NARASIMHA RAO Vs. VENKATA NARASAYYA

JUDGEMENT

(1.) These two second appeals are against two decrees passed in O. S. No. 1301 of 1971 and O.S. No. 965 of 1971 both on the file of the District Munsiff Court, Guntur and confirmed in the first appeals by the District Judge, Guntur. O.S. No, 1301 of 1971, which is a more comprehensive suit was filed by one Narasaiah in a representative capacity against the State of Andhra Pradesh, represented by the Dist. Collector, Guntur, Pedavadlapudi Gram Panchayat, V. Narasimhaswamy, Anne Narasimha Rao, the Tahsildar, Guntur and other villagers, who had impleaded themselves as party defendants. O,S. No. 965 of 1971 was filed earlier by the same plaintiff. O S. No. 1301 of 1971 is a suit in substance for a declaration that the land covered by Demarcation Nos. 416 and 417 of Pedavadlapudi village is a Tank Poramboke which the State Government has no power to assign. As the Gram Panchayat and the State Government were not made parties to the aforesaid O.S. No. 965 of 1971, earlier filed, the plaintiff filed the Second Suit O.S. No. 1301 of 1971 impleading the State Government and the Gram Pranchayat. Both the suits were decreed by the Courts below. Against these decrees, the present two appeals have been filed.

(2.) D. No. 416 of Pedavadlapudi covers an extent of Ac. 2.34 cents and D. No. 417 of the same village covers an extent of Ac, 3.37 cents. These lands are registered as Tank Porambokes in the Government records. Out of Ac. 3,37 cents in D. No. 417 the Government had assigned Ac. 3.03 cents to a political sufferer one Narasimhaswamy, who is the 3rd defendant in O.S. No. 1301 of 1971. The said Narasimhaswamy in his turn sold Ac. 2.67 cents out of Ac. 3.37 cents assigned to him to the 4th defendant in O.S. No. 1301/1971 Anne Narasimha Rao under a registered sale deed dated 19-7-67 marked as Ex, B-2 and Ac. 0.36 cents to another person under registered sale deed dated 10-8-1967 marked as Ex. B-1, It appears that the Government had also assigned about Ac, 1.97 cents to the aforesaid Narasimhaswamy from and out of the land covered by O. No, 416. The suit was filed on the basis of allegation that these alienations made by the State Government interfere with the rights of the villagers of Pedavadlapudi preventing them, their cattle and carts from reaching their lands, situated around these Survey numbers. The Commissioner who has been appointed by the court, reported that the tank situated in the aforesaid two survey numbers is essential for the Community and that there is no other public source of water for men, cattle etc., and that the bunds are absolutely essential for passage of carts, yokes, ploughs etc. The defendants have not filed any objections to this report of the Commissioner. The plaintiff relying upon Section 85 of the A.P. Gram Panchayat Act pleaded that the State Government has ao power to assign this tank poramboke to the 3rd defendant or to any other person. After framing the necessary issues, the courts below tried these suits more on questions of law than on facts which are in any case not much in dispute. The courts below held that the judgments of this Court reported in Narisi Ready vs. Government of A.P. and N. Venkataratnam & Others vs. State of A.P. which ruled that the Government has no power to assign these tank porambokes that vest in the Gram Panchayats under section 85 of the Gram Panchayat Act, apply to the facts of these suits.

(3.) It is an undisputed fact in this case that Pedavadlapudi tank, situated in the aforesaid Survey Numbers 416 and 417, is registered as a tank poramboke in the records. From that fact it follows that the village community of Pedavadlapudi have a right vested in them to the user of that tank. But, that right of the community is now made subject to the provisions of Section 85 of the A.P. Gram Panchayat Act. Section 85 of the A.P. Gram Panchayat Act reads as follows: 85, Vesting of water works in gram panchayats : (1) All public water-courses, springs, reservoirs, tanks, streams, foundations, wells, stand-pipes and other water works (including those used by the public to such an extent as to give 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 anywork which is, or is connected with, a work of irrigation or to any adjacent land and appertaining to any such work. (2) The gram panchayat shall have the fishery rights in any water works vested in it under-sub section (1) the rights 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. The language of Section 85 of the A.P. Gram Panchayat Act would clearly show that proprietory rights and interests in these tanks would vest in the Gram Panchayat and the Gram Panchayat also would have the right to control their user. Sub-clause (3) of Section 85 however detracts from this declaration of law made by section 85 (1) by giving the Government overriding power over the 'user' which sub-section (1) gives to Gram Pancbayat along with vesting of the title to these tanks in the Gram Panchayat. But, it must be admitted that the rights of the Gram Panchayat, both as to the user and title are always subject to the paramount rights and interests of the village community. The same is the case with respect to the rights of the Government. Neither the Government nor the Gram Panchayat can therfore interfere with those rights of the village community. As the Gram Panchayat is not attempting in any way to encroach upon the rights of the village community we need not further consider with the fights of the village community vs. Government in this case. It is only the Government's action of assignment that is creating interests in private parties adverse to the interests of the village community. The question is how far that is legal.