Allowed

Shaik Jilaani, v. The State of Andhra Pradesh

Andhra Pradesh HC21 Jul 2021WP/14374/2021

Case brief

AI extract

What is this about?

The Court set aside an eviction notice under Section 6 of the A.P.L.E. Act issued without reasons and without affording an opportunity of hearing, holding it violative of natural justice principles established in Kadiyala Sudershan.

What did the court decide?

Notice under Section 6 of the A.P.L.E. Act set-aside; respondents directed not to dispossess petitioner pending appropriate action following due process.

Shaik Jilaani, Vs The State of… — Constitutional and Fundamental Rights | Andhra Pradesh HC (2021)

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MSM,J Wp_14374_2021

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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WRIT PETITION No.14374 of 2021

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ORDER :

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This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:

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“to issue an order or direction, in the nature of writ of Mandamus, declaring the Notice under Section (6) of A.P.L.E.Act III of 1905 vide Rc.B.114/2021, dated 19.07.2021 issued by the 4^th respondent as illegal, arbitrary and contrary to the procedure established by law and contrary to the principles of natural justice apart from being violative of Article 14, 19(g), 21 and 300A of the Constitution of India and set-aside the same in the interest of justice and pass such other order or orders.”

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The case of the petitioner is that the petitioner’s family members are in possession and enjoyment of the land in an extent of Ac.0-07 cents in Sy.No.348-A of Kommipadu Village, Sydapuram Mandal, SPSR Nellore District since 1988 and since then they have been residing there by constructing a house and doing business by establishing a chicken shop. The petitioner is in continuous possession and enjoyment of the said land without any interruption from any corner whatsoever including the respondents herein and they obtained electricity connection and their house property was assessed by the Gram Panchayat, imposed house tax and they are paying electricity bill and house tax regularly.

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While so, when the officials of the 4^th respondent tried to evict the petitioner forcibly, the petitioner along with three other

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similarly situated persons filed W.P.No.20859 of 2020 before this Hon’ble Court seeking a direction not to dispossess them from their respective house sites. This Court passed an interim order dated 17.11.2020 directing the respondents not to dispossess the petitioner therein from the subject land, if they are in possession of the subject land without following due process of law. The respondent authorities kept quiet for some time and on 02.07.2021, the 4^th respondent herein, vide letter in Rc.B.114/2021, dated 02.07.2021, directed the Assistant Engineer, Electricity Department, Sydapuram to disconnect power supply to the electrical service connection bearing No.3112324000686 provided to the petitioner’s house as the land in Sy.No.348/A was handed over for construction of Village Secretariat. In turn the Assistant Engineer, Operations, APSPDCL, Sydapuram issued Lr.No.AG/0/Syd/F/D.No.763/21 dated 02.07.2021, informing that their electrical service connections will be disconnected within 7 days. Being aggrieved by the said action, this petitioner and three other similarly situated persons filed W.P.No.13218 of 2021 before this Court and the same was allowed by order dated 09.07.2021, setting aside the above two proceedings and directed the respondents not to dispossess the petitioner therein except by following due process of law.

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Meanwhile, after passing the order, the 4^th respondent issued Eviction Notice under Section (7) of Andhra Pradesh Land Encroachment Act III of 1905, (for short ‘A.P.L.E. Act’) vide Rc.B.114/2021 dated 02.07.2021, alleging that the petitioner is found to be in unauthorized occupation of the shop admeasuring

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Ac.0.05 cents situated in Sy.No.348-A of Kommipadu Village, Sydapuram Mandal, SPSR Nellore District.

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In the schedule, classification of the land was mentioned as ‘Patta’ and the nature of occupation was mentioned as ‘Government Land Encroachment’. The said notice was served on the petitioner on 06.07.2021. Immediately the petitioner submitted his explanation on 08.07.2021 categorically stating that the said land is not Government land and he has been in possession and enjoyment of the land since 1988 and requested to drop the further proceedings.

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Challenging the said notice issued under Section 7 of the Act, the petitioner filed W.P.No.14070 of 2021 on the ground that the 4^th respondent has no power or authority to initiate proceedings under Andhra Pradesh Land Encroachment Act, 1905 as the said land is classified as ‘Patta’ even as per the notice. This Court disposed of the said writ petition by order dated 20.07.2021, directing the 4^th respondent to pass orders duly considering the explanation submitted by the petitioner and further directed the respondents not to dispossess the petitioner without following due process of law.

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Be that as it may, the 4^th respondent served a copy of notice on the petitioner on 20.07.2021 at 10.30 am, under Section (6) of A.P.L.E.Act, vide Rc.B.114/2021, dated 19.07.2021 holding that the petitioner is found to be in un-authorized occupation of the shop specified in the Schedule therein, which is the property of the Government and for which the petitioner is liable to pay assessment under Section 8 of the A.P.L.E.Act and directed the

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petitioner to vacate the land within 48 hours from the date of service of notice, failing which the petitioner will be summarily evicted from the land.

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The petitioner specifically contended that in response to the notice issued under Section 7 of the A.P.L.E.Act, he submitted his explanation duly stating that the said land is not Government land and he is in possession and enjoyment of the subject land since 1988. However, without considering his explanation, without assigning any reason and without passing any order, the 4^th respondent issued the impugned notice. There is a genuine dispute as to the title of the property and that the petitioner is in possession and enjoyment of the land in the subject property since 1988 i.e., more than 30 years, thereby perfected his title to the property by virtue of adverse possession against the Government. Infact, the said land is not Government land even as per the notice and entries in revenue records. Even as per the impugned notice, the description of the land was mentioned as ‘Patta’ land and as such, the land in Sy.No.348-A is not a Government land. Therefore, the respondents are not entitled to evict the petitioner from the schedule property, even after serving notice under Section 6 of the Act.

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Finally, it is contended that the 4^th respondent is not empowered to issue notice under section 6 of the Act, without there being any reasoned order as held by the High Court of Judicature at Hyderabad, in Kadiyala Sudershan and others Vs. Government of Andhra Pradesh¹ and apart from that when the

1 2013 (6) ALT 42

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petitioner is in settled possession, he cannot be evicted by adopting summary procedure from the land ,in view of the law declared by the Hon’ble Apex Court in State of Andhra Pradesh Vs. Thummala Krishna Rao² . Hence, the petitioner requested to issue a direction as stated supra.

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During hearing, learned counsel for petitioner reiterated the contentions in the writ affidavit.

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Whereas, the learned Assistant Government Pleader for Revenue fairly submitted that the issue involved in the present writ petition is squarely covered by the order passed in W.P.No.13955 of 2021, dated 20.07.2021 and requested to pass similar order.

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However, the learned counsel for the petitioner contended that there is a slight distinction between the facts of the present writ petition and the earlier writ petition. But based on Kadiyala Sudershan and others case, he requested to issue a direction as claimed.

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Undoubtedly, the petitioner is in possession and enjoyment of the property and a very issuance of notices under Sections 6 and 7 of A.P.L.E.Act is suffice to conclude that the petitioner is in possession of the property. The petitioner is found to be in un-

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authorized occupation of the shop specified in the Schedule below:

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Village	Sy.No.& Divin.	Description of land	Entire Extent Sq. Meters/Kms	Occupied extent Sq.Yards	Nature of Occupation
1	2	3	4	5	6
Kommipadudu	348-A	Patta	2.10	0.07	Govt. Land Encroachment

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But whereas, as per Column No.3 of the schedule annexed to

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the notice, the description of the land is mentioned as ‘Patta’ land.

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2 1982 (2) SCC 134

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Whereas in Column 6 it was mentioned as Government land encroachment. In any view of the matter, the land is situated within the Panchayat area and it is deemed to have been vested in the Panchayat on its constitution. In terms of Section 58 of Panchayati Raj Act, unless it is notified in terms of Section 58(2) of the Panchayati Raj Act. In terms of Section 58(2) of the Panchayati Raj Act, divesting the property from Panchayat and vesting on the Revenue Department the respondents cannot dispossess the petitioner from the subject land. But, it is not known whether such notification was issued or not whatsoever. Earlier, G.O.Ms.No.558, Panchayat Raj & Rural Development PTS, dated 02.03.2020, was issued divesting the property from the Panchayat and vesting on the State. Thereby, the respondents are entitled to evict this petitioner by following due process of law under the Act.

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In any view of the matter, as per the judgment in Kadiyala

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Sudershan and others (referred supra), an eviction notice prescribed under Section 6 of the Act was issued. It must be supported by reasons and after giving show-cause notice under Section 7 of the Act and after giving an opportunity of hearing to the persons in possession of the subject land, an eviction order can be passed.

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Here, admittedly the petitioner, who is in possession of the subject land was not afforded an opportunity of hearing, on receipt of explanation to the show-cause notice issued under Section 7 of the A.P.L.E.Act. But, issued a notice under Section 6 of the A.P.L.E.Act, without any reasons. Therefore, applying the law laid down in Kadiyala Sudershan and others case, the notice under

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Section 6 of the Act is liable to be set-aside. By applying principle laid down in the above judgment, I hold that the notice under Section 6 of the Act is not supported by any reasons as mandated under law laid down in Kadiyala Sudershan and others (referred above).

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On this ground alone, the notice issued under Section 6 of the Act is liable to be set-aside, while permitting the respondents to take appropriate action strictly adhering to the principle laid down in Kadiyala Sudershan and others (referred supra). Till taking such action, the respondents are directed not to dispossess the petitioner from the subject land of an extent of Ac.0-07 cents in Sy.No.348-A of Kommipadu Village, Sydapuram Mandal, SPSR Nellore District.

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With the above direction, the writ petition is disposed of. No

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costs.

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Consequently, miscellaneous applications pending if any, shall stand closed.

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JUSTICE M. SATYANARAYANA MURTHY

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21.07.2021 VSL

Shaik Jilaani, v. The State of Andhra Pradesh

Case brief

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Shaik Jilaani, v. The State of Andhra Pradesh

Case brief

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