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Gram Panchayat, Mandapaka and ors. Vs. District Collector, W.G. District, Eluru and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1708 of 1978
Judge
Reported inAIR1982AP15
ActsAndhra Pradesh Gram Panchayats Act, 1964 - Sections 83(3), 85(1) and 85(3); Constitution of India - Article 133(1)
AppellantGram Panchayat, Mandapaka and ors.
RespondentDistrict Collector, W.G. District, Eluru and ors.
Appellant AdvocateG.R. Subbarayan, Adv.;Govt. Pleader
Respondent AdvocateN.C.V. Ramanujacharyulu, Adv.
Excerpt:
.....clear whether the above silting up had taken place by the date of the commencement of the andhra gram panchayats act, 1964, or subsequent thereto. and if it does so, whether the gram panchayat has any right to complain? (2) subject to such restrictions and control as may be prescribed, the gram panchayat shall have the fishery rights in any water work vested in it under sub-section (1), the right to supply water from any such work for raising seed beds on payment of the prescribed fee, and the right to use the adjacent land appertaining thereto for planting of trees and enjoying the usufruct thereof or for like purpose. then again, in each case, it would be a question of fact what precisely is the area which was covered by water-spread, on the date of commencement of the act? be that..........of ac.1-50 cents out of r.s. no.111, in favor of the 4th respondent, an ex-serviceman. though the gram panchayat passed a unanimous resolution condemning the move and protesting against the diversion of communal property to private use, the respondents are not desisting from implementing their action. the gram panchayat, therefore, approached this court by way of this writ petition, questioning the power and authority of the respondents 1 to 3 to assign any portion of the tank in favour of the 4th respondent.2. in the counter-affidavit filed on behalf of the respondents, it is stated that, on inspection by the deputy collector, it was found that the tank in r.s. no.111, though registered in the revenue accounts as 'tank poramboke', is silted up an was not being used for any communal.....
Judgment:

Jeevan Reddy, J.

1. This writ petition has been referred to a Bench by Jayachandra Reddy, J., for an authoritative pronouncement on the scope of Section 85 of the Andhra Pradesh Gram Panchayates Act, 1964 (hereinafter referred to as 'the Act'). It arises in the following circumstances:-

In Mandapaka village there is a small tank in R.S. No.111, with an extent of Ac.3-84 cents. According to the Gram, Panchayat, which is the writ petitioner herein, the tank is used for the purpose of drinking water, and fro cattle. The petitioner says that the village, which is having a very large Ayacut and population, exclusively depends upon four small tanks in the village for the supply of drinking water and fro cattle. By virtue of Section 895 of the Act, the said tanks, including the tank in R.S. No.111, according to the petitioner, vested in it, and the revenue authorities have no power or authority in law to assign any portion thereof to any one. In spite of the said legal position, the petitioner complains, the Revenue Divisional Officer, Kovvur, asked the Tahsildar, Tanuku, to send a a proposal for assigning an extent of Ac.1-50 cents out of R.S. No.111, in favor of the 4th respondent, an ex-Serviceman. Though the Gram Panchayat passed a unanimous resolution condemning the move and protesting against the diversion of communal property to private use, the respondents are not desisting from implementing their action. The Gram Panchayat, therefore, approached this Court by way of this writ petition, questioning the power and authority of the respondents 1 to 3 to assign any portion of the tank in favour of the 4th respondent.

2. In the counter-affidavit filed on behalf of the respondents, it is stated that, on inspection by the Deputy Collector, it was found that the tank in R.S. No.111, though registered in the Revenue accounts as 'Tank Poramboke', is silted up an was not being used for any communal purpose, He, therefore, recommended that excluding the water spread area, the remaining area may be assigned to landless poor persons. Accordingly, assignment was made in favour of the 4th respondent, and on a Ch,. Anjaneyulu. It is stated that R.S. No. 111 has been duly withdrawn from the control of the Gram Panchayat by a notification under sub-section (3) of S.85 of the Act, and the land converted from 'Tank Poramboke' to 'Ayana'. It is clarified that no such proposals are pending with respect to other tanks in the village. So far as the tank in R.S. No.111 is concerned, the Gram Panchayat has no say in the matter, it is submitted, in view of the circumstances stated above.

3. When the matter came up before the learned single Judge, he was satisfied, on a perusal of the report of the Tahsildar and the material placed before him, that except to an extent of 1 Acre, the tank is silted up and that, the silted up portion is in unauthorised occupation of certain persons and was not serving any communal purpose. He also noticed that there is no irrigation under this tank and that, it is away from the village. The learned Judge observed further 'it is also not he case of the Gram Panchayat that the tank is being used for drinking purposes or any other communal purpose'. The learned Judge then posed the question whether, even under the above circumstances, Section 85(1) of the Act applies. Though the learned Judge was of the opinion that it does not apply, still, having regard to the fact, that the matter is of general importance, he referred the same to the Bench.

4. We shall, therefore, proceed on the basis that, though R.S. No.111 with an extent of Ac.3-84 cents is registered as 'Tank Poramboke' in the Revenue records, only an extent of Ac. 1-00 is covered by the water, whereas the remaining extent is silted up and is under the occupation of certain villagers who are described in the reports of the Revenue authorities as 'rich landlords of the village'. The record placed before us does not make it clear whether the above silting up had taken place by the date of the commencement of the Andhra Gram Panchayats Act, 1964, or subsequent thereto. It may also be noticed that prior to the 1964 Act, the Madras Village Panchayats Act, 1950 was in force in the Andhra Area, Section 77 whereof contained an identical provision. Section 77 of the 195- Act also vested the tanks used for communal and public purposes in the village, in the Gram Panchayat was constituted under the 1950 Act, soon after the commencement of the said Act. The maternal, however, does not disclose whether the tank had become silted up to the above extent even by the commencement of the 1950 Act, or whether it become silted up later. In the writ petition also it is not alleged that t he silting up has taken place subsequent to 1950, or 1964, as the case may be, therefore, we shall proceed on the assumption that even by the date of commencement of the 1950 Act, a major portion of the tank in R.S. No.111 had become silted up and that, water was being stored only in an extent of about 1 Acre, at all relevant points of time, viz, 1950, 1964, and as on the date of the filing of the writ petition. On the above basis, three questions arise for (I) whether, under S.85 of the Andhra Pradesh Gram Panchayats Act, 1964, the entire extent of Ac,3-84 cents, described as 'Tank Poramboke' in the village records, vests in the Gram Panchayat, or only an extent of 1 Acre where the water is stored; (ii) what is the scope of vesting under sub-section (1) of Section 85 of the Act, and whether the Government is entitled to divest the Gram Panchayat and resume the control and possession of the tank? and (iii) whether the Government, having issued the notification under sub-sec. (3) of Section 85 of the Act, is entitled to divert the said land for other purposes, including assignment: and if it does so, whether the Gram Panchayat has any right to complain?

5. Section 85 of the Act reads as follows:-

'85. Vesting of water works in Gram Panchayat:-

(I) All public water courses, springs, reservoirs, tanks, cisterns, fountains, wells, stand-pipes and other water works (including those used by the public to such an extent as to give a prescriptive right to their use) whether existing at the commencement of this Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the Gram Panchayat or otherwise for the use or benefit of the public, and also any adjacent land not being private property, appertaining thereto shall vest in the Gram Panchayat and be subject to its control:

Provided that nothing in this sub-section shall apply to any work which is, or is connected with, a work of irrigation or to any adjacent land appertaining to any such work. (2) Subject to such restrictions and control as may be prescribed, the Gram Panchayat shall have the fishery rights in any water work vested in it under sub-section (1), the right to supply water from any such work for raising seed beds on payment of the prescribed fee, and the right to use the adjacent land appertaining thereto for planting of trees and enjoying the usufruct thereof or for like purpose.

(3) The Government may, by notification in the Andhra Pradesh Gazette, define or limit such control or may assume the administration of any public source of water supply and public land adjacent and appertaining thereto after consulting the Gram Panchayat and giving due regard to its objections, if any.'

6. The contention of the learned Government Pleader is that, under the above Section, what vests in the Gram Panchayat is only the tank and not the land which may, at one time, have been part of the tank but which had become silted up and was no longer being used for communal purposes on the date of the commencement of the Act. The stress is upon the words 'all public water courses, springs, reservoirs, tanks..... whether existing at the commencement of this Act or afterwards made, laid or erected....' The argument is that, unless there is a tank, which is being put to communal or public use, it does not vest in the Gram Panchayat, because the object of S.86 (85?) is to vest such tanks or water courses of public utility in the Gram Panchayat for the benefit of the community of the village as such, and for being maintained for that purpose. Accordingly, it is argued that if, in a given case, a land which was once a tank, has become totally silted up and no water is stored therein on the date of the commencement of the Act, no part of such land vests in the Gram Panchayat, for the simple reason that no tank exists on the date of commencement of the Act. On the contrary, the contention of the learned counsel for the petitioner is that once a land is registered as a 'tank' or 'Tank Poramboke' as the case may be, in the village revenue records, the whole of it vests in the Gram Panchayat, and it is the duty of the Gram Panchayat not only to maintain it but also to remove the silt, or undertake other work necessary for restoring the tank for public use. The stress is upon the words 'and also any adjacent land not being private property, appertaining thereto.......', occurring in sub-sec. (1) of Section 85.

7. On a consideration of the rival contentions, we are inclined to accept the construction contended for by the petitioner. We are of the opinion that, if on the date of the commencement of the Act a land is registered as 'tank' in the village revenue records, then it would vest in the Gram Panchyat on that date, notwithstanding the fact that water is stored only in a part thereof, the remaining part having become silted up. This would be so even in a case where the whole of the land has become silted up and no water is being stored therein. Even in a case where the land, having become silted up is in the occupation of encroachers, the land vests in the Gram Panchayat statutorily, and it is the duty of the Gram Panchayat to take steps for evicting the encroachers, and to restore the tank to serve its intended communal purpose. It must be remembered that, under section 2 of the A.P. Land Encroachment Act, 1995, all such tanks vest in the Government. It is only by virtue of Section 85 of the Gram Panchayats Act that they are vested in the Gram Panchayat if its is said that only the portion where the water is stored, vests and not the silted up portion, then the Gram Panchayat would have difficulty in restoring the tank, or extending the area of water spread. Then again, in each case, it would be a question of fact what precisely is the area which was covered by water-spread, on the date of commencement of the Act? It would lead to endless controversies and complications, and would only tend to put a premium upon encroachers and other persons holding an interest adverse to the community of the village. Section 85(I) not only vests the tanks in the Gram Panchayat, but also any adjacent land, not being private property, appertaining thereto. In our opinion, if there is any silted uptaining to the tank, and not being private property it vests in the Gram Panchayat. As we have said earlier, even in an extreme case where the whole of the tank has became silted up, it still vests in the Gram Panchayat, and it is the duty of the Gram Panchayat to restore the same and make it available for communal use. For the above reasons, we hold that, on the date of the commencement of the Act, the whole of R.S. No.111 with an extent of Ac.3-84 cents, vested in the Gram Panchayat under Section 85 of the Act.

8. The second question is : what is the scope and extent of vesting under sub-section (1) of Section 85? As pointed out by the Supreme Court in F & V Merchants Union v. Improvement Trust, Delhi, : [1957]1SCR1 , the term 'vesting' has a variety of meaning which has to be gathered from the context in which it has been used. It may mean full ownership, or only possession for a particular purpose, or may mean clothing the authority with power to deal with the property as an agent of another person or authority. In other words, merely because Section 85 (1) vests such tanks in the Gram Panchayat, it does not follow automatically that the Gram Panchayat becomes the absolute owner of the tank and is entitled to put it to such use as it deems fit. The meaning and content of the vesting has to be gathered from the context. In the case before the Supreme Court, Sections 45 to 48 provided for the vesting of properties belonging to the Government, in the Improvement Trust. The latter was also empowered to sell or lease the property so vested in it. However, certain limitations were placed upon the said power, viz. the Trust was empowered to sell the property on its own authority, only where the sale was for full market value, and which did not exceed Rs.25000/- In other cases, sanction of the Commissioner or the Government, as the case may be, had to be obtained and in every case, the forms of conveyances and leases by the Trust had to be approved by the Government. In view of the above restrictions, the Court held that it was not an absolute vesting and that, the Trust was merely constituted an agent of the Government, in accordance with the provisions of the Act and the Indenture.

9. A reading of Sec. 85 (1) makes it clear that all public water-courses, springs, reservoirs, tanks, and other water works, including those used by the public to such an extent as to give a prescriptive right to their use, are vested in the Gram Panchayat, and placed under its control. It cannot obviously mean conferring full title, because they are public water-courses and tanks, wherein the public may have acquired a prescriptive right to their use. Sub-sections (2) and (3) make it clear that, it shall be open to the Government, even after the vesting, to place restrictions upon the Gram Panchayat in the matter of enjoyment and use of such tanks, etc. Indeed, sub-section (3) ex-pressly empowers the Government to resume the administration of any such tank, or to define or limit the control which is vested in Gram Panchayat. The provisions of sub-sections (2) and (3) are inconsistent which a total vesting of ownership in the Gram Panchayat. Reading Section 85 as a whole, it appears that what is vested is only the possession and control over such public inter-courses and tanks etc., for being used for the benefit of the community. It does not amount to total divesting of the Government, nor does it amount to undoing. or abolition of the rights which the public may have acquired therein by the date of vesting. It would , therefore follow that, once a notification is issued under sub-section (3) the Gram Panchayat becomes divested of the possession and control vested in it and thus goes out of the picture completely. In other words, the possession and control of the tank reverts to the Government subject, of course, to the rights of the community to its use. In this case, such a notification under sub-section (3) has been issued, a copy whereof of found in the records. The correctness or validity of the said notification is not in question in this writ petition. Indeed, it is brought to our notice that the said notification was questioned by the Gram Panchayat by way of a writ petition, but the same was dismissed by this Court on the ground that alternative remedies are available to the Gram Panchayat. Be that as it may, for the present purpose we have to proceed on the assumption that the notification is good. If so, the Gram Panchayat goes out of the picture. The Gram Panchayat being a statutory body, and being capable of and bound to act only in accordance with the statute, would have no say in the matter. Accordingly, we hold that the present writ petition filed by the Gram Panchayat is not maintainable. It may be noted that the notification under Section 85 (3) of the Act was issued even prior to the filing of the present writ petition.

10. In view of the opinion expressed by us on the second question, it is really not necessary for us to express any opinion on the question raised by the learned counsel. We have already observed that once a notification under sub-section (3) of section 85 is issued, the gram panchayat goes out of the picture completely, and the tank vests in the Government, subjects, of course, to the rights of the community to its use. The Government being the owner of the tank, is entitled to put in to such use as it thinks appropriate, subject always to the rights of the community. It cannot be suggested that once there is a thank, the Government is bound to maintain it as a tank for all times to come. If the purpose which is served by the thank is met by some other source, or by some other means, there can be nothing preventing the Government from putting such tank to some other use. It may even be entitled to breach or fill up the tank and put it to such better use as it thinks appropriate. It is, however, obvious that, in case of any such diversion or change, the persons affected if any, would be the members of the community of the village as such, and it is they alone who can complain, if any of their rights are prejudicially affected. Inasmuch as this writ petition is filed only by the Gram Panchayat, and since the issuance of the notification under section 85 (3) is a complete answer to this write petition, it is not necessary for us to pursue this line of enquiry further.

11. Before parting with this writ petition, we are constrained to observe that, from the facts and circum stances placed before us it appears that the Gram Panchayat is really trying to fight the battle of, what are described as the rich landlords of the village, who are said to be occupying portions of R. S. No.111. All these years the Gram Panchayat never thought of taking any action against the said encroachers. But, when the Government is seeking to evict them assign the land to deserving persons, like the 4th respondent, the Gram Panchayat has come forward with this writ petition. We see no bona fides in this writ petition. Now that the Government has resumed control over the tank, it is for the Government to decide whether the present capacity of the tank is sufficient to meet the needs of the community , or whether the tank requires to be widened or extended, as the case may be. If, however, it is of the opinion that the needs of the villages are met with present capacity, nothing prevents it from giving effect to assignment orders, by evicting the encroachers according to law.

12. The writ petition, accordingly, fails and is dismissed with costs. Advocate's fee Rs. 200/-.

Mr. G. R. Subbarayan, learned counsel for the petitioner makes an oral request for grant of leave to appeal to the Supreme Court. We do not , however, find any substantial question of general importance which in our opinion requires to be considered by the Supreme Court. The leave is accordingly refused.

13. Petition dismissed.


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