Andhra Pradesh High Court - Amravati
Allu Satyanarayana, vs The State Of Andhra Pradesh on 25 August, 2021
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION No.18203 of 2021
ORDER:
This petition is filed under Article 226 of the Constitution of
India, seeking the following relief:-
"...to issue a Writ of Mandamus, declaring the Notice issued by the
respondent No.4 vide 1) Rc.No.203/2021/C.S, dated 17.08.2021
under Section 6 of the Madras Act III of 1905 and
2) Rc.No.203/2021/C.S, dated 15.07.2021 under Section 7 of the
Madras Act III of 1905, as arbitrary, illegal, without jurisdiction and
violative of Article 14, 21 and 300A Constitution of India and
consequently set aside the same and pass such other order."
2. It is the case of the petitioner that the petitioner is in long
possession and enjoyment of the subject property having
purchased the same under the registered sale deed, and his name
was also mutated in the revenue records. While the matter stood
thus, notices dated 17.08.2021 and 15.07.2021 were issued under
Sections 6 and 7 of Madras Land Encroachment Act 03 of 1905
respectively to the petitioner.
3. The main contention of learned counsel for the petitioner is
that the petitioner is in long possession and enjoyment of the
property having purchased the same under registered sale deed
and his name also mutated in the revenue records. Therefore, the
petitioner cannot be dispossessed by exercising power under
Section 7 of the Madras Land Encroachment Act. When the
petitioner is in settled possession of the property, the remedy open
to the respondents is to approach the Civil Court in view of the
guidelines issued by the Apex Court in "Government of Andhra
Pradesh v. Thummala Krishna Rao1".
AIR 1982 SC 1081
4. Instead of approaching the Civil Court to establish the title
by respondent No.4, he issued notice under Section 7 of the
Madras Act, invoking summary procedure to evict the petitioner
from the land, requested to allow the writ petition.
5. Learned Assistant Government Pleader for Revenue
submitted that a notice dated 18.05.2021 was issued under
Section 7 of the Madras Act 3 of 1905, requested to pass
appropriate orders.
6. In fact, the A.P. Land Encroachment Act is in force, but
instead of following the procedure under the A.P. Land
Encroachment Act, notice was issued under the Madras Act 3 of
1905, which is not applicable to the present alleged encroachment
in Andhra Pradesh.
7. On perusal of the impugned notices, it is clear that no
specific date and time is fixed for submitting explanation in terms
of Section the A.P. Land Encroachment Act, hence, notices are
incomplete. Hence, the petition is liable to be dismissed setting
aside the impugned notices dated 17.08.2021 and 15.07.2021.
8. However, when the petitioner is in settled possession and
enjoyment of the property, it is the obligation of the State to
approach the competent Civil Court and obtain relief for eviction of
the petitioner or removal of objectionable encroachments. This view
is fortified by the judgment of the Apex Court in "Government of
Andhra Pradesh v. Thummala Krishna Rao" (referred (1) supra).
In the said judgment, the Apex Court candidly held that the
Government, in summary proceedings, cannot unilaterally decide
its own title over the property, and the remedy is only to approach
the competent Civil Court seeking declaration of title.
9. If the said principle is applied to the present facts of the case,
remedy open to respondent No.4 is to approach the competent Civil
Court to establish the title and for recovery of the possession.
Hence, the respondents are at liberty to take appropriate action in
terms of judgment of the Apex Court in "Government of Andhra
Pradesh v. Thummala Krishna Rao" (referred (1) supra).
Therefore, the petitioners cannot be dispossessed, except by
following the law laid down by the Apex Court in "Government of
Andhra Pradesh v. Thummala Krishna Rao" (referred supra) and
"Rame Gowda (dead) by L.Rs. v. M.Varadappa Naidu (Dead) by
L.Rs2"
10. With the above direction, the writ petition is disposed of.
No costs.
As a sequel, interlocutory applications, if any pending shall
stand closed.
__________________________________________
JUSTICE M. SATYANARAYANA MURTHY
Date: 25.08.2021
IS
2004 (1) SCC 769
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Writ Petition No.18203 of 2021
Date: 25.08.2021
IS
