Allowed

Ananthapalli Satya Venkata Kameswara Rao, v. . The State of Andhra Pradesh

Andhra Pradesh HC19 Feb 2020WP/1631/2020

Case brief

AI extract

What is this about?

The court declared illegal the Revenue Department's attempt to allot hallland classified as Gramakantam and drainage to landless poor for house sites without gazette notification divesting the lands from the Gram Panchayat, violating vested rights and the Panchayat Raj Act.

What did the court decide?

Writ petition allowed. The respondents are directed not to assign the disputed lands in Sy.No.914-1 and Sy.No.942 without following the statutory procedure of divestment notification.

Ananthapalli Satya Venkata Kameswara Rao, Vs . The… — Land Acquisition | Andhra Pradesh HC (2020)

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION NO.1631 of 2020

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ORDER :

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This writ petition is filed under Article 226 of the Constitution of India questioning the action of the respondents in taking steps to assign/allot house site pattas in Gramakantam, Poramboke lands in Sy.No.914-1 to an extent of Ac.2.27 cents and in Sy.No.942 to an extent of Ac.2.09 cents situated at Ramannapalem Village, Mogalthuru Revenue Village, Mogalthuru Mandal, West Godavari District and to declare the same as illegal, arbitrary and violative of Article 14, 21, 19 (1) (g) and 300-A of the Constitution of India and contrary to the Andhra Pradesh Board of Revenue Standing Orders, consequently declare that the proposed action of the revenue authorities to issue house site pattas, assigning Gramakantam and Poramboke lands especially in Sy.No.914-1 to an extent of Ac.2.27 cents and in Syi.No.942 to an extent of Ac.2.09 cents of Rammannapalem Village, Mogalthuru Mandal, West Godavari District is illegal and arbitrary.

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The petitioners are the small farmers having properties in various survey numbers in Ramannapalem, Mogalthuru Revenue Village and Mandal, West Godavari District. They have been in possession and enjoyment of the said land, eking out their livelihood by cultivating their land without there being any interference or hindrance from anyone. The names of the petitioners were also mutated in the revenue records and the authorities issued pattadar passbooks and title deeds to the land in their possession.

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There is a Gramakantam, Poramboke and water course poramboke lands in Sy.No.914-1 to an extent of Ac.2.27 cents and in Sy.No.942 to an extent of Ac.2.09 cents situated at Ramannapalem

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Village, Mogalthuru Revenue Village, Mogalthuru Mandal, West Godavari District and it is the only access to the land of the petitioners. There is an irrigation canal abutting the said survey numbers. The said irrigation canal flows from west to east and serving the needs of petitioners and other ryoths for irrigating respective lands. It is pertinent to mention that nearly 300 small farmers including the petitioners are using the said Gramakantam and Poramboke lands as thrashing floor at the time of harvesting paddy from time immemorial. Except the said land, the petitioners have no other thrashing floor for harvesting paddy. After harvesting season, the petitioners are using the said land as cattle stand and the said land is only access to their lands for taking the agricultural implements transport etc. to the land or paddy from their land.

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While the matter stood thus, the Revenue authorities visited the said land on 09.01.2020, took measurements by conducting survey. When the petitioners approached the authorities, they informed that they are going to assign the Gramakantam, Poramboke, Water Course Poramboke lands for providing House sites under “Navaratnalu – Pedalandariki Illu” programme. The petitioners submitted several representations to the authorities requested to stop all the attempts to assign the land of Gramakantam and Poramboke. The Revenue Authorities remained silent for few days and again visited the said land on 20.01.2020 and made certain markings for layout and brought some innocent people to the land and the local staff was seen informing them that they will allot house site pattas to them. When the petitioners questioned the illegality in conducting survey proposing to allot house sites in the Poramboke and Gramakantam land, the Revenue authorities stated that they are under constant pressure from the higher authorities.

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Thus, the action of the respondents in taking steps to assign the Gramakantam, Poramboke, Water course Poramboke is highly illegal, arbitrary and in violation to the Revenue Board Standing Orders.

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It is specifically contended that if the Revenue authorities issued pattas to the third parties, the petitioners will not be able to use the said land as thrashing floor, cattle stand and transportation of agricultural implements; thereby they will be deprived of their livelihood and put to irreparable loss. Therefore, the petitioners sought the relief as stated supra.

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In support of their claim, the petitioners placed on record their representation dated 21.01.2020, pattadar passbooks, title deeds and Adangals for survey Nos.942 and 914-1 to establish the classification of the land. Based on the above documents, they requested to issue a direction not to assign the land while declaring the action of the respondents as illegal and arbitrary.

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Learned Government Pleader for Revenue placed on record written instructions dated 24.01.2020 to contend that as part of implementation of a noble scheme formulated by the Government of Andhra Pradesh vide G.O.Ms.No.376 Rev (Assignment-I) Dept., dated 19.08.2019 and also circular Memo No.REV01- LANA ) LAND (PM) 17/2019 dated 25.11.2019 viz. “Navaratnalu-Pedalandariki Illu”, a detailed survey process is going on for identification of all the Government lands available for assigning to the people of below poverty line, available for 1,92,211, who have no shelter to live in the unit of West Godavari District. Thus, the land is being identified by the survey officials of the Revenue Department and Village Revenue staff are for a noble cause, for public interest purpose, in R.S.No.942 out of the total extent of Ac.2.09 cents, a part of an extent of Ac.0.78

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cents in R.S.No.914/1 out of total extent of Ac.2.27 cents, a part of an extent Ac.2.23 cents is identified by Revenue Officials while verification of Government lands which are suitable for the above said noble scheme in Ramannapalem Village, Mogulthuru Mandal.

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It is also contended that the land identified by the Government is not prohibited to convert as Grama Kantam by the competent authority as per the BSO for distribution of House sites to the weaker section people and the said identified land is purely Government Poramboke and highly suitable for distribution of House sites to weaker section people of Ramannapalem village of Mogalthuru Mandal.

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It is further contended that the R.S.No.914/1 for an extent of Ac.2.27 cents of Ramannapalem village of Mogalthuru Revenue Village is purely “Government Poramboke Grama Kantam” land which is previously noted/identified for distribution of House sites in RSR, the above said Government land exclusively reserved for House sites to weaker section people and there is no need to convert the same as Grama Kantam for distribution of House sites to weaker section people, however, invited objections from the villagers by beat of tom-tom, but no objections have been received and the said land is ready for distribution as House sites to weaker section people and another land in R.S.No.942 of Ramannapalem village of Mogalthuru Revenue village is purely “Uppukotari Poramboke” Government land and “A1-Notice” has been published on 25.09.2019 and the same was displayed in the notice board of Ramannapalem Gram Panchayat for change of classification from “Uppukotari Poramboke” to “Grama Kantam (village site) for distribution of House sites to weaker section people of Ramannapalemn Gram Panchayat in R.S.No.942 for an extent of Ac.2.09 cents and invited objections from

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the villagers by beat of tom-tom in the village by giving 15 days time as prescribed in the said A1-notice, after completion of 15 days, no objections have been received by the said villagers and a resolution has been passed vide resolution bearing No.34 dated 14.10.2019 by the Gram Panchayat of Ramannapalem of Mogalthuru Mandal, West Godavari District and the change of classification proposals has been approved by the Collector, West Godavari, Eluru and as per Para 2 (3) (ii) of BSO-15, the Collector is competent to transfer Poramboke from one head to another, thereby the action of the respondents to assign the land cannot be said to be illegal and prayed for dismissal of the petition.

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Government also filed copies of R.S.R. for R.S.No.942 and 914/1 of Ramannapalem Village of Mogalthuru Revenue Village, Mogalthuru Mandal, Adangal for the said survey numbers, F.M.B., A1-Notice dated 25.09.2019, Gram Panchayat resolution bearing No.34 dated 14.10.2019 in support of their case.

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Heard, learned counsel for the petitioners and the learned Government Pleader for Revenue.

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Undisputedly, the petitioners are the owners of small extent of land on either side of the land in dispute i.e. Sy.No.914-1 to an extent of Ac.2.27 cents and Sy.No.942 to an extent of Ac.2.09 cents of Ramannapalemn village, Mogalthuru Revenue Village. The petitioners contended that there is an irrigation canal flows from west to east, the petitioners and other ryoths are using the same for irrigating their lands. The petitioners are using the disputed land as thrashing floor for harvesting paddy, but it was not denied by the respondents in the written instructions. Moreover, the title of the petitioners to the various items of land shown in pattadar passbooks issued to them is not in quarrel. Therefore, the only question to be

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decided is “whether the land in dispute in Sy.No.914-1 and Sy.No.942 can be assigned to the landless poor when it is classified as ‘Gramakantam’ and “drainage”?

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As seen from the RSR of Mogalthuru, the land in Sy.No.914-1 of an extent of Ac.2.27 cents is classified as ‘Gramakantam’ and some extent is classified as ‘Smasanam’ (burial ground), similarly, Sy.No.942 is classified as “Uppukotori”. Adangal produced by the respondents for Fasli No.1429 disclosed that the land in Sy.No.914-1 is classified as ‘Gramakantam” and land in Sy.No.942 is classified as ‘Uppukotori’, whereas in the Adangal produced by the petitioners for Fasli No.1429 obtained through Meeseva for the land in Sy.No.942 the land is classified as “Murugukalava” in column No.6 and at column No.8, it was noted as “Government Land”, and at column No.15, it is mentioned as “Government Poramboke”. The petitioners obtained the said Adangal on 22.01.2020, whereas Adangal produced by the respondents for Sy.No.942 is handwritten document, not authenticated by anyone, except the signature of Village Revenue Officer and Tahsildar. The Adangal produced by the petitioners was obtained through Meeseva. Thus, there is any amount of deviation in the entries made in the Adangal produced by the petitioners and respondents. But the respondents produced Adangal for the land in Sy.No.914-1 is in printed form, whereas the Adangal for the land in Syi.No.942 is handwritten document. Why the respondents produced two different documents for two different survey numbers was not explained and it is clear from the Adangal produced by the petitioner for the land in Sy.No.942 is classified as “Murugukalava”. More authenticity can be given to the documents obtained through Meeseva i.e. document obtained through online while ignoring the handwritten document produced before this

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Court. Thus, the classification of the land in Sy.No.942 as “Murugukalava” is to be accepted as per the Adangal dated 22.01.2020 produced by the petitioners while rejecting the contention of the respondent that it is “Uppukotari” as there is every possibility to create such document to defend the present petition conveniently.

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Accepting that the land in Sy.No.942 as “Murugukalava” and land in Sy.No.914-1 as “Gramakantam”, the question to be decided is “whether such Gramakantam land or Murugukalava can be assigned to the landless poor persons?”

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When the land is Sy.No.942 is classified as “drainage” and land in Sy.No.914-1 is classified as “Gramakantam”, the said lands deemed to have been vested on Gram panchayat under Section 53 of the Andhra Pradesh Panchayat Raj Act, 1994 (for short “the Act”) on the date of its constitution. Therefore, gramakantam and murugukalava are under the direct control of Gram Panchayat and unless these lands are de-notified by issuing notification in terms of Section 58 (2) of the Act divesting the land from Gram Panchayat and vesting the same on the Government, the same cannot be assigned. Moreover, the petitioners are using the disputed land as thrashing floor at the time of harvesting paddy, it is a customary right of petitioners and other ryoths of the locality.

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A custom is a particular rule which exists either actually or presumptively from time immemorial and has obtained the force of law in a particular locality. Before a Court of law can never give effect to a custom, the Court must be satisfied that it is definite, ancient, uniform and not illegal in itself or unreasonable. Such a custom from long usage should have obtained the force of law. It must be certain

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peaceable, reasonable, ancient and not opposed to morality or public policy.

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In “ Subramanian Chettiar v. Kumarappa Chettiar¹ ” , the

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Division Bench of the Madras High Court observed that, a custom is a rule which in a particular family or in a particular district, has from long usage obtained the force of law. It must be ancient, certain and reasonable and being in derogation of the general rules of law must be construed strictly. It is further essential that it should be established to be so by clear and unambiguous evidence for it is only by means of such evidence that the courts can be assured of its existence and of the fact that it possesses the conditions of antiquity and certainty on which alone its legal title to recognition depends. It must be not be opposed to morality or public policy and must not be expressly forbidden by the legislature. Therefore, subject to establishing these requirements to constitute a customary right, the farmers who are enjoying the land in dispute as customary right to use the land as thrashing floor, which is not disputed by the respondents, if assigned, the petitioners would be deprived of their right to enjoy their customary right by using the land as thrashing floor and cart track, which is an amenity provided to the farmers of the locality. Therefore, it would fall within B.S.O 15(4)(m), since it is an amenity, thereby, the same cannot be assigned as house site for landless poor.

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Even according to the proviso thereto, if such land is covered by Clauses (g), (j), (k) and (m), if not immediately required or if their occupation be not objectionable at present, may be leased with a condition for resumption, when required for any public purpose

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1 AIR 1955 Mad. 155 at 150

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without payment of compensation for improvements, if any affected. Therefore, such land preserved cannot be assigned, except for ek sal lease.

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According to Section 53 of the Act, all public roads in any village, other than National Highways, State Highways and roads vesting in Zilla Parishad or Mandal Parishad shall vest in the gram panchayat together with all pavements, stones and other materials thereof, all works, materials and other things provided therefore, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the gram panchayat fund or otherwise, in along side or under such roads, and all works, materials and things appertaining thereto. Therefore, drainage poramboke, sewer, canal poramboke and road poramboke are deemed to have been vested on the gram panchayat and the gram panchayat will have control over those properties, since the public roads are public properties and they are constructed for the public purpose.

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Thus, as per Section 53 of the Act, all public roads in any village, other than National Highways and State Highways vest in gram panchayat for the purpose of maintenance. If any immovable property for the purpose of maintenance or for achieving any of the public purpose is required, Gram Panchayat has to – through appropriate Revenue Authority, acquire the land following the procedure under the Land Acquisition Act, 1894. (vide “ G. Venkata

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Reddy v. E.O, G.P. Kollapur Village and Mandal and Post² ” ). Thus, it is clear from the law declared by the Court that, when the property is deemed to have been vested, it is for the purpose of maintenance and even if the panchayat wants to take over the

2 2010 (4) ALD 374

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property, except by due process of acquiring the property, i.e. by acquiring the property through revenue department, they cannot take the property by claiming ownership.

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Similarly, 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.

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Section 56 of the Panchayat Raj Act obligates the gram panchayat to maintain irrigation works, execution of kudimaramat etc. Section 57 of Panchayat Raj Act deals with vesting of the management of ferries in gram panchayat and according to it, Notwithstanding anything in the Andhra Pradesh (Andhra Area) Canals and Public Ferries Act, 1890 (Act 2 of 1890) and the Andhra Pradesh (Telangana Area) Ferries Act, 1314 Fasli (Act 2 of 1314 F), the management of a public ferry in the Andhra Area, and of a Government ferry in the Telangana area other than a ferry mentioned in sub-section (2) shall vest –

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(a) in the case of a ferry connecting any public road under the management of a gram panchayat and lying wholly within the jurisdiction of that Gram Panchayat, in such Gram Panchayat and in the case of a ferry connecting any public road under the management of a Gram Panchayat and lying within the jurisdiction of more than one Gram Panchayat, in a joint committee of the Gram Panchayats concerned;

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(b) in case of a ferry connecting any public road under the management of a Mandal Parishad and lying wholly within the

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jurisdiction of that Mandal Parishad, in such Mandal Parishad and in the case of ferry connecting any public road under the management of a Mandal Parishad and lying within the jurisdiction of more than one Mandal Parishad, in a joint committee of the Mandal Parishads concerned;

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(c) in the case of a ferry connecting any public road under the management of a Gram Panchayat or a Mandal Parishad and lying partly within the jurisdiction of a municipality, in a joint committee of the Gram Panchayat or a Mandal Parishad as the case may be, and the Municipality concerned.

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(2) The Government may, subject to such conditions as may be agreed upon transfer the management of any such ferry connecting a National Highway or a State Highway and lying wholly within the jurisdiction of a Gram Panchayat or a Mandal Parishad to such Gram Panchayat or Mandal Parishad and in case the said ferry is lying within the jurisdiction of more than one Gram Panchayat or Mandal Parishad, to the Zilla Parishad concerned.

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(3) The constitution and powers of the procedure to be adopted by any joint committee referred to in sub-section (1) and the method of resolving any difference of opinion arising between the local authorities concerned in connection with the works of such committee shall be in accordance with such rules as may be prescribed.

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(4) The income realised by a Zilla Parishad, Mandal Parishad or a Gram Panchayat from any ferry under its management under subsection (1) or sub-section (2) shall form part of its funds. The income realized by joint committee referred to in sub-section (1) or by a Zilla Parishad under subsection (2) from a ferry under its management shall be apportioned in equal shares between the local authorities concerned and the amount so apportioned shall form part of the funds of such local authorities.

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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,

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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 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 Municipality³ ” and “ Banne Gandhi and others v. District Collector⁴ ” ).

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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 Collector⁵ ” , where the High Court of Andhra Pradesh held that distribution or assignment of gramakantham which is community land to anyone by

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3 2012 (5) ALT 631

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4 2007 (2) ALT 550

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5 1997 (2) ALT 486

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Government without issuing any notification, divesting such land from Panchayat is illegal.

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Learned Counsel for the petitioners drawn the attention of this Court to G.O.Ms.No.187 Revenue (Assn.I) Department dated 27.05.2015 to contend that when the land is classified as Gramakantam, which is deemed to have been vested on the Grama Panchayat, wherein it is stated as follows:

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“Government after careful examination of the matter have decided that as “Gramakantam” lands vest in Gram Panchayats, there is a need to withdraw these lands from the purview of Section 22-A of the Registration Act to remove hardship of general public. Therefore, Government hereby order that the District Collectors shall withdraw the “Gramakantam” lands from the lists of properties prohibited from registration furnished to the Registering Officers under Section 22-A of the Registration Act. It shall be the responsibility of the Gram Panchayats to take appropriate action in respect of “Gramakantam” lands including protection of the extents of lands meant for community purpose.”

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On the basis of the said G.O., the Government issued another G.O.Ms.No.361 Revenue (Assn.I) Department dated 29.09.2015 directing all the District Collectors to withdraw the “Gramakantam” lands in Municipal/Municipal Corporation Areas from the list of properties prohibited from the registration furnished to the Registering Officers under Section 22-A of Registration Act, 1908.

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At best, the said two Government Orders are helpful to the petitioner only to the extent that Gramakantam lands vested on the Grama panchayat and it is under the direct control of the Grama panchayat.

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Thus, as per the law declared in the judgments (referred supra) and the provisions of the Act, the land which is classified as ‘Gramakantam’ cannot be assigned to the landless poor persons since it is vested on the Grampanchayat, without issuing notification

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under Section 58 (2) of the Act. Therefore, the land in Sy.No.914-1 cannot be assigned without issuing notification.

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As far as the land in Sy.No.942 is concerned, as discussed above, I have already concluded that it is classified as “drainage” (Murugukalava), when the land is classified as “drainage”, it is deemed to have been vested on the Grama Panchayat in terms of Section 53 of the Act. As the land is classified as “drainage” and meant for future use, the same cannot be utilised for the purpose of assignment. At best, if such drainage is not useful for the present, that can be leased out on Eksal basis reserving right to cancel the same at any time in terms of proviso to paragraph No.4 of B.S.O.15. According as per B.S.O 15(2), a width of at least one chain equal to 66 feet, should be set apart for future use while converting Murugukalava or drainage into Government land. But no details are placed on record, the width of the land set part from the bund of the drainage to assign the remaining part of the land. More so, no notification was issued under Section 58 (2) of the Act divesting the drainage from the Panchayat and conveyed the same on the Government. Hence, the land which is classified as “drainage” cannot be assigned by following the procedure stated above.

¶85

Admittedly, the respondents did not issue any notification under Section 58 (2) of the Act as on date as per the instructions placed on record. As seen from the material record, “A1-Notice” was issued by the State on 25.09.2019 calling for objections from the public till 10.10.2019, but the resolution was passed on 14.10.2019 signed by the Special Officer. Objections were invited by beat of TomTom. The action taken by the respondents in issuing A1-Notice for conversion of land is impermissible under law.

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It appears from the record, a resolution was passed by the Special Officer without conducting Gram Sabha. Section 6 of the Act defines Gram Sabha, which reads thus:

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“(1) There shall come into existence a gram sabha for every village on the date of publication of notification under Section 3.

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(2) A gram sabha shall consist of all persons whose names are included in the electoral roll for the gram panchayat referred to in Section 4 and such persons shall be deemed to be the members of the gram sabha.

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(3) The gram sabha shall meet atleast twice in every year on such date and at such place and time as may be prescribed to consider the following matters which shall be placed before it by the gram panchayat, namely:--

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(i) annual statement of accounts and audit report;

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(ii) report on the administration of the preceding year;

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(iii) programme of works for the year or any new programme not covered by the budget or the annual programme;

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(iv) proposals for fresh taxation or for enhancement of existing taxes;

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(v) selection of schemes, beneficiaries and locations; and

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(vi) such other matter as may be prescribed.

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The gram panchayat shall give due consideration to the suggestions, if any, of the gram sabha.

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(4) The gram sabha shall observe such rules of procedure at its meetings as may be prescribed.

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(5) Every meeting of the Gram sabha within 10 days from the date prescribed under sub-section (3) shall be convened and presided over by the Sarpanch or in his absence by the Upa-Sarpanch of the Gram Panchayat".”

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Thus, the resolution passed by the Special Officer in the absence of any council is totally contrary to the procedure prescribed under the Act.

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In view of my foregoing discussion, the proposed action of the respondents to assign the land is illegal, arbitrary and contrary to the provisions of the Act and B.S.O.15. Consequently, a direction is required to be issued to the respondents not to assign the land except by following the procedure as discussed above.

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In the result, the writ petition is allowed declaring the action of the respondents in taking steps to assign/allot house site pattas in Gramakantam, Poramboke lands in Sy.No.914-1 to an extent of

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Ac.2.27 cents and in Sy.No.942 to an extent of Ac.2.09 cents situated at Ramannapalem Village, Mogalthuru Revenue Village, Mogalthuru Mandal, West Godavari District is illegal and arbitrary, and the respondents are hereby directed not to assign the said lands except by following the procedure as stated above. No costs.

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The miscellaneous petitions pending, if any, shall also stand closed.

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_________________________________________ JUSTICE M. SATYANARAYANA MURTHY

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20.02.2020 Ksp

Ananthapalli Satya Venkata Kameswara Rao, v. . The State of Andhra Pradesh

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Ananthapalli Satya Venkata Kameswara Rao, v. . The State of Andhra Pradesh

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