K Mallu Naidu Vs the State of Andhra Pradesh

Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ of mandamus or any other appropriate writ or direction declaring 1) the Notice issued by the 4^th respondent in Roc No. 204/2025/SA dated 22.09.2025 under Sec 6 of Andhra Pradesh Land Encroachment Act, 1905 and 2) the Notice issued by the 4^th respondent in Rc No. 204/2025/CS dated 23.07.2025 under Section 7 of the Andhra Pradesh Land Encroachment Act, 1905 stating that the petitioner found in unauthorized occupation of Government land to an extent of Ac 0.045 cents out of Ac 0.74 cents situated in Sy.No. 198-2 of Neelavathi Village, Gantyada Mandal, Vizianagaram District and trying to evict the petitioner as illegal, arbitrary, contrary to law and one without jurisdiction and consequently set aside the same and pass.

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Counsel for the Petitioner:

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1.TADDI NAGESWARA RAO

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Counsel for the Respondent(S):

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1.GP FOR REVENUE

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The Court made the following:

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ORDER:

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The writ petition is filed under Article 226 of the Constitution of India for the following relief:

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…pleased to issue a writ of mandamus or any other appropriate writ or direction declaring 1) the Notice issued by the 4^th respondent in Roc No.204/2025/SA dated 22.09.2025 under Section 6 of Andhra Pradesh Land Encroachment Act, 1905 and 2) the Notice issued by the 4^th respondent in Rc.No.204/2025/CS dated 23.07.2025 under Section 7 of the Andhra Pradesh Land Encroachment Act, 1905 stating that the petitioner found in unauthorized occupation of Government land to an extent of Ac.0.045 cents out of Ac.0.74 cents situated in Sy.No.198-2 of Neelavathi Village, Gantyada Mandal, Vizianagaram District and trying to evict the petitioner as illegal, arbitrary, contrary to law and one without jurisdiction and consequently to set aside the same and pass such other or further orders…

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The 4^th respondent-Tahsildar issued notice under Section 6 of Andhra Pradesh Land Encroachment Act, 1905 (for brevity hereafter refer as Act) vide Roc No 204/2025/SA, dated 22.09.2025, directing the writ petitioner to evict from the land in Sy.No.198/2 in an extent of

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0.045 cents as the petitioner found in un-authorised occupation of the Government Land (Rasta Poramboku) specified in the notice.

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PETITIONER CONTENTION:

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3. The notice in question is challenged in the writ petition on two grounds:

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(i) The writ petitioner cannot be evicted from the property through summary proceedings under Section 6 of the Act.

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(ii) and the other contention of the petitioner is that column No. 6 of the impugned notice depicts that the land is a threshing floor. Therefore, the 4^th respondent Tahsildar lacks the jurisdiction to issue the notice, as the property is situated in the Grampanchayat, under Section 58 of the A.P. Panchayat Raj Act 1994, the Grampanchayat the competent authority for evicting the petitioner from the land.

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(iii) Additionally, relied on Rule 4 of G.O. Ms.No. 188 dated 21.07.2011 of Panchayat Raj and Rural Development (Pts. IV) for the above said contention.

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Rule 4 reads thus:

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“(i) Whether it is brought to the notice that any property of the Panchayat is under occupation of any persons the Executive authority (Panchayat Secretary) shall serve a notice to the party concerned and give a brief hearing before proceeding for eviction.

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(ii) Suitable order shall be passed by the Executive authority (Panchayat Secretary) before actual eviction takes place.

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And relied of the order of this Court in W.P. No. 6310 of 2020 dated 08.05.2020. In the said order a contention was raised qua to the contention raised by the petitioner herein. The contention raised by the writ petitioner therein is that to evict the respondents from the property that The Tahsildar under the A.P. Land Encroachment is competent authority. The said contention has been rejected by this court.

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Section 58 of A.P. Panchayat Raj Act 1994 postulates that certain Government porambokes to vest in Gram Panchayat etc. The relevant section is extracted hereunder:

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Section 58 (1) The following porambokes namely, grazing grounds, threshing floors, burning and burial grounds, cattle stands, cart stands and topes, which are at the disposal of the Government and are not required by them for any specific purpose shall vest in the Gram Panchayat subject to such restrictions and control as may be prescribed.

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The first contention of the petitioner is that the impugned notice depicts at column No.6 that the land is Threshing floor and the Threshing floors vests in Grampanchayat under Section 58 of the A.P. Grampanchayat Act, as such the 4^th respondent is not the

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competent authority to issue notice under section 6 of the A.P. Land Encroachment Act.

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Hence prayed to set aside the impugned notice on the aforesaid two contentions.

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STATE CONTENTION:

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Learned Assistant Government Pleader would submit that the petitioner has encroached the Poramboke Rasta and converted into threshing floor.

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The sub-section 2 of Section 2 of The Land Encroachment Act postulates that all public roads and streets vested in any local authority shall, for the purposes of the Act, be deemed to be the property of Government.

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Learned Assistant Government Pleader would further assert that the Tahsildar is the appropriate authority to order the eviction of the writ petitioner, as the land in question does not belong to the Gramp Panchayat. Upon a comprehensive reading of the notice, it outlines that the petitioner had encroached upon the poramboke road converted into Kallalu. The petitioner’s counsel is referencing the term "Kallalu" in isolation from the table included in the contested notice, specifically in the third column where it is clearly identified as

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“Poramboke Rasta”. The description column explicitly states "Rasta Poramboke," indicating that the petitioner has occupied the Rasta Poramboke. The petitioner's counsel cannot ignore or disregard that part of the notice and argue that it is not permissible to rely on a part of one word ignoring the other and it should be read as a whole and a part of it cannot be read in isolation. And he would further submit that petitioner has filed statutory appeal against the impugned order in the writ petition and he cannot invoke two parallel proceedings.

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In response to the argument presented by the state's counsel, the petitioners' counsel asserts that the provisions of the A.P. Panchayat Raj Act of 1994, should take precedence over those of the A.P. Land Encroachment Act of 1905, considering it a special enactment. However, the petitioners' counsel has not provided any reasoning to support how the Panchayat Raj Act supersedes the Land Encroachment Act.

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COURT’s EXPOSITION TO THE ISSUE NO II: Jurisdiction of the Tahsildar qua the Grampanchyat:

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The Andhra Pradesh Land Encroachment Act, 1905 (Act No. 3 of 1905): was enacted with the following Statement of Objects and Reasons:-

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(1) The object of the bill is to provide means of protecting public lands from encroachment, and to place upon a statutory basis

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the customary levy of assessment on such lands when occupied without authority.

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(2) There are two classes of land which it is desired to protect. The first and more important is that which is termed "Poramboke" that is, unassessed land set apart for public purposes or for the communal use of the villagers as village site, threshing floors , roads, paths, water courses and the like. The second class is "assessed waste", or land available for occupation by private persons, but which has been formally applied for or assigned by the revenue authorities under the rules prescribed in that behalf. The occupation of the later class is ordinarily unobjectionable, but it is desirable to provide means of enforcing the strict observance of the rules laid down for its assignment. As regards the other class, encroachments upon such "Poramboke" lands are all together objectionable and require prompt and stringent measures for their prevention.

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It is manifest from the above that the intent and object of the enactment that it is intended only for the purpose of controlling the encroachments.

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The 4^th respondent-Tahsildar issued a notice under Section 6 of the Act. The table is extracted for the effective disposal of this writ petition.

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SCHEDULE

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Village	Sy.No. & Divn	Description of land	Entire Extent in Acs	Occupied extent Acs	Nature of occupation
1	2	3	4	5	6
Neelavathi	198-2	Poramboku (Rastha)	0.74 Cts	0.045 Cts	Kallalu

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The impugned notice under section 6 of the Act manifests that

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the land is Poramboke Rasta and has been converted into a Threshing Floor. However, according to the photograph filed by the petitioner, attached to the order, it is not being used as a threshing

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floor (Kallalu).

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The third column of the notice, named “Description of the property,” indicates that the land is “Poramboku Rastha.” In the sixth column, the term “Kallalu” (threshing floor) is mentioned. The petitioner’s counsel argues that, due to the inclusion of the term Kallalu in the disputed notice, the Grampanchayat is the appropriate authority to issue the notice, while the fourth respondent, the Tahsildar, is not authorized to issue the notice or take any action.

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The petitioner should not be oblivious of the fact that in the 3^rd column, it is mentioned as 'Poramboku Rasta’ and that the notice indicates the land occupied by the petitioner is classified as "Poramboku Rasta." It is important to consider the entire content of the notice rather than focusing on a specific word in isolation, as noted in 6th column. Additionally, the argument that the 4th respondent, the Tahsildar, lacks the authority to issue a notice or pass an order under Section 6 of the Act is not well-founded. As rightly argued by the state counsel, on comprehensive reading of the notice, it outlines that the petitioner had encroached upon the poramboke road converted into Kallalu.

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Furthermore, the photograph submitted by the petitioner along with the affidavit in support of the writ petition clearly shows that the

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land is not being used as a threshing floor. Therefore, the argument that the 4^th respondent Tahsildar lacks jurisdiction is weak and unconvincing. Hence for the aforesaid reasons that the order in W.P. No: 6310 of 2020 dated 08.05.2020 is not applicable to the present facts of the case.

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COURT’s EXPOSITION TO THE ISSUE No I:

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The learned counsel for the petitioner relies on the judgment of the Apex Court in the case of Government of Andhra Pradesh Vs Thummala Krishna Rao¹ for the proposition that respondents cannot evict the petitioner resorting summary proceedings under Section 6 of the A.P. Land Encroachment Act 1905 when the petitioner is in long possession. It is necessary to state the facts of the Judgment of Thummala Krishna Raos’ case:

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The issue in the case pertains to whether the three plots of land were included in the acquisition notified by the Government of the Nizam. This became a bone of contention between the parties, Osmania University contending that the plots were indeed included and were acquired for its benefit, while the owner, Nawab Habibuddin (vendor of Thummala Krishna Rao), claimed that the three plots were not acquired.

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1 (1982) 2 SCC 134

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Osmania University subsequently addressed a letter to the government requesting possession of the three plots. In response, a notice was issued under Section 6 of the Land Encroachment Act. This notice was challenged by way of a writ petition. A learned single judge dismissed the writ petition, and the matter was carried in an intra-court appeal.

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The division bench held that “It is not the duration, short or long , of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person. What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide.” Which is affirmed by the Apex Court in the judgment in Thummala Krishna Rao’s case.

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At par no. 8 of the Judgment held in the following:

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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 507 unauthorized occupation of any land which is "the property of Government". In regard to properly described in sub- sections (I) and (2) of Section 2, there can be no doubt, difficulty or dispute as to the title of the Government and,

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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. In the instant case, there is unquestionably a genuine dispute between The State Government and the respondents as to whether The three plots of land were the subject-matter of acquisition proceedings taken by the then Government of Hyderabad and whether the Osmania University, for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the properly

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more than twelve years before the date of the suit and the University was not in possession of the property at any time within that period. Having tailed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed by Section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process of law for evicting the respondents.

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The Apex Court held that when there is a genuine dispute, a party cannot be evicted by resorting to summary proceedings. In the present case, admittedly that the land was encroached upon, by the writ petitioner, who used it for a cattle shed and constructed a small hut, mere and vague assertion of the petitioner's long-standing possession of the property for 100 years, unsupported by proper pleadings and relevant evidence in the affidavit, does not constitute a genuine dispute. Even assuming that the petitioner has been in possession of the property for a long time, whether the petitioner has perfected title by adverse possession is a disputed question of fact that must be decided by a competent civil court. This Court cannot exercise such jurisdiction under Article 226 of the Constitution of India. The photograph filed by the petitioner clearly indicates that the

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land is not being used as a threshing floor and that a small hut has been constructed.

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If the Court accepts the petitioner’s counsel argument that a person in long possession cannot be evicted resorting to summary proceedings then no government land will be available for public use and it will be encroached, henceforth, all writ petitions will be filed on the same defense that those who are in long possession, should not be evicted in a summary manner.

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As such, the issue No.1 is answered against the petitioner in favour of the State.

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That the petitioner cannot be allowed to take recourse of two parallel proceedings one by filing a statutory appeal as well as by invoking jurisdiction of this Court under Article 226 of the Constitution of India, additionally the question is, whether two parallel proceedings for similar relief can be persuaded before two different forums for similar relief, the petitioner cannot invoke two proceedings for similar relief and cannot run simultaneously in two forums, hence on this ground alone the present writ petition is not maintainable and is liable to be dismissed.

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