Andhra Pradesh High Court - Amravati
Unknown vs M. Varadappa Naidu (D) on 11 October, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
AND
THE HON'BLE SRI JUSTICE M.GANGA RAO
WRIT APPEAL (SR) NO. 31787 OF 2021
JUDGMENT:
This appeal is filed under Clause 15 of Letters Patent Appeals against the orders passed by the learned Single Judge in I.A.No.1 of 2021 in W.P.No.22529 of 2021, dated 03.10.2021, where under the possession of this petitioner is protected, directing the respondents not to interfere with the possession and enjoyment of the land and building in Survey No.478 vide Khata No.365 of Tiruchanoor village, Tirupati Rural, Chittoor District. But, while granting an interim order, the learned Single Judge granted liberty to the respondents to conduct their operations insofar as Survey No.479 of Tiruchanoor Village, Tirupati Rural, Chittoor District, having khata No.20000512 of Tiruchanoor Village, Chittoor District is concerned. It is also made clear in the order, in view of the controversies in regard to the land on ground the respondents were directed to conduct survey for demarcation of Survey Nos.478 and 479 of the Tiruchanoor Village giving notice to the petitioner as well as the other concerned. The survey report along with sketch and drawings showing about demarcation and noting down the physical features of the subject land of petitioner, a direction was issued to the respondents, to file along with counter affidavit.
2. The main grievance of this petitioner is that taking advantage of the last paragraph of the order impugned granting liberty to the respondents to conduct their operations insofar as 2 Survey No.479 is concerned, they issued notice in Roc.A/300/2021, dated 05.10.2021, only to this petitioner by the Tahsildar, proposing to conduct survey on 09.10.2021 at 10.00 a.m. marking a copy to this petitioner and other officials without marking any copy to the neighbouring owners of the land. Therefore, the last paragraph of the order impugned is now under challenge, by camouflaging the order, the revenue officers may demolish the building of this petitioner, taking advantage of the survey report and therefore, the same is illegal and part of sentence of the order is contrary to the law. The respondents are taking advantage of such direction exercising their power to demolish the building, without identifying the land in Survey No.479 on ground properly and without issuing notice to other neighbouring owners of the land.
3. Learned counsel for the petitioner, at the stage of admission, reiterated the contentions and mainly contended that in view of the direction in last paragraph of the order impugned, the respondents may attempt to demolish the building of the petitioner, as if the building is in Survey No.479 of Tiruchanoor Village, Tirupathi Rural, Chittoor District. Whereas the learned Government Pleader for Revenue, Sri G.L.Nageswara Rao, contended that the land in Survey No.479 is classified as 'vaagu poramboke' and belongs to the Government. Therefore, any construction therein is liable to be demolished, whereas the Government Pleader for irrigation also supported the action of the respondents.
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4. As seen from the material on record including the allegations made in the affidavit filed before the learned Single Judge and orders passed by the learned Single Judge, it is evident that the petitioner is claiming to be in possession and enjoyment of the land in an extent of Ac.6.21 cents in Survey No.478 of Tiruchanoor Village, Tirupati Rural, Chittoor District and raised constructions therein accommodated hostel for girls in the college and other buildings. But the contention of the respondents is clear that the petitioner occupied 'vagu poramboke' in Survey No.479, which exclusively belongs to the Government, and any occupation cannot be allowed. In view of the controversies, the learned Single Judge directed the respondents to conduct survey by following the due process of law and demarcate the land in Survey Nos.478 and 479 on ground while granting permission to conduct further operations in survey No.479. Taking advantage of this direction, the respondents even without issuing notice to the neighbouring owners/ryots of the land in Survey Nos.478 and 479 proceeding with conducting survey and to identify the land/demarcate the land on ground without issuing notice to others itself is irregular as contended by the learned counsel for the petitioner, Sri Y.Srinivasa Murthy, that in terms of Section 10(1) of A.P. Survey and Boundaries Act, however, finding cannot be recorded in the present appeal as the appeal is limited, questioning the last paragraph of the order impugned passed by the learned Single Judge, therefore, we are not going to decide about the legality in conducting survey, leaving it open to the petitioner to challenge the same by filing appropriate proceedings. 4
5. Even assuming for a moment that the case of the respondents is true without conceding, if the petitioner is found in possession and enjoyment of the land in Survey No.479 of Tiruchanoor Village, Tirupathi Rural, Chittoor District, certainly such possession can be described as unauthorized, in such case, the respondents are bound to follow the procedure prescribed under law.
6. In Rame Gowda (D) By Lrs vs M. Varadappa Naidu (D) By Lrs. & Anr1, Ram Rattan v. State of Uttar Pradesh2 and Munshi Ram v. Delhi Administration3, the Apex Court consistently held that the person, who in settled possession cannot be dispossessed except by due process of law.
7. Applying the same principle to the present facts of this case, assuming for a moment that the case of the respondents is true that the petitioner is in occupation of the land in Survey No.479 of Tiruchanoor Village, still the respondents are bound to follow the procedure for removal of unauthorized occupation, if any, even after conducting proper survey strictly adhering the procedure prescribed under A.P.Survey and Boundaries Act.
8. Having regard to the facts and circumstances of the case, recording the submissions of learned Government Pleader for Revenue and learned Government Pleader for Irrigation, it is a fit case to modify the order while permitting the respondents to follow the due process prescribed under law to remove the encroachments, if any, in the land in Survey No.479 of 1 AIR 2004 SC 4609 2 1975 AIR 1674 = 1975 SCR 299 3 1968 AIR 702 = 1968 SCR (2) 408 5 Tiruchanoor Village, Tirupati Rural, Chittoor District affording reasonable opportunity to the petitioner and other affected persons.
9. Apart from that, demolitions cannot be undertaken on the festival days as held by the Full Bench of Apex Court in 3 Aces, Hyderabad vs. Municipal Corporation of Hyderabad1 with the following guidelines:
"When the Corporation comes to the conclusion, keeping the above guidelines in view, that the construction in question is required to be demolished or pull down, it should follow the procedure indicated below:
(i) The demolition should not be resorted to during festival days declared by the State Government as public holidays excluding Sundays. If the festival day declared by the Government as a public holiday falls on a Sunday, on that Sunday also, the Corporation should not resort to demolition.
(ii) In any case, there should not be any demolition after sun set and before sun rise.
(iii) The Corporation should give notice of demolition as required by the statute fixing the date of demolition. Even on the said date, before actually resorting to the demolition, the Corporation should give reasonable time, depending upon the premises sought to be demolished, for the inmates to withdraw from the premises. If within the time given the inmates do not withdraw, the Corporation may proceed with actual demolition;
These guidelines are laid down in view of the fact that the Corporation is a public authority and its action must be tested on the touchstone of fairness and reasonableness."
10. By applying the guidelines laid down by the Full Bench of the High Court of the Andhra Pradesh, the respondents are bound to follow the guidelines, deviations if any from the guidelines will lead to serious consequences.
1 AIR 1995 AP 17 6
11. In view of our foregoing discussions, the last paragraph of the orders impugned in the appeal, passed by the learned Single Judge, challenged in the appeal is modified as follows:
The respondents are directed not to dispossess the petitioner from the land in their possession/their enjoyment except by following the due process of law affording reasonable opportunity and further directed to follow the guidelines issued by the Full Bench in 3 Aces, Hyderabad vs. Municipal Corporation of Hyderabad.
12. With the above direction, the Writ Appeal is disposed of. There shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M. SATYANARAYANA MURTHY ___________________ JUSTICE M. GANGA RAO Date: 11.10.2021 Note: Furnish C.C. today.
(B/o.) SPP 7 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY AND THE HON'BLE SRI JUSTICE M.GANGA RAO WRIT APPEAL (SR) NO. 31787 OF 2021 Date: 11.10.2021 Note: Furnish C.C. today.
(B/o.) SPP