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2020 DIGILAW 641 (AP)

P. Krishna Appa Rao v. State Of Andhra Pradesh

2020-10-05

M.SATYANARAYANA MURTHY

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JUDGMENT M Satyanarayana Murthy, J. - This writ petition is filed under Article 226 of the Constitution of India seeking the following relief: "to issue an order or direction, in the nature of writ of Mandamus, declaring the action of the respondents in initiation of proceedings under A.P.Land Encroachment Act, 1905 by issuing notice to the petitioner under Section 7 dated NIL as being illegal, arbitrary, and contrary to the provisions of A.P. Land Encroachment Act, 1905 and violative of Article 14, 21 and 300A of the Constitution of India, and consequently set aside the same while directing the respondents not to interfere with the possession of the petitioner over the land in Sy.No.190/4 of Pendurthi Village, Pendurthi Mandal, Visakhapatnam District." 2. It is the case of the petitioner that the petitioner 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 26.09.2020 was issued under Section 7 of Madras Act 03 of 1905 to the petitioner. 3. 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 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 Rao, (1982) AIR SC 1081 ". 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. 4. Learned Assistant Government Pleader for Revenue submitted that a notice dated 26.09.2020 was issued under Section 7 of the Madras Act 03 of 1905, requested to pass appropriate orders. 5. 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. 6. 5. 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. 6. 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 petition is liable to be dismissed setting aside the notice dated 26.09.2020. 7. 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. 8. 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 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.Rs., (2004) 1 SCC 769 " 9. With the above direction, the writ petition is disposed of. No costs. 10. Consequently, miscellaneous applications pending if any, shall stand closed.