Research › Search › Judgment

Andhra High Court · body

2024 DIGILAW 782 (AP)

Rudraraju Rajesh Varma v. State of Andhra Pradesh

2024-07-15

TARLADA RAJASEKHAR RAO

body2024
ORDER : 1. Writ Petition No. 17650 of 2020 is filed under Article 226 of the Constitution of India for the following relief: “...to issue a writ, order or direction more particularly one in the nature of a writ of mandamus declaring the proceedings dt.14.09.2020 of the Secretary (Incharge), Ponnada Grampanchayat, Razole Mandal, East Godavari District in directing the petitioner not to proceed with the construction of the building while forwarding the proceedings MLR No. 05/2019 D.S. No. 05/2019-20 dated 14.05.2019 to the 2nd respondent for the cancellation as highly illegal, arbitrary exercise of power, without jurisdiction and violative of Art.19 and 300A of the Constitution of India and consequently to set aside the same and pass such other orders.” 2. Writ Petition No. 23576 of 2020 is filed under Article 226 of the Constitution of India for the following relief: “...to issue a writ, order or direction more particularly one in the nature of WRIT OF MANDAMUS declaring the eviction notice in Ref. B/1861/2020, dated 27.11.2020 issued under Section 7 of Andhra Pradesh Land Encroachment Act 3 of 1905 issued by the 4th respondent connected to my lands of Ac. 0.24 Cents in Sy. No. 327/2B1, Ac. 0.05 Cents in Sy. No. 327/2B, Ac. 0.05 Cents in Sy. No. 327/2B, Ac. 0.03 Cents in Sy. No. 327/2B1A, Ac. 0.02 Cents in Sy. No. 327/3 and Ac. 0.10 Cents in Sy. No. 327/2B1, thus total extent of Ac. 0.49 Cents of Ponnamanda Village in Razole Mandal of East Godavari District, without issuing Notice under Section 6 of the said Act, as illegal, irregular, arbitrarily, violative of principles of natural justice, without jurisdiction and violative of the provisions of Andhra Pradesh Land Encroachment Act, 1905 and offends Articles 14, 21 and 300-A of Constitution of India and consequently direct the respondents not to interfere with the petitioner's possession and enjoyment over said properties and pass such other orders.” 3. The property involved in both the Writ Petitions is one and the same and the parties are the same. Therefore, both the Writ Petitions are being disposed of by this common order. 4. The property involved in both the Writ Petitions is one and the same and the parties are the same. Therefore, both the Writ Petitions are being disposed of by this common order. 4. W.P. No. 17650 of 2020: A notice was caused by the Panchayat Secretary to the petitioner asserting that it is recommended to the District Panchayat Officer for cancellation of the approved proceedings in MLR No. 05/2019 D.S. No. 05/2019 dated 14.05.2019, basing upon Rule 8 of the Andhra Pradesh Grampanchayat Land Development (Layout and Building) Rules, 2002. 5. Assailing the said proceedings, the present Writ Petition came to be filed on the ground that the Secretary, Grampanchayat has no power to recommend to the District Panchayat Officer to cancel the permission granted by the Grampanchayat for construction of the building being the executive authority of the Grampanchayat and, however, the impugned proceedings were issued without considering the explanation and without giving any reasons and the petitioner herein has produced all the relevant documents to establish his rights and passed order under Rule 28 of the Andhra Pradesh Grampanchayat Land Development (Layout and Building) Rules, 2002, the executive authority or the District Panchayat Officer may revoke the permission, if it is found that such permission was obtained by fraudulent means or misrepresentation of facts. Therefore, prayed to allow the Writ Petition by setting aside the impugned proceedings. 6. The 2nd respondent-The District Panchayat Officer filed counter and stated that the petitioner herein has constructed the building in deviation of the plan and the explanation submitted by the petitioner is unsatisfactory and he admitted that the Panchayat Secretary is also competent to revoke the building permission sanction as per Rule 26 of the Andhra Pradesh Grampanchayat Land Development (Layout and Building) Rules, 2002. Hence, prays to dismiss the Writ Petition. 7. W.P. No. 23576 of 2020: The Tahsildar, Razole Mandal, has issued a notice under Section 7 of the Madras Act 3 of 1905 to the petitioner herein alleging that why the petitioner should not be evicted for encroaching the Government land in an extent of Ac. 0.32 cents out of Acs. 4.73 cents covered by Sy. No. 327/2B4 of Ponnamanda village in Razole Mandal. 8. 0.32 cents out of Acs. 4.73 cents covered by Sy. No. 327/2B4 of Ponnamanda village in Razole Mandal. 8. Assailing the same, the present Writ Petition is filed and it is asserted in the affidavit filed in support of the Writ Petition that the petitioner and his family members are the absolute owners, possessors and enjoyers of the landed property admeasuring Ac. 0.24 cents in Sy. No. 327/2B1, Ac. 0.05 cents in Sy. No. 327/2B, Ac. 0.05 cents in Sy. No. 327/2B, Ac. 0.03 cents in Sy. No. 327/2B1A, Ac. 0.02 cents in Sy. No. 327/3 and Ac. 0.10 cents in Sy. No. 327/2B1. Thus, total land of Ac. 0.49 cents of Ponnamanda village in Razole Mandal of East Godavari District and the said land was purchased at market value at Government of Andhra Pradesh, vide Ref.B.2-2972/84 dated 09.03.1984 issued by the predecessor-in-office of the 2nd respondent- District Collector and the 4th respondent-Tahsildar has collected 75% of market value and the same was assigned vide proceedings in Ref. No. 4255/82 dated 17.09.1984 and, accordingly, the petitioner has paid the amount by way of challan to the Government and the said property was mortgaged to avail housing loan for construction of building. When the then Tahsildar permitted the petitioner to mortgage the property in State Bank of India for obtaining housing loan for construction of building vide proceedings D. Dis. No. 449/1985 and 451/1985 dated 06.02.1985 and mortgage indicates and traces the title over the property and out of Ac. 0.49 cents, the petitioner herein has gifted the land of Ac. 0.10 cents to his son by name Rudraraju Rajesh Varma by executing a registered gift deed and his son obtained building permission and approved plan from the 6th respondent-Grampanchayat and constructed building in the said property. 9. The petitioner was directed by the 4th respondent by way of the impugned notice to submit an explanation on or before 07.12.2020 explaining why the petitioner should not be evicted from the said land. Despite submitting reply/objections dated 05.12.2020 to the 4th respondent and the impugned notice is highly illegal and they have not encroached the subject land and the assertions made in the impugned notice are totally incorrect and invented for the purpose of notice and the provisions of the Madras Act 3 of 1905 do not apply in any case and cannot bind on the petitioner under such provisions. The notice issued under Section 7 of the Madras Act 3 of 1905 was not followed a prior notice under Section 6 of the said Act and without considering the objections, the impugned notice was approved. Therefore, prayed to set aside the impugned notice. Additionally, it is argued that even assuming that the lands are government lands and the petitioners are in the possession since 1984. In order to evict the petitioner from the land, the respondents must comply with legal procedure by instituting a civil suit, and relied on the judgment of the Hon'ble Apex Court in Government of Andhra Pradesh v. Thummala Krishna Rao and another, 1982 INSC 37 : AIR 1982 SC 1081 , which suggests that when a title is in dispute, summarily eviction is not permissible. 10. The 5th respondent has filed counter and denied all the averments in the affidavit filed in support of the Writ Petition, inter alia, contended that as per the revenue record of Ponnamanda village, Sy. No. 327-2 is classified as government poramboke and full extent of Acs. 5.70 cents is notified in A. Register as tank and it was modified as village site and the survey number is subdivided as 327-2A is Ac. 0.45 cents in favour of Sri Kasilanka Rangarao and further 327-2B is subdivided into 327-2B1 of Ac. 0.25 cents, Sy. No. 327-2B2 of Ac. 0.24 cents, Sy. No. 327-2B3 of Ac. 0.03 cents and Sy. No. 327-2B4 of Acs. 4.73 cents and on verification, the present webland is adangal of Ponnamanda village. Sy. No. 327-2A of Ac. 0.45 cents land's nature is zirayati and classified as G.D. and it was notified in pattadar column is Sri Kasilanka Venkatesulu, son of Veeraswamy. Sy. No. 327-2B1 of Ac. 0.25 cents land's nature is Poramboku and in pattadar column it is notified as Gramakantam. Sy. No. 327-2B2 of Ac. 0.24 cents land nature is Poramboku and in pattadar column it is notified as Gramakantam and Sy. No. 327-2B3 of Ac. 0.03 cents land nature is Poramboku and in pattadar column, it is noticed as Gramakantam and Sy. No. 327-2B4 of Acs. 4.73 cents land nature is Poramboku and in pattadar column is notified as Mandabailu. 11. It is asserted that the documents, viz. A. Register, webland and adangal copies, belonging to the above mentioned/demonstrated survey numbers that the land belongs to the government. No. 327-2B4 of Acs. 4.73 cents land nature is Poramboku and in pattadar column is notified as Mandabailu. 11. It is asserted that the documents, viz. A. Register, webland and adangal copies, belonging to the above mentioned/demonstrated survey numbers that the land belongs to the government. The proceedings of the District Collector, East Godavari District, Kakinada, vide Ref/D2/2972/1984, dated 09.03.1984, the land was ordered to be reclassified from Tank (Madugu) Poramboku to Village Site Poramboku for consequential assignment as house sites to the eligible encroachers following the orders issued in G.O. Ms.No. 4875 (Rev.) (L) Department dated 10.12.1980. According to which, an extent of 50 square metres has to be assigned free of cost and the rest by collecting 75% market value from the beneficiary in the Sy. No. 327-2B1 of Ac. 0.35 cents, Sy. No. 327-2B2 of Ac. 0.14 cents and Sy. No. 327-2B3 of Ac. 0.03 cents in Ponnamanda village of Razole Mandal. 12. And it is further stated that the 5th respondent-Mandal Revenue Inspector has not issued any pattas and, in fact, there is no R.S. No. 327/2B1A at all and this proves the mollified intention of the writ petitioner. Hence, it is clarified that the writ petitioner herein encroached the land of Ac. 0.32 cents in Sy. No. 327/2B4, which is classified as Mandabailu Tank, Government Poramboke and therefore, prayed to dismiss the Writ Petition. 13. The property in dispute is with regard to Sy. No. 327 and its sub- division numbers. 14. Heard Sri Sita Ram Chaparla, learned counsel for the petitioner and the learned Assistant Government Pleader for Revenue and the learned Standing Counsel for the Grampanchayat, for the respondents. 15. Now the issue before this Court is, whether the notice issued under Section 7 of the Andhra Pradesh Land Encroachment Act, Madras Act 3 of 1905, is sustainable or is liable to be set aside? 16. 15. Now the issue before this Court is, whether the notice issued under Section 7 of the Andhra Pradesh Land Encroachment Act, Madras Act 3 of 1905, is sustainable or is liable to be set aside? 16. After giving the anxious considerations of the contentions raised by the petitioner as well as the respondents, it is the contention of the writ petitioner that the petitioner has purchased property by paying 75% of the market and the proceedings issued by the District Collector and the Tahsildar, which is explicitly indicate that the petitioner is the owner of the land and even assuming that the petitioner is the encroacher, the long possession of the property obtaining loan mortgaging the property to the bank and obtained ratification by the Tahsildar, it demonstrates the petitioners' prima facie right, title and interest over the property. When there is a prima facie title over the property, the respondent- authorities cannot summarily evict through notice impugned in the Writ Petition and, if at all they aggrieved, they have to file appropriate proceedings before the competent civil court for eviction. The Hon'ble Apex Court in Thummala Krishna Rao's case (supra), it is held in the following manner: “It seems to us clear from these provisions that the summary remedy for eviction which is provided for by Section 6 of the Act can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is “the property of Government.” In regard to properly described in sub-sections (1) and (2) of Section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction provided for in Section 6. A person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is in unauthorised occupation of property which is declared by Section 2 to be the property of the Government and, therefore, it is in public interest to evict him expeditiously which can only be done by resorting to the summary remedy provided by the Act. But Section 6 (1) which confers the power of summary eviction on the Government limits that power to cases in which a person is in unauthorised occupation of a land “for which he is liable to pay assessment under section 3.” Section 3, in turn, refers to unauthorised occupation of any land “which is the property of Government” If there is a bond dispute regarding the title of the Government to any property the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bona fide claim or title. The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary inquiry contemplated by Sections 6 and 7 of the Act. The long possession of the respondents and their predecessors-in- title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddio from whom the respondents claim to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. May be, that the Government may succeed in establishing its title to the property but, until that is done, the respondents cannot be evicted summarily.” 17. And the respondents have admitted that the petitioner has purchased the property though they are disputing the extent of land. Therefore, it evinces that the petitioner is having prima facie title over the property. As the petitioner is in settled possession of land almost more than 38 years and when the Government intended to evict the petitioner from the possession, they have to do under due procedure, cannot be evicted summarily as per the principles laid down in Thummala Krishna Rao's case (supra). 18. As the petitioner is in settled possession of land almost more than 38 years and when the Government intended to evict the petitioner from the possession, they have to do under due procedure, cannot be evicted summarily as per the principles laid down in Thummala Krishna Rao's case (supra). 18. Therefore, issuing notice to the petitioner calling him to submit explanation by invoking the provisions of the Andhra Pradesh Land Encroachment Act, Madras Act 3 of 1905, is an illegality and it is liable to be set aside and, accordingly, it is set aside. If the respondents are intended to take action against the petitioner, they have to follow the procedure and the guidelines laid down in the judgment of the Hon'ble Apex Court in Thummala Krishna Rao's case (1 supra). 19. With the above observations, both the Writ Petitions are allowed. There shall be no order as to costs. 20. As a sequel, interlocutory applications pending, if any, in these Writ Petitions, shall stand closed.