Andhra Pradesh High Court - Amravati
Madiboina Subba Reddy vs State Of Andhra Pradesh on 29 July, 2020
Author: M. Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.11236 of 2020
ORDER:
This Writ Petition, under Article 226 of the Constitution of India, is filed to issue a writ of Mandamus declaring the high handed action of the respondents, in proposing to give house site pattas under the 'Navaratnalu-Pedalandariki Illu' Scheme of the Vagu and Donka Poramboke lands to an extent of Ac.1.35 cents in Survey No 740, Ac.0.09 cents in Survey No.741-5, Ac. 0.90 cents in Survey No. 741-5, Ac.0.74 cents in Survey No.742, Ac.0.82 cents in Survey No.742, Ac.0.20 cents in Survey No.743, Ac.0.23 cents in Survey No.743, Ac.1.27 cents in Survey No.743, Ac.2.24 cents in Survey No.753-1, Murukonda Village, Baptla Mandal, Guntur District without any authority of law, without notice and without following due process of law, as illegal, arbitrary, unconstitutional and contrary to the principles of natural justice.
2. Petitioner is a small farmer and owns and possesses an extent of Ac.0.50 cents in Sy.No.745-9, Ac.0.36 cents in Sy.No.746-2, Ac .0.80 cents in Sy.No.737-3, Ac.0.05 cents in Sy.No.745-9 and Ac.0.33 cents in Sy.No.745-10D of Murukondapadu Village, Bapatla Mandal. The land is situated 1 by the side of Donka passing through the survey numbers to an extent of Ac.1.35 cents in Sy.No.740, Ac.0.09 cents in Survey No.741-5, Ac. 0.90 cents in Survey No. 741-5, Ac.0.74 cents in Survey No.742, Ac.0.82 cents in Survey No.742, Ac.0.20 cents in Survey No.743, Ac.0.23 cents in Survey No.743, Ac.1.27 cents in Survey No.743 and Ac.2.24 cents in Survey No.753-1 and the Donka is the only ingress and egress to his agricultural lands and the said way is in existence since British rule, since it was being used from Chennai to Machalipatnam for transportation of the goods. On coming to know about the proposal to assign the land, granting D-Form pattas, petitioner and other villagers made a representation, dated 11.06.2020, to the respondent Nos.2 and 3 requesting not to assign house site issuing pattas for the subject Donka lands but no action has been taken so far.
3. While the matter stood thus, on 09.06.2020, the third respondent came to the petitioner's Donka poramboke land, which is situated adjacent to the land, and started measuring the same. On enquiry, they informed to the petitioner that the land is proposed for assignment as house sites to the houseless poor persons in the village under the scheme 'Navaratnalu- Pedalandariki Illu'. Respondents have no authority of law to 2 assign Vagu and Donka poramboke land as house sites and, in case the land is assigned to houseless poor persons, petitioner will be deprived of his right to ingress and egress.
4. It is further contended that the attempt made by the respondent Nos.2 and 3 to assign Vagu and Donka poramboke is contrary to Sections 53 and 58 of the A.P.Panchayat Raj Act,1994 (for brevity, 'the Act') and also 15 (4) of the Board Standing Orders. Respondents have no authority to assign those lands and, therefore, the proposed action is illegal and arbitrary and requested to issue a writ of Mandamus as stated above.
5. Petitioner produced the documents in Form-IB to establish classification of the land as per ROR and also produced the documents to establish that he owns and possesses the land in the said survey numbers. Based on the above documents, he requested to issue a direction as stated above.
6. During hearing, learned counsel for the petitioner reiterated the contentions while relying on Sections 53 and 58 of the Act besides placing reliance on 15(4) of the A.P.Revenue Board Standing Orders and requested to pass appropriate orders. Whereas the learned Government for Revenue did not file any counter, however, placed on record the written instructions 3 received from the Revenue Department while admitting that the said land was classified as Donka Poramboke and Vagu Poramboke in different survey numbers, as stated by the petitioner, however, contended that the bar under Section 58 (2) of the Act has no application in view of the G.O.Ms.No.558 Panchayat Raj & Rural Development (Pts.II) Department, dated 02.03.2020, and in exercise of the powers vested under Section 58 (2) of the Act, issued G.O.Ms.No.558 Panchayat Raj & Rural Development (Pts.II) Department, dated 02.03.2020, the land is vested in the Government, thereby, the proposal to assign the land to the houseless poor under the scheme 'Navaratnalu- Pedalandariki Illu' is in accordance with law. It is further submitted that the land was classified as Donka poramboke in Sy.No.739 to an extent of Ac.2.59 cents, Sy.No.742 to an extent of Ac.1.56 cents and Sy.No.743 to an extent of Ac.1.70 cents. A copy of the said G.O. is annexed to the written instructions. He, therefore, requests to dismiss the Writ Petition.
7. Considering the rival contentions and perusing the material available on record, the point that arises for consideration of this Court is:
"Whether such lands classified as vagu and donka poramboke be assigned or alienated in favour of houseless poor granting pattas by alienating the same in any other mode and 4 whether the proposed action of the respondents to assign or alienate the land in the above survey numbers in favour of houseless poor be declared as illegal, arbitrary and violative of 15 (4) of the Board Standing Orders and Sections 53 and 58 of the Act?
8. Undisputedly, the land proposed to be assigned is classified as Vagu and Donka poramboke but the State totally relied on G.O.Ms.No.558 Panchayat Raj & Rural Development (Pts.II) Department, dated 02.03.2020. Since the G.O. was issued in compliance of Section 58 (2) of the Act, whereby the land is vested on the Government divesting the land from the Gram Panchayat, the Government can deal with the land as per its requirement.
9. According to Section 58 (1) of the Act the following porambokes, namely grazing grounds, threshing floors, burning and burial grounds, cattle stands, cart stands 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 are deemed to have vested in the Gram Panchayat on its constitution and as per sub-Section (2) of Section 58 of the Act, the State is competent to de-notify the same divesting the land from the Gram Panchayat and vest with the Government and 5 hence, the Government issued G.O.Ms.No.558 Panchayat Raj & Rural Development (Pts.II) Department, dated 02.03.2020, divesting the land from the Gram Panchayat and vested on the Government.
10. Donka poramboke and Vagu poramboke means a passage for the local people and it being used by the local people, it can be described as communal property. That communal property though vested on the Gram Panchayat initially and divested from the Gram Panchayat vesting the same on the Government in terms of G.O.Ms.No.558, Panchayat Raj & Rural Development (Pts.II) Department, dated 02.03.2020, still the public or the community of the village cannot be deprived of their right to use the property.
11. In Jagpal Singh & Others v. State of Punjab & Others (Civil Appeal No.1132/2013 @ SLP © No.3109/2011), at paragraph No.4, the Court held as follows:
"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. Paladuge Anjayya, 1972(1) SCC 521 (529) this Court observed :6
"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 the 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 landholder. Hence those rights cannot be said to have been abrogated by Section 3) of the Estates Abolition Act."
12. As per Section 53 of the Act, all public roads in any village, other than National Highways, State High Ways 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 therefor, 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.
13. Similarly, according to Section to Section 55 of the Act, communal property is also deemed to have been vested in the panchayat and the income derived therefrom has been administered for the benefit of the villagers in common or the holders in common of village land generally or of lands of a 7 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 aforesaid.
14. According to Section 58 of the Act, the following porambokes namely, grazing grounds, threshing floors, burning and burial grounds, cattle stands, cart stands 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.
15. Sub-Section (2) of Section 58 of the Act 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.
16. Therefore, a gazette notification is necessary to divest the property from the Gram Panchayat, vest on Government. In the present case, G.O.Ms.No.558, Panchayat Raj & Rural Development (Pts.II) Department, dated 02.03.2020, was issued in compliance of Section 58 (2) of the Act de-notifying certain poramboke lands, which are vested with Gram Panchayats 8 under sub-Section (1) of Section 58 of the Act, shall cease to vest in the Gram Panchayat and they shall vest with the Government for providing house sites to the homeless poor under the flagship programme 'Navaratnalu-Pedalandariki Illu'. Therefore, the bar under Section 58 (2) of the Act has no application now. The only ground that is available to the petitioner is that communal land meant for use of villagers cannot be assigned in terms of Clause (4) of Board Standing Orders No.15 which deals with lands that may be assigned and may not be assigned and it is extracted hereunder:
"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;9
(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 "patimatti" 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."
17. In view of Board Standing Order No.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 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.
18. Thus from Board Standing Order No.15 (4) (m) land which is required for the purpose of maintenance of the community 10 cannot be assigned, since the same is being used as road or pathway or passage and to natural flow of excess water from the natural stream. Therefore, the lands in dispute i.e. Donka poramboke or Vagu poramboke are only meant for public use i.e. ryots within the vicinity of the Donka poramboke or Vagu poramboke for ingress and egress to their lands that means Donka is being used by the individual villagers themselves and in case the land is converted into house site they cannot cultivate their agricultural lands. Therefore, the proposed assignment of Donka poramboke and Vagu poramboke etc., is contrary to the Board Standing Order 15 (4). On this ground, the proposed assignment is illegal. Hence, I am of the view that the proposed assignment of Donka poramboke and Vagu poramboke will deprive the villagers at large and thereby it drastically affects the rights of the petitioners and other villagers.
19. When the land is classified as 'Donka' poramboke or 'Vagu poramboke', this is only a reservation of the land for common purpose, scale, modes of utilisation, mechanism of management, with whom title of the land to continue and how the same would be described in revenue records was provided by the Rules concerned. Common purpose means for common need, convenience or benefits of village. It was further elaborated like 11 as extension, roads, paths, drains, wells, ponds, tanks, water courses, or channels, bus stands, waiting places, manure pits, public latrines, cremation grounds and burial grounds, panchayat ghars, jhanj ghars, grazing grounds, tanning places, neera grounds, public places for religious and charitable nature, schools, play grounds, dispensaries, hospitals and institutions of the nature, water works tubewells etc., irrespective of their management by the State or not. In the same sequence, lastly it means when the land is reserved for common purpose i.e. for the use of entire village, such land cannot be assigned in view of the bar under Clause (m) of the Board Standing Order-15 (4).
20. In Jain Singh and others v. State of Haryana, at the end of paragraph No.36, it is observed that there is no gain saying that effect on individual rights without its social impact, simply cannot exist. It is the individual right and social impact which has to be balanced. Either of them cannot be permitted to be master of the other. Reference may be made to Ranjit Singh v. State of Punjab (AIR 1965 SC 632) and ultimately concluded that when once the land was reserved for common purpose like earmarked land as Donka poramboke and Vagu poramboke, it cannot be assigned, depriving the villagers at large. Therefore, the proposed act of the respondent in making attempt to assign 12 the land donka as vagu poramboke to houseless poor under the scheme 'Navaratnalu-Pedalandariki Illu' is contrary to the Board Standing Orders depriving the community or the villagers at large from enjoying the right of ingress and egress to cultivate their lands.
21. In any view of the matter, it is evident that the Government issued G.O.Ms.No.510 Revenue (Lands-1) Department, dated 30.12.2019, where the Government issued instructions to the Collectors to notify and not to notify certain lands. Paragraph No.8 of the said G.O. reads thus:
"The District Collectors are further instructed that 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"
22. Water courses like river beds cannot be identified for assigning the land under the scheme 'Navaratnalu-Pedalandariki Illu'. Vagu poramboke is a part of water bed and it is meant for flow of water. When the Vagu is overflown, if such water flow is not obstructed, the lands will be inundated due to overflow of water. Therefore, the proposed act of the respondents is illegal, arbitrary and contrary to the Board Standing Order 15(4) (m). 13 Apart from various provisions referred above, the law laid down by Apex Court in Jagpal Singh's case (referred supra), even if the land is vested on Government, it does not mean the villagers lost the right of common usage, still they are entitled for protection of their right. Consequently the proposed assignment will deprive the villagers' common use of Donka poramboke or Vagu poramboke. Hence, I find that it is a fit case to issue a writ of Mandamus declaring the highhanded action of the respondents as illegal.
23. In the result, Writ Petition is allowed at the stage of admission. There shall be no order as to costs.
24. As a sequel thereto, miscellaneous petitions, pending if any, shall stand closed.
___________________________________ M. SATYANARAYANA MURTHY, J 29th July, 2020 Tsy 14