Andhra Pradesh High Court - Amravati
R.Venkateswara Raju vs The State Of Andhra Pradesh on 4 February, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
* THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
+ WRIT PETITION No.21386 OF 2019
% Dated 04.02.2020
#
R. Venkateswara Raju
S/o R. Vissam Raju
Occ: Cultivaton
Serepalem Village, Mogalthuru Mandal
West Godavari District and 16 others
..... Petitioners
Vs.
$
The State of Andhra Pradesh,
Rep. by its Principal Secretary,
Revenue Department
Secretariat,Velagapudi and 4 others ..Respondents
! Counsel for the petitioner : Sri K. Chidambaram
^ Counsel for the respondent :
Learned Government Pleader for Revenue
<GIST:
> HEAD NOTE:
? Cases referred
1. AIR 1955 Mad. 155 at150
2. 2010 (4) ALD 374
3. 2012 (5) ALT 631
4. 2007 (2) ALT 550
5. 1997 (2) ALT 486
MSM,J
WP No 21386 of 2019
2
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No. 21386 OF 2019
ORDER:
This writ petition is filed under Article 226 of the Constitution of India to issue writ of mandamus, declaring the action of respondent Nos.2 and 3 in taking steps to assign the drainage bund passing in Survey No. 201 and 211 of Serepalli Village, Mogalthuru Mandal, West Godavari District, for house sites to the Weaker Sections, though the same is prohibited under B.S.O 15(4) of Andhra Pradesh Revenue Board Standing Orders (for short 'B.S.O') by depriving petitioners from using the said bund for their agricultural operations as highly illegal, arbitrary and contrary to law and consequently, direct the respondents not to assign the drainage bund situated in R.S.No.201 and 211 of Serepalem Village, Mogalthuru Mandal, West Godavari District, Andhra Pradesh.
The petitioners are the absolute owners of land in R.S.Nos.202, 203, 205, 209 and 210 of Serepalem Village, Mogalturu Mandal, West Godavari District. The said lands are Zyroyati lands. Some of the petitioners have purchased and some of them have inherited the said land. The said lands are situated by the side of channel (drain) which is running in Survey Nos.201 and 211 of Serepalem Village. The land in Survey Nos.201 and 211 was classified as irrigation poramboke. Between the lands of the petitioners and the said irrigation drainage channel, there is a bund with a width of 6 meters. The road was formed through the part of the said bund which is passing from Mutyalapalli Village to Mogalturu via Serepalem Village. The petitioners have been discharging used water from drainage to the MSM,J WP No 21386 of 2019 3 agricultural fields and they have been using the said drainage channel bund for agricultural operations as thrashing floors, carts and cattle. Some of the petitioners have raised coconut and other trees and enjoying the usufruct of the said trees. While the matter stood thus, the third petitioner who is having land to an extent of Ac.1-80 cents in Sy.No.202/3B has occupied nearly an extent of Ac.0-60 cents in Survey No.201 which is classified as irrigation poramboke and applied for patta and she was granted patta for the extent of Ac.0-60 cents in R.S.No.201 and issued pattadar passbook in the year 2012. Smt. Kothapalli Venkata Lakshmi is having land in Sy.No.210/1 and she occupied Ac.0-30 cents in Sy.No.20-1, which is classified as irrigation land and the same was assessed for tax and she is paying tax for the extent of Ac.0-30 cents in Sy.No.201 of Serepalem Village and she died on 20.06.2014 and the same was inherited by her husband who is the 9th petitioner herein. The 11th petitioner herein has occupied Ac.0-16 cents in Sy.No.201 and he is paying tax for the said encroached land. The 12th petitioner has also occupied Ac.0-09 cents in R.S.No.201 and the tax is being collected from her and she is paying the tax. Thus, all the petitioners are enjoying the customary right over the irrigation canal bund for their agricultural operations, including the passage, both for farming and cattle. If, the land is assigned, it will cause not only inconvenience to these petitioners, but also hardship to the public who are passing on the road, laid on the bund by the government itself and that too, there is a clear prohibition in B.S.O 15(4) to assign such lands to the landless poor and contrary to the provisions of law. Therefore, the petitioners sought a direction to declare the action of the respondent Nos.2 and 3 in taking steps to assign the drainage bund passing in MSM,J WP No 21386 of 2019 4 Survey No. 201 and 211 of Serepalli Village, Mogalthuru Mandal, West Godavari District for house sites to the Weaker Sections, as illegal and arbitrary and violative of B.S.O 15(4).
During hearing, learned counsel for the petitioners drawn attention of this Court to the adangals of the villages to show that the land in different survey numbers is classified as irrigation bodhe and irrigation poramboke, road and that the petitioners are in possession and enjoyment of the land, paying the land revenue to the corporation and obtained pattadar passbooks and other documents to substantiate the case of the petitioners.
Whereas, learned Assistant Government Pleader for Revenue placed on record, written instructions from the Tahsildar, without filing any counter, contending that the land is identified for assignment and admitted that the land of an extent of Ac.1-29 cents in R.S.No 201 is classified as "Bandi Daari" as per RSR and it is suitable for distribution of House Sites to weaker section people of Serepalem village of Mogaltur Mandal. Therefore, the government identified the land in Serepalem Revenue Village which is suitable for house sites to weaker section people in R.S.No.201 for total extent of Ac.1-74 cents and R.S.No.211 for total extent of Ac.2-20 cents are classified as "Government Poramboke" and remarked as "Bandi Daari" in Re-Settlement Register (R.S.R) of Serepalem Village of Mogaltur Mandal and the road which is passing from Mogaltur to Vempa was laid in the said R.S.No.201 and 211 in an extent of Ac.2-65 cents including adequate margin in future needs and out of the above said total extent Ac.3-94 cents, an extent of Ac.1-29 cents MSM,J WP No 21386 of 2019 5 is vacant land and fit for house sites for weaker section people of Kothapalem Gram Panchayat of Serepalem Revenue Village of Mogaltur Mandal.
It is also contended that, land in R.S.Nos.201 and 211 of Serepalem Village is purely "Bandi Daari Poramboke" as per the R.S.R and Village Records and the drainage bund is passing in the land which is intentionally mentioned by the writ petitioners in the present writ petition is false. When the land in R.S.Nos.201 and 211 of Serepalem Village is purely "Bandi Daari Poramboke", the above said government poramboke can be converted into Rytwari Land and no proposals were submitted previously to the Collector for Conversion of Bandidaari Poramboke to Rytwari land for issue Assignment (D-Form Patta) as per this office records as the Collector is competent to transfer to Poramboke from one head to another as per Para 2(3)(ii) of B.S.O 15 for conversion of the above said Government Poramboke (Bandi Daari Poramboke) in R.S.Nos.201 and 211 of Serepalem Village of Mogaltur Mandal. Therefore, issue of D-Form Patta does not arise in favour of Rudraraju Ramalakshmi, third petitioner herein, who is the daughter of the first petitioner viz., R. Venkateswara Raju in the present petition.
It is further contended that, "A-1 Notice" has been published on 05.12.2019 in Kothapalem Gram Panchayat by affixing in the Notice Board for change of classification from "Bandiddari Poramboke" to "Gram Kantam (village site)" for distribution of house sites to weaker section people of Kothapalem Gram Panchayat of Serepalem Revenue Village in R.S.Nos.201 and 211 for a total extent MSM,J WP No 21386 of 2019 6 of Ac.1-29 cents and invited objections from the villagers by beat of tom-tom in the village by giving 15 days time, as prescribed in the said A-1-Notice. Therefore, the alleged violation is neither true nor correct and requested to dismiss the writ petition.
Copy of R.S.R and F.M.B are annexed to the written instructions for R.S.Nos.201 and 211 of Serepalem Village, including adangals/pahanis for different falsis, issued 1-A Notice, Gram panchayat Resolution bearing No.22, etc in support of the contention of the fourth respondent.
During hearing, learned counsel for the petitioners has drawn attention of this Court to several documents, besides, B.S.O 15(4)(m) to contend that, when it is classified as "Bandidaari" i.e. cart track for the benefit of farmers of the village, the same cannot be assigned and if it is assigned, as house sites to the landless poor, it is difficult for them to let-out the drainage water from their lands, drawn from the irrigation channel on the other side. Similarly, it is difficult for them to use the road and part of the bund as thrashing floor. Therefore, the proposed assignment would drastically affect their customary right to use the bund as cart track "bandidaari" and "thrashing floor". Therefore, the same cannot be assigned and requested to pass appropriate order(s), as claimed by these petitioners.
Whereas, learned Assistant Government Pleader for Revenue vehemently contended that, when it is a drainage poramboke, the same can be assigned to the landless poor after it is converted into MSM,J WP No 21386 of 2019 7 gramakantam land by exercising power under B.S.O 15(1) and in the process of said conversion, A-1 Notice was affixed at Gram Panchayat office for change of nature of the land or for conversion of the land from cart track to gramakantam land and after conversion, the land can be assigned to the landless poor persons and requested to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, the point that arise for consideration is:
"Whether part of the land in R.S.Nos.201 and 211 of Serepalem Village can be assigned to the landless poor persons as house sites, though it is classified as "Bandidaari (cart track)", converting the same into Gramakantam, affecting the customary easement of these petitioners. If not, whether the action of the respondents be declared as illegal and arbitrary and restrain them from assigning the land from land in R.S.Nos.201 and 211 of Serepalem Village to the landless poor persons for house sites"
P O I N T:
It is an undisputed fact that the land is situated by the side of drainage canal in Sy.Nos.211,212,213,214 and 215. But, as per R.S.R, it is classified as "Bandidaari" in Column No.11 of Village No.68 i.e. Serepalem Village, Mogaltur Mandal, West Godavari District. Similarly, the land in Sy.Nos.218 & 219 is classified as "Bandidaari" (cart track). As per F.M.B and admissions made in the written instructions by the fourth respondent, in the said R.S.No.201 and 211, out of the said total extent Ac.3-94 cents, there is a road in an extent of Ac.2-20 cents as "Bandiddaari" and remaining extent of Ac.1-29 cents is vacant land on either side of the road. When, the said land is classified as "Bandiddaari" for the farmers/agriculturists, who owned and possessed the land within the vicinity of the MSM,J WP No 21386 of 2019 8 proposed assignments of land, they are entitled to enjoy a customary right under Section 18 of the Easements Act. If, for any reason, the land is assigned to the landless poor, they will be deprived from enjoying the right of customary easement under Section 18 of Easements Act.
During hearing, learned counsel for the petitioners, though contended that the land is abutting to the drainage and classified as drainage poramboke, he did not bring to the notice of this Court any material to substantiate the same. However, the respondents themselves admitted that out of the said total extent Ac.3-94 cents, an extent of Ac.2-20 cents is classified as "Bandiddaari" and remaining extent of Ac.1-29 cents is vacant land on either side of the road in R.S.Nos.201 and 211 of Serepalem Village. But, the width of the remaining site is not shown anywhere in the F.M.Bs, except bare details. In any view of the matter, B.S.O 15(4) deals with the lands that may be assigned and that may not be assigned and the same is extracted hereunder for better appreciation of the case:
"BSO 15(4) Lands that may be assigned and that may not be assigned: -
(i) All lands at the disposal of the Government except those hereinafter prohibited may be assigned. The assignment of lands shall generally be free of market value except in the case of project affected lands in which case market value shall be collected.
(ii) The assignment of the following classes of lands is prohibited:
(a) Poramboke (tank beds, foreshore of tank bed cattle stands, grazing lands and reserved lands (reserved for depressed class members or for any public purpose, such as schools, playgrounds, hospitals, maternity centers, reading rooms and extension of house-sites, Panchayat purposes, town sites and lands in the proximity thereof.
(b) Land which has been occupied for 18 months and adjoins a reserve forest or an MSM,J WP No 21386 of 2019 9 unreserved block of a square mile or more until the Collector has consulted the District Forest Officer and considered any objections, he may have to its assignment;
(c) Lands containing topes or valuable trees;
(d) Lands within cantonment limits;
(e) Lands reserved under Section 26 of the Forest Act;
(f) Lands within port limits;
(g) Lands near the sea coast within one furlong of high water mark of the sea;
(h) Water course porambokes, namely, margins of channels, streams etc.;
(i) Lands in the vicinity of aerodromes or landing grounds (i.e.) within a belt of 200 yards;
(j) Lands containing minerals, quarries, etc.
(k) Padugais i.e. land within the flood bank of rivers, lanka lands not held on ryotwari tenure, river accretions and reformed lands for which the owners have ceased to pay assessment;
(l) Lands where "pati matti" is available and;
(m) Any other lands which are required or likely to be required for any public or any special purposes necessary for the provision of amenities of the community or connected with the development of the village.
Provided, however, that tank bed lands, foreshore lands and lands under categories (g), (j), (k) and (m) above, if not immediately required or if their occupation be not objectionable at present, may be leased with a condition for resumption, when required for public purpose without payment of compensation for improvements, if any effected."
In view of B.S.O 15(4)(m), any other lands which are required or likely to be required for any public or any special purposes necessary for the provision of amenities of the community or connected with the development of the village, provided, however, that tank bed lands, foreshore lands and lands under categories (g),
(j), (k) and (m) above, if not immediately required or if their MSM,J WP No 21386 of 2019 10 occupation be not objectionable at present, may be leased with a condition for resumption, when required for public purpose without payment of compensation for improvements, if any effected. Thus, from B.S.O 15(4)(m), land which is required for the provision of amenities to the community cannot be assigned. Customary easement, as provided under Section 18 of the Easements Act is an amenity to the land own and possessed by the farmers within the vicinity, since the same is being used as cart track and thrashing floor.
As per G.O.Ms.No.510 Revenue (Lands-1) Department dated 30.12.2019, the Government authorized the District Collectors not to propose any lands belongs to Endowments, Educational Institutions, Wakf or any other religious related lands, environmentally sensitive and fragile areas such as, tank beds, river beds, other water bodies and hillocks with afforestation etc., for house site purposes. When the petitioners contended that, the land is a drainage bund, if accepted, the same is hit by G.O.Ms.No.510 Revenue (Lands-1) Department dated 30.12.2019. Even assuming for a moment that, the proposed land is not a drainage bund and it is a road margin, when it is road poramboke, earmarked for future explanation, the same cannot be assigned in view of B.S.O 15(4).
When the farmers of Serepalem Village are enjoying the right over the land, such right is recognized by Section 18 of Indian Easements Act. Section 18 of Indian Easements Act recognizes the acquisition of a customary easement and the mere fact that such a right is a customary right also will not affect its validity as an easementary right. A customary right by its very definition cannot be the creature of a written instrument. There cannot be a customary MSM,J WP No 21386 of 2019 11 easement in favour of an individual and so easement acquired by virtue of local custom can only be in favour of a class or a community. A customary easement can be claimed even by a family or an individual and such claim need not be by a large community alone. To constitute a customary easement the right claimed must be an easement and it must be in virtue of a local custom. A customary right by uninterrupted user is quite different from setting up a local custom.
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 peaceable, reasonable, ancient and not opposed to morality or public policy.
In Subramanian Chettiar v. Kumarappa Chettiar1, the 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 1 AIR 1955 Mad. 155 at 150 MSM,J WP No 21386 of 2019 12 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 and cart track (bandidaari), which is admitted by the respondents by producing the document, 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.
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 without payment of compensation for improvements, if any affected. Therefore, such land preserved cannot be assigned, except for ek sal lease.
According to Section 53 of The A.P. Panchayat Raj Act, 1994 (for short 'Panchayat Raj 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 MSM,J WP No 21386 of 2019 13 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.
Thus, 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 - 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 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 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.
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.
2 2010 (4) ALD 374 MSM,J WP No 21386 of 2019 14 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 -
(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;
(b) in case of a ferry connecting any public road under the management of a Mandal Parishad and lying wholly within the 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;
(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.
(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 MSM,J WP No 21386 of 2019 15 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.
(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.
(4) The income realised by a Zilla Parishad, Mandal Parishad or a Gram Panchayat from any ferry under its management under sub- section (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.
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 MSM,J WP No 21386 of 2019 16 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).
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 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 the drainage bund passing in Survey No. 201 and 211 of Serepalli Village, Mogalthuru Mandal, West Godavari District for house sites to the Weaker Sections 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 3 2012 (5) ALT 631 4 2007 (2) ALT 550 5 1997 (2) ALT 486 MSM,J WP No 21386 of 2019 17 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 the action of respondent Nos.2 and 3 in taking steps to assign the drainage bund passing in Survey No. 201 and 211 of Serepalli Village, Mogalthuru Mandal, West Godavari District, for house sites to the Weaker Sections, is liable to be set-aside.
Learned Assistant Government Pleader for Revenue would submit that, as per B.S.O 15(2) the extent of land preserved by the government like bunds, etc, can be re-classified to certain extent. When a road runs through the land applied for assignment, a width of at least one chain equal to 66 feet, should be set apart for the road and the remainder dealt with under the rules. Similarly, when the bank of an irrigation work runs through or near the land, the extent of land required to allow a margin of one chain equal to 66 feet along the foot of the embankments should be set apart if the irrigation work is an important one such as a main canal, a main distributory or a main drainage, channel. In the case of subordinate or minor distributaries or minor drains, a margin of 30 links will be sufficient. Detailed lists of both the classes of work above referred to will be furnished by the Public Works Department. But, if in any case the irrigation work concerned is not found in either list, a margin of one chain should be set apart or reference made to the Executive Engineer, in the case of channels without embankments, however, it will suffice to set apart a margin of 15 links. If stream runs through or near the land, a margin of not less than 50 links on either bank should as a general rule be reserved and registered as poramboke.
MSM,J WP No 21386 of 2019 18 Land set apart as above should be shown in the accounts as road, tank, channel or stream or poramboke, as the case may be.
It is pertinent to note that, one chain is equal to 100 links or equal to 66' (sixty six feet), as such the B.S.O 15(2) imposes a prohibition of assignment for a width of 66' from the bank of channel. But, without adhering to the said prohibition, the respondents intended to assign the land as house sites. Therefore, basing on B.S.O 15(2), certain margins were given and it is not whether the proposed land is within the permissible limits of B.S.O 15(2) or B.S.O 15(4) or not. In any view of the matter, as discussed above, when the land is classified as cart track (bandidaari), the same cannot be assigned, in view of B.S.O 15(4)(m), since it is an amenity to the legal rights of either side of the road and cart track. That too, they are using the land in R.S.Nos.201 and 211 of Serepalem Village for thrashing floor and for passage of cattle through the cart track. Hence, the proposed amendment of the land in R.S.Nos.201 and 211 of Serepalem Village is illegal and contrary to the law, more particularly, B.S.O 15(4)(m) and the proposed conversion of land from cart track (Bandidaari) to Gramakantam is not permissible, in view of the proviso to B.S.O 15(4), so also by Section 58 of Panchayat Raj Act. At best, such land can be leased out on yearly basis reserving power to resume the same, without claiming any compensation and such land cannot be assigned to anyone as house site. Thus, the action of the respondents is illegal, arbitrary and contrary to B.S.O 15(4).
MSM,J WP No 21386 of 2019 19 In the result, writ petition is allowed, directing the respondents not to assign the drainage bund situated in R.S.No.201 and 211 of Serepalem Village, Mogalthuru Mandal, West Godavari District. No costs.
Consequently, miscellaneous applications pending if any, shall stand closed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:04.02.2020 sp