Andhra Pradesh High Court - Amravati
Kukkala Satyanarayana vs The State Of Ap on 3 February, 2020
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION No.2163 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, to issue Writ of Mandamus, declaring the action of respondents 2 to 5 in trying/intending to assign the Cart Track/Bandi daari, in an extent of Ac.1.02 cents in R.S.No.304, situated at Kontheru Village, Yelamanchili Mandal, West Godavari District, as house sites, as illegal, arbitrary, unreasonable and violative of Articles 14, 21 and 300-A of the Constitution of India and contrary to the provisions of A.P. Revenue Board Standing Orders.
The petitioners possess various extents of lands in different survey numbers in Kontheru Village, Yelamanchili Mandal and the details are tabulated as follows.
S.No Petitioner No. Survey No. Extents
st
1 1 petitioner 271/2 0-35 ½ cents
271/3
372/5 0-03 cents
371/13 0-41 cents
371/14
371/15
324/1 0-41 cents
324/11 0-19 cents
324/2 0-38 cents
nd
2 2 petitioner 303-7 0-12 cents
303-10 B 0-14 cents
303-2 0-95 cents
303-6 0-75 cents
rd
3 3 petitioner 325/1 0-98 cents
324/3 0-02 cents
All the above lands are being enjoyed and cultivated by the respective petitioners by raising paddy crop. Towards northern and western side of their agricultural lands, there exist a Cart track (Bandi daari in vernacular) in R.S.No.304, situated at Kontheru Village, Yelamanchili Mandal, West Godavari District. All the farmers on either side of the said land in 2 R.S.No.304 have been using the land for their agricultural operations since time immemorial and the land is also being used as threshing floor, grazing land, drying paddy etc., on either side of the said land. All the farmers have been using this land as Cart track (Bandi daari) and burial.
While the matter stood thus, Respondents 3 to 5 along with their staff came to the said Cart track (Bandi daari) and burial land started taking measurements of land in R.S.No.304 intending to assign house site pattas to the landless poor for construction of houses under 'Navaratnalu - Pedalandariki Illu' in the above said Cart track without considering the nature of the land. Immediately, the petitioners along with other farmers made a representation to the respondent authorities and brought to their notice about the usage of the Cart track (Bandi daari) and the availability of other suitable land for house sites in the village. Without considering the said representation, again the respondents 3 to 5 along with Mandal Surveyor and their staff came to the land in R.S.No.304, which is classified as Cart track (Bandi daari) and started measuring without giving any notice to any of the farmers in the vicinity.
It is the specific contention of petitioners that the Government has no right to change the nature of land from Cart track (bandi daari) to any other. The F.M.B copies of the above survey numbers clearly discloses about the classification of the land in R.S.No.304 as Cart track (Bandi daari). The very purpose of respondents intending to change the classification of lands in the survey number is to issue house site pattas. Therefore, in case the respondents are allowed to assign the lands to the landless poor, by issuing D-Form pattas, the petitioners would be deprived of their amenity of road.
Further, it is contended that there is a clear prohibition to assign such land under B.S.O 15(2). According to it, the extent of land preserved by the Government like bunds, roads etc, can be re-classified to certain extent. 3 When a road runs through the land applied for assignment, a width of at least one chain should be set apart for the road and the remainder dealt with under the rules. But, without adhering to the said prohibition, the respondents intended to assign the land to landless poor as house sites by reducing the width of the road, which is illegal.
It is contended that the road in the said survey number is in existence since time immemorial. The petitioners being the owners of agricultural lands adjacent to the said road in R.S.No.304 have right to claim access to the said road. As such, the action of respondents in proposing to assign house site plots in the land in R.S.No.304 of Kontheru Village, Yelamanchili Mandal, West Godavari District and proposing to change the classification of the land in R.S.No.304 from classification of Cart track (Bandi daari) to Government assessed waste, is illegal and arbitrary and requested this Court to declare the same as illegal and arbitrary and issue a direction to the respondents not to assign the land in R.S.No.304 of Kontheru Village, Yelamanchili Mandal, West Godavari District.
The respondents did not file any counter, but contended that the land in R.S.No.304 of Kontheru Village, Yelamanchili Mandal, West Godavari District, is classified as "Bandi daari/Cart track" as per Revenue Records. It is submitted that there is no road in the said land. Hence, question of disturbance to passage does not arise and the petitioners with an intention to enjoy the Government land filed the writ petition to stop the process and requested to dismiss the writ petition.
During the course of hearing hearing, learned counsel for petitioners reiterated the contentions urged in the writ petition, while drawing the attention of this Court to the adangal copies, to establish the classification of the land in Sy.No.304 as Cart track (Bandi daari) so also the land in possession and enjoyment of these petitioners by producing the Field 4 Measurement Book. On the strength of these documents, learned counsel for the petitioners contended that the land in R.S.No.304 of Kontheru Village, Yelamanchili Mandal, West Godavari District cannot be converted into 'Government Assessed Waste Dry' to assign the same to the landless poor persons, depriving the petitioners from facility of passage and requested to issue a direction as prayed for.
Whereas, learned Assistant Government Pleader for Assignments contended that, after leaving the road on either side i.e. sufficient margin of 150 feet, the remaining land is proposed for the house sites. Therefore, the petitioners being the agriculturists cannot be permitted to encroach the lands for their use when it is classified as Government land and requested to dismiss the writ petition.
There is no dispute with regard to possession of the land by these petitioners and the same is supported by Form-1B produced along with the writ petition. Even the respondents also did not deny either possessing land by these petitioners or classification of land as Cart track (Bandi daari) as per the revenue records. On the other hand, R.S.No.304 of Kontheru Village, Yelamanchili Mandal, West Godavari District disclosed that the land in R.S.No.304 in an extent of Ac.1-02 cents is classified as Government land, as shown in Column No.6 of Adangal/Pahani and nature of the land in Column Nos.12 & 13 is mentioned as "Bandi daari".
In addition to the admission as to the classification of the land, the copy of F.M.B discloses that there is a Cart track (Bandi daari). But, the width of the main road is not disclosed in the petition or in the instructions placed on record. However, the respondents in their written instructions stated that there is sufficient road margin with 150 feet and the remaining land width is proposed for house sites.
5
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 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."
6In view of B.S.O 15(4) clause (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. Thus, from B.S.O 15(4) clause (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 owned and possessed by the farmers within the vicinity, since the same is being used as road.
As per B.S.O 15(2) the extent of land preserved by the Government like bunds, road 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 should be set apart for the road and the remainder can be dealt with as per the rules. Detailed lists of classes of work above referred to will be furnished by the Public Works Department. 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 road. If, the mandate under B.S.O 15(4) is followed, the land in Sy.No.304 of Kontheru Village, Yelamanchili Mandal, West Godavari District cannot be assigned.
Coming to the other part of the land the margins are uneven and at some parts the margin is minimum and at other part the margin is more. If, one chain on either side is required to be left, as per B.S.O 15(2), the 7 question of assigning the land to the landless poor at different parts of the survey number is impossible. Therefore, proposing to assign the land without leaving the margins as per B.S.O 15(2) is an illegality.
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 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 Post1.
1 2010 (4) ALD 374 8 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.
Section 58 of the Panchayat Raj Act is a special provision to divest the tanks, roads, etc, specified in Sections 54, 55 & 57 of the Act, 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 from Grama Panchayat and west on the Government.
In the absence of any notification issued by the Government divesting Gram Panchayats of any Poramboke lands either under Section 53(2) or 58(2) of Panchayat Raj Act, 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 Municipality2 and Banne Gandhi and others v. District Collector3). 2 2012 (5) ALT 631 3 2007 (2) ALT 550 9 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 Collector4, 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 land in R.S.No.304 of Kontheru Village, Yelamanchili 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 53(2) or 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 Sections 53(2) or 58(2) of Panchayat Raj Act is followed. On this ground alone, the action of respondents in taking steps to assign the land in R.S.No.304 of Kontheru Village, Yelamanchili Mandal, West Godavari District, for house sites to the Weaker Sections, is liable to be set-aside. Even after divesting the land from Gram Panchayat, by issuing notification either under Section 53(2) or 58(2) of the A.P. Gram Panchayat Raj Act, unless classification of the land is changed for cart track to A.W.D (assessed waste dry) by following the procedure as per para 2 of BSO 15, by issuing notice in Form-A1 calling fro objections etc., the said land cannot be assigned.
4 1997 (2) ALT 486 10 When the government wanted to introduce certain policy for the benefit of the poor of the State, the State is bound to follow G.O.Ms.No.510 Revenue (Lands-1) Department dated 30.12.2019 and the Andhra Pradesh Revenue Board Standing Orders.
While implementing such schemes, the State has to keep in mind the good governance, the word governance is defined as "the exercise of political, economic and administrative authority in the management of a country's affairs at all levels. Governance comprises the mechanisms, processes and institutions through which citizens and groups articulate their interests, exercise their political rights, meet their obligations and mediate their differences. Therefore, participation in administration by both men and women is the key cornerstone of good governance. Participation may be direct or indirect. Good Governance requires fair legal frameworks that are enforced impartially. It also requires protection of human rights, independent and impartial police force, and bureaucracy. It means that information is freely available and directly accessible to those who will be affected by such decisions and their enforcement, maintaining utmost transparency. Responsiveness is also part of Good Governance and while implementing such schemes, there must be a good response to the queries of the public at large and maintain equality, inclusiveness and efficiency while fixing accountability to the concerned officials who are directly or indirectly connected with the process of implementation of such schemes.
But, in the present facts of the case, though the State is conscious about the G.Os issued by it and B.S.Os, in utmost haste, started assigning the land to various persons though such assignment is impermissible under law. Therefore, the actions of the state do not satisfy the requirement of good governance.
11
Good Governance as a democratic exigency, in order to rid corruption, provides rights, the means, and the capacity to participate in the decisions that affect their lives and to hold their governments accountable for what they do, since the basic features or elements of good governance, it is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It assures that corruption is minimized, the views of minorities are taken into account and that the voices of the most vulnerable in society are heard in decision-making. It is also responsible to the present and fixture needs of the society.
Coming to the facts of the present case, with reference to good governance, the State in haphazard manner framed certain guidelines for providing house sites to landless poor within a time frame, without prior identification of the land, proposed to be assigned. But, in utmost hurry, the officials at different levels identifying the land somehow to satisfy the higher- ups in the administration, irrespective of feasibility and permissibility to assign those lands, totally ignored the orders issued by the Government, more particularly, G.O.Ms.No.510 Revenue (Lands-1) Department dated 30.12.2019 and the Andhra Pradesh Revenue Board Standing Orders, including the provisions of Panchayat Raj Act. Such haste acts leads to deprivation of rights of the citizen. In fact, in G.O.Ms.No.510 Revenue (Lands-1) Department dated 30.12.2019 itself, 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.
12
In view of B.S.O 15(4) clauses (h) and (m), water bodies, 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. Thus, from B.S.O 15(4) clause (m), land which is required for the provision of amenities to the community cannot be assigned. Therefore, the amenities provided to the farmers and citizens of the State cannot be taken away by assigning the lands to the landless poor in the schemes of the State in the name of providing house sites to the landless poor, since conferring right to one sect of people, depriving the others is not good governance.
Even according to the proviso to B.S.O 15(4) 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 grant of ek sal lease. But, the same cannot be converted by exercising power under B.S.O 15(2). In those circumstances, the proposal to assign the land in R.S.No.304 of Kontheru Village, Yelamanchili Mandal, West Godavari District, is a grave illegality.
Hence, the proposal of the respondents to assign the land mentioned in the written instructions, to the landless poor without adhering to B.S.O 15 mandatory procedure under A.P. Panchayat Raj Act is illegal. 13
In the result, writ petition is allowed, declaring the action of the respondents in proposing to assign house site plots in the land situated in R.S.No.304 of Kontheru Village, Yelamanchili Mandal, West Godavari District, without adhering to the guidelines issued by the State in G.O.Ms.No.510 Revenue (Lands-1) Department dated 30.12.2019 and B.S.O 15(4) of the Andhra Pradesh Revenue Board Standing Orders and proviso thereto, so also, Sections 53 and 58 of A.P. Panchayat Raj Act as illegal and arbitrary. Consequently, the respondents are directed not to assign the lands without following the mandatory procedure.
However, liberty is given to the State to take steps for assignment, identifying the land in R.S.No.304 of Kontheru Village, Yelamanchili Mandal, West Godavari District, strictly adhering to G.O.Ms.No.510 Revenue (Lands-
1) Department dated 30.12.2019 and B.S.O 15(2) and 15(4) of the Andhra Pradesh Revenue Board Standing Orders Sections 53 and 58 of A.P. Panchayat Raj Act, in the presence of the petitioners, after serving notice in writing, affixing the date and time for such identification and proceed further, in accordance with law.
Consequently, miscellaneous applications pending, if any, shall stand dismissed.
___________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 03.02.2020 IS 14 THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY WRIT PETITION No.2163 2020 Date: 03-02-2020 IS