Andhra Pradesh High Court - Amravati

M/S. Facor Alloys Limited, vs The State Of Andhra Pradesh, on 19 April, 2022

Bench: M.Satyanarayana Murthy

  THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                WRIT PETITION No.16844 OF 2016

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 2nd respondent in issuing the notice Under Section 6 of The Land Encroachment Act, 1905 (No.3 of 1905) in respect of Land in Survey Nos.9, 12-1 and 12-2, 13-2 and 13-3, 20-1 to 20-5, 23-1 to 23-3, 24-1, 25-1 to 25-4, 33-2 to 33-5 and 33-10 of Duvvam Village, Garividi Mandal, Vizianagaram District, Andhra Pradesh even without referring and without considering the representations submitted by the petitioner on 15.3.2016 and 27.4.2016 as arbitrary, illegal, without jurisdiction and in violation of the well- settled principles of natural justice and pass such other order or orders...."

The petitioner company acquired different extents of land

in Sy.Nos.9, 12-1 and 12-2, 13-2 and 13-3, 20-1 to 20-5, 23-1 to

23-3, 24-1, 25-1 to 25-4, 33-2 to 33-5 and 33-10 of Duvvam

Village, Garividi Mandal, Vizianagaram District, Andhra Pradesh

under different registered sale deeds i.e., document

Nos.1229/1979, 944/1979, 931/1979, 930/1979, 923/1979,

921/1979, 663/1979 and 485/1975. Either the petitioners or

their predecessors have been in possession and enjoyment of the

subject lands since long time.

The respondent revenue authorities have issued pattadar

passbook and title deed in respect of some of the lands vide

Khata No.317 and UAN No.0222033317 and remaining area was

declared as part of estate under Estate Abolition Act and Survey

and Settlement operation vide G.O.Ms.No.212, Rev (JA-2)

Department, dated 06.05.2013, was taken place.

The 2nd respondent issued a notice dated 04.02.2016,

under Section 7 of the A.P.Land Encroachment Act, 1905, Act

No.3 of 1905 (for short 'the Act') demanding the petitioner to

surrender the subject lands with the structures therein, to the

Government. The said notice was served upon the representative

of the petitioner on 11.03.2016. On receipt of the said notice, a

representation was submitted by the petitioner on 15.03.2016,

bringing to the notice of the 2nd respondent about the nature of

the lands that is zeroyti lands and having purchased the same

under different sale deeds, requested the 2nd respondent to

withdraw the said notice and drop further proceedings.

Though a reply to the show-cause notice under Section 7 of

the Act was received, the 2nd respondent without even referring to

the reply/representation, issued a notice mechanically under

Section 6 of the Act, dated 13.04.2016 and the same was served

on the petitioner's company on 27.04.2016. On receipt of the

notice under Section 6 of the Act, again submitted another

representation, but noting was considered and issued a cryptic

notice under Section 6 of the Act, which is impugned in the writ

petition, on the ground that the notice issued without even

referring to the explanation submitted to the show-cause notice

and without passing any order under Section 7 of the Act is

illegal and arbitrary and requested to issue a direction.

The 2nd respondent filed counter denying the material

allegations explaining the history of the case as follows:

"Duvvaram village of Garividi Mandal is an Estate village of Vizianagaram Zamin Estate. This village was taken over by the Government under the provisions of E.A.Act, 1948 on 07-09-1949

along with main estate. After several court litigation from District Court to Supreme Court of India, Survey Settlement Operations were conducted and Settlement records were introduced w.e.f.1-7-2015. As per the Settlement Fair Adangal of Duvvam Village, Village Revenue Records have been prepared. During field azmoish, it is found that the following Government lands in Duvvam Village are in possession and enjoyment of Ms.Facor Alloys Limited, Garividi.

 Village           Sy.No and          Classification       Extent
                   S.D.No.

 Duvvam            9                  Poramboku            4.55

 Duvvam            12-1               Poramboku            0.62

 Duvvam            12-2               Poramboku            5.63

 Duvvam            13-2               Poramboku            7.51

 Duvvam            13-3               Poramboku            0.52

 Duvvam            20-1               Poramboku            4.17

 Duvvam            20-3               Poramboku            7.81

 Duvvam            20-4               Poramboku            1.90

 Duvvam            23-1               Poramboku            5.13

 Duvvam            23-2               Poramboku            2.47

 Duvvam            23-3               Poramboku            3.71

 Duvvam            24-1               Poramboku            19.46

 Duvvam            25-1               Poramboku            0.65

 Duvvam            25-3               Poramboku            1.63

 Duvvam            25-4               Poramboku            4.94

 Duvvam            33-2               Poramboku            0.13

 Duvvam            33-3               Poramboku            0.62

 Duvvam            33-4               Poramboku            1.17

 Duvvam            33-5               Poramboku            5.45

 Duvvam            20-5               Poramboku            4.97

 Duvvam            33-10              Poramboku            1.72

                   Total                                   84.76

As per the filed Azmolish, all the above Government Lands are under the Encroachment of M/s.Facor Alloys Limited, Garividi. In order to protect the Government Lands, Notice U/s.7 of the L.E.Act, 1905 has been issued to encroacher Company on 04.02.2016. In response to this notice, the encroacher Company has submitted a representation on 15.03.2016 stating that the above lands were purchased vide sale deed No.1229/79, 944/79, 931/79, 930/79, 923/79, 921/79, 663/79 and 485/75 and also they have got pattadar pass books for the part of the land vide Khata No.317 and the remaining area was declared as our own land as per E.A.Act, 1948. The encroacher company could not

submit any document in support of their claim. Hence treating the representation has no validity and Notice U/s.6 of the L.E.Act, 1905 has been issued on 13.04.2016. This notice was served on the encroacher company on 27.04.2016. In response to this notice also the encroacher company has submitted another representation on 27.04.2016 reiterating the same contents of the previous representation without enclosing any documentary evidence in support of their claim. The encroacher company has been an opportunity to produce all the documents in support of their claim on 30.05.2016 vide this office Rc.No.118/2016, S.A. Dt.24.05.2016. But the company has not produced any document and also not attend before the Tahsildar Garividi 30.05.2016.

Taking into consideration of the both the representations of the encroacher company has been rejected and also advised to approach the Revenue Divisional Officer, Vizianagaram within one month from the date of the rejection of their request vide this office Rc.No.118/2016, S.A.Dt.03.06.2016.

Instead of filing appeal before the Revenue Divisional Officer, Vizianagaram under the provisions of L.E.Act, 1905, the Writ Petitioner has filed this Writ Petition before the Hon'ble High Court and obtained the following interim orders: "Meanwhile, there shall be status quo with regard to the land in Sy.Nos.9, 12-1, 12-2, 13-2, 13-3, 20-1 to 20-5, 23- 1 to 23-3, 24-1, 25-1 to 4, 32-2 to 5 and 33-10 situated in Duvvam Village of Garividi Mandal, Vizianagaram District, Andhra Pradesh."

It is further contended that the land is belonging to the

Government and the petitioner has nothing to do with the

property and thereby the notice issued and orders passed, if any,

by the authorities, under the Act or in accordance with law and

sought vacating the interim order granted by this Court on

26.05.2015 in W.P.No.16844 of 2016 by a separate application.

Heard Sri Ganta Rama Rao, learned senior counsel

representing learned counsel for the petitioner on record and

learned Assistant Government Pleader for Revenue.

The main grievance of the petitioner is that though the

petitioner submitted a representation/explanation to the notice

dated 04.02.2016, bringing to the notice of the 2nd respondent,

certain facts of issue of notice under Section 7 of the Act vide

representation dated 15.03.2016, the respondents did not

consider the same and even without referring the same issued

notice under Section 6 of the Act and thereafter notice dated

04.02.2016 directing the respondents to vacate the land within

the specified time. A bare perusal of notice under Section 6 of the

Act shows that there is no reference about the

explanation/representation submitted by the petitioner to the

notice issued under Section 7 of the Act. A notice is issued in

mandatory compliance of Section 7 of the Act calling for

explanation from the petitioner. It is the duty of the 2nd

respondent to conduct necessary enquiry and pass appropriate

orders, affording an opportunity to the petitioner. Instead of

passing reasoned order and communicating the same, issued a

notice even without referring the explanation/representation

submitted by the petitioner to the notice issued under Section 7

of the Act and such issue of notice under Section 6 of the Act

without conducting any enquiry without passing a reasoned

order is contrary to the principle laid down by the learned Single

Judge of the Composite High Court in Kadiyala Sudershan

and others Vs. Government of Andhra Pradesh1, which reads

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."

2013 (6) ALT 42

Applying the principle laid down by the learned Single

Judge of Composite High Court to the present facts of the case, it

can safely be concluded without any hesitation that the notice

issued under Section 6 of the Act is in contravention of the

principle laid down in the judgment referred above.

Hence, the notice issued under Section 6 of the Act is liable

to be set aside, as no order was passed as mandated under

Section 7 of the Act after conducting enquiry, considering the

representation/explanation submitted to the show-cause notice

issued by the petitioner to the notice under Section 7 of the Act.

In view of my foregoing discussion, the notice issued under