Andhra Pradesh High Court - Amravati
WRIT PETITION NO.16684 OF 2019
This petition under Article 226 of the Constitution of India to issue a Writ of Mandamus, declaring the action of respondents in identifying puntha i.e., land in R.S.No.4/2, situated at Kothapalli Agraharam Village, Peravali Mandal, West Godavari District, which is in possession and enjoyment of the petitioner, as highly illegal, arbitrary, unjust, improper, unconstitutional and violative of principles of natural justice and Article 300-A of the Constitution of India, and consequently direct the respondents not to identify the land in R.S.No.4/2, situated at Kothapalli Agraharam Village, Peravali Mandal, West Godavari District.
2) It is the case of petitioner that long back the Government of Andhra Pradesh has granted tree patta of coconut trees to one Sri Abbisetti Rattayya, who is the paternal uncle of the petitioner. The said patta was granted to him on 01.02.1978, since then he was in active possession and enjoyment of the same and their entire family eking out their livelihood with the meagre income derived from the said coconut trees. After demise of said Abbisetty Rattayya, the petitioner's family is in possession and enjoyment of the said coconut trees. Since the date of inception, they are paying taxes and cists to the Kothapalli Agraharam Gram Panchayat regularly.
3) While the matter stood thus, the petitioner reliably came to know that the Government decided to issue house site pattas to the needy people of the village and in the said process the official respondents came to the land which consists of coconut trees and they came to a conclusion that the land is poramboke land and demarcating the same for grant of house sites under the scheme 'Navaratnalu - Pedalandariki Illu'. Then the petitioner along with his family members and some other villagers approached the revenue authorities and requested them not to assign the land as the trees are in their possession and enjoyment, they are eking out their livelihood from the income derived from the trees, and if for any reason, the land is assigned, the petitioner and his family will be deprived of their livelihood.
4) The specific contention of the petitioner is that the said land is adjacent to N.H-16 and it is being used by the petitioner and others to go to Nallavaripalem through canal road. There are agriculture lands on both sides of the said puntha and they are using it for ingress and egress to their lands.
5) It is further contended that the land owners adjacent to the said punha made a representation on 23.09.2019 to the 2nd respondent informing about the existence of puntha, some of the people who do not have houses raised huts in the land and residing therein, whereas the petitioner and other villagers are using the said puntha for their ingress and egress. In case the land is assigned it is difficult for them to cultivate their lands since the puntha is required for transportation of agricultural produce and other items pertaining to cultivation of the land.
6) Further, the National Highway Authority is also marking the said puntha from Pervali Centre adjacent to N.H-16 for the purpose of drain current cabling. Without considering the representation of the petitioner and other villagers, the official respondents are proposing to assign the puntha to the landless poor under the scheme 'Navaratnalu - Pedalandariki Illu' depriving their right of using puntha for their ingress and egress to carry agricultural produce and other implements and it is contrary to BSO(15) and requested to issue a direction.
7) Respondents filed counter affidavit admitting that the land is classified as puntha but they earmarked only an extent of Ac.0.40 links out of 74 links of site proposing to assign the same to 13 persons and the total extent proposed is only Ac.0.39 cents. The balance available on ground is sufficient to use the same for ingress and egress, by the petitioner and other villagers. Therefore, the land in an extent of Ac.1.29 cents in R.S.No.4-1 & 4-2 is classified in Accounts as 'Puntha Poramboke'. Out of Ac.1.29 cents, an extent of Ac.0.07 cents was acquired for National Highway road and the remaining extent is only Ac.1.22 cents. The same can be identified for house sites.
8) The respondent authorities admitted grant of tree patta in favour of Abbisetti Rattaiah for the land in R.S.No.4-2 and a patta in favour of Pala Manganna, S/o Subbarayudu in R.S.Nos.92 & 99.
9) As per the conditions laid down in the license, that the licensee confers no right over the land.
i) No offence shall be raised by the Licensee except for the separate protection of each young plant;
ii) The Tahasildar or Deputy Tahsildar has the power to remove the trees any time without compensation;
iii) The license is subject to cancellation, if the trees are not planted with him on the date of grant of license or are not properly looked after;
iv) No trees will be cut without previous permission of the Tahsildar or Deputy Tahsildar;
v) When the Tahsildar or Deputy Tahsildar removed a tree, it will be sold in public auction and the proceeds paid to the licensee;
vi) The plantation of coconut trees should not interrelate to any work with the irrigation bodies and cart tracks lying in this survey number;
vii) The grantee shall have to vacate the land, removing the trees, at his own cost, in case the grant is found detriment to public interest;
viii) Tree tax at the rates impose from time to time shall be paid to the Government from the time begin to yield;
ix) In case of, default in regard to any of the conditions laid down above, the license will be liable to immediate cancellation;
x) In the event of such cancellation, or in the event of cancellation of license by any superior authority, the license shall not be entitled the compensation any trees planted or for any improvement that he may have made to the land.
10) The respondents further contended that the land is being used as puntha for ingress and egress and they proposed only a part of puntha and not the total extent and it is in compliance of BSO15(2). According to it, extent of land to be set apart for rods, channels etc., when a road runs through the land applied for assignment, a width of at least one chain (100 links) should be set apart for the road and the remainder dealt with under the rules. Similarly, when the bank of an irrigation work runs through or near the land, the extent of land required to allow a margin of one chain along the foot of the embankments should be set apart if the irrigation work is an important one such as a main canal, a main distributory or a main drainage, channel. In the case of subordinate or minor distributories or minor drains, a margin of 30 links will be sufficient. Detailed lists of both the classes of work above referred to, will be furnished by the Public Works Department. But, if in any case the irrigation work concerned is not found in either side a margin one chain should be set apart or reference made to the Executive Engineer; in the case of channels without embankments, however, it will suffice to set apart a margin of 15 links. If stream runs through or near the land, a margin of not less than 50 links on either bank should as a general rule be reserved and registered as Poramboke. Land set apart as above should be shown in the accounts as road, tank, channel or stream or Poramboke, as the case may be. (Note: No change should be made in the revenue classification of land on the margin of irrigation works which are usually leased out by the Public Works Department without intimation of the fact being given to the Executive Engineer of the division.)
11) The respondents contention in present position is that the respondents proposed house sites with 400 links of length and 80 links of width and remaining width on either side is 89 links and that there is no objection to have ingress and egress to agricultural operations and that the petitioner and other villagers have no right and thereby the petitioner is not entitled to claim any relief in this Writ Petition.
12) It is further contended that the respondent authorities proposed to distribute house site pattas to the landless poor persons under the scheme 'Navaratnalu - Pedalandariki Illu' and thereby the proposal for the benefit of public and the petitioner cannot claim any right in the present petition and requested to dismiss the Writ Petition. The respondents also filed a copy of Adangal to show the classification of the land and a copy of rough sketch of FMB for Field No.4 for an extent of Ac.1.29 cents in R.S.No.4-1 & 4-2 for perusal of this Court and requested to pass appropriate order.
13) During hearing the learned counsel for petitioner reiterated the contentions while contending that the width of puntha left over is only 39 links and it is contrary to BSO 15(2) and the same is admitted by the respondents in para 11 of the counter affidavit and thereby without filing any material the Court can set aside the proposal of assignment of part of puntha land and requested to allow the Writ Petition.
14) Whereas, the learned Assistant Government Pleader for Revenue submits that the balance extent of land of puntha can be used for ingress and egress, since it is classified as puntha and that to left over width of 'Puntha Poramboke' is 34 links on one end and 89 links on another end, and the same can be utilized and that the assignment of part of 'Puntha Poramboke' will not defeat the rights of this petitioner and requested to pass appropriate order.
15) Perused the material available on record.
16) Now, the point arises for consideration is:-
Whether the assignment of land in an extent of Ac.0.39 cents in R.S.Nos.4-1 & 4-2 will infringe the right of the petitioner and other villagers to use the puntha in Sy.No.4-2 of Peravali Village, if so, whether the petitioner is entitled to claim any right, and, whether the respondents be restrained by way of Writ of Mandamus directing them not to assign any part of the 'Puntha Poramboke' in R.S.No.4-2 of Kothapalli Agraharam Village Village, Peravali Mandal?
17) It is an undisputed fact that the total extent of land in R.S.No.4-2 is Ac.1.29 cents and an extent of blue marked portion i.e., Ac.0.40 cents out of Ac.1.29 cents was already assigned and the width of the road on the western side, there is a road of 30 links width shown in red colour in the plan and adjacent to the road Ac.0.39 cents is identified which is shown in yellow colour for assignment as house plots under the scheme 'Navaratnalu - Pedalandariki Illu'.
18) Therefore, the classification of the land as puntha as contended by the petitioner is supported by the documents filed by the respondents along with the counter affidavit. Thus, there is no dispute as to the existence of puntha as on date in an extent of Ac.1.29 cents and it is adjacent to the road of 30 links width.
19) In any view of the matter B.S.O 15(4) deals with the lands that may be assigned and that may not be assigned and the same is extracted hereunder for better appreciation of the case:
"BSO 15(4) Lands that may be assigned and that may not be assigned:-
(i) All lands at the disposal of the Government except those hereinafter prohibited may be assigned. The assignment of lands shall generally be free of market value except in the case of project affected lands in which case market value shall be collected.
(ii) The assignment of the following classes of lands is prohibited:
(a) Poramboke (tank beds, foreshore of tank bed cattle stands, grazing lands and reserved lands (reserved for depressed class members or for any public purpose, such as schools, playgrounds, hospitals, maternity centers, reading rooms and extension of house- sites, Panchayat purposes, town sites and lands in the proximity thereof.
(b) Land which has been occupied for 18 months and adjoins a reserve forest or an unreserved block of a square mile or more until the Collector has consulted the District Forest Officer and considered any objections, he may have to its assignment;
(c) Lands containing topes or valuable trees;
(d) Lands within cantonment limits;
(e) Lands reserved under Section 26 of the Forest Act;
(f) Lands within port limits;
(g) Lands near the sea coast within one furlong of high water mark of the sea;
(h) Water course porambokes, namely, margins of channels, streams etc.;
(i) Lands in the vicinity of aerodromes or landing grounds (i.e.) within a belt of 200 yards;
(j) Lands containing minerals, quarries, etc.
(k) Padugais i.e. land within the flood bank of rivers, lanka lands not held on ryotwari tenure, river accretions and reformed lands for which the owners have ceased to pay assessment;
(l) Lands where "pati matti" is available and;
(m) Any other lands which are required or likely to be required for any public or any special purposes necessary for the provision of amenities of the community or connected with the development of the village.
Provided, however, that tank bed lands, foreshore lands and lands under categories (g), (j), (k) and (m) above, if not immediately required or if their occupation be not objectionable at present, may be leased with a condition for resumption, when required for public purpose without payment of compensation for improvements, if any effected."
20) In view of B.S.O 15(4)(m), any other lands which are required or likely to be required for any public or any special purposes necessary for the provision of amenities of the community or connected with the development of the village, provided, however, that tank bed lands, foreshore lands and lands under categories (g),
(j), (k) and (m) above, if not immediately required or if their occupation be not objectionable at present, may be leased with a condition for resumption, when required for public purpose without payment of compensation for improvements, if any effected.
21) Thus, from B.S.O 15(4)(m), land which is required for the provision of amenities to the community cannot be assigned. Customary easement, as provided under Section 18 of the Easements Act is an amenity to the land own and possessed by the farmers within the vicinity, since the same is being used as cart track and footpath.
22) As per G.O.Ms.No.510 Revenue (Lands-1) Department dated 30.12.2019, 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. When the petitioners contended that, the land is a drainage bund, if accepted, the same is hit by G.O.Ms.No.510 Revenue (Lands-1) Department dated 30.12.2019. Even assuming for a moment that, the proposed land is not a drainage bund and it is a road margin, when it is road poramboke, earmarked for future explanation, the same cannot be assigned in view of B.S.O 15(4). When the farmers of Peravali Village are enjoying the right over the land, such right is recognized by Section 18 of Indian Easements Act. Section 18 of Indian Easements Act recognizes the acquisition of a customary easement and the mere fact that such a right is a customary right also will not affect its validity as an easementary right. A customary right by its very definition cannot be the creature of a written instrument. There cannot be a customary easement in favour of an individual and so easement acquired by virtue of local custom can only be in favour of a class or a community. A customary easement can be claimed even by a family or an individual and such claim need not be by a large community alone. To constitute a customary easement the right claimed must be an easement and it must be in virtue of a local custom. A customary right by uninterrupted user is quite different from setting up a local custom. A custom is a particular rule which exists either actually or presumptively from time immemorial and has obtained the force of law in a particular locality. Before a Court of law can never give effect to a custom, the Court must be satisfied that it is definite, ancient, uniform and not illegal in itself or unreasonable. Such a custom from long usage should have obtained the force of law. It must be certain peaceable, reasonable, ancient and not opposed to morality or public policy. In Subramanian Chettiar v. Kumarappa Chettiar1, the Division Bench of the Madras High Court observed that, a custom is a rule which in a particular family or in a particular district, has from long usage obtained the force of law. It must be ancient, certain and reasonable and being in derogation of the general rules of law must be construed strictly. It is further essential that it should be established to be so by clear and unambiguous evidence for it is only by means of such evidence that the courts can be assured of its existence and of the fact that it possesses the conditions of antiquity and certainty on which alone its legal title to recognition depends. It must be not be opposed to morality or public policy and must not be expressly forbidden by the legislature.
23) Therefore, subject to establishing these requirements to constitute a customary right, the farmers who are enjoying the land in dispute as customary right to use the land as footpath and cart track (bandidaari), which is admitted by the respondents by producing the document, if assigned, the petitioners would be deprived of their right to enjoy their customary right by using the land as footpath and cart track, which is an amenity provided to the farmers of the locality.
24) Therefore, it would fall within B.S.O 15(4)(m), since it is an amenity, thereby, the same cannot be assigned as house site for landless poor. Even according to the proviso thereto, if such land is covered by Clauses (g), (j), (k) and (m), if not immediately required or if their occupation be not objectionable at present, may be leased with a condition for resumption, when required for any public purpose without payment of compensation for improvements, if any affected. Therefore, such land preserved cannot be assigned, except for ek sal lease.
25) According to Section 53 of The A.P. Panchayat Raj Act, 1994 (for short 'Panchayat Raj Act'), all public roads in any village, other than National Highways, State Highways and roads vesting in Zilla Parishad or Mandal Parishad shall vest in the gram panchayat together with all pavements, stones and other materials thereof, all works, materials and other things provided therefore, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the gram panchayat fund or otherwise, in along side or under such roads, and all works, materials and things appertaining thereto. Therefore, drainage poramboke, sewer, canal poramboke and road poramboke are deemed to have been vested on the gram panchayat and the gram panchayat will have control over those properties, since the public roads are public properties and they are constructed for the public purpose. Thus, as per Section 53 of the Panchayat Raj Act, all public roads in any village, other than National Highways and State Highways vest in gram panchayat for the purpose of maintenance. If any immovable property for the purpose of maintenance or for achieving any of the public purpose is required, Gram Panchayat has to - through appropriate Revenue Authority, acquire the land following the procedure under the Land Acquisition Act, 1894. (vide G. Venkata Reddy v. E.O, G.P. Kollapur Village and Mandal and Post2). Thus, it is clear from the law declared by the Court that, when the property is deemed to have been vested, it is for the purpose of maintenance and even if the panchayat wants to take over the property, except by due process of acquiring the property, i.e. by acquiring the property through revenue department, they cannot take the property by claiming ownership.
26) Similarly, according to Section 55 of the Panchayat Raj, communal property is also deemed to have been vested in the panchayat and the income derived there from can be utilized by the gram panchayat for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description or of lands under a particular source of irrigation, shall vest in the gram panchayat and be administered by it for the benefit of the villagers or holders.
27) 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, 2010 (4) ALD 374 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.
28) 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 Municipality3 and Banne Gandhi and others v. District Collector4). 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 Collector5, where the High Court of Andhra Pradesh held that distribution or assignment of gramakantham which is community land to anyone by Government without issuing any notification, divesting such land from Panchayat is illegal. By applying these principles to the present facts of the case.
29) The State Government issued G.O.Ms.No.558, dated 02.03.2020 divesting the lands that vested on the Gram Panchayat. Therefore, in view of Government Order referred above (Secretary to Government of Andhra Pradesh Panchayat Raj passed) the lands are deemed to have been divested and the Gram Panchayat has no control over such lands in terms of Sections 53 and 58 of Panchayat Raj Act but still the bar under BSO 15(4) is applicable to the present situation since conversion of puntha into assessed waste to assign the same to the landless poor under the Government Scheme 'Navaratnalu - Pedalandariki Illu'.
30) Further, it is contended that there is a clear prohibition to assign such land under BSO 15(2). According to it, the extent of land preserved by the Government like bunds, etc., can be reclassified to certain extent. When a road runs through the land applied for assignment, a width of at least one chain should be set apart for the road and the remainder dealt with under the rules. Similarly, when the bank of an irrigation work runs through or near the land, the extent of land required to allow a margin of one chain along the foot of the embankments should be set apart if the irrigation work is an important one such as a main canal, a main distributory or a main drainage, channel, one chain is equal to 100 links or equal to 66' (sixty six feet), as such the BSO 15(2) imposes a prohibition of assignment for a width of 66' from the bank of channel. But, without adhering to the said prohibition, the respondents intended to assign the land to house sites by reducing the width of the road as well as drainage canal, which is illegal.
31) In the present case, the width of the Puntha at one point as per the FMB copy is 50 + 34 = 84 links and at any point that is towards the south. The width is 50 + 89 = 139 links at another point. But, as per BSO 15(2), the land adjacent to the road shall be left for future widening as margin and not the land beyond the road margin. The very purpose of leaving one chain which is equivalent to 70 feet is for the specific purpose of future widening of the roads or future use of the same for road widening etc.,
32) But, in the present case, the proposed house site plots is just adjacent to the road, which is shown in yellow colour in the plan and it is contrary to BSO 15(2). Therefore, identifying the land shown in yellow colour in the plan filed along with the counter affidavit by the Government is illegal and contrary to BSO 15(2) and it will deprive the petitioner's right to ingress and egress to the agricultural fields. As puntha is meant for public use and it could be said to be a common property for public use. In such a case, it is the duty of the Government to protect such public places.
33) The Apex Court in Jagpal Singh and Others vs. State of Punjab and Others in Para 3 held as follows:-
Para 3: 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. Paleduga Anjayya (1 (1972) 1 SCC
521) SCC Page 529 the Court observed in Para 23 as follows: "23. 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 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 principal or any other landholder. Hence those rights cannot be said to have been abrogated by Section 3(c) of the Estates Abolition Act."
34) In pursuance of the judgment of the Apex Court the State of Andhra Pradesh issued G.O.Ms.No.188, dt.21-07-2011 laid down certain guidelines for Eviction of Encroachers as follows:-
(i) Where it is brought to the notice that any property of the Panchayat is under occupation of any persons the Executive authority (Panchayat Secretary) shall serve a notice to the party concerned and give a brief hearing before proceeding for eviction;
(ii) Suitable orders shall be passed by the Executive authority (Panchayat Secretary) before actual eviction takes place;
(iii) The Divisional Panchayat Officer will conduct a monthly review of these cases for protecting Gram Panchayat properties in his jurisdiction through monitoring the process of eviction. He will also give periodical reports to District Panchayat Officer, who will review the cases once in two months;
(iv) The Executive authority (Panchayat Secretary) may take necessary assistance from the police as per Section 139 of the Andhra Pradesh Panchayat Raj Act, 1994;
(v) The evicted property of the Gram Panchayat shall be protected by making fencing or by construction a compound wall depending on the value of the property and by displaying a notice board;
(vi) A permanent register on encroachment of Panchayat properties shall be maintained in all Gram Panchayats and the same will be validated in the Gram Sabha and Gram Panchayat meetings at least twice in a year;
(vii) Aggrieved parties may file representations to the Executive Authority (Panchayat Secretary) concerned by marking a copy to the Divisional Panchayat Officer;
(viii) The petitions filed by the aggrieved parties will be mentioned and disposed of by the Divisional Panchayat Officer/District Panchayat Officer.
35) Instead of following these guidelines in G.O.Ms.No.188, dated 21-07-2011, the respondents are trying to deprive this petitioner from enjoying the right in common property for the benefit of villagers, as path to reach their land, which is impermissible in view of the law declared in the judgment of Apex Court in Jagpal Singh and Others vs. State of Punjab and Others6.
36) By applying these principles to the present facts of the case. The proposed assignment of land in R.S.No.4/2 of Kothapalli Agraharam Village, Peravali Mandal, West Godavari for house sites to the weaker sections that divested from the gram panchayat by G.O.Ms.No.558, dated 02.03.2020 is a serious illegality, which vitiates the entire procedure.
37) In view of the judgment of the Supreme Court referred above when the land is earmarked for public use classifying it as puntha identifying such land for assignment, a part of such land adjacent to the road without leaving the required land in terms of BSO 15(2) is a clear violation of right of this petitioner and other villagers. (2011) 11 Supreme Court Cases 396
38) Therefore, the proposed action of the respondents to identify the land for assignment for grant of house site pattas under the Scheme 'Navaratnalu - Pedalandariki Illu' is contrary to BSO15(2), BSO 15(4)(m) and the law laid down in Jagpal Singh and Others vs. State of Punjab and Others. Hence, the action of the respondents is hereby declared as illegal and contrary to BSO 15(2) and 15(4)(m) and the principles laid down by the Apex Court in Jagpal Singh and Others vs. State of Punjab and Others, thereby the respondents are directed not to assign the yellow marked portion shown in the plan adjacent to the road depriving the petitioner and other villagers from enjoying their right of ingress and egress to their agricultural lands by issue of Writ of Mandamus. Accordingly, the point is answered in favour of the petitioner and against the respondent authorities.
39) In the result, the Writ Petition is allowed declaring the action of respondents as illegal and arbitrary. However, this order will not preclude the State to adhere to BSO 15(2) and BSO 15(4)(m) and take appropriate action after issuing notice to the petitioner for such conversion. There shall be no order as to costs.
Consequently miscellaneous petitions pending, if any, shall also stand closed.
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