Saturday, March 19, 2016

GOVERNMENT OF ANDHRA PRADESH Panchayat Raj & Rural Development Department – Rules relating to Andhra Pradesh Gram Panchayat (Protection of property) Rules – Orders



GOVERNMENT OF ANDHRA PRADESH
ABSTRACT

Panchayat Raj & Rural Development Department – Rules relating to Andhra Pradesh Gram Panchayat (Protection of property) Rules – Orders – Issued.
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PANCHAYAT RAJ AND RURAL DEVELOPMENT (Pts.IV) DEPARTMENT


G.O.Ms.No. 188                                                                                Dated: 21st July, 2011

Read the following:-

1. From the Hon’ble Supreme Court of India, Order dt.28.1.2011 in Civil Appeal No.1132/2011 SLPC.No.3109/2011 filed by Jagpal Singh and others versus State of Punjab and others.
2. From the CPR&RE, Hyd., D.O.Lr.No.2920/ CPR & RE/D2/2011, dt.2.4.2011 and Letter dt.17.05.2011.
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ORDER:

The Hon’ble Supreme Court of India, in its order dated 28.1.2011 in Civil Appeal No.1132/2011 @ SLP C.No.3109/2011 filed by Jagpal Singh and others versus State of Punjab and others has given directions to the all the State Governments that the State Governments to prepare scheme for eviction of illegal / unauthorized occupation of Gram Sabha / Gram Panchayats / Poramboke / Shamlat lands and the same should be restored to the Gram Sabha / Gram Panchayat for the common use of villagers of the Village. The said scheme should provide for the speedy eviction of such illegal occupants, after giving him/her a show cause notice and a brief hearing. Keeping in view said judgment of the Hon’ble Supreme Court of India, the Government have examined the matter in accordance with the provisions of the Andhra Pradesh Panchayat Raj Act’1994 (Act No.13 of 1994) and decided to issue the following rules.

The following Notification will be published in the Extra Ordinary Issue of the Andhra Pradesh Gazette, Dated 22.07.2011.

N O T I F I C A T I O N

In exercise of the powers conferred under sub-section (1) of Section 268 of the Andhra Pradesh Panchayat Raj Act’1994 (Andhra Pradesh Act No.13 of 1994), the Governor of Andhra Pradesh here by makes the following rules.

R U LE S
1. Short title:-
(i) These rules may be called the Andhra Pradesh Gram Panchayats (Protection of property) Rules, 2011.
(ii) These rules shall come into to force with immediate effect.

2. Classification of Gram Panchayat properties:-

(1) The lands belonging to Gram Panchayats shall be classified into three categories as follows:-
(i) CATEGORY- A: OWN AND ACQUIRED
All general roads and drains, cattle pounds, cattle sheds, common market areas, 10% open spaces in layouts, existing parks, lands purchased by the Gram Panchayats.

(ii) CATEGORY–B: GIFTS, DONATIONS, TRANSFER OF LANDS to
Gram Panchayats.

(iii) CATEGORY–C: VESTED WITH GRAM PANCHAYATS
All public water works, All public water courses, Springs, Reservoirs, Tanks, cisterns, Fountains, Wells, Stand Pipes and other water works (as per section 80 of Andhra Pradesh Panchayat Raj Act) Minor Irrigation Tanks, Tank bunds and all water bodies and vested porambokes (Grazing Lands threshing floors, Burning and Burial grounds, cattle stands, cart stands topes.

(2) The Gram Panchayats shall keep on accumulating properties (category A & B) year by year perpetually, as and when new Layout plans are approved in Gram Panchayat area.

(3) In respect of lands identified under categories A & B, the responsibility of protection of such lands lies solely with the Gram Panchayat.

(4) In respect of category ‘C’ lands, the Protection of such lands lies not only with Gram Panchayat but also with Revenue Department.

3. Procedure to be followed for protection of Gram Panchayat Properties:-

(a) Preparation of inventory:

(i) The executive authority (Panchayat Secretary) of the Gram Panchayat shall prepare inventory of landed properties of the Gram Panchayats based on FMB (Field Measurement Book) / FSA (Field Survey Atlas) and field inspections.

(ii) District Collectors shall instruct the Tahsildars to provide the above information to the executive authority (Panchayat Secretary).

(iii) Web based solutions may be evolved over a period of time to locate Gram Panchayat lands in the public domain.

(b) Validation in Gram Sabha and Gram Panchayat:
(i) After obtaining the land inventory details the executive authority (Panchayat Secretary) shall convene Grama Sabha and validate the information.

(ii) Later the Gram Panchayat shall convene its meeting to discuss and approve the land inventory details by passing a resolution.

(iii) If any objections are received in the Grama sabha and Grama Panchayat meetings, the same shall be settled as per the recorded evidence.

(c) Gazette publication and placing in web:

(i) The Gram Panchayat land inventory details approved by the Gram Panchayat shall be published in the District Gazette.

(ii) The information published in the district Gazette may be placed in the web domain and updated from time to time.

4. EVICTION OF ENCROACHMENTS:
(i) Where it is brought to the notice that any property of the Panchayat is under occupation of any persons the Executive authority (Panchayat Secretary) shall serve a notice to the party concerned and give a brief hearing before proceeding for eviction.

(ii) Suitable orders shall be passed by the Executive authority (Panchayat Secretary) before actual eviction takes place.

(iii) The Divisional Panchayat Officer will conduct a monthly review of these cases for protecting Gram Panchayat properties in his jurisdiction through monitoring the process of eviction. He will also give periodical reports to District Panchayat Officer, who will review the cases once in two months.

(iv) The Executive authority (Panchayat Secretary) may take necessary assistance from the police as per section 139 of the Andhra Pradesh Panchayat Raj Act’1994.

(v) The evicted property of the Gram Panchayat shall be protected by making fencing or by constructing a compound wall depending on the value of the property and by displaying a notice board.

(vi) A permanent register on encroachment of Panchayat properties shall be maintained in all Gram Panchayats and the same will be validated in the Gram Sabha and Gram Panchayat meetings at least twice in a year.

(vii) Aggrieved parties may file representations to the Executive authority (Panchayat Secretary) concerned by marking a copy to the Divisional Panchayat Officer.
(viii) The petitions filed by the aggrieved parties will be monitored and disposed of by the Divisional Panchayat Officer / District Panchayat Officer.

5. ADMINISTRATIVE ARRANGEMENTS :

A separate cell at district level in the Office of the District Panchayat Officer by name Gram Panchayat (Protection of properties) shall be constituted to monitor and protect Gram Panchayat properties from time to time.

6. The supporting staff for taking up these activities at the Divisional Panchayat Office / District Panchayat Office shall be provided as per necessity, from out of the available Junior Assistants to assist the Divisional Panchayat Officer / District Panchayat Officer in the eviction process from time to time.

7. At District level a High Power Committee shall be constituted with the following Officers to meet every three months and review the progress of identification and removal of encroachments.

1) District Collector – Chairman
2) Joint Collector – Member
3) Superintendent of Police – Member
4) Superintending Engineer (P.R) – Member
5) Superintending Engineer (R&B) – Member
6) Superintending Engineer (Irrigation) – Member
7) Assistant Director (Survey & Land Records) – Member
8) Assistant Director (Mines) – Member
9) District Panchayat Officer – Member Convenor

8. At Commissionerate level, a Vigilance & Enforcement Wing shall be constituted with Additional Commissioner / Deputy Commissioner to protect the Gram Panchayat properties and to monitor the activities of district level Cells.

9. Regulation of any matter:-.The Commissioner, Panchayat Raj and Rural Employment shall be the final authority in regard to the regulation of any matter arising out of the application of these rules.

(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH)

Dr. RAJIV SHARMA
PRINCIPAL SECRETARY TO GOVERNMENT


To
The Commissioner, Printing, Stationery and Stores Purchase, Chanchalguda, Hyderabad (with a request to publish in the Gazette Notification and furnish 500 copies immediately)

Copy to:

The Commissioner, Panchayat Raj and Rural Employment, A.P., Hyderabad.
All the District Collectors in the State.
All the Chief Executive Officers, Zilla Praja Parishad in the State.
All the District Panchayat Officers in the State
The P.S. to Special Secretary to C.M
The P.S. to Minister (PR&RWS)
The P.S. to Minister (Finance)
The P.S. to Special Chief Secretary to Govt. (Finance)
The P.S. to Principal Secretary to Govt. (PR)

Sc/Sf.


//FORWARDED::BY ORDER//

SECTION OFFICER

http://priswg.com/pr/pdfs/188-2011.pdf

India’s north-eastern states’ response to Supreme Court direction to restore common village land, speedily evict encroachers

commons 

The Supreme Court issued an important direction in 2011 in the Jagpal Singh & Ors vs State of Punjab & Ors to all state governments in the country that they should “prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/ Gram Panchayat/ Poramboke/ Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village.” All chief secretaries of state governments/union territories in India were told that the schemes should “provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing”.

Researchers Shalini Bhutani and Kanchi Kohli, and research associate Vikal Samdariya, examine how ‘commons’ issue was approached in the North East Region  in the bimonthly e-publication ‘The Case for the Commons’ (October 2014). Excerpts from an enquiry they made in some of the eight states in northeast India, — Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim and Tripura:

ASSAM: In compliance of Supreme Court (SC) order dated 28 January 2011 under Civil Appeal No. 1132 of 2011 @ SLP (Civil) No. 3109 of 2011, Extra Assistant Commissioner, Government of Assam filed a three-page affidavit in July 2011 before the SC. The State Government submitted that it has directed all Deputy Commissioners (DCs) and Principal Secretaries of Autonomous Councils to comply with the orders of the Hon’ble Supreme Court. The court was informed that the State Government has issued specific instructions to the DCs to form District Level Committees (DLCs) to identify the encroached Gram Sabha/Gram Panchayat/Parmboke/Shamlat land.

The DLCs were to comprise of Deputy Commissioners as chairperson and representatives of Panchayati Raj institutions and the concerned Revenue Officers as members. The State in its submission was hopeful that the above actions would enable the Government to prepare a scheme for speedy eviction of illegal occupants after giving a show cause notice and a brief hearing. The affidavit mentioned that the Government was constantly following up the matter with DCs and Principal Secretaries of Autonomous Councils to ensure compliance of the order of Hon’ble Supreme Court. The DLCs of some districts had identified encroached areas along with nature of encroachment over Panchayat/Gram Sabha land. Lastly, the State Government also submitted that it proposed to shortly convene a meeting of all DCs and Principal Secretaries of Autonomous Councils to review the specific actions taken by each DC and Principal Secretary of Autonomous Councils in this regard to comply with directions of the Supreme Court in this case.

MIZORAM: In compliance with the 3 May 2011 order of the SC in the ‘commons case’, the Mizoram State Government filed an affidavit dated 1 July 2011. It was filed by the Deputy Secretary of the Law and Judicial Department following a meeting held in the state on 8 June 2011. This meeting was called for by the Commissioner and Secretary, Revenue Department, to take necessary steps for implementing the SC’s directions. As stated in the affidavit, on thorough deliberations of various departments at the abovementioned meeting it was resolved that instead of framing new Act and Rules for eviction of illegal encroachments from the community land, it is more practical to suitably amend the Mizoram (Prevention of Government Land Encroachment) Act, 2001 (Act No. 7 of 2001) to include specific provisions related to community lands in the state.

It was felt that by adopting this strategy, a seamless continuity can be maintained in the enforcement and the desire objectives can be achieved expeditiously. Following the resolution the Revenue Department drafted the proposed Amendment Bill for changes in the Mizoram (Prevention of Government Land Encroachment) (PGLE) Act, 2001 and the same was to be placed before the State Legislative Assembly in session following July 2011.

Before the Legislative Assembly could pass the new law, executive action was taken in making Rules under the existing PGLE Act. The Rules of 2011 are mentioned in the reply to the RTI request, as one of the ‘list of action’ taken in compliance of the order of the SC. So it can be said that as a direct result of the SC order and to facilitate administrative action for its compliance, the Revenue Department in exercise of its executive powers under section 14(1) of the Act made these rules of procedures.

MANIPUR: In compliance with the Supreme Court Order dated 28 January 2011 and subsequent order dated 3 May 2011 the State of Manipur filed an affidavit on 22 July 2011 through its Commissioner, (Revenue) before the Court. It was submitted that the state has an existing law, namely the Manipur Public Premises (Eviction of Unauthorised Occupants) Act, 1978. This Act deals with the eviction of unauthorised occupants on Government’s Khas land. Sub-Section 2 of Section 1 states that the Act extends to areas across the state. It was further highlighted through this affidavit that the abovementioned Act was amended in 1985.

Through the amendment – The Manipur Public Premises (Eviction of Unauthorised Occupants) (Amendment) Act, 1985, the following proviso to sub-section 2 of section 1 was added: “provide(d) that it shall apply at the first instance to the local areas within Imphal Municipality but the Government may, by notification in the official Gazette, apply all or any of the provisions of this Act to such Municipality, small town or local body as may be specified in the notification.” It was stated that section 2 of the amended Act “Local Authority” includes Planning & Development Authority, Municipal Board, District Council, Block Samiti, Town Committee, Gram Panchayats, etc. The amendment dates back to 26 February 1985.
From the affidavit it also comes to light that on receiving a copy of the SC order, the Revenue Department had sought the advice of the Law Department of the State. The latter had advised:
  1. the Act of 1978 would not be enough, as the SC had asked for a separate scheme to be framed
  2. fact-finding would also be needed through the Deputy Commissioners of the concerned districts
All the Deputy Commissioners had been asked to furnish reports of whether the types of encroachment cases as mentioned in the SC order had taken place. The affidavit made clear the intent of the State to initiate action on receipt of reports of the Deputy Commissioners or concerned authorities on unauthorised occupation or encroachment in the areas coming under the Panchayati Raj Institutions. Though the Department shared with the Court that Deputy Commissioners of the districts had not submitted any reports till the date of filing of the said affidavit.

SIKKIM: According to the Office Report of the Assistant Registrar of the Supreme Court of India dated 26 July 2011, the Government of Sikkim (GoS) sent a reply to the Court’s orders of 28 January 2011 and 3 May 2011 through KD Rechung, the then Deputy Secretary of the Home Department, GoS. The reply to the court was in the form of a letter dated 7 June 2011, wherein it was stated that there has been no case of unlawful occupation of Gram Sabha/Gram Panchayat properties in the State of Sikkim, occasion for eviction of illegal occupation has not arisen.

The inputs of the senior officials of the Rural Management and Development Department of the GoS help to put the brief court submission of the state in perspective. As explained in personal communication with the editors dated 27 October 2014, in Sikkim the land is classified based on ownership as forest land (82%) or private land. There is no community-owned land in that sense. The forest land is further classified as reserve forests, khasmal and goucharan. The khasmal and goucharan forests have been set aside to meet the bonafide needs of the local community like firewood, fodder, etc. and in that sense have a community use though government-owned.

The Rural Department officials of GoS further explain that private lands are further classified as panikhet (irrigated), sukhabari (dry field), alainchi bari (large cardamom) and banjo (barren). The reserve forests are being conserved for meeting non-consumptive use like ecotourism, recreation and providing ecosystem services and ecological functions. The quality of these reserve forests has shown visible improvement over the last decade with a ban in timber harvesting, grazing ban and restrictions on other commercial activities. In their view, there is a need to further strengthen the community-based, sustainable management of the khasmal and goucharan forests by deepening forest decentralisation.

http://counterview.org/2014/11/07/indias-north-eastern-states-response-to-supreme-court-direction-to-restore-common-village-land-speedily-evict-encroachers/

Thursday, March 17, 2016

In Other Courts: High court of Allahabad - Nuruddeen Vs. Deputy Director Of Consolidation, Gonda & Others



eLegalix - Allahabad High Court Judgment Information System (Judgment/Order in Text Format)

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH


Court No. - 21

Case :- CONSOLIDATION No. - 525 of 2013

Petitioner :- Nuruddeen
Respondent :- Deputy Director Of Consolidation, Gonda & Others
Counsel for Petitioner :- Ambrish Tripathi
Counsel for Respondent :- C.S.C.
Hon'ble Sibghat Ullah Khan,J.
 
Even though petitioner has got absolutely no right to challenge the order dt. 30.6.1986 passed in Reference No. 113 (Sant Ram Vs. Gram Sabha) by D.C.C. Gonda, after 27 years, however, it is quite evident that through order dated 30.6.1986 the then D.D.C., Gonda gifted the Gaon Sabha property to respondent no. 3 Sri Sant Ram. It is experience of the court that during consolidation gaon Sabha / State property is openly looted and liberally donated by consolidation authorities to private persons. In this regard reference may be made to para 22 to 27 of U.P. Awas Evam Vikas Parishad, Lucknow Vs. Lajja Ram, 2012, (3) AWC 2226, which are as follows: 

"The provision of presumption is provided under Section 114 of Evidence Act, which contains some illustrations also. The said section along with illustrations (e) & (f) is quoted below: 

"114. Court may presume existence of certain facts.- The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case.
 
The Court may presume-
(e) that judicial and official acts have been regularly performed;
(f) that the common course of business has been followed in particular case;"
 
If the presumption of entry in favour of plaintiff's father for four or seven years is to be presumed then presumption of correctness of discontinuance of entry for 40 years will also have to be drawn.
 
Life of law has not been logic, it has been experience (O.W. Holmes). This principle applies with greater force on presumptions and human conduct. I have heard and decided hundreds of matters pertaining to agricultural land and my experience is that Gaon Sabha property has been looted by unscrupulous persons on a very large scale by manipulation in the revenue records and forging of orders particularly of consolidation courts. The modus operendi is that a very old entry or copy of order is produced like a rabbit from the hat of a magician and its resumption or recording is sought. (underlining supplied)
 
Supreme Court in Civil Appeal No.1132 of 2011, Jagpal Singh and others Vs. State of Punjab, in Para-20 observed as follows:
"20. In Uttar Pradesh the U.P. Consolidation of Holdings Act, 1954 was widely misused to usurp Gram Sabha lands either with connivance of the Consolidation Authorities, or by forging orders purported to have been passed by Consolidation Officers in the long past so that they may not be compared with the original revenue record showing the land as Gram Sabha land, as these revenue records had been weeded out. Similar may have been the practice in other States. The time has now come to review all these orders by which the common village land has been grabbed by such fraudulent practices."

 
In Dina Nath Vs. State of U.P. 2009 (108) R.D. 321, I held that not making any efforts for getting the name of the petitioner entered in the revenue records on the basis of alleged patta by Gaon Sabha for 29 years proved that no patta was executed. I issued directions to all the Collectors to reopen all such cases where names of private persons were entered in the revenue records over Gaon Sabha land. Matter was carried to the Supreme Court in the form of S.L.P. (Civil) C.C.4398 of 2010 Dina Nath Vs. State. The Supreme Court decided the matter on 29.03.2010 and quoted almost my entire judgment in inverted commas and approved the same.
 
Accordingly, it is held that whenever a person comes along with the case that Gaon Sabha land was allotted to him or some order was passed by any Court in his favour declaring his right over Gaon Sabha land or some revenue entry was in his favour long before but during last several years his name is not recorded in the revenue records then an irrebuttable presumption amounting to almost conclusive proof must be drawn to the effect that allotment order or entry is forged."

The matter in the instant case relates to Gata No. 940/1( new no. 590/812) area 0.06 acre and plot no. 1367M (new no. 66/14) area 0.15 acre, which were entered as banjar and Nai parti in the revenue records. In the impugned order it is mentioned that Pradhan supported the respondent no. 3 Gaon Sabha property is not personal property of Pradhan.
 
Accordingly, Collector Gonda is directed to immediately issue notice to respondent no. 3 Sant Ram S/O Sita Ram, R/O Village - Pipra Adai, Pargana - Boorha Payar, Tehsil - Mankapur, District - Gonda and thereafter decide the matter in accordance with the above authorities and if decision is taken in favour of the Gaon Sabha, respondent no. 3 must be forthwith evicted and damages at the rate of Rs. 10,000/- per hectare per year shall also be recovered from him as arrears of land revenue and the property shall be entered as Gaon Sabha property. 

The entire exercise must positively be concluded within three months from today, failing which, court will take a serious view of the matter. If the exercise is not completed within three months, petitioner may file recall application in this case. It is further held that petitioner has also got absolutely no concern with the property in dispute.
 
Writ petition is, accordingly, disposed of.
Office is directed to supply a copy of this order free of cost to Sri Vinay Bhusan, learned Additional C.S.C.
Order Date :- 4.9.2013
S. Kumar

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Deputy Registrar(Copying).

In Other Courts: High court of Allahabad - Lucknow Vikas Manch Trust Aurangabad Vs. State Of U.P.








eLegalix - Allahabad High Court Judgment Information System (Judgment/Order in Text Format)

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. - 3

Case :- REVIEW PETITION No. - 214 of 2015

Petitioner :- Lucknow Vikas Manch Trust Aurangabad Khalsa Bijnor Lko.
Respondent :- State Of U.P.Throu.Prin.Secy.Deptt.Revenue & Ors.3208(M/B)15
Counsel for Petitioner :- Anuj Dayal,Saima Khan

Hon'ble Shri Narayan Shukla,J.
Hon'ble Rajan Roy,J.
 
The petitioner has sought review of the order dated 21.4.2015 passed by us in Writ Petition No.3208(MB) of 2015, Lucknow Vikas Manch Trust v. State of U.P. & ors.
 
Heard Ms. Saima Khan, learned counsel for the review petitioner.
 
Ms. Khan has referred a case of Jagpal Singh & ors. v. State of Punjab & ors., Civil Appeal No.1132 of 2011 arising out of Special Writ Petition (Civil) CC No.19869 of 2010, in which the Hon'ble Supreme Court held that long duration of illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already school dispensary or other public utility land.
 
We are informed that on the land in dispute the road has been constructed, which is definitely for the purpose of public utility. We have dismissed the writ petition after recording the statement of the learned counsel for the opposite party no.4 that the land in suit is situated within the residential area and a road has also been constructed over it.
 
Therefore, we are of the view that the present case is absolutely governed under the exceptional clause as provided by the Hon'ble Supreme Court in the case of Jagpal Singh (Supra). In the result we do not find any error in the order dated 21.4.2015 passed by us in Writ Petition No.3208(MB) of 2015, Lucknow Vikas Manch Trust v. State of U.P. & ors.
 
The review petition is accordingly dismissed.
Order Date :- 25.5.2015
A.Nigam
(Rajan Roy,J.) (Shri Narayan Shukla,J.)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Deputy Registrar(Copying).