Andhra Pradesh High Court - Amravati
Dharmana Mahesh vs State Of Andhra Pradesh, on 20 February, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITON NO.3709 of 2020
ORDER:
This petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, questioning the action of respondents in issuing impugned notice, dt.01-02-2020 in respect of property admeasuring Ac.0.93 cents in Sy.No.194/1, and Ac.0.65 cents in Sy.No.211/1 of Mabagam Village, Polaki Mandal, Srikakulam District, under Section 7 of A.P. Land Encroachment Act, 1905, and declare the same as illegal, unwarranted, deliberate, unconstitutional and arbitrary against the law as well as principles of natural justice, consequently set aside the impugned notice.
Originally, grandfather (father's father) of petitioner acquired agricultural lands at Mabagam Village, including the land in Sy.Nos.211 and 194 apart from other land as per the partition decree, dt.06-05-1939 in O.S.No.1 of 1932 on the file of Subordinate Judge, Ganjam, Barhampur. Subsequent to his demise, the said property was devolved upon his only son i.e., the father of petitioner late Dharmana Suranaidu, who also died on 02-09-2020 leaving behind his wife and children. The land in dispute i.e. land in Sy.No.211 at Mabagam Village has been in possession and enjoyment of the petitioner and his predecessors in title and he is cultivating the same, by raising different crops. Pattadar pass books and title deeds were also issued in favour of the petitioner for the land in dispute.
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It is further contended that during the life time of his father late Dharmana Suranaidu filed declaration under Section 8 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. Challenging the order passed by Land Reforms Appellate Tribunal with regard to holding, during lifetime of the mother of petitioner, representing his father, as legal heir, she filed CRP No.4051/2001 and now the petitioner is prosecuting the said CRP, which is pending before this Court.
During life time of petitioner's father, the 2nd respondent initiated land acquisition proceedings in respect of land admeasuring Ac.0.37.5 cents in Sy.Nos.194/1, 194/2 and 194/3 of Mabagam Village, Polaki Mandal, Srikakulam District, during the year 1976 for construction of houses of SCs and BCs along with other lands in Sy.Nos.69/11, 70/1 to 70/7 of Mabagam Village and issued Form 7 notice to the father of petitioner. Questioning the same, father of petitioner filed a petition before the Government of Andhra Pradesh and the acquisition of land in Sy.Nos.194/1, 194/2 and 194/3 to an extent of Ac.0.37.5 cents was stayed by order Memo No.1961/C3/87-1, dt.27-08-1987, since then they have been in possession and enjoyment of the said land.
While the matter stood thus, the respondents made an attempt to interfere with the peaceful possession and enjoyment of the petitioner over the subject land, the petitioner approached this Court by filing W.P.No.454/2020 and this Court by Order dt.08-01-2020 issued a direction not to dispossess the petitioner from the subject matter of the land without following due process of law. Taking advantage of this order the respondents issued notice under Section 7 of the A.P. Land Encroachment Act, calling for explanation of the petitioner within seven (07) days, and at this stage, the notice is questioned. 3
The main contention before this Court is that when the petitioner is in possession and enjoyment of the property based on title under the decree of the year 1939 passed by the Subordinate Judge, Ganjam, Barhampur in O.S.No.1 of 1932 and thereafter several proceedings have been taken place, including the land acquisition and Proceedings under Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 and CRP is now pending before this Court.
Thus, the petitioner is in settled possession and his title is based on the decree in 1939 on the file of Subordinate Judge, Ganjam, Barhampur in O.S.No.1 of 1932. When the petitioner is in settled possession, he cannot be evicted summarily by initiating proceedings under A.P. Land Encroachment Act.
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 another1.
Despite directions issued by the Apex Court in the judgment referred above, no such scheme is framed and imiplemented for eviction of unlawful and illegal occupants of the subject property. Therefore, as the petitioner is in settled possession for a long time, the procedure has to be followed by the Government, when the Government intend to vacate the person in possession has to 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 petitioner calling him to submit his explanation within seven (7) days by 1 AIR 1982 Supreme Court 1081 4 invoking the provisions of the 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 respondents 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 Applications pending, if any, in this Writ Petition, shall stand closed.
___________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 20-02-2020 Note : Furnish CC by 26-02-2020.
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IS 5 THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY WRIT PETITION No.3709 of 2020 Date: 20-02-2020 Note : Furnish CC by 26-02-2020.
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