Kusume Subba Raju vs The State Of Andhra Pradesh
2021 Latest Caselaw 896 AP

        HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                      W.P.No.23904 of 2018
ORDER :

This writ petition is filed by a group of petitioners for a

Mandamus declaring the action of the respondents in interfering

with their possession of the lands situated in Sy.Nos.217/5,6,7

and 224. The petitioners claim to be the owners of land in these

four survey numbers which they acquired through registered

sale deeds. According to the petitioners, the lands in

Sy.Nos.217/5,6,7 is shown as "Nivasa Gruhalu/residential

houses" and there is no serious dispute about the same. The

land in Sy.No.224 of Kontheru Village, Elamanchili Mandal,

West Godavari District is shown as Grama Kantam. It is argued

that the land is classified as Grama Kantam and as the

petitioners have legal title to the same, they cannot be forcefully

evicted nor can their possession be interfered.

Learned counsel for the petitioners Sri P.Roy Reddy argued

that the petitioners have clear title through registered sale deeds

in their favour. He points out that the existence of the sale

deeds etc., is not disputed by the respondents. According to

him, from a reading of the counter affidavit, the only issue

raised is about the land in Sy.No.224 which is classified as

Grama Kantam land. Learned counsel for the petitioners points

out that it is admitted in the counter affidavit that the lands in

Sy.Nos.217/5, 6 and 7 are private lands. Therefore, he points

out that the only issue raised is about the Grama Kantam land

in Sy.No.224. Learned counsel argued the matter at length,

submitted a brief written note and also filed a compilation of

case laws to support his argument that the respondents do not

have any rights in the Grama Kantam land and that it does not

vest in the Panchayat at all. He relies upon a number of cases

from the State and also from the State of Tamilnadu. He points

out that the Grama Kantam has been defined as the name given

to certain lands in which houses, huts and structures can be

erected. In the State of Andhra Pradesh such lands are

classified as Grama Kantam and in the State of Tamilnadu,

these lands are classified as Grama Natham. Learned counsel

drew the attention of this Court to the definition of Grama

Kantam, Grama Natham etc., to support his arguments. He

relied upon the judgments of the Madras high Court reported in

Palani Ammal V. L.Sethurama Aiyangar1, S.Rangaraja

Iyengar v. Achi Kannu Ammal2 and The Executive Officer,

Kadathur Town Panchayat v. Swaminathan3 and other

judgments to support his contention. He also relies upon the

judgments from Andhra Pradesh including The State of A.P. v.

Rayi Rangaiah4, Nagarala Nirvasitula Welfare Association

v. Government of A.P.5, Voona Bangaraju v. Government of

Andhra Pradesh6 etc., to support his argument that Grama

Kantam land is a land which does not automatically vest with

the Government or the Panchayat and that transfer of the lands

1949 (1) MLJ 290

1959 (2) MLJ 513

2004 (2) MLJ 708

(1972) APLJ 386

2012 SCC Online A.P. 114

2014 (4) ALT 238

is permissible. He also draws the attention of this Court to

G.O.Ms.No.187 dated 27.05.2015, in which Grama Kantam

lands are taken out of the purview of section 22-A of the

Registration Act, 1908 which deals with the prohibited list of

properties. He points out that the G.O. was issued after the

judgment reported in Nagarala Nirvasitula Welfare

Association (supra). Therefore, learned counsel argues that

this is a fit case in which a writ of Mandamus can be issued as

prayed for.

In reply to this, learned Government Pleader Sri I.Koti

Reddy argues that land in Sy.No.224 is a land which is classified

as Grama Kantam land. It vests in the Kontheru Grama

Panchayat. He points out that this was wantonly/deliberately

included in the sale deeds by the petitioners to grab the land.

He also argues on the basis of G.O.Ms.No.187 that the Grama

Kantam land vests with the Grama Panchayat and that the

Grama Panchayat has a right to allot the land to others for bona

fide needs as per the Board Standing Order 21. The contention

of the learned counsel, therefore, is that this land cannot be

included in a sale deed as the vendor of the petitioners did not

have title to the property himself.

Learned Government Pleader of Panchayat argues on

similar lines and supports the case of Panchayat.

After hearing both the learned counsel, this Court notices

that the issue about the Grama Kantam lands is no longer res

integra. There is enough case law on the subject to show that

Grama Kantam land do not automatically vest in the Panchayat.

Similarly, it will not automatically vest in the Government either.

The judgments reported in Rayi Rangaiah (supra) and the

decision in Nagarala Nirvasitula Welfare Association (supra)

are themselves enough for consideration at this stage. Both

these judgments have noticed section 2 of the Land

Encroachment Act. Section 2 of the Land Encroachment Act,

clearly states that all public roads, streets etc., shall vest with

the Government, but there is a clear exception in respect of

lands belonging to temple sites or owned as house site or

backyards. This exclusion was clearly considered in this

judgment. In Nagarala Nirvasitula Welfare Association

(supra), the learned single Judge held that the definition under

section 2 of the Land Encroachment Act is a comprehensive

definition that is both inclusive and exclusive. As far as the

exclusion is concerned, he clearly noticed that house sites and

their backyards are excluded from the properties which vest in

the Government. Similarly, the learned single Judge also

notices that under the Estates Act and the Madras State Act

also the Grama Kantam land does not vest in the Grama

Panchayat. Similarly, in other judgments also the definition of

Grama Kantam in the State of Andhra Pradesh and Grama

Natham in the State of Tamilnadu were considered. In a

judgment reported in Smt. Sagadapu Vijaya v. the State of

Andhra Pradesh7, the Board Standing Orders 21 part 4 is also

(2015) 4 ALD 88

considered in arriving at a conclusion that occupied Grama

Kantam land does not belong to the Government. A direction

was given to the Registrar to register the sale deed. Board

Standing Order 21(4) states that upto an extent of 35 cents of

land tax cannot be levied or assessed. The G.O. that is referred

to by the Panchayat namely G.O.Ms.No.187 also refers to the

order passed in Nagarala Nirvasitula Welfare Association

(supra). In this G.O., it is stated that the Grama Kantam lands

vest in the Grama Panchayat and therefore, there is a need to

withdraw the same from section 22-A of the Registration Act,

which deals with prohibition of registrations. A reading of this

G.O. therefore leads to the conclusion that State Government

was of the opinion that the registration of the land in Grama

Kantam cannot be prohibited. Therefore, this leads to a further

conclusion that registrar cannot stop the registration of any land

merely because it is classified as Grama Kantam. It is for the

Grama Panchayat to establish a right over the lands and to

defend its properties. In fact, G.O.Ms.No.187 also makes it clear

in para 6 that it shall be the responsibility of the Grama

Panchayat to protect its interest.

Learned counsel for the petitioners also raised an

important issue that even if this G.O.Ms.No.187 is considered

supporting the respondents case, it cannot be treated as law to

deprive the petitioners of their rights. According to the learned

counsel, executive instructions issued under Article 162 of the

Constitution of India are not a law within the meaning of Article

300-A of the Constitution of India. He argues that the G.O.

which is relied upon by the learned counsel for the respondent

is not a law and it cannot override or prevail over a

constitutional provision, more so Article 300-A of the

Constitution of India.

Case laws are also cited in this proposition which in the

opinion of this Court is also very well settled. The G.O. in

question in the opinion of this Court is not law and even

otherwise it cannot over ride express provisions of a Statute or of

the Constitution of India.

For all these reasons, this Court is of the opinion that the

petitioner has made out a case for grant of a Mandamus as

prayed for. In view of the settled law on the subject including

the case law so painstakingly referred to by the learned counsel

for petitioner, the writ has to be allowed.

Accordingly, the writ petition is allowed and there shall be

a direction from restraining the respondents in interfering with

the petitioners' possession and enjoyment of land as covered by

the writ petition.

The writ petition is accordingly allowed. No order as to

costs. As a sequel, the miscellaneous petitions if any shall

stand dismissed.

________________________ D.V.S.S.SOMAYAJULU,J

Date : 17.02.2021 KLP