Andhra Pradesh High Court - Amravati

Chellaboyina Pothuraju vs The State Of Andhra Pradesh on 6 December, 2022

Bench: Ninala Jayasurya

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

      THE HON'BLE SRI JUSTICE NINALA JAYASURYA

              WRIT PETITION No.38264 of 2022
Between:-
Chellaboyina Pothuraju                           ....    Petitioner
                               And
The State of Andhra Pradesh, represented
by its Principal Secretary, Revenue Department,
Secretariat, Velagapudi, Amaravathi, Guntur District
and Others.                                 ..... Respondents

Counsel for the Petitioner     : Mr. V.N.V.Surya Dattu
Counsel for the respondents : G.P. for Revenue

ORDER:

Heard learned counsel for the petitioner and learned

Assistant Government Pleader for Revenue appearing for the

respondents. With the consent of both sides, the Writ Petition is

being disposed of at the stage of admission.

2. The petitioner aggrieved by the Notice dated 16.11.2022

issued by the 4th respondent under Section 6 of A.P.Land

Encroachment Act, 1905 (for short 'the Act') seeking to evict the

petitioner from the agricultural landed property admeasuring

Ac.0.50 cents in Survey No.181-4C and Ac.2.14 cents in various

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sub-division numbers of S.No.188 situated in Vemulapalli Village of

Lingampalem Mandal, filed the present Writ Petition.

3. Learned counsel for the petitioner while referring to the

averments made in the Writ Petition and the material filed along

with the same, inter alia, contends that the impugned Notices

dated 25.10.2022 and 16.11.2022 have been issued in gross

violation of principles of natural justice, offends the petitioners'

rights under Articles 14, 21 and 300-A of the Constitution of India.

She submits that the action of the respondents is also unjust and

arbitrary in as much as under the guise of the said notices, the

respondents are trying to dispossess the petitioner from the

subject matter land, without adhering to the provisions of the Act.

4. The learned counsel submits that the petitioner is the

absolute owner and possessor of agricultural land of an extent of

Ac.1.92 cents covered by different sub-division numbers of Survey

No.188 of Vemulapalli Village. She submits that the respondent-

authorities have mutated the said land in favour of the petitioner in

all the revenue records and granted Pattadar Pass Book vide Patta

No.859 under the provisions of Pattadar Pass Books Act. She

submits that the petitioner also owns a patta land of an extent of

Ac.0.22 cents covered in Survey No.188-1 of the said village, which

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was assigned by way of D-Form patta to the petitioner. She

submits that to the petitioner's utter shock, a notice dated

25.10.2022 under Section 7 of the Act was issued to the petitioner

alleging encroachment of some extent of land covered by Survey

No.181-4(c) of Vemulapalli Village and invited objections as to

why the petitioner shall not be evicted from the subject land. She

submits that the petitioner submitted explanation dated

01.11.2022 and without considering the same, the impugned

notice dated 16.11.2022 was issued. She submits that as the

petitioner submitted explanation to the notice under Section 7 of

the Act, the 4th respondent ought to have passed a reasoned order

by duly considering the petitioner's explanation/objections.

Drawing the attention of this Court to the impugned notice dated

16.11.2022, the learned counsel submits that the same is bereft of

reasons and the same is liable to be set aside in view of the well

settled principles of Law. The learned counsel also submits that in

fact Section 7 notice itself in vague. The petitioner is deprived of

giving a suitable reply, as the notice is lacking in material

particulars and defective.

5. The learned counsel placing reliance on the decisions

reported in Whirlpool Corporation v. Registrar of Trade

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Marks, Mumbai & Others1 and Kadiyala Sudershan v.

Government of Andhra Pradesh2 etc., seeks to allow the Writ

Petition.

6. Learned Assistant Government Pleader for Revenue on the

basis of Remarks dated 24.11.2022 received from the concerned

Tahsildar-4th respondent, advanced arguments and tried to sustain

the impugned proceedings, dated 16.11.2022 stating that the said

orders were passed after giving opportunity to the petitioner. He

further submits that the petitioner instead of availing the

opportunity of filing an appeal against the impugned proceedings,

had straightaway approached this Court and the Writ Petition itself

is not maintainable. Accordingly, he prays for dismissal of the Writ

Petition.

7. This Court has considered the submissions made and

perused the material on record. A close scrutiny of the arguments

advanced on behalf of the petitioner coupled with averments made

in the Writ Petition, would disclose that the petitioner is aggrieved

by the action of the 4th respondent in issuing impugned

proceedings dated 16.11.2022, under Section 6 of the Act. It is

(1998) 8 SCC 1

2013(5) ALD 212

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not in dispute that pursuant to the notice dated 25.10.2022 issued

under Section 7 of the Act, the petitioner submitted explanation,

setting out the various aspects/pleas. As is discernible from the

proceedings impugned in the Writ Petition dated 16.11.2022 issued

under Section 6 of the Act, there is no discussion about the

explanation/reply submitted by the petitioner to the notice under

Section 7 of the Act, much less consideration of the same and

recording conclusions thereof. Non-consideration of the

petitioner's explanation is fatal, and the writ petition is liable to be

allowed on that ground.

8. Further the order/proceedings dated 16.11.2022, is cryptic

and bereft of reasons. The same is therefore, liable to be set aside.

In S.N.Mukherjee v. Union of India 3, the Hon'ble Supreme

Court has held as follows:

"36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi- judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations

(1990) 4 SCC 594

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show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law."

9. In Kadiyala Sudershan's case referred to supra, a learned

Judge of the erstwhile High Court of Andhra Pradesh at Hyderabad

in similar facts and circumstances, allowed the Writ Petition and it

is profitable to extract the relevant portion, which reads thus:

"5. 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 the evicted, he has to

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issue a notice in the prescribed form. Though the provisions of Section 6 of the Act 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 envisaged 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 decided the appeal.

6. From the scheme of the Act, I am of the opinion that the notice of eviction prescribed under Section 6 of the Act, which is akin to a decree, needs to be supported by a reasoned order comparable to a judgment. Otherwise, Section 7 of the Act providing for issuance of a show-cause notice would be rendered nugatory or reduced to an empty formality."

10. In the light of the above settled legal position, the Writ

Petition is allowed in part, by setting aside the impugned

proceedings/notice dated 16.11.2022. The matter is remanded to

the 4th respondent for passing appropriate reasoned order within a

period of six (6) weeks from the date of receipt of a copy of this

Order, in accordance with Law, after affording an opportunity of

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hearing and by duly taking into consideration the explanation

dated 01.11.2022 submitted by the petitioner, apart from the

factual aspect of non-issuance of proper notices to the

concerned/effected parties. No order as to costs.

As a sequel, miscellaneous petitions pending, if any, shall