IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
Writ Petition Nos. 9523, 11346, 11369, 11384, 11304, 11000, 10102, 10050, 9736, 12171 and 23446 of 2020
Decided On: 23.08.2021
Satti Madhu Reddy and Ors.
Vs.
The State of Andhra Pradesh and Ors.
Hon'ble Judges/Coram: M. Satyanarayana Murthy, J.
Counsels:
For Appellant/Petitioner/Plaintiff: S. Subba Reddy
For Respondents/Defendant: GP
ORDER
M. Satyanarayana Murthy, J.
1. All these writ petitions are filed under Article 226 of the Constitution of India to issue, Writ of Mandamus, declaring the action of the respondents to allot the land (road margins), Air Field Land abutting the petitioners land in Tadepalligudem, L. Agraharam (Kondrupolu) Village, Kunchanapalli and Kadakatla villages of Tadepalligudem Rural Mandal, West Godavari District, for distribution of house site to the weaker section, houseless poor under the scheme 'Navaratnalu-Pedalandariki Illu', as illegal, arbitrary and contrary to Articles 14 and 21 of the Constitution of India and consequently direct the respondents not to allot/assign the land stated supra as house sites.
2. The details of writ petitions, details of proposed land for assignment in survey number(s), are tabulated hereunder:
3. As the relief claimed in all these writ petitions is identical, as such, learned counsel for the petitioners and respondents advanced common argument. Hence, I am of the view that it is expedient to decide all these writ petitions by common order.
4. W.P. Nos. 9523, 11346, 11000, 10102, 10050, 9736 and 23446 of 2020 are treated as one set. In all the seven writ petitions, Tahsildar, Tadepalligudem filed counter affidavit. In W.P. No. 23446 of 2020, additional material viz., copy of endorsement of Public Information Officer in R.O.C. No. RTI/2020/31 dated 17.09.2020, copy of layout plan, copy of adangal and instructions of Tahsildar in Roc. No. 804/2020/DT dated 10.12.2020 are filed and they are taken on record. W.P. No. 9523 of 2020 is taken as leading case and the facts are as follows:
W.P. No. 9523 of 2020 is filed under Article 226 of the Constitution of India, to declare the action of the respondents, proposing to allot the land to an extent of nearly Ac. 0-30 cents out of Ac. 2-05 cents in Sy. No. 381 and nearly Ac. 0-20 cents out of Ac. 2-40 cents in Sy. No. 382 of L. Agraharam (Kondrupolu) Village, Tadepalligudem Rural Mandal, West Godavari District, 'Road Margin' as house site to the weaker section under Navaratnalu-Pedalandariki Illu, abutting to the petitioners lands in Sy. Nos. 190, 191 and 192 as illegal, arbitrary and contrary to Articles 14 and 21 of the Constitution of India and consequently direct the respondents not to allot/assign the land stated supra as house site.
5. The first petitioner is the absolute owner of the agricultural land of an extent of Ac. 3-65 cents in Sy. No. 190 of L. Agraharam Village (Kondrupolu). He purchased the same under registered sale deed dated 11.03.2010 for valuable consideration. The revenue authorities mutated the name of the petitioner and issued pattadar passbook and title deed in his favour. The land on eastern and southern side of the first petitioner's land, situated in Sy. Nos. 380 and 381 belongs to government.
6. Similarly, the second petitioner is absolute owner of Ac. 2-67 ½ cents in Sy. No. 192/2 of L. Agraharam (Kondrupolu) Village, which was devolved upon him under testamentary dispossession i.e., 'Will' dated 20.10.1995 executed by his father. Initially, he executed gift deed in favour of his minor daughter and also obtained pattadar passbook from revenue authorities and later cancelled the same. The second petitioner is yet to obtain pattadar passbook from the revenue authorities. On the southern side of the land referred supra, land belonged to government in Sy. No. 381 and 382 is situated.
7. It is contended that the government laid road i.e. R & B Major District Road, 153 in part of S. No. 381 and 382 from Tadepalligudem to Apparao Pet. The road is under the control of Executive Engineer, R&B Department, Kovvur, West Godavari District. After the road margins, 33 KV and 11 KV industrial electricity lines are passing and after that a major storm water drain is flowing all along the road margin. During the rainy season, the rain water collected from L. Agraharam, Pullayagudem and other surrounding villages is being stagnated in the petitioners lands. Two tunnels were constructed by British Government during Second World War to drain out the water.
8. It is further contended that, about 400 house units were constructed near the land of the petitioners under Indiramma and Rajiv Gruha Kalpa Scheme. Nearly 5300 housing flats were constructed under Pradhan Mantri Awas Yojna and they were allotted to the beneficiaries. Though the flats were allotted, beneficiaries could not occupy the same. Further, the staff of the office of Tahsildar, Tadepallgudem visited the road margin on 23.05.2020 and put some flags across the road margin between the road and the petitioners land beneath the electrical lines covering the storm water drain. On enquiry, the petitioners came to know that house sites will be allotted to the needy people for construction of houses on road margin under the scheme 'Navaratnalu Pedalandariki Illu'.
9. It is contended that, on either side of black top road, a small extent of land is available including road margin, which is being used by the farmers on either side of the road as thrashing floor to dry paddy. The vehicular traffic is being increased day-to-day and the existing road may not serve the public purpose without expansion. If pattas are issued, houses are allowed to be constructed between the fields and road, it will be very difficult to expand the existing road and to cultivate the land.
10. The Government of Andhra Pradesh issued G.O. Ms. No. 18 dated 18.02.2013 and G.O. Ms. No. 55 Transport, Road and Building (R-1) dated 08.04.2003, preventing installation of any statutes on the road margins. Since the right of the petitioners to access public road is being affected, they got locus standi questioning the act of the respondents intending to assign house site pattas on road margins abutting the land of the petitioners. Hence, the petitioners filed the writ petition to direct the respondents not to allot 'Road Margin' as house sites to the weaker section under the scheme Navaratnalu Pedalandariki Illu.
11. Respondent No. 4/Tahsildar, Tadepalligudem, West Godavari District, filed counter affidavit along with vacate stay petition, denying material allegations, inter alia, contended that, Ac. 33-80 cents in R.S. No. 190 in Kondrupolu Village of Tadepalligudem Mandal is classified as Zeroyti dry land. The first petitioner is having Ac. 3-60 cents in R.S. No. 190 and the second petitioner possessed Ac. 2-67 cents in R.S. No. 192-2 of L. Agraharam. Land in Ac. 2-05 cents in R.S. No. 381 and land in Ac. 2-40 cents in R.S. No. 382 is classified in village accounts as 'Road Poramboke. R & B major district road was formed in R.S. Nos. 381 & 382 from Tadepalligudem to Apparao Pet upto Nidadavole. The road width is about 30 links without disturbing the existing road respondents proposed the site for provision of house sites to the poor and needy under the scheme 'Navaratnalu Pedalandariki Illu' in road poramboke/margin in R.S. No. 381 and 382 of Kondrupolu Village. L. Agraharam village team identified an extent of Ac. 0-30 cents out of Ac. 2-05 cents in R.S. No. 381 and Ac. 0-20 cents out of Ac. 2-40 cents in R.S. No. 382 of L. Agraharam, Kondrupolu Village for providing house site to the poor and submitted a report to the Tahsidlar, Tadepalligudem. The Tahsildar, inspected the said land and did not propose the land in R.S. Nos. 381 and 382 in L. Agraharam. The petitioner occupied road margin land and cultivated paddy crop. The village team got the petitioners evicted from the occupied portion of the road margin land from the petitioners and requested to dismiss the writ petition.
12. W.P. Nos. 11369, 11384, 11304, 12171 of 2020 are treated as another set of writ petitions.
W.P. No. 11369 of 2020:
13. The petitioner possessed land of an extent of 355.55 square yards in R.S. No. 78/1 and 78/2 situated in Kadakatla Village, Tadepalligudem Municipality, Tadepalligudem, West Godavari District. It is the case of the petitioner is that, 80 feet common road existing to the southern side of the petitioner's land is being used as pathway for ingress and egress to the petitioner's land. The 80 feet common road is also being used by the local farmers and students of NIT Engineering College to go to college and return. While so, the respondents are plotting the said 80 feet common road and proposing to issue house site pattas in 80 feet common road under the scheme 'Navaratnalu Pedalandariki Illu'. The action of the respondents in trying to allot the 80 feet common road and the margins abutting to the petitioner's land is questioned in the writ petition.
W.P. No. 11384 of 2020:
14. Two writ petitioners are having agricultural land of an extent of Ac. 2-68 cents in Sy. No. 85/1 situated in Kadakatla Village, Tadepalligudem Mandal, West Godavari District. It is the case of the petitioner(s) that, 100 feet common road existing to the western side of the petitioners land is being used as pathway for ingress and egress to the petitioners land. The 100 feet common road is also being used by the local farmers and students of NIT Engineering College to go to college and return to their house. While so, the respondents are plotting the said 100 feet common road and proposing to issue house site pattas in 100 feet common road under the scheme 'Navaratnalu Pedalandariki Illu'. The action of the respondents in trying to allot the 100 feet common road which is abutting to the petitioners land is questioned, in the writ petition.
W.P. No. 11304 of 2020
15. This writ petition is filed by one E. Hema Venkata Suresh questioning the action of the respondents in attempting to dispossess from his property in an extent of 355.55 sq.yds vide Plot No. 13 in R.S. No. 78/1 & 78/2 of Kadakatla Village, Tadepalligudem Municipality.
16. The case of the petitioner in nut shell is that, there existed 80 feet road to the western side of the petitioner's land. However, road is in a width of only 30 feet was formed, leaving about 25 feet on either side of the said road as margins. While so, the respondents started to meddle with the property on the premise of distribution of house site pattas to the poor under the scheme 'Navaratnalu Pedalandariki Illu'. Therefore, the action of the respondents in trying to dispossess from part of petitioner's property and allotment of house sites in 80 feet common road is questioned in the writ petition.
W.P. No. 12171 of 2020: 17. The petitioners questioned the action of the respondents in dispossessing from part of their property in an extent of 355.55 sq.yards vide Plot No. 8 in R.S. Nos. 78/1 & 78/2 in Kadakatla Village, Tadepalligudem Municipality, along with 80 feet road on western side of the petitioners land for the purpose of distribution of house site pattas under the scheme 'Navaratnalu Pedalandariki Illu'.
18. While so, the respondents visited the petitioners land and 80 feet road, proposed to allot the same as house site, by issuing pattas to the poor under the scheme 'Navaratnalu Pedalandariki Illu'. The petitioner also contended that, the respondents are also erected poles in their sites. Therefore, the action of the respondents in proposing to distribute the land of these petitioners along with 80 feet road is questioned, in the writ petition.
19. In all the four writ petitions viz., W.P. Nos. 11369, 11384, 11304, 12171 of 2020, subject land is situated within the municipal limits of Tadepalligudem Municipality. The grievance of the petitioners specifically is that, the respondents are proposing to allot 'road margins' in Air Field Land abutting to the petitioners land, to the landless poor without following due process of law, such allotment will cause inconvenience to the public and the petitioners. The other contentions in these four writ petitions are similar to the contentions urged in W.P. No. 9523 of 2020. Therefore, the contentions raised in W.P. No. 9523 of 2020 need not be repeated again.
20. The Tahsildar, Tadepalligudem and Commissioner, Tadepalligudem Municipality filed separate counter affidavits in all the four writ petitions viz., W.P. Nos. 11369, 11384, 11304, 12171 of 2020.
21. The contentions of Tahsildar in all the four writ petitions are same as in W.P. No. 9523 of 2020, as such, no reiteration is necessary.
22. In the counter affidavit filed in W.P. No. 11369 of 2020, the Commissioner, Tadepalligudem Municipality specifically contended that, the Special Chief Secretary to Government & Ex-Officio Member, TTD, Revenue Department (Land and Endowments Department), Government of Andhra Pradesh informed to identify certain government land, for distribution of 25 lakh house site plots to the landless poor in D.O. Lr. No. 15/Spl. CS/2019 dated 04.07.2019. In order to implement the flagship programme 'Navaratnalu Pedalandariki Illu', Government issued orders in G.O. Ms. No. 367 Revenue (Assn. I) Department dated 01.08.2019 approving draft policy guidelines submitted by the Chief Commissioner of Land Administration. Accordingly, the District Collector, West Godavari, Eluru issued instructions to all the Tahsildars in the District vide Circular Rc. No. 860/2017/E/SPS dated 22.08.2019 to strictly follow the guidelines prescribed and complete the entire process and submit the list of eligible beneficiaries.
23. On verification, it was found that 4260 families of Tadepalligudem Municipalities are not having own houses or house sites for construction of residential houses. Thus, an extent of Ac. 79-27 cents is required for housing to the landless poor. An extent of Ac. 650-49 cents in Tadepalligudem, Kadakatla, Kondruprolu and Kunchanapalli villages was acquired by the then Collector, West Godavari, Eluru on 14.03.1944 under Rule 75-A(1) of the Defence of India Rules on 25.05.1943, dividing the area under different categories as vacant land, land covered by quarry, ponds, cement runway etc as shown in the table below:
24. It is contended that, the Ministry of Defence approached the State Government to take possession of the Air Field Land and the State Government vide Memo No. 3012/B1/86-10 Rev. B. dated 13.07.1987 agreed to take over the Air Field Land on custodian responsibility, subject to payment of market value to be finalized later. The Government directed the District Collector, West Godavari, Eluru to take possession of the Air Field land and furnish regular proposals for fixing market value of the said land. The Air Field Land measuring Ac. 650-49 cents has been taken possession on 03.08.1987 from the Defence Estate Officer, Visakhapatnam by the Mandal Revenue Officer, Tadepalligudem.
25. The Secretary, Government of India in Letter No. 10/41/RD/DE/SE/68/436/US/D (Air-III)/1999 dated 13.07.1999 informing transfer of Air Field Land to the State Government of Andhra Pradesh for consideration of Rs. 1.00 crore as against Rs. 4,03,69,091/- and physical possession of the Air Field land was handed over to the State Government on 03.08.1987 under the authority of Government of India, Ministry of Defence letter No. 10(2)/1988-D (Air-II) Vol-II dated 27.07.1987. Government of Andhra Pradesh vide Memo No. 41131/ANS. VII/2005-2 dated 27.09.2005 informed the Collector, West Godavari not to consider any proposals for allotment of any land out of an extent of Ac. 650-09 cents consisting of four villages viz., Tadepalligudem, Kadakatla, Kondruprolu and Kunchanapalli in Tadepalligudem Mandal, meant for Air Field, as it would be difficult to acquire land at later date, in case the available land is reduced due to allotment in favour of Navodaya Vidyalaya Samithi.
26. Government of Andhra Pradesh vide Memo No. 6648/Assn. II(1) 2001 dated 28.04.2015 issued orders duly relaxing ban orders on Air Field Land for an extent of Ac. 348-74 cents to utilize the said land for public purpose only. Accordingly the Air Field Land' was allotted to various government institutions when the ban on Air Field Land was lifted to an extent of Ac. 348-74 cents.
27. It is contended that, after acquisition of the land, Government has every right to utilize the land acquired for one purpose or the other public purpose other than the one stated under Section 6(3) of Land Acquisition Act, as held by the Apex Court in Gulam Mustafa v. State of Maharashtra MANU/SC/0400/1975 : 1977 AIR 448 and if the land is not required for which it was acquired due to any reasons, the land shall be utilized for any other public purpose as per Para 32 of B.S.O. 90. Therefore, the respondents proposed to assign the Air Field Land to landless poor.
28. It is further contended that, the respondents/authorities identified an extent of Ac. 76-02 cents of Air Field Land covered by R.S. No. 96, including an extent of Ac. 1-15 out of Ac. 2-03 cents in R.S. No. 77 and Ac. 1-93 out of Ac. 3-09 in R.S. No. 79, total Ac. 3-08 cents of Kadakatla Village of Tadepalligudem Mandal and Ac. 3-25 cents of village site land in R.S. No. 15/2 of Darsiparru village of Tadepalligudem Mandal (total Ac. 79-27 cents) as suitable for houses and thus proposed for providing house site plots to the landless poor under the scheme 'Navaratnalu Pedalandariki Illu'. It is contended that, there is no disturbance to the ryoths to their transportation of paddy, their agriculture produce and the remaining extent of Ac. 0-88 cents in R.S. No. 77 and Ac. 1-16 cents in R.S. No. 79 is still continued as existing Air Field Land on ground and there is no problem for ingress and egress to the public in the village and to provide housing. Thus, the land available in the municipality is identified only for the purpose of providing house site to landless poor under the scheme and finally requested to dismiss the writ petition.
29. Heard Sri. S. Subba Reddy, Sri. Y. Soma Raju, Sri. E.S.R. Prasad and Sri. Pappu Srinivasa Rao, learned counsel for the petitioners, learned Assistant Government Pleader for Revenue and learned Standing Counsel for Panchayat Raj/Municipalities.
30. Considering rival contentions, perusing the material available on record, the points that arise for consideration are as follows:
1. Whether the land covered by 'Road Margins' and 'Storm Water Drainage' is part and parcel of the road. If so, whether assignment of road margins and storm water drainage, is permissible, as per Andhra Pradesh Board Revenue Standing Orders or any other law?
2. Whether road margins are meant for public purpose. If so, whether the land earmarked for public purpose be alienated by way of assignment to the public even after its conversion from road margin to Assessed Waste Dry Land. If not, whether the proposed allotment of road margin as house sites by the respondents be declared as illegal, arbitrary and violative of Articles 14, 21 and 300-A of the Constitution of India. Consequently, direct the respondents not to assign the 'Road Margins' to landless poor under the scheme 'Navaratnalu Pedalandariki Illu'?
3. Whether assignment of land to the landless poor under Navaratnalu Pedalandariki Illu Scheme on the road margins and Air Field Land obstructs free flow of traffic and obstructs free flow of collected water during rainy season, while obstructing passage of these petitioners for their ingress and egress to their lands from the main road, thereby, infringed their right to use the road being the citizen and infringed the right to cultivate their land. If so, whether the direction as claimed by these petitioners be issued?
POINT Nos. 1 & 2:
31. Both, Point Nos. 1 & 2 are inter-connected to one another. Therefore, I find it expedient to decide both the points by common discussion.
32. The main grievance of the petitioners before this Court is that, the land of the petitioners is situated in Tadepalligudem, Kondrupolu, Kunchanapalli and Kadakatla villages and the respondents are trying to assign the land in 'road margins' adjacent to the petitioners land, to the landless poor under the scheme 'Navaratnalu-Pedalandariki Illu'. But, the respondents contended that, roads are wide enough and almost abandoned and the side land i.e. road margins are covered by bushes. Therefore, the respondents/authorities proposed to assign the land to landless poor, as it vested on the Government in view of the proceedings referred in the counter affidavit filed by the Commissioner, Tadepalligudem Municipality. Therefore, the road margins which are lying waste can be assigned to the landless poor under the scheme 'Navaratnalu Pedalandariki Illu'.
33. Apart from that, it is contended that, land which the respondents are proposing to distribute under the scheme is classified in village accounts as 'Road Poramboke'. Further, 30 links width R & B Major District Road was laid in R.S. No. 381 and 382 from Tadepalligudem to Apparao Peta upto Nidadavole by the R & B Department. The village teams of the four villages identified the side lands i.e. road margins for allotment of said land to the poor. It is the contention of the respondents that, the land in the said survey numbers is 'Air Field Land' and therefore, the petitioners cannot claim any relief, as it is vested on the Government and placed reliance on judgment of the Apex Court in Gulam Mustafa v. State of Maharashtra (referred supra).
34. In view of the rival contentions, it is necessary to advert to the definition of 'Public Street' under Section 2(31) of Andhra Pradesh Municipalities Act, 1965 and definition of 'Public Road' under Section 2(33) of the Andhra Pradesh Panchayat Raj Act, 1994, and it is as follows:
The word 'Public Street' is defined under Section 2(31) of the Andhra Pradesh Municipalities Act, 1965, as follows:
"public street" means any street, road, square, court, alley, passage or riding path over which the public have a right of way whether a thoroughfare or not, and includes-
(a) the roadway over any public bridge or causeway;
(b) the footway attached to any street public bridge or causeway;
and
(c) the drains attached to any such street, public bridge or cause way and the land, whether covered or not by any pavement, verandah, or other structure which lies on either side of the roadway upto the boundaries of the adjacent property whether that property is private property or property belonging to the Government;
35. Section 2(33) of the Andhra Pradesh Panchayat Raj Act, 1994, the word 'Public Road' is defined as follows:
'public road' means any street, road, square, court, alley, passage or riding path, over which the public have a right of way whether a thoroughfare or not, and includes-
(a) the roadway over any public bridge or cause-way;
(b) the footway attached to any such road, public bridge or cause-way; and
(c) the drains attached to any such road, public bridge or cause-way, and the land, whether covered or not by any pavement, verandah or other structure, which lies on either side of the roadway upto the boundaries of the adjacent property, whether that property is private property or property belonging to Government;
36. The definition of 'Public Street' under Andhra Pradesh Municipalities Act and 'Public Road' under Andhra Pradesh Panchayat Raj Act is an inclusive definition and it includes the site on either side of the roadway up to the boundaries of the adjacent property whether that property is private property or property belonging to the Government. The language employed in Section 2(33)(c) of the Andhra Pradesh Panchayat Raj Act is unambiguous that the site up to the boundary of adjacent property can be said to be 'Public Road' or 'Public Street' either under Andhra Pradesh Panchayat Raj Act or Andhra Pradesh Municipalities Act. Therefore, whatever the site left up to the land of these petitioners on either side of the road is deemed to be 'Public Street' or 'Public Road' as defined under Andhra Pradesh Panchayat Raj Act and Andhra Pradesh Municipalities Act.
37. Roads will vest on the municipality and panchayat, except the roads belonging to Roads and Buildings Department. Here, the petitioners and respondents admitted that, the proposed land for distribution to the poor under the scheme is 'road margin' in Air Field Land and Air Field Land. Hence, the road in dispute in different survey numbers as stated above did not vest either on the panchayat or on the municipality, as such, it is under the exclusive custody of Roads and Buildings Department, which is a State Government Wing.
38. Since, 'Road Margins' in the road of Air Field Land is under the control of R & B Department is proposed to be assigned under the scheme-Navaratnalu Pedalandariki Illu, road does not vest either on Panchayat or Municipality in terms of the provisions of both Andhra Pradesh Panchayat Raj Act and Andhra Pradesh Municipalities Act and it is exclusively under the control of R & B Department.
39. Classification of land still remained as poramboke and no change of classification was done by the respondents. Apart from that, B.S.O. 15(2) is to be followed for transfer of land from one department to other department of the State. But, no such transfer has taken place for transfer of land from R & B Department to Revenue Department, enabling the Revenue Department to assign the land to landless poor under the scheme Navaratnalu Pedalandariki Illu. In addition to transfer of land, as long as the classification is continuing to be road, unless specific procedure is prescribed under Board Standing Order for change of classification is completed, the land does not vest on the Revenue Department.
40. A separate procedure is prescribed for conversion of land from one category to the other category (classification) in B.S.O. 15(2). But the conversion is not under challenge in the present writ petition. However, the original classification that the land proposed for distribution is Air Field Land. The said fact is substantiated by producing lot of material and it is not disputed even as per the sub-division proceedings by the revenue department.
41. B.S.O. 15 deals with disposal of land. Clause (2) of B.S.O. 15 deals with classification of land. Land is classified in different categories, they are follows:
(i) Land prima facie available for assignment.
(a) Assessed land which is not reserved.
(b) Unassessed land which is not reserved.
(ii) Land prima facie not available for assignment.
(a) Poramboke.
(b) Reserved land ("assessed" and "unassessed").
42. Paragraph 3 deals with transfer of land from one head to another, which authorises the Collector to transfer of poramboke from one head to another or to assessed waste. But a procedure is prescribed under the Board Standing Order how to transfer such land.
43. However clause (4) of B.S.O. 15 deals with "lands that may be assigned and that may not be assigned." B.S.O. 15 (4) (ii) (a) prohibits assignment of Poramboke tank-beds, fore-shore of tank-beds cattle stands, grazing lands and reserved lands (reserved for depressed class members) or for any public purpose, such as schools, play grounds, hospitals, maternity centres, reading rooms, extension of house sites, panchayat purposes, town sites and lands in the proximity thereof.
44. The very distribution of land to landless poor in the 'Road Margins' of the Air Field Land and Air Field Land by the State Government itself is a serious illegality and it certainly amounts to circumventing the procedure and A.P. Revenue Board Standing Orders obviously for different reasons.
45. In the instant case, the respondents did not change classification of land and still the classification remains as 'road'. In the absence of change of classification, R & B Department is custodian of the property and the classification is only 'road'. As long as it's classification is continuing as 'road', it cannot be assigned to anyone, as it is meant for public or community use. The nature of land is not changed by following the procedure prescribed under A.P. Revenue Board Standing Orders. Hence, the land which is classified as 'Road Margins' in Air Field Land and the Air Field Land cannot be assigned to third parties.
46. In Jagpal Singh & Others v. State of Punjab & Others MANU/SC/0078/2011 : AIR 2011 SC 1123, at paragraph No. 4, the Apex 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 MANU/SC/0495/1972 : 1972(1) SCC 521 (529), this Court observed:
"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."
47. In view of the principle laid down by the Supreme court in the judgment referred above, particular piece of land is earmarked for public or communal purpose, it shall not be alienated even after change of classification of the land. Admittedly, the Air Field Land is classified as 'Road' and it is meant for use of public or community purpose. Such right of public is to be protected. Further, nature of land is not changed by following the procedure prescribed. Apart from that, the land is not transferred from one department to other, as discussed above. Hence, 'Road Margins' in the Air Field Land and Air Field Land cannot be assigned to landless poor under the scheme 'Navaratnalu Pedalandariki Illu'.
48. One of the contentions raised by respondents is that, the State acquired Air Field Land by paying Rs. 1-00 crore as market value as against Rs. 4-00 crores, thereby, the Government became owner of the property.
49. In any view of the matter, when there is a clear ban on using the 'Air Field Land' by Government of Andhra Pradesh vide Memo No. 41131/ANS. VII/2005-2 dated 27.09.2005 informing the Collector, West Godavari not to consider any proposals for allotment of any land out of an extent of Ac. 650-09 cents, the State Government/Authorities or the Revenue Officials are not entitled to allot the land out of Ac. 650-09 cents, which is classified as Air Field Land'. However, Government of Andhra Pradesh vide Memo No. 6648/Assn. II(1) 2001 dated 28.04.2015 issued orders duly relaxing ban orders on Air Field Land for an extent of Ac. 348-74 cents to utilize the said land for public purpose only. Accordingly, part of the Air Field Land' was already allotted to various government institutions after lifting the ban. Thus, the ban is lifted only for an extent of Ac. 348-74 cents and still the ban is continuing against the other part of the property i.e. Ac. 301.35 cents. As per the pleadings of the Tahsildar, Tadepalligudem or the Commissioner, Tadepalligudem Municipality, nothing is averred about relaxation of ban on balance extent of Air Field Land'. In the absence of relaxation of ban, the land cannot be allotted to anyone, in view of Memo No. 41131/ANS. VII/2005-2 dated 27.09.2005. On this ground also, the land classified as Air Field Land' cannot be assigned to landless poor under the scheme 'Navaratnalu Pedalandariki Illu'.
50. One of the contentions raised by Commissioner, Tadepalligudem Municipality is that, as per Para 32 of B.S.O. 90 of Andhra Pradesh Revenue Board Standing Orders, when the land is acquired for a specific purpose, it can be utilized for any other purpose and relied on the judgment of Apex Court in Gulam Mustafa v. State of Maharashtra (referred supra). Taking advantage of the judgment, it is contended that, land can be utilized for any other purpose and that, the assignment of land to landless poor is a public use and requested to dismiss the writ petition on this ground.
51. Undoubtedly, the State being the owner of the land can utilize the property for any public purpose, when it was acquired. Here, it is not the question of acquisition of property invoking the provisions of Land Acquisition Act. But, the land was purchased by the State Government from Ministry of Defence. Therefore, Para 32 of B.S.O. 90 has no direct application to the present facts of the case. However, the State being the owner of the property can utilize the property for any other public purpose, subject to compliance of other conditions. But, the principle laid down by the Apex Court in Gulam Mustafa v. State of Maharashtra (referred supra) cannot be applied to the present facts of the case, for the reason that no land is acquired under the relevant Act.
52. Accordingly, Point Nos. 1 & 2 are answered in favour of the petitioners and against the respondents.
POINT No. 3:
53. One of the major contention of the petitioners before this Court is that, on account of proposed allotment of 'road margins' in Air Field Land and Air Field Land, the road is going to reduce its width and thereby there is a possibility of traffic congestion, besides obstruction to free flow of traffic and collected water from the villages, as there is a storm drain by the road side.
54. No doubt, the road leading from Tadepalligudem to Apparao Pet village is surrounded by various colonies and it is being used by the public for the present. The width of the present black top road is 30 to 35 feet and it is not catering needs of the public for the present and in future, there is every possibility of increase of population and traffic. In such case, it is difficult to widen the road to cater to the needs of the public and pass through the road to the neighbouring villages and highways, besides obstructing free flow of water. Apart from that, if any residential buildings are constructed, it is difficult to let out the water through culverts also. When the roads and road margins are meant for the public purpose, as stated above, there shall not be any obstruction in the roads for free flow of traffic. The Apex Court has considered a similar situation regarding obstruction of foot path, street or pavements in Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan and others: AIR 1997 SC 152, wherein the Apex Court held that, Footpath, street or pavement are public property which are intended to serve the convenience of general public. They are not laid for private use indeed, their use for a private purpose frustrates the very object for which they carved out from portions of public roads. The main reason for laying out pavements is to ensure that the pedestrians are able to attend their daily affairs with a reasonable measure of safety and security. This facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. The claim of the pavement dwellers to construct huts on the pavement or road is a permanent obstruction to free passage of traffic and pedestrians' safety and security. Therefore, it would be impermissible to permit or to make use of the pavement for private purpose. They should allow passing and re-passing by the pedestrians. No one has a right to make use of a public property for the private purpose without the requisite authorisation from the competent authority. It would, therefore, be but the duty of the competent authority to remove encroachments on the pavement or footpath of the public street obstructing free flow of traffic or passing or re-passing by the pedestrians.
55. In Municipal Board, Mangalur Vs. Sri. Mahadeoji Maharaj, AIR 1965 SC 1147, the Supreme Court succinctly held that, Subject to the right of the public to pass and re-pass on the highway, the owner of the soil in general remains the occupier of it, and as such may maintain trespass against any member of the public who acts in excess of his right.
56. In Halsbury's Law of England, 3rd Edition Volume-19, at page 49, rules of presumption and proof of dedication are stated thus "The fact that a way has been used by the public so long and in such a manner that the owner of the land, whoever he was, must have been aware that the public believed that the way had been dedicated, and has taken no steps to disabuse them of that belief, is evidence (but not conclusive evidence) from which a court or jury may infer a dedication by the owner. The law on the subject may be briefly stated thus: Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user. The side land is ordinarily included in the road, for they are necessary for the proper maintenance of the road. In the case of pathway used for a long time by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usually indicate the extent of the user.
57. Thus, from the principle extracted in the above judgment, it is clear that, the road margins also forms part of the road and it is presumed to be dedicated to the public and the public are entitled to use the entire road and road margins i.e. the side land which is a part of road (road margins).
58. In Sanjay Agarwal and another Vs. Nagar Mahapalika, Allahabad AIR 1999 Allahabad 348, the issue before the Court was whether public roads can be obstructed by squatters or whether the local administration can permit Tehbazari on public roads or in front of rate payers' properties. The matter before the Apex Court was one of public law. The Court after referring to various judgments held as follows:
"21. It is hard to believe that the local administration is unaware who is occupying State land, and is unmindful of encroachments on public roads and a vegetable market which has during day time blocked, obstructed and rendered a public road useless....... It is law that public roads and side-walks cannot be blocked or encroached by anyone not even the Government......
22. The roads and its side-walks, the patri, are laid for passage only and for no other and the Supreme Court said in the matter of Municipal Board, Mangalaur Vs. Mahadeoji Maharaj (referred above), even facilities like a piyao (drinking water kiosk), library or a statue of Mahatma Gandhi cannot be put on a roadside patri. This case was followed in State of U.P. Vs. Ata Mohd., (AIR 1980 SC 1785). The Supreme Court held if the municipality put the street to any other user than that for which it was intended, the State as its owner, was entitled to intervene and maintain an action to get any person in illegal occupation evicted. In the case of Bombay Hawkers' Union Vs. Bombay Municipal Corporation, (AIR 1985 SC 1206) the Supreme Court held that "no one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public. Public Streets, by their very nomenclature and definition, are meant for the use of the general public. They are not laid to facilitate the carrying on of private trade or business. If hawkers were to be conceded the right claimed by them, they could hold the society to ransom by squatting on the centre of busy thoroughfares, thereby paralysing all civic life. Indeed, that is what some of them have done in some parts of the city. They have made it impossible for the pedestrians to walk on footpaths or even on the streets property so-called." In the case of Olga Tallis Vs. Bombay Municipal Corporation, (AIR 1986 SC 180) the Supreme Court held that a municipality is empowered to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access. In this case the Supreme Court also observed that "In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets." The Supreme Court was also dismissing misplaced arguments resting on life and liberty by those who were claiming occupation of public streets. In this regard, the Supreme Court observed that " There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and repassing, are competing claims and that, the former should be preferred to the later." In the case of Delhi Municipal Corporation of Delhi Vs. Gurnam Kaur, (AIR 1989 SC 38), the Supreme Court reiterated the law that to remove an encroachment of a public road is the obligation of a municipality and that an injunction could not be granted to suffer an encroachment of a public place like a street which is meant for the use of the pedestrians. In the matter of Sodan Singh Vs. New Delhi Municipal Committee, (AIR 1989 SC 1988), the Supreme Court did not permit the plea of life and liberty to be raised, in the context, of carrying on trade or business on a public road. It is in this case that the Supreme Court also held that there can be no fundamental right of a citizen to occupy a particular place where he can squat and engage in trading business. In the case of Ahmedabad Municipal Corporation Vs. D. Balwantsingh, (1992 (2) JT (SC) 363), the Supreme Court negatived the plea of an occupier of a public street when he obtained an injunction in a suit to prevent the removal of an encroachment. The Supreme Court reiterated its earlier decisions. Removal of encroachment was upheld; so was the action of the municipal corporation to shift the hawkers to an alternate site. In the case of Gobind Pershad Jagdish Pershad Vs. New Delhi Municipal Committee, (AIR 1993 SC 2313), the Supreme Court extended the public street into the verandas in front of a shop which by long user had been used by the public as a passage. Thus, shopping arcades or verandas adjoining public streets were given the declaration of a public street. Encroachment of such verandas in front of public streets was held as illegal.
23. The law as has been settled by the Supreme Court now provides sufficient guidelines that hawking cannot take place on public roads and streets nor on the side walks. Simply, public streets and sidewalks are to be kept clear for the purposes of passage only and for no other purpose. In so far as hawking on public roads is concerned, Tehbazari as it is known in this State, the Supreme Court has made it absolutely clear that no hawker or squatter has any particular right to any particular spot on a public road. The arguments of life and liberty under Article 21 to occupy a public road has been repelled.
23. The law as has been settled by the Supreme Court now provides sufficient guidelines that hawking cannot take place on public roads and streets nor on the side walks. Simply, public streets and sidewalks are to be kept clear for the purposes of passage only and for no other purpose. In so far as hawking on public roads is concerned, Tehbazari as it is known in this State, the Supreme Court has made it absolutely clear that no hawker or squatter has any particular right to any particular spot on a public road. The arguments of life and liberty under Article 21 to occupy a public road has been repelled."
59. The law laid down by the Supreme Court in the above judgments is reiterated by the Madras High Court in G. Angamuthu v. The District Collector1, it is clear that no obstruction should be caused for free flow of traffic, including pass and re-pass of public, including the side land of the road which forms part of the road by its user or by the public. It is the duty of the State to maintain those roads including side land and see that, no trespass is to be allowed, instead of protecting the public road and its side land and margins. In fact, it's classification is not changed from road to Assessed Waste Dry land road till date, but the State Government is resorting to obstruct free passage on the road or pass or re-pass of the public, proposing to assign the side land of the road i.e. road margins which is extended up to the boundary of the adjacent owners. Such act would cause obstruction to the traffic and depriving the public from using the entire road which is inclusive of side land, as it was dedicated to the public by its long user.
60. One of the major contentions of the petitioners is that, in case, the 'road margins' in Air Field Land and Air Field Land is assigned to landless poor under the scheme Navaratnalu Pedalandariki Illu, passage to the land of the petitioners is likely to be closed and it is impossible for them to cultivate their land. In this context, learned counsel for the petitioner would rely on the judgment of the S. Someswara Rao and Others v. S. Tirupatamma and Others 1988 (2) LS 223 wherein this Court held that, No person can be allowed to occupy a portion of a public road, a highway, or even a public pathway and argue that even after his encroachment there is sufficient space left for public to pass by. He cannot be the judge of the requirements of the public, nor can he decide for himself what extent must be left for public use and what extent must be occupied by him. The principle laid down in S. Someswara Rao and Others v. S. Tirupatamma and Others (referred supra), is reiterated by this Court in Talari Nageswara Rao and Ors. v. Nakkala Pushpavathi and Ors.2
61. In The Commissioner, Panruti Municipality, Panruti v. Sri. Kannika Parameswari Amman Temple, rep. by its Managing Trustee, K Narasimhalu Chettiar (1996) 2 MLJ 339, the High Court of Madras held in clear terms that the Municipality does not have a right to deprive the owners of the property abutting a public street or public road of their right to ingress and egress though the public street vested with the Municipality, It has also been held that the vesting of the public street/public road in the authority shall not give a right to such authority to deprive the owners of the adjacent land of their right to have access to the public road/public street from any point. Suffice to state that the owners of the land adjoining the street or road margin are entitled to see that access to their property from the street; or road to the entire length is not obstructed by any construction which is not necessary for the maintenance and upkeep of the property as a road or street, as the case may be. The same principle is reiterated in State of Tamil Nadu v. D. Samiyathal (2012) 8 MLJ 41.
62. In view of the law laid down by Supreme Court, High Court of Andhra Pradesh and persuaded by the judgments of High Court of Madras, it is the duty of the municipality or the concerned authorities having control over the land to see that, the side land of road should not be encroached by anyone. But, here, the revenue authorities are not encroaching the land. However, the State is trying to allot the land by dividing the site into plots to landless poor persons and laid a lay-out. Copy of lay-out plan issued by Tadepalligudem Municipality is placed on record, which discloses that, road margins are being converted into house sites, as per Endorsement in Roc. No. RTI/2020/G1 dated 17.09.2020. The State prepared list of beneficiaries for allotment of land in R.S. Nos. 380, 381, 382 & 400 of Kondrupolu, Tadepalligudem Municipality for allotment of house site under the scheme 'Navaratnalu-Pedalandariki Illu'. The lay-out plan discloses allotment of house sites on either side of the road to some extent to 119 beneficiaries. The lay-out plan is reproduced hereunder:
63. A bare look at the lay-out plan, the access from the adjacent land owners to the road is obstructed and they are being deprived of their ingress and egress to their land from the main road on account of those obstructions, in the event of allotting the road margins to landless poor persons.
64. When the road is inclusive of the side land (road margins) connecting the land of adjacent land owners and it forms part of public street or public road, it cannot be assigned to any third party. Even according to B.S.O. 15, when a road runs through the land applied for assignment, a width of at least one chain should be set apart for the road for future expansion. But, here, the State Government intended to reduce the width of the road, depriving the public from enjoying the right to pass and re-pass on the road without taking into consideration of the future requirement of road margins for road expansion or widening of road. Such act is not permitted, more particularly, when the entire road is dedicated to the public. Even if the road margins are re-classified as Assessed Waste Dry lands, it cannot be alienated by the State, as it was dedicated to the public or for community purpose. Apart from various provisions referred above, the law laid down by Apex Court in Jagpal Singh & Others v. State of Punjab & Others and Ranjit Singh v. State of Punjab (referred supra), even if the land is vested on the 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 the road. Therefore, the proposed allotment of land on the road margins to the landless poor by granting assignment under the scheme 'Navaratnalu Pedalandariki Illu' is contrary to the settled law and it will obstruct the free passage to the land of these petitioners on either side of the road and the public are deprived of their right to pass and re-pass on the road on account of obstruction likely to be caused in the event of assignment of road margins to the landless poor persons. Therefore, the act of the respondents/State in proposing to allot house site plots by issuing pattas to landless poor on the road margins may result in obstruction to free flow of traffic and collection of rain water through rain storm drainage and thereby, the public will be deprived of usage of the road and consequently, the proposed act of the respondents to assign the land to landless poor in the road margins is a serious illegality and it is against the interest of the public. Accordingly, I hold that the respondents/State Government is not entitled to obstruct the free passage to the land owners adjacent to the road throughout their land. Accordingly, the point is answered against the State and in favour of the petitioners.
65. 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.
66. 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.
67. In view of B.S.O. 15(4)(h, 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)(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.
68. Hence, proposal of the respondents to assign house site in 'road margins' in Air Field Land and Air Field Land is a serious illegality and it is against the interest of the public.
69. In the result, writ petitions are allowed, directing the respondents not to assign 'road margins' in Air Field Land and Air Field Land to landless poor under the scheme-Navaratnalu Pedalandariki Illu, while declaring the action of the respondents in proposing to allot the land in different survey numbers of four villages viz., Tadepalligudem, Kadakatla, Kondruprolu and Kunchanapalli in Tadepalligudem Mandal, and No costs.
70. Consequently, miscellaneous applications, pending if any, shall stand closed.
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