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2021 DIGILAW 89 (AP)

Kusume Subba Raju v. State of Andhra Pradesh

2021-02-17

D.V.S.S.SOMAYAJULU

body2021
ORDER : 1. 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. 2. 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. 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 Aiyangar, 1949 (1) MLJ 290 , S.Rangaraja Iyengar v. Achi Kannu Ammal, 1959 (2) MLJ 513 and The Executive Officer, Kadathur Town Panchayat v. Swaminathan, 2004 (2) MLJ 708 and other judgments to support his contention. He also relies upon the judgments from Andhra Pradesh including The State of A.P. v. Rayi Rangaiah, (1972) APLJ 386, Nagarala Nirvasitula Welfare Association v. Government of A.P., 2012 SCC Online A.P. 114, Voona Bangaraju v. Government of Andhra Pradesh, 2014 (4) ALT 238 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 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. 3. 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. 4. Learned Government Pleader of Panchayat argues on similar lines and supports the case of Panchayat. 5. 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. 4. Learned Government Pleader of Panchayat argues on similar lines and supports the case of Panchayat. 5. 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 Pradesh, (2015) 4 ALD 88 , the Board Standing Orders 21 part 4 is also 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). 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. 6. 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. 7. 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. 8. 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. 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. 8. 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. 9. 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. 10. The writ petition is accordingly allowed. No order as to costs. As a sequel, the miscellaneous petitions if any shall stand dismissed.