IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY EIGHTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO : 13547 of 2009 Between: Shaik Ismail S/o.Ibrahim Saheb R/o.D.No.6-2-27, 6th Ward, Jangareddygudem Village and Mandal, West Godavari District. ..... PETITIONER AND 1 The State of Andhra Pradesh, represented by its Secretary, Panchayat Department, Secretariat, Hyderabad. 2 The District Collector (Panchayat Wing) Eluru, West Godavari District. 3 The Tahsildar, Jangareddygudem, West Godavari District. 4 The Jangareddygudem Gram Panchayat, represented by its Sarpanch M.Vijaya Saradhi @ Sombabu S/o.late Somalinga Lakshmana Rao, Jangareddygudem V& M West Godavari District. 5 The Executive Officer, Jangareddygudem Gram Panchayat Jangareddygudem Mandal, West Godavari District. .....RESPONDENS 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, order or direction especially one in the nature of Writ of Mandamus declaring the action of the Respondents 3 to 5 in trying to demolish the house of the petitioner bearing Door No. 6-2-27, 6th Ward situated in S.Nos. 460/1 and 460/2 of Jangareddygudem Village and Mandal, West Godavari District as illegal, arbitrary and violative of Article 300-A of the Constitution of India and consequently direct the respondents not to resort to any illegal act of demolition and pass. Counsel for the Petitioner:MR.S.SUBBA REDDY Counsel for the Respondent No.: GP FOR PANCHAYAT RAJ & RURAL DEV. The Court made the following : HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.13547 of 2009 ORDER:- This Court issued rule nisi on8-7-2009 and in W.P.M.P.No.17611 of 2009 status quo as on date was directed to be maintained till further orders. 2. Respondents 4 and 5 filed W.V.M.P.No.2431/2009 to vacate the interim order. Counter affidavit on behalf of respondents 2 and 3 also had been filed and reply affidavit further had been filed. 3. Heard Sri S.Subba Reddy, the learned Counsel representing the writ petitioner and the learned A.G.P. for Panchayat Raj and Rural Development, the learned A.G.P. for Revenue, Sri M.Prabhakar Rao and Sri Amarendra Kumar, the Counsel representing respondents. 4. Submissions in elaboration had been made by the Counsel on record. In the light of the respective stands taken by the parties and further the orders made by this Court in W.P.No.23356/2007 and W.P.No.28383/2008 also had been placed before this Court. 5. The Counsel for writ petitioner however would maintain that in those writ petitions, the writ petitioners are encroachers whereas in the present writ petition, Patta had been granted in favour of the petitioner and hence on facts, the said decisions are distinguishable. 6. The writ petition is filed for a Writ of Mandamus declaring the action of the respondents 3 to 5 in trying to demolish the house of the petitioner bearing Door No.6-2-27, 6th Ward situated in S.Nos.460/1 and 460/2 of Jangareddygudem village and Mandal, West Godavari District as illegal, arbitrary and violative of Article 300-A of the Constitution of India and consequently direct the respondents not to resort to any illegal act of demolition and pass such other suitable orders. 7. It is stated that the petitioner is in occupation of the property of an extent of 50 Sq.Yds. situated in S.No.460/1 and 460/2 of Jangareddygudem village and Mandal, West Godavari District. The petitioner had been residing there by raisinga hut since three or four decades. Apart from his house, number of persons constructed houses and are residing there. The above land in situated in R.S.No.460/1 and 460/2 of Jangareddygudem village and Mandal, West Godavari District. The 4th and 5th respondents assigned Door Numbers to the hut/shed and levied house tax and have been collecting the house tax. The Electricity department also provided electricity connections to the houses. By doing welding and coolie works, the petitioner and his family members have been eking out their livelihood. Further it is stated that during the year 2000, when the petitioner made a representation, the then Mandal Revenue Officer also issued house site patta dt.15-7-2000 and pursuant to the same, he raised shed and residing there. It is also stated that in fact, the Mandal Revenue Officer also issued certificate on 30-5-2004 stating that the land measuring Ac.0-01 cent in R.S.No.460/1 and 460/2 is classified as Government Dry Land and is in possession and enjoyment. It is stated that the Sarpanch of the village bore grudge against the petitioner and making attempts to remove his house. It is further stated that prior to the issuance of house site patta, the petitioner had been residing there and after the grant of house site patta, the petitioner had constructed a shed. The staff of the 3rd respondent also visiting the house and threatening the petitioner and his family members that they will demolish the house at the instance of the 4th respondent. It is further stated that the petitioner has been in occupation of the house/shed. If the respondents 3 to 5 intend to initiate any action, they are supposed to follow due process of law. No notice was issued either under the Land Encroachment Act, 1905 or any other law in vogue. Further it is stated that this Court time and again directing the authorities not to demolish any house without following due process of law. Further it is stated that in the Judgment – 2000 (5) ALT 246, the Division Bench of this Court formulated certain guidelines which Judgment in fact has been followed by learned Single Judges in 2001 (2) ALT 482 and 2003 (5) ALD 326. The respondents 3 to 5 being the public authorities cannot resort to any illegal acts of demolition of petitioner’s house without following due process of law. They are expected to follow due process if petitioner’s occupation is illegal by issuing notices under various enactments. It is also stated that the 3rd respondent himself issued house site patta invoking clause 21 of the Board Standing Orders. It is not the case of the 3rd respondent that the petitioner had violated the terms and conditions of the house site patta. Even the 3rd respondent himself issued a certificate that the petitioner had been in possession and enjoyment of Ac.0-01 cent of land in R.S.No.460/1 and 460/2. The 4th respondent is influencing the 3rd respondent authority and the staff of the 3rd respondent authority. When the 4th and 5th respondents and the staff of the 3rd respondent visited petitioner’s house three days back, he again shown them the house site patta and the certificate issued by the then Tahasildar. While leaving the place, they threatened that they will demolish the house at any cost. The highhanded act of the respondents 3 to 5 is not only arbitrary but also illegal. The house site patta issued by the 3rd respondent vide ROC No.159/2000 (A)/87, dt.15-7-2000; Xerox copy certificate issued by the 3rd respondent vide L.Dis.No.159/2004(A), dt.30-5-2004, xerox copies of the tax receipt, Xerox copy of the electricity receipt are also filed. It is stated that the highhanded action of the respondents 3 to 5 constrained the petitioner to file the present writ petition. As on today, the petitioner is in possession of the house/shed. In such circumstances, the writ petitioner approached this Court by filing the present writ petition. 8. In the counter affidavit filed by respondents 2 and 3 it is stated that Form-7 notice was issued to the petitioner on 24-12-2008 and as the petitioner rejected to take the notice, the said notice was affixed for information to the petitioner and as well as to the public on a cement poll which was located in the premises in the presence of two educated village elders. The petitioner had not filed any explanation before the Tahasildar against Form-7 notice of E.A.Act within the stipulated time from the date of notice served on him and he directly approached this Court and filed this writ petition. It is also stated that R.S.No.460/1 of Jangareddigudem village measuring an extent of Ac.8.01 cents was classified in revenue records as “Ura Cheruvu” Prohibition was imposed to grant house site pattas on tank poramboke and still it is in force. In respect of R.S.No.460/2 of Jangareddigudem village is a private land which belongs to Sri Marina Narsaiah. The petitioner encroached “Tank Poramboke” land in R.S.No.460/1 and raised a hut and doing welding workshop business. According to the then Revenue Divisional Officer and the Tahsildar, Jangareddigudem, in the year 2006, the petitioner voluntarily vacated his encroachment and the land was also handed over to the Secretary, Gram Panchayat, Jangareddigudem on 25-9-2007 by the then Tahsildar. As such the land is free from encroachment. Later the petitioner again encroached and erected a small hut and doing Welding Work business in day time only but not living in the place permanently. The petitioner having tiled house bearing No.15-2-191 (Assessment No.4702) at Jangareddigudem village in which he has been residing with family members. Regarding granting of house site patta to the encroached land by the then Mandal Revenue Officer in the year 2000, is not correct6 and the patta which was in the hands of the petitioner is a forged/bogus or fabricated document. The encroached land is classified in Village Accounts as “Ura Cheruvu” and ban on grant of pattas is in force and therefore no patta can be granted to the petitioner and there is no entry in the records about granting of patta to the petitioners. Further it is stated that the petitioner encroached tank poramboke land in R.S.No.460/1 and raised a hut 10 years back and he has ben doing Welding Work business in this place. In the year 2005, the then Revenue Authorities carried out encroachments in R.S.No.460/1 as the total land of Ac.8.01 cents classified in village records as “Ura Cheruvu” and at that time the petitioner vacated his encroachment voluntarily and the land handed over to the Gram Panchayat by the then Tahsildar under proper acknowledgment. It is further stated that the petitioner again raised a temporary shelter for doing Welding work business in the same place which was an objectionable encroachment. Hence, the then Tahsildar, Jangareddigudem issued notice under Section 7 of the E.A.Act to all the encroachers including the petitioner to vacate the land. The petitioner refused to take the notice on 24-12-2008 and that therefore, the notice was affixed for his information on a cement poll which was located in the premises in the presence of two village elders. The petitioner is not filed any appeal petition before the Tahsildar, within the time stipulated period from the date of notice served on him and directly approached this Court. This fact was suppressed by the petitioner in this writ petition and hence the writ petition may be dismissed on this ground alone. It is also stated that, it is not true, before evicting the encroachment, Form-7 notice was issued on the petitioner under the A.P. Land Encroachment Act, 1995, in fact before evicting the petitioner from the land the then Tahsildar followed the procedure under the Act and handed over the land to Gram Panchayat in the year 2007. The Revenue Authorities already evicted the petitioner from objectionable encroachment in the month of April, 2006 and handed over the land to Gram Panchayat for Development purpose. Further it is stated that the encroachment made by the petitioner over the Tank Bed land is highly objectionable and therefore to follow the due procedure to evict the petitioner from the Tank Poramboke land, a notice under Section 7 of the Land Encroachment Act was issued on 24-12-2008 by the Tahsildar, Jangareddigudem, West Godavari District and without filing any explanation, the petitioner had filed the present writ petition suppressing the true and correct facts of the case. It is always open for the petitioner to send his explanation and after considering the same under Section 6 of the Land Encroachment Act an order will be passed and if the petitioner is still aggrieved by the orders of the Tahsildar passed under Section 6, there is an alternative remedy of Appeal under Section 10 of the Land Encroachment Act. Therefore, viewed from any angle, the writ petition is misconceived and it is liable to be dismissed. 9. In the counter affidavit filed by R.4 and R.5 almost the similar averments had been made and in the reply affidavit filed by the petitioner, again the stand taken in the affidavit filed in support of the writ petition had been reiterated with certain further facts. 10. Learned Judge of this Court disposed of a writ petition - W.P.No.28383/2008 with the following observations:- “The petitioners do not claim ownership rights over the land on which they have constructed the houses. They admit that they have encroached the Government land. Even assuming that the land encroached by the petitioners is part of tank bed or poramboke, they can be evicted only after following due process. Though it is mentioned by respondents No.4 and 5 that the petitioners were issued notices under Section 7 of the Act and served with orders under Section 6, nothing is forthcoming from the officials of the Revenue Department. The petitioners were virtually denied the service of such notices or orders. This is of the view that the petitioners cannot be evicted forcibly, particularly when houses have been constructed by them long back. Hence, the writ petition is disposed of, directing that the petitioners shall not be dispossessed from the houses in which they are living without issuing notice under Section 7 of the Act and without passing orders under Section 6. It is also made clear that in case any orders have been passed already under Section 6 of the Act against the petitioners, they shall be served on them and in such an event, further steps shall be deferred for a period of four (4) weeks from the date of service. There shall be no order as to costs.” W.P.No.23356/2007 also had been disposed of on similar lines. 11. No doubt, it is stated that in the said writ petitions, the writ petitioners are encroachers and in the present writ petition the petitioner stands on a different footing. This Court is not inclined to express any opinion relating to this aspect. However, in the facts and circumstances, the writ petition is disposed of with a direction not to dispossess the petitioner from the subject matter without issuing notice under Section 7 of the Act and without passing orders under Section 6 of the Act and it is also made clear that the petitioner is at liberty to put- forth his contention inclusive of the Patta granted in his favour and the other aspects. It is also further made clear that in case any order already had been made under Section 6 of the Act against the petitioner, the same shall be served on him and in such an event, further steps to be deferred for a period of six weeks from the date of service. 12. Accordingly, with the above direction, the writ petition is disposed of. No order as to costs. _____________________ Justice P.S.Narayana 28th August, 2009 smr