Smt.T.Lakshmi Theresamma vs The Greater Visakhapatnam ...
2021 Latest Caselaw 4596 AP

  THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

               WRIT PETITION NO.12757 OF 2018
ORDER:

This writ petition is filed under Article 226 of the

Constitution of India, claiming the following relief:

"To issue writ of Mandamus declaring the action of the 4th respondent in passing the impugned proceedings dated 09.02.2018 in so far as directing the 3rd respondent to take advance possession of petitioner land to an extent of Ac.4- 59 cents in Sy.No.371/P of Kapuluppada Village, Bheemunipatnam Mandal, Visakhapatnam District as illegal arbitrary and violative of Articles 14, 16, 21 and 300- A of Constitution of India and consequently set-aside the same and direct the respondents not to interfere with the peaceful possession and enjoyment of the petitioner over the said land."

The brief facts of the case are that, Respondent Nos. 1 & 2

are jointly involved in a flagship scheme of the Government called

„Affordable Housing Scheme‟. The second respondent is the

Executive Agency of the Scheme and the fourth respondent being

the custodian of the government land, allotted certain land for the

said scheme. Vide proceedings dated 09.02.2018, the fourth

respondent directed the third respondent to take advance

possession of the land, in which the petitioner‟s land of an extent

of Ac.4-59 cents in Sl.No.6 in Sy.No.371/1 of Kapuluppada Village,

Bheemunipatnam Mandal, Visakhaptnam, is also included.

The petitioner‟s husband - Sri T. Nandayya served in the

Armed Forces between the years 1944 to 1961, participated in

World War-II and discharged from service on 06.10.1961. On his

application, the then Tahsildar Bheemunipatnam assigned land

admeasuring Ac.4-59 cents in Sy.No.371/1 of Kapuluppada

Village, Bheemunipatnam Mandal, Visakhapatnam District on MSM,J WP_12757_2018

17.11.1992 vide Patta No.225-5. The land was carved out of main

Sy.No.314 and it was formed out of sloppy hill poramboke. The

petitioner‟s husband made application to the then Tahsildar,

Bheemunipatnam on 11.05.1996 to mutate his name in the

revenue records, issue pattadar passbooks and title deeds. The

Tahsildar ignored the application of the petitioner‟s husband and

did not take any action. He further made similar applications on

18.09.2000 and 08.09.2005, but the fourth respondent ignored the

request of petitioner‟s husband. While so, the petitioner‟s husband

died on 19.09.2005. Subsequent to his death, the petitioner also

made application to the fourth respondent - Tahsildar on

23.12.2009. Inspite of repeated requests from the petitioner and

her husband, the fourth respondent - Tahsildar had neither

rejected nor accepted the request of the petitioner.

As the petitioner became old, she proposed to sell the land

and approached the Sub-Registrar, Bheemunipatnam along with

prospective buyer. However, the Sub-Registrar, Bheemunipatnam

refused to receive the document of conveyance stating that the

land is recorded as Government Land and included in the

prohibited properties list under Section 22-A of the Registration

Act and refused to register the same.

Aggrieved by the same, the petitioner approached the Court

and filed W.P.No.30568 of 2010 which was disposed of vide order

dated 07.12.2010 directing the Sub-Registrar, Bheemunipatnam to

receive the document presented and to register the same in

accordance with the provisions of Registration Act, 1908. However,

the prospective buyer did not come forward to purchase the same MSM,J WP_12757_2018

stating that, unless „No Objection Certificate‟ is obtained from the

revenue authorities, he cannot purchase the same, as he would be

suffering a lot due to misery and hardship at every stage of dealing

with the land subsequent to registration of the same. Therefore,

the petitioner made an application to the respondents for issuing

„No Objection Certificate‟ to sell the land after expiry of 10 years

from the date of assignment to alienate the same in accordance

with G.O.Ms.No.1117, Revenue (Assignment) Department, dated

11.11.1993.

On receipt of the order of the Court, the fourth respondent

sought report from Respondent Nos. 5 & 6 with respect to the

assignment made to the petitioner‟s husband of the said land and

also the records pertaining to the said land. In response to the

instructions of the fourth respondent, the sixth respondent

submitted report on 04.04.2012, categorically stating that the said

land was assigned to the petitioner‟s husband and they are in

possession of the same for the last 20 years. The fifth respondent

also reported to the fourth respondent vide letter dated

13.06.2012. The fourth respondent thereafter passed the

impugned order dated 12.02.2013 rejecting the application made

by the petitioner dated 19.09.2011 for issuance of „No Objection

Certificate‟ with respect to the subject land. Aggrieved by the same,

the present writ petition is filed requesting to issue direction as

stated above.

The District Collector/Respondent No.4 herein issued

proceedings impugned in the writ petition dated 09.02.2018,

proposing to distribute the land to houseless poor and the MSM,J WP_12757_2018

petitioner‟s land is admeasuring Ac.4-59 cents in Sy.No.371/1 of

Kapuluppada Village, Bheemunipatnam Mandal, Visakhapatnam

District. The proceedings with respect to petitioner‟s land is

mentioned as follows:

"Sy.No.371/P [Ac.4-59 cts] of Kapuluppada Village (Bheemunipatnam):

It is reported that an extent of Ac.4-59 cts in Sy.No.371/1 (carved out from Sy.No.314) classified as „Hill Poramboke‟ of Kapuluppada village was kept in Government land parcels and handed over to VUDA for safe custody. At present the land was vacant and covered with fencing. The said land is at a distance of 1km from Marikavalasa Junction and suitable for housing purpose."

From the above, it is clear that the land of this petitioner is

classified as „Hill Poramboke‟ of Kapuluppada Village; it was kept

in Government land parcels and handed over to VUDA for safe

custody. At present the land is vacant and covered with fencing

and it is at a distance of 1 km from Marikavalasa junction and

suitable for housing purpose. Therefore, aggrieved by the direction

issued in the proceedings dated 09.02.2018, questioned the same

on the ground that, when the land is fenced and when the

petitioner is contending that the petitioner is in possession of the

property, possession of the property cannot be taken, except by

following due process of law.

Though, it is alleged that, the land is in safe custody of

VUDA, it is not in the safe custody and it is in the custody of the

petitioner alone. But, the material on record is not sufficient to

conclude that this petitioner is in possession and enjoyment of the

property.

MSM,J WP_12757_2018

In any view of the matter, the land admeasuring Ac.4-59

cents in Sy.No.371/1 of Kapuluppada Village, Bheemunipatnam

Mandal, Visakhapatnam District is classified as „Hill Poramboke‟ as

per Serial No.6 of the impugned proceedings. When the land is

classified as „Hill Poramboke‟, the same cannot be assigned to

anyone. In G.O.Ms.No.510 Revenue (Lands-1) Department dated

30.12.2019 itself, the Government authorized the District

Collectors not to propose any lands belongs to Endowments,

Educational Institutions, Wakf or any other religious related lands,

environmentally sensitive and fragile areas such as, tank beds,

river beds, other water bodies and hillocks with afforestation etc.,

for house site purposes.

The petitioner being wife of T. Nandaiah, an Ex-

servicemen applied for „No Objection Certificate‟. As the

respondents rejected her request, the order is under challenge

in W.P.No.24159 of 2016. In the said writ petition, the

petitioner claimed to be in possession and enjoyment of the

property after death of her husband - T. Nanadaiah and it is

stated that the land is fenced. The factum of fencing the land

is admitted by respondent in both the counter affidavits filed

in both the writ petitions and it is submitted that, the land of

the petitioner is classified as „Hill Poramboke‟.

As stated above, in view of G.O.Ms.No.510 Revenue

(Lands-1) Department dated 30.12.2019, any lands belongs to

Endowments, Educational Institutions, Wakf or any other religious

related lands, environmentally sensitive and fragile areas such as, MSM,J WP_12757_2018

tank beds, river beds, other water bodies and hillocks with

afforestation etc., cannot be assigned for house site purposes, in

view of the prohibition under B.S.O.15(4). But, the respondents

are not intending to assign the land. Therefore, B.S.O.15(4) has no

application, but G.O.Ms.No.510 dated 31.12.2019 is still

applicable. The land that can be made available under the Land

Pooling Scheme can also be identified for alienation of the land to

the Below Poverty Line people. But, there is a difference between

grant of patta under B.S.O. 21 and alienation of land. The

alienation cannot be equated with an assignment under B.S.O 21.

When once the Government proposes to alienate the land by

executing a deed of conveyance, collecting registration fee and

stamp duty, with a clause permitting them to alienate the same, it

creates any amount of suspicion prima facie and it is far from fair

disposal of the land. Thus, it is outright sale of the property by

executing deed of conveyance. Undisputedly, the land is down

gradient, since it is a part of the hill, which is liable to be

protected. Apart from that, in Smt. S. Maheshwari v. State of

Andhra Pradesh1, this Court held that, since the material

resources of the community like forests, tanks, ponds, hillock,

mountain etc. are nature's bounty, maintaining 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 and finally concluded that hillocks cannot be allotted

/distributed under the housing scheme. Even by applying the

principles laid down in the above judgment, I find that allotment of

W.P. Nos.20185 and 7988 of 2020 dated 28.10.2021 MSM,J WP_12757_2018

land of this petitioner admeasuring Ac.4-59 cents in Sy.No.371/1

of Kapuluppada Village, Bheemunipatnam Mandal,

Visakhapatnam District towards house sites is illegal, arbitrary

and violative of Article 48-A and Article 51-A(g) of the Constitution

of India and principle laid down by the Apex Court in Hinch Lal

Tiwari v. Kamala Devi2 and M.C.Mehta v. Kamal Nath and

Others3, that the Government as well as the citizens have a

constitutional obligation to protect environment and ecology.

Accordingly, the point is answered in favour of the petitioner and

against the respondents.

In the result, writ petition is allowed, declaring the action of

the fourth respondent in passing the impugned proceedings dated

09.02.2018 directing the third respondent to take advance

possession of the petitioner‟s land of an extent of Ac.4-59 cents in

Sy.No.371/P of Kapuluppada Village, Bheemunipatnam Mandal,

Visakhapatnam District, as illegal, arbitrary and consequently set-

aside the same; while directing the respondents not to interfere

with the peaceful possession and enjoyment of the petitioner over

the subject property and not to assign or allot to anyone including

houseless poor. No costs.

Consequently, miscellaneous petitions pending, if any, shall

also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:12.11.2021 SP

(2001) 6 Supreme Court Cases 496

(1997) 1 Supreme Court Cases 388