IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIFTEENTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 21269 of 1996 Between: S.A. Srif , S/o Syed Ismail, R/o 8-2-316/10, Road No.14, Banjara Hills, Hyderabad. ..... PETITIONER AND 1 The District Collector, Ranga reddy Dist., A.P., 2 The Mandal REvenue Officer, Moinabad (M), R.R.Dist. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ of Mandamus or any other appropriate writ or writs order or direction, declaring and setting aside the order dt:21.8.96 passed in Procs.No. B/2862/88 on the file of the 2nd respondent as illegal, arbitrary and without jurisdiction; award costs Counsel for the Petitioner:MR.K.RAGHUVEER REDDY Counsel for the Respondent No.: GP FOR REVENUE The Court made the following : ORDER: (Per Hon’ble Sri Justice A. Gopal Reddy) The petitioner claiming to be the owner and possessor of land to an extent of Ac.10.36 gts. in Sy.Nos.151/1; 151/1/1 and 151/2, situated at Himayathnagar Village, Moinabad Mandal, Ranga Reddy District, filed this Writ Petition questioning the orders of the Mandal Revenue Officer, Moinabad Mandal, the second respondent herein dated 21.8.1996 vide proceedings No.B/2862/88 purported to be passed under Section 6 of the A.P. Land Encroachments Act, 1905 (for short ‘the Act’). Under the said orders, the petitioner was directed to remove the brick walls in the Government land in Sy.Nos.151/1/1 and 151/2, admeasuring Ac.3.02 gts. And 4.32 gts. According to the petitioner, land to an extent of Ac.10.36 gts. in Sy.Nos.151/1; 151/1/1 and 151/2, situated at Himayathnagar Village, Moinabad Mandal, Ranga Reddy District was originally assigned to one Shabad Lakshmaiah in the year 1958. Subsequently, said Shabad Lakshmaiah made an application seeking permission under Section 47 & 48 of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 to alienate the said land in favour of one Pranlal P.Sanghvi, who is the vendor of the petitioner. The Tahsildar, Hyderabad West Taluk after conducting detailed enquiry, granted permission to said Shabad Lakshmaiah vide his proceedings in D.Dis.No.A4/1540/66, dated 14.9.1966 for alienating the land to an extent of Ac.6.04 gts. in Sy.Nos.151/1 and 151/1/1, situated at Himayathnagar Village, Hyderabad in favour of Pranlal P.Sanghvi. Later the petitioner purchased the said land from said Pranlal P.Sanghvi under registered sale deeds dated 5.9.1991 and 10.9.1991 and since then he has been in possession of the said land and his name was also mutated in the revenue records. When the respondents tried to interfere with his possession over the subject- land, he filed a suit in O.S.No.83 of 1996 on the file of District Munsif, Chevella, R.R.District for perpetual injunction and also obtained a temporary injunction in I.A.No.229 of 1996. It is alleged that in order to defeat the fruits of temporary injunction, the second respondent passed the impugned order without issuing any prior notice to the petitioner. It is contended that even if there is any violation of the assignment, the proceedings have to be initiated under the Act 9 of 1977, but not the proceedings under the A.P. Land Encroachment Act and therefore, the impugned proceedings are liable to be set aside. The Mandal Revenue Officer, Moinabad Mundal, second respondent herein filed a counter affidavit stating that as per the revenue records the lands in Sy.Nos.151/1 and 151/1/1 and 151/2 are recorded as Government Poramboke lands. So far as the land in Sy.No.151/1, to an extent of Ac.3.02 gts. is concerned, the same was assigned to one Shabad Lakshmaiah in the year 1961-62 under the new Laoni Rules, but not in the year 1958 as claimed by the petitioner. Though the said assignee obtained permission under Section 47 of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950, the same could not confer any right for alienation of the land. With regard to the land in Sy.Nos.151/1/1 admeasuring Ac.3.02 gts. and Sy.No.151/2 admeasuring Ac.4.03 gts. is concerned, the said land was never assigned to said Shabad Lakshmaiah, and in fact, the petitioner encroached the said land and running a private engineering college thereon. On noticing the encroachment, a notice contemplated under Section 7 of the Act was issued on 5.8.1996 for eviction of the petitioner, but as he refused to receive the same, it was affixed to the building. In spite of affixing the notice to the building, the petitioner did not choose to submit his explanation. Later, the impugned order under Section 6 of the Act has been passed on 21.8.1996 and as the petitioner refused to receive the same, it was affixed to the building. It is contended that without availing the alternative remedy of appeal provided under Section 10 of the Act, the petitioner straightaway filed the present writ petition and obtained the interim orders on 8.10.1996. According to second respondent, the original assignee i.e. Mr. Shabad Lakshmaiah was allotted the land only to the extent of Ac.3.02 gts. in Sy.No.151/1. Admittedly, the said land was not the subject-matter of the impugned order. According to the respondents, when the petitioner was found to be in possession of Ac.6.04 gts. of land in Sy.Nos.151/1, 151/1/1 and 151/2 of Himayathnagar Village, which is the Government land, the eviction order was passed after issuing mandatory notice. In view of the nature of the allegations, whether the notice sought to be issued under Section 7 of the A.P. Land Encroachment Act was refused by the petitioner and was affixed to the building of the petitioner and whether the petitioner is the encroacher of the subject-land are all the disputed questions of fact, which can be considered by the appellate authority basing on the pleadings and evidence adduced by the parties. In view of the effective remedy available to the petitioner under Section 10 of the A.P. Land Encroachment Act, the petitioner can raise all the grounds including the effective service of the notice on his and the nature of the land before the appellate authority. We are aware that the writ petition is pending for the last 12 years, but since the disputed questions of facts cannot be gone into in this writ petition, we relegate the parties to avail the alternative remedy of appeal. The Writ Petition is accordingly dismissed granting liberty to the petitioner to avail alternative remedy of appeal as provided under Section 10 of the A.P. Land Encroachment Act within a period of four (4) weeks from the date of receipt of a copy of this order. If such an appeal is filed by the petitioner within the stipulated time, status quo existing as on today shall be maintained with regard to the possession of the land till the disposal of the appeal. No order as to costs. ________________ A. GOPAL REDDY, J. _______________________ B.SESHASAYANA REDDY, J. 15.04.2008 Tsr. To 1 The District Collector, Ranga reddy Dist., A.P., 2 The Mandal REvenue Officer, Moinabad (M), R.R.Dist. 3 Two C.Cs. to G.P. for Revenue, High Court Buildings, (OUT) 4. Two C.D. copies.