IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON’BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
&
HON’BLE MR. JUSTICE D.V.S.S. SOMAYAJULU
WRIT PETITION (PIL).Nos. 140 of 2022, 112 of 2016, 233 of 2020, 271 of 2020, 317 of 2020, 12 of 2021, 130 of 2021, 208 of 2021, 240 of 2021, 259 of 2021, 4 of 2022, 94 of 2022, 100 of 2022, 101 of 2022, 125 of 2022, 128 of 2022, 129 of 2022 & 133 of 2022;
WRIT PETITION Nos.12511 of 2010, 9470 of 2010, 10778 of 2010, 25322 of 2011 & 29658 of 2011 (Through physical mode)
COMMON ORDER (ORAL)
Dt: 14.09.2022
(per Prashant Kumar Mishra, CJ)
The issue brought before this Court in the present writ petitions filed in the nature of public interest litigation, is regarding the inaction of the State and its authorities in protecting the government lands of different classifications, viz., tank land/grama kantham/burial ground/forest land/road margin/play ground/cart track/hill poramboke/coastal areas/grazing land etc. Since the issue is common in all the writ petitions, they are heard together and are being disposed of by this common order.
2. At the outset, we make it clear that though the alleged encroachers of the subject government lands have been made parties to some of the writ petitions, we are not venturing into any independent allegations against any particular individual, and owing to the public interest involved, we would like to examine the duty and responsibility of the State and its authorities in protecting the government lands from encroachments.
3. We have heard the learned counsel for the parties and perused the material available on record.
4. The issue of encroachment of government lands/public utility lands vested in the State, which are meant for common benefit of individuals, was considered in detail by the Hon’ble Supreme Court in Jagpal Singh v. State of Punjab reported in (2011) 11 SCC 396, while dealing with a case of encroachment of village pond. The Hon’ble Supreme Court noted that the appellants therein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat, and observed that such blatant illegalities must not be condoned and even if houses were constructed on the land in question by the encroachers, they must be ordered to be removed and possession of the land must be handed back to the Gram Panchayat. The Hon’ble Supreme Court further observed that regularization of such illegal constructions must not be permitted because the constructions were made on Gram Sabha land, which must be kept for common use of the villagers of the village, and that the Court cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years. In the above judgment, the Hon’ble Supreme Court referred to its earlier decision in M.I. Builders (P) Ltd. v. Radhey Shyam Sahu reported in 1999 (6) SCC 464, wherein restoration of a park after demolition of a shopping complex constructed at a cost of more than Rs.100 crores was ordered. The Hon’ble Supreme Court also referred to its another decision in Friends Colony Development Committee v. State of Orissa reported in 2004 (8) SCC 733, wherein it was held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception, and observed that the said decision would apply to the cases of encroachment of village common land with even greater force. The Hon’ble Supreme Court further observed that compounding should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is actually being used for a public purpose of the village. The Hon’ble Supreme Court lastly referred to its decision in Hinch Lal Tiwari v. Kamala Devi reported in AIR 2001 SC 3215 (followed by the Madras High Court in L. Krishnan v. State of Tamil Nadu [2005 (4) CTC 1 Madras]), wherein the Court ordered the respondents therein to vacate the land recorded as a pond, which was illegally occupied by them, after taking away the material of the house constructed therein. The Hon’ble Supreme Court, having noted its earlier decisions referred to above, ultimately issued the following directions as contained in paragraph 22 of the judgment, which reads thus:
“22. Before parting with this case, we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/ Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.”
5. It is to be noted that pursuant to the aforesaid directions issued by the Hon’ble Supreme Court, the State Government of Andhra Pradesh framed the Andhra Pradesh Gram Panchayats (Protection of Property) Rules, 2011 (for short, ‘the Rules of 2011’), notified vide G.O.Ms.No.188, Panchayat Raj & Rural Development (Pts.IV) Department, dated 21.07.2011. The said Rules provide for the procedure to be followed for protection of Gram Panchayat properties and eviction of encroachments. Under Rule 2 of the said Rules, the lands belonging to the Gram Panchayats have been classified into three categories, viz., (1) Category-A dealing with own and acquired properties, (2) Category-B dealing with gifts, donations, transfer of lands to Gram Panchayats and (3) Category-C dealing with properties vested with Gram Panchayats. Rule 3 provides for the procedure to be followed for protection of Gram Panchayat properties, in that, the executive authority (Panchayat Secretary) of the Gram Panchayat is required to prepare inventory of landed properties of the Gram Panchayats based on FMB (Field Measurement Book)/ FSA (Field Survey Atlas) and field inspections and the District Collectors shall instruct the Tahsildars to provide the above information to the executive authority (Panchayat Secretary) and web based solutions may be evolved over a period of time to locate Gram Panchayat lands in the public domain. After obtaining the land inventory details, Grama Sabha shall be convened to validate the information and thereafter, a meeting shall be convened by the Gram Panchayat to discuss and approve the land inventory details by passing a resolution and any objections received shall be settled as per the recorded evidence and then, the land inventory details approved by the Gram Panchayat shall be published in the District Gazette. If any property of the Panchayat is under occupation of any persons, Rule 4 would provide for the procedure for eviction of such encroachments, as per which notice and opportunity of hearing shall be provided to the party concerned before proceeding for eviction. Thus, it is apparent that the scheme formulated by the Government is a self-contained code.
6. It is unfortunate to note that despite the directions of the Hon’ble Supreme Court in Jagpal Singh (supra) as noted above and despite framing the Rules of 2011, no steps are taken by the authorities of the Gram Panchayat to protect the Gram Panchayat lands from encroachment, and similarly, no steps are being taken by the Government and its authorities in protecting the government lands, and this is evident from the fact that day in and day out, writ petitions are being filed before this Court, in the nature of public interest litigation, alleging inaction of the authorities of the State Government in protecting the government lands and removing the encroachments. As the public authorities are failing in their duties in protecting the government lands, which are meant for the common use of general public, despite bringing to their notice, public spirited persons are approaching this Court to intervene and direct the public authorities to protect the government lands from encroachments.
7. Considering the matter in its entirety and the significant public interest involved, we deem it appropriate to issue the following directions to the authorities:
(i) The executive authority, i.e., Panchayat Secretary, of the respective Gram Panchayats in the State shall identify the Gram Panchayat lands, which are unauthorizedly occupied/encroached, and take steps for removal of such encroachments by issuing notice and providing opportunity of hearing to the unauthorized occupants/encroachers in terms of the procedure prescribed in Rules of 2011. This complete exercise shall be done within a period of six months from today.
(ii) So far as the encroachments over the lands concerning the Municipalities/Forest Department/Revenue Department are concerned, even if no separate Rules have been framed prescribing the procedure to be followed in the matter of removal of encroachments over those lands, the officials of the concerned Departments, i.e., the Departments of Municipal Administration, Forest and Revenue, shall also undertake and complete the exercise of identification of unauthorized occupations/encroachments over the lands belonging to their respective Departments, within a period of two months from today, and thereafter, take steps for removal of such encroachments by following the principles of natural justice, i.e., issuing notice and providing opportunity of hearing to the unauthorized occupants/ encroachers, within a further period of four months.
8. With the above directions, the writ petitions are allowed. No costs. Pending miscellaneous applications, if any, shall stand closed.
[PRASHANT KUMAR MISHRA, CJ D.V.S.S. SOMAYAJULU, J