WP/28006/2008 of Penumacha Seetharama Raju Vs The Government of Andhra Pradesh on 24 December 2008

ORDER:

There are seventy-nine (79) petitioners in the instant case filed underArticle 226 of Constitution of India. They approached this Court seekingfollowing prayer. A writ of Mandamus declaring the action of Government ofAndhra Pradesh represented by Secretary to Government in fixing the last datefor submission of applications for regularization of houses/house sites underG.O.Ms.No.166, dated 16.02.2008, as illegal and arbitrary and forconsequential direction to extend the time for a period of one year or todispense with time limit for filing applications seeking regularization foroccupation of Government land for purposes of houses.

Before noticing factual background, the policy unveiled by theGovernment in G.O.Ms.No.166 need to be mentioned. Commencing fromOctober, 1995 – indeed prior thereto; the Government issued various orders forregularization of encroachment of small extents of land by poor persons for thepurpose of housing in cities, municipal areas, villages and other humanhabitats. In all the Government Orders though time was fixing with reference tothe eligibility for regularization depending on the area prior to whichencroachment was made, Government themselves extended time number oftimes. Be that as it is presumably to introduce more transparency and forameliorative regularization policy, Government made Andhra PradeshTransfer of Rights to Certain Specified Categories of Occupants ofUnassigned Government Lands, 2008 (TR Policy, for brevity) videG.O.Ms.No.166, dated 16.02.2008. As per this Government Order, for thosepersons who establish occupation by producing any of the documents asenumerated in paragraph 5 thereof, namely, registered documents ofpurchase, electricity connection, construction permission, property tax receipts,water supply connection, telephone connection or household supply card,transfer of rights will be effected by fixing nominal cost based on basic valueas on 31.12.2003. If the occupation is in less than 80 square yards, transferwill be effected by free regularization.

All the petitioners statedly, got house site pattas, constructed houseswith roof of galvanized sheets, obtained permissions for availing utilities likewater, electricity and are paying necessary charges for them. They are alsopaying property tax to concerned Panchayat. They allege that they made jointapplication on 13.12.2008 and subsequently on 20.12.2008 and they also sentseparate representation seeking regularization under TR policy. It is allegedthat their applications are pending with respondents. In the meanwhile, fifthrespondent proclaimed that he would take necessary steps to evict petitionersfor establishing brick industries in the land occupied by petitioners. Thepetitioners allege that land admeasuring Acs.5.12 in survey Nos.91 and 92 ofMangalapalem village is under occupation for more than thirty years andtherefore, the threat of dispossession by respondents on 06.12.2008 is illegaland arbitrary.

At the stage of admission itself, learned Assistant Government Pleaderfor Revenue (General-Andhra) obtained instructions from respondents. Hesubmits that land in survey No.91 is Government land whereas land in surveyNo.92 is private land, which allegedly belongs to fifth respondent. He furthersubmits that petitioners are not in possession of land, and therefore, thequestion of regularizing their occupation under TR policy does not arise.

Petitioners have produced considerable evidence by way of propertytax receipts issued by Duvvada Gram Panchayat evidencing payment of tax bysome of the petitioners. They also filed tax receipts issued by GreaterVisakhapatnam Municipal Corporation, Visakhapatnam, and notices issuedunder Section 7 of Andhra Pradesh Land Encroachment Act, 1905 to some ofthem. These would certainly at least prima facie show that petitioners or someof them are in possession of the land as alleged by them. It is no doubt truethat the question as to which of the petitioners are in possession of the land insurvey Nos.91 or 92 being a question of fact cannot be decided here and it is amatter of enquiry by competent Tahsildar before sending a report to DistrictCollector for regularization under TR policy. As the petitioners alreadyapproached first respondent for regularization, these are to be looked intobefore any coercive steps are taken by following due process of law as to filingof cases under Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 or byfiling suits by the Government. Unless and until appropriate orders are passedon the applications for regularization, under due communication to each of thepetitioners, there cannot be any coercive action against petitioners, if they arein possession of the property. Insofar as the submission of learned counsel forpetitioners that the land in survey No.91 is a private patta land, it is for thoseprivate persons to take necessary action under common law for recovery ofpossession. Be it noted that State actors and non-State actors cannot bepermitted to remove the encroachments or take possession by use of force.

The writ petition is accordingly disposed of further observing thatrespondents 1 and 2 may consider the application of petitioners seekingregularization of their occupation under G.O.Ms.No.166, dated 16.02.2008 ifthey are eligible for such benefit. No costs.

24.12.2008pln

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(V.V.S.RAO, J)