ORDER:

This petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, questioning the impugned notice bearing R.C.No.1206/2019-DT, dt.26-11-2019, issued by the 3rd respondent herein to the petitioners, and declare the same as illegal, arbitrary and contrary to the provisions of A.P. Land Encroachment Act, 1905, and violative of Articles 19, 21 and 300-A of the Constitution of India.

It is the case of petitioners that their father purchased different extents of land in different survey numbers situated at Uppalapadu Sivaru, Gollamudi Village, Pedakakani Mandal, Guntur District under different registered sale deeds. The petitioners’ father was in possession and enjoyment of the said property and obtained pattadar pass books and title deeds for the land in dispute. Besides the said land, the petitioners’ father inherited land to an extent of Ac.0.40 cents in Sy.No.451 of Gollamudi Village. All these plots of land, is contiguous.

The petitioners’ father expired on 07-10-2014 and during his life time their father executed a Will, dt.02-08-2014, which is his last Will executed in a sound disposing state of mind, bequeathing his entire property to the petitioners and therefore the petitioners being legal heirs are entitled to claim as owners of the property.

After death of his father, the petitioners though continued in possession and enjoyment of the property their names were not mutated in the revenue records, but a notice in R.C.No.1206/2019-DT, dt.26-11-2019 is issued to them under Section 7 of the Madras Land Encroachment Act, contending that they encroached the land to an extent of Ac.1.00 cents in Sy.No.451 of Uppalapadu Sivaru, Gollamudi Village, which is allegedly classified as ‘gramakantam’ (Poramboku) and directed them to vacate and deliver vacant possession of the property and to submit their application within seven (07) days from the date of notice.

The said notice impugned in this writ petition is illegal on the ground that the petitioners are in long continuous possession and there were several transactions relating to this property. Thus, the petitioners are in settled possession and no action has been taken since long time. Therefore, the said possession cannot be described as an ‘encroachment’.

In such a case, remedy open to the Government is to approach the Civil Court and not by invoking the provisions of Land Encroachment Act. It is also further contended that in spite of enacting separate Act by the State of Andhra Pradesh, issuance of notice under Madras Land Encroachment Act, is an another illegality. Even otherwise, ‘gramakantam’ is under the control of Gram Panchayat and unless the same is notified by exercising power under Section 58(2) of the A.P. Panchayat Raj Act, the Government cannot recover possession either by invoking provisions of the Land Encroachment Act or any other enactment.

It is also contended that when the land is classified as ‘gramakantam’ it cannot be vested on the government automatically. On this ground also, the Tahsildar is not competent to invoke the provisions of Land Encroachment Act and requested to set aside the notice issued under Section 7 of the Madras Land Encroachment Act impugned in this writ petition.

Whereas the learned Assistant Government Pleader for Revenue (Assignment) filed counter on behalf of the 3rd respondent alleging that as per RSR of Gollamudi, H/o Uppalapadu Village, the land in Sy.No.451 is classified as ‘government poramboke’ and in the remarks column it is noted as ‘Gramakantam – Village Site” with a total extent of Ac.5.58 cents and the land in Sy.Nos.452-2 and 452-3 is classified as ‘government dry’

(Patta land).

During the verification of Government lands, it was brought to the notice of the revenue officials that out of the total extent of land in Sy.No.451, an extent of Ac.1.00 cents is under the encroachment of the writ petitioners and an extent of Ac.4-58 cents is covered by residential houses, roads, temples etc., It i