Andhra Pradesh High Court - Amravati
Bhavani Mahila Trust Bmt, vs The State Of Andhra Pradesh, on 5 May, 2022
Bench: R Raghunandan Rao
IN THE HIGH COURT OF ANDHRA PRADESH
***
W.P.No.1402 of 2022
Between:
#Bhavani Mahila Trust (BMT)
Having its registered office at D.No.1-111,
Pathuru, Pedakakani, Guntur District,
Rep. by its Chairperson,
Pamulapati Padmavathi, W/o. Malleswara Rao,
R/o. D.No.1-128, Pathuru, Pedakakani, Guntur District.
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Panchayat Raj & Rural Development Department, Secretariat of A.P.,
Velagapudi, Amaravathi, Guntur District.
2. The District Collector, Guntur District, Guntur.
3. The District Panchayat Officer, Gutur District, at Guntur.
4. The Tahsildar, Pedakakani Mandal, Guntur District.
5. The Pedakakani Gram Panchayat, rep. by its Panchayat Secretary,
Pedakakani Village, Pedakakani Mandall, Guntur District.
Respondents.....
Date of Judgment pronounced on : 05.05.2022
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether The Lordship wishes to see the fair copy : Yes/No
Of the Judgment?
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W.P.No.1402 of 2022
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
*HONOURABLE SRI JUSTICE R. RAGHUNANDAN RAO
+ W.P.No.1402 of 2022
% Dated: 05.05.2022
Between:
#Bhavani Mahila Trust (BMT)
Having its registered office at D.No.1-111,
Pathuru, Pedakakani, Guntur District,
Rep. by its Chairperson,
Pamulapati Padmavathi, W/o. Malleswara Rao,
R/o. D.No.1-128, Pathuru, Pedakakani, Guntur District.
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary,
Panchayat Raj & Rural Development Department, Secretariat of A.P.,
Velagapudi, Amaravathi, Guntur District.
2. The District Collector, Guntur District, Guntur.
3. The District Panchayat Officer, Gutur District, at Guntur.
4. The Tahsildar, Pedakakani Mandal, Guntur District.
5. The Pedakakani Gram Panchayat, rep. by its Panchayat Secretary,
Pedakakani Village, Pedakakani Mandall, Guntur District.
Respondents.....
! Counsel for Petitioner : Smt. T.V. Sridevi
^Counsel for Respondent No.2 : Government Pleader for Revenue
^Counsel for Respondent No.5 : Sri Koti Reddy Idamakanti (SC)
<GIST :
>HEAD NOTE:
? Cases referred:
1. 2007 (4) ALT 550
2. 2015 (4) ALT 296
3. 2020 (4) ALT 250
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W.P.No.1402 of 2022
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.1402 of 2022
ORDER:
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
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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 judgement.
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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 300-A 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
Panchayath 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
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W.P.No.1402 of 2022
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.
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W.P.No.1402 of 2022
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, Panchayath Raj, on the basis of the
resolutions, had instructed the panchayath secretary to take necessary
action to remove the tiled house as per the provisions of the Panchayath
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 Panchayath 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 5 th
respondent and the learned Government Pleader for Revenue for the 2nd
respondent.
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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.
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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 Panchayath is considered in the course of this judgement. Section
103 provides for levy of penalty in case of unauthorised occupation of
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W.P.No.1402 of 2022
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 Panjab 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 Panchayath 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.
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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.
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W.P.No.1402 of 2022
The Respondent Gram Panchayath claims that the Gramkantam land vests
in the Gram panchayath , by virtue of Section 58(1) of the Act and it
would be entitled to recover the said land from unauthorized privat
occupation. Section 58(1) of the Panchayath 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.,1 it was held that since Section 58(1)
does not enumerate Gramkantam land, as vesting in the Gram
Panchayath, it cannot be held that Gramkantam land vests in the gram
panchayath.
18. In Sigadapu Vijaya vs. State Of Andhra Pradesh,2 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 judgements
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
judgements cited in this case had also considered the question whether
2007 (4) ALT 550
2015 (4) ALT 296
13 RRR,J
W.P.No.1402 of 2022
Gramkantam lands would be communal lands and the consensus in all
these judgements 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
Pradesh3 a learned single judge of this Court, following the aforesaid
judgements and other judgements 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 Panchayath. 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. Panchayath Raj Act, 1994 or from the standpoint of decided cases,
occupied Gramkantam land is not the property of the Gram Panchayath to
2020 (4) ALT 250
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W.P.No.1402 of 2022
invoke the provisions of either section 98 or 103 of the A.P. Panchayath
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.
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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
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W.P.No.1402 of 2022
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.
_________________________
R. RAGHUNANDAN RAO, J.
5th May, 2022
Js.
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W.P.No.1402 of 2022
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.1402 of 2022
5th May, 2022
Js.
