In this order, the Andhra Pradesh High Court made it clear that the land classified as 'Mandabayalu' (land used for grazing cattle etc) can only be used for grazing cattle and related purposes; the Panchayats cannot use it for any other purpose. The onus of safeguarding such land lies with the state government.
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.14204 OF 2021, WRIT PETITION Nos.23758 & 9768 OF 2020
COMMON ORDER:
All these three writ petitions are filed under Article 226 of the
Constitution of India by different petitioners, claiming identical relief,
which reads as follows:
W.P.No.14204 of 2021
"To issue writ of Mandamus the highhanded action things deeds of
respondents in trying to interfere and dispossess the petitioners from the premises D.No.1-30 to an extent of Ac.0-03 Cents belonging to 1st and 2nd petitioners and D.No.1-10 to an extent of Ac.0-03 Cents belonging to 3rd and 4th petitioners in RS No.74/3 of Mutyalapalli Villagem, Mogaltur Mandal, West Godavari District which was granted by way of house site pattas by the 4 th respondent dated 27.03.1999 is illegal irregular arbitrary against the provisions of The Andhra Pradesh Assigned Lands Prohibition of Transfers Act, 1977 violation of Principles of Natural Justice and violation of Articles 14, 19, 21 and 300A of the Constitution of India."
W.P.No.23758 of 2020
"To issue writ of Mandamus declaring the high handed action of the Respondents and their subordinate in constructing Village Secretariat Building and Rythu Barosa Kendram in the property exclusively belongs to petitioners situated in R.S.No.74/3 an extent of Ac.0-24 cents of Mutyalapalli Village, Mogaltur Mandal West Godavari District without following due process of law as already assigned to the Petitioners and their father and also issued pattadhar passbook and Revenue Title Deed which is illegal irregular arbitrary against to the Principles of Natural Justice and violation of the provisions of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 apart from The Andhra Pradesh Assigned Lands Prohibition of Transfers Act 1977 and violation of Articles 14, 19, 21 and 300A of the Constitution of India and consequently direct the Respondents not to construct Village Secretariat Building and Rythu Barosa Kendram in the property exclusively belongs to petitioners situated in R.S.No.74/3 an extent of Ac.0-24 cents of Mutyalapalli Village, Mogaltur Mandal, West Godavari District."
W.P.No.9768 of 2020
"To issue writ of Mandamus declaring the action of the Respondents and their subordinates in trying to assign the house site Pattas of the property of respective Petitioners situated in an extent of Ac.0- 24 and Ac.0-04 cents in R.S.No.74-3 in an extent of Ac.0-02 cents in R.S.No.74/1A in an extent of and Ac.0-03 cents in R.S.No.80/1 in an extent of and Ac.0-03 cents in R.S.No.80/1, Ac.0-03 cents in R.S.No.77/9, Ac.0-03 cents in R.S.No.77/9, Ac.0-03 cents in R.S.No.80/1 and Ac.0-03 cents in R.S.No.80/1 of Mutyalapalli Village Mogultur Mandal of West Godavari District as already assigned to the Petitioners which is illegal irregular arbitrary against to the Principles of Natural Justice and violation of the provisions of The Andhra Pradesh Assigned Lands Prohibition of Transfers Act 1977 and violation of Articles 14 19 21 and 300-A of the Constitution of India consequently direct the Respondents not to assign house site Pattas of the property of respective Petitioners situated in an extent of Ac.0-24 and Ac.0-04 cents in R.S.No.74-3 in an extent of Ac.0-02 cents in R.S.No.74/1A in an extent of and Ac.0-03 cents in R.S.No.80/1 in an extent of and Ac.0-03 cents in R.S.No.80/1, Ac.0-03 cents in R.S.No.77/9, Ac.0-03 cents in R.S.No.77/9, Ac.0-03 cents in R.S.No.80/1 and Ac.0-03 cents in R.S.No.80/1 of Mutyalapalli Village Mogultur Mandal of West Godavari District."
As the facts in all the three writ petitions and contentions of the respondents are one and the same, I find that it is appropriate to decide all the three writ petitions by common order.
W.P.No.23758 of 2020 is taken as leading case to decide the real controversy between the parties, since Respondent Nos. 4 & 6 filed their counter affidavit in W.P.No.23758 of 2020 and no counter affidavit is filed in other two writ petitions.
The case of the petitioners in brief is that, the petitioners are agriculturalists living below poverty line, totally depending on the agriculture income and fishing in the creeks and drains (upputeru). Father of the petitioners - Kollati Suryanarayana occupied land to an extent of Ac.0-24 cents in R.S.No.74/3 of Mutyalapalli Village, Mogaltur Mandal. The then Tahsildar issued pattadar passbook vide Patta No.1545 in the name of petitioners father on 27.03.1999. Since, then he was in possession and enjoyment of the said land during his lifetime. The petitioners' father died on 22.11.2003. Thereafter, the petitioners have been enjoying the same as legal representatives of their father Kollati Suryanarayana. It is contended that, as the petitioners are not having any house or house sites, they made representation to the Government. The same was accepted and also assigned Ac.0-04 cents each as house site by granting DKT pattas in the same property i.e. property occupied by the petitioners' father. The petitioners constructed RCC building in their respective house sites and houses were assessed to property tax by assigning door number and the petitioners are paying property tax to the gram panchayat. The petitioners inherited the property of their father and the Government having recognized their financial, economic and social condition, issued pattas, dividing the above land into six plots and allotted to six members @ Ac.0-4 cents of land to each person.
The petitioners further contended that, the State Government introduced the policy of "Navaratnalu Pedalandariki Illu" and to implement the said scheme, the first respondent issued various government orders and memos instructing the subordinate authorities to identify the land and also to identify the beneficiaries. But, the employees at the grass root level by over enthusiasm and without following letter and spirit of intention of the government, visited the petitioners residential area and started markings on the existing residential houses as if they intend to assign the same to the third parties. The action of the subordinates of the respondents is nothing but abuse of process of law and violation of the instructions issued by the Government. As the petitioners constructed their houses in the land assigned to them by following assignment conditions and without violation of any conditions of assignment, they are continuing in possession and enjoyment of the property and their proposed dispossession without following due process of law is illegal and arbitrary.
When the respondents made an attempt to interfere with the possession and enjoyment of the petitioners, they were constrained to file W.P.No.9768 of 2020 and the same was registered on 09.06.2020. This Court by considering the facts and circumstances of the case, granted interim order to maintain status quo with regard to subject property in W.P.No.9768 of 2020 and the interim order is being extended from time to time and it is in force.
While the matter stood thus, the State Government initiated a scheme for constructing Village Secretariat Buildings and Rythu Bharosa Centers to provide amenities and facilities to the villagers for distributing various schemes to the needy public with the letter and spirit of the Andhra Pradesh Panchayat Raj Act, 1994. The State Government issued various circulars and government orders to the subordinates to identify suitable Government land for construction of Village Secretariat Buildings/Rythu Bharosa Kendram to verify and locate the ideal place and access to the general public residing in the village.
It is contended that the first respondent directed all the District Collectors in the State to identify the government land in the village and also directed to prepare village wise list of the government land such as poramboke and other government land to construct Village Secretariat Building/Rythu Bharosa Kendram free from all litigations.
While the matter stood thus, the respondents with the active support of local ruling party leaders without following procedure established under law, are trying to acquire the petitioners land for construction of Village Secretariat Building and Rythu Bharosa Kendram by trespassing into Ac.0-10 cents out of Ac.0-24 cents situated in R.S.No.74/3 of Mutyalapalli Village, Mogaltur Mandal. Surprisingly, the revenue authorities changed the classification of the land in the revenue records i.e. adangal by deleting the petitioners father name - Kollati Suryanarayana and introduced the classification i.e. nature of land as "Zeroythi" in Column No.6 and Column No.12, noted in pattadar column as Mandabayalu and column No.13 possessor name as "Mandabayalu" and in column no.15 as government poramboke. Thus, the respondents are trying to dispossess these petitioners from the land in their occupation without following due process of law and in contravention of the grant made in their favour, such illegal interference and construction of Village Secretariat Building and Rythu Bharosa Kendram is illegal and violative of right to property guaranteed under Article 300-A of the Constitution of India.
It is also brought to the notice of this Court, that criminal litigation was also disposed of by the Courts with regard to the petitions filed by the petitioners against the respondents/officials for the offences punishable under Section 353 of Indian Penal Code and though evidence recorded is clear that the petitioners are in possession and enjoyment of the property, but still, they are repeating their attempt to dispossess these petitioners. Hence, the petitioners filed the present writ petition for the relief stated above.
Respondent No.4 - Tahsildar, Mogaltur Mandal, West Godavari filed counter affidavit denying material allegations, inter alia, contending that the land of an extent of Ac.1-21 cents in R.S.No.74/3 in Mutyalapali village is Government poramboke land which is classified as mandabayalu and it is not fit for agricultural. Out of the said Ac.1-21 cents, the Government constructed one cyclone shelter on 13.07.1999, MPP School in the year 2003 in an extent of Ac.0-20 cents. Later, in the year 2008, the MPP School was demolished as the same was in dilapidated condition, in the same place a new school building was constructed. Out of the remaining land nearly 30 persons including the petitioner's mother illegally and highhandedly without any permission from the Government, occupied an extent of an Ac 0.60 cents and raised houses including the petitioners' mother. None of the petitioners are in possession and enjoyment of any extent of land in R.S.No 74/3. The mother of the petitioner's has been residing in the shed situated in R.S.No 74/3. The petitioners constructed their houses only in zeroyati land and the houses of the petitioners are no way connected to the land in R.S.No 74/3. As the houses of the petitioners were in Zeroyati land the Panchayat has been collecting house taxes from the petitioners. The petitioners suppressed the real fact and falsely contending that their houses are situated in Government land in R.S.No.74/3 only for the purpose of the present writ petition. It is submitted that the petitioner's father never occupied any extent of land in R.S.No.74/3 as already stated the petitioners mother Satyavathi has been residing in a shed situated in an extent of Ac.0.01 ½ cents. As per the revenue records, the Government never issued any pattadar pass book or title deed in favor of the petitioner's father in respect of the land in R.S.No.74/3. In fact the Government will issue pattadar passbook in respect of agricultural land only as already stated the land of an extent of Ac.1-21 cents which is classified as mandabayalu, not agricultural land.
It is further contended that, the Government issued pattas to the petitioners and two others in respect of land of an extent Ac.0-04 cents each in R.S.No.74/3 is absolutely false. The Government never issued any house site patta in favor of the petitioner in respect of land of an extent Ac.0-04 cents each in R.S.No.74/3. The alleged pattas filed by the petitioners are fake documents brought into existence by the petitioners by forgery only for the purpose of the writ petition. The alleged pattas issued in favor of the petitioners contained the name of V. Bullebbai, M.R.O Mogaltur and the date mentioned on the back side of the patta below the signature was dated 28-6-2012, in fact, V.Bullebbai worked as M.R.O in Mogaltur M.R.O office from 29-2-1996 to 22-3-1999 and later on 3-3-2009 V.Bullebbai died. Hence, there is no scope for issuing pattas to the petitioners in the year 2012 by the deceased M.R.O. The alleged signatures of V. Bullebbai on the alleged pattas on 28-6-2012 are forged signatures. It clearly shows that the petitioners by forging the signatures of the deceased Tahasildar V.Bullebbai brought into existence the alleged house site pattas and obtained Status quo orders by misleading the court. The alleged pattas are not valid under law. It is also significant that in paragraph 3 of the affidavit the petitioners pleaded that as per the gram panchayat resolution dated 6-2-1988 the Government issued house site pattas to the petitioners. The Pattas bears the date as 28-6-2012. It shows that the alleged house site pattas are fake documents. Moreover the Government will not issue any patta basing on a resolution passed about 30 years back.
It is further contended that, out of the Government land of an extent of Ac.1-21 cents in R.S.No.74/3 an extent of Ac.0-41 cents is lying vacant. So the Panchayat in order to construct Grama Sachivalayam, Rythu Barosa Kendram and wellness center in the said extent of Ac.0-41 cents submitted letter to the higher authorities and accordingly the Government issued administrative sanction for construction of Grama Sachivalaym on 13-1-2020, Rythu Barosa Kendram on 9-5-2020 and Wellness center on 9-5-2020 under MGNREGS - DWMA Scheme. The Total cost of the 3 buildings is Rs.76.74/- lakhs. The panchayat also passed resolution dated 18-7-2020 for construction of the above said three buildings. The construction work was already started and the work is in progress. All the three new buildings are being constructed in the vacant site situated in an extent of Ac.0-41 cents in R.S.No.74/3 and no houses including the houses of the petitioners are situated in the said site. The petitioners building sare situated on west of the Government land in R.S.No.74/3. The shed of the petitioners' mother is situated in an extent of Ac.0.01 ½ cents and the proposed new constructions are far away from the said shed. The land of an extent of Ac.0-41 cents in R.S.No.74/3 is vacant land covered with bushes and free from encroachments. In order to construct the proposed buildings the mandal surveyor surveyed the land after clearing the bushes. At the time of clearing the bushes in the Ac.0-41 cents of land or at the time of conducting the survey neither the petitioner nor their mother raised any objection nor they filed any petition before the Government. Hence, it is clear that the proposed constructions are not raising any objection to the mother of the petitioners and they are being constructed in vacant land only.
It is also contended that, previously the 1st petitioner along with seven other petitioners filed W.P No.9768 of 2020 claiming right in land of an extent of Ac.0-28 cents in R.S.No 74/3, Ac.0-02 cents in R.S.No.74/1A, Ac.0-09 cents in R.S.No 80/1 and Ac.0-06 cents in R.S.No 77/9 and obtained status quo orders on 27-11-2020. The land in R.S.Nos.74/1A, 80/1 and 77/9 is no way connected with the proposed construction of new buildings. The first petitioner also got filed W.P.No.10209 of 2020 through his relatives Mutyalapalli Peddiraju and three others in respect of land of an extent of Ac.0-15 cents in R.S.No 80/1, Ac.0-03 cents in R.S.No 73/3 and Ac.0-03 cents in R.S.No 74/3. The land in R.S.No 80/1 and 73/3 is no way connected to the proposed construction of new buildings. Now the 1st petitioner and his brother filed the present writ petition in respect of land of an extent of Ac.0-24 cents in R.S.No.74/3 and obtained status quo order. The land covered by the three writ petitions is a total extent of Ac.0-55 cents in R.S.No.74/3 and therefore, there is no connection between the present writ petition and other two writ petitions and requested to dismiss the writ petition.
Respondent No.6 - Panchayat Secretary, Mutyalapalli Gram Panchayat, Mogalthur Mandal, West Godavari District, filed counter and additional counter affidavit, denying material allegations, inter alia contending that, the government sanctioned the buildings for Village Secretariat, Rythu Barosa Kendram and wellness center to the gram panchayat. Respondent No.6 has identified the panchayat site to an extent of Ac.0-41 cents in Sy.No.74/3 which is vacant and is in possession of the gram panchayat. The work is in progress in the site identified by the panchayat. But, these petitioners filed writ petition with false allegations.
Respondent No.6 also filed additional counter affidavit alleging that, at request of Respondent No.6, the Tahsildar enquired into the genuineness of the patta which alleged to have been issued by the then M.R.O. late Sri V.Bullabai in favor of the petitioners. The Tahsildar after verification of the records categorically reported that the said V. Bullabai worked as a M.R.O. during the period of 29.02.1996 to 22.03.1999. Whereas, the alleged pattas have been issued on 27.03.2009, 28.03.2009 and 28.03.2012. Hence, as on the date of issuing the pattas, alleged to have been issued in favor of the petitioners the signatory i.e. M.R.O - V. Bullabai is no more as he died on 03.03.2009. The petitioners have forged the signature of the dead person on the patta forms and claiming the panchayat site. Hence, the Tahsildar reported that the petitioners fabricated the pattas by forging the signature of the dead person. For fabrication of the pattas the Tahsildar already made a criminal complaint to the Police.
It is further contended that, at request of Respondent No.6, the Village Revenue Officer and the Village Surveyor conducted survey of the houses of the petitioners. In their survey they found that the petitioners 2 to 4 have their respective houses situated in Survey No. 74/2. So far as the 1st petitioner is concerned, he encroached the small extents about Ac.0-02 cents in Survey No.74/3 and constructed small shed with asbestos sheets roof and the respondents are not touching their respective houses including the 1st petitioner till date. Thus, the alleged interference of the respondents with the possession and enjoyment of the property of these petitioners in Sy.No.74/3 is baseless and requested to dismiss the writ petition.
During hearing, Sri Dasari S.V.VS.V. Prasad, learned counsel for the petitioners vehemently contended that, the fourth respondent raised most inconsistent pleas about possession and enjoyment of the petitioners, while denying issue of D-Form Pattas in favour of these petitioners, so also issue of pattadar passbooks and title deeds in favour of the petitioners‟ father. But, the documentary evidence produced before this Court would clinchingly establish that pattas were granted in favour of the petitioners in Sy.No.74/3. The alleged forgery of pattas is not substantiated by the Government and no proof is produced by the respondents to substantiate the opinion of Respondent Nos. 4 & 6 about death of the then Tahsildar Sri V. Bullabai, thereby, the petitioners are approached this Court claiming discretionary relief of writ of mandamus, since the petitioners possession is admitted by Respondent No.4 in his counter affidavit specifically and they cannot be dispossessed even if their possession is illegal or unauthorized, except by due process of law. When the fourth respondent admitted that the petitioners are in possession and enjoyment of the land in Sy.No.74/3, in the absence of proof that they were dispossessed by due process of law, they are deemed to be in possession of the same. Hence, the petitioners are able to substantiate their contention that they are in possession and enjoyment of the property in Sy.No.74/3 of Mutyalapalli Gram Panchayat, Mogalthur Mandal, West Godavari district. In addition to the above contention, the petitioners specifically pointed out that, when the land is allegedly classified as „mandabayalu‟, it is a land for the benefit of the villagers to graze the cattle in the land and unless the same is converted into Assessed Waste Dry by following necessary procedure prescribed under Board of Revenue Standing Orders, the same cannot be utilized for the purpose of construction of Rytu Barosa Kendram, Wellness Centre and Village Secretariat.
Consequently, the very construction of these three buildings is contrary to Board of Revenue Standing Orders. On this ground also, constructions cannot be allowed to be proceeded and requested to allow the writ petition by granting writ of mandamus, as claimed by these petitioners.
Learned Assistant Government Pleader for Revenue would contend that, the pattas filed along with the writ petition are fake, since M.R.O. - V. Bullabai died on 03.03.2009, but pattas were allegedly issued on 27.03.2009, 28.03.2009 and 28.03.2012. To substantiate the contention, he relied on the death certificate produced by Respondent No.6 issued on 18.01.2021. On the strength of the death certificate of Vardhanapu Bullabbai, learned Assistant Government Pleader for Revenue contended that, by the date of alleged issue of pattas, the then M.R.O.- V. Bullabbai is no more. Hence, it is clear that the signatures of V. Bullabbai on the pattas were forged and brought into existence. On this ground alone, the petitioners‟ case has to be thrown out as the relief of writ of mandamus is discretionary in nature.
It is further contended that, the petitioners were never in possession and enjoyment of the property in Sy.No.74/3 and thereby, the petitioners are not entitled to claim any relief in the writ petition and prayed for dismissal of the same.
Whereas, Sri Kotireddy Idamakanti, learned Standing Counsel for Respondent No.6 supported the contentions of Respondent No.4 in toto, while drawing attention of this Court to death certificate of V. Bullabbai, the then Tahsildar to dismiss the writ petition on the ground that the petitioners approached the Court by producing forged D-Form Pattas.
It is further contended that the construction is going on in an extent of Ac.0-41 cents in Sy.No.74/3 of Mutyalapalli Gram Panchayat, Mogaltur Mandal and thereby, the petitioners are not entitled to claim any relief in the writ petition, as they are out of possession and the construction is in progress. To support the same, they placed on record the photographs of the construction in progress and also existing house of the petitioners. On the strength of the material, the respondents sought to dismiss the writ petition filed by these petitioners.
Considering rival contentions, perusing the material available on record, the points that arose for consideration are as follows:
1. Whether the petitioners approached this Court with unclean hands claiming discretionary relief of writ of mandamus. If so, whether the writ petition is liable to be dismissed on this sole ground.
2. Whether the petitioners are in possession and enjoyment of land in Sy.No.74/3 of Mutyalapalli Gram Panchayat, Mogaltur Mandal in their own right or otherwise. If so, whether the respondents made any attempt to dispossess them unduly without following due process of law and whether such interference can be declared as illegal, arbitrary and violative of Articles 14 & 300-A of the Constitution of India?
3. Whether 'mandabayalu' - communal land be utilized for the purpose of construction of Rytu Barosa Kendram, Wellness Center and Village Secretariat without converting the same from mandabayalu to assessed waste dry land? If not, whether Respondent Nol.6 be restrained from proceeding with the construction work of Rytu Barosa Kendram, Wellness Center and Village Secretariat?
P O I N T No.1
The first and foremost contention raised by the petitioners is that, on their application and based on the resolution passed by the panchayat on 06.02.1988, house site pattas were granted to the petitioners assigning extent of 4 cents to each of the petitioners in Sy.No.74/3. The consistent case of the petitioners from the beginning is that, the father of the petitioners - Kollati Suryanarayana was in possession and enjoyment of Ac.0-24 cents in Sy.No.74/3 of Mutyalapalli Village, Mogaltur Mandal, West Godavari District, during his lifetime; pattadar passbooks and title deeds were issued in his favour and Kollati Suryanarayana died on 22.11.2003. Whereas, Respondent Nos. 4 & 6 specifically raised a contention that, the pattas placed on record by the petitioners were allegedly issued on 27.03.2009, 28.03.2009 and 28.03.2012, by the then M.R.O. - V. Bullabai who died on 03.03.2009. Respondent No.6 placed on record death certificate of V. Bullabai, obtained on 18.01.2021 to establish the date of death of V. Bullabai, the then M.R.O.
In view of the specific contention of the petitioners, it is necessary to advert to the material on record placed by the respondents on record. The pattadar passbooks and title deeds were issued in favour of Kollati Suryanarayana vide Patta No.1545 for an extent of Ac.0-24 cents in R.S.No.74/3 of Mutyalapalli Village, Mogaltur Mandal. The adangal copies for Fasli 1426 would disclose that Kollati Suryanarayana is the pattadar and enjoyer, as noted in Column Nos. 12 & 13. The total extent of Ac.0-24 cents in Sy.No.74/3 and the nature of acquisition is mentioned as "purchase". Thus, the pattadar passbooks and title deeds were issued in favour of father of these petitioners and his name was also mutated in the revenue records as pattadar and enjoyer.
The DKT pattas issued in favour of the petitioners are also placed on record and they were issued on 28.06.2012 in Roc.HSA/252/F/1406 dated 28.06.2012 to the first petitioner i.e Kollati Yedukondalu. Similarly, patta was granted in favour of Kollati Murali dated 28.06.2012 in Roc.HSA/252/F/1406 i.e. second petitioner. Patta was also allegedly issued in favour of third petitioner on 27.03.2012 and fourth petitioner was assigned an extent of 4 cents in Sy.No.74/3 on 27.03.2012. The date is appearing both on the top of the assignment copy and also underneath the signature of the Tahsildar. It is not known whether the signature appearing on the patta placed on record is that of V. Bullabai. Signature is also appearing across the passport size photographs affixed on the patta, but it is difficult to identify the name of the person as to who signed on the patta. Whether the signature appearing on the pattas is that of V. Bullabai or somebody else who was working as on the date of issue of patttas is not known. Therefore, in the absence of production of any document containing admitted signature of the then M.R.O on the date of issue of patttas, it is highly difficult for me to conclude that the pattas were signed by the said V. Bullabai who was no more as on the date of issue of those pattas. If really, the signature of V. Bullabai is placed on record to compare the signature on pattas with admitted signature and find out whether these pattas were signed by V. Bullabai or somebody else, the Court can prima facie arrive at a conclusion that the signature is prima facie true. But, such finding cannot be recorded by this Court while exercising power under Article 226 of the Constitution of India, since comparison of disputed signatures with admitted signatures is permitted under Section 73 of the Indian Evidence Act, but this Court can exercise such power while deciding the writ petition under Article 226 of the Constitution of India.
When the respondents are contending that the signatures of V. Bullabai are forged and that these petitioners approached the Court with unclean hands, it is for them to establish the same, but here, the respondents failed to establish that the signature appearing on the pattas is that of V. Bullabai, the then M.R.O and that he died on 03.03.2009. Therefore, it is difficult to conclude that these petitioners approached this Court with unclean hands by producing forged pattas, at this stage. Hence, on the same ground, the petitioners cannot be non suited. Accordingly, the point is answered in favour of the petitioners and against the respondents.
P O I N T No.2:
The claim of the petitioners before this Court is that, land to an extent of Ac.0-24 cents in R.S.No.74/3 of Mutyalapalli Village, Mogaltur Mandal, but, whereas, the respondents raised inconsistent pleas in their counter affidavits. The specific contention of Respondent No.4 - Tahsildar in the counter affidavit is, at one stage, Respondent No.4 admitted that 30 persons including the petitioners' mother occupied land of the Government of an extent of Ac.0-60 cents in Sy.No.74/3 (vide Paragraph No.2(i) of Respondent No.4 counter affidavit). At the same time, in the same paragraph, it is contended that, none of the petitioners are in possession and enjoyment of any extent of land in R.S.No.74/3. But, again it is contended that, mother of these petitioners was residing in the shed in R.S.No.74/3 and that the petitioners constructed their houses only in zeroyati land and the petitioners are no way connected to the land in R.S.No.74/3. Thus, there is any amount of inconsistency in the plea raised by Respondent No.4 regarding possession and enjoyment of the property. Even if the allegations made by Respondent No.4 in Paragraph No.2(i) of the counter affidavit are accepted, thirty persons have occupied the land in an extent of Ac.0- 60 cents in Sy.No.74/3 of Mutyalapalli Village without consent of the Government. It is not the case that they were dispossessed by following due process of law, but still, contended that they are not in possession of the property in the latter part of the same paragraph. Hence, in the absence of any proof that the petitioners were dispossessed by following due process of law from Ac.0-04 cents each in R.S.No.74/3 of Mutyalapalli Village, they are deemed to be in possession and enjoyment of the property. Similarly, Respondent No.6 also denied possession of the property at one stage and admitted at another stage.
The petitioners while asserting that, they are in possession and enjoyment of the property, the petitioners placed on record several documents including pattadar passbook evidencing that pattadar passbooks and title deeds were issued to these petitioners‟ father for an extent of Ac.0-24 cents in Sy.No.74-3 in Mutyalapalli Village with Passbok No.1545. Added to that, the adangal copy produced before this Court for Fasli 1426 obtained on 14.02.2017 also disclosed that an extent of Ac.0-24 cents in Sy.No.74/3 of Mutyalapalli Village is classified as "zeroythi" land and name of Kollati Suryanrayana - father of these petitioners is noted in Column Nos.12 & 13 as pattadar and enjoyer for an extent of Ac.0-24 cents in Column Nos. 14 & 15. Besides these two documents, D-Form pattas in Roc.HSA/252/F/1406 dated 28.06.2012 produced before this Court would prima facie show that an extent of Ac.0-04 cents of house site in Sy.No.74/3 of Mutyalapalli Village was assigned to each of these petitioners. They raised construction and assessed to tax. These documents would clinchingly establish that these petitioners are in possession and enjoyment of Ac.0-04 cents each in Sy.No.74/3 of Mutyalapalli Village, allotted to them by granting D-Form patta. The electricity bills and tax receipts would also form additional link to establish that they are in possession and enjoyment of the property.
Respondent Nos. 4 & 6 contended that these pattas were issued by the then M.R.O - V. Bullabai and they are forged. But, as per my discussion in Point No.1, Respondent Nos.4 & 6 failed to substantiate that the signature on D-Form pattas placed on record is that of V. Bullabai. In the present proceedings under Article 226 of the Constitution of India, it is difficult to decide such an issue regarding forgery based on the material. Moreover, copy of judgment in C.C.No.1002 of 2012 would show that Kollati Srinivasa Rao and Kollati Satyanrayana were arrayed as accused. Kollati Srinivasa Rao is arrayed as first petitioner in W.P.No.14204 of 2021. A specific finding was recorded by the Trial Court as to the possession and enjoyment of the property in Sy.No.74/3 of Mutyalapalli Village. In the judgment, the Additional Judicial Magistrate of First Class, Narasapuram observed about occupation of the land by the petitioners.
Thus, the material on record including inconsistent pleas raised by Respondent No.4 in Paragraph No.2(i) of the counter affidavit, the revenue records produced by the petitioners could establish that the petitioners are in possession and enjoyment of the land in Sy.No.74/3 of Mutyalapalli Village i.e Ac.0-04 cents each by virtue of assignment, granting D-Form patta in their favour. When the petitioners are in settled possession and enjoyment of the property, they cannot be dispossessed, except by due process of law, as held by the Apex Court in "Rame Gowda (dead) by L.Rs. v. M.Varadappa Naidu (Dead) by L.Rs.1. But, in the instant case on record, the respondents identified only Ac.0-10 cents of land in Sy.No.74/3 in Mutyalapalli Village for construction of Rytu Barosa Kendram, Wellness Center and Village Secretariat and the construction is in progress.
In any view of the matter, the persons in possession cannot be dispossessed except by due process of law, as discussed above. Hence, construction of Rytu Barosa Kendram, Wellness Center and Village Secretariat without dispossessing these petitioners from their land in their possession, can safely be held to be illegal. However, they are directed not to dispossess these petitioners form the land in their possession. Accordingly, the point is answered.
POINT No.3
One of the major contentions raised by the petitioners is that, when the land is classified as "mandabayalu" which is a communal land, that can be utilized only for the purpose of public/ community at large and cannot be used for any other purpose i.e. for construction of Rytu Barosa Kendram, Wellness Center and Village Secretariat without converting the same from "mandabayalu" to "assessed waste dry". But the respondents categorically admitted in their counter affidavit that the land is classified as mandabayalu in RSR i.e. grazing land meant for the purpose of grazing cattle by the villagers. When the land is classified as "mandabayalu", unless the same is converted into "assessed waste dry" by following procedure under B.S.O.15(2), the same cannot be utilized for any other purpose, except for grazing cattle, which is meant only for communal purpose only.
Classification of land still remained as "mandabayalu" 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. In addition to transfer of land, as long as the classification is continuing to be "mandabayalu", unless specific procedure is prescribed under Board Standing Order for change of classification is complete, the land does not vest on the Revenue Department.
A separate procedure is prescribed for conversion of land from one category to the other category (classification) in B.S.O.15(2). 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").
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.
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 cattlestands, 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.
Section 58 of the Panchayat Raj Act is a special provision to divest the tanks, roads, etc, specified in Sections 53, 54, 55 & 57, including the porambokes namely, grazing grounds, thrashing floors, burning and burial grounds, cattle stands, cart tracks and topes, which are at the disposal of the Government and are not required by them for any specific purpose shall vest in the Gram Panchayat subject to such restrictions and control as may be prescribed. Sub-section (2) of Section 58 says that, the Government may, at any time by notification in the Andhra Pradesh Gazette, direct that any porambokes referred to in sub-section (1) shall cease to vest in the Gram Panchayat if it is required by them for any specific purpose and thereupon such porambokes shall vest in the Government. Therefore, a gazette notification is necessary to divest the property on the government that vested on the gram panchayat. In the absence of any notification issued by the Government divesting Gram Panchayats of any poramboke lands, there cannot be any use of panchayat land by following B.S.O 15(2), the same cannot be used for any other purpose. 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 Municipality and Banne Gandhi and others v. District Collector).
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 Collector, 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.
When the land is communal land, it cannot be converted by following procedure under B.S.O 15(2). Unless, such conversion is made and allotted to panchayat - Respondent No.6 for construction, the work in progress is without any authority. Moreover, when land is grazing land meant for communal purpose, it is the duty of the State to protect such communal land.
In Jagpal Singh & Others v. State of Punjab & Others, 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, 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."
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.
In view of the law declared by the Apex Court, the land cannot be utilized for any other purpose, except for grazing cattle as "mandabayalu" and no change of classification of the land in Sy.No.74/3 is for "mandabayalu"into "assessed waste dry" by following procedure under B.S.O 15(2).
When the land is classified as "mandabayalu" and it is government land, the panchayat cannot take a decision to construct Rytu Barosa Kendram, Wellness Center and Village Secretariat and unless it is allotted by the Government by the panchayat for such construction.
In view of the law declared by the Apex Court and High Court, when the land is classified as "mandabayalu" (grazing land), it is for the benefit of the community at large i.e. villagers of Mutyalapalli Village to graze their cattle. The same is not converted into "assessed waste dry" by following procedure under B.S.O 15(2) and still, it is deemed to be the land belonging to the Government. In such case, the sixth respondent raises any construction like Rytu Barosa Kendram, Wellness Center and Village Secretariat without allotment of land to the panchayat, since vesting of porambokes on the panchayat is only for limited purpose of custody of those lands and thereby, the panchayat - Sixth respondent cannot exercise right and title over the property to raise any construction, defeating the rights of community/villagers of Mutyalapalli Village at large i.e. for grazing cattle. Hence, construction of Rytu Barosa Kendram, Wellness Center and Village Secretariat in the land which is classified as "mandabayalu" without conversion from communal land to "assessed waste dry" and without allotment of land by the Government to Respondent No.4 to 6 is an illegality. Hence, on this ground also, the construction of Rytu Barosa Kendram, Wellness Center and Village Secretariat is impermissible in the land in Sy.No.74/3. Accordingly, the point is answered in favour of the petitioners and against the respondents.
In view of my foregoing discussion, I find that the petitioners are in possession and enjoyment of the property of an extent of Ac.0-04 cents in Sy.No.74/3 in Mutyalapalli Village, and that, the land is classified as "mandabayalu" - grazing land and no conversion proceedings were issued following the proceedings under B.S.O.15(2). On Such conversion, no allotment was made to the panchayat for construction, since the land belongs to revenue department. Hence, I find that it is a fit case to allow W.P.No.23758 of 2020, declaring the action of the respondents in constructing Rytu Barosa Kendram, Wellness Center and Village Secretariat in land in R.S.No.74/3 of Mutyalapalli Village, Mogaltur Mandal, as illegal, arbitrary and violative of principles of natural justice.
In the result, W.P.No.23758 of 2020 is allowed, declaring action of the respondents in constructing Rytu Barosa Kendram, Wellness Center and Village Secretariat in land of an extent of Ac.0-24 cents in R.S.No.74/3 of Mutyalapalli Village, Mogaltur Mandal, as illegal, arbitrary and violative of principles of natural justice; while, directing the respondents not to construct Rytu Barosa Kendram, Wellness Center and Village Secretariat in land which is classified as "mandabayalu" in R.S.No.74/3 of Mutyalapalli Village, Mogaltur Mandal.
W.P.No.9768 of 2020
In view of my detailed discussion in W.P.No.23758 of 2020, W.P.No.9768 of 2020 is allowed, declaring the action of the respondents in trying to assign the house site pattas of the property of respective petitioners situated in an extent of Ac.0-24 and Ac.0-04 cents in R.S.No.74-3 in an extent of Ac.0-02 cents in R.S.No.74/1A in an extent of and Ac.0-03 cents in R.S.No.80/1 in an extent of and Ac.0-03 cents in R.S.No.80/1, Ac.0-03 cents in R.S.No.77/9, Ac.0-03 cents in R.S.No.77/9, Ac.0-03 cents in R.S.No.80/1 and Ac.0-03 cents in R.S.No.80/1 of Mutyalapalli Village Mogultur Mandal of West Godavari District, while directing the respondents not to interfere and dispossess the petitioners from the property except by due process of law.
W.P.No.14204 of 2021
In view of my detailed discussion in W.P.No.23758 of 2020, W.P.No.14204 of 2021 is allowed, declaring the action of the respondents in trying to interfere and dispossess the petitioners from the premises D.No.1-30 to an extent of Ac.0-03 Cents belonging to 1st and 2nd petitioners and D.No.1-10 to an extent of Ac.0-03 Cents belonging to 3rd and 4th petitioners in R.S.No.74/3 of Mutyalapalli Villagem, Mogaltur Mandal, West Godavari District; while directing the respondents not to interfere and dispossess the petitioners from the property, except by due process of law.
However, this order will not preclude the Tahsildar to take appropriate action to evict the encroachers, if any, in the event D-Form pattas issued in their favour are not genuine, by following appropriate procedure. No costs.
Consequently, miscellaneous applications, pending if any, shall stand closed.
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JUSTICE M. SATYANARAYANA MURTHY
Date:08.10.2021
