Gummadi Sivaiah vs The State Of Andhra Pradesh
2021 Latest Caselaw 2206 AP

Citation : 2021 Latest Caselaw 2206 AP
Judgement Date : 30 June, 2021

Andhra Pradesh High Court - Amravati

Gummadi Sivaiah vs The State Of Andhra Pradesh on 30 June, 2021

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                  WRIT PETITION No.12225 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. 0.85 cents in Sy.No. 812-1 of Konidena Revenue Village, Ballikurava Mandal, Prakasam District, without issuing notice under Section 7 of same statute, as illegal, arbitrary and violative of Article 300-A of the 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...."

2. It is the case of the petitioner is that he is the absolute owner,

possessor and enjoyer 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, Ballikurava Mandal, Prakasam District, the same

was inherited from his ancestors. After death of petitioner's father, the

petitioner succeeded the estate of his father, being the sole legal heir

and ever since the petitioner has been in possession and enjoyment

without any interruption from anybody at any point of time and

cultivating the said land and eking out his livelihood. The 4th

respondent developed grudge against the petitioner with a view to

evict the petitioner from the land wantonly and issued proceedings

under Section 6 of A.P Land Encroachment Act, 1905 (in short "the

Act") alleging that the petitioner has encroached the land to an extent

of Ac. 0.42 ½ cents out of Ac. 0.85 cents and directing the petitioner

to vacate from the agricultural land.

3. The contention of the petitioner is that is that he is the absolute

owner of the property and he has not encroached any Government

and that the respondents have no authority of law to insist the

petitioner to vacate the premises by invoking the provisions of Land

Encroachment Act, straight away under Section 6 of the Act.

Therefore, the proceedings issued by the 4th respondent under Section

6 of the Act is illegal and arbitrary and requested to set aside the

same.

4. During hearing, Smt. Nimmagadda Revathi, learned counsel for

the petitioner reiterated the contentions, while drawing the attention

of this court to proceedings issued under Section 6 of the Act, dated

17.06.2021 directing this petitioner to vacate the land in an extent of

Ac. 0.42 ½ cents out of Ac. 0.85 in Sy.No. 812/1 of

Nakkabokkalapadu Village is not preceeded by notice under Section 7

of the Act, calling upon this petitioner to submit his explanation,

which is mandatory and therefore the proceedings are illegal and

contrary to the provisions of law.

5. Learned Assistant Government Pleader for Revenue fairly

submitted to this Court that the proceedings were issued by mistake

and inadvertence. Based on the instructions received from the office

of 4th respondent dated 29.06.2021, wherein he requested to permit

the 4th respondent to take appropriate action strictly adhering to the

provisions of Land Encroachment Act and Rules framed thereunder.

6. As the 4th respondent fairly submitted that the impugned

proceedings dated 17.06.2021, under Section 6 of the Act was issued

to the petitioner by mistake and inadvertence without issuing any

notice under Section 7 of the Act as such no further examination is

required by this court, in view of the admission that the proceedings

are not proceeded by a notice under Section 7 of the Act and this

issue is squarely covered by a Judgment of this Court in Kadiyala

Sudershan and others Vs. Government of Andhra Pradesh and

others1, wherein the learned single Judge of this 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 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 be 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 envisages 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."

7. In view of the law declared by this Court, a notice under

Section 6 of the Act is must be preceded by a notice under Section 7

of the Act and in the absence of any notice, the proceedings

impugned dated 17.06.2021 in the Writ Petition is illegal and

arbitrary and same is liable to be set aside.

8. Recording the submissions of the learned Assistant

Government Pleader for Revenue, based on the written instructions

referred supra and no notice was issued as mandated under section

7 of the Act, thereby the 4th respondent totally violated the procedure

2013(5) ALD 212

as prescribed under A.P. Land Encroachment Act. Therefore, the

proceedings impugned in the writ petition is declared illegal and