Ogiredcly Satyanarayana Reddy, vs The State Of Andhra Pradesh
2023 Latest Caselaw 878 AP

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             HONOURABLE SMT. JUSTICE V. SUJATHA

                  WRIT PETITION No.28554 of 2016

ORDER:

The present writ petition came to be filed under Article 226 of

the Constitution of India seeking the following relief:

"...to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus directing respondents 1 to 8 not to allow any construction and/or installation of a statue in the road margin situated in Sy.No.336, Canal Road, Beside Red Canal Old Bridge between the road and canal to the immediate West of the existing cross over bridge on Godavari Canal on the Southern road margin of the road leading from Samalkota-Rajahmundry which is covered by gravel by respondents 9 to 12 and their ilk or in the alternative to remove the statue if it is installed after filing of the Writ Petition in the interregnum period and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case..."

2. When the matter came up for admission on 24.08.2016,

this Court granted the following interim order:

"...respondents 5 to 7 are directed to ensure that the road margin is not encroached or any unauthorized pedestal/construction is undertaken for any purpose..."

3. Learned Government Pleader for Roads & Buildings had

produced a copy of the instructions of the Tahsildar i.e., the 6th

respondent herein, vide Ref(B)544/2022, dated 07.02.2023, wherein it

is stated that as per the VRO, Anaparthi Report , a crowd of 200

people gathered in the leadership of Sri G.Harsha Kumar, Ex.MP tried

to setup Dr. B.R. Ambedkar Statue on canal margin. The police

personnel, VRO and VRAs have harshly obstructed but couldn't

control the crowd, the crowd setup the statue on 14.04.2018 and left

the place immediately. The Police filed an FIR No.126/2018U/s

143,149, 341, 447, 353, 153A of IPC and it was further stated that the

VRO, Anaparthi, vide his report dated 07.02.2023, have stated that

there are two cement bunds on which one Dr. B.R. Ambedkar statue

was erected and the other is empty from the time of erection to till

date and also the two V.R.As have been watching day and night.

4. However, learned Government Pleader for Roads and

Buildings, had submitted that as per G.O.Ms.No.18, Transport, Roads

& Buildings (Roads-1) Dept., dated 18.02.2013, the statue committee

is headed by the District Collector and comprising of Superintendent

of Police. The Government have, in the light of the observations of

Hon'ble Supreme Court of India in SLP (Civil) No.8519 of 2006, dated

1801.2013 issued directions not to grant permission for installation of

any statue or construction of any structure in public roads,

pavements, sideways and other public utility places. All the State level

and District level officers were requested to ensure strict compliance

of the orders of the Hon'ble Supreme Court of India.

5. In the above context, it is pertinent to ruminate the order

of the Hon'ble Apex Court dated 18.01.2013 in SLP(C) No.8519 of

2006. The apex Court observed thus:

"4. Until further orders, we direct that the status-quo, as obtaining today, shall be maintained in all respects by all concerned with regard to the Triangle Island where statue of late Shri N. Sundaran nadir has been permitted to be sanctioned . We further direct that

henceforth, State Government shall not grant any permission for installation of any statue or construction of any structure in public roads, pavements, sideways and other public utility places. Obviously, this order shall not apply to installation of high mast lights, street lights or construction relating to electrification, traffic, toll or for development and beautification of the streets, highways roads etc. and relating to public utility and facilities.

5. The above order shall also apply to all other states and union territories. The concerned Chief Secretary/Administrator shall ensure compliance of the above order."

6. Learned Government Pleader for Roads & Buildings,

further submitted that the issue of encroachment of government

lands/public utility lands vested in the State, which are meant for

common benefit of individuals, was considered in detail by the Hon'ble

Supreme Court in Jagpal Singh v. State of Punjab reported in

(2011) 11 SCC 396, while dealing with a case of encroachment of

village pond. The Hon'ble Supreme Court noted that the appellants

therein were trespassers who illegally encroached on to the Gram

Panchayat land by using muscle power/money power and in collusion

with the official sand even with the Gram Panchayat, and observed

that such blatant illegalities must not be condoned and even if houses

were constructed on the land in question by the encroachers, they

must be ordered to be removed and possession of the land must be

handed back to Gram Panchayat.

7. The Hon'ble Supreme Court further observed that

regularization of such illegal constructions must not be permitted

because the constructions were made on Gram Sabha land, which

must be kept for common use of the villagers of the village, and that

the Court cannot allow the common interest of the villagers to suffer

merely because the unauthorized occupation has subsisted for many

years. In the above judgment, the Hon'ble Supreme Court referred to

its earlier decision in M.I.Builders (P) Ltd. V. Radhey Shyam Sahu

reported in 1999 (6) SCC 464, where in restoration of a park after

demolition of a shopping complex constructed at a cost of more than

Rs.100 crores was ordered. The Hon'ble Supreme Court also referred

to its another decision in Friends Colony Development Committee

v. State of Orissa reported in 2004 (8) SCC 733, wherein it was held

that even where the law permits compounding of unsanctioned

constructions, such compounding should only be by way of an

exception, and observed that the said decision would apply to the

cases of encroachment of village common land with even greater force.

The Hon'ble Supreme Court further observed that compounding

should only be allowed where the land has been leased to landless

labourers or members of Scheduled Castes/Scheduled Tribes, or the

land is actually being used for a public purpose of the village.

8. The Hon'ble Supreme Court lastly referred to its decision

in Hinch Lal Tiwari v. Kamala Devi reported in AIR 2001 SC 3215

(followed by the Madras High Court in L.Krishnan v. State of Tamil

Nadu [2005(4) CTC 1 Madras]), wherein the Court ordered the

respondents therein to vacate the land recorded as a pond, which was

illegally occupied by them, after taking away the material of the house

constructed therein. The Hon'ble Supreme Court, having noted its

earlier decisions referred to above, ultimately issued the following

directions as contained in paragraph 22 of the judgment, which reads

thus:

"22. 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 of 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 Tribed, or where there is already a school, dispensary or other public utility on the land."

9. It was further submitted by the learned Government

Pleader for Roads & Buildings that in pursuant to the aforesaid

directions issued by the Hon'ble Supreme Court, the State

Government of Andhra Pradesh framed the Andhra Pradesh Gram

Panchayats (Protection of Property) Rules, 2011 (for short, 'the Rules

of 2011'), notified vide G.O.Ms.No.188, Panchayat Raj & Rural

Development (Pts.IV) Department, dated 21.07.2011. The said rules

provide the procedure to be followed for protection of Gram Panchayat

properties and eviction of encroachments.

10. Under Rule 2 of the said Rules, the lands belonging to the

Gram Panchayats have been classified into three categories, viz., (1)

Category-A dealing with own and acquired properties, (2) Category-B

dealing with gifts, donations, transfer of lands to Gram Panchayats

and (3) Category-C dealing with properties vested with Gram

Panchayats.

11. Rule 3 provides for the procedure to be followed for

protection of Gram Panchayat properties, in that, the executive

authority (Panchayat Secretary) of the Gram Panchayat is required to

prepare inventory of landed properties of the Gram Panchayats based

FMB (Filed Measurement Book)/FSA(Field Survey Atlas) and filed

inspections and the District Collectors shall instruct the Tahsildars to

provide the above information to the executive authority (Panchayat

Secretary) and web based solutions may be evolved over a period of

time to locate Gram Panchayat lands in the public domain. After

obtaining the land inventory details, Grama Sabha shall be convened

to validate the information and thereafter, a meeting shall be

convened by the Gram Panchayat to discuss and approve the land

inventory details by passing a resolution and any objections received

shall be settled as per the recorded evidence and then, the land

inventory details approved by the Gram Panchayat shall be published

in the District Gazette.

12. If any property of the Panchayat is under occupation of

any persons, Rule 4 would provide for the procedure for eviction of

such encroachments, as per which notice and opportunity of hearing

shall be provided to the party concerned before proceeding for

eviction.

13. In view of the above, this Court feels it appropriate to

dispose of the writ petition by directing the Statue Committee to look

into the issue, whether the statue has been erected on the water body

and take appropriate action in accordance with law, as expeditiously

as possible, preferably within a period of two (2) months from the date

of receipt of a copy of this order.

As a sequel thereto, miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.

_________________ V. SUJATHA, J Date: 15.02.2023.

GSS

HONOURABLE SMT. JUSTICE V. SUJATHA

W.P. No.28554 of 2016

Date: 15.02.2023

GSS