KISHAN CHAND FOUNDATION TRUST Vs. DISTRICT COLLECTOR

JUDGEMENT

(1.) Questioning the notice dated 26-6-1997 issued by the Mandal Revenue Officer, Himayatnagar (3rd respondent), under Section 7 of the A.P. Land Encroachment Act, 1905 (the Act), to show- cause as to why it should not be evicted from 4678 Sq.Mts. in TS No. 19 at Gaganmahal belonging to Government, petitioner, which is a Trust, filed this petition. During the course of hearing, petitioner filed W.P.M.P. No.9726 of 2005 seeking leave of the Court to amend the prayer in the writ petition as, to declare that the order of the third respondent in his Proceedings No.A/2578/1997 dated 20-11-2004 is illegal, arbitrary and contrary to the provisions of the Act and violative of Article 14 of the Constitution of India and for the consequential reliefs.

(2.) The case, in brief, of the petitioner is that the property bearing No.3-6-292 admeasuring 5,461 Sq. yards at Himayathnagar hereinafter referred to as the 'suit land' was purchased by its Trustees in 1968 under two registered sale deeds, and that it and its predecessors- in-title have been in peaceful possession and enjoyment thereof from several decades prior to 1997. When 3rd respondent served a notice under Section 7 of the Act in respect of the suit land, it, after submitting an explanation to the 3rd respondent, filed O.S. No.2364 of 1997 questioning that notice. After the said suit was dismissed after trial it preferred an appeal in A.S. No.387 of 2001 to the Court of the Chief Judge, City Civil Court, Hyderabad. After the said appeal was dismissed for default, it was told that it ought not to have filed a suit questioning the notice under Section 7 of the Act and was advised to file the writ petition questioning the notice under Section 7 of the Act in view of its title and long standing possession over the suit land, which is located in the middle of the city, in view of the ratio in Government of Andhra Pradesh v. Thummala Krishna Rao, AIR 1982 SC 1081. Since the facrum of the 3rd respondent passing an order under Section 6 of the Act in Proceedings No.A/2578/1997 dated 20-11-2004 (copy of which was not filed along with the counter- affidavit of the 3rd respondent) came to its notice only after the Government Pleader served the compilation of material papers during the course of hearing, it was not aware that an order under Section 6 of the Act was in fact passed when it filed the writ petition and so it did not question that order in the writ petition and since it came to know that there is an order under Section 6 of the Act, which was passed without affording an opportunity of being heard to it, it filed the petition for amendment of the prayer in the petition as the one to set aside the order under Section 6 of the Act.

(3.) Third respondent filed his counter- affidavit and additional affidavit on behalf of respondents. The case, in brief, of the respondents is that the suit land is classified as 'G.Abadi' and as such belongs to the Government, and so, petitioner or its predecessors can have no right or interest over the suit land. As the petitioner encroached on to the suit land illegally, notice under Section 7 of the Act dated 26-6-1997 was served on it, calling for its explanation. Petitioner, having submitted its explanation, filed a suit in the City Civil Court seeking a decree of perpetual injunction restraining its eviction by respondents. After dismissal of the suit and the appeal preferred by it, proceedings under Section 6 of the Act were issued on 20-11-2004 and were served on the petitioner through affixture. Since the petitioner failed to handover possession, possession of the suit land was taken over under a panchanama on 23-11-2004 and so the petition is liable to be dismissed.