THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY
Writ Petition No.553 of 2012
09.07.2012
Nagarala Nirvasithula Welfare Association.
The Govt. of A.P. and others.
Counsel for the petitioner: Sri P.Gangarami Reddy
Counsel for respondents: G.P. for Land Acquisition
<GIST:
>HEAD NOTE:
? Cases referred:
1. 1959(2) M.L.J. 513
2. 2004(2) M.L.J. 708
3. 2007(4) ALD 374
4. 2004 (2) ALD 451 (LB)
ORDER:
The petitioner is an Association of persons of Nagarala Village, Pebbair
Mandal, Mahaboobnagar District. The entire village of Nagarala came under
submergence, as part of Bheema Irrigation Project of Rangasamudram Balancing
Reservoir. Apart from the land, 264 houses were also effected. A notification
under Section 4(1) of the Land Acquisition Act (for short 'the Act') was
published on 26.07.2008. Enquiry under Section 5-A of the Act was dispensed
with and declaration under Section 6 of the Act was published on 09.09.2008. An
award was passed on 18.02.2009 through which compensation was awarded for the
structures alone. No compensation was paid for the land on which the houses
were constructed. The petitioner contends that there was no justification for
the respondents in denying the compensation for the land on which houses were
constructed.
The respondents filed a counter affidavit. It is stated that draft
notification and draft declaration under Sections 4(1) and 6 of the Act
respectively were issued in respect of 264 houses of Nagarala Village, covering
an area of 43,823 square meters. The fact that award was passed on 18.02.2009
in respect of the houses is also admitted. As regards the compensation for the
land, it is stated that the instructions issued by the Government in
G.O.Ms.No.76, dated 13.04.2006 and Memo, dated 04.06.2007, which are to the
effect that compensation in such cases shall be paid for structures only; were
followed. According to the respondents, the place, where the houses were
constructed, being Gramakantam, vests in the Government and the question of
paying compensation for the Government land does not arise. It is also stated
that the structures alone were notified in the proceedings and not the land. The
respondents further state that the members of the petitioner-association
constructed houses on Government land and that they are not entitled to receive
compensation for the said land.
Sri P.Gangarami Reddy, learned counsel for the petitioner submits that
except stating that the houses were constructed on Gramakantam, the respondents
are not able to establish as to how the land belongs to Government. He contends
that the expression 'Gramakantam' connotes the use of the land viz., place,
where houses can be constructed, in contrast to other uses such as agriculture,grazing, tanks etc. Learned counsel further submits that Section 2 of the A.P.
Land Encroachment Act, which lists the properties that are vested in the
Government clearly excludes the house sites or their backyards. He has placed
reliance upon the judgment of the Madras High Court in Rengaraja Iyengar vs.
Achikannu Ammal and another1 and the Executive Officer, Kadathur Town Panchayat
vs. Swaminathan2.
Learned Government Pleader for Land Acquisition on the other hand submits
that though the members of the petitioner-Association may have constructed
houses and lived therein for a long time, they did not derive any right over the
house sites. He submits that the members of the petitioner-Association failed
to prove independent title over the sites and the inescapable conclusion is that
the entire area on which the houses were constructed was held by the Government.
According to him, the members of the petitioner-Association were extended fair
treatment through payment of the cost of the structures.
As observed earlier, the entire village of Nagarala came under submergence
of a Reservoir of Bheema Project. Recognizing its obligation, the Government
issued notifications under Sections 4(1) and 6 of the Act. It is true that what
was requisitioned by the Irrigation Department was the area and not the
structures. However, the structure would include the site on which construction
was made. The 3rd respondent herein passed award, dated 18.02.2009 in respect
of structures alone. For this, he relied upon certain instructions issued by
the Government, The basis for denying compensation for the plots of land owned
by the members of the petitioner-association was that the plots are part of
Gramakantam, and that the Gramakantam belongs to the State. It was opined that
the persons, who constructed houses thereon, are not eligible to be paid
compensation for the site. Now, it needs to be seen as to (a) whether any
area, classified as Gramakantam, vests with the Government and if so, (b)
whether the persons who constructed houses thereon are not entitled to be paid
compensation for the house site.
It is a matter of common knowledge that a revenue village comprises of
area, in which villagers inhabit; the agricultural lands, water bodies, such as
tanks, forest areas, hillocks etc. The revenue records reflect the nature of
ownership of such properties. The water bodies, porambokes, roads, pathways
etc. vest in the Government. Since the land revenue is to be levied, it becomes
necessary to segregate the area, which is earmarked for habitation or
construction of houses, in contrast to other categories of land. While in
respect of agricultural lands and vacant lands, land revenue is levied, what is
payable in respect of house sites is the property tax, and it is to be paid to
the concerned local authority, such as Gram Panchayat. Since the expression
'Gramakantam' is not defined under any statute, assistance can be taken from the
provisions of the Land Encroachment Act. Section 2 thereof reads as:
2, Right of Property in public roads, etc, waters and lands:-
(1) All public roads, streets, lanes and paths, the bridges, ditches, dikes and
fences, on or beside the same, the bed of the sea and of harbours and creeks
below high water mark, and of rivers, streams, nallas, lakes and tanks, and all
canals and water-courses, and all standing and following water, and all lands,
wherever situated, save in so far as the same are the property-
(a) of any Zamindar, poligar, mittidar, jagirdars, shrortriemdar or any person
claiming through or holding under any of them, or
(b) of any, person paying shist, kattubadi, jodi, poruppu or quit-rent to any of
the aforesaid persons, or
(c) of any person holding under ryotwari tenure, or in any way subject to the
payment of land-revenue direct to Government, or
(d) of any other registered holder of land in proprietary right, or
(e) of any other person holding land under grant from the Government otherwise
than by way of licence.
And , as to lands, save also in so far as they are temple sites or owned
as housesite or backyard, are and are hereby declared to be the property of
Government except as may be otherwise provided by any law for the time being in
force, subject always to all rights of way and other public rights and to the
natural and easement rights of other land owners, and to all customary rights
legally subsisting.
(2) All public roads and streets vested in any local authority shall, for the
purposes of this Act, be deemed to be the property of Government.
Explanation: - In this section "high water mark" means the highest point reached
by ordinary spring tides at any session of the year.
It is a comprehensive definition, being both, inclusive and exclusive. It
not only lists the properties that vests in the Government, but also mentions
those, which are not declared to be the property of the Government. While
clauses (a) to (e) of sub-section (1) are referable to specific categories of
properties that are outside the ownership of Government, the last phrase "and,
as to lands, save also in so far as they are temple sites or owned as housesite
or backyard" excludes the land on which temples and houses are constructed;
including the backyards. The effect is that the house sites and their backyards
cannot be treated as property of Government. Here itself, a distinction needs
to be made viz., where house is constructed and the same is recognized by the
local authority on the one hand; and an outright encroachment of a land, which
undisputedly belongs to Government; on the other hand.
The Madras High Court dealt with this very question in Rengaraja Iyengar's
case (1 supra), which arose under the provisions of the Madras Estates
(Abolition and Conversion into Ryotwari) Act (for short 'the Estates Act') and
the Madras Land Encroachment Act 1905 (which was adopted by the State of A.P.).
In Tamil, Gramakantam is known as Gramanatham. Referring to Section 2 of the
Land Encroachment Act, the Madras High Court observed:
"A house-site owned by a person in what is generally known as gramanatham
is not, under Madras Act III of 1905, property of the Government. Section 2 of
the Madras Act III 1905 says, in regard to lands which are not covered by
clauses (a) to (e) of sub-section (I) of Section 2, that those lands are and are
hereby declared to be the property of the Government, save in so far as they are
temple-site or owned as house-site or backyard. In order that a land may
properly be described as house-site within the meaning of that expression in
Section 2of Madras Act III of 1905, it is not necessary that there should be a
residential building actually constructed and standing on that site. A person
may in a village habitation own a house in a street and a site on the outskirts
of the habitation but within the limits of the gramanatham, which he uses for
the purpose of storing his hay and manure, if he is an agriculturist, or as a
smithy, if he is a smith, or as a brick-kiln if he is a brick-maker or as a
place for weaving if he is a weaver. On such sits, buildings or sheds may when
necessary, be constructed. But whether sub buildings or sheds are constructed
or not, such sites are, in my opinion, house-sites within the meaning of that
expression in Section 2 of the Madras Act III of 1905."
On this basis, the Court held that the land which forms part of
Gramanatham does not vest in the Government by operation of Section 3(b) of the
Estates Act. The relevant portion reads:
A building in a gramanatham (or village habitation) is protected from
transfer of title to the Government both under Section 18(1) of Madras Act XXVI
of 1948 and under the Madras Land Encroachment Act (III of 1905). The title to
a house site in a gramanatham is protected from transfer to Government by the
operation of Madras Act III of 1905.
The same view was reiterated by the Madras High Court itself recently
through its judgment in The Executive Officer, Kadathur Town Panchayat 's case
(2 supra).
On behalf of the respondents, reliance is placed upon the judgment of this
Court in Banne Gandhi and others vs. District Collector, Ranga Reddy District3,
which arose under the A.P. Panchayat Raj Act, 1994. Section 58(1) thereof
directs that all porambokes viz., grazing grounds, threshing floors, burning and
burial grounds, cattle stands, carts tanks etc. vest in the Gram Panchayat.
Sub-section (2) thereof directs that the Government may, at any time, by
notification in the A.P.Gazzette, direct that any porambokes referred to in sub-
section (1) shall cease to vest in the Grampanchayat.
The Government initiated steps to issue house site pattas over the land,
which formed part of Gramakantam. The same was challenged stating that
Gramakantam vests in the Grampanchayat and that the Government cannot grant
house site pattas in it. A learned Single Judge of this Court held that there
is no mention of Gramakantam in sub-section (1) and thereby, the question of
such lands vesting in the Government does not arise. That judgment cannot be
treated as an authority for the proposition that Gramakantam vests in the
Government. The scrutiny was restricted to the question as to whether the
Gramakantam vests in the Gramapanchayat. Since the expression was not utilized
in sub-section (1) of Section 58, the question was answered in the negative.
That however would not lead to an inference, much less a conclusion, thatGramakantam vests in the Government. At any rate, the purport of Section (2) of
the Land Encroachment Act was not taken into account. Therefore, the 3rd
respondent was not justified in denying compensation to the land, on which the
houses were constructed by the members of the petitioner-association.
Assuming that the Gramakantam vests in the Government, there exists a
tacit approval or assignment in favour of the members of the petitioners
enabling them to construct houses. This is evident from the fact that houses
constructed by the members of the petitioner-association were notified for
acquisition. A house cannot exist in vacuum and invariably it has to be on
land. Law does not permit recognition of rights with regard to structures
excluding the land on which they were made. This approach runs contrary to the
purport of the definition of immovable property under the Transfer of Property
Act. The plot of land, on which the construction is made to the knowledge, can
be deemed to have been assigned, particularly when the Government paid
compensation for the structure.
A Larger Bench of this Court in LAO-cum-RDO, Chevella Division, Domalguda,
Hyderabad v. Mekala Pandu4 held that even where the land of assignee is resumed
to Government, ex gratia almost on par with the market value, must be paid.
Apart from the reasons stated above, there exists an act of discrimination
on the part of the respondents. The petitioners have filed a copy of the award,
dated 16.06.2011 in respect of the houses in the neighbouring village of
Dadanpally, which too were acquired, for the purpose of same project. The
summary of the award reads that compensation was awarded separately for the area
of 10,799 square meters at the rate of Rs.150/- per square meter and value of
the structures thereon, estimated at Rs.7,81,42,492/-, was awarded. Except
stating that the case of the petitioner stands on a different footing, the
respondents did not justify the differential treatment. Their action is
violation Article 14 of the Constitution of India.
For the foregoing reasons, the writ petition is allowed and the 3rd
respondent is directed to pass supplementary award in respect of the land
covered by the houses of the members of the petitioner-association with all
statutory benefits, within a period of two months from the date of receipt of a
copy of this order.
The miscellaneous petition filed in this writ petition also stands
disposed of. There shall be no order as to costs.
____________________
L.NARASIMHA REDDY, J
Date: 09.07.2012
Writ Petition No.553 of 2012
09.07.2012
Nagarala Nirvasithula Welfare Association.
The Govt. of A.P. and others.
Counsel for the petitioner: Sri P.Gangarami Reddy
Counsel for respondents: G.P. for Land Acquisition
<GIST:
>HEAD NOTE:
? Cases referred:
1. 1959(2) M.L.J. 513
2. 2004(2) M.L.J. 708
3. 2007(4) ALD 374
4. 2004 (2) ALD 451 (LB)
ORDER:
The petitioner is an Association of persons of Nagarala Village, Pebbair
Mandal, Mahaboobnagar District. The entire village of Nagarala came under
submergence, as part of Bheema Irrigation Project of Rangasamudram Balancing
Reservoir. Apart from the land, 264 houses were also effected. A notification
under Section 4(1) of the Land Acquisition Act (for short 'the Act') was
published on 26.07.2008. Enquiry under Section 5-A of the Act was dispensed
with and declaration under Section 6 of the Act was published on 09.09.2008. An
award was passed on 18.02.2009 through which compensation was awarded for the
structures alone. No compensation was paid for the land on which the houses
were constructed. The petitioner contends that there was no justification for
the respondents in denying the compensation for the land on which houses were
constructed.
The respondents filed a counter affidavit. It is stated that draft
notification and draft declaration under Sections 4(1) and 6 of the Act
respectively were issued in respect of 264 houses of Nagarala Village, covering
an area of 43,823 square meters. The fact that award was passed on 18.02.2009
in respect of the houses is also admitted. As regards the compensation for the
land, it is stated that the instructions issued by the Government in
G.O.Ms.No.76, dated 13.04.2006 and Memo, dated 04.06.2007, which are to the
effect that compensation in such cases shall be paid for structures only; were
followed. According to the respondents, the place, where the houses were
constructed, being Gramakantam, vests in the Government and the question of
paying compensation for the Government land does not arise. It is also stated
that the structures alone were notified in the proceedings and not the land. The
respondents further state that the members of the petitioner-association
constructed houses on Government land and that they are not entitled to receive
compensation for the said land.
Sri P.Gangarami Reddy, learned counsel for the petitioner submits that
except stating that the houses were constructed on Gramakantam, the respondents
are not able to establish as to how the land belongs to Government. He contends
that the expression 'Gramakantam' connotes the use of the land viz., place,
where houses can be constructed, in contrast to other uses such as agriculture,grazing, tanks etc. Learned counsel further submits that Section 2 of the A.P.
Land Encroachment Act, which lists the properties that are vested in the
Government clearly excludes the house sites or their backyards. He has placed
reliance upon the judgment of the Madras High Court in Rengaraja Iyengar vs.
Achikannu Ammal and another1 and the Executive Officer, Kadathur Town Panchayat
vs. Swaminathan2.
Learned Government Pleader for Land Acquisition on the other hand submits
that though the members of the petitioner-Association may have constructed
houses and lived therein for a long time, they did not derive any right over the
house sites. He submits that the members of the petitioner-Association failed
to prove independent title over the sites and the inescapable conclusion is that
the entire area on which the houses were constructed was held by the Government.
According to him, the members of the petitioner-Association were extended fair
treatment through payment of the cost of the structures.
As observed earlier, the entire village of Nagarala came under submergence
of a Reservoir of Bheema Project. Recognizing its obligation, the Government
issued notifications under Sections 4(1) and 6 of the Act. It is true that what
was requisitioned by the Irrigation Department was the area and not the
structures. However, the structure would include the site on which construction
was made. The 3rd respondent herein passed award, dated 18.02.2009 in respect
of structures alone. For this, he relied upon certain instructions issued by
the Government, The basis for denying compensation for the plots of land owned
by the members of the petitioner-association was that the plots are part of
Gramakantam, and that the Gramakantam belongs to the State. It was opined that
the persons, who constructed houses thereon, are not eligible to be paid
compensation for the site. Now, it needs to be seen as to (a) whether any
area, classified as Gramakantam, vests with the Government and if so, (b)
whether the persons who constructed houses thereon are not entitled to be paid
compensation for the house site.
It is a matter of common knowledge that a revenue village comprises of
area, in which villagers inhabit; the agricultural lands, water bodies, such as
tanks, forest areas, hillocks etc. The revenue records reflect the nature of
ownership of such properties. The water bodies, porambokes, roads, pathways
etc. vest in the Government. Since the land revenue is to be levied, it becomes
necessary to segregate the area, which is earmarked for habitation or
construction of houses, in contrast to other categories of land. While in
respect of agricultural lands and vacant lands, land revenue is levied, what is
payable in respect of house sites is the property tax, and it is to be paid to
the concerned local authority, such as Gram Panchayat. Since the expression
'Gramakantam' is not defined under any statute, assistance can be taken from the
provisions of the Land Encroachment Act. Section 2 thereof reads as:
2, Right of Property in public roads, etc, waters and lands:-
(1) All public roads, streets, lanes and paths, the bridges, ditches, dikes and
fences, on or beside the same, the bed of the sea and of harbours and creeks
below high water mark, and of rivers, streams, nallas, lakes and tanks, and all
canals and water-courses, and all standing and following water, and all lands,
wherever situated, save in so far as the same are the property-
(a) of any Zamindar, poligar, mittidar, jagirdars, shrortriemdar or any person
claiming through or holding under any of them, or
(b) of any, person paying shist, kattubadi, jodi, poruppu or quit-rent to any of
the aforesaid persons, or
(c) of any person holding under ryotwari tenure, or in any way subject to the
payment of land-revenue direct to Government, or
(d) of any other registered holder of land in proprietary right, or
(e) of any other person holding land under grant from the Government otherwise
than by way of licence.
And , as to lands, save also in so far as they are temple sites or owned
as housesite or backyard, are and are hereby declared to be the property of
Government except as may be otherwise provided by any law for the time being in
force, subject always to all rights of way and other public rights and to the
natural and easement rights of other land owners, and to all customary rights
legally subsisting.
(2) All public roads and streets vested in any local authority shall, for the
purposes of this Act, be deemed to be the property of Government.
Explanation: - In this section "high water mark" means the highest point reached
by ordinary spring tides at any session of the year.
It is a comprehensive definition, being both, inclusive and exclusive. It
not only lists the properties that vests in the Government, but also mentions
those, which are not declared to be the property of the Government. While
clauses (a) to (e) of sub-section (1) are referable to specific categories of
properties that are outside the ownership of Government, the last phrase "and,
as to lands, save also in so far as they are temple sites or owned as housesite
or backyard" excludes the land on which temples and houses are constructed;
including the backyards. The effect is that the house sites and their backyards
cannot be treated as property of Government. Here itself, a distinction needs
to be made viz., where house is constructed and the same is recognized by the
local authority on the one hand; and an outright encroachment of a land, which
undisputedly belongs to Government; on the other hand.
The Madras High Court dealt with this very question in Rengaraja Iyengar's
case (1 supra), which arose under the provisions of the Madras Estates
(Abolition and Conversion into Ryotwari) Act (for short 'the Estates Act') and
the Madras Land Encroachment Act 1905 (which was adopted by the State of A.P.).
In Tamil, Gramakantam is known as Gramanatham. Referring to Section 2 of the
Land Encroachment Act, the Madras High Court observed:
"A house-site owned by a person in what is generally known as gramanatham
is not, under Madras Act III of 1905, property of the Government. Section 2 of
the Madras Act III 1905 says, in regard to lands which are not covered by
clauses (a) to (e) of sub-section (I) of Section 2, that those lands are and are
hereby declared to be the property of the Government, save in so far as they are
temple-site or owned as house-site or backyard. In order that a land may
properly be described as house-site within the meaning of that expression in
Section 2of Madras Act III of 1905, it is not necessary that there should be a
residential building actually constructed and standing on that site. A person
may in a village habitation own a house in a street and a site on the outskirts
of the habitation but within the limits of the gramanatham, which he uses for
the purpose of storing his hay and manure, if he is an agriculturist, or as a
smithy, if he is a smith, or as a brick-kiln if he is a brick-maker or as a
place for weaving if he is a weaver. On such sits, buildings or sheds may when
necessary, be constructed. But whether sub buildings or sheds are constructed
or not, such sites are, in my opinion, house-sites within the meaning of that
expression in Section 2 of the Madras Act III of 1905."
On this basis, the Court held that the land which forms part of
Gramanatham does not vest in the Government by operation of Section 3(b) of the
Estates Act. The relevant portion reads:
A building in a gramanatham (or village habitation) is protected from
transfer of title to the Government both under Section 18(1) of Madras Act XXVI
of 1948 and under the Madras Land Encroachment Act (III of 1905). The title to
a house site in a gramanatham is protected from transfer to Government by the
operation of Madras Act III of 1905.
The same view was reiterated by the Madras High Court itself recently
through its judgment in The Executive Officer, Kadathur Town Panchayat 's case
(2 supra).
On behalf of the respondents, reliance is placed upon the judgment of this
Court in Banne Gandhi and others vs. District Collector, Ranga Reddy District3,
which arose under the A.P. Panchayat Raj Act, 1994. Section 58(1) thereof
directs that all porambokes viz., grazing grounds, threshing floors, burning and
burial grounds, cattle stands, carts tanks etc. vest in the Gram Panchayat.
Sub-section (2) thereof directs that the Government may, at any time, by
notification in the A.P.Gazzette, direct that any porambokes referred to in sub-
section (1) shall cease to vest in the Grampanchayat.
The Government initiated steps to issue house site pattas over the land,
which formed part of Gramakantam. The same was challenged stating that
Gramakantam vests in the Grampanchayat and that the Government cannot grant
house site pattas in it. A learned Single Judge of this Court held that there
is no mention of Gramakantam in sub-section (1) and thereby, the question of
such lands vesting in the Government does not arise. That judgment cannot be
treated as an authority for the proposition that Gramakantam vests in the
Government. The scrutiny was restricted to the question as to whether the
Gramakantam vests in the Gramapanchayat. Since the expression was not utilized
in sub-section (1) of Section 58, the question was answered in the negative.
That however would not lead to an inference, much less a conclusion, thatGramakantam vests in the Government. At any rate, the purport of Section (2) of
the Land Encroachment Act was not taken into account. Therefore, the 3rd
respondent was not justified in denying compensation to the land, on which the
houses were constructed by the members of the petitioner-association.
Assuming that the Gramakantam vests in the Government, there exists a
tacit approval or assignment in favour of the members of the petitioners
enabling them to construct houses. This is evident from the fact that houses
constructed by the members of the petitioner-association were notified for
acquisition. A house cannot exist in vacuum and invariably it has to be on
land. Law does not permit recognition of rights with regard to structures
excluding the land on which they were made. This approach runs contrary to the
purport of the definition of immovable property under the Transfer of Property
Act. The plot of land, on which the construction is made to the knowledge, can
be deemed to have been assigned, particularly when the Government paid
compensation for the structure.
A Larger Bench of this Court in LAO-cum-RDO, Chevella Division, Domalguda,
Hyderabad v. Mekala Pandu4 held that even where the land of assignee is resumed
to Government, ex gratia almost on par with the market value, must be paid.
Apart from the reasons stated above, there exists an act of discrimination
on the part of the respondents. The petitioners have filed a copy of the award,
dated 16.06.2011 in respect of the houses in the neighbouring village of
Dadanpally, which too were acquired, for the purpose of same project. The
summary of the award reads that compensation was awarded separately for the area
of 10,799 square meters at the rate of Rs.150/- per square meter and value of
the structures thereon, estimated at Rs.7,81,42,492/-, was awarded. Except
stating that the case of the petitioner stands on a different footing, the
respondents did not justify the differential treatment. Their action is
violation Article 14 of the Constitution of India.
For the foregoing reasons, the writ petition is allowed and the 3rd
respondent is directed to pass supplementary award in respect of the land
covered by the houses of the members of the petitioner-association with all
statutory benefits, within a period of two months from the date of receipt of a
copy of this order.
The miscellaneous petition filed in this writ petition also stands
disposed of. There shall be no order as to costs.
____________________
L.NARASIMHA REDDY, J
Date: 09.07.2012
