Andhra Pradesh High Court - Amravati
Gummadi Nagarjuna vs The State Of Ap on 9 July, 2021
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.13209 OF 2021
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 notice dated 17.06.2021 issued under
Section 6 of Andhra Pradesh Land Encroachment Act 1905 by the 4th
respondent and insisting petitioner to vacate from his agricultural landed
property of Ac.0.42 ½ cents out of Ac.0.85 cents in Sy.No.812-1 of Konidena
Revenue village in Ballikurava Mandal of Prakasam District without issuing
notice under Section 7 of same statute as illegal, irregular, arbitrary, violative
of provisions of Andhra Pradesh Land Encroachment Act, 1905 and offends
Articles 14, 21 and 300-A of Constitution of India and consequently direct
the respondents not to interfere in any manner with petitioner's peaceful
possession and enjoyment over the said land."
The case of petitioner, in brief, is that the petitioner and his
father are the absolute owners, possessors and enjoyers of
agricultural land in an extent of Ac.0.85 cents in Sy.No.812-1 and
Ac.1.57 cents in Sy.No.812-2 of Konidena Revenue Village in
Ballikukrava Mandal of Prakasam District having inherited the same
from their ancestors. After the death of petitioner's grandfather,
petitioner and his father succeeded the said property. Ever since
such acquisition, they have been in exclusive possession and
enjoyment of the said land without any interruption from anyone at
any point of time and cultivating the said land to eke out their
livelihood. While the matter stood thus, respondent No.4 somehow to
evict the petitioner from his land, issued notice under Section 6 of
the Andhra Pradesh Land Encroachment Act, 1905 alleging that the
petitioner encroached tank poramboku land of Ac.0.42 ½ cents out
of Ac.0.85 cents in Sy.No.812-1 and directed the petitioner to vacate
the said agricultural land. It is the case of the petitioner that the he
never encroached the tank poramboku and it is their ancestral
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property. Notice issued under Section 6 of the Andhra Pradesh Land
Encroachment Act, 1905 is not preceded by notice under Section 7 of
the Andhra Pradesh Land Encroachment Act and the impugned
notice was issued without conducting any enquiry, and the same is
illegal. Therefore, the impugned notice is illegal and arbitrary,
requested to issue a direction as claimed in the writ petition.
Learned Assistant Government Pleader for Revenue placed on
record written instructions received by him from the Tahsildar,
Ballikurava Mandal vide Rc.A/138/2021 dated 06.07.2021, wherein
it is specifically stated as follows:
"After detecting the said mistake, a fresh notice is being issued to the
petitioner under Section 7 of A.P.Land Encroachment Act, 1905 by calling
objections from him and later will proceed as per Law and evict the petitioner
from the land of Ac.0.85 cents situated in S.No.817/1. The petitioner cannot
take shelter on the ground of mistakenly issuance of notice under Section 6
instead of under Section 7 of A.P.Land Encroachment Act, 1905. There is no
need of necessity to develop grudge against the petitioner as alleged in the
petitioner. The eviction of petitioner from the land of Ac.0.85 cents in
S.No.817/1 will be done by following due procedure contemplated under law.
As such the petitioner is not entitled to have the relief of Writ of Mandamus
or interim orders pending disposal of writ petition as prayed for."
It is clear, from the written instructions that the notice under
Section 6 of the Andhra Pradesh Land Encroachment Act, 1905 is
not preceded by enquiry and notice as mandated under Section 7 of
the Andhra Pradesh Land Encroachment Act, 1905, as such
impugned notice issued under Section 6 is illegal and contrary to the
law laid down by the High Court of Andhra Pradesh at Hyderabad in
"Kadiyala Sudershan v. Government of Andhra Pradesh1",
wherein the Court held 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
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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 the 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 envisaged 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.
From the scheme of the Act, I am of the opinion that the notice of
eviction prescribed under Section 6 of the Act, which is akin to a decree,
needs to be supported by a reasoned order comparable to a judgment.
Otherwise, Section 7 of the Act providing for issuance of a show-cause notice
would be rendered nugatory or reduced to an empty formality."
In view of the law declared by this Court in "Kadiyala
Sudershan v. Government of Andhra Pradesh" (referred supra)
and the admission made by the respondents in the written
instructions, the impugned notice dated 17.06.2021 issued under
Section 6 of the Andhra Pradesh Land Encroachment Act, 1905 is
declared as illegal, arbitrary and the respondents are directed, not to
dispossess the petitioner from the property, except by due process of
law.
With the above direction, the writ petition is disposed of at the
stage of admission with the consent of both the counsel. No costs.
The miscellaneous petitions pending, if any, shall also stand
closed.
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JUSTICE M. SATYANARAYANA MURTHY
09.07.2021
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