Andhra Pradesh High Court - Amravati
Tarra Neelakantha Rao vs The State Of Andhra Pradesh, on 22 July, 2021
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION No.14190 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 4th respondent in proceedings dated Nil under section 7 and
6 notices under Act 03 of Madras Encroachment Act, 1905 and
other impugned notice vide Rc.300/2021 dt.18.05.2021 seeking
to dispossess the petitioner from the land in an extent of Ac.0.36
cents in Sy.No.37/1 situated at Kondapolavalasa village,
Jalurnurumandal Mandal, of Srikakulam District, as illegal,
arbitrary, without jurisdiction and violative of Articles
14, 19(1)(g) and 300-A of the Constitution of India and
consequently set aside the above impugned notices and pass such
other order."
2. It is the case of the petitioners that the petitioners are in long
possession and enjoyment of the subject property having
purchased the same under the registered sale deed, and their
names were also mutated in the revenue records. While the matter
stood thus, notice dated, 18.05.2021 was issued under Sections 7
of Madras Land Encroachment Act 03 of 1905 to the petitioners.
3. The main contention of learned counsel for the petitioners is
that the petitioners are in long possession and enjoyment of the
property having purchased the same under registered sale deed
and their names were also mutated in the revenue records.
Therefore, the petitioners cannot be dispossessed by exercising
power under Section 7 of the Madras Land Encroachment Act.
When the petitioners are 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 petitioners
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 notice, 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, notice is
incomplete. Hence, the petition is liable to be dismissed setting
aside the impugned notice dated 18.05.2021.
8. However, when the petitioners are 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 their 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: 22.07.2021
IS
2004 (1) SCC 769
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Writ Petition No.14190 of 2021
Date: 22.07.2021
IS
