THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.16844 OF 2016
ORDER:
This Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief:
".....to issue a Writ, Order or direction more particularly one in the nature of Writ of mandamus, declaring the action of the 2nd respondent in issuing the notice Under Section 6 of The Land Encroachment Act, 1905 (No.3 of 1905) in respect of Land in Survey Nos.9, 12-1 and 12-2, 13-2 and 13-3, 20-1 to 20-5, 23-1 to 23-3, 24-1, 25-1 to 25-4, 33-2 to 33-5 and 33-10 of Duvvam Village, Garividi Mandal, Vizianagaram District, Andhra Pradesh even without referring and without considering the representations submitted by the petitioner on 15.3.2016 and 27.4.2016 as arbitrary, illegal, without jurisdiction and in violation of the well- settled principles of natural justice and pass such other order or orders...."
The petitioner company acquired different extents of land in Sy.Nos.9, 12-1 and 12-2, 13-2 and 13-3, 20-1 to 20-5, 23-1 to 23-3, 24-1, 25-1 to 25-4, 33-2 to 33-5 and 33-10 of Duvvam Village, Garividi Mandal, Vizianagaram District, Andhra Pradesh under different registered sale deeds i.e., document Nos.1229/1979, 944/1979, 931/1979, 930/1979, 923/1979, 921/1979, 663/1979 and 485/1975. Either the petitioners or their predecessors have been in possession and enjoyment of the subject lands since long time.
The respondent revenue authorities have issued pattadar passbook and title deed in respect of some of the lands vide Khata No.317 and UAN No.0222033317 and remaining area was declared as part of estate under Estate Abolition Act and Survey and Settlement operation vide G.O.Ms.No.212, Rev (JA-2) Department, dated 06.05.2013, was taken place. 2
The 2nd respondent issued a notice dated 04.02.2016, under Section 7 of the A.P.Land Encroachment Act, 1905, Act No.3 of 1905 (for short 'the Act') demanding the petitioner to surrender the subject lands with the structures therein, to the Government. The said notice was served upon the representative of the petitioner on 11.03.2016. On receipt of the said notice, a representation was submitted by the petitioner on 15.03.2016, bringing to the notice of the 2nd respondent about the nature of the lands that is zeroyti lands and having purchased the same under different sale deeds, requested the 2nd respondent to withdraw the said notice and drop further proceedings.
Though a reply to the show-cause notice under Section 7 of the Act was received, the 2nd respondent without even referring to the reply/representation, issued a notice mechanically under Section 6 of the Act, dated 13.04.2016 and the same was served on the petitioner's company on 27.04.2016. On receipt of the notice under Section 6 of the Act, again submitted another representation, but noting was considered and issued a cryptic notice under Section 6 of the Act, which is impugned in the writ petition, on the ground that the notice issued without even referring to the explanation submitted to the show-cause notice and without passing any order under Section 7 of the Act is illegal and arbitrary and requested to issue a direction.
The 2nd respondent filed counter denying the material allegations explaining the history of the case as follows:
"Duvvaram village of Garividi Mandal is an Estate village of Vizianagaram Zamin Estate. This village was taken over by the Government under the provisions of E.A.Act, 1948 on 07-09-1949 3 along with main estate. After several court litigation from District Court to Supreme Court of India, Survey Settlement Operations were conducted and Settlement records were introduced w.e.f.1-7-2015. As per the Settlement Fair Adangal of Duvvam Village, Village Revenue Records have been prepared. During field azmoish, it is found that the following Government lands in Duvvam Village are in possession and enjoyment of Ms.Facor Alloys Limited, Garividi.
Village Sy.No and Classification Extent
S.D.No.
Duvvam 9 Poramboku 4.55
Duvvam 12-1 Poramboku 0.62
Duvvam 12-2 Poramboku 5.63
Duvvam 13-2 Poramboku 7.51
Duvvam 13-3 Poramboku 0.52
Duvvam 20-1 Poramboku 4.17
Duvvam 20-3 Poramboku 7.81
Duvvam 20-4 Poramboku 1.90
Duvvam 23-1 Poramboku 5.13
Duvvam 23-2 Poramboku 2.47
Duvvam 23-3 Poramboku 3.71
Duvvam 24-1 Poramboku 19.46
Duvvam 25-1 Poramboku 0.65
Duvvam 25-3 Poramboku 1.63
Duvvam 25-4 Poramboku 4.94
Duvvam 33-2 Poramboku 0.13
Duvvam 33-3 Poramboku 0.62
Duvvam 33-4 Poramboku 1.17
Duvvam 33-5 Poramboku 5.45
Duvvam 20-5 Poramboku 4.97
Duvvam 33-10 Poramboku 1.72
Total 84.76
As per the filed Azmolish, all the above Government Lands are under the Encroachment of M/s.Facor Alloys Limited, Garividi. In order to protect the Government Lands, Notice U/s.7 of the L.E.Act, 1905 has been issued to encroacher Company on 04.02.2016. In response to this notice, the encroacher Company has submitted a representation on 15.03.2016 stating that the above lands were purchased vide sale deed No.1229/79, 944/79, 931/79, 930/79, 923/79, 921/79, 663/79 and 485/75 and also they have got pattadar pass books for the part of the land vide Khata No.317 and the remaining area was declared as our own land as per E.A.Act, 1948. The encroacher company could not 4 submit any document in support of their claim. Hence treating the representation has no validity and Notice U/s.6 of the L.E.Act, 1905 has been issued on 13.04.2016. This notice was served on the encroacher company on 27.04.2016. In response to this notice also the encroacher company has submitted another representation on 27.04.2016 reiterating the same contents of the previous representation without enclosing any documentary evidence in support of their claim. The encroacher company has been an opportunity to produce all the documents in support of their claim on 30.05.2016 vide this office Rc.No.118/2016, S.A. Dt.24.05.2016. But the company has not produced any document and also not attend before the Tahsildar Garividi 30.05.2016.
Taking into consideration of the both the representations of the encroacher company has been rejected and also advised to approach the Revenue Divisional Officer, Vizianagaram within one month from the date of the rejection of their request vide this office Rc.No.118/2016, S.A.Dt.03.06.2016.
Instead of filing appeal before the Revenue Divisional Officer, Vizianagaram under the provisions of L.E.Act, 1905, the Writ Petitioner has filed this Writ Petition before the Hon'ble High Court and obtained the following interim orders: "Meanwhile, there shall be status quo with regard to the land in Sy.Nos.9, 12-1, 12-2, 13-2, 13-3, 20-1 to 20-5, 23- 1 to 23-3, 24-1, 25-1 to 4, 32-2 to 5 and 33-10 situated in Duvvam Village of Garividi Mandal, Vizianagaram District, Andhra Pradesh."
It is further contended that the land is belonging to the Government and the petitioner has nothing to do with the property and thereby the notice issued and orders passed, if any, by the authorities, under the Act or in accordance with law and sought vacating the interim order granted by this Court on 26.05.2015 in W.P.No.16844 of 2016 by a separate application.
Heard Sri Ganta Rama Rao, learned senior counsel representing learned counsel for the petitioner on record and learned Assistant Government Pleader for Revenue.
The main grievance of the petitioner is that though the petitioner submitted a representation/explanation to the notice dated 04.02.2016, bringing to the notice of the 2nd respondent, certain facts of issue of notice under Section 7 of the Act vide representation dated 15.03.2016, the respondents did not consider the same and even without referring the same issued notice under Section 6 of the Act and thereafter notice dated 5 04.02.2016 directing the respondents to vacate the land within the specified time. A bare perusal of notice under Section 6 of the Act shows that there is no reference about the explanation/representation submitted by the petitioner to the notice issued under Section 7 of the Act. A notice is issued in mandatory compliance of Section 7 of the Act calling for explanation from the petitioner. It is the duty of the 2nd respondent to conduct necessary enquiry and pass appropriate orders, affording an opportunity to the petitioner. Instead of passing reasoned order and communicating the same, issued a notice even without referring the explanation/representation submitted by the petitioner to the notice issued under Section 7 of the Act and such issue of notice under Section 6 of the Act without conducting any enquiry without passing a reasoned order is contrary to the principle laid down by the learned Single Judge of the Composite High Court in Kadiyala Sudershan and others Vs. Government of Andhra Pradesh1, which reads as follows:
"A person in possession of the Government land is liable to be evicted under the provisions of the Act. The Act has laid down the procedure for evicting such person. As a first step towards this direction, a show-cause notice under Section 7 of the Act requires to be given to the person in occupation of the land. After receiving the notice, an order needs to be passed under Section 6 of the Act. If the competent authority is satisfied that the person in possession of the land is liable to be evicted, he has to issue a notice in the prescribed form. Though the provisions of Section 6 of the Act do not in express terms enjoin on the competent authority to pass a speaking order, the very fact that Section 7 of the Act envisages a show-cause notice pre-supposes that the competent authority has to deal with the explanation/ objections filed by the person in possession of the land. Unless a reasoned order is passed, the person in occupation of the land does not know as to why an order of eviction is passed against him. Further, an appeal under Section 10 of the Act is envisages by the Act. Unless the order contains reasons, the appellate authority will not be in a position to examine the validity or otherwise of the order and decide the appeal."
1 2013 (6) ALT 42 6 Applying the principle laid down by the learned Single Judge of Composite High Court to the present facts of the case, it can safely be concluded without any hesitation that the notice issued under Section 6 of the Act is in contravention of the principle laid down in the judgment referred above.
Hence, the notice issued under Section 6 of the Act is liable to be set aside, as no order was passed as mandated under Section 7 of the Act after conducting enquiry, considering the representation/explanation submitted to the show-cause notice issued by the petitioner to the notice under Section 7 of the Act.
In view of my foregoing discussion, the notice issued under Section 6 of the Act is hereby set aside, while granting liberty to the 2nd respondent to adhere to the procedure laid down by the Composite High Court in Kadiyala Sudershan and others Vs. Government of Andhra Pradesh and take appropriate action thereon by affording reasonable opportunity to the petitioner, in accordance with law.
In the result, the writ petition is allowed, declaring the notice dated 13.04.2016, issued under Section 6 of the Act as illegal, arbitrary and in violation of principles of natural justice and the same is hereby set aside while granting liberty to the 2nd respondent to pass appropriate order based on the representation/explanation submitted to the show-cause notice issued under Section 7 of the Act by affording reasonable opportunity to the petitioner and pass appropriate order in accordance with law. There shall be no order as to costs. 7
As a sequel, miscellaneous applications pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 27.01.2022 VSL 8 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION NO.16844 OF 2016 Date: 27.01.2022 VSL