Allowed

Smt. Ayesha Abid Ali, v. The Tahasildar

Telangana HC4 Sept 2013WP/20914/2013

Case brief

AI extract

What is this about?

The High Court allowed a writ petition where the Tahsildar imposed a restraint order under sections 6 and 7 of the Andhra Pradesh Land Encroachment Act alleging encroachment. The Court held the Tahsildar lacked jurisdiction to pass such restraint orders without finding the person liable for assessment under Section 3, setting aside the order and directing respondents to seek a civil remedy. High C

What did the court decide?

Impugned order under Section 6 set aside; interim order vacated; Writ Petition allowed.

Smt. Ayesha Abid Ali, Vs The Tahasildar — Land Acquisition | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY

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WRIT PETITION No.20914 of 2013

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Date:04.09.2013

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Between:

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Smt. Ayesha Abid Ali .. Petitioner And The Tahsildar, Shaikpet Mandal, Banjara Hills, Hyderabad District and others .. Respondents Counsel for the petitioner : Mr. R. Raghunandan Counsel for respondents : AGP for Revenue

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The Court made the following:

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ORDER:

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Proceedings No.D/826/2013, dated 09.07.2013, of respondent No.1 by which she has directed the petitioner not to trespass into the Government land to an extent of 448 sq. metres in T.S.No.10/2, Block–O, Ward No.12 of Shaikpet Village, and not to make constructions therein and directing the Deputy Tahsildar (LP) to erect Government sign board over the land in question, are questioned in this writ petition.

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It is the common case of the parties that T.S.No.10/2, Block-O, Ward No.12 of Shaikpet Village, Road No.12, Banjara Hills, Hyderabad, is the Government property. It is also not disputed that the property in T.S.No.10/1 is a private property over which the petitioner is claiming her right.

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On 01.05.2013, respondent No.1 issued a notice under Section 7 of the Land Encroachment Act, 1905 (for short,

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‘the Act’) alleging that the petitioner has encroached upon 448 sq. metres of land in T.S.No.10/2. The petitioner thereupon filed an elaborate reply through her counsel on 09.05.2013, wherein the allegation that the petitioner has encroached upon the land in T.S.No.10/2 was denied. It is stated therein that the petitioner is in peaceful possession and enjoyment of 500 sq. yards of land since 05.07.1995, having purchased the same under registered sale deed bearing document No.3965 of 1995. It is further stated that in the year 2009, the petitioner has decided to construct a new

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house within the existing compound and applied for Town Survey Land Record in respect of premises bearing No.8-2-703/5, that the Deputy Director, Survey and Land Records has furnished an extract of Town Survey Record with sketch of the particular Town Survey Record on 27.04.2009, which clearly showed that Survey No.304 corresponding to T.S.No.10/1 originally belonged to one Khaja Moinuddin Ansari, that the said name was rounded off as the property has been transferred, that the petitioner has obtained building permission from the Greater Hyderabad Municipal Corporation bearing permit No.15/16, dated 17.03.2010, and that thereafter construction was taken up by commencing excavation work in March/April, 2013. Thus, the substance of the petitioner’s stand was that she owns and is in occupation of the land in Survey No.304, which was

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co-related to T.S.No.10/1 and not the land in T.S.No.10/2. In the impugned order, respondent No.1 after a cryptic reference to the petitioner’s explanation made a terse observation that after verification of the documents filed in support of their claim and ground position, it is construed that the petitioner has been illegally trying to encroach the Government land to an extent of 448 sq. metres in T.S.No.10/2, Block-O, Ward No.12 of Shaikpet Village under the guise of documents pertaining to T.S.No.10/1. Therefore, respondent No.1 has passed a restraint order against the petitioner.

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For exercising the jurisdiction under Section 6^[1] of the Andhra Pradesh Land Encroachment Act, 1905, a person must be found in unauthorised occupation of the land for which he is liable to pay assessment under Section 3 thereof.

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There is no finding by respondent No.1 that the petitioner has occupied the Government land in T.S.No.10/2, but on respondent No.1’s own showing the petitioner is trying to occupy the Government land. In such a case, the only remedy for respondent No.1 is to approach the civil Court seeking an injunction restraining the petitioner from encroaching the Government land. In my opinion, respondent No.1 has committed a serious jurisdictional error in passing an order, which is far too in excess of her jurisdiction. Respondent No.1 has no power to pass a restraint order in the guise of exercising her power and authority under Sections 6 and 7 of the Act.

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On this short ground alone, the impugned order is set aside. This order, however, does not preclude the respondents from approaching the competent civil Court and establishing their claim that the petitioner is trying to occupy the land in T.S.No.10/2 and seek a restraint order against the petitioner from occupying the land in the said survey number.

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Subject to the above observations, the Writ Petition is allowed.

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As a sequel, the interim order dated 17.07.2013 is vacated and W.P.M.P.Nos.25618 and 25619 of 2013 shall stand disposed of as infructuous.

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C.V. NAGARJUNA REDDY, J.

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04.09.2013 KH

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[1]

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Section 6: Liability of person unauthorisedly occupying land to summary eviction, forfeiture of crops, etc.:- (1) Any person unauthorisedly occupying any land for which he is liable to pay assessment under Section 3 may be summarily evicted by the Collector, Tahsildar or Deputy Tahsildar, and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by him after such written notice as the Collector, Tahsildar or Deputy Tahsildar may deem reasonable, be liable to forfeiture. Forfeitures under this section shall be adjudged by the Collector, Tahsildar or Deputy Tahsildar and any property so forfeited shall be disposed of as the Collector, Tahsildar or Deputy Tahsildar may direct – [ Subs. By A.P. Act 15 of 1968, dt.17-8-1968].

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(2) Mode of eviction:- An eviction under this Section shall be made in the following manner, namely: By serving a notice in the manner provided in Section 7 on the person reputed to be in occupation or his agent requiring him within such time as the Collector, Tahsildar or Deputy Tahsildar may deem reasonable after receipt of the said notice to vacate the land, and, if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and if the officer removing any such person shall be resisted or obstructed by any person, the Collector shall hold a summary inquiry into the facts of the case, and if satisfied that the resistance or obstruction was without any just cause and that such resistance or obstruction shall continue, may issue a warrant for the arrest of the said person and on his appearance commit him to close custody in the office of the Collector or of any Tahsildar or Deputy Tahsildar for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance or may send him with a warrant in the form of the schedule for imprisonment in the civil jail of the district for the like period:

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Provided that no person so committed or imprisoned under this section shall be liable to be presecuted under Sections 183, 186 or 188 of the Indian Penal Code in respect of the same facts.

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(3) Any person who unauthorisedly re-enters and occupies any land from which he was evicted under this section, shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.

Smt. Ayesha Abid Ali, v. The Tahasildar

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Smt. Ayesha Abid Ali, v. The Tahasildar

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