THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.5592 of 2010 29.04.2010 Between: D.Siddappa and others ….Petitioners AND The Tahsildar, Doma Mandal, Doma (Village), Ranga Reddy District And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.5592 OF 2010 ORDER: Petitioners 1 to 3 are brothers. They along with petitioners 4 and 5 filed instant writ petition challenging letter dated 23.12.2009 (hereafter, first impugned letter) and yet another letter dated 05.01.2010 (hereafter, second impugned letter) of the first respondent, namely, Tahsildar, Doma Mandal, Ranga Reddy District (hereafter, MRO). By first impugned letter, MRO requested second respondent, namely, Assistant Divisional Engineer, A.P.Transco, Pargi to disconnect electricity connections, allegedly, of all petitioners and two others. By second impugned letter, MRO addressed third respondent, namely, Station House Officer (SHO), P.S., Doma, to register criminal case against petitioners 1 to 3 for violating provisions of Indian Penal Code, 1860 and Andhra Pradesh Land Encroachment Act, 1905 (Land Encroachment Act) and for causing damage to Doma Pedda Cheruvu (irrigation tank) (hereafter, DPC) in violation of orders of Revenue Divisional Officer, Chevella (hereafter, RDO) and MRO by drawing water into their fields and by drilling twelve borewells depriving genuine ayacutdars (farmers) under irrigation tank. In the preliminary arguments, counsel for petitioners was heard on 11.03.2010 and 23.03.2010. The Government Pleader for Revenue (TA) brought to the notice of this Court that petitioners encroached tank bed (sikham), that they were evicted from the land under the Encroachment Act by passing orders under Section 6 thereof, and that they again encroached the land, which necessitated two impugned letters. He sought time and filed counter affidavit of first respondent on 13.04.2010. The matter was therefore heard finally with the consent of both the counsel and is being disposed of at the admission stage itself. The case of petitioners is as follows. petitioners own agricultural lands in Khammam Nacharam Village of Doma Mandal. Petitioners 1 to 3 allegedly own Acs.2.30 guntas, Acs.2.00 guntas and Acs.2.20 guntas respectively. The fourth petitioner allegedly has Acs.2.20 guntas and fifth petitioner has Acs.1.00 guntas. These lands are alleged to be in survey No.36 of the village. It is their case that they were granted patta under Laoni Rules, 1950 on 31.05.1978. They also state that their lands are situated far away from the tank bed of DPC and in 1978 their lands did not form part of sikham. RDO issued notice on 19.11.2005 stating that first petitioner is cultivating Acs.40.00, second petitioner is cultivating Acs.5.00, third petitioner is cultivating Acs.10.00, fourth petitioner is cultivation Acs.10.00 and fifth petitioner is cultivating Acs.2.00. They were called upon to show cause as to why they should not be evicted and crops confiscated. They submitted explanation on 22.12.2005. On 08.02.2006, RDO passed orders cancelling pattas under Rule 19 of Laoni Rules. First respondent was authorized to resume the lands. Petitioners then filed revision before Joint Collector. While the revision is pending, first respondent sent impugned letters. Petitioners contend that they were granted laoni pattas, that they cannot be evicted without following procedure prescribed thereunder, that the land in their possession does not form part of sikham of DPC and that the procedure adopted by MRO in requesting A.P.Transco and SHO, Doma, amounts to violating petitioners’ rights under Article 19(1)(g) and 300A of Constitution of India. In the counter affidavit of MRO, the following allegations, averments and factual aspects are brought out. The entire land admeasuring Acs.171.13 guntas in survey No.36 of Khammam Nacharam Village is classified as Government sikham land locally known as DPC. First petitioner’s family having patta land adjacent to survey No.36, illegally encroached Government sikham land in survey No.36. The Water Users Association in its representation dated 17.03.2005 brought to the notice of the District Collector, Ranga Reddy District and the RDO, Chevella and to the notice of first respondent about illegal encroachment on the sikham land. The then MRO, Doma, issued a memo No.B/144/04, dated 17.02.2005 to the Mandal Surveyor, Doma directing survey. The Mandal Surveyor and the Deputy Inspector of Survey, Chevella Division along with the Mandal Revenue Inspector surveyed and demarcated entire sikham land in S.No.36 and land in S.No.74 and submitted a report on 26.02.2005 with the following particulars. Sl.No. Name of encroacher A p p ro x i ma te extent encroached 1. Sri Siddappa Acs.40.00 2. Sri Buchi Lingam Acs.5.00 3. Sri Chandra Mouli Acs.10.00 4. Smt Saradamma Acs.10.00 5. Sri Chennaiah Acs.2.00 6. Sri Sayanna Acs.2.00 7. Sri Anjaiah Acs.2.00 The then MRO, Doma, issued a notice dated 21.04.2005 under Section 7 of the Encroachment Act to all petitioners and other encroachers directing them to show cause as to why they should not be summarily evicted from the said lands by issuing an order under Section 6 of the Encroachment Act and directed them to submit explanation within seven days from the date of receipt of the said notice. After receiving notice, some of the petitioners submitted their explanations. The then MRO after considering explanations passed order vide proceedings No.B/144/04, dated 04.05.2005 directing eviction of encroachers. In pursuance thereof, the Mandal Revenue Inspector evicted all the petitioners and other encroachers on 11.05.2005 and resumed lands to the Government under cover of panchanama. Petitioners did not challenge eviction order passed by MRO by way of appeal under Section 10 of the Encroachment Act to the appellate authority. Thus, the eviction order became final. Petitioners have no right to cultivate the encroached tank bed land. It is also stated that as petitioners claimed that they were granted assignment of small extents but encroached large extents under the guise of laoni patta allegedly granted on 31.05.1978, MRO by communication No.B/144/04, dated 23.04.2005 submitted a report to RDO. The RDO after providing an opportunity to all petitioners passed an order in letter No.D/2390/06, dated 08.02.2006 to the effect that petitioners encroached sikham land and they cannot claim assignment in sikham land nor they are entitled to cultivate the land. Petitioners filed a petition before the Joint Collector-I, Ranga reddy District, under Section 158 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317F. The Joint Collector granted stay in proceedings No.D1/2538/06, dated 12.05.2006, directing MRO not to cut standing crop in survey Nos.37 and 188, if it is a private land, until further orders. Petitioners claim the rights in respect of lands in survey No.36 is not true. The Joint Collector did not grant any stay. They encroached the land in survey No.36 to the extent of Acs.71.00 and laoni patta was never granted in respect of the said lands. Third petitioner filed W.P.No.12878 of 2005 against show cause notice issued by MRO on 21.04.2005. This Court disposed of the matter on 17.06.2005 directing MRO to consider explanations, dated 27.04.2005 and passed orders after giving opportunity to petitioners. Third petitioner is younger brother of first petitioner and elder brother of second petitioner. Fourth petitioner is wife of retired Village Revenue Officer and fifth petitioner is working as Kavalkar in Revenue Department. They being Government employees cannot encroach on the tank bed land. Even after their eviction from sikham/tank bed land, petitioners illegally dug borewells and are raising crops every year by trespassing into Government land, and therefore, impugned letters were issued to respondents 2 and 3. A crime being crime No.2 of 2010 was registered by SHO, P.S., Doma, on 06.01.2010 and the tractor used by petitioners for ploughing the land was seized and handed over to MRO on 06.01.2010. The tractor was being produced before competent Criminal Court and on an application filed by first petitioner, the same was released to him. The action taken by revenue authorities to remove encroachments of tank bed and tank land, acting on the representation of Water Users Association is not vitiated and petitioners have no right to claim any compensation. Their patta land was never submerged and they were only evicted from sikham land. Petitioners filed additional affidavit as well as reply affidavit. They raised an additional plea that their pattas are in operation and unless and until an enquiry is held under Andhra Pradesh (Telangana Area) Land Revenue Act and Rules made under Section 172 thereof, respondents cannot conclude that their laoni patta lands are sikham lands. In the reply affidavit, they stated that they never encroached the tank bed land and that respondents seized the tractor when it was engaged in the laoni patta land. Counsel for petitioners and Assistant Government Pleader for Revenue (Telangana Area) made their submissions. Petitioners contend that they dug borewells in patta land and fixed electricity motor pumps and therefore, without cancelling pattas, MRO cannot address respondents 2 and 3 nor he can seize the tractor. Petitioners deny that they encroached sikham land of DPC. Per contra, Assistant Government Pleader submits that the controversy in the present case is only with regard to land in survey No.36, which is DPC land. Even if petitioners were assigned laoni pattas as alleged, the MRO and other revenue officials never interfered with the petitioners’ patta land. He would contend that as per the orders of the Joint Collector, dated 12.05.2006, petitioners admit that their patta land is comprised in survey Nos.37 and 198 and therefore, they cannot claim any right in respect of survey No.36. He also contends that petitioners were already evicted from the sikham land duly following provisions of Land Encroachment Act and again they are trying to encroach the land and therefore, the impugned letters were issued. Assignment of Government land for the purpose of agriculture and/or housing is governed by different sets of Rules in different areas of Andhra Pradesh. In Andhra Area which originally, before States’ Reorganisation formed part of composite Madras State, Board Standing Order 15 (BSO 15) and Board Standing Order 21 regulate the assignment of land for the purpose of agriculture and housing respectively. Be it also noted that BSO 15 and BSO 21 are also applicable to Telangana Area if they are not inconsistent with the special laws referred to hereinabove. We are not concerned with these Rules having force of law in this case. In Telangana Region which formed part of erstwhile State of Hyderabad (Nizam State), Chapter V of Andhra Pradesh (Telangana Area) Revenue Act, 1317F, the Rules made thereunder, namely, Andhra Pradesh (Telangana Area) Land Revenue Rules, 1951 and Laoni Rules, 1950 and guidelines and regulations issued by the Government in G.O.Ms.No.1406, dated 25.07.1958 and G.O.Ms.No.1724, dated 26.08.1959 govern the assignment of lands. Whatever be the nature of grant/assignment made in these Rules, there are certain commonalities, especially, with regard to the lands which cannot be assigned. For instance, lands which are tanks (water bodies), tank bed land, foreshore lands of such tanks, forest lands, grazing lands, graveyards and those lands which are entered in prohibitory order book cannot be assigned and cannot be granted. We are concerned with the question of assignment of the land which allegedly claimed by the Government to be tank bed/sikkam. Therefore, the relevant Assignment Rules in Telangana Area dealing with this aspect need to be referred. Andhra Pradesh (Telangana Area) Land Revenue Rules, 1951 27. Tank Bed land not to be granted on patta:- No unoccupied land situated in the bed of a Government source irrigation shall be granted on patta. 28. Auction of right of cultivation for a specified crop:- If any land mentioned in Rule 27 emerges from the water in any year and is fit for cultivation it shall not be leased for cultivation. Provided however that in years of drought or scarcity, such lands may be assigned to persons of the Scheduled Castes, Scheduled Tribes, Harijans and Backward Classes with permission of the Collector on eksal basis, subject to the condition that the lessee- (1) Shall have no right to take water from the Government source; (2) Shall not use such manure as may spoil the tank water and (3) Shall, after the crop is harvested clear the land of all obstruction so that the usual collection of water may not be affected. Provided further that nothing in condition (1) of the first proviso shall apply to the tank bed lands in all the Districts of the Telangana area of the State till the onset of the monsoon or till the end of Fasli 1382 whichever is earlier, for cultivation of the irrigated dry food crops or fodder crops with help of the water taken from Government sources. Laoni Rules, 1950 9. The Tahsildar shall, on receipt of the report from the Girdawar[1] decide whether the request of the applicant for grant of land may be complied with, after giving due consideration to the following matters:- (a) If the land applied for is reserved for public purposes, such as sources of irrigation, lands with groves of trees where people are in the habit of assembling periodically for purposes of fairs, jatras or worship, or when the lands are treated as reserve forests or are set apart for the use of the Public Works Department or for manufacturing salt, or taking clay for purposes of potters trade, etc., the application shall be rejected and the applicant be informed accordingly within a month of the report from the Girdawar oof the halqa. G.O.Ms.No.1406, dated 25.07.1958 In exercise of the powers conferred by Section 172 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317F, the Governor of Andhra Pradesh hereby makes the following rules regulating to assignment of Government lands in suppression of all previous orders on the subject applicable to the Telangana Area:- I. Categories of land not available for assignment:- The assignment of the following classes of lands is prohibited:- (i) Porambokes, tankbeds, fore-shore of tankbeds, cattle stands, grazing lands and reserved lands reserved for depressed class members or for any public purpose, such as schools, play grounds, hospitals, maternity centres, reading rooms, extension of house sites, panchayat purposes, sources of irrigation, town sites and lands in the proximity of towns and village sites and lands in the proximity thereof; (ii) Lands set apart for pasturage for cattle, for grass reserves for any Government purposes or for the benefit of the public. An extent equal to atleast 10 per cent of the total cultivable area in a village be set apart as grazing lands for cattle; G.O.Ms.No.1724, Revenue Department, dated 26.08.1959. In exercise of the powers conferred by Section 172 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317F, the Governor of Andhra Pradesh hereby makes the following rules relating to assignment of Government lands in partial modification of the orders issued in G.O.Ms.No.1406, Revenue, dated 25th July, 1958 on the subject applicable to Telangana Area: I. Category of lands not available for assignment:- Poramboke lands shall be eliminated from the category of lands not available for assignment and they should be made assignable. VI. Eviction of occupier not eligible for assignment:- In case an occupier of land at the disposal of government is a landless poor person he shall be evicted from such excess extent if any over and above the area under his occupation which together with the lands owned by him would make up a total extent of acres 2-50 wet or five acres of dry land. The following principles should be observed in this connection. Old occupation: All unlawful encroachers should be served with notices and evicted. If the lands are termed reserved lands for specific purposes in Telangana eviction should be made from these lands without any consideration. If they are unobjectionable i.e., if they are fit to be given on cultivation, the objections of the encroachers should be heard after giving them notice and the following aspect should be enquired into; (i) the duration of the occupation: whether the Government was silent in respect of the occupation or has been taking steps for eviction; (ii) whether the encroachers has, at this own expense made additions of buildings, wells, kuntas or land gardens etc., if he has, the proportion of this expenditure to the value of the land and the reason why the Government was silent in the matter, or whether the additions were made in spite of raising objection; (iii) whether, despite, the occupation being illegal, the encroachers got an opportunity to occupy the land illegal or utilize it because of the attitude of the Government and whether he has made it his permanent source of livelihood; If, as a result of the enquiry of the above points, it is found that the encroacher has improved the land or has deemed it his permanent source of livelihood in good faith the land should be assigned to the encroacher subject to prescribed limits and he should be evicted from the portion in excess of those limits. The concessions of granting pattas should be confined only to land used for agricultural purposes but not to lands used for non-agricultural purposes. If his bona fides are not proved, he should be evicted from all the lands. New occupations:- If in future any one occupies or cultivates Government lands unlawfully; i.e., without prior permission he should be evicted without any consideration of the standing crop or improvements carried out by him. The conspectus of the above Rules to the case is as follows. Land forming part of tank bed of Government source of irrigation cannot be assigned by way of patta. This has two exceptions, namely, (i) till onset of monsoon, the cultivation of irrigated dry food crops or fodder crops is not prohibited even in Sikkam land, and (ii) if any land emerges from the water in any drought year and it is fit for cultivation, the same can be assigned to persons of Scheduled Castes/Scheduled Tribes/Backward Classes with permission of Collector on Eksal basis (lease for one year). Under Laoni Rules if the land applied for assignment is reserved as a source of irrigation, it cannot be granted. G.O.Ms.No.1406 also prohibits assignment of tank beds. Reading the three sets of Rules/guidelines harmoniously, it has to be concluded that ordinarily the assignment of tank bed land or source of irrigation is prohibited. But in certain given situations like emergence of land due to scarcity of rain in drought situation etc., the land can be assigned temporarily for lease. The counsel for the petitioner relies on Deep Chand v State of Rajasthan[2] and contends that where the power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are forbidden. According to him, the invocation of provisions of Encroachment Act itself is ex facie illegal in view of paragraph (VI) of the Rules promulgated vide G.O.Ms.No.1724, dated 26.08.1959. This submission cannot be accepted for three reasons. First, it is not disputed that MRO issued notices under Section 7 of the Encroachment Act to which petitioners submitted explanations. After considering the same, orders were passed under Section 6 of the Encroachment Act on 04.05.2005. They became final and petitioners were evicted from sikham land and possession was taken under cover of Panchanama on 11.05.2005. The revision preferred by petitioners is in respect of lands comprised in survey Nos.37 and 188. Secondly, no material is placed before this Court to show that petitioners ever raised such an objection either before the MRO, RDO or Joint Collector. Thirdly, a perusal of Rule (VI) (of G.O.Ms.No.1724) and Sections 6 and 7 of the Encroachment Act would show that the procedure for eviction of encroachers of the Government land or ineligible occupiers of the Government land is the same. If the land encroachment is followed, no prejudice is caused to them. It may also be noticed that Telangana Revenue Act does not exclude the applicability of Encroachment Act and as per Section 1 of the latter, the said Act applies the whole of State of Andhra Pradesh. 1. Short title and extent:- This Act may be cited as the Andhra Pradesh Land Encroachment Act, 1905. It extends to the whole of the State of Andhra Pradesh. Petitioners, as contended by respondents, again encroached sikham land and as per survey conducted by Mandal Surveyor, they were in possession of more than Acs.70.00. When they were evicted, again they encroached and dug borewells and fixed electrical motor pumps, and therefore, there was no other go for first respondent than to address second respondent to disconnect power supply and to address third respondent to register a criminal case of trespass of Government land and trespass of Government source of Irrigation. This is not specifically disputed or denied in the reply affidavit nor it is the case of petitioners that they were assigned sikham land by way of laoni patta even though the pattas mentioned the survey Number as 36/1. Petitioners’ counsel also contends that the land assigned to them is not sikham land and is situated at the far away place from the DPC fringe. If that be so, there is certainly no cause for petitioners to agitate the matter. Even otherwise, if petitioners were assigned sikham land as noticed supra, either under the provisions of Telangana Revenue Act, the Rules made thereunder or two sets of further rules in G.O.Ms.Nos.1406 and 1724 do not permit the assignment of tank bed land/tank beds to any person. Assistant Government Pleader submits that the private land of the petitioners was not subject matter of the writ petition and this Court is compelled to countenance the submission. The writ petition is therefore devoid of any merit and is liable to be dismissed. The writ petition, for the above reasons, is dismissed with costs. _______________ (V.V.S.RAO, J) 29.04.2010 Pln [1] Revenue Inspector [2] AIR 1961 SC 1527