* THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY + Writ Petition No.22569 of 2010 % DT.28.12.2010 # K.Munikrishnaiah …Petitioner Vs. $ Nallamani Kalva Gram Panchayat and others … Respondents ^ Counsel for the Petitioner: Sri T.Lakshmi Narayana ! Counsel for respondent Nos.2 to 4: AGP for Revenue Counsel for respondent No.1 : None appeared < Gist: > Head note: ? Cases referred: THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY Writ Petition No.22569 of 2010 DT.28.12.2010 Between: K.Munikrishnaiah … Petitioner And Nallamani Kalva Gram Panchayat and others … Respondents Counsel for the Petitioner: Sri T.Lakshmi Narayana Counsel for respondent Nos.2 to 4: AGP for Revenue Counsel for respondent No.1 : None appeared The Court made the following ORDER: ORDER: This writ petition is filed for a mandamus to declare the action of respondent No.2 in erecting warning board in Survey No.35 admeasuring Ac.0.70 cents showing the same as burial ground without its conversion as such by following due process of law, as illegal and arbitrary. The petitioner sought for a consequential direction for disposal of his representation, dated 31.01.2010, for grant of assignment in respect of lands admeasuring Ac.0.40 and Ac.0.70 cents in Survey Nos.30 and 35 respectively of Nallamani Kalva Village, Tirupathi Rural Mandal, Chittoor District. The petitioner claims that his father was in occupation of the above-mentioned lands for a number of years, that in recognition of his possession, the respondents issued B-Memos and that the lands were classified as assessed waste and kalva poramboke. The petitioner further pleaded that on 29.05.1981, eksaal patta was granted in favour of his father and that after the death of his father, he is in possession of the same. He further pleaded that when certain third parties sought to interfere with his possession, he was constrained to file two civil suits, in O.S.Nos.396 of 1993 and 627 of 2003, in the Courts of I Additional Junior Civil Judge, Tirupathi and Principal Junior Civil Judge, Tirupathi, and that both the suits were decreed in his favour on 23.09.1996 and 14.08.2007 respectively, by rendering clear and categorical findings that he is in possession and occupation of the lands. The petitioner alleged that the Gram Panchayat allotted Survey No.362 for burial ground, that one Sri Janachaitanya Housing Private Limited unauthorizedly sold away the said land by converting it into plots and that in order to make a provision for burial ground, the respondents have proposed to earmark the land in his occupation as burial ground. The petitioner has earlier filed W.P.No.18854 of 2004, which was dismissed by this Court as premature with the observation that so long as the assignment granted in his favour is in force, he shall not be dispossessed. It is the further pleaded case of the petitioner that he has been making representations to respondent No.4 for grant of assignment and that most recent of these representations is dated 31.01.2010. A counter affidavit has been filed by respondent No.2, wherein he has admitted that the petitioner’s father was in occupation of the lands as an encroacher and therefore, B-Memos were issued and penalties were collected from him. While not denying the fact that the petitioner has filed two suits, respondent No.2 stated that neither the Government nor the revenue officials are parties to the said suits. He has further averred that Survey No.30 admeasuring Ac.0.30 cents is classified as Mundlapudi Kalva and Survey No.35 admeasuring Ac.1.38 cents is classified as Kalva Poramboke, which are water course porambokes and that in pursuance of a direction given by this Court in W.P.No.20551 of 2009 filed by one Sri Kakuluri Munirangaiah, for survey and demarcation of his land in Survey No.35, the entire land was surveyed by the Mandal Surveyor in the presence of the petitioner therein and other officials, and after completing the survey and demarcation of the boundaries, a notice board was put up showing the details that the subject land belongs to the Government and the trespassers will be prosecuted as per law. Respondent No.2 denied allotment of Survey No.362 for burial ground and pleaded that the said property remains as river poramboke. Respondent No.2 emphasized the need for protection of water bodies and referred to certain judgments of the Supreme Court in this regard, apart from circular, dated 20.03.2004, issued by the District Collector, Chittoor imposing ban on assignment of Government land for agricultural purposes. The following undisputed position emerges in the pleadings of the rival parties. That the petitioner’s father had been in occupation of the two pieces of the land referred to above comprised in Survey Nos.30 and 35 since a long time and his possession was never objected to and the fact that B-Memos and penalties were collected from him shows that he was in permissive possession of the property, albeit by payment of penalty. The petitioner has obtained two decrees in two civil suits from the competent Court, which establishes his possession. Though the Government is not a party to the said suits, the respondents have not disputed the authenticity of the said decrees. At any rate, the respondents have not raised the plea that the petitioner is not in occupation of the property. While in the counter affidavit respondent No.2 has maintained that both the pieces of land are classified as Mundlapudi Kalva and Kalva Poramboke respectively, in the board erected by him, it was stated that the lands are registered as Kalva Poramboke, but are being used as burial ground. To my mind, the contents of the board with reference to use of the land as burial ground are in contradiction with the pleas contained in the counter affidavit. It is not the pleaded case of respondent No.2 that Kalva Poramboke is converted into burial ground by following legal process. So long as this is not converted as burial ground, the same cannot be treated as such. While the necessity of preserving water courses cannot be disputed, what this Court is unable to comprehend is as to how the respondents have acquiesced in the possession of the petitioner’s father during his life time and in the petitioner’s possession later. If the respondents were serious about the protection of these water courses, one fails to understand as to what prevented them from evicting the petitioner’s father by following due process of law. Far from taking such measures, he was allowed to remain in possession by issuing B-Memos and collecting penalties, and he was granted eksal patta on 29.05.1981, which clearly demonstrates that though the classification remained as Kalva Poramboke, the petitioner is allowed to remain in possession. The fact that the land is being put to agricultural use by the petitioner from the time of his father, shows that while the classification of the land remained as a water course on records, the same was being cultivated by raising crops. The respondents cannot therefore ignore ground realities and take a stand merely on the basis of revenue record. The photographs filed by the petitioner do not show existence of any irrigation channel, but on the other hand they show existence of an agricultural crop with some huge trees. Respondent No.2 has not specifically adverted to the petitioner’s representations for grant of assignment. So long as the representations are not disposed of, the petitioner cannot be unceremoniously evicted from the land in question in view of long standing possession of his family from the time of his father. In the light of the above findings, the writ petition is disposed of with a direction to respondent Nos.2 to 4 to consider the representations of the petitioner for grant of assignment of the lands by keeping in view the fact that though the lands are classified as Mundlapudi Kalva and Kalva Poramboke, they were put to agricultural use for over years. Till the disposal of the petitioner’s representations, he shall not be evicted from the lands in question. Subject to the above directions, the writ petition is disposed of. As a sequel to disposal of the writ petition, W.P.M.P.No.28784 of 2010 filed by the petitioner for interim relief is disposed of as infructuous. (C.V.NAGARJUNA REDDY, J) Date: 28.12.2010 Note: LR copies to be marked (b/o) VGB