Madras HC: Bounden-duty of the Revenue officials to preserve & protect government lands; Court should not permit continued illegal occupation [02.09.2022]

IN THE HIGH COURT OF JUDICATURE AT MADRAS 

DATED: 02.09.2022 

CORAM : THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE 

AND THE HON'BLE MRS.JUSTICE N.MALA 

W.P.No.23104 of 2022 

Indra Nagar Residents' Welfare Association 

Rep. by its Vice President R.Vijayakumar 

No.13, Indra Nagar, Cuddalore Road 

Vrithachalam Taluk Cuddalore District.                                                                                       ... Petitioner 

Vs. 

1. The District Collector Vridhachalam Taluk Cuddalore District 607 001. 

2. The Revenue Divisional Officer Vridhachalam Taluk Cuddalore District. 

3. The Tahsildar Vridhachalam Taluk Office Vridhachalam Taluk Cuddalore District. 

4. The Commissioner Municipality Office Vridhachalam Taluk Cuddalore District.             ...Respondents 

Prayer: Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus calling for the records relating to the impugned order of the fourth respondent, namely the Commissioner, Municipality Office, Vridhachalam, Cuddalore District, in his proceedings bearing No.Na.Ka.No.4606/2018/F1 dated 22.07.2022, quash the same and consequently, to direct the respondents herein to allot any alternative site or adjacent to the comprising S.No.204 situated at Indra Nagar, Vridhachalam. 

For the Petitioner : Mr.D.Daniel For Mr.T.Nithya 

For the Respondents : Mr.J.Ravindran Additional Advocate General 

Assisted by Mr.A.Selvendran Special Government Pleader 

ORDER

(Order of the Court was made by the Hon'ble Chief Justice) The writ petition has been filed challenging the notice dated 22.07.2022 mainly on the ground that the land occupied by the members of the petitioner Association is not waterbody, but sarkar poramboke and therefore, the respondents have erroneously issued the notice stating that the land is a waterbody.

2. Learned counsel for the petitioner Association submits that the members of the petitioner Association are residing in the land in question for the past 70 years and therefore, notice should not have been effected on them and hence, a prayer is made to set aside the impugned notice.

3. Learned counsel sought time on the previous occasion to furnish an undertaking to remove the encroachment within a month and therefore, the matter was adjourned for today. But, instead of giving an undertaking, learned counsel for the petitioner has placed on record certain documents to prove the right of the members of the petitioner Association to possess the land. However, he could not refer to any title document to prove lawful occupation of the land, by either producing patta or assignment or any other document which may show right in favour of the members of the petitioner Association to possess the land.

4. The documents produced are revenue receipts and other documents which cannot form basis to even claim title over the land. He even failed to refer any document to show that S.No.204, for which notice has been given, is not a land of waterbody, but sarkar poramboke. The said document has now been furnished, but is not a revenue document.

5. In view of the above, the members of the petitioner Association have failed to show their title to the land in question so as to possess it, even if it is a sarkar poramboke, i.e. Government land. We do not find any document to show that S.No.204 is Sarkar poramboke. That apart, the respondents are taking action pursuant to the order of this Court in W.P.No.31168 of 2017 decided by order dated 30.11.2017. The petitioner Association did not file any application to seek recall of the order or to review the order. Even they failed to prove their right over the land, when we provided an opportunity for the same.

6. At this juncture, it would be appropriate to refer to the decision of the Apex Court in the case of Joginder v. State of Haryana, (2021) 3 SCC 300, wherein it has been emphatically held as under:

"13. It is required to be noted that the persons in illegal occupation of the Government Land/Panchayat Land cannot, as a matter of right, claim regularization. Regularization of the illegal occupation of the Government Land/Panchayat Land can only be as per the policy of the State Government and the conditions stipulated in the Rules. If it is found that the conditions stipulated for regularisation have not been fulfilled, such persons in illegal occupation of the Government Land/Panchayat Land are not entitled to regularization. .....

14. At this stage, the decision of this Court in the case of Jagpal Singh v. State of Punjab, (2011) 11 SCC 396, is required to be referred to. In the said decision, this Court had come down heavily upon such trespassers who have illegally encroached upon on the Gram Sabha/Gram Panchayat Land by using muscle powers/money powers and in collusion with the officials and even with the Gram Panchayat. In the said decision, this Court has observed that "such kind of blatant illegalities must not be condoned". It is further observed that "even if there is a construction the same is required to be removed and the possession of the land must be handed back to the Gram Panchayat". It is further observed that "regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of the villagers of the village". Thereafter, this Court has issued the following directions:

'23. Before parting with this case, we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/ Poramboke/ Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/ Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession.

Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.' In view of the above also, the prayer of the Petitioners for regularization of their illegal occupation of the panchayat land cannot be accepted."

[emphasis supplied]

7. The decision in Joginder v. State of Haryana, supra, reiterated the view enunciated in Jagpal Singh v. State of Punjab, (2011) 11 SCC 396. In terms of the directions contained in the case of Jagpal Singh v. State of Punjab, supra, it is the bounden duty of the State Government concerned to ensure restoration of such lands for the common use of villagers of the village concerned. The State Government is obligated to make earnest efforts to restore every piece of illegally occupied land which would fall within the orders and directions issued in the case of Jagpal Singh v. State of Punjab, supra.

8. The mushroom growth of encroachment in the waterbody is affecting the environment. It is the bounden-duty of the officials of the Revenue Department to preserve and protect government lands which have been reserved for specific purposes. It is trite that when a person is a rank encroacher without any valid right or title over the land belonging to the government, the court should not permit or protect the continued illegal occupation of the land. 

9. In the light of the aforesaid and in view of the fact that the order passed by this Court in the year 2017 is yet to be complied and finding no title or right of the members of the petitioner Association in the land in question, we do not find any reason to cause interference with the impugned notice. Accordingly, the writ petition is dismissed. There will be no order as to costs. Consequently, WMP Nos.24349 and 24350 of 2021 also dismissed.

(M.N.B., CJ.) (N.M., J.) 

 02.09.2022

Andhra HC: Duty of Panchayat Secretary to implement Panchayat resolutions. [14.09.2022]

THE HON'BLE SRI JUSTICE VENKATESWARULU NIMMAGADDA 

WRIT PETITION NO.30935 OF 2021 

Veligandla Gram Panchayat

versus

The State Of Andhra Pradesh

14.09.2022

ORDER:

This writ petition is filed under Article 226 of the Constitution of India, claiming the following relief:

"To issue writ of mandamus declaring:

(a) That the respondents 2 to 9 failed in their statutory duty to protect the petitioner's land in an area of about Ac.0-50 cts in Sy.No.344 of Veligandla Gram Panchayat (V&M), Prakasam District from encroachments;

(b) That the respondents 8 & 9 are acting prejudicial to the interest of the petitioner Gram Panchayat and in contravention of the petitioner's decisions viz; Gram Panchayat's Resolution No.6 dated 29.11.2021 and 02.08.2021 as illegal, arbitrary, violative of principles of natural justice, violative of Article 14 of the Constitution and ultravires to the provisions of A.P. Panchayat Raj Act,

(c) Consequently to direct Respondent Nos. 2 to 4 to initiate disciplinary action against respondents 8 & 9 for creating and fabricating false documents supporting the clandestine claims of respondents 10 to 13 in respect of petitioner's land in Sy.No.344."

Learned counsel for the petitioner submits that, the petitioner is a Gram Panchayat, represented by its elected ward members and duly elected Sarpanch. As per the revenue record, land admeasuring Ac.4-52 cents in Sy.No.344 of Veligandla Gram Panchayat is classified as 'Gramakantam' and it is situated in the prime locality of the village. Most of the land is filled with permanent structures like dwelling houses. Further, land admeasuring Ac.0-50 cents in Sy.No.344 is vacant and it has been used for community purposes. Out of that, an extent of Ac.0-15 cents is used as stock point for construction material (previously used for storing farm harvest). The said land and remaining portion has been in utilization for parking of vehicles, carts and also as RTC bus stop in the village. Since the vacant land admeasuring Ac.0-50 cents in Sy.No.344 is vested with the Gram Panchayat, it is the absolute title holder and vested control over the said land. Accordingly, the petitioner - Gram Panchayat passed Resolution on 02.08.2021 proposing to construct BC,SC Hostel and Library. It is submitted that, contrary to the resolution dated 02.08.2021, Respondent Nos. 8 & 9 herein acted against the interests of the Gram Panchayat and fabricated the documents to support the clandestine claims of Respondent Nos. 10 to 13 who are busy bodies and not even the residents of the village. Learned counsel further submits that, since the land is gramakantam land, it is vested with the Gram Panchayat and Respondent No.8 has no authority or power to issue any certificates, more particularly possession certificates in favour of the unofficial respondents, which is illegal and out of jurisdiction of Respondent No.8 and in support of his contentions, learned counsel placed reliance on the judgments of the Hon'ble Apex Court in Jagpal Singh and others vs. State of Punjab and Janabai vs. Additional Commissioner and others. Deprived of the said violations, the petitioner submitted a representations dated 30.11.2021 and 04.12.2021 to Respondent Nos. 2 to 7. But, even after receipt of the said representations, the concerned authorities have not acted upon so far. Hence, having no other option, the petitioner preferred the present writ petition.

Whereas, Secretary, Veligandla Gram Panchayat filed counter affidavit on behalf of Respondent Nos. 7 & 9, denying material allegations, specifically stating that the claim of the petitioner i.e. land admeasuring Ac.0-50 cents in Sy.No.344 is vacant is false and baseless. It is submitted that, said land is classified as 'Gramakantam' and as per the field verification on ground, it is physically in possession of the official respondents as well as the public offices which are catering the needs of the villagers. Physical possession of the land is categorized as follows:

                    1     Old Grama Chavidi           Ac.0-04 cents
                    4     Agricultural godown         Ac.0-03 cents
                    6     Peerla Chavidi              Ac.0.15 cents
                    7     Bulk milk centre            Ac.0.05 cents
                    8     Vacant site                 Ac.0.05 cents
                    9     Remaining land used for     Ac.0.97 cents
                          roads

It is further submitted that, without verifying the actual physical features of the land, the petitioner along with other members passed resolution that land admeasuring Ac.0-05 cents in Sy.No.344 is vacant and it can be utilized for construction of BC & ST Welfare Hostel, Bus Shelter, Public Library in the village, which is far away from the truth and physical verification of the land. Therefore, it is the statutory duty of the respondents, more particularly Respondent No.8 to protect the vacant land of the Gram Panchayat to make use of the same for community purpose/public purpose of the villagers.

The unofficial respondents i.e. Respondent Nos. 10, 11 & 13 filed counter affidavit along with vacate stay petition, wherein, they pleaded that they were issued possession certificates in respect of the land admeasuring Ac.0-02 cents each in Sy.No.344, which they are in possession since 30 years. After issuance of the said possession certificates by Respondent No.8, the unofficial respondents got constructed residential houses as per the housing scheme formulated by the Government. Since then they have been in possession and enjoyment of the respective house properties. If the petitioner as well as official respondents are intending to evict them, they must follow due process of law under the provisions of Andhra Pradesh Panchayat Raj Act, 1994 (for short 'the Act') and also observe principles of natural justice. It is contended that, the present writ petition is filed by the newly elected sarpanch of the Gram Panchayat out of political vengeance only. Reliance is placed on judgment of this Court in Bayya Mahadeva Sastry and others v. State of Andhra Pradesh3 and sought for dismissal of the writ petition.

A bare perusal of the documents filed by the petitioner as well as respondents and also considering the contentions of the learned counsel for the petitioner and learned Standing Counsel for Gram Panchayat, this Court is of the view that, the writ petition filed, on the face of it, is misconceived, for the reason that, the petitioner itself is a competent authority to enforce the statutory duties, power and functions cast upon it, as well as, it is empowered to implement the resolution(s) in accordance with law. The fact remains that, Section 98 of the Act, empowers the Executive Authority to remove or alter any projection, encroachment or obstruction, in or over any public road vested in such Gram Panchayat, by issuing notice. Similarly, according to Section 55 of the Act, communal property administered for the benefit of the villagers shall vests in the Gram Panchayat.

Section 2(12) of the Act defined 'executive authority' means the Panchayat Secretary appointed to each Gram Panchayat. The functions of the 'Executive Authority' are enumerated in Sections 31 and 32 of the Act as follows:

31. Functions of Executive Authority. -

(1) The Panchayat Secretary, with the approval of, or on the direction of the Sarpanch, convene the meetings of the Gram Panchayat so that at least one meeting of the Gram Panchayat is held every month and if he fails to discharge that duty, with the result that no meeting of the Gram Panchayat is held within a period of ninety days from the last meeting he shall be liable to disciplinary action under the relevant rules:

Provided that where the Sarpanch fails to give his approval for convening the meeting so as to hold a meeting within the period of ninety days aforesaid, the Panchayat Secretary shall himself convene the meeting in the manner prescribed.

(2) The Executive Authority shall ordinarily attend to the meetings of the Gram Panchayat or of any committee thereof and shall be entitled to take part in the discussions thereat, but he shall not be entitled to vote or to move any resolution.

32. Functions of the Executive Authority. - The Executive Authority shall -

(a) be responsible for implementing the resolutions of the Gram Panchayat and of the Committee thereof: Provided that where the Executive Authority considers that a resolution has not been legally passed or is in excess of the powers conferred by this Act or that if carried out, it is likely to endanger human life or health or the public safety, the Executive Authority shall:

(i) where he is the Sarpanch directly;

(ii) where he is not the Sarpanch, through the Sarpanch, refer the matter to the Commissioner for orders, and his decision shall be final;

(b) control all the officers and servants of the Gram Panchayat;

(c) exercise all the powers and perform all the functions specifically conferred or imposed on the Executive Authority by or under this Act and subject to all restrictions and conditions imposed by or under this Act, exercise the executive power for the purpose of carrying out the provisions of this Act and be directly responsible for the due fulfilment of the purpose thereof.

In view of Sections 31 & 32 of the Act, it is the duty of Respondent No.9 - Secretary, Veligandla Gram Panchayat to implement the resolutions of the Gram Panchayat. If, the resolutions of the Gram Panchayat is against the public interest or health hazardous, the same shall be brought to the notice of the Commissioner for appropriate action.

In Jagpal Singh & Others v. State of Punjab & Others (referred supra), 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 Anjayya4, 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. The Apex Court concluded that when once the land was reserved for common purpose and earmarked that land, cannot be assigned, depriving the villagers at large by whatever method or mode by any authorities, more particularly by Respondent No.8, who is not the competent authority to deal with the property.

In Janabai vs. Additional Commissioner and others (referred supra), the Hon'ble Apex Court held as follows:

"Section 53 that occurs in Chapter III deals with obstruction and encroachment upon public streets and upon sites. It confers power on the Panchayat to remove such obstruction or encroachment or to remove any unauthorizedly cultivated grazing land or any other land. That apart, it also empowers the Panchayat to remove any unauthorized obstruction or encroachment of the like nature in or upon a site not being private property. The distinction has been made between private property and public property. It has also protected the property that vests with the Panchayat. If the Panchayat does not carry out its responsibility of removing the obstruction or encroachment after it has been brought to its notice in accordance with the procedure prescribed therein, the higher authorities, namely, the Collector and the Commissioner, have been conferred with the power to cause removal. There is a provision for imposition of fine for commission of offence."

In the case on hand, it appears that there are disputes between the Elected Body and Executive Authority - Gram Panchayat. As long as the resolution passed by the Gram Panchayat is not against the public at large and their interests, the Executive Authority i.e. Respondent No.9 has no other option, except to implement the same. Therefore, Respondent No.9 is directed to implement the Resolutions of the Gram Panchayat dated 29.11.2021 and 02.08.2021, as far as it can be implemented in respect of the vacant site by removing temporary encroachments, if any found after conducting detailed survey and inspection.

In the result, writ petition is allowed, directing Respondent No.9 to implement the Resolutions of the Gram Panchayat dated 29.11.2021 and 02.08.2021, as far as it can be implemented by removing encroachments in respect of the subject land by removing temporary encroachments, if any found after conducting detailed survey and inspection. It is needless for this Court to say that, Respondent No.9 shall conduct survey and inspection with the help of Village Revenue Officer and Respondent No.8 and take appropriate action for removal of encroachments in pursuance of the Resolutions of the Gram Panchayat dated 29.11.2021 and 02.08.2021. No costs.

Consequently, miscellaneous applications pending if any, shall stand closed.

Bombay HC: Need to be informed on compliance of the Jagpal Singh directions [15.09.2022]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY 

CIVIL APPELLATE JURISDICTION 

SUO MOTU PUBLIC INTEREST LITIGATION NO. 2 OF 2022 

High Court on its Own Motion                                                                  Petitioner 

versus

The State of Maharashtra and Ors.                                                         Respondents 

Mr. Ashutosh M. Kulkarni, Amicus Curiae. 

Mr. P. P. Kakade, Government Pleader with Mr. M. M. Pable, AGP for State. 

CORAM: DIPANKAR DATTA, CJ. & MADHAV J. JAMDAR, J.

DATE: SEPTEMBER 15, 2022 

1. Mr. Kulkarni, learned amicus curiae has placed before us a decision of the Supreme Court in Jagpal Singh and Ors. vs. State of Punjab and Ors., reported in (2011) 11 SCC 396. Referring to paragraph 23 of the decision, Mr. Kulkarni submits that a report ought to be called for from the State Government in respect of compliance of the directions contained in such paragraph. Paragraph 23 of the decision reads as follows: -

"23. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/ unauthorised occupants of the Gram Sabha/Gram Panchayat/poramboke/shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/UnionTerritories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show-cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal possession. Regularisation should only be permitted in exceptional cases e. g. where lease has been granted under some government notification to landless labourers or members of the Scheduled Caste/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."

2. We need to be informed by the State of Maharashtra as regards compliance of the aforesaid directions. The Principal Secretary, Revenue and Forest Department is directed to file an affidavit within 2 (two) weeks from date disclosing therein compliance of the same, if any. The Principal Secretary shall also include in the affidavit relevant data upon identification of illegal/unauthorized constructions on 'gairan' lands.

3. List the PIL petition on 6th October 2022.

Date: 2022.09.16 

Madras HC: Regularising will encourage encroachments of water bodies. Ultimate result would be drought and floods [30.08.2022]

IN THE HIGH COURT OF MADRAS

W.P. Nos. 22408, 22435, 22418, 22420, 22427, 22432, 22415 of 2022, 

W.M.P. Nos. 21470, 21472, 21482, 21464, 21466, 21479 and 21475 of 2022

Decided On: 30.08.2022

Kamalanathan and Ors.                                                                                     Appellants

Vs.

The State of Tamil Nadu and Ors.                                                                 Respondents

Hon'ble Judges/Coram:

M.N. Bhandari, C.J. and N. Mala, J.

Counsels:

For Appellant/Petitioner/Plaintiff: V.M. Venkatramana

For Respondents/Defendant: A. Selvendran, Spl. Government Pleader

ORDER

M.N. Bhandari, C.J.

1. By these writ petitions, a challenge is made to the notices issued in Form-III under Rule 6(1) of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007 [for brevity, "the Rules of 2007"].

2. The challenge to the notices has been made mainly on the ground that without issuing notices in Form-II, notices in Form-III have been caused. In the absence of notices in Form-II showing the boundary of the tank, it cannot be said that the petitioners have encroached on the lands of water tank. The second respondent ought to have called for the petitioners' explanation before issuing a notice in Form-III.

3. Learned counsel for the petitioners submitted that notices in Form-III were given with a direction to remove the encroachments, leaving hardly any time for the petitioners to even approach the respondent authorities to seek survey of the land to get determination of the boundaries of the tank and, accordingly, writ petitions were filed even without raising objection to the notices in Form-III. The prayer is to set aside the notices looking to the peculiar facts and circumstances of the case.

4. Learned counsel further submitted that notice to remove the encroachment cannot be caused without complying the principles of natural justice and, in the instant case, the petitioners were not given opportunity to prove their rightful possession on the land in question. It is also submitted that the petitioners are not in possession of the land of Odai, thus, prayed for an interference in the notices in Form-III of the Rules of 2007.

5. Learned Government Pleader appearing for the respondents submitted that notices in Form-III were given in accordance with law. Coming to the facts, it is stated that notices in Form-III were given after publishing notices in Form-II. Further, the petitioners have failed to show their ownership on the land or right to possess it. The lands of tanks and waterbodies are required to be safeguarded and, therefore, notices were rightly issued to the petitioners.

6. Learned Government Pleader further submitted that the Rules of 2007 do not contemplate an opportunity of hearing, but before action is taken, the encroacher has to be put to notice with a request to remove the encroachment and the compliance aforesaid has been duly made. Thus, a prayer is made to dismiss the writ petitions.

7. We have considered the rival submissions and also perused the materials available on record.

8. Before addressing the issues raised by the parties, it would be gainful to refer to the object behind the enactment of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 [for short, "the Act of 2007"]. The Act of 2007 provides measures for checking the encroachment on the land of tanks and at the same time for eviction. It would not be out of place to mention that on account of rampant encroachment on waterbodies and tanks, the State of Tamil Nadu suffered drought and in contrast floods. This happened for the reason that whenever there was rain, water could not accumulate in the tanks on account of encroachments and in contrast, the condition of the flood was seen at times due to non-availability of area where water can store on account of the encroachments on the waterbodies or tanks. The need of the hour is to protect/safeguard waterbodies/tanks.

9. Before adverting to the merits of the case, it would be appropriate to refer to the relevant statutory provisions governing the issue. Section 7 of the Act of 2007 and Rule 6 of the Rules of 2007 read as under:

Section 7 of the Act of 2007:

"7. Eviction of encroachment.-(1) If the officer specified in sub-section (2) of Section 6 is of opinion that any person has encroached upon any land within the boundaries of the tank and that the encroacher should be evicted, the officer shall issue a notice in the manner as may be prescribed, calling upon the person concerned to remove the encroachment before a date specified in the notice.

(2) Where, within the period specified in the notice under sub-section (1), the encroacher has not removed the encroachment and has not vacated the land within the boundaries of the tank, the officer referred to in sub-section (2) of section 6 shall remove the encroachment and take possession of the land within the boundaries of the tank encroached upon, by taking such police assistance as may be necessary. Any police officer whose help is required for this purpose shall render necessary help to that officer.

(3) Any crop or other product raised on the land within the boundaries of the tank shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by the encroacher after a notice under subsection (1), be liable to forfeiture."

Rule 6 of the Rules of 2007:

"6. Eviction of Encroachment.-(1) If any person has encroached upon any land of the tank, the officer referred to in sub-rule (3) of Rule 4, shall prepare a notice in Form III and call upon the person concerned to remove the encroachment.

(2) Notwithstanding anything contained in sub-rule (1), such notice shall be served by delivering a copy either to the encroacher or to a member of his family at his usual place of abode, or to his authorised agent, or by affixing a copy thereof in some conspicuous part of his last known residence or in any part of the area encroached upon or in any of the offices of the Village Chavadi, Village Panchayat, District Collector, Revenue Divisional Officer, Tahsildar, Village Administrative Officer, Panchayat Unions and in the Section, Sub-Division and Divisions concerned of the Water Resources Organisation of the Public Works Department as the officer deems fit and proper.

(3) If the encroacher has not removed the encroachment within the period specified in the notice referred to in sub-rule (1), the officer shall inform the area Station House officer of Police Department, in writing to provide adequate Police personnel, as may be necessary and shall remove the encroachment or obstructions or any building or any crop or any product raised on the land or anything deposited and forfeit them and take possession of the land as specified in sub-sections (2) and (3) of Section 7 of the Act.

(4) The officer shall also impose the cost of eviction against such person, by preferring a complaint against such person with the competent Judicial Magistrate for recovery."

10. It is not that the compliance of the aforesaid provisions has not been made, because compliance of Form-I and Form-II was made earlier to the notice in Form-III. Learned Government Pleader stated that boundaries of the tanks have been demarcated after causing survey and published on the notice board of the Public Works Department and based on the aforesaid only, notice in Form-III was issued. In the light of the aforesaid, we cannot accept the argument of learned counsel for the petitioners that notices in Form-III have been issued in violation of the provisions of the Act of 2007 and the Rules of 2007.

11. The issue, however, remains is in reference to the judgment of this Court in the case of T.S. Senthil Kumar v. The Government of Tamil Nadu and others: (2010) 3 MLJ 771, where the provisions of the Act of 2007 and the Rules of 2007 were analysed. It was on the challenge to the constitutional validity of certain provisions. The challenge to the provisions was not accepted. It was held that for protection and improvement of environment, waterbodies, forests and wild life are to be safeguarded. It is after analysing the facts of that case and finding that safeguards are required to be taken to protect the tanks, the Division Bench referred to various judgments of the Apex Court, including the decision of a Division Bench of this court in L. Krishnan v. State of Tamil Nadu: AIR 2005 Mad 311, and observed in paragraph (8) as under:

"8. In L. Krishnan v. State of Tamil Nadu: A.I.R. 2005 Mad 311, the public interest litigation was filed for removal of encroachments on an odai poramboke and the First Bench of this Court made the following observations:

'5. Since time immemorial ponds, tanks and lakes have been used by the people of our Country, particularly in rural areas, for collecting rain water for use for various purposes. Such ponds, tanks and lakes have thus been an essential part of the people's natural resources. However in recent years these have been illegally encroached upon in many places by unscrupulous persons who have made their constructions thereon, or diverted them to other use. This has had an adverse effect on the lives of the people.

6. It is also relevant to state that day in and day out, many such petitions are being filed by way of 'public interest litigation' alleging encroachments into ponds/tanks/lake/odai porambokes etc. in different parts of this State, more particularly in villages. Having regard to the acute water scarcity prevailing in the State of Tamil Nadu as a whole, we feel that a time has come where the State has to take some definite measures to restore the already ear marked water storage tanks, ponds and lakes, as disclosed in the revenue records to its original status as part of its rain water harvesting scheme. We also take judicial notice of the action initiated by the State Government by implementing the water harvesting scheme as a time bound programme in order to ensure that the frequent acute water scarcity prevailing in this State is solved as a long time measure. In fact, the classification as Ooranis, Odais, and Lakes in the revenue records are all areas identified in the villages where the rain water gets stored enabling the local villagers to use the same for various purposes throughout the year inasmuch as most parts of the State are solely dependent on seasonal rains both for agricultural operations as well as for other water requirements. Therefore, it is imperative that such natural resources providing for water storage facilities are maintained by the State Government by taking all possible steps both by taking preventive measures as well as by removal of unlawful encroachments.

7. In this context, it will be appropriate to refer to the judgment of the Hon'ble Supreme Court reported in Hinch Lal Tiwari v. Kamala Devi and Ors: AIR 2001 SC 3215. Paragraphs 12 and 13 are relevant for our present purpose which read as under:

'12. On this finding, in our view, the High Court ought to have confirmed the order of the Commissioner. However, it proceeded to hold that considering the said report the area of 10 biswas could only be allotted and the remaining five biswas of land which have still the character of a pond, could not be allotted. In our view, it is difficult to sustain the impugned order of the High Court. There is concurrent finding that a pond exists and the area covered by it varies in the rainy season. In such a case no part of it could have been allotted to anybody for construction of house building or any allied purposes.

13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13 having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites.'

8. A reading of the above referred passages of the said Judgment shows that the endeavour of the State should be to protect the material resources like forests, tanks, ponds, hillock, mountain, etc., in order to maintain the ecological balance. The Hon'ble Supreme Court has highlighted that such maintenance of ecological balance would pave the away to provide healthy environment which would enable the people to enjoy a quality life which is essence of the right guaranteed under Article 21 of the Constitution. While on the one hand, the State is bound to maintain the natural resources with a view to keep the ecological balance intact and thereby provide a healthy environment to the public at large in the State of Tamil Nadu, having regard to the precarious water situation prevailing in the major part of the year, it is imperative that such noted water storage resources, such as tanks, odais, oornis, canals etc. are not obliterated by encroachers.

9. In this connection reference may be made to Article 48A of the Constitution which states:

'Protection and improvement of environment and safeguarding of forests and wild life: The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.'

10. No doubt the above provision is in the Directive Principles of State Policy, but it is now well settled that the fundamental rights and directive principles have to be read together, since it has been mentioned in Article 37 that the principles down in the Directive Principles are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws. The Directive Principles embody the aim and object of the State under a Republican Constitution, i.e., that it is a welfare State and not a mere police State, vide Kesavananda Bharati v. State of Kerala: (1973) 4 S.C.C. 225 (vide paragraphs-134, 139 and 1714) and embodies the ideal of socio-economic justice, vide Union of India v. Hindustan Development Corporation: A.I.R. 1994 S.C. 988 (990).

12. Apart from the above we may also refer to Article 51A(g) of the Constitution which makes it a fundamental duty of every citizen "to protect and improve the natural environment including forests, lakes, rivers and wild life". This duty can be enforced by the Court, vide Animal and Environment Legal Defence Fund v. Union of India: (1997) 3 S.C.C. 549 (supra, vide para-15).

13. In M.C. Mehta v. Union of India: (1997) 3 S.C.C. 715 (vide para-1) the Supreme Court observed:

'Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The "Precautionary Principle" makes it mandatory for the State Government to anticipate, prevent and attack the cause of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes.'

14. Therefore, we direct the respondents 1 to 5 to take necessary legal steps to remove the alleged encroachments made by the respondents 6 to 12 as well as the petitioner over Odai Poramboke in Iyan Punji Survey No. 100/1 at No. 247, Tatchur Village, Kallakurichi Taluk, Villupuram District measuring 5 acres and 70 cents. Inasmuch as this writ petition has come before us by way of a public interest litigation, we take this opportunity to direct the State Government to identify all such natural water resources in different parts of the State and wherever illegal encroachments are found, initiate appropriate steps in accordance with the relevant provisions of law for restoring such natural water storage resources which have been classified as such in the revenue records to its original position so that the suffering of the people of the State due to water shortage is ameliorated.

It is only after this judgment that the aforesaid Act came to be passed."

After considering the aforesaid decisions, the Division Bench in T.S. Senthil Kumar (supra), issued the following directions:

"20. In the result, we dispose of the writ petition in the same lines adopting the same method which the Supreme Court done in the two cases cited supra Mysore v. J.V. Bhat: 1975 (2) S.C.R. 407 and (ii) The Scheduled Caste & Weaker Section Welfare Association v. State of Karnataka: AIR 1991 SC 1117, where the Supreme Court dealt with the Mysore Slum (Improvement and Clearance) Act, 1958 and without declaring that the Act is unconstitutional since no opportunity is given, we will hold that there is nothing in the Act which excludes the principles of natural justice. The Act does not specifically indicate that the encroachers do not have a right to be heard and therefore we issue the following directions.

(a) The State shall scrupulously follow the provisions of the Act. It shall also ensure that all the District Collectors and other authorities, who are concerned with the observance of the provisions of the Act, strictly follow the letter, dated 10.10.2007.

(b) The District Collectors, while creating adequate awareness, may also enlist the help of Self Help Groups to disseminate the message that protection of water resources will actually promote the welfare of the villages and therefore it is in the interest of every citizen to make sure that he is not encroaching on a tank and to clear tanks and water bodies which are filled with garbage and to avoid dumping of garbage will automatically enhance and improve the public health of the community.

(c) As already stated, the State will ensure that alienation of tank poramboke lands, citing public interest, shall not be made under Section 12 of the Act. The meaning and weight of the words "public interest" shall be implicitly borne in mind.

(d) The State holds all the water bodies in public trust for the welfare of this generation and all the succeeding generations and, therefore, protecting water bodies must be given as much weightage, if not more as allowing house-sites or other buildings to come up on such tanks or tank poramboke lands, and water charged lands.

(e) The State shall also bear in mind the provisions of this Act and the objects and reasons of this Act while issuing patta to persons who claim to have resided in the same place for a number of years and if necessary modify the relevant Government Orders to make sure that the implementation of these G.Os. are not in violation of this very valuable and important Act, namely Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007.

(f) We uphold the Act, while we provide for observance of principles of natural justice within the Act itself, as under.

(i) When the officer of the Public Works Department publishes the notice in Form-II in the notice boards of the offices of Village Administrative Officer, Village Panchayat Office and the Water Resources Organization, notice shall also be issued to the alleged encroacher to the effect that the survey indicates that the place in his/her occupation is an encroachment and secondly, the notice in Form-III of the Rules may be issued.

(ii) On receipt of the said notice, the encroacher may give his/her objections relating to the classification of the land in his/her occupation and the nature of the encroachment within a period of two weeks.

(iii) Thereafter, the authorities shall consider the objections and pass appropriate orders, in accordance with the provisions of the Act, giving time to the encroachers to remove the encroachment."

[emphasis supplied]

12. In T.K. Shanmugam v. State of Tamil Nadu: (2015) 8 MLJ 1 (FB), the Larger Bench of this Court considered the judgment of the Division Bench of this court in the case of L. Krishnan (supra) and held that the said decision did not limit its direction to water bodies under the control of Public Works Department and it will also apply to all natural water resources in different parts of the State. It was further held that wherever encroachments are found, steps should be taken for removal of it in accordance with the relevant provisions of law. Paragraphs (26) and (27) of the judgment in the case of T.K. Shanmugam (supra) are relevant and are quoted hereunder:

"26. Thus, the Division Bench in L. Krishnan, did not limit its direction to water bodies under the control of the Public Works Department. In fact, it has issued directions for all natural water resources in the different parts of the State of Tamil Nadu and wherever illegal encroachments are found to take steps for removal of the encroachments in accordance with the relevant provisions of law. The State Government thought fit to enact the Tank Act and though the object of the enactment was couched on a border principle, the Act was restricted to the encroachments in tanks which are under the control and management of the Public Works Department. The question would be as to whether this would in any manner alter the position or could have an effect of diluting the directions/observations of the Division Bench in L. Krishnan's case. The answer to this question shall be an emphatic "NO".

27. Section 11 of the Tank Act, specifically states that the operation of other laws not to be affected, as the provisions of the Tank Act shall be in addition to and not in derogation of any other law for time being in force. Thus, the encroachments in respect of water bodies which are not covered under the provisions of the Tank Act have to be necessarily removed by resorting to the procedure under the Land Encroachment Act. We are not inclined to ignore the directions issued by the Division Bench in L. Krishnan's case, as general observations, as observed in Sivakasi Region Tax Payers Association's case. We may hasten to add that in L. Krishnan's, the Division Bench issued positive direction to the State Government and this cannot be brushed aside as general observations and more so in the light of the observations in the case of Jagpal Singh, wherein pointed directions were issued by the Hon'ble Supreme Court to all the Chief Secretaries. In Sivakasi Region Tax Payers Association's case though the Division Bench upheld the G.O. Ms. No. 854, it held that the said G.O., must read along with the provisions of the Land Encroachment Act, Tank Act and Standing Orders of Board of Revenue. If that be the interpretation, the question would be whether the State Government would be empowered to issue Government Orders for regularising encroachments in water bodies on the ground that the water body has lost its character and it is no longer a water body on account of disuse. We may answer this query by referring to the observations of the Hon'ble Supreme Court in the case of Jagpal Singh:-

"19. In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, which served them for thousands of years.

20. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials, and even this money collected from these so called auctions are not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop."

13. The notice in Form-III issued under Rule 6(1) of the Rules of 2007 contemplates that before the actual removal of the encroachment, the encroacher should be put to notice with reasonable time of 21 days to remove the encroachment.

14. In view of the judgment in the case of T.S. Senthil Kumar (supra), principles of natural justice has to be followed and for that a party receiving notice in Form-III is given liberty to raise his objection relating to classification of the land or nature of encroachment within two weeks.

15. The petitioners have approached this court without raising an objection or giving representation against the notices in Form-III. It is as per the judgment of the Division Bench of this court in the case of T.S. Senthil Kumar (supra) for observance of principles of natural justice. In case of submission of objection within two weeks of the notice, the authorities were directed to consider it and pass an order. The petitioners failed to raise objection on receipt of the notice. In any case, to afford an opportunity of hearing before encroachment is removed, the petitioners were allowed to raise their objections before this Court to touch upon the issue as to whether the petitioners can establish their right in the land in question.

16. We have called upon learned counsel for the petitioners to refer the documents which may establish the right of the petitioners in the land in question so as to send the matter back to the authority concerned to pass an order on the objections, if any raised before this Court. It is for giving the opportunity of hearing to those having right in the land and not for one who has no legal right to defend. The post-decisional hearing is not required in such a matter where a party fails to establish his/her right even after an opportunity given by the Court.

17. Learned counsel for the petitioners could not refer any document to prove right of the petitioners in the land in question. On the other hand, photographs have been shown by the petitioners to show that even the Public Works Department had constructed a road on the land of Odai and the land occupied by the petitioners are close to it. We cannot endorse the action of the Public Works Department, if they have constructed a road on the land of Odai, rather, in that case, even it needs to be removed. We otherwise cannot accept the argument aforesaid and if the said plea is accepted, then the encroachment overall in the State of Tamil Nadu on waterbodies and tanks cannot be removed though the encroachment on waterbodies and tanks is not permissible as per the provisions of the Act and the Rules and also the judgment of the Apex Court and even the judgment of the Larger Bench in the case of T.K. Shanmugam (supra). It does not permit or give authority to the Government to even issue patta in the land of waterbodies and tanks.

18. When the petitioners failed to establish their right over the land in question and in the absence of an objection to the notice under challenge before approaching this Court, the allegation of non-compliance of Form-II remains for the sake of it. In this regard, it is appropriate to refer to the following paragraph of the judgment in the case of Escorts Farms Limited v. Commissioner: (2004) 4 SCC 281, wherein it is held as under:

"64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India."

[emphasis supplied]

19. In the light of the judgment referred above, we are of the opinion that there would be no purpose in sending the matter back for hearing on the objections, when it was not even raised on receipt of the notice in Form-III to extend the benefit of the judgment in the case of T.S. Senthil Kumar (supra). The right to raise objection on receipt of the notice was given by this Court so that if right can be established in the land in question, the notice issued in Form-III may not be given effect. Admittedly, the petitioners have failed to show any right on the land in question.

20. In the instant case, the action for removal was taken only pursuant to the order passed in W.P. No. 1372 of 2020 [D. Dayaanand v. The Secretary to Government and others], decided on 05.03.2020. Therein, the Co-ordinate Bench issued direction to the respondent authorities to remove the encroachments from the waterbodies and tanks and further to curtail the mushroom growth of the encroachments.

21. Taking the overall facts into consideration and the fact that an opportunity of hearing has been given by this Court, the petitioners have failed to prove their right on the land. It cannot be on the ground that even the Public Works Department has constructed a road on the Odai and their possession is beyond the road. It does not establish a right to occupy the land without title. The petitioners have even failed to raise objection within two weeks of the notices as mandated by this Court in the case of T.S. Senthil Kumar (supra) and the judgment of the Larger Bench in the case of T.K. Shanmugam (supra). The petitioners failed to show any right in the land in question and even failed to submit objection to the notices in Form-III prior to approaching this Court. In our considered opinion, sending the matter back to give an opportunity of post-decisional hearing would be nothing but a futile exercise, especially when the matter pertains to encroachment on land of water tank and issue of boundary cannot be raised in a writ jurisdiction being a question of fact and otherwise without a right to occupy the land.

22. The water bodies play a significant role in maintaining the ecology and environment, besides being a source of drinking water. Usage of land earmarked as waterbody for any other purpose would be detrimental to the society at large, as the State at times suffers drought and in contrast floods because water cannot accumulate on account of encroachments on the waterbodies/water tanks.

23. The Apex Court in the case of Jagpal Singh v. State of Punjab: (2011) 11 SCC 396 held as under:

"19. In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in, etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rainwater harvesting methods, which served them for thousands of years.

20. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials, and even this money collected from these so-called auctions is not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop."

[emphasis supplied]

The Apex Court has appreciated the ancestors who could foresee the value of water which is essentially required by everyone on the earth. The Apex Court in the case of Jagpal Singh (supra) had further observed that encroachments made by few greedy people on ponds contributed to water shortage in the country. Therefore, we need to give sanctity to the subject.

24. Time and again, this court, held that unchecked encroachment of waterbodies has vastly reduced the area which was reserved in the interest of public and ecological balance. It is the bounden-duty of the officials of the Revenue Department and the Public Works Department to preserve and protect government lands which have been reserved for specific purposes. Indisputably, such encroachments could not have taken place without the knowledge of the authorities.

25. Before parting with this case, it is necessary to observe that if rampant encroachment of waterbodies and tanks is regularised, it would lead to encouraging encroachments and the ultimate result would be facing drought and in contrast floods.

26. If we take care of the nature, nature will take care of us. The problem of global warming is prevalent only because of the failure of the human being to take care of the nature. It is the bounden duty of every citizen to maintain water-bodies, tanks, grazing land and even forests. If we keep on affecting the nature, it would affect the human beings and it is happening day-in and day-out in the form of natural disasters like Tsunami, Earthquake, etc.

27. In such view of the matter, we are unable to accept the prayer made by the petitioners to direct the Government to issue patta in respect of waterbodies/tanks. Rather, for that, the petitioners were given an opportunity to refer the provision of law, but they failed to do so.

28. Finding that learned counsel for the petitioners could not refer to any right of the petitioners in the land in question and otherwise an opportunity of hearing has been given by this court, instead of sending the matter for post-decisional hearing, we hold that the petitioners have not made out a case warranting interference in the notices in Form-III impugned herein.

29. Accordingly, the writ petitions fail and they are dismissed. There will be no order as to costs. Consequently, all connected miscellaneous petitions are closed.

Andhra Pradesh HC: Gramakantam lands are not communal lands [05.05.2022]

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

W.P. No. 1402 of 2022

Decided On: 05.05.2022

Appellants:                                                                 Bhavani Mahila Trust (BMT)

Vs.

Respondent:                                                  The State of Andhra Pradesh and Ors.

Hon'ble Judges/Coram: R. Raghunandan Rao, J.

Counsels:

For Appellant/Petitioner/Plaintiff: T.V. Sridevi

For Respondents/Defendant: Government Pleader and Koti Reddy Idamakanti, SC

ORDER

R. Raghunandan Rao, J.

1. The case of the petitioner is:-

a) Smt. Late Nagandla Sambrajyam established Bhavani Mahila Mandali, in Peda kakani Mandal, Guntur District for upliftment of woman and girl child in 1967.

b) The father of Smt. Late Nagandla Sambrajyam was the owner of various extents of land in the village including Ac. 0.54 cents in Sy. No. 560 of the village.

c) He had settled this land along with other extents of land in favour of his son late Sri Nagandla Surya Narayana by way of a registered deed of settlement dated 17.02.1945.

d) Upon demise of Sri Nagandla Surya Narayana, the said property, which included a tiled house in Ac. 0.06 cents in Sy. No. 560, devolved upon his daughter Smt. Late Nagandla Sambrajyam. This tiled house was dedicated to the Bhavani Mahila Mandali right from its inception 1967.

e) After her demise, the deponent of the affidavit filed in support of the writ petition (hereinafter referred to as the Deponent) took charge and continued to run the said Bhavani Mahila Mandali. A deed of trust was also executed and registered before the Sub-Registrar, Pedakakani on 21.07.2014 showing that the office of the Trust was at D. No. 1-111, Pathuru situated in an extent of Ac. 0.06 cents in Sy. No. 560.

f) The said tiled house is said to have been used for carrying out various activities for the development of women and girls in the area and photographs showing such activities have also been filed along with the writ petition.

g) On 12.01.2022, the 5th respondent pasted a notice dated 06.01.2022 in Rc. No. 3/2022, issued under sections 58, 98 (10, 103 (60 read with G.O.Ms. No. 188, dated 21.07.2011, stating that the Bhavani Mahila Mandali is being run in Sy. No. 557 of Pedakakani village and since the said land was proposed to be used for construction of a library, the Bhavani Mahila Mandali was required to vacate the building within three days, failing which the land would be taken over.

h) The petitioner Trust, upon coming to know of this notice informed the 5th respondent that the Bhavani Mahila Mandali was running in a private property and not in the Government land and requested the 5th respondent not to interfere with the possession of the petitioner-Trust.

i) On 17.01.2022, the 5th respondent sought to demolish the building by using a JCB. At this stage, the petitioner has approached this Court by way of the present writ petition.

2. By the time the matter came up before the Court on 21.01.2022, the tiled house was demolished and the material and assets of the petitioner, including computers etc., were taken away by the 5th Respondent. This Court on 21.01.2022, directed the 2nd respondent to survey the entire land in Sy. No. 560 and 557 of Pedakakani village and Mandal and submit a report to this Court by the next date of hearing as to whether the house bearing D. No. 1-111 in Sy. No. 560 of Pedakakani Village had been demolished by the 5th respondent or not. The report, filed by the 2nd respondent, will be considered in the course of this judgment.

3. After the demolition of the building, the Petitioner amended its prayer and sought a declaration that the action of the 5th respondent in demolishing the tiled house of the petitioner, as arbitrary and violative of Article 14, 21 and 300A of the Constitution of India and for a consequential direction to the respondents either to restore possession of the property to the petitioner by constructing or by directing the respondent to pay compensation by initiating land acquisition proceedings under the Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013.

4. The 5th respondent-Gram Panchayat filed a counter, stating thus:

A) A request arose from the villagers for setting up a library in the place of the tiled house in Sy. no. 557. On this request a gram sabha meeting was held on 07.10.2021, where a resolution was for construction of a library in the government site. Pursuant to this resolution, the Gram Panchayat also passed a resolution on 10.12.2021, to construct the library by removing the existing tiled house and other encroachments. A notice was issued on 06.01.2022 to the Deponent to vacate the tiled house. As an endorsement of receipt was not being given, the notice was pasted on the tiled house itself. As there was no response, another notice dated 10.01.2022, was served, giving further time. After the expiry of the time given in the notice, the tiled house was removed.

B) The tiled house is situated in Sy. No. 557 of the village and not in Survey No. 560 as claimed by the petitioner. A sale deed was executed by the mother of the deponent of the writ affidavit in the year 1999. The schedule in this sale deed shows the Mahila Mandali as the western boundary of the property sold in Sy. No. 560/2. This shows that the tiled house was situated in Sy. No. 557 and not Sy. No. 560.

C) The survey conducted by the 2nd respondent, District Collector shows that the tiled house is situated in Sy. No. 557 and the house bearing no. 1-111 is situated in Survey No. 172.

5. During the pendency of the writ petition an I.A. No. 2 of 2022 was filed stating that the correct address of the demolished building was D. No. 5-128, Sivalayam Road, Pedakakani, Guntur District and the petitioner be permitted to make the necessary amendment in the affidavit and petition. It was the contention of the Petitioner that her mother was initially running the Mahila Mandali in House No. 5-94 and constructed a tiled house on the western side of House No. 5-94 and the same was given the number 5-128. The deponent owns and lives in house No. 1-111, which is the office of the petitioner, and the address of the tiled house was shown by mistake as 1-111 instead of 5-128. This application was allowed.

6. The 2nd respondent had filed a report stating that:

A) The subject land admeasuring an extent of Ac. 0.06 cents is situated in South East corner of Sy. No. 557 of Pedakakani village and not in Sy. No. 560. So far as house bearing D. No. 1-111 is concerned the said house is about one kilometre away from the subject land. The house claimed by the petitioner situated in Sy. No. 557 was demolished.

B) Apart from the meetings mentioned in the counter affidavit of the 5th respondent, a further Gram sabha was conducted on 06.01.2022 resolving to take over the government land Sy. No. 557 and to construct a library.

C) The land where the demolished tiled house was situated in survey no. 557 was classified as Grama Kantam in the re-Settlement register. As per PRIS survey conducted in the year 2018 the subject land was noted as Government land.

D) Notices dated 06.01.2022 and 10.1.2022 were sought to be served on the petitioner but were refused and the tiled house was removed on 17.01.2022 in the presence of Police and Revenue authorities.

E) The extension Officer, Panchayat Raj, on the basis of the resolutions, had instructed the panchayat secretary to take necessary action to remove the tiled house as per the provisions of the Panchayat Raj Act and G.O.Ms. No. 188.

F) The tiled house was having Door No. 19-15 and not 1-111.

G) The notices issued on 06.01.2022 and 10.1.2022 did not call for any explanation and simply called upon the petitioner to vacate the tiled house.

H) G.O.Ms. No. 188 requires a notice to be given for giving objections and eviction can be taken up only after a hearing is given. In the present case notices were served but no hearing was given and Disciplinary action was initiated against the Panchayat secretary and the Extension officer for not following the procedure.

7. Heard Smt. T.V. Sridevi, learned counsel for the petitioner, Sri Koti Reddy Idamakanti, learned Standing Counsel appearing for the 5th respondent and the learned Government Pleader for Revenue for the 2nd respondent.

8. The facts which can be culled out from the rival submissions made by all the parties in the writ petition are as follows:

a) There was a tiled house in Sy. No. 557, which was in the possession of the petitioners. It was the contention of the petitioners that this tiled house was in the possession of the petitioner and was being used by the petitioner from 1960s. None of the respondents have disputed this fact in their counter affidavits. It is therefore, held that the tiled house was in the possession of the petitioner and used by the petitioner since 1960s.

b) The disputed Ac. 0.06 cents of land was classified as Gramakantam land in the resettlement register. The subsequent PRIS survey conducted in the year 2018, classifying this land as Government land cannot be taken into account unless and until the entries in the resettlement register are changed. Accordingly the disputed land shall be treated as Gramakantam land.

c) Resolutions had been passed in the Gramasabha and Gram Panchayat to take over the disputed Ac. 0.06 cents of land and use the said land for constructing a library.

d) On the basis of these resolutions, the Extension Officer, Panchayat Raj, directed the Panchayat Secretary to take steps to remove the tiled house as per the provisions of the Panchayat Raj Act and G.O.Ms. No. 188.

e) On the basis of these instructions, the Panchayat Secretary issued notices dated 06.01.2022 and 10.01.2022 which was pasted on the tiled house and the said tiled house was demolished on 17.01.2022 after taking away all the material in the tiled house, belonging to the petitioner.

f) The notice dated 06.01.2022 and 10.01.2022 only called upon the petitioner to vacate the tiled house and did not call upon the petitioner to show cause why the petitioner should not be evicted from the said house.

g) This notice did not meet the basic requirements of G.O.Ms. No. 188.

9. It is the contention of the 5th respondent that notices were issued under Section 58, 98 and 103 of the Panchayat Raj Act, 1994 read with G.O.Ms. No. 188. Section 58 vests certain properties including grazing grounds, threshing floors, burning and burial grounds, cattle stands, cart stands and topes, which are at the disposal of the Government and are not required by them for any specific purpose in the Gram Panchayat. The language of Section 58, which uses the word "namely" would mean that this is an exhaustive list. Section 98 authorises the Executive Authority to remove any projection, encroachment or obstruction over any public road vested in the Gram Panchayat, after notice being given to the owner of the building.

10. Section 103 provides for recovery of penalty and compensation for unauthorised occupation of any land which is set apart for a public purpose and vests or belongs to the Gram Panchayat. It is clear that Section 98 does not apply to the present case as there is no complaint of any encroachment of a public road.

11. Section 58 vests certain properties in the Gram Panchayat. The question whether Section 58 would vest all Gramakantam lands in the Gram Panchayat is considered in the course of this judgment. Section 103 provides for levy of penalty in case of unauthorised occupation of such properties. This would raise the question as to whether the land in question vests in the Gram Panchayat.

12. The Government issued G.O.Ms. No. 188 dated 21.07.2011, in pursuance of the judgment of the Hon'ble Supreme Court in the case of Jagpal Singh and Ors., vs. State of Punjab in Civil Appeal. No. 1132 of 2011 dated 28.01.2011. The said G.O. classified the lands belonging to Gram Panchayats into three categories. We are presently concerned with Category-C in Rule 2, which states as follows:

Category-C: Vested With Gram Panchayats.

All public water works, All public water courses, Springs, Reservoirs, Tanks, cisterns, Fountains, Wells, Stand Pipes and other water works (as per section 80 of Andhra Pradesh, Panchayat Raj Act) Minor Irrigation Tanks, Tank bunds and all water bodies and vested porambokes (Grazing Lands threshing floors, Burning and Burial grounds, cattle stands, cart stands, topes. (These are essentially the same categories of land set out in Section 58(1) of the Panchayat Raj Act, which shall also be considered)

13. The procedure, to be followed for protection of the Gram Panchayat properties, is given in Rules 3 and 4. Rule 3 requires the Panchayat Secretary of every Gram Panchayat to prepare an inventory of the landed properties of the Gram Panchayat based on Field Measurement Book and Field Survey Atlas, apart from the field survey inspections. The said inventory is to be placed before a Gramasabha, which shall approve the land inventory bills by passing a resolution. Subsequently, a Gram Panchayat would also convene a meeting and approve the land inventory bills by way of a resolution. The said approved land inventory bills would be published in the District Gazette.

14. Rule 4 stipulates that where it is found that any property of the Panchayat is under the occupation of any other person, a notice would be served on the party concerned and the said party would be given a hearing before a proceeding for eviction. Obviously, such a hearing would include a hearing on the claims of that person over the property. After hearing the person, suitable orders would be passed by the Panchayat Secretary and eviction is to take place only after such orders are passed. It is also settled law that passing of orders would include service of such orders on the evicted party. This would mean that a person cannot be evicted without such an order being served on the said person.

15. In the present case, there is no mention of any inventory having been prepared nor approved by either the Gramasabha or the Gram Panchayat under Rule 3. Keeping aside this issue, it can also be seen that the minimum requirement of Rule 4, namely, giving an opportunity of hearing to the petitioner and passing an order on the said objections filed by the petitioner before any eviction takes place, has been given a complete go by. In fact, the notices said to have been served on the petitioner only called upon the petitioner to vacate the premises and did not give the opportunity of hearing to the petitioner. This fact has also been noticed by the District Panchayat Officer in his report to the District Collector and disciplinary action is said to have been initiated against the Panchayat Secretary and the Extension Authority. On account of these deficiencies, the demolition of the tiled house of the petitioner was in clear violation of all the safeguards given in the Act and the Rules.

16. Apart from the question of procedural irregularities, there remains the question whether such an eviction could have been carried out at all. The disputed land has been classified as Gramakantam land. The Respondent Gram Panchayat claims that the Gramkantam land vests in the Gram panchayat, by virtue of Section 58(1) of the Act and it would be entitled to recover the said land from unauthorized private occupation. Section 58(1) of the Panchayat Raj Act, 1994, reads as follows:

"58. Certain Government porambokes to vest in Gram Panchayat etc.:- (1) The following porambokes namely, grazing grounds, threshing floors, burning and burial grounds, cattle stands, cart stands 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"

17. In Banne Gandhi and Ors., vs. District Collector, Ranga Reddy District and Ors., 2007 (4) ALT 550 it was held that since Section 58(1) does not enumerate Gramkantam land, as vesting in the Gram Panchayat, it cannot be held that Gramkantam land vests in the gram panchayat.

18. In Sigadapu Vijaya vs. State Of Andhra Pradesh, 2015 (4) ALT 296 the petitioners had approached the court with the complaint that the registration authorities were refusing to register transactions relating to Gramkantam lands on the ground that Gramkantam lands are government lands. It was held, after an extensive review of the judgments pronounced on this subject that, "occupied Gramkantam by its nature or classification does not belong to the government to include the Gramkantam in the prohibitory list". It must also be recorded that the judgments cited in this case had also considered the question whether Gramkantam lands would be communal lands and the consensus in all these judgments was that Gramakantam lands are not communal lands kept aside for communal use, such as threshing floors or burial grounds. On the contrary they held that Gramanatham or Gramkantam lands are lands kept aside for construction of houses and any such land in the occupation of an individual would entitle him to protect such possession by way of legal proceedings also.

19. In Bayya Mahadeva Satry vs. State of Andhra Pradesh 2020 (4) ALT 250 a learned single judge of this Court, following the aforesaid judgments and other judgments mentioned therein, had held:

"Thus from the above jurisprudence on the subject in issue, it can be delineated that the Gramkantam land whereon the houses are constructed or intended to be constructed does not vest with either the Government or the Gram Panchayat. In that view, even if the argument of the respondents is accepted that the subject land is a Gramakantam and occupied by the petitioners, that fact will not ensure to the benefit of the respondents to confer any title on them. Thus, either way the respondents cannot meddle with the possession and enjoyment of the petitioners in respect of the subject land and their construction of compound wall"

20. In the present case, it is the admitted case of all sides that the petitioner has been in long standing possession of the tiled house since the 1960s. Viewed either from the standpoint of Section 58(1) of the A.P. Panchayat Raj Act, 1994 or from the standpoint of decided cases, occupied Gramkantam land is not the property of the Gram Panchayat to invoke the provisions of either section 98 or 103 of the A.P. Panchayat Raj Act, 1994 or the mechanism under G.O.Ms. No. 188, dated 21.07.2011.

21. Accordingly, the demolition of the tiled house in the possession of the petitioner is clearly beyond the authority of the 5th respondent. As the demolition of the tiled house of the petitioner is in violation of both procedural and substantive law, it must be held that the entire action is illegal, arbitrary and violative of the rights of the petitioner including the rights guaranteed in Article 14 & 300-A of the Constitution of India.

22. The complaint of the petitioner is that there was an illegal demolition of the tiled house and the 5th respondent had illegally taken away the computers and other equipment and material of the petitioners situated in the tiled house. The 5th respondent did not deny the contention of the petitioner that the computers and other material of the petitioner have been taken away by the 5th respondent. There remains the question of compensation to the petitioner. The petitioner is entitled to be put back in the same position as it was before the illegal demolition of its property.

23. The tiled house in the occupation of the petitioner has been demolished illegally and once this Court has given a finding that the demolition was illegal, both procedurally and substantively, the petitioner would be entitled to be restored back to the same position as was obtaining prior to the demolition. This would mean that the tiled house of the petitioner has to be reconstructed and the equipment and material of the petitioner which has been removed from the said tiled house would have to be returned to the petitioner. In the event of any damage to the said material, the petitioner would be entitled to be compensated for the loss caused due to such demolition.

24. For all the aforesaid reasons, the writ petition is disposed of with the following directions:

1. As a measure of restitution, the 5th respondent shall bear the entire cost of reconstruction of tiled house by the petitioner. This construction shall be for the purpose of reconstructing the tiled house with the same dimensions as was obtaining earlier.

2. For the purpose of such construction, the 5th respondent shall pay a provisional amount of Rs. 2,00,000/- to the petitioner within a period of three weeks from the date of receipt of a copy of this order.

3. The petitioner shall be permitted to reconstruct the tiled house without having to obtain any building permission or any approval from the 5th respondent or any other authority.

4. The petitioner, after reconstruction of the said tiled house, is entitled to recover from the 5th respondent such additional amounts that the petitioner may have spent over and above the provisional amount of Rs. 2,00,000/-.

5. There shall also be a direction to the 5th respondent to return all the material taken away by the 5th respondent from the tiled house, which was in the possession of the petitioner, forthwith.

6. In the event of any shortfall in the material that had been taken away or in the event of any damage to the said computers, the petitioner is entitled to recover compensation on account of such damage or shortfall.

7. For the purpose of such recovery of money both on account of restoration of the house, if any, and on account of damage caused to the property of the petitioner, it shall be open to the petitioner to initiate a civil action for recovery of such damages and compensation. There shall be no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall stand, closed.