Shaik Najini, vs The State Of Andhra Pradesh
2021 Latest Caselaw 2518 AP

                                        1                               MSM,J
                                                                 Wp_14376_2021




     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                  WRIT PETITION No.14376 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 under Section (6) of A.P.L.E.Act III of 1905 vide Rc.B.114/2021, dated 19.07.2021 issued by the 4th respondent as illegal, arbitrary and contrary to the procedure established by law and contrary to the principles of natural justice apart from being violative of Article 14, 19(g), 21 and 300A of the Constitution of India and set-aside the same in the interest of justice and pass such other order or orders."

The case of the petitioner is that the petitioner's family

members are in possession and enjoyment of the land in an extent

of Ac.0-06 cents in Sy.No.348-A of Kommipadu Village, Sydapuram

Mandal, SPSR Nellore District since 1988 and since then they have

been residing there by constructing a house. The petitioner is in

continuous possession and enjoyment of the said land without any

interruption from any corner whatsoever including the respondents

herein and they obtained electricity connection and their house

property was assessed by the Gram Panchayat, imposed house tax

and they are paying electricity bill and house tax regularly.

While so, when the officials of the 4th respondent tried to evict

the petitioner forcibly, the petitioner's father along with three other

similarly situated persons filed W.P.No.20859 of 2020 before this 2 MSM,J Wp_14376_2021

Hon'ble Court seeking a direction not to dispossess them from their

respective house sites. This Court passed an interim order dated

17.11.2020 directing the respondents not to dispossess the

petitioner therein from the subject land, if they are in possession of

the subject land without following due process of law. The

respondent authorities kept quiet for some time and on

02.07.2021, the 4th respondent herein, vide letter in

Rc.B.114/2021, dated 02.07.2021, directed the Assistant

Engineer, Electricity Department, Sydapuram to disconnect power

supply to the electrical service connection bearing

No.3112324000742 provided to the petitioner's house as the land

in Sy.No.348/A was handed over for construction of Village

Secretariat. In turn the Assistant Engineer, Operations, APSPDCL,

Sydapuram issued Lr.No.AG/0/Syd/F/D.No.760/21 dated

02.07.2021, informing that their electrical service connections will

be disconnected within 7 days. Being aggrieved by the said action,

this petitioner and three other similarly situated persons filed

W.P.No.13218 of 2021 before this Court and the same was allowed

by order dated 09.07.2021, setting aside the above two proceedings

and directed the respondents not to dispossess the petitioner

therein except by following due process of law.

Meanwhile, after passing the order, the 4th respondent issued

Eviction Notice under Section (7) of Andhra Pradesh Land

Encroachment Act III of 1905, (for short 'A.P.L.E. Act') vide

Rc.B.114/2021 dated 02.07.2021, alleging that the petitioner is

found to be in unauthorized occupation of the shop admeasuring

Ac.0.05 cents situated in Sy.No.348-A of Kommipadu Village, 3 MSM,J Wp_14376_2021

Sydapuram Mandal, SPSR Nellore District.

In the schedule, classification of the land was mentioned as

'Patta' and the nature of occupation was mentioned as

'Government Land Encroachment'. The said notice was served on

the petitioner on 06.07.2021. Immediately the petitioner submitted

his explanation on 08.07.2021 categorically stating that the said

land is not Government land and he has been in possession and

enjoyment of the land since 1988 and requested to drop the further

proceedings.

Challenging the said notice issued under Section 7 of the Act,

the petitioner filed W.P.No.14070 of 2021 on the ground that the

4th respondent has no power or authority to initiate proceedings

under Andhra Pradesh Land Encroachment Act, 1905 as the said

land is classified as 'Patta' even as per the notice. This Court

disposed of the said writ petition by order dated 20.07.2021,

directing the 4th respondent to pass orders duly considering the

explanation submitted by the petitioner and further directed the

respondents not to dispossess the petitioner without following due

process of law.

Be that as it may, the 4th respondent served a copy of notice on

the petitioner on 20.07.2021 at 10.30 am, under Section (6) of

A.P.L.E.Act, vide Rc.B.114/2021, dated 19.07.2021 holding that

the petitioner is found to be in un-authorized occupation of the

shop specified in the Schedule therein, which is the property of the

Government and for which the petitioner is liable to pay

assessment under Section 8 of the A.P.L.E.Act and directed the

petitioner to vacate the land within 48 hours from the date of 4 MSM,J Wp_14376_2021

service of notice, failing which the petitioner will be summarily

evicted from the land.

The petitioner specifically contended that in response to the

notice issued under Section 7 of the A.P.L.E.Act, he submitted his

explanation duly stating that the said land is not Government land

and he is in possession and enjoyment of the subject land since

1988. However, without considering his explanation, without

assigning any reason and without passing any order, the 4th

respondent issued the impugned notice. There is a genuine dispute

as to the title of the property and that the petitioner is in

possession and enjoyment of the land in the subject property since

1988 i.e., more than 30 years, thereby perfected his title to the

property by virtue of adverse possession against the Government.

Infact, the said land is not Government land even as per the notice

and entries in revenue records. Even as per the impugned notice,

the description of the land was mentioned as 'Patta' land and as

such, the land in Sy.No.348-A is not a Government land. Therefore,

the respondents are not entitled to evict the petitioner from the

schedule property, even after serving notice under Section 6 of the

Act.

Finally, it is contended that the 4th respondent is not

empowered to issue notice under section 6 of the Act, without there

being any reasoned order as held by the High Court of Judicature

at Hyderabad, in Kadiyala Sudershan and others Vs.

Government of Andhra Pradesh1and apart from that when the

petitioner is in settled possession, he cannot be evicted by adopting

2013 (6) ALT 42 5 MSM,J Wp_14376_2021

summary procedure from the land ,in view of the law declared by

the Hon'ble Apex Court in State of Andhra Pradesh Vs.

Thummala Krishna Rao2. Hence, the petitioner requested to

issue a direction as stated supra.

During hearing, learned counsel for petitioner reiterated the

contentions in the writ affidavit.

Whereas, the learned Assistant Government Pleader for

Revenue fairly submitted that the issue involved in the present writ

petition is squarely covered by the order passed in W.P.No.13955 of

2021, dated 20.07.2021 and requested to pass similar order.

However, the learned counsel for the petitioner contended that

there is a slight distinction between the facts of the present writ

petition and the earlier writ petition. But based on Kadiyala

Sudershan and others case, he requested to issue a direction as

claimed.

Undoubtedly, the petitioner is in possession and enjoyment of

the property and a very issuance of notices under Sections 6 and 7

of A.P.L.E.Act is suffice to conclude that the petitioner is in

possession of the property. The petitioner is found to be in un-

authorized occupation of the shop specified in the Schedule below:

     Village            Sy.No.&    Description          Entire      Occupied         Nature of
                         Divin.      of land          Extent Sq.     extent         Occupation
                                                     Meters/Kms     Sq.Yards


Kommipadudu             348-A         Patta             2.10          0.03         Govt. Land
                                                                                  Encroachment

But whereas, as per Column No.3 of the schedule annexed to

the notice, the description of the land is mentioned as 'Patta' land.

Whereas in Column 6 it was mentioned as Government land

1982 (2) SCC 134 6 MSM,J Wp_14376_2021

encroachment. In any view of the matter, the land is situated

within the Panchayat area and it is deemed to have been vested in

the Panchayat on its constitution. In terms of Section 58 of

Panchayati Raj Act, unless it is notified in terms of Section 58(2) of

the Panchayati Raj Act. In terms of Section 58(2) of the Panchayati

Raj Act, divesting the property from Panchayat and vesting on the

Revenue Department the respondents cannot dispossess the

petitioner from the subject land. But, it is not known whether such

notification was issued or not whatsoever. Earlier, G.O.Ms.No.558,

Panchayat Raj & Rural Development PTS, dated 02.03.2020, was

issued divesting the property from the Panchayat and vesting on

the State. Thereby, the respondents are entitled to evict this

petitioner by following due process of law under the Act.

In any view of the matter, as per the judgment in Kadiyala

Sudershan and others (referred supra), an eviction notice

prescribed under Section 6 of the Act was issued. It must be

supported by reasons and after giving show-cause notice under

Section 7 of the Act and after giving an opportunity of hearing to

the persons in possession of the subject land, an eviction order can

be passed.

Here, admittedly the petitioner, who is in possession of the

subject land was not afforded an opportunity of hearing, on receipt

of explanation to the show-cause notice issued under Section 7 of

the A.P.L.E.Act. But, issued a notice under Section 6 of the

A.P.L.E.Act, without any reasons. Therefore, applying the law laid

down in Kadiyala Sudershan and others case, the notice under

Section 6 of the Act is liable to be set-aside. By applying principle 7 MSM,J Wp_14376_2021

laid down in the above judgment, I hold that the notice under

Section 6 of the Act is not supported by any reasons as mandated

under law laid down in Kadiyala Sudershan and others (referred

above).

On this ground alone, the notice issued under Section 6 of the

Act is liable to be set-aside, while permitting the respondents to

take appropriate action strictly adhering to the principle laid down

in Kadiyala Sudershan and others (referred supra). Till taking

such action, the respondents are directed not to dispossess the

petitioner from the subject land of an extent of Ac.0-06 cents in

Sy.No.348-A of Kommipadu Village, Sydapuram Mandal, SPSR

Nellore District.

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 21.07.2021 VSL