Andhra Pradesh High Court - Amravati
Bhumireddy Papireddy Gari Chennamma vs The State Of Andhra Pradesh on 7 March, 2024
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
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NJS, J
WP_29666_2022 & batch
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATHI
HON'BLE SRI JUSTICE NINALA JAYASURYA
WRIT PETITION Nos.29666 OF 2022, 15255, 15273 & 15276 of 2023
W.P.No.29666 of 2022
Gangarapu Narasamma & two others ... Petitioners
Versus
The State of Andhra Pradesh & Others ..... Respondents
Counsel for the petitioners : Mr.M.Delhi Babu
Counsel for the respondents : G.P. for Revenue
Mr.G.L.Nageswara Rao
COMMON ORDER:
As the grievance of the petitioners is common, these writ petitions are disposed of by a Common Order.
2. Heard learned counsel for the petitioners. Also heard Mr.G.L.Narasimha Reddy, learned Government Pleader for Revenue and Mr.G.L.Nageswara Rao, learned counsel appearing on behalf of Medical Officer, Community Health Centre, Y.S.R. District.
3. The petitioners filed W.P.No.29666 of 2022 to declare the action of the 2 nd respondent therein in trying to construct a Community Health Centre in the lands in Survey No.1105/B1 situated in S.Mydukuru Village, without following due process of law, as illegal, arbitrary etc.
4. The petitioners claim that the 4th respondent / Tahsildar had granted DKT pattas in favour of the petitioners for an extent of Ac.1.55 cents each in the said survey number vide DKT file Numbers 273/5, 272/5 and 274/5 dated 19.01.2005. It is their case that the revenue authorities mutated the names of petitioners in 2 NJS, J WP_29666_2022 & batch the relevant revenue records and they are in peaceful possession and enjoyment of the said individual extents of lands, they have invested huge amounts for cultivating the said lands, dug bore wells and availing the electricity connections. CONTENTIONS:
5. The learned counsel for the petitioners submits that on the earlier occasion, when there was an interference by the revenue authorities with the subject matter lands, the petitioners were constrained to file individual Writ Petition Nos.21548, 21493 and 21533 of 2020 and the same were disposed of by Orders dated 19.11.2020, wherein the petitioners were directed to submit explanations to the notices dated 01.10.2020 issued to them under the provisions of Madras Land Encroachment Act, 1903 and the respondents therein were directed to consider the same and pass appropriate orders. He submits that till passing of Final Orders, the respondents were directed not to dispossess the petitioners from the subject matter lands.
6. He further submits that subsequent to the above referred orders, the Tahsildar had not passed any orders, but as the petitioners were threatened to vacate the lands in question, they filed C.C.Nos.3086, 3413 and 3098 of 2022. He submits that thereafter in view of the attempts to dispossess the petitioners forcibly from the subject matter lands, the petitioners filed W.P.No.29666 of 2022 and a learned Judge of this Court granted interim orders dated 22.09.2022 in I.A.No.1 of 2022 not to dispossess the petitioners from the subject matter lands. He submits that while that being the position, the revenue-authorities/respondent No.4 in W.P.No.29666 of 2022 filed a counter-affidavit alleging inter alia that the 3 NJS, J WP_29666_2022 & batch Pattas granted in favour of the petitioners are fake, fabricated and bogus and surprisingly in the counter, it was stated that pursuant to the Orders dated 19.11.2020 in W.P.Nos.21493, 21533 and 21548 of 2020, the 4th respondent passed Orders dated 10.12.2020 under the provisions of Land Encroachment Act (for short 'the Act') and copies of the same were filed along with the said counter. He submits that in the said counter-affidavit, the respondent No.4 also filed a copy of the Advance Possession Hand Over Certificate dated 24.08.2022 in respect of the subject lands. He submits that under those circumstances, the petitioners filed separate W.P.Nos.15255 of 2023, 15273 of 2023 and 15276 of 2023, challenging the individual Orders dated 10.12.2020 under Section 6 of the Act. He submits that the said orders dated 10.12.2020 were not communicated to the petitioners at any point of time and brought into existence, with a view to circumvent the orders granted in W.P.No.29666 of 2022.
7. While contending that the action of the revenue authorities is in gross violation of principles of natural justice and that the petitioners are in possession of the subject matter lands, raised paddy crops, he also submits that as per the Dotted Lands Act (UPDATION IN RE-SETTLEMENT REGISTER) ACT, 2017, the petitioners are entitled for regularization. In this regard, he submits that the petitioners made representation in Spandana Programme to the District Collector on 10.02.2020 and the same is pending consideration. The learned counsel further contends that the allegation of fake and fabricated Pattas and the averments in the counter-affidavit are wholly untenable. He submits that no enquiry has been conducted with regard to the genuineness or otherwise of the 4 NJS, J WP_29666_2022 & batch Pattas and they were not cancelled and in such circumstances, the Pattas granted to the petitioners shall be treated as legal and valid.
8. Insofar as the orders under Section 6 of the Act, the learned counsel submits that the same have been passed, without considering the explanations of the petitioners. He submits that the very fact of granting of 48 hours time for vacating the subject lands from the date of receipt of the orders of the Tahsildar under Section 6 of the Land Encroachment Act, itself shows that the authorities are acting in an arbitrary and high handed manner. Relying on the decisions of a learned Judge of the erstwhile High Court of Andhra Pradesh at Hyderabad in Kadiyala Sudershan v. Government of A.P., 1 Rahmatullah Khan and Another v. Govt. of Andhra Pradesh2 the learned counsel would contend that the impugned orders passed under Section 6 of the Act are liable to be set aside.
9. On the other hand, the learned Government Pleader for Revenue, made elaborate submissions with reference to the counter-affidavit filed by the concerned Tahsildar. Drawing the attention of this Court to the Pattas stated to have been granted in favour of the petitioners i.e., Exs.P1 to P3 in W.P.No.29666 of 2022, he contends that except date and file number, no other details were mentioned in the said Pattas. He submits that the relevant fasili year, was not stated in the said pattas and the same were not emanated from the Office of the concerned Tahsildar, Mydukur. Referring to the material on record, he submits that there are no entries of DKT No.273, 272 and 274 granted in the names of the petitioners and no DKT files are available in the office of the concerned Tahsildar. 1 2013(5) ALD 212 2 2014(2) ALT 814 5 NJS, J WP_29666_2022 & batch He submits that as seen from the list of Village Wise Prohibited Lands/Properties under Section 22-A(1)(B), Annexure-II of Mydukur Mandal, the land in Survey No.1105-B1 is classified as AW (Assessed Waste), belongs to the Revenue Department, that there is no sub-division and in such circumstances, the question of granting Pattas does not arise.
10. The learned Government Pleader also strenuously contends that the names of the petitioners were not placed before the Constituency Level Assignment Committee for grant of DKT Pattas and without Assignment Committee's approval, without files and without entries in the Mandal DKT Register, the petitioners are basing their claim on fabricated / bogus DKT Pattas. He submits that had the Pattas been genuine, the petitioners would have got their names mutated in the revenue records and the very fact that no entries were made in favour of the petitioners would belie the case set up by them. He submits that no material i.e., Manual Pattadar Pass Books and Title Deeds, 1-B Register, Adangals / Pahanis reflecting the names of the petitioners have been filed and in the absence of which, they cannot be treated as assignees / pattadars or that they were in possession of the subject matter lands. The learned Government Pleader also submits that as the petitioners refused to receive the orders passed under Section 6 of the Act, the same were placed in the Village Secretariat / Ward Sachivalayam, by obtaining due endorsements of responsible officials and the petitioners instead of availing the remedy of appeal against the said orders, filed the writ petitions and the same are liable to be dismissed.
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NJS, J WP_29666_2022 & batch
11. He further submits that the lands in question were already handed over to the officials of A.P.Vaidya Vidhan Parishad for construction of 100 bedded hospital to cater the needs of public at large and the petitioners with oblique motives and to grab the valuable Government land, are coming in the way of authorities in proceeding with the construction of the hospital. He submits that in fact, a complaint was lodged against the petitioners on 11.09.2022 and the enquiry is in progress. Making the said submissions, the learned Government Pleader urges for dismissal of the writ petitions.
CONSIDERATION:
12. This Court has examined the submissions made and perused the material on record.
13. At the outset, it is appropriate to note that at the first instance all the three petitioners in the present batch of cases filed three separate writ petitions i..e, W.P.Nos.21493, 21548 and 21533 of 2020 challenging the notices issued under Section 7 of Madras Land Encroachment Act, 1903 and the same were disposed of by separate orders dated 19.11.2020. The relevant portion of the order reads as follows:
"5. Considering the above submissions, the Writ Petition is disposed of, at the stage of admission with the consent of both the counsel, directing the petitioner to make an application / explanation to the notice issued by the respondents dated 01.10.2020 bringing all the legal aspects and also the relevant material to the notice of the authorities within two (o2) weeks from the date of receipt of a copy of this order. On such filing the explanation, the respondents are directed to consider the same and pass appropriate orders. Till passing of final orders, the respondents are directed not to dispossess the petitioner from the subject land. No costs."7
NJS, J WP_29666_2022 & batch
14. Pursuant to the said orders, the petitioners submitted their explanations dated 30.11.2020 through registered post and it appears that the Tahsildar received the same on 03.12.2020. Thereafter, alleging that the respondents are forcibly trying to evict the petitioners from the subject land without passing orders in terms of the directions extracted above, and are trying to dispossess the petitioners without following due process of law, they filed W.P.No.29666 of 2022. A learned Judge at the time of admission of the said writ petition, passed a detailed order dated 22.09.2022 not to interfere with the petitioners' possession. It appears that nothing is stated by the revenue officials at that time about passing of orders dated 10.12.2020 pursuant to the notices issued to the petitioners under the Land Encroachment Act. Be that as it may.
15. The 4th respondent / Tahsildar in W.P.No.29666 of 2022 filed a counter-affidavit along with copies of the said orders dated 10.12.2020 which are impugned in W.P.Nos.15255, 15273 and 152756 of 2023. In the said counter-affidavit, except making a statement that the Mandal Revenue Inspector, Mydukur evicted the petitioners from the subject land, no details with regard to date on which the petitioners were evicted, drawing of panchanama and steps, if any, taken to protect the lands including erection of Caution Board etc; were divulged.
16. Further, nothing is stated by the Tahsildar in the counter-affidavit about giving of Advance Possession of the lands in question on 24.08.2022 for the purpose of construction of Community Health Centre. The said 8 NJS, J WP_29666_2022 & batch aspect was however mentioned in the counter-affidavit of the respondent No.2 in W.P.No.29666 of 2022.
17. Thus there are disputed questions of facts with regard to possession of the subject matter lands, apart from a serious issue with regard to genuineness of the Pattas, which according to the respondents are fake, bogus and fabricated. Both these issues since involve factual controversies cannot conveniently be adjudicated in the present proceedings under Article 226 of the Constitution of India. Therefore, this Court is confining itself to the aspect of validity or otherwise of the Orders dated 10.12.2020 passed under Section 6 of the Act.
18. As noted earlier, the said orders came to be passed pursuant to the orders dated 19.11.2020 in W.P.No.21493 of 2020 etc., filed by the petitioners. To that extent there is no dispute. However, the respondents contend that after passing of the said orders, they were sought to be served on the petitioners, but as they refused to receive the same, the said orders were placed in the Village Secretariat / Ward Sachivalayam in Mydukuru Municipality. Whereas the counsel for the petitioners strenuously contend that the said submission is not correct and only as an afterthought the said orders were brought into existence. Thus, it is yet another issue which requires examination of factual aspects.
19. At this juncture, it may be recalled that the respondents have not stated anything about the said orders dated 10.12.2020, when the interim orders dated 22.09.2022 were passed in W.P.No.26966 of 2022. Further, as 9 NJS, J WP_29666_2022 & batch seen from the replies submitted by the petitioners to the notices issued to them, they furnished their house numbers. No material is available on record to show that the impugned orders dated 10.12.2020 were sent through registered posts. This Court is at loss to understand as to why the Tahsildar/Revenue authorities had not adopted the mode of sending the orders in registered post when the addresses of the parties / petitioners are very much available and more particularly when they refused to receive the same. Non mentioning of the passing of orders and the plea taken by the respondents that the same were placed in the Village Secretariat on the premise that the petitioners refused to receive the same, raise serious doubts as though to suit their convenience, the said stand was taken. However, this Court is not inclined to further probe in the matter as the impugned orders, even otherwise, are not sustainable for the reasons mentioned hereinafter.
20. Admittedly, to the notices dated 01.10.2020, the petitioner's submitted explanation through registered post on 03.12.2020. Thereafter, the impugned orders were passed on 10.12.2020. Though there is a mention in the orders that the encroachers / petitioners have not attended enquiry for verification of documents, no details are available as to when the petitioners were called upon to attend the enquiry after submission of the explanations. In such circumstances, the enquiry, if any, conducted in the absence of the petitioners amounts to violation of principles of natural justice and the impugned orders on the basis of such enquiry are not sustainable. 10
NJS, J WP_29666_2022 & batch
21. Further, through the impugned orders, the petitioners were granted 48 hours time to vacate the land and at the same time informed that an appeal lies against the said orders before the R.D.O., within 30 days. That itself shows that the concerned Tahsildar was acting with haste, determined to evict the petitioners even before the statutory period of appeal is expired and the same supports the contention of high handed action and arbitrary exercise of power.
22. In Rahmatullash Khan's case referred to above, a learned Judge of the erstwhile High Court of Andhra Pradesh was dealing with a matter where the Tahsildar allowed three days time to the petitioner for vacating the land pursuant to an order passed by him. Though the learned Judge did not interfere in the matter as an appeal had been preferred against the order of eviction, keeping the ground realities in view, inter alia, opined as follows:
"This Court has been constantly noticing that while passing eviction orders, the primary authorities (Tahsildars concerned) have not been granting reasonable time to the aggrieved parties for vacation of the premises and the appellate authorities are not passing orders on the interlocutory applications, filed seeking stay of interim orders. As a result of this lack of rational approach on the part of the primary as well as appellate authorities, the legal remedies of appeal and revision are rendered otiose.
A fundamental feature of our legal system is right to avail further remedies wherever the extant statutory enactments provided for such remedies. Such a legal right cannot be scuttled by fixing arbitrary time limits for implementation of the orders, which are subject to further legal remedies at the option of the aggrieved parties. Respondent No.1 is therefore directed to issue a circular to the authorities under the Act to provide at least thirty days' time, which is stipulated as limitation for filing appeals for vacation of the properties covered by the eviction orders. The Circular shall further provide that the appellate authority shall pass an appropriate order on the stay application as 11 NJS, J WP_29666_2022 & batch expeditiously as possible and in any case not later than three days from the filing of the stay application. Respondent No.1 shall send a copy of the circular to the Registrar(Judicial) for being placed before this Court within one month from the date of receipt of this order."
23. Despite the above mentioned position and orders, in the present case the Tahsildar granted 48 hours to the petitioners for vacating the lands which is not legal, just or valid. Any action on the basis of such an illegal order is not tenable.
24. In view of the conclusions based on factual and legal position, the impugned orders dated 10.12.2020 are not sustainable and the same are accordingly set aside. This order however would not preclude the concerned Tahsildar to pass appropriate orders, in accordance with Law, after giving opportunity to the petitioners. Till passing of orders afresh, status quo existing as on today, including the nature of the subject matter lands shall be maintained.
25. It is made clear that this Court has not examined the matter with regard to the genuineness of the Pattas alleged to be fake, bogus etc., and the competent authority is at liberty to take action in the matter, in accordance with Law, by giving due opportunity to the petitioners.
26. In the result, Writ Petition Nos.15255, 15273 and 15276 of 2023 are allowed. W.P.No.29666 of 2022 is disposed of in the light of the directions referred to above. No order as to costs.
Consequently, miscellaneous applications, pending if any, shall stand closed.
____________________ NINALA JAYASURYA, J Date: 07.03.2024 BLV 12 NJS, J WP_29666_2022 & batch HON'BLE SRI JUSTICE NINALA JAYASURYA Writ Petition Nos. 29666 OF 2022, 15255, 15273 & 15276 of 2023 Dt: 07.03.2024 BLV