T.Lakshmi Theresamma vs Greater Visakhapatnam

M.Satyanarayana Murthy, J

This writ petition is filed under Article 226 of the Constitution of India, claiming the following relief:

"To issue writ of Mandamus declaring the action of the 4th respondent in passing the impugned proceedings dated 09.02.2018 in so far as directing the 3rd respondent to take advance possession of petitioner land to an extent of Ac.4- 59 cents in Sy.No.371/P of Kapuluppada Village, Bheemunipatnam Mandal, Visakhapatnam District as illegal arbitrary and violative of Articles 14, 16, 21 and 300- A of Constitution of India and consequently set-aside the same and direct the respondents not to interfere with the peaceful possession and enjoyment of the petitioner over the said land."

The brief facts of the case are that, Respondent Nos. 1 & 2 are jointly involved in a flagship scheme of the Government called Affordable Housing Scheme. The second respondent is the Executive Agency of the Scheme and the fourth respondent being the custodian of the government land, allotted certain land for the said scheme. Vide proceedings dated 09.02.2018, the fourth respondent directed the third respondent to take advance possession of the land, in which the petitioners land of an extent of Ac.4-59 cents in Sl.No.6 in Sy.No.371/1 of Kapuluppada Village, Bheemunipatnam Mandal, Visakhaptnam, is also included.

The petitioners husband - Sri T. Nandayya served in the Armed Forces between the years 1944 to 1961, participated in World War-II and discharged from service on 06.10.1961. On his application, the then Tahsildar Bheemunipatnam assigned land admeasuring Ac.4-59 cents in Sy.No.371/1 of Kapuluppada Village, Bheemunipatnam Mandal, Visakhapatnam District on MSM,J WP_12757_2018 17.11.1992 vide Patta No.225-5. The land was carved out of main Sy.No.314 and it was formed out of sloppy hill poramboke. The petitioners husband made application to the then Tahsildar, Bheemunipatnam on 11.05.1996 to mutate his name in the revenue records, issue pattadar passbooks and title deeds. The Tahsildar ignored the application of the petitioners husband and did not take any action. He further made similar applications on 18.09.2000 and 08.09.2005, but the fourth respondent ignored the request of petitioners husband. While so, the petitioners husband died on 19.09.2005. Subsequent to his death, the petitioner also made application to the fourth respondent - Tahsildar on 23.12.2009. Inspite of repeated requests from the petitioner and her husband, the fourth respondent - Tahsildar had neither rejected nor accepted the request of the petitioner.

As the petitioner became old, she proposed to sell the land and approached the Sub-Registrar, Bheemunipatnam along with prospective buyer. However, the Sub-Registrar, Bheemunipatnam refused to receive the document of conveyance stating that the land is recorded as Government Land and included in the prohibited properties list under Section 22-A of the Registration Act and refused to register the same.

Aggrieved by the same, the petitioner approached the Court and filed W.P.No.30568 of 2010 which was disposed of vide order dated 07.12.2010 directing the Sub-Registrar, Bheemunipatnam to receive the document presented and to register the same in accordance with the provisions of Registration Act, 1908. However, the prospective buyer did not come forward to purchase the same MSM,J WP_12757_2018 stating that, unless No Objection Certificate is obtained from the revenue authorities, he cannot purchase the same, as he would be suffering a lot due to misery and hardship at every stage of dealing with the land subsequent to registration of the same. Therefore, the petitioner made an application to the respondents for issuing No Objection Certificate to sell the land after expiry of 10 years from the date of assignment to alienate the same in accordance with G.O.Ms.No.1117, Revenue (Assignment) Department, dated 11.11.1993.

On receipt of the order of the Court, the fourth respondent sought report from Respondent Nos. 5 & 6 with respect to the assignment made to the petitioners husband of the said land and also the records pertaining to the said land. In response to the instructions of the fourth respondent, the sixth respondent submitted report on 04.04.2012, categorically stating that the said land was assigned to the petitioners husband and they are in possession of the same for the last 20 years. The fifth respondent also reported to the fourth respondent vide letter dated 13.06.2012. The fourth respondent thereafter passed the impugned order dated 12.02.2013 rejecting the application made by the petitioner dated 19.09.2011 for issuance of No Objection Certificate with respect to the subject land. Aggrieved by the same, the present writ petition is filed requesting to issue direction as stated above.

The District Collector/Respondent No.4 herein issued proceedings impugned in the writ petition dated 09.02.2018, proposing to distribute the land to houseless poor and the MSM,J WP_12757_2018 petitioners land is admeasuring Ac.4-59 cents in Sy.No.371/1 of Kapuluppada Village, Bheemunipatnam Mandal, Visakhapatnam District. The proceedings with respect to petitioners land is mentioned as follows:

"Sy.No.371/P [Ac.4-59 cts] of Kapuluppada Village (Bheemunipatnam):

It is reported that an extent of Ac.4-59 cts in Sy.No.371/1 (carved out from Sy.No.314) classified as Hill Poramboke of Kapuluppada village was kept in Government land parcels and handed over to VUDA for safe custody. At present the land was vacant and covered with fencing. The said land is at a distance of 1km from Marikavalasa Junction and suitable for housing purpose."

From the above, it is clear that the land of this petitioner is classified as Hill Poramboke of Kapuluppada Village; it was kept in Government land parcels and handed over to VUDA for safe custody. At present the land is vacant and covered with fencing and it is at a distance of 1 km from Marikavalasa junction and suitable for housing purpose. Therefore, aggrieved by the direction issued in the proceedings dated 09.02.2018, questioned the same on the ground that, when the land is fenced and when the petitioner is contending that the petitioner is in possession of the property, possession of the property cannot be taken, except by following due process of law.

Though, it is alleged that, the land is in safe custody of VUDA, it is not in the safe custody and it is in the custody of the petitioner alone. But, the material on record is not sufficient to conclude that this petitioner is in possession and enjoyment of the property.

MSM,J WP_12757_2018 In any view of the matter, the land admeasuring Ac.4-59 cents in Sy.No.371/1 of Kapuluppada Village, Bheemunipatnam Mandal, Visakhapatnam District is classified as Hill Poramboke as per Serial No.6 of the impugned proceedings. When the land is classified as Hill Poramboke, the same cannot be assigned to anyone. In G.O.Ms.No.510 Revenue (Lands-1) Department dated 30.12.2019 itself, the Government authorized the District Collectors not to propose any lands belongs to Endowments, Educational Institutions, Wakf or any other religious related lands, environmentally sensitive and fragile areas such as, tank beds, river beds, other water bodies and hillocks with afforestation etc., for house site purposes.

The petitioner being wife of T. Nandaiah, an Ex- servicemen applied for No Objection Certificate. As the respondents rejected her request, the order is under challenge in W.P.No.24159 of 2016. In the said writ petition, the petitioner claimed to be in possession and enjoyment of the property after death of her husband - T. Nanadaiah and it is stated that the land is fenced. The factum of fencing the land is admitted by respondent in both the counter affidavits filed in both the writ petitions and it is submitted that, the land of the petitioner is classified as Hill Poramboke.

As stated above, in view of G.O.Ms.No.510 Revenue (Lands-1) Department dated 30.12.2019, any lands belongs to Endowments, Educational Institutions, Wakf or any other religious related lands, environmentally sensitive and fragile areas such as, MSM,J WP_12757_2018 tank beds, river beds, other water bodies and hillocks with afforestation etc., cannot be assigned for house site purposes, in view of the prohibition under B.S.O.15(4). But, the respondents are not intending to assign the land. Therefore, B.S.O.15(4) has no application, but G.O.Ms.No.510 dated 31.12.2019 is still applicable. The land that can be made available under the Land Pooling Scheme can also be identified for alienation of the land to the Below Poverty Line people. But, there is a difference between grant of patta under B.S.O. 21 and alienation of land. The alienation cannot be equated with an assignment under B.S.O 21. When once the Government proposes to alienate the land by executing a deed of conveyance, collecting registration fee and stamp duty, with a clause permitting them to alienate the same, it creates any amount of suspicion prima facie and it is far from fair disposal of the land. Thus, it is outright sale of the property by executing deed of conveyance. Undisputedly, the land is down gradient, since it is a part of the hill, which is liable to be protected. Apart from that, in Smt. S. Maheshwari v. State of Andhra Pradesh1, this Court held that, since the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty, maintaining delicate ecological balance, they need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution and finally concluded that hillocks cannot be allotted /distributed under the housing scheme. Even by applying the principles laid down in the above judgment, I find that allotment of W.P. Nos.20185 and 7988 of 2020 dated 28.10.2021 MSM,J WP_12757_2018 land of this petitioner admeasuring Ac.4-59 cents in Sy.No.371/1 of Kapuluppada Village, Bheemunipatnam Mandal, Visakhapatnam District towards house sites is illegal, arbitrary and violative of Article 48-A and Article 51-A(g) of the Constitution of India and principle laid down by the Apex Court in Hinch Lal Tiwari v. Kamala Devi2 and M.C.Mehta v. Kamal Nath and Others3, that the Government as well as the citizens have a constitutional obligation to protect environment and ecology. Accordingly, the point is answered in favour of the petitioner and against the respondents.

In the result, writ petition is allowed, declaring the action of the fourth respondent in passing the impugned proceedings dated 09.02.2018 directing the third respondent to take advance possession of the petitioners land of an extent of Ac.4-59 cents in Sy.No.371/P of Kapuluppada Village, Bheemunipatnam Mandal, Visakhapatnam District, as illegal, arbitrary and consequently set- aside the same; while directing the respondents not to interfere with the peaceful possession and enjoyment of the petitioner over the subject property and not to assign or allot to anyone including houseless poor. No costs.

Consequently, miscellaneous petitions pending, if any, shall also stand closed.