IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TENTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT APPEAL No.414 OF 2002 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated ______ in WP NO : 3062 OF 2002 on the file of the High Court.) Between: 1 M.Balaiah, S/o Late Yellaiah, R/o.Thondupally Village, Shamshabad Mandal, Ranga Reddy District. 2 M. Vishwanatham, S/o.M. Balaiah, R/o.Thondupally Village, Shamshabad Mandal, Ranga Reddy District. 3 M. Sudhakar, S/o.M. Balaiah, R/o.Thondupally Village, Shamshabad Mandal, Ranga Reddy District. 4 M. Harinath S/o.M. Balaiah, R/o.Thondupally Village, Shamshabad Mandal, Ranga Reddy District. 5 M. Satyanarayana, S/o.M. Balaiah, R/o.Thondupally Village, Shamshabad Mandal, Ranga Reddy District. 6 M. Arjunaiah, S/o.Late Yellaiah, R/o.Thondupally Village, Shamshabad Mandal, Ranga Reddy District. 7 M. Krishna, S/o.Arjunaiah, R/o.Thondupally Village, Shamshabad Mandal, Ranga Reddy District. 8 M. Kumar, S/o.Arjunaiah, R/o.Thondupally Village, Shamshabad Mandal, Ranga Reddy District. 9 M. Kumar, S/o.Arjunaiah, R/o.Thondupally Village, Shamshabad Mandal, Ranga Reddy District. 10 M. Nandagopal, S/o.Arjunaiah, R/o.Thondupally Village, Shamshabad Mandal, Ranga Reddy District. 11 M. Rajender, S/o.Arjunaiah, R/o.Thondupally Village, Shamshabad Mandal, Ranga Reddy District. 12 M. Shankar, S/o.Arjunaiah, R/o.Thondupally Village, Shamshabad Mandal, Ranga Reddy District. ..... APPELLANTS AND 1 The Revenue Divisional Officer, Chevella Division, Ranga Reddy District at Domalguda, Hyderabad. (RR4 to 8 are impleaded as per Court order dated 24.09.2002 in WAMP No.2222/02) 2 The Mandal Revenue Officer, Shamshabad Mandal at Shamshabad, Ranga Reddy District. (RR4 to 8 are impleaded as per Court order Dated 24.09.2002 in WAMP No.2222/02) 3 The Additional Revenue Inspector, Shamshabad Mandal, Ranga Reddy District. (RR4 to 8 are impleaded as per Court order Dated 24.09.2002 in WAMP NO. 2222/02 4 Pediripati Yadamma, W/o.Balakistaiah, R/o.Thodupally, Shamshabad Mandal, Rangareddy District. (RR4 to 8 are impleaded as per Court order dated 24.09.2002 5 Smt.Makta Gudem Vasantha, W/o.Parmesh, R/o.Thodupally, Shamshabad Mandal, Rangareddy District. (RR4 to 8 are impleaded as per Court order dated 24.09.2002 in WAMP NO. 2222/02 6 Smt.Malkajigiru Sunitha, W/o.Sahadev, R/o.Thodupally, Shamshabad Mandal, Rangareddy District. (RR4 to 8 are impleaded as per Court order dated 24.09.2002 in WAMP NO. 2222/02 7 Smt.Muttupur Sayamma, W/o.Ramulu, R/o.Thodupally, Shamshabad Mandal, Rangareddy District. (RR4 to 8 are impleaded as per Court order dated 24.09.2002 in WAMP NO. 2222/02 8 Rachamalla Satyamma, W/o.Yadaiah, R/o.Thodupally, Shamshabad Mandal, Rangareddy District. (RR4 to 8 are impleaded as per Court order dated 24.09.2002 in WAMP NO. 2222/02 .....RESPONDENTS Counsel for the Appellants:MR.K.RAGHUVEER REDDY Counsel for the Respondents: GP FOR REVENUE The Court made the following : THE HON’BLE SMT. JUSTICE T.MEENA KUMARI AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.414 OF 2002 ORAL JUDGMENT: (Per Hon’ble Smt. Justice T.Meena Kumari) The present writ appeal is filed challenging the order dated 18.02.2002 passed by a learned single Judge in Writ Petition No.3062 of 2002. The writ petitioners are the appellants herein. The case of the appellants is that they are legal heirs of one Yellaiah. The Mandal Revenue Officer, Shamshabad Mandal, second respondent herein, issued a notice under Section 7 of the A.P. Land Encroachment Act, 1905 (for brevity, ‘the Act’) calling upon the appellants to show cause as to why they should not be evicted from the Government land. In response thereto, the appellants submitted their explanation annexing therewith several documents contending inter alia that the land in Survey Nos.214 and 215 admeasuring about Ac.20.14 guntas situtated in Thondupally Village, Shamshabad Mandal, Ranga Reddy District, was enjoyed by their father prior to the year 1950 and after his demise, the appellants, being his legal heirs, have been in possession and enjoyment of the subject lands and therefore requested the second respondent to declare them as pattadars and issue pass books to them in respect of the subject lands. However, the second respondent passed an order dated 02.11.2001 directing eviction of the appellants from the subject land. Aggrieved thereby, the appellants preferred an appeal before the Revenue Divisional Officer, Chevella Division, Ranga Reddy District at Domalaguda, Hyderabad, first respondent herein, under Section 10(1)(a) of the Act contending that they have no other land except the subject land and that the name of their father was recorded as possessor of the subject land in Khasra pahanis of the year 1954- 55 and subsequent pahanis, their case may be considered particularly in view of their bona fide possession for a long period. The first respondent after considering the entire material placed before him came to the conclusion that the subject land was classified as Kharij Khata land and it was booked as Sivai Jamabandi in the revenue records and that the village of Thondupally is falling within the radius of 10 miles of Hyderabad and therefore any assignment of Government land is prohibited under G.O. Ms.No.1122 dated 29.06.1961. Furthermore, the first respondent also considered Irsalnama dated 10.12.1953 whereunder it was shown that Yellaiah deposited Rs.70/- towards auction amount, but disbelieved the same. Eventually, the first respondent dismissed the appeal preferred by the appellants. Challenging the order dated 02.11.2001 passed by the first respondent, the writ petition was filed. The learned single Judge, while observing inter alia that the appellants and their predecessors in title, namely, their father or grandfather were in possession of the subject lands for more than 50 years, disposed of the writ petition directing the petitioners/appellants to avail the alternative remedy available to them against the order passed by the first respondent under Section 12-A of the Act by way of revision before the Government within a period of two weeks from the date of receipt of the said order and if any such revision is filed, the Government was to consider granting appropriate interim orders. Hence, the writ appeal. Sri K.Raghuveer Reddy, learned counsel appearing for the appellants, submitted that the appellants have acquired title and ownership to the property by virtue of auction of the subject lands and to support his contention he relied upon Irsalnama dated 10.12.1953 whereunder Yellaiah deposited Rs.70/- towards auction amount. He asserted that the case on hand does not attract the provisions of A.P. Land Encroachment Act, 1905 and the first and second respondents misconstrued the same since the provisions of the Act are not applicable for passing an order of eviction as the subject lands are not assessed waste or unassessed Government lands and that the subject lands having been classified as Kharij Khata lands, are out side the scope of the provisions of the Act. On facts, he contended that for the last more than 50 years, the subject lands are under the continuous possession and enjoyment of the appellants and their ancestors and as there is a bona fide dispute with regard to title, the respondents cannot deprive the appellants of their valuable property by resorting to summary proceedings under the provisions of the Act. He also submitted that merely because the appellants requested for issuance of pattadar pass books in respect of the subject lands in view of their long standing possession and enjoyment of the same, the same cannot be considered to be a request made for grant of assignment of the subject lands. He therefore submitted that the writ appeal may be allowed. On the other hand, the learned Government Pleader for Revenue submitted that that the subject lands are classified as Kharij Khata and therefore the same are Government lands, and that the petitioners and their ancestors are in unauthorized occupation of the subject lands. He further submitted that the payment of Rs.70/- alleged to have been made by Yellaiah was only towards Sivai Jamabandi for his unauthorised occupation but not towards auction amount as no auction certificate was produced by the appellants to show that said Yellaiah participated in the Auction prior to the year 1950. He asserted that the payment made towards Sivai Jamalbandi does not confer any right over the Government lands. He also submitted that the first respondent considered all these aspect in the appeal preferred by the appellants before him and rightly dismissed the same. He therefore prayed that the writ appeal may be dismissed. We have gone through the material on record. A perusal of the order passed by the first respondent shows that in the pahani 1361-F, Khasra pahani 1954-55, pahanis 1955-56, 1957-58 the subject lands are classified as Kharij Khata lands and the appellants’ ancestor, namely, Yellaiah was shown as possessor of the subject lands and that in the remarks column of the said pahanis it was shown that the said Yellaiah paid the auction amount and continued his possession. In the Faisal Patti 1953 it was mentioned that encroacher was in occupation by way of depositing the auction amount. Furthermore, as per Irsalnama dated 10.12.1953, Yellaiah paid Rs.70/- towards auction amount. The various land revenue receipts also reveal that the appellants and their ancestors have been in occupation and possession of the subject lands for a long period. Added to it, the issuance of notice under Section 7 of the Act also shows that the appellants are in possession and enjoyment of the subject lands. Further, the appellants claim to have acquired title and ownership to the property by virtue of auction of the subject lands. The subject lands, having been classified as Kharij Khata lands and not as assessed waste or unassessed Government lands, are out side the purview of the provisions of the Act and the first and second respondents misconstrued the provisions of the Act, as they cannot be made applicable for passing an order of eviction. In the above circumstances, the appellants cannot be termed as encroachers and the initiation of the proceedings under the provisions of the Act is not in accordance with law. We therefore do not agree with the order passed by the learned single Judge. Therefore, the proceedings initiated against the appellants under the provisions of the A.P. Land Encroachment Act, 1905 are liable to be set aside. For the above reasons, the writ appeal is allowed and the proceedings initiated against the appellants under the provisions of the A.P. Land Encroachment Act, 1905 are hereby set aside. In the circumstances of the case, there shall be no order as to costs. ______________________ T.MEENA KUMARI, J ____________________ SANJAY KUMAR, J 10th June, 2009. PGS/VGSR