Andhra Pradesh High Court - Amravati
Suttam Sivarama Subba Reddy vs The State Of Andhra Pradesh on 26 July, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.14439 OF 2021
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 tahsildar/ respondent No.3 (a) in issuing the impugned notice under Section 7 of the Act 3 of 1905 Madras Act (b) stating that the petitioner is an encroacher without deciding as to whether the petitioner is encroacher or not of the government property (c) not giving ample time to the petitioner to reply to the impugned notice dt.07.07.2021 issued by the tahsildar/respondent No. 3 (d) and also the tahsildar not coming forward for an out of court settlement by paying the petitioner the market value as compensation for the land of the petitioner required for road widening regarding the house building of the petitioner bearing H.No. 1/1238-2 with G Plus 1, situate in Sy.No. 636/1 extent Ac. 0.17 ½ cents in C.P. Brown colony of Yerramukkapalle Village of Kadapa town, without following the due process of law, in violation of the principles of natural justice without invoking any acquisition laws as illegal, arbitrary and unconstitutional and consequently, (a) to set aside the impugned notice of the respondent No. 3 issued to the petitioner dt.07.07.2021 vide ref No. B1/560/2021 (b) further direct the respondent No.3 to first decide the aspect of the petitioner is whether he is an encroacher or not of the government property as alleged (c) and later to give ample time to the petitioner to give his reply to any notice that would be issued by the Respondent No. 3 and (d) further to direct the Respondent No. 1 to 3 to come forward for an out of court settlement regarding the present issue regarding the acquisition and payment of compensation as per the market value to the petitioner for the purpose of road widening at the house of the petitioner € and till such time direct the respondents not to take any coercive steps and pass such other orders...."
It is the case of the petitioner that he is in long possession and enjoyment of the property having purchased the same under the registered sale deed, and his name was also mutated in the revenue records. While the matter stood thus, notice dated 07.07.2021 was issued under Section 7 of Madras Act 03 of 1905 to the petitioner. 2
The main contention of the learned counsel for the petitioner is that the petitioner is in long possession and enjoyment of the property having purchased the same under registered sale deed and his name was also mutated in the revenue records. Therefore, the petitioner cannot be dispossessed by exercising power under Section 7 of the Madras Land Encroachment Act. When the petitioner is in settled possession of the property, the remedy open to the respondents is to approach the Civil Court in view of the guidelines issued by the Apex Court in "Government of Andhra Pradesh v. Thummala Krishna Rao1". Instead of approaching the Civil Court to establish the title by the 3rd respondent, he issued notice under Section 7 of the Madras Act, invoking summary procedure to evict the petitioner from the land, requested to allow the writ petition.
Learned Assistant Government Pleader for Revenue submitted that a notice dated 07.07.2021 was issued under Section 7 of the Madras Land Encroachment Act 03 of 1905, requested to pass appropriate orders.
In fact, the A.P.Land Encroachment Act is in force, but instead of following the procedure under the A.P.Land Encroachment Act, notice was issued under the Madras Act 03 of 1905, which is not applicable to the present alleged encroachment in state of Andhra Pradesh.
On perusal of the impugned notice, it is clear that no specific date and time is fixed for submitting explanation in terms of Section 7 of the A.P.Land Encroachment Act, hence, notice is incomplete. On this ground, the notice dated 07.07.2021 is liable to be set aside. 1 AIR 1982 SC 1081 3 However, when the petitioner is in settled possession and enjoyment of the property, it is the obligation of the State to approach the competent Civil Court and obtain relief for eviction of the petitioner or removal of objectionable encroachments. This view is fortified by the judgment of the Apex Court in "Government of Andhra Pradesh v. Thummala Krishna Rao" (referred supra). In the said judgment, the Apex Court candidly held that the Government, in summary proceedings, cannot unilaterally decide its own title over the property, and their remedy is only to approach the competent Civil Court seeking declaration of title.
If the said principle is applied to the present facts of the case, remedy open to the 3rd respondent to approach the competent Civil Court to establish the title and for recovery of the possession. Hence, the respondents are at liberty to take appropriate action in terms of judgment of the Apex Court in "Government of Andhra Pradesh v. Thummala Krishna Rao" (referred supra). Therefore, the petitioner cannot be dispossessed, except by following the law laid down by the Apex Court in "Government of Andhra Pradesh v. Thummala Krishna Rao" (referred supra) and "Rame Gowda (dead) by L.Rs. v. M.Varadappa Naidu (Dead) by L.Rs2.
With the above direction, the writ petition is disposed of. No costs. Consequently, miscellaneous applications pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 26.07.2021 KK 2 2004 (1) SCC 769 4 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION No.14439 OF 2021 Date: 26.07.2021 KK