In the normal course, a person, who feels aggrieved by an order passed under Section 3 of the Act 7/77, has to avail the remedy of appeal before the Revenue Divisional Officer. The order impugned in this writ petition, however, presents a peculiar situation. If an assignee of the land from the Government has alienated the same in contravention of the provisions of Act 7/77, proceedings have to be initiated, both against the assignee and the transferee. Though the transfer, and in some cases, assignment also, are liable to be cancelled on account of such violation, neither the assignee nor the transferee can be branded as encroachers.


THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

Writ Petition No.22610 of 2012

03-09-2012

P. Manjula & others

The Government of A.P., Revenue Department, rep. by its Principal Secretary,
Secretariat Buildings, Hyderabad & others

Counsel for the petitioners     :       Sri P. Sriharsha Reddy

Counsel for respondents   :     G.P for Revenue        

<Gist:

>Head Note:

?Citations:


ORDER:


The petitioners purchased a plot of 750 sq.yards in Sy.No.101/17 of Nagole
Revenue Village, Uppal Mandal, Ranga Reddy District, through sale deed dated 31-
03-2010.  They have traced the origin of title to the stage of a sale deed dated
19-10-1981, which, in turn was followed by two more sale deeds dated 16-05-1985
and 08-08-1990.  Their vendor filed Writ Petition No.2966 of 2010, complaining
that the respondents are trying to interfere with his possession.  The writ
petition was disposed of
on 11-02-2010, directing that the respondents shall not interfere or otherwise
dispossess the petitioner therein from the land, except by initiating the
proceedings in accordance with law.

The petitioners state that after the W.P.No.2966 of 2010 was disposed of, the
Tahsildar, Uppal Mandal, 3rd respondent herein, issued a notice dated 29-05-2010
to their vendor, under Section 3 of the A.P. Assigned Lands (Prohibition of
Transfers) Act, 1977 (for short 'the Act 7 of 77), read with Rule 3 of the
Rules, framed thereunder, requiring him to explain as to why the plot of 750
sq.yards in Sy.No.101/17 of Nagole Village, be not resumed.   The vendor of the
petitioners submitted a detailed representation on 24-06-2010, denying the
allegation that the plot is part of any assigned land.
It is stated that no orders have been passed thereon.

Even while those proceedings are pending, the
3rd respondent issued a notice dated 10-05-2012 to the petitioners, under
Section 7 of the A.P Land Encroachment Act, 1905.  However, the plot with the
same description, was shown, to be part of land,
in Sy.Nos.101/19 & 120 of Nagole Village.  The petitioners submitted a detailed
explanation on 05-06-2012.  Taking the same into account, the 3rd respondent
passed an order dated 16-07-2012, directing their eviction.  The said order is
challenged in this writ petition.

The petitioners contend that the 3rd respondent is not clear as to whether he is
passing orders, under the Act 7/77, or the A.P. Land Encroachment Act.  They
submit that on the one hand, the property was shown as part of land, in
Sy.No.101/17, in the proceedings dated 29-05-2010, whereas in the impugned 
notice, dated 16-07-2012, it is shown as part of Sy.Nos.101/19 & 20 of Nagole
Village.

The 3rd respondent filed a detailed counter-affidavit.
He submits that the entire extent in Sy.No.101 is a Government land, and up to
sub-divisions 18, the bits of that land were assigned to various persons.
According to him, the land in Sy.Nos.101/19 and 20 of Nagole Village continued
to be owned by the Government.
It is stated that on noticing encroachment of the land, by the petitioners,
proceedings were initiated under the A.P. Land Encroachment Act and the impugned
order was passed, after considering the reply submitted by them.  He submits
that the petitioners have no title or right over the land.

Heard Sri P. Sriharsha Reddy, learned counsel for the petitioners and learned
Government Pleader for Revenue.

The petitioners purchased the plot of 750 sq.yards in Sy.No.101/17 of Nagole
Revenue Village, Uppal Mandal, in the recent past, through sale deed dated 31-
03-2010.  It was shown to be part of Sy.No.101/17.  Even according to the 3rd
respondent,
the land in Sy.No.101/17 was assigned, long back.  It was on that basis, that he
initiated proceedings under the Act 7/77, against the vendor of the petitioners.
An explanation was submitted thereto.  No orders are passed by the 3rd
respondent, in the said proceedings.

The petitioners were issued a notice under the A.P. Land Encroachment Act in
respect of the very property, but showing it as part of Sy.Nos.101/19 and 20 of
Nagole Village.  The petitioners filed a detailed representation, raising
several objections.  Not satisfied with the explanation, the 3rd respondent
passed the impugned order.

In the normal course, a person, who feels aggrieved by an order passed under
Section 3 of the Act 7/77, has to avail the remedy of appeal before the Revenue
Divisional Officer.  The order impugned in this writ petition, however, presents
a peculiar situation.  If an assignee of the land from the Government has
alienated the same in contravention of the provisions of Act 7/77, proceedings
have to be initiated, both against the assignee and the transferee.  Though the
transfer, and in some cases, assignment also, are liable to be cancelled on
account of such violation, neither the assignee nor the transferee can be
branded as encroachers. 

The circumstances under which, the provisions of the A.P. Land Encroachment Act
can be invoked are totally different.  It is only when a person is found to be
in possession of Government land, without any legal basis, that he would be
liable to be evicted by initiating proceedings under the Land Encroachment Act.
Invocation of the provisions of both the enactments, referred to above, in
respect of one and the same property, is just impermissible.  A rare situation,
when both the provisions can be invoked, is, when an assignee or his transferee
continued to be in possession of the property, even after the order of
resumption, passed under Act 7/77, has become final.
In such cases, the issuance of notice under Section 7 of the Land Encroachment
Act cannot be said to be wholly illegal.
It has already been mentioned in the preceding paragraphs, that the proceedings
initiated in respect of the land in question,
under Act 7/77 are still pending, and no order of resumption was passed, yet.

The 3rd respondent has dealt with the provisions of both the enactments, in the
impugned order.   In one and the same breath, he treated that the petitioners
are unauthorized encroachers over the land, and has also made an observation to
the effect that any transferee of a land, in contravention of the provisions of
Sections 
3 and 5 of the Act 7/77 is liable to be evicted.  The whole exercise is
untenable, albeit the 3rd respondent happens to be the authority, to initiate
proceedings under both the enactments. A combined exercise of such powers  
becomes questionable.  It is prone to shake the very jurisdiction, to initiate
such proceeding. 

Hence, the writ petition is allowed, and the impugned order is set aside.  This
order, however, shall not preclude the respondents from initiating proceedings,
in accordance with law.

 The miscellaneous petition filed in this writ petition also shall stand
disposed of.  There shall be no order as to costs.


_______________________  
L. NARASIMHA REDDY, J.    
Dt.03-09-2012

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