Digivinti Subramanyam Reddy, vs The State Of Andhra Pradesh
2021 Latest Caselaw 2233 AP

          THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                       WRIT PETITION No.12186 of 2021
ORDER:

This writ petition is filed under Article 226 of the Constitution

of India seeking the following relief:

"to issue an order or direction, in the nature of writ of Mandamus, declaring the notice dated 10.06.2021 issued under Section 7 of the Land Encroachment Act, 1905 in respect of land admeasuring Ac.0.70 cents in Sy.No.232 situated in Tirumandyam village, Chittoor District contemplating to evict the petitioner summarily as illegal, arbitrary and violation of Articles 14, 21 and 300-A of the Constitution of India and consequently set aside the notice dated 10.06.2021 issued under Section 7 of the Land Encroachment Act, 1905 in respect of land admeasuring Ac.0.70 cents in Sy.No.232 situated in Tirumandyam village, Chittoor District and pass such other order or orders."

It is the case of the petitioner that the petitioner is in long

possession and enjoyment of the 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, notice dated

10.06.2021 was issued under Section 7 of Madras Act 03 of 1905 to

the petitioner.

The main contention of the 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

was also mutated in the revenue records. Therefore, the petitioner

cannot be dispossessed by exercising power under Section 7 of the

Madras 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".

Instead of approaching the Civil Court to establish the title by

1 AIR 1982 SC 1081 MSM,J Wp_12186_2021

the 4th respondent, 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.

Learned Assistant Government Pleader for Revenue submitted

that a notice dated 10.06.2021 was issued under Section 7 of the

Madras Act 03 of 1905, requested to pass appropriate orders.

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 03 of 1905, which is not

applicable to the present alleged encroachment.

On perusal of the impugned notice, it is clear that no specific

date and time is fixed for submitting explanation in terms of Section 7

of the A.P.Land Encroachment Act, hence, notice is incomplete. On

this ground, the notice dated 10.06.2021 is liable to be set aside.

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 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 their remedy is only to approach the

competent Civil Court seeking declaration of title.

If the said principle is applied to the present facts of the case,

remedy open to the 4th respondent to approach the competent Civil

Court to establish the title and for recovery of the possession. Hence, MSM,J Wp_12186_2021

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 supra). Therefore, the petitioner

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.Rs.2"

With the above direction, the writ petition is disposed of. No

costs.

Consequently, miscellaneous applications pending if any, shall

stand closed.

JUSTICE M. SATYANARAYANA MURTHY 01.07.2021 VSL

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2 2004 (1) SCC 769 MSM,J Wp_12186_2021