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IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI
U. Durga Prasad Rao, J.
V.Srinivas Chowdary, S/o. Krishnama Naidu & Ors. - Petitioners
Versus
State of Andhra Pradesh & Ors. - Respondents
W.P. No.6310 of 2020
Decided On : 08-05-2020
A.P. Panchayat Raj Act, 1994 – Petitioners seek a Writ of Mandamus to declare the action of 5th respondent in trying to dispossess the petitioners from their shops in of Penumuru village and Mandal, Chittoor District by issuing final notice vide letter as illegal, arbitrary, violative of the provisions of A.P Panchayat Raj Act, 1994 and against the principles of natural justice and for a consequential direction to the respondents not to interfere with the possession of the petitioners over the tin sheeted shops– Held, show cause notices issued by the Panchayat Secretary of 5th respondent-Gram Panchayat cannot be clamoured to be unauthoritative and inoperative in the eye of law. Running the risk of pleanoism it must be said that the notices issued by the Secretary of 5th respondent are legally valid and cannot be set aside as they do not suffer any legal infirmity. However, since Rule-4 expressly lays down that the executive authority shall, after serving notice to the encroacher, give brief hearing before proceeding for eviction, and as the executive authority (Panchayat Secretary) has not afforded a personal hearing to the petitioners before issuing final notices of eviction dated 28.02.2020, such final notices can be set aside and he can be directed to give brief personal hearing to the petitioners and pass final order – Petition disposed of
Facts of the Case:
Petitioners are residents of Penumuru village and they are running small shops for their livelihood by raising tin sheds in S.No.482 of Penumuru village. They raised the tin sheds with the permission of 5th respondent as the 5th respondent has been raising demand notices for their shops every year and the petitioners have been paying taxes without any delay or default. However, with the change in Government in the State of A.P, at the behest of local political leaders, the 5th respondent is trying to evict the petitioners from their sheds. Since June, 2019 the 5th respondent has not been issuing any demand notices for payment of tax to their sheds for the reasons best known to him.
Finding of the Court:
Rules are like a self contained code for removal of encroachment of the properties relating to a Gram Panchayat. Rule – 4 pellucidly expounds that it is the executive authority (Panchayat Secretary) who shall serve notice on the encroacher and conduct brief enquiry by hearing him and pass the order. In that view, the show cause notices issued by the Panchayat Secretary of 5th respondent-Gram Panchayat cannot be clamoured to be unauthoritative and inoperative in the eye of law. Running the risk of pleanoism it must be said that the notices issued by the Secretary of 5th respondent are legally valid and cannot be set aside as they do not suffer any legal infirmity. However, since Rule-4 expressly lays down that the executive authority shall, after serving notice to the encroacher, give brief hearing before proceeding for eviction, and as the executive authority (Panchayat Secretary) has not afforded a personal hearing to the petitioners before issuing final notices of eviction dated 28.02.2020, such final notices can be set aside and he can be directed to give brief personal hearing to the petitioners and pass final order.
Result: Petition disposed of
ORDER :
The petitioners seek a Writ of Mandamus to declare the action of 5th respondent in trying to dispossess the petitioners from their shops in S.No.482 of Penumuru village and Mandal, Chittoor District by issuing final notice vide letter No.GP/01/2020 dated 28.02.2020 as illegal, arbitrary, violative of the provisions of A.P Panchayat Raj Act, 1994 (for short “PR Act”) and against the principles of natural justice and for a consequential direction to the respondents not to interfere with the possession of the petitioners over the tin sheeted shops in S.No.482 of Penumuru village and Mandal.
2. The petitioners’ case is thus:
(a) The petitioners are residents of Penumuru village and they are running small shops for their livelihood by raising tin sheds in S.No.482 of Penumuru village. They raised the tin sheds with the permission of 5th respondent as the 5th respondent has been raising demand notices for their shops every year and the petitioners have been paying taxes without any delay or default. However, with the change in Government in the State of A.P, at the behest of local political leaders, the 5th respondent is trying to evict the petitioners from their sheds. Since June, 2019 the 5th respondent has not been issuing any demand notices for payment of tax to their sheds for the reasons best known to him.
(b) There is a bus stop in the village and around the bus stop, several individuals including the petitioners raised tin sheet shops and have been running them since several years. Earlier when the respondents tried to dispossess the petitioners, they filed W.P.No.13281 of 2019 and this Court in its order dated 06.09.2019 directed the Gram Panchayat to follow due process of law for initiating any action against the petitioners. In spite of the said order, the respondents continue to threaten the petitioners to remove the shops though the petitioners are not encroachers of the site in S.No.482. Therefore, the petitioners were constrained to file another W.P.No.2349 of 2020 and this Court once again vide its order dated 03.02.2020 directed the respondents not to interfere with the possession of the petitioners without following due process of law.
(c) Thereafter the 5th respondent issued the impugned show cause notice dated 01.02.2020 (received by the petitioners on 04.02.2020) seeking explanation from the petitioners as to why the petitioners have constructed ACC roofed sheds without permission from the Gram Panchayat. It was also alleged that the petitioners have not paid taxes and they sublet the shops to 3rd parties. It was mentioned that the said land was required for construction of shopping complex and funds were already released for that purpose. The petitioners submitted their replies dated 12.02.2020 stating that they are not encroachers of the subject land and they raised tin sheds with the permission of the Gram Panchayat and they are in permissive possession of the 5th respondent. Since 5th respondent permitted them to raise shops, the electricity department too issued the commercial electricity connections to their shops. The petitioners in their reply stated that they were ready to pay tax if demand notices were issued. They have denied the allegation that they leased out their shop to 3rd parties.
(d) Further case of the petitioners is that without considering the replies submitted by the petitioners, the 5th respondent has issued final notice vide letter No.GP/01/2020 dated 28.02.2020 directing them to remove the shops raised by them within a period of seven days else the same would be removed without any further notice. The 5th respondent has not recorded any finding that the petitioners are encroachers and they raised sheds without the consent of the 5th respondent. Thus, the respondent has not considered the explanations submitted by the petitioners in a proper perspective.
(e) The respondents have not followed principles of natural justice inasmuch as the 5th respondent has not given the petitioners an op
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