Andhra Pradesh High Court - Amravati

Veligandla Gram Panchayat vs The State Of Andhra Pradesh on 14 September, 2022

THE HON'BLE SRI JUSTICE VENKATESWARULU NIMMAGADDA

                   WRIT PETITION NO.30935 OF 2021

ORDER:

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 NV,J WP No.30935 of 2021

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 Punjab1 and Janabai

vs. Additional Commissioner and others2

(2011) 11 SCC 396

(2018) 18 SCC 196 NV,J WP No.30935 of 2021

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 NV,J WP No.30935 of 2021

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 NV,J WP No.30935 of 2021

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:

2020 (4) ALT 250 NV,J WP No.30935 of 2021

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.

NV,J WP No.30935 of 2021

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

1972(1) SCC 521 (529) NV,J WP No.30935 of 2021

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 NV,J WP No.30935 of 2021

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