published in http://judis.nic.in/judis_andhra/filename=9735
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY
W.P.No.1146 of 2013
18-3-2013
Battula Malakondaiah
Angirekulapadu Gram Panchayat,Represented by its Executive Authority-Cum-
Panchayat Secretary, Lingasamudram Mandal,Prakasam District and others
<GIST:
>HEAD NOTE:
Counsel for petitioner : Sri Naram Nageswara Rao
Counsel for respondent Nos.1 & 3 : Sri Raju for Sri G. Elisha Counsel for
respondent No.2 : Sri G. Ramachandra Rao for Sri G. Pedda Babu
?CASES REFERRED:
Nil
The Court made the following:
ORDER:
This Writ Petition is filed for a mandamus to set-aside proceedings Rc.No.PS/04/2012, dated 17-1-2013 of respondent No.1 whereby it has rejected the petitioner's representation not to evict him from the land in his occupation in Sy.No.111 of Anneboyinapalle village.
The petitioner pleaded that his family is in possession of an extent of
Ac.0-10 cents in the above mentioned survey number
belonging to respondent No.1.
That the petitioner is using the said site for placing hayricks, firewood, dung
heaps, tethering cattle etc., and that
he has perfected his rights by adverse
possession.
The petitioner further pleaded that in recognition of his enjoyment
and also the enjoyment of the adjacent lands by other villagers,
respondent No.4
has issued proceedings as far back as 3-9-1980 to the effect that as the land admeasuring Ac.3-54 cents in Sy.No.111 is being used by several villagers for storing hay, cow dung etc., the same is treated as being useful for communal purposes and accordingly the land was transferred to the Gram Panchayat for
public purpose.
When there was a threat of dispossession by respondent No.1,
the petitioner has filed W.P.No.12428/2012 which was disposed of by order dated
7-12-2012 with the direction to respondent No.1 to give a notice and an
opportunity of being heard before taking appropriate action for eviction of the
petitioner.
As the said order was not followed, the petitioner filed
W.P.No.628/2013.
This Court has disposed of the said Writ Petition by directing
respondent No.1 not to evict the petitioner unless he is given an opportunity of
being heard and eviction order is passed. Accordingly, the petitioner was given
an opportunity of filing his explanation.
In his detailed explanation, the petitioner has claimed that he is in long
standing possession of the subject property and that there is alternative vacant
land belonging to the Gram Panchayat which can be used for construction of the
school building.
The petitioner also pleaded that he has perfected his title by
adverse possession.
By the impugned order, respondent No.1 has rejected the
petitioner's objections and directed him to handover vacant possession of the
property within 24 hours failing which he will take possession of the property.
Feeling aggrieved by this order, the petitioner filed this Writ Petition.
At the hearing, Sri Naram Nageswara Rao, learned counsel for the
petitioner strenuously contended that the petitioner has perfected his title by
adverse possession; that no proper reasons have been assigned by respondent No.1
in rejecting the very long and detailed explanation submitted by his client and
that there are alternative lands available for construction of a Panchayat
building.
Sri G. Raju, learned counsel representing Sri G. Elisha, learned counsel
for respondent No.1 and Sri G. Ramachandra Rao, learned counsel for respondent
No.2, submitted that the petitioner is admittedly in occupation of the land
belonging to the Gram Panchayat and that therefore he has no vested right over
the said property. They further submitted that the land is required for
construction of a Panchayat building and hence the petitioner is sought to be
evicted.
Having carefully considered the respective submissions of the learned
counsel for the parties, I am of the opinion that the petitioner does not have
legally enforceable right for grant of mandamus to prevent respondent No.1 from
asserting its right over the property belonging to it.
While admitting that he
has encroached over the land belonging to respondent No.1, the petitioner has
merely claimed that his title to the subject land is mainly based on his
purported adverse possession.
The plea of adverse possession requires to be
established by the petitioner in a competent Civil Court and it is not possible
for this Court to adjudicate upon such a plea.
Having encroached upon the Gram
Panchayat land, the petitioner cannot seek the help of this Court in protecting
his unlawful possession.
The discretionary jurisdiction of this Court under
Article 226 of the Constitution of India will not be exercised in favour of encroachers of public properties, howsoever long standing possession they may have over such properties.
Having encroached the land belonging to respondent
No.1, it does not lie in the mouth of the petitioner to suggest that respondent
No.1 can utilize some other land belonging to it. If such a right is conceded
to an encroacher, there will be no protection to the public properties.
Under
Section 53 of the A.P. Panchayat Raj Act, 1994, all public roads, sewers,
drains, culverts etc., in any village vest in the Gram Panchayats and it is
empowered to take steps to remove the encroachments by following the procedure
prescribed by the Rules made thereunder. The A.P. Gram Panchayats (Protection
of Property) Rules, 2011 lay down the procedure for eviction of the encroachers
of the properties vested in the Gram Panchayats. Rule 4 of the said Rules
envisages a notice to be given to the encroacher and an order to be passed by
the executive authority before the actual eviction takes place. It is not in
dispute that respondent No.1 has followed this procedure by giving notice to the
petitioner and passing an order upon considering the petitioner's explanation.
In the absence of any dispute over the fact that the land in occupation of the
petitioner is vested in the Gram Panchayat, no elaborate reasons need be
assigned by respondent No.1 for rejecting the petitioner's objections as pleaded
by the learned counsel for the petitioner.
For the above mentioned reasons, I do not find any merit in the Writ
Petition. If the petitioner seeks to assert his right over the property in
question on the basis of adverse possession, he shall be free to approach the
competent Civil Court by instituting an appropriate suit for this purpose.
Subject to the liberty given as above, the Writ Petition is dismissed.
As a sequel, interim order dated 18-1-2013 is vacated and WPMP No.1384 of
2013 is disposed of as infructuous.
________________________
Justice C.V. Nagarjuna Reddy
Date : 18-3-2013
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY
W.P.No.1146 of 2013
18-3-2013
Battula Malakondaiah
Angirekulapadu Gram Panchayat,Represented by its Executive Authority-Cum-
Panchayat Secretary, Lingasamudram Mandal,Prakasam District and others
<GIST:
>HEAD NOTE:
Counsel for petitioner : Sri Naram Nageswara Rao
Counsel for respondent Nos.1 & 3 : Sri Raju for Sri G. Elisha Counsel for
respondent No.2 : Sri G. Ramachandra Rao for Sri G. Pedda Babu
?CASES REFERRED:
Nil
The Court made the following:
ORDER:
This Writ Petition is filed for a mandamus to set-aside proceedings Rc.No.PS/04/2012, dated 17-1-2013 of respondent No.1 whereby it has rejected the petitioner's representation not to evict him from the land in his occupation in Sy.No.111 of Anneboyinapalle village.
The petitioner pleaded that his family is in possession of an extent of
Ac.0-10 cents in the above mentioned survey number
belonging to respondent No.1.
That the petitioner is using the said site for placing hayricks, firewood, dung
heaps, tethering cattle etc., and that
he has perfected his rights by adverse
possession.
The petitioner further pleaded that in recognition of his enjoyment
and also the enjoyment of the adjacent lands by other villagers,
respondent No.4
has issued proceedings as far back as 3-9-1980 to the effect that as the land admeasuring Ac.3-54 cents in Sy.No.111 is being used by several villagers for storing hay, cow dung etc., the same is treated as being useful for communal purposes and accordingly the land was transferred to the Gram Panchayat for
public purpose.
When there was a threat of dispossession by respondent No.1,
the petitioner has filed W.P.No.12428/2012 which was disposed of by order dated
7-12-2012 with the direction to respondent No.1 to give a notice and an
opportunity of being heard before taking appropriate action for eviction of the
petitioner.
As the said order was not followed, the petitioner filed
W.P.No.628/2013.
This Court has disposed of the said Writ Petition by directing
respondent No.1 not to evict the petitioner unless he is given an opportunity of
being heard and eviction order is passed. Accordingly, the petitioner was given
an opportunity of filing his explanation.
In his detailed explanation, the petitioner has claimed that he is in long
standing possession of the subject property and that there is alternative vacant
land belonging to the Gram Panchayat which can be used for construction of the
school building.
The petitioner also pleaded that he has perfected his title by
adverse possession.
By the impugned order, respondent No.1 has rejected the
petitioner's objections and directed him to handover vacant possession of the
property within 24 hours failing which he will take possession of the property.
Feeling aggrieved by this order, the petitioner filed this Writ Petition.
At the hearing, Sri Naram Nageswara Rao, learned counsel for the
petitioner strenuously contended that the petitioner has perfected his title by
adverse possession; that no proper reasons have been assigned by respondent No.1
in rejecting the very long and detailed explanation submitted by his client and
that there are alternative lands available for construction of a Panchayat
building.
Sri G. Raju, learned counsel representing Sri G. Elisha, learned counsel
for respondent No.1 and Sri G. Ramachandra Rao, learned counsel for respondent
No.2, submitted that the petitioner is admittedly in occupation of the land
belonging to the Gram Panchayat and that therefore he has no vested right over
the said property. They further submitted that the land is required for
construction of a Panchayat building and hence the petitioner is sought to be
evicted.
Having carefully considered the respective submissions of the learned
counsel for the parties, I am of the opinion that the petitioner does not have
legally enforceable right for grant of mandamus to prevent respondent No.1 from
asserting its right over the property belonging to it.
While admitting that he
has encroached over the land belonging to respondent No.1, the petitioner has
merely claimed that his title to the subject land is mainly based on his
purported adverse possession.
The plea of adverse possession requires to be
established by the petitioner in a competent Civil Court and it is not possible
for this Court to adjudicate upon such a plea.
Having encroached upon the Gram
Panchayat land, the petitioner cannot seek the help of this Court in protecting
his unlawful possession.
The discretionary jurisdiction of this Court under
Article 226 of the Constitution of India will not be exercised in favour of encroachers of public properties, howsoever long standing possession they may have over such properties.
Having encroached the land belonging to respondent
No.1, it does not lie in the mouth of the petitioner to suggest that respondent
No.1 can utilize some other land belonging to it. If such a right is conceded
to an encroacher, there will be no protection to the public properties.
Under
Section 53 of the A.P. Panchayat Raj Act, 1994, all public roads, sewers,
drains, culverts etc., in any village vest in the Gram Panchayats and it is
empowered to take steps to remove the encroachments by following the procedure
prescribed by the Rules made thereunder. The A.P. Gram Panchayats (Protection
of Property) Rules, 2011 lay down the procedure for eviction of the encroachers
of the properties vested in the Gram Panchayats. Rule 4 of the said Rules
envisages a notice to be given to the encroacher and an order to be passed by
the executive authority before the actual eviction takes place. It is not in
dispute that respondent No.1 has followed this procedure by giving notice to the
petitioner and passing an order upon considering the petitioner's explanation.
In the absence of any dispute over the fact that the land in occupation of the
petitioner is vested in the Gram Panchayat, no elaborate reasons need be
assigned by respondent No.1 for rejecting the petitioner's objections as pleaded
by the learned counsel for the petitioner.
For the above mentioned reasons, I do not find any merit in the Writ
Petition. If the petitioner seeks to assert his right over the property in
question on the basis of adverse possession, he shall be free to approach the
competent Civil Court by instituting an appropriate suit for this purpose.
Subject to the liberty given as above, the Writ Petition is dismissed.
As a sequel, interim order dated 18-1-2013 is vacated and WPMP No.1384 of
2013 is disposed of as infructuous.
________________________
Justice C.V. Nagarjuna Reddy
Date : 18-3-2013
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