THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.14179 OF 2021
Date: 22.07.2021
ORDER
This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:-
"....to issue an appropriate writ, order or direction more particularly one in the nature of writ of mandamus, declaring the action of respondents in trying to construct Rythu Bharosa Kendram (RBK) or any other structure by de-notifying or de- classifying or allotting the burial ground being used by the Petitioners and Village people at large in Sy.No.75/4 in an extent of Ac.1.68 cents by encroaching the water body (Kalava Poramboke & Vagu Paramoboke) in Sy.Nos.75/3 and 74/3 situated in Lakshmipuram Village, Mogili Gram Panchayath, Bangarpalyam Mandal, Chittoor District for any other purpose without following due process of law as illegal and arbitrary and pass such other order..."
2. The apprehension of petitioners is that the respondents 3 and 4 herein are converting the land classified as "burial ground‟ and "kaluva poramboke‟ in Sy.Nos.75/4, 75/3 and 74/3 of Lakshmipuram Village, Mogili Gram Panchayat, Bangarpalyam Mandal, Chittoor District and trying to construct „Rythu Bharosa Kendram (RBK)" or any other structure by de-notifying or de-classifying or allotting the burial ground being used by the petitioners for the said purpose. The said Gram Panchayat appears to have been passed a resolution to protect the properties vested on the Gram Panchayat and thereafter a representation, dated 28.06.2021 was made by the villagers, but no action has been taken till date to protect the properties vested on the Gram Panchayat. The petitioners have also placed on record the adangal for the fasali 1430 relating to Sy.No.75/4 to establish that the land in an extent of Ac.1.68 cents is classified as "burial ground‟ (in columns 12 and 13) and at the same time the land in Sy.No.75/3 in an extent of Ac.0.62 cents is classified as "channel‟ (in columns 12 and 13) and Sy. No.74/3 is also classified as "kaluva poramboke‟ based on the adangals for the fasili 1430 and as per the Field Measurement Book the lands in different survey numbers referred above are classified as "burial ground‟, "channel‟ and "channel poramboke‟ of the same village.
3. The apprehension of petitioners is that the respondents are likely to convert the subject land which is classified as "burial ground‟ and trying to construct Rythu Bharosa Kendram‟ and other constructions. Whereas, learned Assistant Government Pleader for Revenue requested this Court to issue a direction to dispose of the representation submitted by the villagers.
4. It is an undisputed fact that "burial ground‟ and "kaluva poramboke‟ cannot be converted into house sites or cannot be used for the purpose of constructions of any building by the Government, since it is reserved site for community and it cannot be used for any other use as the said land is classified as "burial ground‟ and "Kaluva Poramboke‟, which is communal land and therefore the petitioners and other villagers cannot be deprived of right to use the land as "burial ground‟ and it is the duty of the Government to protect such common land and the same cannot be converted into house sites in view of the judgment of Apex Court in Jagpal Singh and others vs. State of Punjab and others1 wherein it is held in Para 3 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."
5. In pursuance of the judgment of the Apex Court the State of Andhra Pradesh issued G.O.Ms.No. 188, dt. 21-07-2011 laid down certain guidelines for Eviction of Encroachers as follows:-
(i) Where it is brought to the notice that any property of the Panchayat is under occupation of any persons the Executive authority (Panchayat Secretary) shall serve a notice to the party concerned and give a brief hearing before proceeding for eviction.
(ii) Suitable orders shall be passed by the Executive authority (Panchayat Secretary) before actual eviction takes place.
(iii) The Divisional Panchayat Officer will conduct a monthly review of these cases for protecting Gram Panchayat properties in his jurisdiction through monitoring the process of eviction. He will also give periodical reports to District Panchayat Officer, who will review the cases once in two months;
(iv) The Executive authority (Panchayat Secretary) may take necessary assistance from the police as per Section 139 of the Andhra Pradesh Panchayat Raj Act, 1994;
(v) The evicted property of the Gram Panchayat shall be protected by making fencing or by construction a compound wall depending on the value of the property and by displaying a notice board;
(vi) A permanent register on encroachment of Panchayat properties shall be maintained in all Gram Panchayats and the same will be validated in the Gram Sabha and Gram Panchayat meetings at least twice in a year;
(vii) Aggrieved parties may file representations to the Executive Authority (Panchayat Secretary) concerned by marking a copy to the Divisional Panchayat Officer;
(viii) The petitions filed by the aggrieved parties will be mentioned and disposed of by the Divisional Panchayat Officer/District Panchayat Officer.
6. Instead of following these guidelines in G.O.Ms.No.188, dt. 21-07-2011, the respondents are trying to deprive the petitioners from enjoying the right in common property for the benefit of villagers, as „burial ground‟, which is impermissible in view of the law declared in the judgment of Apex Court in Jagpal Singh's case (referred (1) supra).
7. According to Section 55 of the Panchayat Raj, communal property is also deemed to have been vested in the panchayat and the income derived there from can be utilized by the gram panchayat for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description or of lands under a particular source of irrigation, shall vest in the gram panchayat and be administered by it for the benefit of the villagers or holders.
8. Section 58 of the Panchayat Raj Act is a special provision to divest the tanks, roads, etc, specified in Sections 53, 54, 55 & 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 by following B.S.O 15(2), the same cannot be assigned to the landless poor for house sites or otherwise. Thus, unless there is a notification by the Government divesting gram panchayat and vesting in Government any property referred above, there cannot be any use of panchayat land for any other purpose. (vide Rythu Seva Sangam, Yenamadurru v. Bhimavaram Municipality4 and Banne Gandhi and others v. District Collector).
9. A similar issue like distribution of gramakantam land which is community land to the landless poor came up for consideration in Sarpanch Palakda Gram Panchayat v. District Collector, where the High Court of Andhra Pradesh held that distribution or assignment of „gramakantam‟ which is community land to anyone by Government without issuing any notification, divesting such land from Panchayat is illegal.
10. However, the question of facts need not be gone into and suffice it to issue a direction to the 2nd respondent to dispose of the representation, dated 28.06.2021 submitted by the petitioners and other villagers in accordance with law keeping in view of the judgments referred above, G.O.Ms.No.188, dt.21-07-2011 and BSO 15(2) within two (02) weeks from today. Meanwhile, both parties are directed to maintain status quo as on date. 2012 (5) ALT 631 2007 (2) ALT 550 1997 (2) ALT 486
11. With the above direction, this Writ Petition is disposed of. There shall be no order as to costs.
As a sequel miscellaneous application, pending, if any, shall also stand closed.
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JUSTICE M. SATYANARAYANA MURTHY
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