose and the applicant may sell or dispose of these plots only for the said purpose and no amalgamation or alteration of these plots shall be considered.

(10) Government/Development Authority/Local Authority/Developer/Owner/Applicant have no jurisdiction to convert the site reserved for public purpose such as park or playground, utilities, amenities affordable housing and for some other purpose.

(11) In the case of Commercial/Industrial Land Development having an area of above 3 Hectares, an extent of 5% of the total area shall be reserved for general parking space; and if such parking area exceeds 2000 sq.m. part of it could be utilized for the construction of buildings for banks, canteens, welfare centres and such other common purposes considered necessary for the industrial user, as approved by the Authority."

23. In compliance of Rule 13 of the Andhra Pradesh Land Development (Layout and Sub-division) Rules, 2017, land in an extent of Ac. 0.72 cents in Sy. No. 380 and 385 is reserved for public purpose i.e. construction of school, temple, community hall and development of park. The reservation of such land under Rule 13 of the said Rules is mandatory and the same cannot be utilised for any other purpose.

24. Chapter II of the Andhra Pradesh Panchayat Raj Act, 1994 (for short "the Act") deals with powers, functions and property of Gram Panchayats. Section 46 of the Act reads thus:

"46. Power of Gram Panchayat to provide for certain other matters:-Subject to the provisions of this Act and the rules made thereunder, a Gram Panchayat may also make such provision as it thinks fit for carrying out the requirements of the village in respect of the following matters, namely:-

(i) the construction and maintenance of dharmashalas, sarais and rest houses for travellers;

(ii) the planting and preservation of groves and trees on the sides of roads and other public places;

(iii) the promotion and development of pre-primary education, elementary education, social and health education, cottage industries and trade;

(iv) the establishment and maintenance of dispensaries and the payment of subsidies to rural medical practitioners;

(v) the establishment and maintenance of wireless receiving sets, play grounds, akhadas, clubs and other centres for recreation and physical culture;

(vi) the laying and maintenance of parks;

(vii) the establishment and maintenance of libraries and reading rooms;

(viii) the provision of relief to the crippled, the destitute and the sick;

(ix) the establishment and maintenance of nurseries and stores of improved seeds and agricultural implements of the production and distribution of improved seeds, pesticides and insecticides and the holding of agricultural shows including cattle shows;

(x) the propagation of improved methods of cultivation in the village including laying out of demonstration plots with a view to increasing production;

(xi) the encouragement of co-operative management of lands in the village and the organisation of joint co-operative farming; and the promotion of co-operatives for the manufacture of bricks, tiles, hinges, doors, windows, rafters or other building materials as provided in the village housing project schemes sponsored by the Central Government;

(xii) the establishment and maintenance of ware-houses and granaries;

(xiii) the establishment and maintenance of cattle sheds;

(xiv) the extension of village sites;

(xv) the improvement of cattle including purchase and maintenance of stud bulls and the provision of veterinary relief;

(xvi) the control of fairs, jataras and festivals;

(xvii) the organisation of voluntary labour for community development works in the village;

(xviii) the establishment and maintenance of maternity and child welfare centres;

(xix) the organisation of watch and ward;

(xx) the provision of relief against famine or other calamities;

(xxi) the destruction of stray and owner-less dogs;

(xxii) the preparation of statistics of unemployment;

(xxiii) the opening and maintenance of public markets;

(xxiv) the opening and maintenance of public slaughter houses;

(xxv) the implementation of land reform measures in the village including consolidation of holdings and soil conservations;

(xxvi) the setting up of organisation to promote good will and social harmony between different communities, the removal or untouchability, the provision of house sites for harijans, the eradication of corruption, the prohibition of or temperance in the consumption of intoxicating drinks or drugs which are injurious to health and the discouragement of gambling and litigation;

(xxvii) other measures of public utility calculated to promote the safety, health, convenience, comfort or moral, social and material well-being of the residents of the village."

25. In view of Section 46 of the Act, it is the duty of the Gram Panchayat to provide certain amenities to the public and maintain them, such as construction of schools (clause iii), laying and maintenance of parks (clause vi) and other measures of public utility calculated to promote the safety, health, convenience, comfort or moral etc. (clause xxvii).

26. Section 58 of the Panchayat Raj Act is a special provision to divest the tanks, roads, etc, specified in Sections 53, 54, 55 and 57, including the porambokes namely, grazing grounds, thrashing floors, burning and burial grounds, cattle stands, cart tracks and topes, which are at the disposal of the Government and are not required by them for any specific purpose shall vest in the Gram Panchayat subject to such restrictions and control as may be prescribed. Sub-section (2) of Section 58 says that, the Government may, at any time by notification in the Andhra Pradesh Gazette, direct that any porambokes referred to in sub-section (1) shall cease to vest in the Gram Panchayat if it is required by them for any specific purpose and thereupon such porambokes shall vest in the Government. Therefore, a gazette notification is necessary to divest the property on the government that vested on the gram panchayat. In the absence of any notification issued by the Government divesting Gram Panchayats of any poramboke lands, there cannot be any use of panchayat land for any other purpose and the same cannot be assigned to the landless poor for house site or otherwise. Thus, unless there is a notification by the Government divesting gram panchayat and vesting on Government any property referred above, there cannot be any use of panchayat land for any other purpose. (Vide: "Rythu Seva Sangam, Yenamadurru v. Bhimavaram Municipality 2012 (5) ALT 631" and "Banne Gandhi and others v. District Collector 2007 (2) ALT 550").

27. When once the land is reserved for public purpose, it cannot be converted into house sites and assign the same to the public under any scheme in view of the law laid down by the Apex Court in "Jagpal Singh and others vs. State of Punjab and others (2011) 11 Supreme Court Cases 396.", wherein the Apex Court held as follows:

"Para 3: The protection of common rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, in Chigurupati Venkata Subbayya v. Paleduga Anjayya (1972) 1 SCC 521) SCC Page 529 the Court observed in Para 23 as follows:

"23. It is true that the suit lands in view of Section 3 of the Estates Abolition Act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of community over those lands can be said to have been taken away. The rights of the community over the suit lands were not created by the principal or any other landholder. Hence those rights cannot be said to have been abrogated by Section 3(c) of the Estates Abolition Act."

28. In view of the principle laid down in the above judgment, communal land, though available, cannot be alienated to any third party defeating the common rights of the villagers.

29. At this stage, it is condign to advert to Rule 3 of the A.P./T.S. Gram Panchayat Land Development (Layout and Building) Rules, 2002 deals with application for layout permission and Rule 4 specifies minimum requirement for approval of layout, it runs as follows:

"4. Minimum requirement for approval of Layout.-(1) The Layout proposal shall conform to the requirements:

(a) shall have approach through an existing road, the width of such shall not be less than 10 meters (in case of land-locked plots, the owner has to ensure the approach road through neighbouring lands accordingly;

(b) minimum width of proposed roads in the layout shall be 10 meters for residential and 12 meters for all nonresidential layouts. Notwithstanding the above minimum width, the Executive Authority may insist upon larger road widths depending upon local conditions or importance of any particular road etc., as appended in Annexure-C. The width of the roads in the layouts General Town Planning Scheme or the Indicative Land Use Plan or Master Plan, if any in force;

(c) minimum open space set apart in the proposed layout for playground/park/educational institution or for any other public purpose shall be at the rate of 10% of the total site area;

(d) the minimum plot size for nonresidential layouts shall be 300 Sq. Meters except in case of Commercial or Mercantile buildings for which the minimum plot size shall be 18 Square Meters.

(e) the layout proposals shall comply with the restrictions mentioned in Rule 5 of these rules.

(f) the applicant should provide a service road of minimum 10 meters width for the layout if the land is abutting to National Highway having less than 600 meters width."

30. As per clause (c) of Rule 4 minimum open space be set apart in the proposed layout for playground/park/educational institution or for any other public purpose at the rate of 10% of the total area of site.

31. Rule 9 of the said rules deals with deviations during construction/undertaking of layout works. As per Rule 9, if during the execution of any layout, any deviation is made from the sanctioned plan the owner shall obtain revised sanction as per the procedure and rules. In the present facts of the case, though the plots reserved for public purpose, no such revised sanction was obtained under the Rules strictly adhering to Rule 9 of the said Rules.

32. The owner who has been given sanction shall be wholly and solely responsible for the quality of workmanship of layout development works, and for ensuring safety during the construction/development works, etc. as per Rule 10 of the Rules.

33. Therefore, the land reserved for public purpose shall vest on the Gram Panchayat in view of clause (7) Rule 11 of the A.P./T.S. Gram Panchayat Land Development (Layout and Building) Rules, 2002. According to clause (7) Rule 11, all the roads and open spaces such as parks and playgrounds earmarked in accordance with these rules in a layout, which is approved by the Gram Panchayat shall automatically stand transferred free of cost, and vest with the gram panchayat free from all encumbrances. After such vesting, the gram panchayat shall maintain all such open spaces for the purpose for which they have been earmarked.

34. Thus, the open space is deemed to be vested on the Gram Panchayat as per clause (7) of Rule 11 of the said Rules, and Gram Panchayat is not competent to divest the land and vest on Government for the reason that Section 58 of the Panchayat Raj Act has no application. Therefore, the Gram Panchayat is the custodian of the property having vested on it in view of clause (7) of Rule 11 of the Rules.

35. The Division Bench of the High Court of Andhra Pradesh at Hyderabad in "Sri Balaji Park Residents Welfare Association v. Vice-Chairman, Visakhapatnam Urban Development Authority 2001 (6) ALD 325" dealt with power of the authority to convert the open plots reserved for public purpose/communal purpose for any other purpose with reference to different enactment; ultimately concluded that the plots/land reserved for public purpose like construction of school, community hall, park etc. cannot be converted to any other purpose and shall not allot the same to any other person.

36. An identical issue came up before the Apex Court in "Machavarapu Srinivasa Rao v. The Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority (2011) 12 SCC 154". In the said judgment, the Apex Court is of the view that in the absence of change of land use which could have been sanctioned only by the State Government, Respondent No. 1 therein had no jurisdiction to grant permission to Respondent No. 3 therein to construct temple at the site. Respondent No. 1 was very much alive to this legal position and this is the reason why its Vice Chairman had written letter dated 15.6.2010 to the Principal Secretary to the Government for change of land use by stating that a mistake had been committed at the time of preparation of Zonal Development Plan. But, the Apex Court did not accept the contention and concluded that when the land is reserved for recreational use and that too by ignoring that the same had not been allotted to Respondent No. 3 by any public authority, for construction of temple other than the purpose for which it was reserved.

37. In the said judgment, the Apex Court considered the earlier judgment in "Bangalore Medical Trust v. B.S. Muddappa (1991) 4 SCC 54", wherein the Court highlighted the purpose of Public Park and held that Public park as a place reserved for beauty and recreation was developed in 19th and 20th century and is associated with growth of the concept of equality and recognition of importance of common man. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surroundings was privilege of few. But now it is a, gift from people to themselves'. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development it occupies an important place in social ecology. A private nursing home on the other hand is essentially a commercial venture, a profit oriented industry. Service may be its motto but earning is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. A private nursing home cannot be a substitute for a public park. No. town planner would prepare a blueprint without reserving space for it. Emphasis on open air and greenery has multiplied and the city or town planning or development Acts of different States require even private house owners to leave open space in front and back for lawn and fresh air. In 1984 the B.D. Act itself provided for reservation of not less than 15 per cent of the total area of the layout in a development scheme for public parks and playgrounds the sale and disposition of which is prohibited under Section 38A of the Act. Absence of open space and public park, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may give rise to health hazard. May be that it may be taken care of by a nursing home. But it is axiomatic that prevention is better than cure. What is lost by removal of a park cannot be gained by establishment of a nursing home. To say, therefore, that by conversion of a site reserved for low lying park into a private nursing home social welfare was being promoted was being oblivious of true character of the two and their utility.

38. In "M.C. Mehta v. Union of India (UOI) (2001) 4 SCC 577" the Apex Court while dealing with the amendment of master plan held as follows:

"While it is true that this Court has directed user of land left with the owner to be developed in accordance with the user permitted under the Master Plan but the whole aim, object and spirit of the order was to meet the community need and it is in this context also that Mr. Gopal Subramaniam drew our attention to the Appendix to the Zonal Development Plan pertaining to area "G". We are however unable to accede to such a submission since time has not come as yet in any event to assess the situation in its entirety. The Zonal Development Plans produced before the Court has not been finalised as yet since it is presently in the draft stage and as such no reliance can be placed by this Court on the data and the materials available thereon. A proposal cannot be said to be a final declaration of the community need. We are thus unable to record our concurrence therewith for the reasons noticed above."

39. In view of the law laid down by the Apex Court in "M.C. Mehta v. Union of India (UOI)" (referred supra), it is the duty of the owner of the layout to maintain the land left for community needs.

40. Reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned layout plan. But the question is, does it entitle the respondents herein to claim that the land so specified should be transferred to third parties by assignment at free of cost. That is not made out from any provision in the Act or on any principle of law. The Gram Panchayat by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of the society in general. But the right to manage as a local body is not the same thing as to claim transfer of the property to itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the ownership stands transferred to the person in whose favour it is transferred.

41. The Apex Court makes it clear that reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in question and he holds the land for the benefit of the society or the public in general. (Vide: "Pt. Chet Ram Vashist (dead) by L.Rs v. Municipal Corporation of Delhi (1995) 1 SCC 47")

42. In view of the judgment of the Apex Court, the State Government cannot have any jurisdiction to alter the character of the land reserved for public purpose.

43. In "Dr. G.N. Khajuria v. Delhi Development Authority (1995) 5 SCC 762" the Apex Court held as follows:

"We, therefore, hold that the land which was allotted to respondent No. 2 was part of a park. We further hold that it was not open to the DDA to carve out any space meant for park for a nursery school. We are of the considered view that the allotment in favour of respondent No. 2 was misuse of power, for reasons which need not be adverted. It is, therefore, a fit case, according to us, where the allotment in favour of respondent No. 2 should be cancelled and we order accordingly. The fact that respondent No. 2 has put up some structure stated to be permanent by his counsel is not relevant, as the same has been one on a plot of land allotted to it in contravention of law. As to the submission that dislocation from the present site would cause difficulty to the tiny tots, we would observe that the same has been advanced only to get sympathy from the Court inasmuch as children, for whom the nursery school is meant, would travel to any other nearby place where such a school would be set up either by respondent No. 2 or by any other body."

44. The Apex Court highlighted the purpose of providing lung space, its importance and use in "Municipal Corporation, Ludhiana v. Balinder Bachan Singh (Dead) by Lrs (2004) 5 SCC 182" and held that for every locality green spaces and green belts have to be provided to provide lung space to the residents of the locality. A provision for Green Park was made by the Municipal Corporation keeping in view the minimum requirement to provide open/green space to the residents of the locality.

45. The Apex Court in its latter judgment in "Sri Devi Nagar Residences Welfare Association v. Subbathal 2007 (3) LW 259" further clarified as to how the open space serves necessity to preserve and protect the same while observing that the open space in a residential area or in busy townships is treated as lung space of the area. It provides fresh air and refreshment to the persons in the neighbourhood. Its presence ameliorates the hazards of pollution and it has to be preserved and protected for the sustenance of the men around. It is for the health and well-being of the inhabitants of the residential area. The same cannot be bartered for any other purpose.

46. The Apex Court in "Pillayarpatti Karpaga Vinayagar Koil Nagarathar Trust thru Ramanathan v. Karpaga Nagar Nala Urimai Sangam Rep. by Secretary AIR 2010 SC 3266" held as follows:

The layout to an extent of 76.12 acres of land was prepared and approved with 910 plots by the town panchayat as per the Town Panchayat Building Rules. Later, Tallakulam Panchayat was merged with Madurai City Municipal Corporation during the year 1974 and the laws applicable to Madurai City Municipal Corporation were made applicable to Tallakulam Panchayat. Hence the conversion application for revalidation of the original plan was submitted to the Corporation. In that plan, 40 plots were shown as reserved for school. Thereafter, in the year 1979-80, the local planning authority of Corporation prepared a detailed development plan including the lands covered in the said layout. In the said plan, the area relating to 40 plots was demarcated and shown as residential area. As there was difference in the classification in respect of 1975 plan and 1980 plan, the local planning authority cancelled the 1975 plan with a direction that the 1980 plan alone would be valid.

47. Following the principles laid down in the above judgments, the Madras High Court in "K. Durairaj v. The Secretary (W.P. No. 34395 of 2007)" reiterated the principle that the land reserved for public purpose in the layout cannot be converted for any other purpose since such earmarking is for the benefit of the public.

48. In "HGN Samity v. Chief Secretary 2000 (1) CHN 28", a Division Bench of the Calcutta High Court stated the law thus:

"How the State Government had allotted a portion of the park in deviation of its policy decision in the name of building of Community Hall is a matter of great surprise that there are several statutes governing the field is not in dispute. A lay-out plan has to be made under the provision of the West Bengal Town and Country (Planning and Development) Act, 1979. The Calcutta Metropolitan Development Authority has issued handbook laying down the procedure and guidelines for environmental clearance. Although the same is meant for certain purposes, viz., industrial projects, the same is a pointer to show that the State had been also eager to maintain the greenery and the ecological balance. Therefore, we fail to understand as to how the State could allot the lands in question within a park which is contrary to the representation made by it to the residents particularly in view of the fact that excess premiums had been charged for those who had opted for settlement of land near the park or green verges.

It is also surprising as to how the Bidhan Nagar Municipality also sanctioned the building plan within a park. The said action, in our opinion, was not commensurate with the professed policy decision of the State and the Municipality. The aspect of the matter has recently been considered in "M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu [1999] 3 SCR 1066", wherein it has been held that the Municipality is a Public Trustee in respect of parks".

49. In view of the law declared in catena of perspective pronouncements (referred above) the site reserved for public purpose in the layout cannot be used for any other purpose and it is for the benefit of public i.e. for construction of school, temple, community hall and park etc.

50. The intention of the State is to convert the land, reserved for public purpose, into house sites for allotment to the landless poor persons, depriving the residents of the layout to enjoy the amenities like school, temple, community hall and park for their use. If such conversion is permitted, the residents of the layout will lose not only their amenities and also right to enjoy clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc., that too such conversion is impermissible under law as discussed above including the Andhra Pradesh Land Development (Layout and Sub-division) Rules, 2017, the Andhra Pradesh Panchayat Raj Act, 1994 and the Andhra Pradesh Town Planning Act, 1920. Therefore, the proposed allotment of land reserved for public purpose is totally in violation of law declared by the Apex Court, High Court of Andhra Pradesh and the law declared by the Madras High Court in various judgments (referred supra). Therefore, such conversion of land reserved for public purpose into house sites by the State depriving the residents of layout to enjoy the benefit in reservation of such plots for public use is a grave illegality and contrary to the provisions of enactments referred above.

51. Yet, there is a bar on such conversion and assignment of land under B.S.O. 15(4) of the A.P. Revenue Board Standing Orders, which deals with the lands that may be assigned and that may not be assigned, the same is extracted hereunder for better appreciation of the case:

"BSO 15(4) Lands that may be assigned and that may not be assigned:-

(i) All lands at the disposal of the Government except those hereinafter prohibited may be assigned. The assignment of lands shall generally be free of market value except in the case of project affected lands in which case market value shall be collected.

(ii) The assignment of the following classes of lands is prohibited:

(a) Poramboke tank beds, foreshore of tank bed cattle stands, grazing lands and reserved lands (reserved for depressed class members or for any public purpose, such as schools, playgrounds, hospitals, maternity centers, reading rooms and extension of house-sites, Panchayat purposes, town sites and lands in the proximity thereof)

(b) Land which has been occupied for 18 months and adjoins a reserve forest or an unreserved block of a square mile or more until the Collector has consulted the District Forest Officer and considered any objections, he may have to its assignment;

(c) Lands containing topes or valuable trees;

(d) Lands within cantonment limits;

(e) Lands reserved under Section 26 of the Forest Act;

(f) Lands within port limits;

(g) Lands near the sea coast within one furlong of high water mark of the sea;

(h) Water course porambokes, namely, margins of channels, streams etc.;

(i) Lands in the vicinity of aerodromes or landing grounds (i.e.) within a belt of 200 yards;

(j) Lands containing minerals, quarries, etc.

(k) Padugais i.e. land within the flood bank of rivers, lanka lands not held on ryotwari tenure, river accretions and reformed lands for which the owners have ceased to pay assessment;

(l) Lands where "pati matti" is available and;

(m) Any other lands which are required or likely to be required for any public or any special purposes necessary for the provision of amenities of the community or connected with the development of the village.

Provided, however, that tank bed lands, foreshore lands and lands under categories (g), (j), (k) and (m) above, if not immediately required or if their occupation be not objectionable at present, may be leased with a condition for resumption, when required for public purpose without payment of compensation for improvements, if any effected."

52. Clause (ii) of B.S.O. 15(4) made it clear that assignment of Poramboke, tank beds, foreshore of tank bed cattle stands, grazing lands and reserved lands (reserved for depressed class members or for any public purpose, such as schools, playgrounds, hospitals, maternity centers, reading rooms and extension of house-sites, Panchayat purposes, town sites and lands in the proximity thereof) is prohibited. Thus, it is a clear that the land reserved for public purpose i.e. for construction of school, community hall, part etc., cannot be assigned.

53. At the same time, as per B.S.O. 15(4) (ii) (m), any other lands which are required or likely to be required for any public or any special purposes necessary for the provision of amenities of the community or connected with the development of the village, provided, however, that tank bed lands, foreshore lands and lands under categories (g), (j), (k) and (m) above, if not immediately required or if their occupation be not objectionable at present, may be leased with a condition for resumption, when required for public purpose without payment of compensation for improvements, if any effected. Thus, from B.S.O. 15(4)(m), land which is required for the provision of amenities to the community cannot be assigned.

54. There is a difference between 'communal purpose' and 'public purpose'. If the land is meant for 'communal purpose', only particular community or group of persons can enjoy the benefit of such property. If it is meant for 'public purpose', every member of public can enjoy the benefit of such property i.e. temple, school, community hall and park etc. Therefore, reservation of site is for 'public purpose' cannot be equated with 'communal purpose'. Whether it is for 'communal purpose' or 'public purpose', the same cannot be assigned in view of the interdict contained in B.S.O. 15(4)(ii)(a) and (m) A.P. Revenue Board Standing Orders.

55. This Court in "Perala Jyotsna v. The State of Andhra Pradesh 2020 (6) ALT 429" considered the similar issue in detail, and by following the principle laid down by the Apex Court in the judgments (referred supra) reiterated that the land reserved for 'communal purpose' i.e. construction of school, temple, community hall and park cannot be utilised for any other purpose.

56. One of the contentions of learned Assistant Government Pleader for Revenue is that when the land is acquired for specific purpose, it can be utilised for any other purpose as held by the Apex Court in "Gulam Mustafa v. State of Maharashtra AIR 1977 SC 448", but such principle is not applicable to the facts of the present case for the simple reason that, the vacant site of Ac. 0.72 cents is earmarked for 'public purpose' in the layout, if it is not earmarked for 'public purpose', it can be utilised. Earmarking of site in the layout is only statutory requirement. Hence, the contention of the learned Assistant Government Pleader for Revenue is rejected.

57. In view of my foregoing discussion, proposed conversion of land, which is earmarked for communal purpose, by granting house site pattas is an illegality and contrary to the provisions of the Act and the Rules framed thereunder, the Andhra Pradesh Town Planning Act, 1920 and B.S.O. 15(4) of the A.P. Revenue Board Standing Orders. Therefore, the writ petition deserves to be allowed.

58. In the result, the writ petition is allowed declaring the action of the respondents in seeking to utilise the land of an extent of Ac. 0.72 cents in S. Nos. 385 and 380 with all subdivisions therein situated in Tatiparthi Village, Gollaprolu Mandal, East Godavari District, which is earmarked for 'community purpose' in the year 1985, for purpose of house sites under Navaratnalu-Pedalandariki Illu Scheme as illegal or arbitrary.

59. Consequently, miscellaneous applications pending if any, shall also stand dismissed.