Andhra Pradesh High Court - Amravati
Jakkam Lakshmi Narayana vs The State Of Andhra Pradesh, on 20 October, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITON NO.19153 of 2020
ORDER:
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 proposing to construct the Rythu Bharosa Kendram in a land classified as Mandabayalu Poramboke covered by Sy.No.54 of Kaza Village, Elamanchali Mandal, West Godavari District as illegal, irregular, irrational, arbitrary, without any authority of law, colourable exercise of powers and contrary to the provisions of A.P.Board Standing Orders and A.P.Panchayat Raj Act, 1994 and consequently direct the respondents to protect the said Mandabayalu Poramboke"
The petitioner is the owner of land to an extent of Ac.0.03cents in Kaza Village, adjacent to 'Mandabayalu Poramboke' in Sy.No.54 of Kaza Village, using the same for grazing of cattle by the public at large as well as ingress and egress to the neighbouring lands of the villagers of Kaza Village, thereby it is common land.
The main grievance of this petitioner is that the land in Sy.No.54 of Kaza Village is classified as Manda Bayalu, which is a communal land of Kaza villagers using for grazing cattle etc., such land cannot be assigned denying right of this petitioner and villagers of Kaza village to use the same for grazing the cattle etc., 2 In support of his contention learned counsel for petitioner placed reliance on the pattadar adangal to establish that the said land is classified as 'Manda Bayalu', which is communal land and therefore the petitioner cannot be deprived of right to enjoy facility of using the land for grazing the cattle etc. by the villagers in common and it is the duty of the Government to protect such common land and the same cannot be assigned to construct Rythu Barosa Kendram and requested to pass appropriate order by placing reliance on judgment in Jagpal Singh and others vs. State of Punjab and others1 Whereas learned Assistant Government Pleader for Assignments contended that as the land is 'Government land', supported action of the respondents though it is classified as Manda Bayalu, the State can take appropriate action for conversion of the same into government land by BSO 15(2) of A.P. Revenue Board Standing Orders and requested to dismiss the writ petition.
It is an undisputed fact that the land in Sy.No.54 of Kaza Village is classified as Manda Bayalu in pattadar adangal of Kaza Village in columns 12 and 13. This classification of land is not disputed by the learned Assistant Government for Revenue. Thus, there is no dispute regarding classification of the land as 'Manda Bayalu'. When, once the land is classified as 'Manda Bayalu' it would fall within the meaning of community land i.e., 1 (2011) 11 Supreme Court Cases 396.
3for using the same by the entire villagers and would not fall under Section 3 of the Estates Lands Act to treat the same as 'Government land'.
Therefore, there is difference between common land and community land and roads and road margins as 'prabhutva bhoomi' etc., road and road margins cannot be treated as common lands as the villagers and also other persons using the roads and its margins, but as whereas the common land or community land is being used by the specific community only. Hence, 'Manda Bayalu" is subject matter of land is communal land.
Even otherwise, it is for the benefit of villagers to use the same as threshing floor and for grazing cattle it would attract BSO 15(4) of A.P. Revenue Board Standing Orders and the same cannot be assigned even if it is not required for the present by the Government, it can be leased out on eksal lease basis for agricultural purposes and cannot be converted into 'government land' to assign the same invoking powers under Para 2 of the BSO 15 of A.P. Revenue Board Standing Orders.
On the other hand, using the land for grazing the cattle and for passage purpose can be said to be customary easement as defined under Section 18 of the Act. Thus, the villagers cannot be deprived of right of enjoyment to use the land for grazing the cattle etc. 4 The Apex Court in Jagpal Singh and Others vs. State of Punjab and Others1 in Para 3 held 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 Anjayya2 (1 (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."
In view of the principle laid down in 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 1 (2011) 11 Supreme Court Cases 396 2 (1972) 1 SCC 521 5 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.
Instead of following these guidelines in G.O.Ms.No.188, dt.21-07-2011, the respondents are trying to deprive this 6 petitioner from enjoying the right in common property for the benefit of villagers, for grazing the cattle etc., which is impermissible in view of the law declared in the judgment of Apex Court in Jagpal Singh and Others vs. State of Punjab and Others1 As per Section 53 of the Panchayat Raj 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 acquire the same through appropriate Revenue Authority, acquire the land following the procedure under the Land Acquisition Act, 1894. (vide G. Venkata Reddy v. E.O, G.P. Kollapur Village and Mandal and Post3). 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 property, has to follow the process of acquiring the property, i.e. by acquiring the property through revenue department, they cannot take the property by claiming ownership.
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 1 (2011) 11 Supreme Court Cases 396 3 2010 (4) ALD 374 7 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.
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. 8 Bhimavaram Municipality4 and Banne Gandhi and others v. District Collector5).
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 Collector6, 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.
By applying these principles to the present facts of the case, the proposed assignment without divesting the land on the Government that vested on the gram panchayat by virtue of the provisions referred above is a serious illegality. Therefore, the proposed assignment of land in Sy.No.54 of Kaza Village, Elamanchili Mandal, West Godavari District to construct Rythu Bharosa Kendram that vested on the gram panchayat without de-notifying by issuing gazette notification, as mandated under Section 58(2) of the Panchayat Raj Act is a serious illegality, which vitiates the entire procedure. In the present facts of the case, no procedure prescribed under Section 58(2) of Panchayat Raj Act is followed. On this ground alone, the action of respondents in taking steps to construct Rythu Bharosa Kendram in Sy.No.54 of Kaza Village, is liable to be set-aside. 4 2012 (5) ALT 631 5 2007 (2) ALT 550 6 1997 (2) ALT 486 9 Hence, I find that the action of respondents to propose the land for construction of Rythu Bharosa Kendram is illegal and arbitrary, consequently directed the respondents not to construct Rythu Bharosa Kendram in Sy.No.54 of Kaza Village, Elamanchili Mandal, West Godavari District depriving the right of the villagers of Kaza to use the facility of grazing the cattle and for passage in the common land or communal land.
With the above direction, this Writ Petition is allowed. There shall be no order as to costs.
As a sequel, Interlocutory Applications pending, if any, in this Writ Petition, shall stand closed.
_______________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 20.10.2020 SPR 10 THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY WRIT PETITON NO.19153 of 2020 Date: 20.10.2020 SPR