K.Sunder Rao vs The District Collector,
2021 Latest Caselaw 1814 AP

     IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI


 HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                      &
              HON'BLE MR. JUSTICE C. PRAVEEN KUMAR

                     WRIT APPEAL No.312 of 2019

                    (Taken up through video conferencing)


K.Sunder Rao S/o. Sukhadev,
Aged 26 years,
Occ:Children's Readymade shop,
K.T.Road, Kasibugga Palasa Mandal,
Srikakulam Road and 30 others                          .. Appellants

                                   Versus

The District Collector,
Srikakulam District,
Andhra Pradesh and 9 others                            ..Respondents

Counsel for the appellants : Mr.Ravi Kiran representing Mr.K.Manik Prabhu

Counsel for respondents 1 to 4 : Mr.G.L.Nageswara Rao G.P. for Revenue Counsel for respondents 5 to 10 : --

ORAL JUDGMENT Date: 06.04.2021

(Arup Kumar Goswami, CJ)

Heard Mr.Ravi Kiran, learned counsel representing Mr.K.Manik

Prabhu-learned counsel for the appellants. Also heard Mr.G.L.Nageswara

Rao, learned Government Pleader for respondents 1 to 4.

2. By an order dated 27.06.2019 passed by the learned single Judge,

the writ petition filed by the petitioners/appellants came to be dismissed.

The case of the writ petitioners is that the respondents were trying to evict

them without notice from their shops situated in Sy.No.207/2 of Kasibugga

Palasa Municipality, Srikakulam District. It is stated that 34 petitioners had

put up small wooden bunks or shops and carrying on their professions, such

as, barbar, laundry, shoe making, tailoring, electrical repairs, watch and cell

mechanic and small tea stalls etc., and that survey No.207/2 is away from

road margin. It is also stated that Kasibugga village was formerly known as

Parasamba and it was in Tarla estate, which was abolished under A.P.Estate

Abolition Act, 1948 and subsequently taken over by the Government. The

ancestors of the petitioners were in possession of the aforesaid sites in

question and, as such, they are in continuous occupation of the same sites.

When the KT road-Kasibugga widening operations were taken up, the writ

petitioners were not disturbed as their sites were located beyond road

margin and not causing any obstruction to the free flow of traffic. It is

pleaded that in the last week of September, 2011, the 3rd respondent along

with his staff had visited their area and started telling every shop or buddy

owner to vacate the premises and threatened all of them that if they fail to

vacate the premises, they will demolish their shops and cases will be filed

against them for occupying the Government land. With that imminent

threat of eviction looming large, the petitioners came before this Court with

a prayer that action of the respondents in trying to evict the petitioners

from their shops is violative of Articles 14 and 21 of the Constitution of

India and that direction be issued to grant them pattas on payment of basic

value of such sites.

3. Learned single Judge observed that the petitioners had obtained

benefit of allotment of alternative occupation to carry on their business after

their eviction from the land in dispute.

4. Learned counsel for the appellants submits that the observation that

the petitioners are given alternative accommodation is absolutely incorrect

and the respondent No.3 also did not give any particulars of giving any

alternative accommodation to the petitioners, except making omnibus

statement that such accommodation was given. It is further submitted by

him that no show cause notice was issued before the respondent No.3 had

made the threat of eviction. Learned counsel for the appellants also

submits that the petitioners are still in possession of the sites and has also

referred to the interim order passed by this Court in the writ appeal on

30.10.2019. Learned single Judge did not advert to the issue as to whether

notice is required to be served before eviction operation is carried out.

5. Mr. G.L.Nageswara Rao, learned Government Pleader for Revenue

submits that though he had repeatedly asked instructions from the

authorities as to how the writ petitioners had been granted alternative site,

no such materials are placed before him and, therefore, it is difficult to

make any submission on that aspect. It is further submitted by

Mr.G.L.Nageswara Rao that before eviction is carried out, the petitioners are

entitled to a notice under Section 7 of the A.P. Land Encroachment Act,

1905 (for short "the Act of 1905").

6. Section 5 of the Act of 1905 reads as follows:

"5. Liability of person unauthorizedly occupying land to

penalty after notice:- Any person liable to pay assessment

under Section 3 shall also be liable at the discretion of the

Collector or subject to his control, the Tahsildar or Deputy

Tahsildar to pay in addition by way of penalty-

(i) if the land be an assessed land, a sum not exceeding five

rupees or, when ten times the assessment payable for one year

under Section 3 exceeds five rupees, a sum not exceeding ten

times, such assessment, provided that no penalty shall ordinarily

be imposed in respect of the unauthorised occupation of such

land for any period not exceeding one year.

(ii) if the land be unassessed, a sum not exceeding ten rupees,

or when twenty times the assessment payable for one year

under Section 3 exceeds ten rupees, a sum not exceeding

twenty times such assessment."

7. Section 6 of the Act of 1905 reads as under:

"6. Liability of person unauthorizedly occupying land to

summary eviction, forfeiture of crops, etc:-

(1) Any person unauthorisedly occupying any land for

which he is liable to pay assessment under Section 3 may be

summarily evicted by the Collector, Tahsildar or Deputy

Tahsildar, and any crop or other product raised on the land shall

be liable to forfeiture and any building or other construction

erected or anything deposited thereon shall also, if not removed

by him after such written notice as the Collector, Tahsildar or

Deputy Tahsildar may deem reasonable, be liable to forfeiture.

Forfeitures under this section shall be adjudged by the Collector,

Tahsildar or Deputy Tahsildar and any property so forfeited shall

be disposed of as the Collector, Tahsildar or Deputy Tahsildar

may direct.

(2) Mode of eviction:- An eviction under this section

shall be made in the following manner, namely : By serving a

notice in the manner provided in Section 7 on the person

reputed to be in occupation or his agent requiring him within

such time as the Collector, Tahsildar or Deputy Tahsildar may

deem reasonable after receipt of the said notice to vacate the

land, and if such notice is not obeyed, by removing or deputing

a subordinate to remove any person who may refuse to vacate

the same, and if the officer removing any such person shall be

resisted or obstruction by any person, the Collector shall hold a

summary inquiry into the facts of the case, and if satisfied that

the resistance or obstruction was without any just cause and

that such resistance or obstruction shall continue, may issue a

warrant for the arrest of the said person and on his appearance

commit him to close custody in the office of the Collector or of

any Tahsildar or Deputy Tahsildar for such period not exceeding

30 days as may be necessary to prevent the continuance of

such obstruction or resistance or may send him with a warrant

in the form of the schedule for imprisonment in the civil jail of

the district for the like period :

Provided that no person so committed or imprisoned under this section shall be liable to be prosecuted under Section 183, 186 or 188 of the Indian Penal Code in respect of the same facts.

(3) Any person who unauthorisedly re-enters and

occupies any land from which he was evicted under this Section,

shall be punished with imprisonment for a term which may

extend to six months or with fine which may extend to one

thousand rupees or with both."

8. Section 7 of the Act of 1905, reads thus:

"7. Prior notice to person in occupation:-

Before taking proceedings under Section 5 or Section 6,

the Collector or Tahsildar, or Deputy Tahsildar, as the case may

be, shall cause to be served on the person reputed to be in

unauthorised occupation of land being the property of

Government, a notice specifying the land so occupied and

calling on him to show cause before a certain date why he

should not be proceeded against under Section 5 or Section 6.

Such notice shall be served in the manner prescribed in

Section 25 of the Andhra Pradesh Revenue Recovery Act, 1984

(Act II of 1864) or in such other manner as the State

Government by rules or order under Section 8 may direct."

9. On perusal of the above provisions, we find substance in the

argument of Mr.G.L.Nageswara Rao that it is necessary to issue a notice in

terms of Section 7 before proceedings under Section 5 or 6 of the Act of

1905 are taken.

10. In that view of the matter, the order of the learned single Judge is

set aside. The petitioners shall not be evicted without following due process

of law. The respondents are at liberty to take steps in accordance with law.

11. Accordingly, the writ appeal is disposed of. No costs. Pending

miscellaneous applications, if any, shall stand closed.

ARUP KUMAR GOSWAMI, CJ                               C. PRAVEEN KUMAR, J



                                                                          GM





       HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE & HON'BLE MR. JUSTICE C.PRAVEEN KUMAR

WRIT APPEAL No. 45 of 2019

06.04.2021

GM