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.