ANDHRA PRADESH HIGH COURT - AMRAVATI
WRIT PETITION No. 15595 OF 2019
M. Changamma ...Petitioner
versus
The State of Andhra Pradesh ...Respondent
Bench: M. Satyanarayana Murthy
24.02.2020
ORDER
This writ petition is filed under Article 226 of the Constitution of India, to declare the action of the respondents in tying to interfere with the petitioner's peaceful possession and enjoyment of the agriculture land admeasuring Ac.3-00 cents in Sy.No.46-5, Varadaiahpalem Village and Mandal, Chittoor District, without following due process of law as illegal, arbitrary and without jurisdiction.
The petitioner was assigned agricultural land in an extent of Ac.3-00 cents in Sy.No.46-5 of Varadaiahpalem Village and Mandal, Chittoor District, vide "Possession Certificate Proceedings" Rc.No.152/4/1408 dated 12.01.2008 and since then, the petitioner is in peaceful possession and enjoyment of the same by raising paddy and other crops. The petitioner also raised Jeelugu plantation which is good as manure to raise paddy crop. The revenue department also issued Pattadar Passbook No.237 and Title Deed No.237 in favour of the petitioner and the petitioner has been paying land revenue to the revenue department since 2008.
In the revenue records, the name of the petitioner was mutated in Form -1B which disclosed that the property was assigned to this petitioner by issuing D-Form Patta and Form-1B, obtained through website on 12.06.2019 at 17:59:56 from I.P. No.59:88:217:194. Though, the online entries are in favour of the petitioner, recently, subsequently they were removed from the website for the reason best known to the respondents. Further, the petitioner obtained pattadar adangal/pahani on 03.12.2014 which clearly shows that this petitioner is in possession of Ac.3-00 cents agricultural land in Sy.No.46-5 of Varadaiahapalem Village and Mandal and she is the D-Form Patta holder and possessor of the land. It is further contended that, Patta/Possession Certificate dated 12.01.2008 clearly shows that the land is assigned to the petitioner for the purpose of agriculture and the petitioner has no right to alienate the property in favour of any third parties. But, till date, it is not the case of the respondents that the petitioner violated the terms and conditions of D-Form Patta.
While the matter stood thus, Respondent Nos. 3 & 4 highhandedly, without issuing any notice or following due process of law, are trying to dispossess this petitioner and in that process, they came to the property on 24.09.2019 along with men and machines, forcibly tried to dispossess the petitioner, this petitioner with great difficulty resisted the same.
The petitioner came to know that, due to political influence in the village, Respondent Nos. 3 & 4 are trying to dispossess this petitioner from the land without following due process of law. The land is purely agricultural land and the respondents have nothing to do with the land and it cannot be assigned to anyone and that, change of entries in the revenue records is contrary to the procedure, if any, and therefore, requested to issue a direction declaring the action of the respondents in tying to interfere with the petitioner's peaceful possession and enjoyment of the agriculture land admeasuring Ac.3-00 cents in Sy.No.46-5, Varadaiahpalem Village and Mandal, Chittoor District.
The petitioner produced pattadar passbook, title deed and adangal/pahani copies to establish that this petitioner is in possession and enjoyment of the property and on the strength of those documents, he requested to issue a direction stated supra.
The third respondent/Tahsildar filed counter affidavit stating that, verification of ROR-1B/webland entries reveals that the writ petitioner has been issued pattadar passbook for an extent of Ac.0-32 cents only in Sy.No.5/11 of Varadaiahpalem Village vide ROR-1B Khatha No.237. Simultaneously, under the same khatha, fake entry was made for an extent of Ac.3-00 in Sy.No.46/5 of Varadaiahpalem Village during the year 2014 and after noticing the error, the same was rectified by removing the bogus/fake entry during the year 2017 by the then Tahsildar, Varadaiahpalem Mandal.
During inspection of government lands in Varadaiahpalem village, the third respondent inspected the land in Sy.No.46/5 measuring extent of Ac.21-50 cents classified as grazing ground poramboke along with Mandal Surveyor, ARI and VRO concerned and found that the entire land is lying vacant. It is further contended that, the government proposed to assign the land as house sites to the eligible beneficiaries under Navaratnalu - Pedalandariki Illu scheme, designed by the Government of Andhra Pradesh and action is being taken to identify suitable government lands for grant of house site pattas. As a part of the scheme, land in Sy.No.46/5 measuring extent Ac.21-50 cents is classified as grazing ground poramboke which is lying vacant and situated nearer to Varadaiahpalem revenue village was also identified for grant of house site pattas and proposed the same for grant of house site pattas to the eligible landless poor. Therefore, the petitioner cannot resist such act of the Respondent Nos.2 & 3 and requested to dismiss the writ petition.
During hearing, learned counsel for the petitioner has drawn attention of this Court to the adangal to establish that the name of the petitioner is recorded as pattadar and occupier for the land in Varadaiahpalem Village and apart from that, issue of pattadar passbook and title deed to the petitioner would clinchingly establish that this petitioner is in possession of the property as pattadar. It is also contended that, when the respondents found allegedly fake entries, the procedure prescribed under the Act has to be followed, but, without issuing any notice and without following due process of law, the respondents allegedly changed the entries, as admitted by the third respondent in the counter, which is contrary to law prescribed by the judgment of the Full Bench of Andhra Pradesh High Court in Chinnam Pandurangam v. Mandal Revenue Officer, Serilingampally Mandal and others1 and requested to issue a direction as claimed by this petitioner.
The dispute is not only with regard to possession, but also with regard to grant of patta in favour of this petitioner by the respondents. For one reason or the other, copy of the patta is not placed on record by this petitioner and limited his submission that the petitioner is in possession and enjoyment of the property as on date and placed reliance on the Adangal/Pahani dated 20.10.2017. AIR 2008 ANDHRA PRADESH 15 (F.B) The entries made in the Adangal/Pahani for the year 2017 pertaining to Varadaiah Palem Village, Chittoor District would establish that the petitioner is in possession of land of an extent of Ac.0-32 cents in Sy.No.5-11, which is classified as 'Punja', being cultivated with bore water. As per Column Nos. 12 & 13 of the Adangal/Pahani, the petitioner herein i.e. Malli Chengamma w/o Malli Venkata Krishnaiah is in possession and enjoyment of the property and cultivating the said land. Similarly, she is also in possession and enjoyment of the land of an extent of Ac.3-00 in Sy.No.46-5, which is classified as 'Punja' and paying land revenue of Rs.1-95 ps. The Adangal/Pahani was duly signed by Village Revenue Officer, Varadaiahpalem Village on 20.10.2017, but not by Mandal Revenue Officer. In any view of the matter, pattadar passbook issued in favour of this petitioner for land of an extent of Ac.3-00 cents in Sy.No.46-5 and Ac.0-32 cents in Sy.No.5-11, Title deed issued in favour of this petitioner, but, the entries were not changed till the alleged change.
The specific contention of the respondents before this Court is that a fake/bogus entry was made as against Sy.Nos.46-5 of Varadaiahpalem Village in the revenue records and that the respondents allegedly changed the fake entries.
No doubt, if, for any reason, the entry in the revenue record is fake or false, a prescribed procedure is to be followed even to rectify such mistakes or remove fake or bogus entries in the revenue records. But, without following such procedure, the respondents allegedly removed the name of this petitioner as against Sy.No.46-5 of an extent of Ac.3-00 in revenue record, Varadaiahpalem Village & Mandal, Chittoor District. The D-Form Patta No.1524/1405 dated 12.01.2008 produced before this Court would also disclose that this petitioner was assigned land to an extent of Ac.3-00 in Sy.No.46-5 in Varadaiahpalem Village. The Adangals for earlier Faslis, more particularly Fasli No.1424 dated 03.12.2014 shows that this petitioner is in possession and enjoyment of the property, as a D-Form Patta holder. But, for one reason or the other, without canceling such D-Form Pattta, Respondent Nos. 3 & 4 are contemplating to dispossess this petitioner in the guise of correcting entries. When there is prima facie material that this petitioner was granted Patta, assigning land of an extent of Ac.3-00 cents in Sy.No.46-5 and Ac.0-32 cents in Sy.No.5-11 in Varadaiahpalem Village, Chittoor District, and the name of the petitioner is mutated in the revenue records, Respondent Nos. 3 & 4 must necessarily follow the procedure prescribed as per The Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (Act No.26 of 1971).
Proviso to Section 5(1) and Section 5(3) of Act No.26 of 1971 represent statutory embodiment of the most important facet of the rules of natural justice i.e. audi alterem partem. These provisions contemplate issue of notice to the persons likely to be affected by the action/decision of the Mandal Revenue Officer to carry out or not to carry out amendment in the Record of Rights. Proviso to Section 5(1) lays down that if the Mandal Revenue Officer decides not to make an amendment in the Record of Rights, then he shall pass appropriate order only after giving an opportunity of making representation to the person, who gives intimation regarding acquisition of any right referred to in Section 4. Section 5(3) provides for issue of written notice to all persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment. Similarly, a notice is required to be issued to any other person whom the recording authority has reason to believe to be interested in or affected by the amendment. A copy of the amendment and the notice is also required to be published in the prescribed manner. The publication of notice in the prescribed manner is in addition to the notice, which is required to be given in writing to all persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and also to any other person whom the recording authority has reason to believe to be interested in or affected by the amendment. To put it differently, the publication of a copy of the amendment and the notice is only supplemental and not the alternative mode of giving notice to the persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and to any other person to whom the recording authority has reason to believe to be interested in or affected by the amendment. If the Legislature thought that publication of a general notice in Form-VIII will be sufficient compliance of the rules of natural justice, then there was no occasion to incorporate a specific requirement of issuing written notice to the persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment. The requirement of issuing written notice to such persons clearly negates the argument that publication of notice in Form-VII is sufficient. Thus the language of Form VIII in which notice is required to be published cannot control the interpretation of substantive provision contained in Section 5(3), which casts a duty on recording authority to issue notice in writing to all persons whose names are entered in the Record of Rights and who are interested in or affected by the proposed amendment. (vide Chinnam Pandurangam v. Mandal Revenue Officer, Serilingampally Mandal and others (referred supra)).
In view of the principle laid down in the above judgment, certain procedure prescribed under Section 5(1) and (3) and proviso thereto is mandatory. Even assuming for a moment that the entry against Sy.No.46-5 is fake or bogus, it is the obligation of the authority i.e. third respondent/Tahsildar to issue notice to the recording person whose name is entered in the record of rights. The language used in Section 5(1) & (3) mandating issue of notice to the person whose name is entered in the record is suffice to hold that, it is not directory, but it is mandatory. According to the counter filed by the third respondent, the land in Sy.No.46-5 admeasuring Ac.21.50 cents is classified as Grazing ground poramboke i.e. communal land. When the said land is classified as grazing land, it vests on the gram panchayat for the benefit of community at large. Unless the classification is changed from communal land to government poramboke, as per A- Register of Varadaiahpalem Village, the land cannot be assigned. Even assuming for a moment that the entries in the revenue records are fake or bogus, when the name of this petitioner is entered into the record against Sy.No.46-5, it is the mandatory duty of the Tahsildar to follow the procedure prescribed under Section 5(1) & (3) of Act No.26 of 1971 r/w Rules 15 & 16 of the Andhra Pradesh Record of Rights in Land and Pattadar Pass Books Rules, 1989. On this ground alone, the amendment to entries in the revenue records by the respondents can be held to be illegal. Therefore, such unilateral amendment of entries made in the revenue records by the respondents, deleting the name of this petitioner in the adangal is a serious illegality and such unilateral amendment in the revenue records will not enure any benefit to the respondents and on the basis of such amendment, the respondents cannot claim that it is government poramboke or grazing land and hence, the petitioner cannot be dispossessed from the land in the petitioner's possession.
Further, under Section 20 of The Andhra Pradesh (Andhra Area) Estates Land Act, 1908, the Joint Collector alone is the competent authority to change the classification of communal land into government land. But, here, the grazing land which is known as communal land is proposed to be assigned to the landless poor as house sites, which is prohibited under B.S.O 15(4) of Andhra Pradesh Revenue Board Standing Orders, which 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."
Thus, in view of B.S.O 15(4)(iii)(a), such communal lands cannot be assigned to anyone.
Apart from that when land is communal land, it is the duty of State to protect such communal lands. In Jagpal Singh and others v. State of Punjab and others2 the Supreme Court held that interest of community has to be protected and reiterated the principle laid down in the earlier judgment in Friends Colony Development Committee vs. State of Orissa and directed all the State Governments in the country to 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.
Following the judgment in Jagpal Singh and others v. State of Punjab and others (referred supra), the State of Andhra Pradesh issued G.O.Ms.No.188 Panchayat Raj And Rural Development (Pts.IV) Department dated 21.07.2011 framing following guidelines for illegal/ unauthorized occupation of Gram Sabha/Gram Panchayats/ Poramboke/Shamlat lands and the same should be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the Village.
1) 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.
2) Suitable orders shall be passed by the Executive authority (Panchayat Secretary) before actual eviction takes place.
3) 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 (2011) 11 SCC 396 2004 (8) SCC 733 give periodical reports to District Panchayat Officer, who will review the cases once in two months.
4) The Executive authority (Panchayat Secretary) may take necessary assistance from the police as per section 139 of the Andhra Pradesh Panchayat Raj Act'1994.
5) The evicted property of the Gram Panchayat shall be protected by making fencing or by constructing a compound wall depending on the value of the property and by displaying a notice board.
6) 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.
7) Aggrieved parties may file representations to the Executive authority (Panchayat Secretary) concerned by marking a copy to the Divisional Panchayat Officer.
8) The petitions filed by the aggrieved parties will be monitored and disposed of by the Divisional Panchayat Officer / District Panchayat Officer.
Hence, respondents are bound to take action against unauthorized encroachers following G.O.Ms.No.188 dated 21.07.2011 and cannot assign land to landless poor, in view of bar under BSO 15 (4)(iii)(a) of A.P Revenue Board Standing Orders and in view of principle laid down in the above judgment.
Therefore, in the absence of any conversion from communal land to government poramboke, the proposed allotment of land in Sy.No.46-5 to landless poor is a serious illegality. On this ground alone, the proposed action of the respondents is to be declared as illegal and arbitrary.
Yet, another contention of the learned counsel for the petitioner is that, when the land is situated within the limits of Varadaiahpalem Panchayat and more particularly, when it is allegedly classified as grazing land, the same cannot be deleted.
Even assuming for a moment that, if the contention of the respondents is accepted, still the communal land cannot be assigned, as it is deemed to have been vested in the panchayat under Section 53 of the Andhra Pradesh Panchayat Raj Act, unless, it is notified by issuing gazette notification as per Section 58(2) of Andhra Pradesh Panchayat Raj Act, it will not vest on the government, divesting the same from gram panchayat.
In Banne Gandhi and others v. District Collector, R.R District, this Court held that, Section 58 (1) directs that all porambokes viz., "grazing grounds", threshing floors, burning and burial grounds, cattle stands, carts tanks etc., vest in the Gram Panchayat. sub-section (2) thereof directs that the Government may, at any time, by notification in the A.P Gazette, direct that any porambokes referred to in sub-section (1) shall cease to vest in the Gram Panchayat. The Government initiated steps to issue house site pattas over the land which formed part of gramakantam. The same was challenged stating that gramakanatam vests in the Gram Panchayat and that the Government cannot grant house site pattas in it. A learned Single Judge of this Court held that there is no mention of gramakantam in sub-section (1) and thereby, the question of such lands vesting in the Government does not arise.
In the present facts, the land is alleged classified as grazing land. If the contention of Respondent No.3 is accepted, still it cannot be assigned as it's alienation is prohibited.
In view of my foregoing discussion, it is clear that the entries allegedly made or amended, deleting the name of this petitioner as 2007 (4) ALD 374 against Sy.No.46-5 of Varadaiahpalem Village & Mandal is in contravention to Section 5(1) & (3) of Act No.26 of 1971 r/w Rules 15 & 16 of the Andhra Pradesh Record of Rights in Land and Pattadar Pass Books Rules, 1989. Besides that, since it is a communal land, as admitted by the third respondent in the counter, it cannot be assigned to the landless poor, in view of the bar under B.S.O 15(4)of Andhra Pradesh Board Revenue Standing Orders. As alleged by the respondent and even according to Section 53 of the Panchayat Raj Act, when the land is classified as grazing land, all public roads in any village, other than National Highways, State High Ways and Roads vesting in Zilla Parishad or Mandal Parishad shall vest in the Gram Panchayat.
As per Section 5(3) of the Act, duty casts upon the third respondent/Tahsildar to issue a notice in writing to all persons whose names are entered in the record of rights and who are interested in or affected by the amendment as per Section 5(3) of the Act and a copy of the amendment and notice shall also be published in the prescribed manner. But, no such notice was issued and publication has not taken place, before amending the entries in revenue record. In those circumstances, the land in dispute cannot be assigned to any person and the petitioner cannot be dispossessed from the land in prima facie possession, except by due process of law.
In the result, writ petition is allowed, declaring the action of the respondents in trying to interfere with the petitioner's peaceful possession and enjoyment of the agriculture land admeasuring Ac.3-00 cents in Sy.No.46-5, Varadaiahpalem Village and Mandal, Chittoor District, as illegal, arbitrary and violative of B.S.O 15(4) of Andhra Pradesh Board Standing Orders and also violative of provisions of Section 5(1) & (3) of Act No.26 and Sections 53 & 54 of The Panchayat Raj Act, 1994, while directing the respondents not to dispossess the petitioner from the subject land, except by due process of law. No costs.
Consequently, miscellaneous applications pending if any, shall stand closed.
_____________________________________
JUSTICE M. SATYANARAYANA MURTHY
Date:24.02.2020
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