Andhra Pradesh High Court - Amravati

Unknown vs M. Varadappa Naidu (D) on 11 October, 2021

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
                            AND
           THE HON'BLE SRI JUSTICE M.GANGA RAO

             WRIT APPEAL (SR) NO. 31787 OF 2021

JUDGMENT:

This appeal is filed under Clause 15 of Letters Patent Appeals

against the orders passed by the learned Single Judge in I.A.No.1

of 2021 in W.P.No.22529 of 2021, dated 03.10.2021, where under

the possession of this petitioner is protected, directing the

respondents not to interfere with the possession and enjoyment of

the land and building in Survey No.478 vide Khata No.365 of

Tiruchanoor village, Tirupati Rural, Chittoor District. But, while

granting an interim order, the learned Single Judge granted liberty

to the respondents to conduct their operations insofar as Survey

No.479 of Tiruchanoor Village, Tirupati Rural, Chittoor District,

having khata No.20000512 of Tiruchanoor Village, Chittoor District

is concerned. It is also made clear in the order, in view of the

controversies in regard to the land on ground the respondents

were directed to conduct survey for demarcation of Survey

Nos.478 and 479 of the Tiruchanoor Village giving notice to the

petitioner as well as the other concerned. The survey report along

with sketch and drawings showing about demarcation and noting

down the physical features of the subject land of petitioner, a

direction was issued to the respondents, to file along with counter

affidavit.

2. The main grievance of this petitioner is that taking

advantage of the last paragraph of the order impugned granting

liberty to the respondents to conduct their operations insofar as

Survey No.479 is concerned, they issued notice in

Roc.A/300/2021, dated 05.10.2021, only to this petitioner by the

Tahsildar, proposing to conduct survey on 09.10.2021 at

10.00 a.m. marking a copy to this petitioner and other officials

without marking any copy to the neighbouring owners of the land.

Therefore, the last paragraph of the order impugned is now under

challenge, by camouflaging the order, the revenue officers may

demolish the building of this petitioner, taking advantage of the

survey report and therefore, the same is illegal and part of

sentence of the order is contrary to the law. The respondents are

taking advantage of such direction exercising their power to

demolish the building, without identifying the land in Survey

No.479 on ground properly and without issuing notice to other

neighbouring owners of the land.

3. Learned counsel for the petitioner, at the stage of admission,

reiterated the contentions and mainly contended that in view of

the direction in last paragraph of the order impugned, the

respondents may attempt to demolish the building of the

petitioner, as if the building is in Survey No.479 of Tiruchanoor

Village, Tirupathi Rural, Chittoor District. Whereas the learned

Government Pleader for Revenue, Sri G.L.Nageswara Rao,

contended that the land in Survey No.479 is classified as 'vaagu

poramboke' and belongs to the Government. Therefore, any

construction therein is liable to be demolished, whereas the

Government Pleader for irrigation also supported the action of the

respondents.

4. As seen from the material on record including the allegations

made in the affidavit filed before the learned Single Judge and

orders passed by the learned Single Judge, it is evident that the

petitioner is claiming to be in possession and enjoyment of the

land in an extent of Ac.6.21 cents in Survey No.478 of Tiruchanoor

Village, Tirupati Rural, Chittoor District and raised constructions

therein accommodated hostel for girls in the college and other

buildings. But the contention of the respondents is clear that the

petitioner occupied 'vagu poramboke' in Survey No.479, which

exclusively belongs to the Government, and any occupation cannot

be allowed. In view of the controversies, the learned Single Judge

directed the respondents to conduct survey by following the due

process of law and demarcate the land in Survey Nos.478 and 479

on ground while granting permission to conduct further operations

in survey No.479. Taking advantage of this direction, the

respondents even without issuing notice to the neighbouring

owners/ryots of the land in Survey Nos.478 and 479 proceeding

with conducting survey and to identify the land/demarcate the

land on ground without issuing notice to others itself is irregular as

contended by the learned counsel for the petitioner, Sri Y.Srinivasa

Murthy, that in terms of Section 10(1) of A.P. Survey and

Boundaries Act, however, finding cannot be recorded in the

present appeal as the appeal is limited, questioning the last

paragraph of the order impugned passed by the learned Single

Judge, therefore, we are not going to decide about the legality in

conducting survey, leaving it open to the petitioner to challenge

the same by filing appropriate proceedings.

5. Even assuming for a moment that the case of the

respondents is true without conceding, if the petitioner is found in

possession and enjoyment of the land in Survey No.479 of

Tiruchanoor Village, Tirupathi Rural, Chittoor District, certainly

such possession can be described as unauthorized, in such case,

the respondents are bound to follow the procedure prescribed

under law.

6. In Rame Gowda (D) By Lrs vs M. Varadappa Naidu (D)

By Lrs. & Anr1, Ram Rattan v. State of Uttar Pradesh2 and

Munshi Ram v. Delhi Administration3, the Apex Court

consistently held that the person, who in settled possession cannot

be dispossessed except by due process of law.

7. Applying the same principle to the present facts of this case,

assuming for a moment that the case of the respondents is true

that the petitioner is in occupation of the land in Survey No.479 of

Tiruchanoor Village, still the respondents are bound to follow the

procedure for removal of unauthorized occupation, if any, even

after conducting proper survey strictly adhering the procedure

prescribed under A.P.Survey and Boundaries Act.

8. Having regard to the facts and circumstances of the case,

recording the submissions of learned Government Pleader for

Revenue and learned Government Pleader for Irrigation, it is a fit

case to modify the order while permitting the respondents to

follow the due process prescribed under law to remove the

encroachments, if any, in the land in Survey No.479 of

AIR 2004 SC 4609

1975 AIR 1674 = 1975 SCR 299

1968 AIR 702 = 1968 SCR (2) 408

Tiruchanoor Village, Tirupati Rural, Chittoor District affording

reasonable opportunity to the petitioner and other affected

persons.

9. Apart from that, demolitions cannot be undertaken on the

festival days as held by the Full Bench of Apex Court in 3 Aces,

Hyderabad vs. Municipal Corporation of Hyderabad1 with the

following guidelines:

"When the Corporation comes to the conclusion, keeping the above guidelines in view, that the construction in question is required to be demolished or pull down, it should follow the procedure indicated below:

(i) The demolition should not be resorted to during festival days declared by the State Government as public holidays excluding Sundays. If the festival day declared by the Government as a public holiday falls on a Sunday, on that Sunday also, the Corporation should not resort to demolition.

(ii) In any case, there should not be any demolition after sun set and before sun rise.

(iii) The Corporation should give notice of demolition as required by the statute fixing the date of demolition. Even on the said date, before actually resorting to the demolition, the Corporation should give reasonable time, depending upon the premises sought to be demolished, for the inmates to withdraw from the premises. If within the time given the inmates do not withdraw, the Corporation may proceed with actual demolition;

These guidelines are laid down in view of the fact that the Corporation is a public authority and its action must be tested on the touchstone of fairness and reasonableness."

10. By applying the guidelines laid down by the Full Bench of the

High Court of the Andhra Pradesh, the respondents are bound to

follow the guidelines, deviations if any from the guidelines will lead

to serious consequences.

AIR 1995 AP 17

11. In view of our foregoing discussions, the last paragraph of

the orders impugned in the appeal, passed by the learned Single

Judge, challenged in the appeal is modified as follows:

The respondents are directed not to dispossess the petitioner

from the land in their possession/their enjoyment except by

following the due process of law affording reasonable opportunity

and further directed to follow the guidelines issued by the Full