This writ petition is filed under Article 226 of the Constitution of India, claiming the following relief:
"To issue writ of mandamus declaring:
(a) That the respondents 2 to 9 failed in their statutory duty to protect the petitioner's land in an area of about Ac.0-50 cts in Sy.No.344 of Veligandla Gram Panchayat (V&M), Prakasam District from encroachments;
(b) That the respondents 8 & 9 are acting prejudicial to the interest of the petitioner Gram Panchayat and in contravention of the petitioner's decisions viz; Gram Panchayat's Resolution No.6 dated 29.11.2021 and 02.08.2021 as illegal, arbitrary, violative of principles of natural justice, violative of Article 14 of the Constitution and ultravires to the provisions of A.P. Panchayat Raj Act,
(c) Consequently to direct Respondent Nos. 2 to 4 to initiate disciplinary action against respondents 8 & 9 for creating and fabricating false documents supporting the clandestine claims of respondents 10 to 13 in respect of petitioner's land in Sy.No.344."
Learned counsel for the petitioner submits that, the petitioner is a Gram Panchayat, represented by its elected ward members and duly elected Sarpanch. As per the revenue record, land admeasuring Ac.4-52 cents in Sy.No.344 of Veligandla Gram Panchayat is classified as 'Gramakantam' and it is situated in the prime locality of the village. Most of the land is filled with permanent structures like dwelling houses. Further, land admeasuring Ac.0-50 cents in Sy.No.344 is vacant and it has been used for community purposes. Out of that, an extent of Ac.0-15 cents is used as stock point for construction material (previously used for storing farm harvest). The said land and remaining portion has been in utilization for parking of vehicles, carts and also as RTC bus stop in the village. Since the vacant land admeasuring Ac.0-50 cents in Sy.No.344 is vested with the Gram Panchayat, it is the absolute title holder and vested control over the said land. Accordingly, the petitioner - Gram Panchayat passed Resolution on 02.08.2021 proposing to construct BC,SC Hostel and Library. It is submitted that, contrary to the resolution dated 02.08.2021, Respondent Nos. 8 & 9 herein acted against the interests of the Gram Panchayat and fabricated the documents to support the clandestine claims of Respondent Nos. 10 to 13 who are busy bodies and not even the residents of the village. Learned counsel further submits that, since the land is gramakantam land, it is vested with the Gram Panchayat and Respondent No.8 has no authority or power to issue any certificates, more particularly possession certificates in favour of the unofficial respondents, which is illegal and out of jurisdiction of Respondent No.8 and in support of his contentions, learned counsel placed reliance on the judgments of the Hon'ble Apex Court in Jagpal Singh and others vs. State of Punjab and Janabai vs. Additional Commissioner and others. Deprived of the said violations, the petitioner submitted a representations dated 30.11.2021 and 04.12.2021 to Respondent Nos. 2 to 7. But, even after receipt of the said representations, the concerned authorities have not acted upon so far. Hence, having no other option, the petitioner preferred the present writ petition.
Whereas, Secretary, Veligandla Gram Panchayat filed counter affidavit on behalf of Respondent Nos. 7 & 9, denying material allegations, specifically stating that the claim of the petitioner i.e. land admeasuring Ac.0-50 cents in Sy.No.344 is vacant is false and baseless. It is submitted that, said land is classified as 'Gramakantam' and as per the field verification on ground, it is physically in possession of the official respondents as well as the public offices which are catering the needs of the villagers. Physical possession of the land is categorized as follows:
1 Old Grama Chavidi Ac.0-04 cents
4 Agricultural godown Ac.0-03 cents
6 Peerla Chavidi Ac.0.15 cents
7 Bulk milk centre Ac.0.05 cents
8 Vacant site Ac.0.05 cents
9 Remaining land used for Ac.0.97 cents
roads
It is further submitted that, without verifying the actual physical features of the land, the petitioner along with other members passed resolution that land admeasuring Ac.0-05 cents in Sy.No.344 is vacant and it can be utilized for construction of BC & ST Welfare Hostel, Bus Shelter, Public Library in the village, which is far away from the truth and physical verification of the land. Therefore, it is the statutory duty of the respondents, more particularly Respondent No.8 to protect the vacant land of the Gram Panchayat to make use of the same for community purpose/public purpose of the villagers.
The unofficial respondents i.e. Respondent Nos. 10, 11 & 13 filed counter affidavit along with vacate stay petition, wherein, they pleaded that they were issued possession certificates in respect of the land admeasuring Ac.0-02 cents each in Sy.No.344, which they are in possession since 30 years. After issuance of the said possession certificates by Respondent No.8, the unofficial respondents got constructed residential houses as per the housing scheme formulated by the Government. Since then they have been in possession and enjoyment of the respective house properties. If the petitioner as well as official respondents are intending to evict them, they must follow due process of law under the provisions of Andhra Pradesh Panchayat Raj Act, 1994 (for short 'the Act') and also observe principles of natural justice. It is contended that, the present writ petition is filed by the newly elected sarpanch of the Gram Panchayat out of political vengeance only. Reliance is placed on judgment of this Court in Bayya Mahadeva Sastry and others v. State of Andhra Pradesh3 and sought for dismissal of the writ petition.
A bare perusal of the documents filed by the petitioner as well as respondents and also considering the contentions of the learned counsel for the petitioner and learned Standing Counsel for Gram Panchayat, this Court is of the view that, the writ petition filed, on the face of it, is misconceived, for the reason that, the petitioner itself is a competent authority to enforce the statutory duties, power and functions cast upon it, as well as, it is empowered to implement the resolution(s) in accordance with law. The fact remains that, Section 98 of the Act, empowers the Executive Authority to remove or alter any projection, encroachment or obstruction, in or over any public road vested in such Gram Panchayat, by issuing notice. Similarly, according to Section 55 of the Act, communal property administered for the benefit of the villagers shall vests in the Gram Panchayat.
Section 2(12) of the Act defined 'executive authority' means the Panchayat Secretary appointed to each Gram Panchayat. The functions of the 'Executive Authority' are enumerated in Sections 31 and 32 of the Act as follows:
31. Functions of Executive Authority. -
(1) The Panchayat Secretary, with the approval of, or on the direction of the Sarpanch, convene the meetings of the Gram Panchayat so that at least one meeting of the Gram Panchayat is held every month and if he fails to discharge that duty, with the result that no meeting of the Gram Panchayat is held within a period of ninety days from the last meeting he shall be liable to disciplinary action under the relevant rules:
Provided that where the Sarpanch fails to give his approval for convening the meeting so as to hold a meeting within the period of ninety days aforesaid, the Panchayat Secretary shall himself convene the meeting in the manner prescribed.
(2) The Executive Authority shall ordinarily attend to the meetings of the Gram Panchayat or of any committee thereof and shall be entitled to take part in the discussions thereat, but he shall not be entitled to vote or to move any resolution.
32. Functions of the Executive Authority. - The Executive Authority shall -
(a) be responsible for implementing the resolutions of the Gram Panchayat and of the Committee thereof: Provided that where the Executive Authority considers that a resolution has not been legally passed or is in excess of the powers conferred by this Act or that if carried out, it is likely to endanger human life or health or the public safety, the Executive Authority shall:
(i) where he is the Sarpanch directly;
(ii) where he is not the Sarpanch, through the Sarpanch, refer the matter to the Commissioner for orders, and his decision shall be final;
(b) control all the officers and servants of the Gram Panchayat;
(c) exercise all the powers and perform all the functions specifically conferred or imposed on the Executive Authority by or under this Act and subject to all restrictions and conditions imposed by or under this Act, exercise the executive power for the purpose of carrying out the provisions of this Act and be directly responsible for the due fulfilment of the purpose thereof.
In view of Sections 31 & 32 of the Act, it is the duty of Respondent No.9 - Secretary, Veligandla Gram Panchayat to implement the resolutions of the Gram Panchayat. If, the resolutions of the Gram Panchayat is against the public interest or health hazardous, the same shall be brought to the notice of the Commissioner for appropriate action.
In Jagpal Singh & Others v. State of Punjab & Others (referred supra), at paragraph No.4, the Apex Court held as follows:
"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. Paladuge Anjayya4, this Court observed :
"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 the 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 landholder. Hence those rights cannot be said to have been abrogated by Section 3) of the Estates Abolition Act."
In view of the principle laid down by the Supreme Court in the judgment referred above, particular piece of land is earmarked for public or communal purpose, it shall not be alienated even after change of classification of the land. The Apex Court concluded that when once the land was reserved for common purpose and earmarked that land, cannot be assigned, depriving the villagers at large by whatever method or mode by any authorities, more particularly by Respondent No.8, who is not the competent authority to deal with the property.
In Janabai vs. Additional Commissioner and others (referred supra), the Hon'ble Apex Court held as follows:
"Section 53 that occurs in Chapter III deals with obstruction and encroachment upon public streets and upon sites. It confers power on the Panchayat to remove such obstruction or encroachment or to remove any unauthorizedly cultivated grazing land or any other land. That apart, it also empowers the Panchayat to remove any unauthorized obstruction or encroachment of the like nature in or upon a site not being private property. The distinction has been made between private property and public property. It has also protected the property that vests with the Panchayat. If the Panchayat does not carry out its responsibility of removing the obstruction or encroachment after it has been brought to its notice in accordance with the procedure prescribed therein, the higher authorities, namely, the Collector and the Commissioner, have been conferred with the power to cause removal. There is a provision for imposition of fine for commission of offence."
In the case on hand, it appears that there are disputes between the Elected Body and Executive Authority - Gram Panchayat. As long as the resolution passed by the Gram Panchayat is not against the public at large and their interests, the Executive Authority i.e. Respondent No.9 has no other option, except to implement the same. Therefore, Respondent No.9 is directed to implement the Resolutions of the Gram Panchayat dated 29.11.2021 and 02.08.2021, as far as it can be implemented in respect of the vacant site by removing temporary encroachments, if any found after conducting detailed survey and inspection.
In the result, writ petition is allowed, directing Respondent No.9 to implement the Resolutions of the Gram Panchayat dated 29.11.2021 and 02.08.2021, as far as it can be implemented by removing encroachments in respect of the subject land by removing temporary encroachments, if any found after conducting detailed survey and inspection. It is needless for this Court to say that, Respondent No.9 shall conduct survey and inspection with the help of Village Revenue Officer and Respondent No.8 and take appropriate action for removal of encroachments in pursuance of the Resolutions of the Gram Panchayat dated 29.11.2021 and 02.08.2021. No costs.
Consequently, miscellaneous applications pending if any, shall stand closed.
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