Andhra Pradesh High Court - Amravati
Polavarapu Markandeyulu, vs State Of Ap on 6 February, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITON NO.20133 of 2020
ORDER:
This petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, questioning the impugned notice bearing R.C.No.1206/2019-DT, dt.26-11-2019, issued by the 3rd respondent herein to the petitioners, and declare the same as illegal, arbitrary and contrary to the provisions of A.P. Land Encroachment Act, 1905, and violative of Articles 19, 21 and 300-A of the Constitution of India.
It is the case of petitioners that their father purchased different extents of land in different survey numbers situated at Uppalapadu Sivaru, Gollamudi Village, Pedakakani Mandal, Guntur District under different registered sale deeds. The petitioners' father was in possession and enjoyment of the said property and obtained pattadar pass books and title deeds for the land in dispute. Besides the said land, the petitioners' father inherited land to an extent of Ac.0.40 cents in Sy.No.451 of Gollamudi Village. All these plots of land, is contiguous.
The petitioners' father expired on 07-10-2014 and during his life time their father executed a Will, dt.02-08-2014, which is his last Will executed in a sound disposing state of mind, bequeathing his entire property to the petitioners and therefore the petitioners being legal heirs are entitled to claim as owners of the property.
After death of his father, the petitioners though continued in possession and enjoyment of the property their names were not mutated in the revenue records, but a notice in R.C.No.1206/2019-DT, dt.26-11-2019 is issued to them under Section 7 of the Madras Land Encroachment Act, contending that they encroached the land to an extent of Ac.1.00 cents in Sy.No.451 of Uppalapadu Sivaru, Gollamudi Village, 2 which is allegedly classified as 'gramakantam' (Poramboku) and directed them to vacate and deliver vacant possession of the property and to submit their application within seven (07) days from the date of notice.
The said notice impugned in this writ petition is illegal on the ground that the petitioners are in long continuous possession and there were several transactions relating to this property. Thus, the petitioners are in settled possession and no action has been taken since long time. Therefore, the said possession cannot be described as an 'encroachment'.
In such a case, remedy open to the Government is to approach the Civil Court and not by invoking the provisions of Land Encroachment Act. It is also further contended that in spite of enacting separate Act by the State of Andhra Pradesh, issuance of notice under Madras Land Encroachment Act, is an another illegality. Even otherwise, 'gramakantam' is under the control of Gram Panchayat and unless the same is notified by exercising power under Section 58(2) of the A.P. Panchayat Raj Act, the Government cannot recover possession either by invoking provisions of the Land Encroachment Act or any other enactment.
It is also contended that when the land is classified as 'gramakantam' it cannot be vested on the government automatically. On this ground also, the Tahsildar is not competent to invoke the provisions of Land Encroachment Act and requested to set aside the notice issued under Section 7 of the Madras Land Encroachment Act impugned in this writ petition.
Whereas the learned Assistant Government Pleader for Revenue (Assignment) filed counter on behalf of the 3rd respondent alleging that as per RSR of Gollamudi, H/o Uppalapadu Village, the land in Sy.No.451 is classified as 'government poramboke' and in the remarks column it is 3 noted as 'Gramakantam - Village Site" with a total extent of Ac.5.58 cents and the land in Sy.Nos.452-2 and 452-3 is classified as 'government dry' (Patta land).
During the verification of Government lands, it was brought to the notice of the revenue officials that out of the total extent of land in Sy.No.451, an extent of Ac.1.00 cents is under the encroachment of the writ petitioners and an extent of Ac.4-58 cents is covered by residential houses, roads, temples etc., It is contended that the petitioners owned an extent of Ac.0.77 cents in Sy.No.452-2 and ac.0-58 cents in Sy.No.452-3 and they encroached the said extent of Ac.1.00 cents in Sy.No.451, which is adjacent to their patta lands. Thus, the petitioners are 'encroachers' and initiation of proceedings against the petitioner by invoking the provisions of Madras Land Encroachment Act itself is not an illegality.
It is also further contended that as per the reports of Village Revenue Officer, Gollamudi and Mandal Surveyor, Pedakakani, it is clearly revealed that the petitioners encroached the government land in Sy.No.451 of Gollamudi Village, H/o uppalapadu Village. The Grama Panchayat, Gollamudi has also passed a resolution for providing house sites to the landless poor in an extent of Ac.1.00 cents in Sy.No.451 of Gollamudi Village on 19-11-2019. As the petitioners have encroached the above said government land by raising paddy crop, in order to protect the valuable government land, the 3rd respondent issued notice in Form-7 to the petitioners on 26-11-2019, duly following the procedure prescribed under A.P. Land Encroachment Act, 1905 affording an opportunity to the petitioners to submit their explanation within seven (07) days from the date of receipt of the notice by registered post. Therefore, there is no illegality in issuing impugned notice and requested to dismiss the writ petition. 4
Along with the counter the learned Assistant Government Pleader for Revenue (Assignment) also filed copies RSR, Adangal/Pahani, Village Account No.3 to establish that subject land is classified as 'gramakantam' and requested to dismiss the writ petition. The petitioners also filed their reply affidavit to the counter by the 3rd respondent, almost reiterating the contentions in the main petition itself.
During hearing, learned counsel for petitioner while reiterating the contentions urged in the writ petition placed reliance on the judgment in the case of Sigadapu Vijaya v. State of Andhra Pradesh, rep. by its Principal Secretary, Revenue Department and others1, another judgment of Division Bench of this Court in Special Deputy Collector vs. Konda Lakshman Bapuji2 and judgment of Apex Court in Government of Andhra Pradesh vs. Thummala Krishna Rao and another3 finally to contend that issuance of notice under the provisions of Madras Act is an illegality, since the Madras Act has no application when the State enacted a separate enactment relying on the judgment of High Court of Judicature at Hyderabad for the State of Telangana and Andhra Pradesh in Madanapalle Burudu Medara Co-operative Society, Chittoor District vs. Sub-Collector, Chittoor District and others4.
On the strength of these principles the learned counsel for petitioners requested to set aside the impugned notice mainly on the ground that the procedure adopted by the 3rd respondent to vacate the petitioners from the land in dispute, is a serious illegality and contrary to the law declared by the judgment in Government of Andhra Pradesh vs. Thummala Krishna Rao and another.
1 2015 (4) ALT 296 2 1983 Law Suit (AP) 303 3 AIR 1982 Supreme Court 1081 4 (2019) 1 ALT 218 5 Whereas the learned Assistant Government Pleader for Revenue (Assignment) representing the 3rd respondent contended that as the land is classified as 'prabhutva bhoomi' though it is shown as 'gramakantam' in the adangal, it belongs to the Government and thereby the Government is entitled to evict the person in un-authorized possession by invoking the provisions of A.P. Land Encroachment Act and therefore issuance of notice under Section 7 of the Act is step-in-aid. Hence, the notice cannot be faulted and cannot be set aside declaring the action of the respondents as illegal and arbitrary and requested to dismiss the writ petition.
The main contention of the petitioners is that their father purchased the subject property under registered sale deeds dated 21-01-1983 and 22-01-1983 and their father was in possession and enjoyment of the property since the date of his purchase. Though, father of the petitioners was in possession during his life time and thereafter the petitioners are in possession and enjoyment of the property, no steps have been taken for the last 29 years, but, suddenly because of proposed assignment of house sites to the landless poor under the scheme of 'Navaratnalu - Pedalandariki Illu', this short-cut method of issuing notice under Section 7 of the Land Encroachment Act is started.
Even according to the material placed on record including the documents produced by the learned counsel for respondents would show that the land in dispute is classified as 'gramakantam' in columns 12 and 13 of adangal/pahani for the Fasli 1414 and other Faslis. But, the petitioners are in possession and enjoyment of the property. Even according to the notice issued under Section 7 of the Land Encroachment Act, in columns 14 and 15, it is shown as gramakantam instead of disclosing the name of the person, who is actually in occupation of the property.
6
Therefore, the classification as per adangals, if accepted, it cannot be termed 'the land belongs to the government' and it is under the control of 'Gram Panchayat' and when once it is classified as 'gramakantam' in view of the judgment in Sigadapu Vijaya v. State of Andhra Pradesh, rep. by its Principal Secretary, Revenue Department and others referred above the occupation of 'gramakantam' by its nature or classification does not belong to the government to include the same in the prohibitory list.
Therefore, the principle laid down in the above judgment is applied to the present facts of the case when the land is classified as 'gramakantam' cannot be treated as it belongs to the government to invoke the provisions of Land Encroachment Act by issuing notice to evict the person from the possession of the property describing him as an 'encroacher'.
Apart from the above contentions, the learned counsel for petitioners mainly contended that when the petitioners' father was in possession since 1983 i.e., almost more than 25 years, no steps were taken to remove the encroachment, if really, he was an encroacher during this long period of 25 years, but, suddenly the respondents issued the notice impugned in this writ petition. In such a case, the State has to approach the competent Civil Court for declaration of title and cannot invoke the provisions of the Land Encroachment Act, which is a summary procedure and the Apex Court in the judgment of Government of Andhra Pradesh vs. Thummala Krishna Rao and another held as follows:-
Sec. 6 (1) Any person unauthorisedly occupying any land for which he is liable to pay assessment under section 3 may be summarily evicted by the Collector, Tahsildar or Deputy Tahsildar and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by him after such written notice as the Collection Tahsildar. or Deputy Tahsildar may deem reasonable, be 7 liable to forfeiture. Forfeitures under this section shall be adjudged by the Collector, Tahsildar or Deputy Tahsildar and any property so forfeited shall be disposed of as the Collector, Tahsildar or Deputy Tahsildar may direct."
"Sec.7. Before taking proceedings under section 5 or section 6, the Collector or Tahsildar or Deputy Tahsildar as the case may be shall cause to be served on the person reputed to be in unauthorised occupation of land being the property of Government, a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against under section S or section 6."
Similar view is expressed by the Division Bench of this Court in Special Deputy Collector vs. Konda Lakshman Bapuji as follows:-
"Thus, the question of title as set at large. Admittedly, the writ petitioners are in possession of the land eversince the date of the registered lease deeds of 1956. Notices under Section 7 of the A.P. Land Encroachment Act were issued for the first time 1976 i.e., 20 years after the registered lease deeds. In fact the petitioners and their lessor claim to be in possession at least from 1952 i.e., nearly 25 years prior to the issuance of the impugned notices. Thus, their possession is not only long standing but also open and continuous and long before even the third party Rasheed Shapoorji Chenoy filed a suit claiming title in himself and denying the title of the government and seeking eviction of the writ petitioners".
Even this principle is applied to the facts of present case, the continuous long possession of the petitioners and their father from the date of purchase i.e., 1983 onwards without any interruption by anybody including the Government is sufficient to set aside the notice issued under Section 7 of the Madras Land Encroachment Act. Hence, the respondents have to approach the Civil Court to recover the property by applying the principle laid down in the Apex Court in Jagpal Singh and others vs. State of Punjab and others in which it is held that the protection of commons rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, in Chigurupati Venkata Subbayya vs. Paladuge Anjayya, 1972(1) SCC 521 (529) this Court observed as follows:- 8
"It is true that the suit lands in view of Section 3 of the Estates Abolition Act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away. The rights of the community over the suit lands were not created by the landholder. Hence those rights cannot be said to have been abrogated by Section 3) of the Estates Abolition Act.
Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."
In the present facts of the case despite directions issued by the Apex Court in the judgment referred above, no such scheme is framed and implemented for eviction of unlawful and illegal occupants of the site belonging to the Grampanchayat etc., but seeking to allot house sites to the landless poor under the scheme of "Navaratnalu Pedalandariki Illu"
vide G.O.Ms.No.571 Revenue (Assignment) Department, dated
14.09.2012 and G.O.Ms.No.259, Revenue (Assignment) Department dated 21.06.2016, short-cut method of evicting the un-authorized occupants, is invented by the Government, which is summary in nature.
Therefore, as the petitioners are in settled possession for more than 25 years, the procedure has to be followed by the Government, when the Government intend to vacate the person in possession has to 9 approach the Civil Court by applying the principle laid down in the case of Government of Andhra Pradesh vs. Thummala Krishna Rao and another. Therefore, issuing notice to the petitioners calling them to submit their explanation within 7 days by invoking the provisions of A.P. Land Encroachment Act is an illegality. Hence, the impugned notice is hereby set aside, while permitting the State to follow the guidelines issued in Government of Andhra Pradesh vs. Thummala Krishna Rao and another.
In the result, writ petition is allowed setting aside the impugned notice issued by the 3rd respondent under Section 7 of the Madras Land Encroachment Act, 1905, granting liberty to the Government to follow the guidelines issued by this Court in the case of Government of Andhra Pradesh vs. Thummala Krishna Rao and another.
As a sequel, Interlocutory A0pplications pending, if any, in this Writ Petition, shall stand closed.
___________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 06-02-2020 Note: Furnish CC by 19-02-2020.
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IS 10 THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY WRIT PETITION No.20133 of 2019 Date: 06-02-2020 Note: Furnish CC by 19-02-2020.
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