THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT APPEAL No.2208 OF 2004 Date:23.08.2011 Between: S.K.Khader Basha .. Appellant And The Executive Officer, Buchireddypalem Gram Panchayat, Nellore District and others .. Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT APPEAL No.2208 OF 2004 JUDGMENT: (Per Hon’ble Sri Justice V.V.S.Rao) Being aggrieved by the order of the learned Single Judge in W.P.No.24168 of 2004 dated 27.12.2004 dismissing the writ petition at the stage of admission, the appellant (hereafter called as the petitioner) filed the present writ appeal. The case of the petitioner is that he is an agriculture coolie residing in a thatched house constructed on Government Poramboke land admeasuring 33 Ankanams (one Ankanam = 8 sq. yards) in Buchireddypalem Village. He alleged that his parents occupied the said land in 1960 and constructed the house bearing No.B-11-380-B. He and his two brothers constructed additional thatched houses in six Ankanams each. He further alleged that on 08.03.2004 and 20.12.2004 the Executive Officer of the Buchireddypalem Gram Panchayat directed the parents of the petitioner to vacate the house and to remove the thatched house thereon. It appears, the petitioner requested the District Collector, Nellore District – third respondent herein, to regularize the occupation by collecting the market value and even while the same is pending, the respondents, it is alleged, are trying to dispossess him in violation of principles of natural justice. He also alleged that the Gram Panchayat did not issue any notice to him. It is, therefore, prayed for a declaration that the action of the respondents in trying to dispossess him is illegal and violative of Article 300A of the Constitution of India. Learned Single Judge recorded the findings that the petitioner did not produce any material to substantiate his plea of possession and that the granting of pattas in respect of Poramboke lands for regularization and occupation are the matters within the domain of revenue officials and, therefore, a writ under Article 226 of the Constitution of India cannot be issued. We have heard the learned counsel for the appellant/petitioner and the learned Standing counsel for Gram Panchayat. None appears for the Mandal Revenue Officer and the District Collector. With the assistance of the learned counsel for the petitioner, we have perused the electricity bills and the voter identity cards issued by the Election Commission of India to the petitioner, his wife and two sons. Though the electricity bills in the name of the petitioner and S.K. Khadar Basha did not mention the house number, the voter identity cards mention the house number as B11-380-B. Of course, there is no correlation with 33 Ankanams of land with house No.B-11-380-B, Suhasininagar, Buchireddipalem Village. Therefore, we do not find any error in the judgment of the learned Single Judge. Learned counsel for the petitioner relied on G.Kanthayya v. the District Collector, Warangal[1] in support of his contention, wherein it is stated that when the application for regularization of occupation is pending, the attempts made by the respondents to vacate the petitioner are unsustainable or unconstitutional. In the case cited herein, this Court after referring to the Preamble, Articles 19(1)(e), 21, 38 and 46 of the Constitution of India as well as Articles 1, 2, 3, 11 and 13 of the Universal Declaration of Human Rights and the decision of the Supreme Court in Olga Tellis v. Bombay Municipal Corporation[2] held that when the applications for assignment are pending, any action for eviction of the occupants of the Government land is unconstitutional. The relevant observations are as under. The competing claims could, thus, be solved by suitable adjustment by permitting the petitioners to continue in possession of the respective huts erected by them and assignment of the land occupied by them by the Government and the school can be established elsewhere in the manner envisaged earlier. It is also fairly admitted across the bar and it is the settled law of this Court that when applications for assignment are pending, it is the duty of the authorities to consider them and to accord assignment. In case they are found ineligible then action is to be taken by issue of notice under Section 7 of the Andhra Pradesh Land Encroachment Act, 1905 (the Act) and passing order under Section 6 of the Act. Abnegation to obey the salutary procedure would be arbitrary, unjust and illegal violating fair procedure and any action taken in derogation thereof would be deprivation of right to livelihood to the poor offending Article 21. I have no hesitation, therefore, to hold that the action taken by the respondent is unconstitutional, unjust, unfair and illegal. In the result, we are inclined to modify the order of the learned Single Judge and dispose of the writ appeal in the following manner. The Mandal Revenue Officer shall conduct enquiry with regard to the allegations made by the petitioner that he has constructed thatched houses on the disputed land and submit a report to the District Collector. If the petitioner is found to be in possession, the Mandal Revenue Officer, shall examine as to whether the petitioner is eligible for assignment of land in accordance with the extant assignment policy. In case, the petitioner is not eligible for assignment of the land by reason of his financial position or otherwise, it shall be open to the Mandal Revenue Officer – if the petitioner is in possession – to evict the petitioner in accordance with the provisions of the Andhra Pradesh Land Encroachment Act, 1905. The writ appeal shall stand disposed of accordingly. There shall be no order as to costs. ________________ (V.V.S. RAO, J) ____________________ (K.G. SHANKAR, J) 23.08.2011 KH [1] 1989 (3) ALT 129 [2] AIR 1986 SC 180