APHC010183132020 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3458] WEDNESDAY, THE TWENTY NINETH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA WRIT PETITION NO: 11726/2020 Between: Saidu Mrutyunjaya and others ...Petitioners AND The State of Andhra Pradesh and others ...Respondents Counsel for the Petitioners: 1. V.S.R.Anjaneyalu Counsel for the Respondents: 1. GP for Revenue The Court made the following order: Heard Sri V.S.R.Anjaneyalu, learned senior counsel for the petitioners and learned Assistant Government Pleader for Revenue appearing for the respondents. 2. Challenging the action of the respondents in proposing to assign the land in an extent of Ac.3.09 cents in Sy.No.1629 of Reddygudem, Veeravasaram Revenue Village and Mandal, West Godavari District for issuance of house site pattas, the present writ petition is filed. 2 KM,J W.P.No.11726 of 2020 3. It is contended that the total extent of the land in Sy. No.1629 is Ac.4.46 cents, and the subject land is utilized for communal purposes, including drainage and burial grounds. Further, it is contended that the subject land is classified as "Madugu Poramboke" in the revenue records. Since the subject land is used for communal purposes, it is contended that the same cannot be assigned for house site pattas, as the same would be contrary to the provisions of the AP Revenue Board Standing Orders. It is also contended that the respondents highhandedly proposed the issuance of house site pattas. 4. This Court vide order dated 20.07.2020, passed interim order not to issue house site pattas in respect of the subject land under the scheme “Navaratnalu-Pedalandariki Illu”. 5. The 3rd respondent filed counter affidavit, stating that R.S.No.1629 has been subdivided into two parts i.e., R.S.No.1629/1 and R.S.No.1629/2. R.S.No.1629/1 consists an extent of Ac.3.09 cents out of the total extent of Ac.4.46 cents. It is contended that an extent of Ac.3.09 cents was assigned to one Guddati Narasimha Murthy vide proceedings dated 11.02.1982, since then he has been in possession and enjoyment of the land during his lifetime. after his lifetime, his legal heirs have occupied the subject land. 6. Whereas, the remaining Ac.1.37 cents, located in R.S.No.1629/2, is classified as Kaluva and is not proposed for issuance of house site pattas. When the Government proposed issuing house site pattas, the land in 3 KM,J W.P.No.11726 of 2020 R.S.No.1629/1, in an extent of Ac.3.09 cents, was proposed for issuance of house site pattas. Therefore, after following due procedure, the said land was resumed for public purpose, and compensation was paid to Guddati Narasimha Murthy. At present, it is stated that though the beneficiaries have been identified, the land has not been assigned in their favor, in view of the interim directions of the Court, in the case. The subject land is levelled up and is vacant. 7. Learned counsel for the petitioners contends that the land has been used for communal purposes since time immemorial. The subject land is classified in the revenue records as "Murugu Kalava," which is meant for communal use. Therefore, it is contended that the land cannot be assigned for any other purpose. 8. If such an assignment is made, and the land is levelled and used for constructing house sites, the adjacent lands, which are meant for agricultural use, would be inundated. In light of this, the petitioners pray for a direction to refrain from issuing house site pattas in respect of the subject land. 9. In support of his contention the learned counsel for the petitioner relies on decisions of the Hon’ble Apex Court in the cases of Intellectuals Forum, Tirupathi Vs. State of A.P. 1, Sarvepalli Ramaiah (Died) As Per Legal Representatives Vs. District Collector, Chittoor District2, Hinch Lal Tiwari 1 (2006) 3 SCC 549 2 (2019) 4 SCC 500 4 KM,J W.P.No.11726 of 2020 Vs. Kamala Devi 3 and also the decision of this Court in the case of Kuchipudi Ramamohana Rao Vs. The State of Andhra Pradesh [W.P.No.1065 of 2020 dated 04.02.2020]. 10. Considered the rival submissions. 11. The Hon’ble Apex Court in the case of Intellectuals Forum, Tirupathi Vs. State of A.P. (supra) is observed as under: “91. It is true that the tank is a communal property and the State authorities are trustees to hold and manage such properties for the benefits of the community and they cannot be allowed to commit any act or omission which will infringe the right of the Community and alienate the property to any other person or body.” And it is further observed as under: “Mr. P.S. Narasimha, learned counsel appearing for A.P. Housing Board, submitted that S.No. 18/1 of Avilala village is on the outskirts of Tirupathi town measuring about 187 acres was classified as Avilala tank Poramboke. The said tank was abandoned as far back as in the year 1992. The Tank area was bulldozed and the entire land was levelled. The cultivation particulars of the ayacut in this tank reveal that no lands were being irrigated from the water derived from this tank right from the year 1395 F i.e. the year 1984 A.D. The feeder source for Avilala tank, namely, (i) Ramayapalli Kasarkaluwa, (ii) Kasarkaluwa of Vedantpuram Agraharam, and (iii) drainage water of 3 (2001) 6 SCC 496 5 KM,J W.P.No.11726 of 2020 Timlagunta wet fields, (iv)Nadinvaka - all these sources got defaced and there has been no scope for accumulation of water in the tank. It was also observed that even after sinking that well to a depth of about 60 feet, the land was not receiving any water from any ground resources after construction of Kalyani Reservoir. Therefore, proposal for abandonment of tank was submitted by the Revenue Divisional Officer, Tirupathi to the District Collector in the years 1988 and 1992. Thereafter, public notices were issued inviting objections but no objections were filed by anyone. Thereafter, a technical opinion was given by the Executive Engineer of the Irrigation Department in favour of the alienation of the said land to an extent of 98 acres. Even the Gram Panchayat had passed resolution on 14.08.1988 proposing to alienate 98 acres in S.No. 18/3 carved out S.No. 18/1 of Avilala Village in favour of A.P. Housing Board. The Government have issued orders in G.O. Ms. No. 691 dated 18.7.1989 alienating 98 acres of land for the purpose of constructions of house under the rental housing scheme for the Government employees. The said land has been levelled in the year 1992 after taking possession. The Housing Board has undertaken infrastructural facilities by laying of B.T. Roads, electrical lines, digging bore wells apart from levelling and plotting the land and a sub-station 33 K.V. capacity has been established by the A.P. Electricity Board.” 12. In the case of Sarvepalli Ramaiah (Died) As Per Legal Representatives Vs. District Collector, Chittoor District (supra), the Hon’ble Supreme Court held as under: 6 KM,J W.P.No.11726 of 2020 “48. The Single Bench as also the Division Bench of the High Court rightly held that it is well settled that poramboke (tank) cannot be alienated. No patta can be granted in respect of tanks and water bodies including those that might have dried up or fallen into disuse. The appellants and/or their predecessor-in-interest had not challenged the Gazette Notification of 3-9-1984 notifying the entire Survey No.234 at Tiruchanoor as “Peddacheruvu Poramboke”, that is, tank.” 13. The Hon’ble Apex Court in the case of Hinch Lal Tiwari Vs. Kamala Devi (supra) is observed as under: “8. A perusal of the provision extracted above makes it clear that tanks, ponds, private ferries, water channels, pathways and abadi sites which had vested in the State under Section 4 of the Act shall vest in the Gaon Sabha or any other local authority established for the whole or any part of the village in which the said things are situate, or partly in one such local authority and partly in another, from the date specified in the notification issued by the Government in this behalf. Section 122-C authorises the Assistant Collector, in charge of the sub-division to earmark the classes of land noted hereunder either on his own motion or on the resolution of the Land Management Committee, for the members of the Scheduled Castes and the Scheduled Tribes and agricultural labourers and village artisans. It would be apt to refer to clause (a) of sub- section (1) of Section 122-C which reads as follows : "122-C. Allotment of land for housing site for members of Scheduled Castes, agricultural 7 KM,J W.P.No.11726 of 2020 labourers etc. - (1) The Assistant Collector in charge of the sub-division of his own motion or on the resolution of the Land Management Committee, may earmark any of the following classes of land for the provision of abadi sites for the members of the Scheduled Castes and the Scheduled Tribes and agricultural labourers and village artisans - (a) lands referred to in clause (i) of sub-section (1) of Section 117 and vested in the Gaon Sabha under that section;" And the said clause (i) runs as follows : "117. (1)(i) lands, whether cultivable or otherwise, except lands for the time being comprised in any holding or grove,” 14. This Court in the case of Kuchipudi Ramamohana Rao Vs. The State of Andhra Pradesh [W.P.No.1065 of 2020 dated 04.02.2020] referring to the provisions of BSO 15(4) observed as under: “In view of B.S.O 15(4)(m), any other lands which are required or likely to be required for any public or any special purposes necessary for the provision of amenities of the community or connected with the development of the village, provided, however, that tank bed lands, foreshore lands and lands under categories (g), (j), (k) and (m) above, if not immediately required or if their occupation be not objectionable at present, may be leased with a condition for resumption, when required for public purpose 8 KM,J W.P.No.11726 of 2020 without payment of compensation for improvements, if any effected. Thus, from B.S.O 15(4)(m), land which is required for the provision of amenities to the community cannot be assigned……… ........in the case of channels without embankments, however, it will suffice to set apart a margin of 15 links. If stream runs through or near the land, a margin of not less than 50 links on either bank should as a general rule be reserved and registered as poramboke. Land set apart as above should be shown in the accounts as road, tank, channel or stream or poramboke, as the case may be…………..” 15. In view of the principles laid down by the Hon'ble Apex Court, and this court, Court is of the considered view that the land, as noted from the documents filed along with the writ petition and the counter affidavit, the subject land is classified as Murugu Kalava in its entirety, covering the entire extent in R.S.No.1629. This classification indicates that the land is meant for the passage of drain water from the agricultural fields located on either side of the said Kalava. 16. Learned Assistant Government Pleader for Revenue submits that out of the total extent of Ac.4.46 cents, only an extent of Ac.3.09 cents was proposed for acquisition. This assignment was already affected even before the filing of the present writ petition. The said land was subsequently resumed upon payment of compensation. Furthermore, the remaining extent of Ac.1.37 cents is not proposed for issuance of house site pattas. In light of these facts, 9 KM,J W.P.No.11726 of 2020 the Learned Assistant Government Pleader contends that the relief sought by the petitioners may not be maintainable. 17. A perusal of the sketch filed along with the counter affidavit at page No. 18, which is marked in green colour, reflects that the house site pattas are proposed in the midst of the stream, obstructing the entire passage of the drain. This would cause hindrance to the lands located on the either side of the Kalava/Drain. 18. In view of this, and considering the principles of law laid down by the Hon’ble Apex Court in the cases referred to supra, this Court is of the considered view that assignment in respect of the land classified as "Murugu Kalava" as per the Revenue Survey Records (RSR) cannot be issued. Even if there was an earlier assignment that has been cancelled, the mistake of the earlier assignment cannot be continued. 19. Accordingly, the Writ Petition is disposed of directing the respondents not to issue house site pattas in respect of the extent of Ac.4.46 cents in Sy.No.1629 of Reddygudem, Veeravasaram Revenue Village and Mandal, West Godavari District. 20. With the above observation, the Writ Petition is disposed of. There shall be no order as to costs. 10 KM,J W.P.No.11726 of 2020 As a sequel, all pending miscellaneous applications shall stand closed. _______________________________ JUSTICE KIRANMAYEE MANDAVA Date: 29.01.2025 BSK 11 KM,J W.P.No.11726 of 2020 THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA WRIT PETITION NO: 11726/2020 Date: 29.01.2025 BSK