Andhra Pradesh High Court - Amravati

Chapala Mallikarjuna Reddy, ... vs Superintendent Engineer, ... on 15 November, 2022

 HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

         WRIT PETITION Nos. 20621, 28104 and 30916 of 2013


COMMON ORDER:


         Since the relief prayed and the facts in these three writ

petitions are one and the same, these three writ petitions are heard

together and are being disposed of by way of this common order.


2.       For the sake of convenience and to avoid ambiguity in the

discussion, the facts in W.P.No.20621 of 2013 are taken into

consideration.

i)       W.P.No.20621 of 2013 is filed to declare the action of the

respondents in dispossessing the petitioners and threatening them

to remove the mango trees raised in the agricultural land in an

extent of Ac.1.50 cents each situated in Sy.No.1 of

Tirumalarajupeta Revenue Village, Penagalur Mandal, Kadapa

District, without having any authority and without following due

process of law, as illegal and arbitrary.

ii) It is the case of the petitioners that the father of the 1 st

petitioner and petitioner Nos.2 and 3 were granted licences by the

then Tahsildar, Penagalur Mandal, under Board Standing Order

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No.19-B to raise mango plants in an extent of Ac.1.50 cents each in

Sy.No.1 of Tirumalarajupeta Revenue Village of Penagalur Mandal

in the year 1990. Pursuant to the licences granted by the then

Tahsildar, Penagalur Mandal, the father of the 1st petitioner and

petitioner Nos.2 and 3 raised mango plants in their respective lands

and now, the mango trees have come to fruit bearing. As per the

terms of licence, the petitioners are entitled to enjoy the usufructs

of the mango trees without claiming rights over the subject land.

The petitioners have been paying cist to their land. It is the further

case of the petitioners that the father of the 1st petitioner was issued

a notice under Section 7 of the Land Encroachment Act by the 4 th

respondent-Tahsildar on 11.08.1994 calling upon him to submit an

explanation within one week, for which the father of the 1 st

petitioner submitted an explanation to the 4th respondent. After

receipt of the explanation, the 4th respondent neither passed any

order and nor intimated any action. Since then, the petitioners have

been in possession and enjoyment of their respective lands and

they are eking out their livelihood out of the usufructs of the

mango trees. Since 1994, no steps were initiated by the

respondents, more particularly, by the 4th respondent even after

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issuance of the notice dated 11.08.1994. While so, now respondent

Nos.2 and 3 are threatening to dispossess the petitioners from their

lands due to political vengeance. On 25.06.2013, the 2nd

respondent came to the lands of the petitioners and threatened the

petitioners to evict them from their lands. Having no other option,

the petitioners preferred the present writ petition.

3. The 2nd respondent filed a counter affidavit wherein it is

stated that the land to the extent of Ac.1.50 cents and Acs.3.00 in

Sy.No.1 of Tirumalarajupeta Revenue Village of Penagalur Mandal

in YSR Kadapa District is river poramboke of Cheyyeru river in

YSR Kadapa District. The said land belongs to the Irrigation

Department. The then Mandal Revenue Officer, Penagalur, gave

cowl pattas under B.S.O.No.19-B for an extent of Ac.1.50 cents

each to the petitioners for raising mango plants along the boundary

of the above said lands. It is further stated that the cowl patta

granted to the petitioners will not confer any rights over their lands.

Moreover, the then Mandal Revenue Officer, Penagalur, neither

took prior permission nor obtained consent from the Irrigation &

CAD Department before granting licences to the petitioners in

respect of their lands. During the inspection conducted by the 2nd

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respondent, it was found that the mango plants are raised in the

river bed of the Cheyyeru river and the petitioners encroached into

the Cheyyeru river. It is also stated that the licences granted to the

petitioners by the then Mandal Revenue Officer, Penagalur are

liable to be cancelled and appropriate steps would be taken in this

regard. The petitioners have no right over their lands and

therefore, the writ petition is devoid of any merit and is liable to be

dismissed.

4. The facts in all the writ petitions are similar and respondent

Nos.2 and 3 filed counter affidavits separately in all the writ

petitions on similar lines. Hence, it is not necessary to discuss

again the averments in the other writ affidavits as well as in the

other counter affidavits.

5. After hearing both the learned counsels, in all the writ

petitions, this Court passed interim orders directing the respondents

not to interfere with the possession of the petitioners over their

lands and not to dispossess them from their lands.

6. Learned counsel for the petitioners would submit that

pursuant to the cowl pattas/licences granted by the 4th respondent,

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the petitioners raised mango plants by spending huge amounts and

also taken care for growing of the mango plants; since 30 years

they have been eking out their livelihood out of the usufructs of the

mango trees; and the petitioners have been paying cist to their

lands. Therefore, their legal possession cannot be interrupted

without following due process of law. The learned counsel would

also submit that even if the petitioners are in unauthorised

occupation of their lands, they shall not be evicted without

following due process of law and without observing the principles

of natural justice. In support of his contentions, he relied upon the

judgment rendered by this Court in Ravipudi Abbayya Vs. State of

A.P.1 and also the judgment of the Hon'ble Supreme Court in

Government of A.P. Vs. Thummala Krishna Rao2. He, therefore,

prays to allow the writ petitions.

7. On the other hand, learned Government Pleader for

Irrigation appearing for the respondents would submit that the 4 th

respondent-Tahsildar is not the competent authority either to grant

pattas or to grant licences for raising mango plants in the subject

lands in favour of the petitioners, since the subject lands are the

AIR 1960 AP 134 (V 47 C 45) (1)

AIR 1982 SC 1081

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river poramboke of Cheyyeru river and they are vested with the

Department of Irrigation and CAD. The possession of the

petitioners under the cowl pattas is not valid, since the 4th

respondent is not the competent authority to issue such pattas in

respect of river poramboke lands. He would further submit that the

petitioners raised the mango plants within the river bed of

Cheyyeru river and the same cannot be permitted. He would also

submit that the respondent authorities will follow due process of

law before evicting the petitioners from the subject lands.

Therefore, the writ petitions are liable to be dismissed.

8. Having regard to the contentions submitted by the learned

counsel for the petitioners as well as the learned Government

Pleader for Irrigation appearing for the respondents, it is an

admitted fact that that the petitioners were granted licences by the

4th respondent-Tahsildar for raising mango plants in the subject

lands and that they have been eking out their livelihood out of the

usufructs of the mango trees. It is also an admitted fact that the

subject lands are within Cheyyeru river poramboke which is under

the control and management of the 2nd respondent.

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9. The contention of the learned counsel for the petitioners that

as the petitioners are in long possession of the subject lands by

virtue of the licences granted by the 4th respondent-Tahsildar and

they had spent huge amounts for raising and growing the mango

plants and they have been eking out their livelihood out of the

usufructs of the mango trees, their possession cannot be disturbed

and they cannot be evicted from the subject lands without

following due process of law, is to be considered, in view of the

judgments relied on by the learned counsel for the petitioners

referred to supra.

10. In Ravipudi Abbayya (1 supra), in para Nos.17,19 and 20 of

its judgment, this Court held as under:

"17. On the question whether such occupation of the land and cultivation would constitute adverse possession, reliance has been placed by the learned counsel for the appellant on the decision of the Privy Council reported in Secy, of State v. Debendralal Khan, ILK MANU/PR/0046/1933wherein their Lordships observed as follows:

"As to what constitutes adverse possession, a subject which formed the topic of discussion in the case, their Lordships adopt the language of Lord Robertson in delivering the judgment of the Board in Radhamoni Debi v. Collector of Khulna ILR Cal 943 at p. 930 where his Lordship said that:

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"the possession required must be adequate in continuity, in publicity and in extent to show that it was possession adverse to the competitor".

The classical requirement is that the possession should be nec vi nec clam nec precario (openly, continuously and as of right), Mr. Dume for the Crown appeared to desiderate that the adverse possession should be shown to have been brought to the knowledge of the Crown but in their Lordships' opinion, there is no authority for this requirement. It is sufficient that the possession be overt without any attempt at concealment so that the person against whom time is running, and who, if he exercises due vigilance, be aware of what is happening. If the rights of the Crown have been openly usurped, it cannot be heard to plead that the fact was not brought to its notice. The Limitation Act is indulgent to the Crown in one respect only, namely, in requiring a much longer period of adverse possession than in the case of a subject; otherwise there is no discrimination in the Statute between the Crown and the' subject as regards the requisites of adverse possession".

In this case, however, there is abundant proof that the Government were fully aware of the possession of the plaintiff as can be seen from the evidence of the two karnams P.Ws. 7 and 8 in the case and also from the fact that the cist receipts produced for a period ranging from 1921 to 1951 showed the plaintiff as the cultivating ryot. Reliance has also been placed on Section 110 of the Indian Evidence Act which is as follows;

"When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner".

The plaintiff's possession over a period of time having been established in this case, the burden of proving that the plaintiff had no right to remain in possession by reason of the fact that the Government are owners would be on the Government, and this burden of proof has, in my opinion, not been discharged by the Government in this case.

19. In this case the learned counsel for the appellant contends that none of the steps laid down by the Act have been

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taken in this case excepting service of notices periodically under Section 7 of the Act, and that such service is ineffective and does not give rise to a cause of action. (Vide Secretary of State for India in Council v. Illikal Assan ILR Mad 727 : (AIR 1917 Mad 480 IFB). It is pointed out that any act or attempt at summary eviction without following the procedure is totally illegal and cannot be recognised as valid and that in this case according to the evidence of D W. 7 the so-called delivery of possession on 4-3-1951 has no legal effect whatsoever in view of the fact that the procedure under the Act had not been followed at all and that this so-called delivery of possession was in derogation of the stay order issued by the Collector of the District even in February, 1951 ordering stay of further proceedings and of delivery of possession, this order having been in force at least till 14-3-1951.

20. I am fully in agreement with the conclusions reached by the learned District Munsif which, in my opinion, are fully justified on the material placed on record in this case, that the so-called delivery of possession to the Village Munsif by the Deputy Tahsildar is both illegal and ineffective and cannot be given any recognition whatsoever and that the same cannot be regarded as eviction within the meaning of the Madras Land Encroachment Act. Even assuming that the so-called delivery said to have been effected by D. W. 7 is true, it cannot, in my opinion, affect the plaintiffs right to remain in possession of the suit properties, which right is based on long user extending over 60 years or thereabouts prior to 1951.

It is clear from the materials placed on record in this case that the plaintiff had been cultivating the suit lands throughout the year 1951 when the defendants 2 and 3 came on the scene by virtue of the temporary assignments in their favour by the Government and continued in possession to date. I am satisfied on the evidence before me that there has been no interruption whatsoever to the possession by the plaintiffs, of the suit properties. Apparently being fully alive to the weakness of their case on the merits and also to the infructuous character of the action taken under the Madras Land Encroachment Act we find the Government maintaining an absolutely neutral and unconcerned attitude in this case, by not filing a written statement or taking part in the trial of

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the suit or in the argument both in the trial Court as well as in the lower appellate Court.

It is only here that the learned Government pleader submitted his arguments which had been adopted in toto by the counsel for the other defendants. Even before me, I may point out that the learned Government Pleader stated that so long as no relief of declaration of adverse possession against Government is given, he has no objection to the other reliefs prayed for being granted. On this point. as has already been pointed out, there is even now a declaratory decree standing against the Government in favour of the plaintiff declaring the plaintiff's right to the suit properties, which had become final."

11. In Government of A.P (2 supra), the Hon'ble Apex Court in

para 10 of its judgment held thus:

"10. The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary inquiry contemplated by Sections 6 and 7 of the Act. The long possession of the respondents and their predecessors-in-title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddin from whom the respondents claim to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. May be, that the Government may succeed in establishing its title to the property but, until that is done, the respondents cannot be evicted summarily."

12. The contention of the learned Government Pleader for

Irrigation that the 4th respondent-Tahsildar has no jurisdiction

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either to grant pattas or to grant licences in favour of the petitioners

for raising the mango plants in the subject lands since the lands are

vested with the Irrigation Department, is to be considered basing

upon the records available with the 2nd respondent-Executive

Engineer and the 4th respondent-Tahsildar. The other contention of

the learned Government Pleader that the petitioners raised the

mango plants into the river bed of Cheyyeru river causing

obstruction for free flow of water in the Cheyyeru river is also to

be considered. The other contention of the learned Government