Andhra Pradesh High Court - Amravati

Petition ... vs 3 on 25 November, 2021

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                 WRIT PETITION NO.12199 OF 2019

ORDER:

This writ petition is filed under Article 226 of the

Constitution of India to issue Writ of Certiorari calling for entire

records connected to the order, dated 18.07.2019 in Revision

Petition No.22021/63/2017-ASSG-III-Rev., passed by the

1st respondent, dismissing Revision Petition filed by the petitioner

assailing the order in Rc.H.1250/2017, dated 7.7.2017 passed by

the 2nd respondent in appeal preferred against the order passed by

the 3rd respondent for removal of alleged encroachment of house

and site bearing D.No.1-70 in Sy.No.58/2 of Gopuvanipalem

Village in Pamidimukkala Mandal, Krishna District, examine the

same and set aside both orders, declaring the orders passed by the

respondents 1 to 3, as illegal, arbitrary, violative of the provisions

of Andhra Pradesh Land Encroachment Act, 1905 and rules

framed there under.

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

possessor and enjoyer of the house and site bearing D.No.1-70

covered by Sy.No.58/2 of Gopuvanipalem Village, Pamidimukkala

Mandal, Krishna District, which is his ancestral property. The

house and site property was allotted to the share of his father by

name Y.Venkatanarayana Rao under partition deed, dated

13.09.1957. In the said partition, the subject property was allotted

to the share of petitioner during the year 1989. While constructing

RCC building in the said property, for the convenience of

petitioner, he constructed an internal partition wall separating

cattle shed and open land for the maintenance of cattle and for MSM, J wp_12199_2019

keeping the cattle away from the residential house. The Gram

Panchayat, Gopuvanipalem Village assed the RCC building to tax

and cattle shed with a single D.No.1-70. Since then the petitioner

has been paying tax regularly to the Gram Panchayat both for the

building and cattle shed and continuing in possession and

enjoyment of the same.

3. While the matter stood thus, Gopuvanipalem Gram

Panchayat issued a notice, dated 21.04.2015, alleging that the

petitioner raised a construction on the village tank bund covered

by Sy.No.58/2 of Gopuvanipalem Village and directed the

petitioner to remove the construction within 7 days from the date

of receipt of copy of the notice with a threatened action to remove

the construction. In case of his failure to remove the same within

the specified time, they will recover costs from the petitioner.

Aggrieved by the same, the petitioner filed W.P.No.12753/2015 to

set aside the notice and the writ petition was filed only against the

Gram Panchayat, wherein interim status quo order was granted by

this Court. But, the 3rd respondent, who was acting at the instance

of the political motivated villagers, issued notice in Form-VII under

Section 7 of the Andhra Pradesh Land Encroachment Act, 1905

vide Rc.B.1201/2015, dated 03.12.2016 calling upon the petitioner

to submit his explanation with a threatened action to evict him

under the provisions of the A.P. Land Encroachment Act, 1905.

The notice issued by the 3rd respondent is illegal, arbitrary and

contrary to the law laid down by the Apex Court in Government of

Andhra Pradesh Vs. Thummala Krishna Rao and another1 for

AIR 1982 (SC) 1081 MSM, J wp_12199_2019

the reason that the petitioner and their ancestors were in peaceful

possession and enjoyment of the subject property, but without

considering any of the submissions in the written explanation

submitted by the petitioner passed the order which was challenged

before the 2nd respondent, who in turn confirmed the order passed

by the 3rd respondent.

4. The 3rd respondent again issued another notice on

30.07.2021 under Section 6 of the A.P. Land Encroachment Act,

1905 calling upon the petitioner to submit his objections, if any,

with a direction to vacate the property. Aggrieved by the said

notice, the petitioner preferred an appeal before the 2nd respondent

along with the stay petition on 27.02.2017, since it was not

disposed of, the petitioner filed W.P.No.11586 of 2017 on the file of

the then High Court of Judicature at Hyderabad for the State of

Telangana and the State of Andhra Pradesh. The same was

disposed of by the High Court by order, dated 04.04.2017 while

directing the 2nd respondent to dispose of the appeal filed by the

petitioner, in accordance with law, within two (02) months from the

date of receipt of copy of the said order, till such time, status quo

obtaining as on date was ordered to be maintained by both the

parties. Pursuant to the order, dated 04.07.2017 passed by the

High Court of Judicature at Hyderabad, the 2nd respondent passed

an order in Rc.H.1250/2017, dated 07.07.2017 directing the

petitioner not to enter into the house and site bearing D.No.1-70,

covered by Sy.No.58/2 of Gopuvanipalem Village in

Pamidimukkala Mandal, Krishna District, while insisting him to

vacate the house and site.

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5. Aggrieved by the order in Rc.H.1250/2017, dated

07.07.2017 passed by the 2nd respondent, the petitioner preferred

a revision before the 1st respondent under Section 12-A of the

A.P. Land Encroachment Act, 1905, who in turn confirmed the

order passed by both respondents 2 and 3, without looking into

various grounds urged by the petitioner before the authorities, by

impugned Proceedings, which is illegal and arbitrary.

6. The main ground urged before this Court is that the orders

of respondents 1 to 3 are contrary to the law laid down by the Apex

Court in Thummala Krishna Rao‟s case (referred supra). The

respondents cannot declare the title to the property when the

petitioner is able to establish his long and continuous possession

for over a period of 100 years, but said fact was not considered by

respondents 1 to 3 herein and passed the impugned order.

7. It is further contended that the notice was issued

complaining that the petitioner encroached an extent of 60.42

sq. meters of Government site, which is an objectionable

occupation, but the order was passed declaring that the petitioner

as an „encroacher‟ of an extent of Ac.0.09 cents of land, which is

contrary to the principles of natural justice and based on the

representation submitted by the petitioner to the District Collector

in Meekosam Programme, which is wholly illegal, arbitrary and in

transgression jurisdictional power by the respondents 1 to 3 and

requested to set aside the same.

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8. The 3rd respondent filed a counter affidavit admitting passing of

orders while asserting that the petitioner encroached into Government

site admeasuring an extent of Ac.0.09 cents covered by Sy.No.58/2 of

Gopuvanipalem village, Pamidimukkala Mandal, Krishna District,

which is objectionable. Apart from that the land in Sy.No.58/2 is

really a Cheruvu i.e., tank bund, which is exclusively under the

control of the Government and the petitioner is not entitled to

encroach such bund of water body, thereby the judgment of Apex

Court in Thummala Krishna Rao‟s case has no application to the

present case.

9. It is further contended that the order was passed after

conducting necessary enquiry by the 3rd respondent, appeal was

disposed of affording a reasonable opportunity at all stages and the

petitioner himself filed written arguments and additional written

arguments before the 2nd respondent, who considered the same and

disposed of the appeal, in accordance with law, based on the legal

principles.

10. While the matter stood thus, the petitioner himself submitted

an application to the District Collector in Meekosam Programme

alleging that he occupied land admeasuring an extent of Ac.0.09

cents in R.S.No.58/2 of Gopuvanipalem Village, Pamidimukkala

Mandal, Krishna District and requested to regularize his occupation.

On the basis of the same, the 3rd respondent held that the petitioner

encroached land admeasuring an extent of Ac.0.09 cents in

Sy.No.58/2 of Gopuvanipalem Village, Pamidimukkala Mandal,

Krishna District confirming the order passed by the respondents

2 and 3 in the appeal and original proceedings. Hence, there is

absolutely no illegality or irregularity.

MSM, J wp_12199_2019

11. It is further contended that the Gopuvanipalem village was

adopted by one P.Venkat, the 4th respondent is only a

representative of said Venkat, who is a NRI, adopted the village for

development activity under the scheme of „Adoption of Villages‟,

thereby the site is to be allotted for beautification of the village by

said Venkat, the 4th respondent is no other than the representative

of said Venkat and the respondent authorities have no authority to

alienate the property either in favour of 4th respondent or his

principal, but hand over the site only for beautification of the

village. Said P.Venkat, an NRI and being native of Gopuvanipalem

Village, attracted to the scheme of Government of Andhra Pradesh

in adopting the villages or ward for development purpose and

expressed his willingness to adopt Gopuvanipalem village,

contributed the amount for development of village after entering

into the agreement with the Government. The desire and intention

of NRI could not have been achieved because of unnecessary

hurdles coming in his way and roaming the NRI from post to pillar,

which made said P.Venakat, NRI not to develop the village.

Therefore, the act of petitioner is prejudicial to the interest of the

entire village, as the village development is stalled on account of

the act of the petitioner and requested to dismiss the writ petition

on this ground alone.

12. It is also further contended that the petitioner is not entitled

to claim benefit of law declared by the Apex Court in Thummala

Krishna Rao‟s case (referred supra) as he failed to establish his

long possession and enjoyment over the property. On the other

hand, the application submitted by the petitioner in Meekosam MSM, J wp_12199_2019

programme itself suffice that he encroached the government land

i.e., the tank bund, alienation of which is objectionable and

therefore he is bound to vacate and deliver the vacant possession

of the property to the revenue authorities, so as to enable the

government to hand over the same to the 4th respondent, who is

the representative of P.Venkat, an NRI, who adopted

Gopuvanipalem village for beautification and not for alienation,

consequently the writ petition is liable to be dismissed. As the

petitioner has no interest, much less existing personal interest in

the property and invasion of the same does not arise in the present

facts of the case and requested to dismiss the writ petition.

13. The 4th respondent filed separate counter affidavit almost

raising identical grounds raised by the 3rd respondent. Therefore,

this Court is not required to reiterate those grounds to avoid

repetition of the grounds. Hence, they are not specifically reiterated

in the order.

14. The petitioner filed a rejoinder to the counter affidavits filed

by the respondents 3 and 4 almost reiterating the contentions

urged in the affidavit filed along with the writ petition without

raising any specific contention.

15. During hearing, Sri Sita Ram Chaparla, learned counsel for

the petitioner mainly contended that when the notices under

Sections 7 and 6 were issued complaining that the petitioner

encroached the land to an extent of 60.42 sq. meters in

Sy.No.58/2 of Gopuvanipalem Village, Pamidimukkala Mandal,

Krishna District, passing an order by the respondents 1 and 2 to MSM, J wp_12199_2019

remove the encroachment by following the procedure under the

provisions of the Act is illegal, arbitrary and issue of such direction

to remove the encroachment in the land admeasuring an extent of

Ac.0.09 cents in R.S.No.58/2 of Gopuvanipalem, is illegal,

arbitrary and requested to set aside the same.

16. Learned counsel for the petitioner further stated that the

petitioner has no more interest to claim any right over the land in

an extent of 60.42 sq. meters in Sy.No.58/2 of Gopuvanipalem

Village as it is no more required for his personal use and he filed

an affidavit on 04.09.2021 to that effect and requested to pass

appropriate order.

17. Learned Assistant Government Pleader for Revenue

vehemently contended that when the petitioner himself made an

application in Meekosam Programme to regularize his

unauthorized occupation of land in an extent of Ac.0.09 cents was

turned down by the District Collector, the order passed by the

1st respondent cannot be declared as illegal and arbitrary on the

ground that it is in violation of principles of natural justice and the

procedure prescribed under the A.P. Land Encroachment

Act, 1905.

18. When the petitioner himself admitted that he has

encroached the land to an extent of Ac.0.09 cents and sought

regularization, passing an order for removal of encroachment in

Ac.0.09 cents is not an illegality and that the scope of examination

by this Court under Article 226 of the Constitution of India in

quasi judicial order is limited and at best this Court can examine MSM, J wp_12199_2019

whether the procedure followed and if there is any illegality or

irregularity in the procedure adopted by the quasi judicial

authority in passing the order, this Court can set aside such an

order. But, here there is no such procedural violation by the quasi

judicial authorities and no such procedural violation is pointed by

the petitioner in the entire writ petition and requested to dismiss

the writ petition.

19. Considering the rival contentions, perusing material

available on record, the point that arise for consideration is that:-

Whether the order passed by the 1st respondent holding that the petitioner the encroached Ac.0.09 cents in Sy.No.58/2 of Gopuvanipalem Village, Pamidimukkala Mandal, Krishna District without issuing any notice and without passing any order by the respondents 2 and 3 is illegal and not sustainable under law?

POINT:-

20. The occupation of petitioner in an extent of 60.42 sq. meters

in Sy.No.58/2 of Gopuvanipalem Village, Pamidimukkala Mandal,

Krishna District is not in dispute. The 3rd respondent issued notice

in Form-VII vide R.C.B.1201/2015, dated 03.12.2016 calling upon

the petitioner to submit his explanation as to why the

unauthorized occupation of the land in Sy.No.58/2 admeasuring

60.42 sq. meters should not be removed, thereupon the petitioner

submitted his explanation. But, after considering the objection,

issued notice in Form-VI in R.C.B.1240/2015, dated 30.01.2017

by the 2nd respondent and later filed a writ petition and finally

passed an order for removal of the encroachment by the

3rd respondent.

MSM, J wp_12199_2019

21. Aggrieved by the same the petitioner filed an appeal before

the 2nd respondent, who in turn passed an order, dated

07.07.2017 confirming the order passed by the Tahsildar. The few

paras in the order passed by the 3rd respondent are relevant for the

purpose of deciding this issue. Therefore the 1st para and the table

shown in the order disclosing the details of encroachments are

extracted hereunder:-

"One Yarlagadda Veerabhadra Rao, S/o Venkata Narayana of Gopuvanipalem Village of Pamidimukkala Mandal approached Hon‟ble High Court in W.P.No.11586/2017 against eviction proceedings of Tahsildar, Pamidimukkala for evicting the following encorachment in ura tank poramboke land in R.S.No.59/2 measuring Ac.1.86 cents of Gopuvanipalem Village of Pamidimukkala Mandal for improvement and beautification of tank by Sri Putangunta Venkat and others who got adopted of the village for taking up of developmental schemes of the village.

S.No. Name of Nature of Extent Remarks
encroacher Encroachment encroached (in
Sq. Mtrs)
1. Ramalaya Mandapa Dwaja 142.56 Objectionable
Mandapam Sthambam
2. Valluri Asbestos sheet 18 Objectionable
Venkateswara
Rao, S/o
Vasantha Rao
3. Tadepalli Krishna Pandiri and 40.2 Objectionable
Murthy, S/o Dadulu
Pothur Raju
4. Tadepalli Sivaji, Animal Hut 12 Objectionable
S/o Peda
Venkateswara
Rao
5. Tatineni Ravi Hut 26.04 Objectionable
Kumar, S/o
Suryanarayana
6. Yarlagadda Animal Hut 60.42 Objectionable
Veerabhadra Rao,
S/o
Venkatanaraya
7. Yarlagadda Dumping yard 100 Objectionable
Veerabhadra Rao,
S/o
Suryanarayana
8. Water Tank Water Tank 30 Objectionable

9. Devineni Ashok Since 3 years 30.8 Objectionable
Kumar back the
thatched hut
fired at present
vacant
MSM, J
wp_12199_2019

22. In pursuance of the direction issued by the High Court by

order, dated 04.04.2017 directing the 2nd respondent to dispose of

the appeal passed the following order was passed after conducting

summary enquiry as follows:-

i) It is necessitated to evict the above encroachments for the purpose of improvement and beautification of tank duly following under the provisions of Land Encroachment Act, 1905.

ii) On the eviction proceedings under Sections 7 and 6 of Land Encroachment Act, 1905 by the Tahsildar, Pamidimukkala one of the encroacher Yarlagadda Veerabhadra Rao, S/o Venkatanarayana approached the Hon‟ble High Court which was disposed with the above direction.

iii) The encroachers shall be evicted duly following the procedure under the Act, 1905 and should not re-enter into the encroached land, failing which they shall be punishable under the provisions of Section 6(3) of the Land Encroachment Act, 1905 which read as follows:-

"Any person who un-authorizedly by re-enters and occupies any land front which he was evicted under this section, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both".

23. Thus, it is clear from the direction issued by the

2nd respondent, wherein the petitioner was directed not to re-enter

into the above subject land to be evicted while directing the

petitioner to vacate the subject land.

24. Aggrieved by the said order, the petitioner preferred a

revision under Section 12-A of the A.P. Land Encroachment

Act, 1905 before the 1st respondent. A copy of the revision petition

filed before the 1st respondent and the order passed thereon are

placed on record, which is a subject matter of the writ petition.

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25. The 1st respondent confirmed the order passed by the

Special Chief Secretary to the Government confirming the order

passed by the 2nd respondent, but concluded that the petitioner

has encroached an extent of Ac.0.09 cents in R.S.No.58/2 of

Gopuvanipalem village, Pamidimukkala Mandal, Krishna District

taking advantage of the application allegedly submitted by the

petitioner for regularization of encroachment in Meekosam

programme before the District Collector, Krishna District,

Machilipatnam. Hence, the order of 1st respondent is as follows:-

"The Revision Petitioner cannot blow hot and cold in respect of proving his claim over Ac.0.09 cents of land in R.S.No.58/2 of Gopuvanipalem Village and seeking relief to declare the right of the Revision Petitiioner over Ac.0.09 cents in R.S.No.58/2 is not tenable in the eye of law.

As discussed above in detail along with the documents and also the arguments of the petitioner and the 3rd respondent, I feel that there are no tenable grounds for the petitioner to allow the petition and set aside the impugned proceedings in RCH.No.1250/2017, dated 07.07.2017 passed by the 1st respondent.

In the result, the Revision Petition filed by Yarlagadda Veerabhadra Rao, S/o Venkatanarayana Rao is hereby dismissed."

26. As seen from the material on record, the 3rd and

2nd respondents passed orders following the procedure directing

the petitioner to vacate the land admeasuring an extent of 60.42

sq. meters in Sy.No.59/2 of Gopuvanipalem village as per the order

of the 2nd respondent, dated 07.07.2017, but, it appears that

Sy.No.59/2 is wrongly mentioned in the order of 2nd respondent,

since it is the claim of the petitioner from the beginning in MSM, J wp_12199_2019

Sy.No.58/2. Therefore, the challenge before 1st and

2nd respondents is only the eviction of petitioner from the land

admeasuring 60.42 sq. meters, wherein the petitioner constructed

cattle shed and such encroachment is objectionable. Of course, the

1st respondent confirmed the order of 2nd respondent, who went on

holding that the petitioner encroached Ac.0.09 cents of land in

R.S.No.58/2, which was the subject matter of revision petitioner

before the 1st respondent.

27. According to Section 12-A of the A.P. Land Encroachment

Act, 1905 the powers of revision authority are limited and the

revision authority may call for the records either suo motu or on

the petition of either of the parties, examined the correctness,

regularity, propriety and illegality of the order, but cannot improve

the case either of the parties. But, in the present case obviously for

the reasons best known to the 1st respondent transgressed his

jurisdictional limits under Section 12-A of the A.P. Land

Encroachment Act, 1905 recorded a finding that the petitioner

encroached Ac.0.09 cents in Sy.No.58/2 of Gopuvanipalem Village,

Pamidimukkala Mandla, Krishna District and in fact it was not an

issue before the 3rd and 2nd respondents. Even the 2nd respondent

also passed an order for removal of encroachments from the land

in an extent of 60.42 sq. meters in Sy.No.58/2 of Gopuvanipalem

village. The findings recorded by the 1st respondent with regard to

Ac.0.09 cents of land in R.S.No.58/2 of Gopuvanipalem village are

beyond the scope of revision and it is not a subject matter of the

appeal.

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28. Therefore, recording such findings beyond the scope of

revision petition is nothing but exercise of excessive jurisdiction

transgressing the jurisdictional limits specified under Section 12-A

of the A.P. Land Encroachment Act, 1905. The 1st respondent

instead of examining the correctness, legality, propriety and

regularity of the order passed by the 2nd respondent recorded

several unwarranted findings relating to encroachment of the

property, which is now subject matter of the revision petition or

the appeal before the 1st respondent and the subject matter of the

appeal and original proceedings before the 3rd and

2nd respondents. Therefore, the findings with regard to

encroachment of Ac.0.09 cents in R.S.No.58/2 of Gopuvanipalem

Village, Pamidimukkala Mandla, Krishna District recorded by the

1st respondent are hereby set aside as those findings are uncalled

for or unwarranted and those findings were recorded exceeding the

jurisdiction that conferred on him under Section 12-A of the A.P.

Land Encroachment Act, 1905.

29. As the petitioner himself filed an affidavit during hearing on

04.09.2021, no further adjudication is required to be issued.

However, for better appreciation, the specific para in the affidavit is

extracted hereunder:-

Para 2: I further humbly submit that I am absolute owner, possessor and enjoyer of house and site property bearing Door No.1-70, covered by Survey No.58/2 of Gopuvanipalem Village in Pamidimukkala Mandal, Krishna District, which is my ancestral property. While the matter stood thus, in the year 2017, 2nd respondent issued proceedings, dated 07.07.2017 under Land Encroachment Act, 1905 and passed an order saying that I encroached to the extent of 60.42 sq. meters wherein my cattle shed is situated. As a matter of fact, I have not at all encroached any tank poramboke land. I filed revision before the 1st respondent and the same was incorrectly dismissed. Questioning the same, I filed present Writ Petition. During the course of arguments, it is pointed out that the revisional authority instead of finding what is mentioned in the proceedings of Revenue Divisional Officer i.e., extent of Ac.60.42 sq. meters went to the extent of Ac.0.09 cents. Since I am not maintaining any cows and she buffalos in the said land and the same is acquired by the respondents for the purpose of beautification of Village. I am ready to give up the above said mentioned land of 60.42 sq. meters in the MSM, J wp_12199_2019

proceedings, dated 07.07.2017, instead of Ac.0.09 cents as mentioned in the order of revisional authority. This Hon‟ble Court having taken note of the incongruity in the Revisional Authority‟s Order, dated 18.07.2019 was pleased to point out to confine the claim to the extent of 60.42 sq. meters. In those circumstances, I was asked to file an affidavit to that effect. Hence this affidavit is filed for kind consideration of this Hon‟ble Court."

30. In view of withdrawing his claim over an extent of 60.42 sq.

meters in R.S.No.58/2 of Gopuvanipalem Village, Pamidimukkala

Mandal, Krishna District, no further adjudication is required to be

issued by this Court as to the legality of the order passed by the

2nd and 3rd respondents as confirmed by the 1st respondent

limiting the order passed by the 1st respondent to an extent of

60.42 sq. meters in R.S.No.58/2 of Gopuvanipalem Village,

Pamidimukkala Mandal, Krishna District.

31. In view of my foregoing discussion, the orders passed by the

2nd and 1st respondents are hereby confirmed limiting the extent of

encroachment to 60.42 sq. meters in R.S.No.58/2 of

Gopuvanipalem village, Pamidimukkala Mandal, Krishna District,