IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) TUESDAY, THE TWENTY EIGHTH DAY OF OCTOBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION Nos.20239 of 2012 and 6316 of 2010 & CC.No.859 of 2013 WP.No.20239 of 2012: BETWEEN ITC Limited.
AND The Tahsildar, Burgampahad Mandal, Khammam District.
... PETITIONER WP.No.6316 of 2010: BETWEEN Nagothu Chinnaiah.
...RESPONDENTS AND The Superintendent of Police, Khammam District and others.
... PETITIONER CC.No.859 of 2013: BETWEEN Nagothu Chinnaiah.
AND ...RESPONDENTS ... PETITIONER Sri Sagar, Station House Officer, Burgampahad P.S., Khammam District and two others.
...RESPONDENTS The Court made the following: COMMON ORDER:
WP.No.20239 of 2012:
Petitioner company questions the impugned proceedings issued by respondent No.1 dated 30.06.2012 under Section 6 of the A.P. Land Encroachment Act, 1905 (for short ‘the Act’).
2. It is set out in the writ petition that the petitioner company was given a notice under Section 7 of the Act dated 22.06.2012 claiming that it has encroached land in an extent of Ac.4.07 guntas in Sy.No.262 of Sarapaka village, Burgampahad Mandal, Khammam District. It is the case of the petitioner company that prior to issuance of the impugned notice, respondent No.1 under his letter, dated 29.06.2012, addressed to the Administrative Officer of the petitioner company, informed him that as per the survey conducted by the Assistant Director of Survey and Land Records, an extent of Ac.4.07 guntas was found encroached by the petitioner company and accordingly, on the directions of the Revenue Divisional Officer – respondent No.2, he was directed to evict the petitioner and in pursuance of that, notice under Section 7 of the Act dated 22.06.2012 was issued.
3. Petitioner company filed a reply dated 27.06.2012 bringing to the notice of respondent No.1 that in the notice under Section 7 of the Act the names of the persons, who have made allegations, have not been disclosed and therefore, requested to provide necessary documents. However, Section 7 notice, thereafter, was followed by Section 6 order, which is impugned herein. The said impugned order also does not contain any reasons except reiterating the allegations mentioned in Section 7 notice. Petitioner company has, therefore, questioned the said order under Section 6 of the Act without availing the appellate remedy on the ground that the said order is passed on the directions of the superior authority i.e. RDO and in any case, the order, being without reasons, is not sustainable and is in violation of the principles of natural justice
4. On 05.07.2012, while issuing notice before admission, this Court stayed the operation of the impugned proceedings and the said order was extended from time to time and continues to operate.
5. Respondent No.1 has filed a counter affidavit together with a vacate petition wherein it is stated that land admeasuring Ac.487.07 guntas in Sy.No.262 was alienated to the petitioner company in terms of G.O.Ms.No.161 Revenue Department dated 26.11.1977 for establishment of the petitioner company. It is, however, stated that the petitioner company was found to have encroached an extent of Ac.4.07 guntas of land in the said survey number without any valid right and therefore, the proceedings were initiated under Section 7 of the Act and as the petitioner did not file any objection, the final order was passed under Section 6 of the Act. So far as directions of the RDO are concerned, it is stated that he is the superior officer and he is entitled to issue appropriate instructions and orders. Counter affidavit also refers to the survey report of the Assistant Director of Survey and Land Records vide report dated 22.06.2012 and the order impugned is sought to be justified on the ground that the petitioner company, as an encroacher, is not entitled for stay of eviction.
6. A third party, who is also petitioner in WP.No.6316 of 2010, has filed an application for impleadment, being WPMP.No.49517 of 2012, claiming title to an extent of Ac.5.00 guntas in the same survey number. However, the implead application is opposed by the petitioner herein on the ground that the subject matter of the writ petition relates to the proceedings under the A.P. Land Encroachment Act taken up by respondent No.1 and as such, the rival title claim by the third party is beyond the scope of the present writ petition.
Hence, WPMP.No.49517 of 2012 is dismissed.
WP.No.6316 of 2010:
7. This writ petition is filed by an individual claiming that he is the owner of an extent of Ac.5.00 guntas of land in Sy.No.262/2 of Sarapaka village and that his possession has been recognized by the revenue authorities. Petitioner claims that the respondent No.5 (petitioner in WP.No.20239 of 2012) is parking its vehicles on the land of the petitioner and using the petitioner’s land as parking area. Alleging inaction on the part of respondents 3 and 4 in protecting the petitioner’s land against the said encroachment by respondent No.5, the present writ petition is filed.
8. In this writ petition also, on 19.03.2010, while issuing notice before admission, this Court directed status quo to be maintained and later the writ petition was admitted on 09.04.2010 and interim order is continued thereafter.
9. Respondent No.5 has filed a vacate stay petition, being WVMP.No.4709 of 2010, seeking vacation of the said interim order and in the counter affidavit, the claim for title by the petitioner to the said Ac.5.00 guntas was denied. It is also stated that there is no Sy.No.262/2 as claimed by the petitioner and that the petitioner has not take any action for the last 25 years, which shows that he does not hold any land whatsoever. The allegation of the petitioner that he is in possession is, therefore, denied and it is asserted that respondent No.5 is in possession of the entire alienated land in the said Sy.No.262.
10. No counter affidavit is filed on behalf of official respondents. However, since these matters are coming up for hearing for quite some time, I have finally heard these writ petitions today.
11. So far as WP.No.20239 of 2012 filed by the petitioner company is concerned, it is, undoubtedly, directed against the order passed under Section 6 of the Act and the said order is clearly appeallable under Section 10 of the Act. However, this writ petition was entertained by this Court in view of the petitioner company’s specific averments that it was not given any opportunity and the order impugned suffers from violation of principles of natural justice.
It is also evident that the said order is passed by respondent No.1, on the directions of RDO, which he himself accepts in his letter dated 29.06.2012 addressed to the Administrative Officer of the petitioner company, which is referred to above. In these circumstances, therefore, as the writ petition is already entertained by this Court, I am not inclined to relegate the petitioner company to alternative remedy at this distance of time.
12. So far as merits of the contentions of the petitioners in both the writ petitions are concerned, evidently the claim with respect to the land in both the writ petitions is made through part of land in Sy.No.262. Admittedly, the petitioner company was allotted an extent of Ac.487.07 guntas as per G.O.Ms.No.1561 Revenue Department dated 26.11.1977.
13. In spite of granting time to the learned Government Pleader for Revenue to get information as to the total extent of land in Sy.No.262, he is unable to apprise the Court and as such, the total extent of land in Sy.No.262 is not precisely available. Further, there appears to be a contradiction in terms that as per respondent No.1, the petitioner company is stated to have encroached an extent of Ac.4.07 guntas, which belongs to the Government whereas petitioner in WP.No.6316 of 2010 claims that the petitioner company has encroached his land in an extent of Ac.5.00 guntas.
14. Firstly, it is not clear as to whether petitioner in WP.No.6316 of 2010 has any land, which is part of Sy.No.262 and secondly, the claim of the said petitioner contradicts the claim of the Government under the encroachment proceedings taken up by them. In my view, therefore, even if there is an encroachment by the petitioner company, it has, firstly, to be ascertained, as the total extent of land alienated to the petitioner company is quantified, as noted above and if the petitioner company has encroached any other extent of land and if so, whether the said additional extent belongs to the Government or the petitioner in WP.No.6316 of 2010 is also required to be ascertained. Though the record shows that there is some reference to the survey conducted by the Assistant Director of Survey, the survey plan, which is produced by the petitioner in WP.No.6316 of 2010, is not clear and in my view, unless these factual fundamental aspects are ascertained on ground, no appropriate further action can be taken. Therefore, in order to set at rest the controversy in these writ petitions, I deem it appropriate to set aside the impugned order in WP.No.20239 of 2012 and it is accordingly set aside.
15. The writ petitions are disposed of with the following directions:
1. The District Collector, Khammam (though not a party to this writ petition, a copy of this order is being marked to him for communication and appropriate action) shall take appropriate steps, as directed hereunder and respondents 1 and 2 shall, thereafter, take up further action in accordance with law.
2. The Collector shall direct a superior officer of the Survey and Land Records Department, Telangana, to appoint an officer of the rank of Deputy Director of Survey to conduct survey and demarcate the land alienated to the petitioner company in terms of G.O.Ms.No.1561 Revenue Department dated 26.11.1977.
3. The Deputy Director shall also localize and demarcate the additional land, if any, in possession of the petitioner company.
4. The Deputy Director shall also ascertain and localize as to whether any additional land, if any, is the land belonging to the Government or any private party including the petitioner in WP.No.6316 of 2010 as per the revenue record.
5. The determination and demarcation of the land on the directions above, however, shall not amount to determination of title of any of the parties but shall be only a preliminary ascertainment of the
prima facie title of the parties to the additional land, if any.
6. Based on the said report, the Collector shall direct the Revenue Divisional Officer and the Tahsildar to take appropriate action in the matter and to take all necessary steps by duly following the procedure in accordance with law.
7. As and when the survey work is taken up, as per the directions above, all the parties herein shall be duly notified apart from any other person, who will be affected by the survey. The aforesaid exercise shall be completed, preferably, within a period of six (6) months from the date of receipt of a copy of this order by the Collector.
CC.No.859 of 2013:
16. Since WP.No.6316 of 2010, against which this contempt case arises, is already disposed of by this Court, as above, nothing further survives for consideration in the contempt case. The contempt case is accordingly dismissed.
In the result, the writ petitions are disposed of and the contempt case is dismissed. As a sequel, the miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J October 28, 2014
Note: Office to mark a copy of this order to The District Collector, Khammam.
(B/o) DSK