ORDER:

Heard the learned counsel for the petitioners and the learned Assistant Government Pleader for the respondents.

2. The grievance of the Writ Petitioners is that, the 4th respondent issued the impugned notice, dated 07.02.2023 under Section 7 of A.P. Land Encroachment Act, 1905 to give an explanation within 7 days with respect to the subject land in an extent of Ac.4.40 cents in Sy.No.562 of Balighattam Village, Narsipatnam Mandal, Visakhapatnam District.

3. The learned counsel for the petitioners submits that, the 1st petitioner is in possession and enjoyment of Ac.1.10 cents, the 2nd petitioner is in possession and enjoyment of Ac.0.55 cents, the 3rd petitioner is in possession and enjoyment of Ac.0.55 cents, the 4th petitioner is in possession and enjoyment of Ac.1.10 cents and the 5th petitioner is in possession and enjoyment of Ac.1.10 cents. In total, the petitioners are in possession and enjoyment of the land in an extent of Ac.4.40 cents in Sy.No.562 of Balighattam Village, Narsipatnam Mandal, Visakhapatnam District. While so, the 4th respondent issued the impugned proceedings, dated 07.02.2023 under Section 7 of A.P Land Encroachment Act, 1905 alleging that they are in illegal occupation of the Government land. For which, the petitioners gave an explanation on 09.02.2023, but, the same is pending. The learned counsel for the petitioners submits that, with respect to the subject land, the petitioners instituted O.S.No.76 of 2017 on the file of Senior Civil Juge, Narsipatnam, against the respondents herein arraying them as defendants in the said suit for grant of “permanent injunction” initially, which was later amended “for declaration”. But, the said suit is pending and the respondents herein as defendents filed their written statement. Now it is pending for consideration before the Civil Court. While so, the impugned notice is issued to the petitioners by the 4th respondent herein, assailing the same, the present Writ Petition is filed.

3. On the other hand, the learned Assistant Government Pleader for Revenue, appearing for the respondents, submits that the impugned notice was issued under Section 7 of A.P Land Encroachment Act, 1905, for which, the petitioners can give explanation to it. On giving the same, the 4th respondent will follow the due procedure under Section 7 of A.P Land Encroachment Act, 1905.

4. In view of the above said facts and circumstances, as the petitioners have also filed suit for declaration and permanent injunction against the respondents and in view of the subsequent issuance of the impugned notice, dated 07.02.2023, the petitioners ought to have filed an appropriate I.A. before the Civil Court seeking an interlocutory relief against the respondents. Instead they have filed the present Writ Petition which cannot be permitted to be pursued at this stage. When the civil court is ceased of the matter, this court will not exercise its power under Article 226 of the Constitution of India to consider for any interim relief.

5. The learned counsel for the petitioners submits that, when the suit is pending, the issuance of the impugned notice under Section 7 of A.P Land Encroachment Act, 1905 itself is bad. Hence, this Writ Petition is filed. It is open for the petitioners to take appropriate interlocutory relief on merits before the Civil Court, as the parties are one and the same and the subject matter is one and the same.

Accordingly, the Writ Petition is disposed of. No costs.

As a sequel, Miscellaneous Petitions pending, if any, shall stand closed.

________________________ B. KRISHNA MOHAN, J

21.02.2023

KMS

THE HON’BLE SRI JUSTICE B. KRISHNA MOHAN WRIT PETITION No.4109 of 2023

21.02.2023 KMS