Andhra Pradesh High Court - Amravati
Suttam Sivarama Subba Reddy vs The State Of Andhra Pradesh on 26 July, 2021
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.14439 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 action of the tahsildar/
respondent No.3 (a) in issuing the impugned notice under Section 7
of the Act 3 of 1905 Madras Act (b) stating that the petitioner is an
encroacher without deciding as to whether the petitioner is
encroacher or not of the government property (c) not giving ample
time to the petitioner to reply to the impugned notice dt.07.07.2021
issued by the tahsildar/respondent No. 3 (d) and also the tahsildar
not coming forward for an out of court settlement by paying the
petitioner the market value as compensation for the land of the
petitioner required for road widening regarding the house building of
the petitioner bearing H.No. 1/1238-2 with G Plus 1, situate in
Sy.No. 636/1 extent Ac. 0.17 ½ cents in C.P. Brown colony of
Yerramukkapalle Village of Kadapa town, without following the due
process of law, in violation of the principles of natural justice without
invoking any acquisition laws as illegal, arbitrary and
unconstitutional and consequently, (a) to set aside the impugned
notice of the respondent No. 3 issued to the petitioner dt.07.07.2021
vide ref No. B1/560/2021 (b) further direct the respondent No.3 to
first decide the aspect of the petitioner is whether he is an
encroacher or not of the government property as alleged (c) and later
to give ample time to the petitioner to give his reply to any notice that
would be issued by the Respondent No. 3 and (d) further to direct the
Respondent No. 1 to 3 to come forward for an out of court settlement
regarding the present issue regarding the acquisition and payment of
compensation as per the market value to the petitioner for the
purpose of road widening at the house of the petitioner € and till
such time direct the respondents not to take any coercive steps and
pass such other orders...."
It is the case of the petitioner that he 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 07.07.2021 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 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". Instead of approaching the Civil Court to establish the title by
the 3rd 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 07.07.2021 was issued under Section 7 of the
Madras Land Encroachment 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 in state of Andhra
Pradesh.
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 07.07.2021 is liable to be set aside.
AIR 1982 SC 1081
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 3rd respondent 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 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.Rs2.
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
Date: 26.07.2021
KK
2004 (1) SCC 769
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.14439 OF 2021
Date: 26.07.2021
KK
