Partly allowed

Parchiri Srinivasulu v. The State of Andhra Pradesh

Andhra Pradesh HC12 Oct 2021WP/23653/2021

Case brief

AI extract

What is this about?

The court held that a notice under Section 6 of the Andhra Pradesh Land Encroachment Act is illegal if issued without a prior reasoned order disposing of objections raised in a Section 7 notice. The petitioner's petition challenging the eviction notice was disposed of, directing the respondent to pass a reasoned order.

What did the court decide?

The writ petition was disposed of with a direction to the 4th respondent to pass a reasoned order in terms of the judgment in Kadiyala Sudershan's case.

Parchiri Srinivasulu Vs The State of Andhra Pradesh — Land Acquisition | Andhra Pradesh HC (2021)

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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WRIT PETITION No.23653 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 appropriate order or direction more particularly, one in the nature of Writ of Mandamus declaring, the Notice issued by the 4^th respondent under Section (6) of the Andhra Pradesh Land Encroachment Act III of 1905 vide Rc.B.114/2021 dated 04.10.2021 as illegal, arbitrary, ultra-vires, contrary to the procedure established by law, contrary to the principles of natural justice, contrary to the law laid down by the Hon’ble Apex Court in State of Andhra Pradesh V. Thummala Krishna Rao reported in (1982) 2 SCC 134 as well as this Hon’ble Court in Kadiyala Sudershan and others v. Government of Andhra Pradesh reported in 2013 (6) ALT 42 apart from being violative of Articles 14, 21 and 300 A of the Constitution of India and set aside the same...”

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It is the case of the petitioner that he is the absolute owner and possessor of the house site admeasuring Ac.0.31 ½ cents in Survey No.348-A of Kommipadu village, Sydapuram Mandal, Sri Potti Sriramulu Nellore District. Originally, the land in Survey No.348-A of Kommipadu village, Sydapuram Mandal is patta land. As per Re-Settlement Register, the land in Survey No.348-A of Kommipadu village is patta land. He has purchased the said land from Varadabandi Rajesh Kumar Reddy through registered sale deed No.193/2004 dated 21.09.2004. He also purchased an extent of Ac.0.06 ½ cents in survey No.348-A of Kommipadu village from Yaddala Muni Ratnam through an agreement of sale dated 27.09.1997. Since then, he is in possession and enjoyment of the

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said land without any interruption from any corner whatsoever. His name was mutated in the revenue records as enjoyer in respect of Ac.0.31 ½ cents. He has constructed house in the said land and residing therein.

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Previously, when there is interference by the authorities, he filed O.S.203 of 2005 on the file of the Principal Junior Civil Judge, Nellore seeking permanent injunction against the District Collector, Nellore District and others. The said suit was decreed on 17.02.2010 restraining the defendants threin and their men from interfering with his peaceful possession and enjoyment over the land in an extent of Ac.0.31 ½ cents in survey No.348-A of Kommipadu village, Sydapuram Mandal, SPSR Nellore District.

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The 4^th respondent issued notice dated 31.08.2021, under Section 7 of the Andhra Pradesh Land Encroachment Act III of 1905 (hereinafter referred to as ‘the Act’), alleging that the petitioner was reported to be in unauthorized occupation of the house specified in the schedule therein (land admeasuring Ac.0.54 cents in survey No.348-A of Kommipadu village) which is the property of the Government and directing the petitioner to show cause either in person or in writing why he should not be evicted from the Government land and to order forfeiture of buildings, constructions and things deposited therein under Section 6 of the Act. The petitioner approached the 4^th respondent personally and explained that the subject land is not a government land and he is in possession of the land by purchase, from its original owners and the revenue authorities recognized his possession.

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Without considering the oral explanation of the petitioner and without passing any reasoned order, the 4^th respondent issued notice under Section 6 of the Act vide Rc.B.1114/2021 dated 04.10.2021 alleging that he is found to be in un-authorized occupation of the house specified in the schedule therein, land admeasuring Ac.0.54 cents in survey No.348-A of Kommipadu village, which is the property of the Government for which he is liable to pay assessment under Section 8 of the Act, he is hereby required to vacate the land within 48 hours from the date of service of the notice, failing which, he will be summarily evicted from the land. The said notice was received by him through registered post on 06.10.2021. Aggrieved by the same, the present Writ Petition is filed.

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The contention of the petitioner is that he is the absolute owner of the subject property and he has not encroached any Government land and that the respondents have no authority of law to insist the petitioner to vacate the premises by invoking the provisions of Land Encroachment Act. Therefore, the proceedings issued by the 4^th respondent under Section 6 of the Act is illegal and arbitrary and requested to set aside the same.

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During hearing, Sri Kambhampati Ramesh Babu, learned counsel for the petitioner reiterated the contentions, while drawing the attention of this Court to proceeding issued under Section 6 of the Act, dated 04.10.2021 directing the petitioner to vacate the land from an extent of Ac.0.54 cents in Survey No.348-A of Kommipadu village, Sydapuram Mandal, Sri Potti Sriramulu Nellore District.

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Learned Assistant Government Pleader for Revenue requested to permit the 4^th respondent to take appropriate action strictly

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adhering to the provisions of Land Encroachment Act and Rules framed there under.

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In this case, the 4^th respondent issued both notices under Sections 7 and 6 of the Andhra Pradesh Land Encroachment Act and directed the petitioner to vacate the subject premises, but no order was passed as laid down in Kadiyala Sudershan and others Vs.

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Government of Andhra Pradesh and others¹ , wherein the learned single Judge of this Court held as follows :

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“ A person in possession of the Government land is liable to be evicted under the provisions of the Act. The Act has laid down the procedure for evicting such person. As a first step towards this direction, a show-cause notice under Section 7 of the Act requires to be given to the person in occupation of the land. After receiving the notice, an order needs to be passed under Section 6 of the Act. If the competent authority is satisfied that the person in possession of the land is liable to be evicted, he has to issue a notice in the prescribed form. Though the provisions of Section 6 of the Act do not in express terms enjoin on the competent authority to pass a speaking order, the very fact that Section 7 of the Act envisages a show-cause notice presupposes that the competent authority has to deal with the explanation/ objections filed by the person in possession of the land. Unless a reasoned order is passed, the person in occupation of the land does not know as to why an order of eviction is passed against him. Further, an appeal under Section 10 of the Act is envisages by the Act. Unless the order contains reasons, the appellate authority will not be in a position to examine the validity or otherwise of the order and decide the appeal.”

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In view of the law declared by this Court, as no detailed order

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is passed as held in Kadiyala Sudershan’s case (supra), the notice issued under Section 6 of the Andhra Pradesh Land Encroachment Act is illegal and arbitrary and consequently direct the 4^th respondent to pass reasoned order in terms of Kadiyala Sudershan’s case (supra).

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1 2013(5) ALD 212

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