S . Sivalinga Prasad vs The State Of Ap
2021 Latest Caselaw 4802 AP

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    HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
            WRIT PETITION No.27186 of 2021


ORDER :

Heard C. Prakash Reddy, learned counsel appearing

for M.R.S. Srinivas, learned counsel for the petitioner,

learned Government Pleader for Revenue appearing for

respondents No.1,3,4,5 and 6, Sri Lakshmi Narayana

Reddy, learned Standing Counsel for respondent No.7 and

Sri V.Surya Kiran Kumar, learned Standing Counsel for

respondent No.8.

According to the learned counsel for the petitioner,

the petitioner's application for regularisation of land

measuring 493 square yards in respect of D.No.1-8/2,

Jodugullapalem, Revenue Ward No.6, Visakhapatnam is

pending before the respondent No.3 from 2017. Learned

counsel for the petitioner points out that even in the said

application for regularisation in view of the earlier litigation

on the subject, the only question that has to be decided is

about the payment of market value and the relevant date

for the same. He submits that till the said application is

disposed of, the petitioner cannot be called as an

unauthorised occupant. He also submits that the

respondents 7 and 8 are attempting to highhandedly

demolish the property situated in the said land without

giving him any notice. Therefore, the writ petition is filed for

the reliefs that are prayed and an interim application is

also made for protection against the demolition.

For the respondents, the main argument is advanced

by Sri S. Lakshmi Narayana Reddy, learned Standing

Counsel. It is his contention that the petitioner who is

unauthorisedly in occupation of the land would not be

entitled to any protection. He points out that from 2017

onwards the petitioner did not take any steps to pursue his

application for regularisation. Without doing so, he has

established shops etc. and is utilising the property

commercially. He also points out that without any building

permission the shops etc., have been constructed. Lastly,

he submits that this land falls in the Kailasha giri Hills

area and does not belong to the petitioner. Relying upon

the judgment reported in Veluri Rajeswari Vs. Veluri

Santhansagar Reddy and another1, the learned

Standing Counsel argues that the encroacher, who is in an

unauthorised occupation of land, is not entitled to invoke

the discretionary jurisdiction of this Court.

The other learned counsels largely argue on the same

lines and supported the argument of

Sri S.Lakshmi Narayana Reddy, learned Standing Counsel.

2014 (1) ALD 715

This Court, after hearing, both the learned counsel,

notices that there are certain facts, which are not in

dispute

a) The petitioner is in possession of the property since

long time;

b) The application for regularisation by payment of

requisite market value is still pending for disposal;

c) The petitioner has been conducting business from

the said premises by constructing certain

structures;

d) No notice has been issued under the relevant

statutes for removal of so-called unauthorised

constructions.

Hence, the question is whether the petitioner is

entitled for protection or not.

The judgment of the learned single Judge is no doubt

appealing, but the fact also remains that no statutory

notice as warranted under the HMC Act (as applicable to

Visakhapatnam is issued to the petitioner), asking him to

remove the illegal constructions. Apart from, a person in

settled possession cannot be forcibly evicted nor can any

building be demolished without following the due process of

law.

Hence, after considering the submissions of both the

parties, this Court holds that the writ petition itself can be

disposed of at the stage of admission itself directing the

District Collector, Visakhapatnam to dispose of the

petitioner's application for regularisation made vide

application No.VZG1001-6-86688, dated 02.5.2017 within

a period of four (4) weeks from the date of receipt of a copy

of this order. The said application should be disposed of on

its own merits strictly in accordance with law without being

influenced by the fact that the High Court has passed the

order. The respondents No.7 and 8 are directed to follow

'due process of law' by issuing notices for removal of the

allegedly illegal structures. Till the matter is disposed of by

the respondent No.3 by a speaking order, the possession of

the petitioner shall be protected and there shall be an order

against his forceful eviction till then. There shall be no

order as to costs.

As a sequel, miscellaneous petitions, if any, pending

in this case shall stand closed.

______________________________ D.V.S.S.SOMAYAJULU,J

Date : 23.11.2021

NOTE:

Issue C.C. tomorrow.

B/o GR

HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

WRIT PETITION No.27186 of 2021

Dated: 23.11.2021

GR