Andhra Pradesh High Court - Amravati
Allu Satyanarayana, vs The State Of Andhra Pradesh on 25 August, 2021
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION No.18203 of 2021
ORDER:
This petition is filed under Article 226 of the Constitution of India, seeking the following relief:-
"...to issue a Writ of Mandamus, declaring the Notice issued by the respondent No.4 vide 1) Rc.No.203/2021/C.S, dated 17.08.2021 under Section 6 of the Madras Act III of 1905 and
2) Rc.No.203/2021/C.S, dated 15.07.2021 under Section 7 of the Madras Act III of 1905, as arbitrary, illegal, without jurisdiction and violative of Article 14, 21 and 300A Constitution of India and consequently set aside the same and pass such other order."
2. It is the case of the petitioner that the petitioner is in long possession and enjoyment of the subject 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, notices dated 17.08.2021 and 15.07.2021 were issued under Sections 6 and 7 of Madras Land Encroachment Act 03 of 1905 respectively to the petitioner.
3. The main contention of 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 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".
1 AIR 1982 SC 1081 -2-
4. Instead of approaching the Civil Court to establish the title by respondent No.4, 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.
5. Learned Assistant Government Pleader for Revenue submitted that a notice dated 18.05.2021 was issued under Section 7 of the Madras Act 3 of 1905, requested to pass appropriate orders.
6. 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 3 of 1905, which is not applicable to the present alleged encroachment in Andhra Pradesh.
7. On perusal of the impugned notices, it is clear that no specific date and time is fixed for submitting explanation in terms of Section the A.P. Land Encroachment Act, hence, notices are incomplete. Hence, the petition is liable to be dismissed setting aside the impugned notices dated 17.08.2021 and 15.07.2021.
8. 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 (1) supra). In the said judgment, the Apex Court candidly held that the -3- Government, in summary proceedings, cannot unilaterally decide its own title over the property, and the remedy is only to approach the competent Civil Court seeking declaration of title.
9. If the said principle is applied to the present facts of the case, remedy open to respondent No.4 is 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 (1) supra). Therefore, the petitioners 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"
10. With the above direction, the writ petition is disposed of. No costs.
As a sequel, interlocutory applications, if any pending shall stand closed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 25.08.2021 IS 2 2004 (1) SCC 769 -4- THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY Writ Petition No.18203 of 2021 Date: 25.08.2021 IS