1. This Writ Petition is filed under Article 226 of the Constitution of India seeking the following relief:

               “…to issue a Writ Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents in constructing grave yard in between the Petitioners agricultural lands in Sy. No.96/aa, Sy. No.112/aa, Sy. No.137, Sy. No.167/2, Sy. No.175/2, Sy. No.240/aa, Sy. No.262/3, Sy. No.89/3, Sy. No.89/5, Sy. No.92/e, Sy. No.95/a, Sy. No.95/aa, Sy. No.95/e, Sy No.92/aa, Sy. No.173/1, Sy. No.173/2 and Sy. No.173/3, situated at Mudigunta Village, Jaipur Mandal and Mancherial District is illegal, arbitrary and against to the Principles of Natural Justice and direct the Respondents not to construct the grave yard in between the Petitioners agricultural lands and also direct the Respondents to construct the grave yard in the Government land in allotted by the District Collector Mancherial in Sy. No.124 of Mudigunta Village, Jaipur Mandal and Mancherial District….”

2. Heard Sri P. Giri Krishna, learned counsel for the petitioners; Sri L. Ravinder, learned Assistant Government Pleader for Revenue appearing for respondent Nos.1 to 4; Sri S. Rohit Reddy, learned counsel representing Sri K. Pradeep Reddy, learned Standing Counsel for the Gram Panchayat, for respondent No.5; and Sri K.V. Bhanu Prasad, learned Senior Counsel, for respondent No.6.

FACTUAL BACKGROUND

3. The petitioners state that they are the owners and possessors of agricultural lands in various survey numbers of Mudigunta Village, Jaipur Mandal, Mancherial District, including an extent of Ac.0.06 guntas in Sy.No.96/aa. This writ petition concerns the proposed construction of a “Vaikunta Dhamam” (crematorium) in Sy.No.96 of the village.

4. It is not in dispute that, under the Government’s flagship programme called ‘Palle Pragathi’, a proposal was made to construct a graveyard in Mudigunta Village under the scheme of MGNREGS. The District Collector, respondent No.2, directed the Tahsildar, respondent No.4, to identify Government land in the village for this purpose.

5. According to the Gram Panchayat, respondent No.5, an extent of Ac.0.20 guntas in Sy.No.94, which is a Government land, was first handed over to it for construction of a crematorium and dumping yard by a possession certificate (Jimma Patrika) dated 10.03.2020. The Gram Panchayat passed a resolution dated 18.05.2020 and started the construction. While it was in progress, one Marri Mallesh filed W.P.No.7845 of 2020, in which this Court passed an interim order of status quo on 15.06.2020. The construction in Sy.No.94 was stalled from then on.

6. The Tahsildar then identified land in Sy.No.124 and, on the orders of the District Collector, handed over an extent of Ac.0.09 guntas to the Gram Panchayat by a Jimma Patrika dated 10.09.2020. Respondent No.6, who was the Sarpanch at the relevant time, owns land in the adjoining Sy.No.125, in which a paddy crop was standing. When the officials of the Revenue, Mandal Parishad Development and Panchayat Raj departments went to earmark the land in Sy.No.124, respondent No.6 raised a boundary dispute between Sy.Nos.124 and 125, and the demarcation could not be done. The petitioners allege that respondent No.6 had also encroached into a part of Sy.No.124, and that she assaulted the officials, including the Tahsildar, who lodged a complaint at Jaipur Police Station. A crime was registered as FIR No.186 of 2020, dated 10.09.2020, for the offences punishable under Sections 447, 188 and 506 read with Section 34 of the Indian Penal Code. Respondent Nos.5 and 6 state that the land in Sy.No.124 consists of loose soil, is wet land covered with water, and had a paddy crop standing on it, and therefore it is not suitable for a graveyard.

7. The Revenue authorities then identified Ac.0.20 guntas in Sy.No.98/4 and handed it over to the Gram Panchayat by a Jimma Patrika dated 18.09.2020. When the construction was in progress, Smt. Kande Bhagyalaxmi, who claims the land as her own, filed W.P.No.17234 of 2020. This Court granted interim orders directing the official respondents not to interfere with her possession and not to make any construction in Sy.No.98/4. The said writ petition is still pending and the interim orders continue. The Gram Panchayat filed a counter affidavit and a petition to vacate the stay in the said writ petition.

8. Since the construction was stalled at both places and no other land was available, respondent No.6 purchased Ac.0.12 guntas in Sy.No.96/A by a registered sale deed dated 16.02.2021, and gifted Ac.0.06 guntas out of it to the Gram Panchayat for construction of a crematorium. The Panchayat Raj Engineering officials earmarked that land, and the construction was commenced. The structures had reached the slab level when the petitioners approached this Court.

9. The petitioners state that the land identified in Sy.No.96 lies in the midst of their agricultural lands and is surrounded by them; that there was no resolution of the Gram Panchayat for construction of a graveyard at that place; and that a ‘Pochamma Temple’ exists very close to their lands. They submitted a representation dated 01.02.2021 to respondent No.2 requesting that the graveyard not be constructed in or adjacent to their lands. According to them, on 18.02.2021 respondent Nos.4 and 5 entered their lands and tried to clear the paddy lying in the fields to facilitate the construction, and they resisted. Having no other remedy, they filed this writ petition.

10. On 26.02.2021, this Court passed the following interim order:

               “This writ petition is filed alleging that contrary to orders of Girdavar, allotting land to an extent of Ac.0.09 guntas in Survey No. 124, Mudigunta village, respondents 5 and 6 are constructing grave yard in land in between petitioners land in Survey Nos.96/aa, 122/aa, 137, 167/2, 175/2, 240/aa, 262/3, 89/3, 89/5, 92/e, 95/a, 95/aa, 95/e, 92/aa, 173/1, 173/2 and 173/3, Mudigunta village, Jaipur mandal, Manherial District is illegal.

               Learned standing counsel for 5th respondent submitted that Sarpanch of the village is constructing the grave yard on land purchased by him, for the benefit of the villagers.

               The Sarpanch may be very generous but, the question is grave yard is meant for the people of the village and place chosen for the grave yard has to be convenient for all the villagers and not for the convenience or choice of a person including Sarpanch. It is also not clear as to how a decision was taken to change the location of the grave yard from the land earmarked for that purpose and has been handed over to the Gram panchayat.

               Learned standing counsel tried to refer to the directions issued by this Court in W.P No.17234 of 2020 to justify the stand of the respondent Gram panchayat to construct the grave yard, as proposed by the Sarpanch.

               From the perusal of the prayer in the writ petition and orders passed by this Court, it is apparent that the issue concerns the land in survey no.98/4 which petitioner therein claimed as her private land and grave yard cannot be constructed. It is not clear how Survey No.98/4 is concerned when land allotted for construction of grave yard by the Girdavar was in Survey No.124. These issues require clarification from the Panchayat Secretary by assisting the Court and not representing any individual of the Gram Panchayat. The Tahsildar - 4th respondent is also directed to conduct physical inspection and verify the respective claims of the parties and look into the earlier issue of earmarking the land to an extent of Ac.0.09 guntas in Survey No.124 and submit a report to this Court by the next date of hearing.

               List on 10.3.2021. Meanwhile, there shall not be any construction activity of grave yard in any place other than Survey No.124, Mudigunta village, Jaipur Mandal, Mancherial District”.

11. Respondent No.5 filed a counter affidavit stating that the construction of a crematorium with a segregation shed and other development works is being undertaken under the ‘Palle Pragathi’ programme on Government lands and on other lands vested in the Gram Panchayat. It narrated the steps taken in Sy.Nos.94, 98/4 and 124 and the gift of land in Sy.No.96 by respondent No.6, as stated above. It also stated that petitioner No.1 and respondent No.6 had contested for the post of Sarpanch, that there is political rivalry between them, and that this is the reason for the present litigation.

12. Respondent No.6 filed a separate counter affidavit, substantially on the same lines. She added that there is no graveyard in the village; that the land allotted in Sy.No.124 is wet land covered with water and, because of its loose soil, is not suitable for a graveyard; that the construction in Sy.No.96 is strictly within the land gifted by her and does not infringe any right of the petitioners or encroach on their land; that the construction is about to be completed but has been stalled by the order dated 26.02.2021; that the Gram Panchayat has incurred a loss of about Rs.6.00 lakhs because of the litigation in the lands allotted by the Revenue authorities; and that the writ petition is filed with a malafide intention because of political rivalry.

13. Pursuant to the order dated 26.02.2021, the Tahsildar submitted a report by a letter dated 28.05.2022, Rc.No.B/87/2021, stating that the construction of the graveyard has been taken up in Sy.No.96 in the land gifted by respondent No.6.

14. The petitioners filed a reply stating that the Tahsildar’s report supports the construction in Sy.No.96, but it was prepared under pressure exerted by respondent No.6. According to them, the Tahsildar did not conduct any physical inspection and did not verify the claims of the parties. They further state that, after the interim orders of this Court, respondent No.6 created an unregistered gift deed dated 23.02.2021 in a hurried manner, which was actually prepared on 06.03.2021, only to defeat the case of the petitioners. Along with the reply, the petitioners filed plans showing the particulars of Sy.No.124 and other survey numbers, including Sy.No.96, where the construction was commenced.

SUBMISSIONS ON BEHALF OF THE PETITIONERS

15. Sri P. Giri Krishna, learned counsel for the petitioners, submitted that Sy.No.96 has no access for the villagers and no road exists to it, yet respondent No.6 went ahead with the construction of a crematorium without any sanction or resolution of the Gram Panchayat and without approval of the competent Panchayat Raj officials. He submitted that the District Collector had allotted the land in Sy.No.124, but respondent No.6, with an intention to grab that land, resisted the officials from earmarking it, and that a complaint was lodged against her at Jaipur Police Station, which shows her malafide conduct.

16. He further submitted that the Government land in Sy.No.124 has road access to all the villagers and is suitable for a graveyard, whereas the proposed construction in Sy.No.96 is surrounded by agricultural lands and has no proper access. If the construction is permitted in Sy.No.96, the petitioners and the other owners of agricultural lands in the surrounding area would suffer severe hardship and irreparable loss, since they would be forced to give up their lands to provide access to the villagers.

SUBMISSIONS ON BEHALF OF RESPONDENT No.5

17. Learned Standing Counsel for the Gram Panchayat submitted that the construction of the graveyard has been stalled because of the orders passed by this Court in various writ petitions, though the work was undertaken by the Government under the flagship programme ‘Palle Pragathi’. He submitted that, although the Tahsildar handed over Ac.0.09 guntas in Sy.No.124, respondent No.6, who owns the adjacent land in Sy.No.125, raised a boundary dispute, and therefore the land could not be demarcated by the authorities. Respondent No.6 then purchased Ac.0.12 guntas in Sy.No.96 on her own and donated Ac.0.06 guntas of it to the Gram Panchayat for the graveyard. He also pointed out that there is political rivalry between the petitioners and respondent No.6, who had contested for the post of Sarpanch in the previous elections, and that respondent No.6 won that election. Considering the urgency of constructing the graveyard, he prayed for appropriate orders.

SUBMISSIONS ON BEHALF OF RESPONDENT No.6

18. Sri K.V. Bhanu Prasad, learned Senior Counsel, submitted that the land in Sy.No.124, which was handed over by the Tahsildar, is not suitable for a graveyard as it consists of loose soil. He submitted that, in view of the disputes raised by several persons in respect of Sy.Nos.94 and 98, this Court had granted interim orders restraining the authorities from proceeding with construction in those survey numbers. As the Sarpanch of the Gram Panchayat, respondent No.6 was duty bound to make arrangements for a graveyard and dumping yard, and therefore she purchased Ac.0.12 guntas in Sy.No.96, of which Ac.0.06 guntas was donated to the Gram Panchayat for construction of a crematorium.

19. Learned Senior Counsel drew the attention of this Court to Sections 52 and 81 of the Telangana Panchayat Raj Act, 2018, and submitted that it is the bounden duty of the Gram Panchayat to construct a graveyard. He further submitted that, because of the interim orders passed by this Court in various writ petitions, including the present one, the villagers have been left without a graveyard, which is an essential facility for the residents of the village. He also submitted that Sy.No.96 has access from the existing road and is suitable for construction of the graveyard, and prayed for dismissal of the writ petition.

POINTS FOR CONSIDERATION

20. Having regard to the pleadings and the submissions made by the learned counsel, the following points arise for consideration:

               (i) Whether Sy.No.124, which was allotted by the District Collector for the graveyard, could be given up in favour of Sy.No.96 without a decision of the competent authority?

               (ii) Whether Sy.No.96 has proper access for the villagers and is otherwise suitable for the crematorium, without causing hardship to the petitioners and the owners of the surrounding lands?

               (iii) Whether this Court can itself fix the site for the crematorium in these proceedings, and what order should be passed?

ANALYSIS AND FINDINGS

21. The need for a graveyard in Mudigunta Village is not in dispute. Respondent Nos.5 and 6 say that the village has none, and the petitioners too do not oppose it. They only want it to be constructed in Sy.No.124, which is Government land allotted for that purpose. The real dispute is therefore about the site.

22. A proper place for cremation and burial is not a mere civic amenity. In Pt. Parmanand Katara v. Union of India ((1995) 3 SCC 248), the Hon’ble Supreme Court held as follows:

               “We agree with the petitioner that right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death.” (para 3)

23. The villagers are therefore entitled to have a proper and accessible place for the last rites of their dead, and the dispute has to be resolved without avoidable delay. Respondent No.6 has relied on Sections 52 and 81 of the Telangana Panchayat Raj Act, 2018, to submit that it is the duty of the Gram Panchayat to provide a graveyard. That duty, however, has to be discharged on land that is lawfully available to the Gram Panchayat, through a proper process, and without infringing the rights of private landowners.

Point (i): Allotment of Sy.No.124 and the change of site

24. It is not disputed that, on the directions of the District Collector, an extent of Ac.0.09 guntas in Sy.No.124, which is Government land, was handed over to the Gram Panchayat for the graveyard on 10.09.2020. There is nothing on record to show that this allotment was ever cancelled or modified by the District Collector. The Gram Panchayat did not proceed there for two reasons: the boundary dispute raised by respondent No.6, and the alleged unsuitability of the land because of loose soil and water.

25. As to the boundary dispute, it was raised by respondent No.6 herself, who was then the Sarpanch and is the owner of the adjoining land in Sy.No.125. A boundary dispute between adjoining owners is to be settled by survey and demarcation by the Revenue authorities. It cannot be a ground to give up Government land that has already been handed over to the Gram Panchayat, particularly when the dispute was raised by the head of the Gram Panchayat herself. This Court does not go into the correctness of her claim, or into the allegations of encroachment and assault, which are the subject matter of separate proceedings.

26. As to the soil and water, this is asserted in the counter affidavits and denied by the petitioners. No report of any engineer or other technical officer has been placed on record. The report of the Tahsildar dated 28.05.2022, as noted above, only states that the construction has been taken up in Sy.No.96 in the land gifted by respondent No.6. It does not show that Sy.No.124 was inspected or why it was found unsuitable, though this Court, by order dated 26.02.2021, had directed the Tahsildar to conduct a physical inspection, verify the claims of the parties and look into the earmarking of Ac.0.09 guntas in Sy.No.124.

27. The proposal to shift the site to Sy.No.96 came only after the attempts in Sy.Nos.94, 98/4 and 124 failed. The land in Sy.No.96 is a private land purchased by the then Sarpanch, and a part of it has been gifted by her to the Gram Panchayat. The petitioners say that this is done to harass them, and respondent Nos.5 and 6 say that the petition is motivated by political rivalry. Both sides plead political rivalry, and this Court does not record any finding on malafides. But, whatever the intention, a change of site from Government land allotted by the District Collector to private land offered by the head of the Gram Panchayat herself needs to be tested independently by the competent authority. The doubt noted in the order dated 26.02.2021, as to how the decision to change the location was taken, has not been answered. Respondent Nos.5 and 6 have also not shown any resolution of the Gram Panchayat, or approval of the competent authority, for construction in Sy.No.96.

28. Accordingly, it is held on Point (i) that the allotment of Sy.No.124 has not been cancelled; that the Gram Panchayat or its Sarpanch could not shift the site on their own; and that the change of site to Sy.No.96 has not been approved by the competent authority after due enquiry. At the same time, the suitability of Sy.No.124 has also not been established on the present record, and therefore the petitioners’ plea for a direction to construct the graveyard only in Sy.No.124 cannot be accepted as such. Point (ii): Access to and suitability of Sy.No.96

29. The petitioners contend that Sy.No.96 lies in the midst of agricultural lands and has no access for the villagers, and that, if the graveyard is built there, they and the other landowners will be forced to give up their lands to provide an approach. Respondent No.6 contends that Sy.No.96 has access from the existing road. The petitioners have filed plans with their reply, but there is no inspection report on record, prepared on physical verification, which deals with the approach to Sy.No.96. The report of the Tahsildar does not address the question of access at all.

30. Access is an essential requirement for a graveyard. The villagers, including funeral processions, must be able to reach it at all times by a road or path which they can lawfully use. An approach that can be had only by crossing private agricultural fields, without any right to do so, is not an adequate approach. The petitioners and the other owners cannot be made to give up any part of their lands for this purpose, except by authority of law, as Article 300A of the Constitution of India provides that no person shall be deprived of his property save by authority of law.

31. Another aspect is the title of the Gram Panchayat. Respondent No.6 says that she purchased Ac.0.12 guntas by a registered sale deed and gifted Ac.0.06 guntas out of it to the Gram Panchayat. The petitioners say that the gift deed is unregistered, that it is dated 23.02.2021, and that it was actually prepared on 06.03.2021 after the interim orders of this Court. Under Section 123 of the Transfer of Property Act, 1882, a gift of immovable property can be made only by a registered instrument. This Court makes no finding on the gift deed. But before a public structure is built on private land, the competent authority has to be satisfied that the Gram Panchayat has lawful title to, and possession of, that land under a valid instrument as required by law.

32. Accordingly, it is held on Point (ii) that, on the present record, it cannot be said that Sy.No.96 has proper access or is suitable for the crematorium, and it cannot be said either that the hardship pleaded by the petitioners is established. These are questions of fact which need a proper ground survey. The construction in Sy.No.96 cannot be allowed to go on and be completed on the basis of claims which are disputed and which have not been verified.

Point (iii): Fixing the site and the order to be passed

33. The petitioners ask for a declaration that the construction in Sy.No.96 is illegal and for a direction to construct the graveyard in Sy.No.124. Whether a site is suitable depends on facts on the ground, such as the nature of the soil, water logging, the approach road, the surrounding lands, and the ownership and possession of the land. These cannot be decided on conflicting affidavits and plans in a writ petition under Article 226 of the Constitution of India, and it is not for this Court to select the site for a graveyard.

34. Further, none of the parties has a legal right to insist on a particular site. The petitioners cannot insist on Sy.No.124 only because it was allotted by the District Collector; their legitimate interest is that their private lands are not taken or burdened without authority of law. Respondent No.6 also cannot insist on Sy.No.96 because she has purchased and gifted it. As already observed in the order dated 26.02.2021, a graveyard is meant for the people of the village, and the place chosen has to be convenient for all the villagers and not for the convenience or choice of any person, including the Sarpanch.

35. The District Collector, who allotted Sy.No.124 and directed the Tahsildar to identify the land, is the proper authority to decide this question. He has the Revenue and survey machinery at his disposal. He can conduct a ground survey after notice to all the affected parties, and decide, with reasons, which place is suitable. He can consider, among other things, whether Sy.No.124 can be used after proper demarcation; the nature of the soil and water conditions; the approach for the villagers; the effect on the surrounding agricultural lands; the title and possession of the Gram Panchayat, if private land is to be used; and the requirement of a resolution of the Gram Panchayat and approval of the competent Panchayat Raj officials.

36. The villagers have been without a graveyard for a long time, and the Gram Panchayat has suffered loss due to the stalled work. The enquiry therefore has to be completed within a fixed time. Accordingly, it is held on Point (iii) that the proper course is to direct the District Collector to conduct the enquiry and pass a reasoned order, rather than to grant either of the reliefs sought in the writ petition.

CONCLUSION

37. For the foregoing reasons, this Court concludes that the need for a graveyard in the village is undisputed, and that the dispute is only about the site. The allotment of Sy.No.124 by the District Collector has not been cancelled, but its suitability has not been established, and the Gram Panchayat could not shift the site to Sy.No.96 on its own. The access to, suitability of, and title to the land in Sy.No.96 are also not established on the present record. The disputed questions of fact cannot be decided in this writ petition, and neither the declaration nor the direction sought by the petitioners can be granted as prayed. The just course is to direct the District Collector to conduct an enquiry after notice to all the affected parties and to identify a suitable site by a reasoned order, within a fixed time.

RESULT

38. Accordingly, this writ petition is disposed of with the following directions:

               (i) Respondent No.2 - District Collector shall conduct an enquiry into the subject matter by undertaking a ground survey, and identify a suitable place in the village for construction of the crematorium, taking into consideration the matters mentioned in this order, including whether Sy.No.124 can be used after proper demarcation.

               (ii) Respondent No.2 shall issue notice to all the affected parties, including the petitioners, the Gram Panchayat (respondent No.5) and respondent No.6, before conducting the enquiry, and shall give them an opportunity of being heard. He may also ascertain the views of the villagers through the Gram Panchayat.

               (iii) Respondent No.2 shall complete the above exercise and pass a reasoned order within a period of four (04) months from the date of receipt of a copy of this order, and shall communicate the order to all the parties.

               (iv) After such an order is passed, the Gram Panchayat shall be permitted to proceed with the construction of the crematorium at the place identified by respondent No.2, in accordance with law.

               (v) Till respondent No.2 passes the order, no further construction of the crematorium shall be made in Sy.No.96, and no construction shall be made in or over the lands of the petitioners. Nothing in this order shall be construed as permitting any construction in violation of the interim orders of this Court in W.P.No.7845 of 2020 and W.P.No.17234 of 2020.

               (vi) The observations in this order are made only for the purpose of disposing of this writ petition. All rights and contentions of the parties, including those relating to title to the land in Sy.No.96, the validity of the gift deed, and FIR No.186 of 2020, are left open. Any person aggrieved by the order of respondent No.2 may avail the remedies available in law.

               (vii) There shall be no order as to costs.

39. As a sequel, the miscellaneous petitions pending, if any, shall stand closed.