IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) TUESDAY, THE SIXTEENTH DAY OF SEPTEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.26992 of 2014 BETWEEN Chennuboina Venkateswarlu.
AND ... PETITIONER The Government of Andhra Pradesh, Rep. by its Principal Secretary, Civil Supplies Department, Secretariat, Hyderabad and two others.
...RESPONDENTS Counsel for the Petitioner: MR. V.CH.NAIDU Counsel for the Respondents: GP FOR REVENUE (AP) The Court made the following:
ORDER:
Heard Mr. N. Subba Reddy, learned senior counsel appearing of the petitioner and learned Assistant Government Pleader for respondents.
2. Petitioner in the present writ petition claims that he is in possession and occupation of Ac.0.03 cents (72 sq. yards) of land situated in Sy.No.99/3 of Chinn Sankaralapudi village, Prathipadu Mandal, East Godavari District. Petitioner states that he has constructed a small house on the said land after availing a loan from the A.P. State Housing Corporation Limited in 2006. Thus, he claims to be in possession of the house from 2006 and for over 8 years, he has been paying taxes to the Gram Panchayat and the property was assigned door No.3-122. Petitioner also states that he was issued land possession confirmation certificate by proceedings of the Tahsildar bearing No.5/2006 dated 29.04.2006. Petitioner, however, was served with a notice under Section 7 of the A.P. Land Encroachment Act, 1905.
3. Questioning the same, petitioner approached this Court by way of WP.No.19681 of 2012 contending that initiation of proceedings under the A.P. Land Encroachment Act, in the facts and circumstances of the case, is wholly unjustified. The said writ petition was disposed of on 09.12.2013 wherein this Court found that possession certificate having been granted to the petitioner, the same remains uncontraverted and as such, the issue as to whether the petitioner has encroached on the land, was required to be decided by conducting a survey and if it was found that the petitioner was in possession of the land covered by the possession certificate, the Tahsildar shall not evict the petitioner unless the proceedings are initiated for cancellation of the certificate and the said certificate is canceled for valid reasons.
The writ petition was, therefore, disposed of directing to conduct survey and take appropriate steps in accordance with law.
4. It appears that in implementation of the said order, a notice under Section 7 of the A.P. Land Encroachment Act was served on the petitioner on 18.08.2014 to which the petitioner filed an explanation on 30.08.2014 and finally, the Revenue Divisional Officer, respondent No.2 herein, passed the impugned order dated 03.09.2014 holding that the petitioner is liable to be evicted and issued appropriate direction to the Tahsildar to report compliance. It appears that before the petitioner approached the appellate authority, apprehending dispossession, the present writ petition is filed seeking that he may not be dispossessed from the said land.
5. This writ petition came up by way of lunch motion on 11.09.2104 and at the request of learned Assistant Government Pleader, it was directed to be listed on the next date of hearing. It was reported on the next date, on the basis of instructions received from the Tahsildar, respondent No.3, that the petitioner was served with the impugned order on 04.09.2014 and thereafter, a separate notice under Section 6 of the A.P. Land Encroachment Act was issued and served on the petitioner on 06.09.2014 and that the petitioner has not filed any objections, but has vacated the property and possession appears to have been taken by the Deputy Tahsildar and the Village Revenue Officer on 11.09.2014 by conducting panchanama and is kept under lock and key of the Village Revenue Officer. In view of the said instructions, learned counsel for the petitioner took time till this date. Today the matter is heard afresh.
6. Learned senior counsel for the petitioner accepts that the petitioner has been dispossessed and the house property is kept under lock and key. However, learned senior counsel earnestly would request this Court to restore the possession to the petitioner so as to enable him to approach the appellate authority to question the impugned order, particularly, in view of the fact that no third party interest is involved.
7. I have considered the aforesaid submissions. I am afraid that a direction to that effect cannot be given in the facts and circumstances of the case, particularly, as the petitioner is yet to prefer an appeal against the order dated 03.09.2014 passed by the RDO. The grievance of the petitioner against that order is, therefore, required to be urged and adjudicated by the appellate authority. It is also open for the petitioner to make an appropriate application to permit him to use the said house property pending hearing of the appeal. The relief sought for in the writ petition, therefore, does not survive in view of the subsequent events and the vacation of the premises occupied by the petitioner.
However, subject to the appellate remedy to which the petitioner would be entitled to avail against the impugned order of the RDO dated 03.09.2014, the writ petition is disposed of with the following directions:
1. Petitioner is at liberty to approach the appellate authority under Section 10 of the A.P. Land Encroachment Act by filling an appeal before the competent authority.
2. Petitioner is also at liberty to make appropriate interim application before the appellate authority requesting the appellate authority to consider restoration of possession to the petitioner temporarily subject to conditions and undertaking as no third party interest is involved in the matter and as the house of the petitioner is under lock and key of the Village Revenue Officer.
3. The appellate authority shall also consider the contentions of the petitioner including that he was granted possession certificate and that he had constructed the house after obtaining loan and has been residing there from 2006 onwards and whether the order passed under Section 6 of the A.P. Land Encroachment Act is in terms of the order passed by this Court in WP.No.19681 of 2012 dated 09.12.2013, referred to above.
4. Petitioner is also at liberty to bring to the notice of the appellate authority that the orders under Section 6 of the A.P. Land Encroachment Act is executed in post-haste manner without even permitting the petitioner to avail the appeal time.
All those questions are left open to be determined by the appellate authority as and when the petitioner approaches the competent appellate authority. In the facts of this case and in the interest of justice, it is desirable that the appellate authority considers the interim application at least, on priority basis, preferably within three (3) days of filing of the appeal and interim application and pass appropriate orders thereon with minimum loss of time.
The writ petition is disposed of. As a sequel, miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J September 16, 2014
Note: Furnish copy by 17.09.2014. (B/o) DSK