SMT. SAGADAPU VIJAYA... V. THE STATE OF ANDHRA ...

Heard learned counsel for the petitioner and the Government Pleader for Revenue.

The petitioner prays for Mandamus declaring the action of 2nd respondent in not

receiving and registering the document presented for registration in respect of terraced
house and tiled house property bearing Dr.No.58-80, Municipal Assessment No.
1092005419, in Survey No.162/2 (part), Salur Village and Municipality, Vizianagaram
District, as illegal and contrary to the provisions of the Registration Act,1908 (for
short the Act).

The case of petitioner is that the subject property was and is the private property of
individuals and the same is covered by sale agreement dated 08.03.2015.
The petitioner intends to purchase the property. The Sub-Registrar/2nd respondent has
refused to entertain the document for registration on the ground that Survey
No.162/2(part) is recorded as Gramakantam. The further objection of 2nd respondent in
this behalf is Gramakantam is Government property and the property is included in the
prohibitory list maintained under Section 22-A of the Act. The inclusion of Gramakantam
lands in prohibitory list is in terms of G.O.Ms.No.100 Revenue (Assn.I) Department
dated 22.02.2014. Through G.O.Ms.No.56 Revenue (Assn.I) Department dated
16.02.2015, the orders issued in G.O.Ms.No.100 Revenue (Assn.I) dated 22.02.2014
are cancelled. The effect of cancellation is that either the Tahsildar or the Sub-Registrar,
on the ground that a particular survey number is classified as Gramakantam, shall not
refuse to receive a document for registration.

The petitioner is compelled to approach this Honble Court complaining against refusal

to receive or inclusion of Gramakantam land in prohibitory list on the strength of
executive orders or communication from the Revenue Department to Sub-Registrar.
The effect of executive order or the communication from Revenue Department is prima
faice presumptuous and not in line with the applicable statutes. The inclusion of village
site/Gramakantam in prohibitory list is on the strength of Resettlement Register (RSR)
or other revenue records. The RSR was prepared after conducting settlement
operations under Board Standing Order-I. A close scrutiny of the RSR would disclose
that Column No.4 deals with Government or inam. The purpose of furnishing details
under column 4 of RSR is to identify where the lands are situated. G means part of
Government village and Government levied land revenue. On the other hand, inam
means the land was covered by estate tenures. So the details in column 4 of RSR
cannot be treated as conclusion ownership of Government on Gramakantan lands.

Likewise, Section 3(ii) of the Survey and Boundaries Act, 1923 defines Government

land, to mean - any land not forming an estate or portion thereof.

Section 3(i) defines estate to mean

(a) any permanently settled estate whether a zamindari jaghir, mitta or palaiyam;

(b) any portion of such permanently settled estate which has been separately registered
in the office of the Collector;

estates specified above in clauses (a)(b) and (c), which is held on a permanent under
tenure.

The Gramakantam land is not included in the above two definitions. The word Grama
Kantam (Telugu) and Grama Natham (Tamil) are used in revenue records
in Andhra Area which were part of composite Madras State. Both in the estate villages
and ryotwari villages i.e., villages controlled by the Government, houses, huts etc., were
constructed on the land specially earmarked for the said purpose. Most of these lands
are in occupation of private individuals.

Grama Kantam, according to P.Ramanatha Aiyars Law Lexicon, means a part of ground
in a village for building huts upon. Grama Natham (Tamil) as ground set apart on which
a house of a village may be built.

The expression Grama kantam is also defined as a spot of ground in a village for
building huts upon and Grama Natham is defined as ground set apart on which the
houses of a village may be built. (See Glossary of Judicial and Revenue Terms of
British India

- 1855).
The other provision of law which has bearing on the consideration of the issue is
Section 2 of the A.P. Land Encroachment Act, 1905, which reads thus:

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 flowing
water, and all lands, wherever situated, save in so far as the same are the property

(a) of any Zamindar, poligar, mittadar, jagirdars, shrortriemdar or any person claiming
through or holding under any of them, or

(b) of any, person paying shist, Kattubadi, jodi, poruppu or quitrent to any of the
aforesaid persons, or

(c) of any person holding under ryotwari tenure, 2 [ * * *] 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 house site 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.

Board Standing Order 21 Part 4 reads as under:

4. Occupation and cultivation of village site: In conformity with long established practice,
the Government permit the occupation of village site held as private property without
assessment subject to the following conditions. The total extent of site that may be held
free of assessment, inclusive to the area covered by buildings and other structures, is
thirty five cents, within this area, cultivation with flowers, vegetables, or fruits will not be
charged; but cultivation of crops other than flowers, vegetables or fruits will be charged
at the highest dry rate of the village. Any area in excess of thirty five cents in the private
ownership of any person is liable to a charge at the highest dry rate of the village,
whether it is cultivated or not and whether the cultivation is with flowers, vegetables and
fruits or with other crops. In order to avoid the necessity for measurement of petty
extents the minimum charge for cultivation within the permitted extent of thirty five cents
or for cultivation beyond thirty five cents shall be one rupee. The charge should be
entered in village Account No.2-A, but the notice of demand should be in Form No.1.
The forms of notice applicable to encroachments should not be used for the imposition
of assessment on land under the sub-paragraph.

The cultivation of any portion of the village site which is not privately owned is an
undoubted abuse and should be dealt with under Act III of 1905 in accordance with the
instructions contained in Standing Order No.26, unless action is barred or appears
inadvisable owning to long possession. Such land should not be assigned for cultivation
unless action is taken under the next paragraph.

From a reading of the definitions/sections and relevant portion in BSO, land revenue is
to be levied when village site is cultivated in excess of an area of Ac.0.35 cents. The
occupied Gramakantam could never be treated as land belonging to Government, much
less can be equated with communal poramboke lands, such as thrashing poramboke,
grazing grounds, burning and burial grounds, cattle stands, crop stands etc. The issue
whether Gramakantam/Gramanatham is a land owned and held by Government or
private parties have any right and interest therein has been the subject matter of a
series of authoritative pronouncements. The details of Gramakantam lands are
forwarded to Sub-registrar for inclusion in prohibitory list for registration under Section
22-A of the Registration Act. Such inclusion is prima facie illegal and contrary to the
decisions on the point. Through communication of details the Revenue/Registration
Departments are unsettling the settled issues on the rights of parties vis--vis
Gramakantam land. The Gramakantam land inoccupation of an individual, the
Government cannot claim right, or title and insist upon inclusion in prohibitory list.

In Palani Ammal v. L.Sethurama Aiyangar , it is held as follows: The second contention

is that the plaintiff is not the owner or at any rate is not entitled to maintain this suit in
respect of Gramanatham lands. In view of the decision of Wadsworth, J.,
in Chinnathambi Goundan v.

Venkatasubramania Iyer (1939) M.W.N. 207 this contention also seems to me

untenable. Gramanatham is not communal property in the sense in which thrashing
floor or burning grounds or other property is communal, that is property reserved for the
use of the community. Gramanatham if it is unoccupied is assigned from time to time by
the proprietor whether it is in zamindari area or in an inam village and this practice was
referred to by the learned Judge (Wadsworth, J.) in Chinnathambi Goundan v.
Venkatasubramania Iyer (1939) M.W.N. 207. This, if I may say so with respect, is the
practice obtaining in the zamindari area and also in inam villages.

4. The village in which the suit site is situated is an inam village and the owners of the
village (inamdars) would be entitled to all the porombokes except communal
porombokes; and this not being a communal poromboke, the plaintiff would be entitled
to institute the suit for recovery of possession.

In Palani Ammal s case (1 supra) it is held as under: Gramanatham is not a communal

property in the sense in which thrashing floor or burning grounds or other property is
communal that is property reserved for the use of the community. Grama Natham a land
in the occupation of the individual in possession of the gramanatham cannot be
interfered and it could very well resist ejectment and also institute a suit in ejectment
against the trespasser.

In A.K.Thillaivanam v. The District Collector, Chengai Anna District , it is held as under:

..The Village Natham is a land which never vested with the respondents and they have
no right to it. Admittedly, when the land has been classified as village Natham, it is
obvious that no portion of the land vests with the respondents. The admitted
classification is village Natham and merely because the petitioners have converted the
same into agricultural lands, no right could accrue to the respondents even after
conversion.

In The Executive Officer, kadathur Town Panchayat v. V.Swaminathan and others, it

is held as under:
Further Grama Natham is defined in the Law Lexicon as ground set apart on which the
house of village may be built. Similarly, Natham land is described in Tamil lexicon
published under the authority of University of Madras to the effect that it is a residential
portion of a village; or portion of a village inhabited by the non-Brahmins; or land
reserved as house sites; etc. The properties once classified as gramanatham/
gramakantam, the Government cannot claim right over the said property. This concept
has been elaborately discussed in the decision reported in S.Rengaraja Iyengar V,.
Achikannu Ammal and another . The relevant portion reads as follows: In order that a
land may property be described as house- site within the meaning of that expression in
section 2 of 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 sites, buildings or
sheds may when necessary be constructed. But whether such 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. Madras Act III of 1905 is made
applicable to an estate when it is notified under Madras Act III of 1905 is made
applicable to an estate when it is notified under Madras Act XXVI of 1948. The provision
as to vesting under section 3(b) of Madras Act XXVI of 1948 should be read so as to be
in consonance with the provisions regarding the applicability of the enactments relating
to ryotwari areas which are expressly made applicable to estates notified under the Act.

It is contended that, in relation to buildings, specific provision is made under section 18

of Act XXVI of 1948 and that, consequently, unless a house-site can be brought within
the ambit of section 18, such house-site should be held to be property as to which title
gets transferred to the Government under section 3(b). Section 18 deals, in my
opinion, with building wherever they may be situate, whether in the gramanathams, or in
ryoti lands or pannai lands or waste lands. Section 18 has no particular application to
buildings or house-sites in a gramanatham. 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.

Therefore, occupied Gramakantam by its nature or classification does not belong to the

Government to include the Gramakantam in the prohibitory list. Either under the Madras
Estates Land Act or in the Estates (Abolition and Conversion into Ryotwari) Act
exceptions have been carved out and Gramakantam is one of the categories of land
which is not included in the Government lands. This Court is of the opinion that refusing
to entertain document for registration on the ground that the subject property is
classified as Gramakantam amounts to illegal refusal and consequently the writ petition
is ordered by directing the Sub-registrar/2nd respondent to receive the document
presented by the petitioner for registration of subject property without reference to the
classification of petition land as Gramakantam, consider the same and pass orders for
registration, if the document is otherwise compliant. No order as to costs.

Miscellaneous petitions, if any, pending in the writ petition shall stand closed.