THE ANDHRA PRADESH LAND ENCROACHMENT ACT, 19051
(Act No. III of 1905)
STATEMENT OF OBJECTS AND REASONS
(1)
The objects of the bill is to provide means
of protecting public lands from encroachment, and
to place upon a statutory basis the customary levy of assessment on such
lands when
occupied without authority.
(2)
There are two classes of land which it is
desired to protect. The first and more important is
that which is termed 'Poramboke' that is, unassessed
land set apart for public purposes or
for the communal use of the villagers as village site, threshing floors, roads,
paths, water
courses and the like. The second class! "> 'assessed waste', or
land available for occupation by
private persons, but which has not been formally applied for or assigned
by the revenue
authorities under the rules prescribed in that behalf. The occupation of the
latter class is
ordinarily unobjectionable, but it is desirable to provide means of
enforcing the strict
observance of the rules laid down for its assignment. As regards the other
class, encroachments
upon such 'Poramboke' lands are all together objectionable and require
prompt and stringent
measures for their prevention.
(3)
Before the year 1869 unauthorised
encroachments were generally dealt with as criminal
trespass, for which imprisonment might be awarded, and were suppressed
accordingly; but
in that year the High Court of Madras-ruled under the Penal Code the
Procedure was illegal,
the Collectors were accordingly authorised by
Government to evict trespasser by charging
them assessment at rates calculated to be prohibitive, such assessment
being collected in
accordance with the provisions of the Madras Revenue Recovery Act. 1864.
(4)
The practice of charging this Penal a ssessment has continued upto the
present time, and has
generally proved effective in checking encroachment. Recently, however,
the High Court of
Madras has
decided that the practice is not authorised by law.
Hence the necessity for the
present Legislation.
An
Act to provide measures for checking unauthorised
occupation of lands which are the property of Government.
Preamble:— Whereas it has been
the practice to check the unauthorized occupation of lands whicn are the
property of Government by the imposition of penal
or prohibitory assessment or charge, and whereas doubts have arisen as to how far such practice is authorized by law and
it is expedient to make statutory provision
for checking such occupation: It is hereby enacted as follows:
1. Short title and extent:—
This Act may be cited as the Andhra Pradesh
Land Encroachment Act, 1935. It extends to the whole of the State of
Andhra
Pradesh.
1-A. Definitions:—
In this Act, unless the context otherwise
requires,— (a) "Collector" means any officer incharge of a revenue division and includes
a Deputy Collector, a Sub-Collector and an
Assistant Collector. 2[(b)
"Deputy Tahsildar" means the Deputy Tahsildar in independent charge of a Taluk or Sub-Taluk, the dependent
Deputy Tahsildar of a Sub-Taluk,
or the Headquarters Deputy Tahsildar,
in whose jurisdiction the land is situated and includes a Special Deputy Tahsildar.]
- - -
1. Published
in Fort St. Georege Gazette, Part-IV, Page 595, dt. 23-12-1904.
2.
Subs. byA.P. Act
22 of 1978 (w.e.f. 22-8-1978).
- - -
1(c)
"Tahsildar" means the Tahsildar
in whose jurisdiction the land is situate and includes Special Tahsildar.
2. Right of Property in public roads, etc, waters and
lands:—
(1) All public roads, streets,
lanes and paths, the bridges, ditches, dikes and
fences, on or beside the same, the
bed of the sea and of harbours and
creeks below high water mark, and of
rivers, streams, nallas, lakes and
tanks, and all canals and
water-courses, and all standing and flowing
water, and all lands, wherever
situated, save in so far as the same are the
property—
(a)
of any Zamindar, poligar, mittadar, jagirdars, shrortriemdar or any
person claiming through or holding under any of them, or
(b)
of any, person paying shist,
Kattubadi, jodi, poruppu or quit-rent to
any of the aforesaid persons, or
(c)
of any person holding under ryotwari tenure, 2[ * * *]
or in any way
subject to the payment of land-revenue direct to Government, or
(d)
of any other registered
holder of land in proprietary right, or.
(e)
of any other person
holding land under grant from the Government
otherwise than by way of licence.
and, as to lands, save also in so far as they
are temple sites or owned as housesite or
backyard, are and are hereby declared to be the property of Government except as
may be otherwise provided by any law for the time being in force, subject always
to all rights of way and other public rights and to the natural and easement rights
of other land owners, and to all customary rights legally subsisting.
(2) All public roads and streets
vested in any local authority shall, for the
purposes of this Act, be deemed to be
the property of Government.
Explanation:— In this section
"high water mark" means the highest point reached by ordinary spring
tides at any session of the year.
CASE LAW
Section 2 - Where the public have a right of
way over the plan tiff s land the Government is not justified in
levying penalty under Section 3 of the Act. Alaudin Saheb vs. Secretary of State, AIR 1918 Mad. 502 (2).
The natural stream of channel, which passes
through the patta lands of a ryotwari pattadar, all though it is not demarcated as poramboke, is the property of the Government. Secretary of State for India in Council vs. Raghava
Charier ILR 47 Mad. 861.
Where a cart track runs through patta land
holds from the Government the cart track must be regarded as part of patta land. Same
holds good for the rills running through the land. Ramakrishna
Rao vs. Province of Madras, AIR 1951 Mad. 684.
Government, as the owner of the public streets and appurtenances
there to, can vest them in any Municipality
and withdraw the control from them. Government is a necessary party in suits of
declaration of such sites. ProddatarMunicipality vs. GurnamHanumanthu, AIR 1954 Mad. 479.
- --
1.
Amended by Act 15 of 1968.
2.
For the words "including that of a Janni in Malabar or of Wargolar
in South Canara"
omitted
by Andhra Adoption of Laws Order, 1953.
- - -
Right
in a pond or a channel - Presumption and burden of proof under.
Government cannot throw burden on pattedar
by imposing penalty on him. V. Narayya vs. State
of Andhra,
ILR 1956 A.P. 1050.
Section 2 and A.P. Estates Abolition Act,
1948, Sees. 18 (9) and (5) -Abolition of estate
- Buildings not belonging to
landholder and the sites around them vested in those who
owned them before the Act. State of A.P. vs. R. Rangaiah, AIR 1973 A.P.
71.
Section2(2) andA.P.GramPanchayatsAct, Sec. 62 -Encroachment into a
Public
Street
- Government can take action for removal of encroachment. P. Rosamma In Re, S.A. No.
411/80, dt. 22-6-81
(Unreported).
Section 2(1) and Gram Panchayat Act, Sec. 85 - Public Water
Courses, Springs Reservoirs, Tanks etc. are vested in the Gram Panchayat and the
Government has power to assume
administration on the basis of its paramount title. The Government has to issue
a notification in the Gazette giving
notice to Gram Panchayat and calling for objections for the purpose of
resumption. Resumption of land, which was in the encroachment of six landlords
for the last 20 years and assignment was made to the Landless Harijans, is a circumstances
in which there is only irregularity and the order was not without any authority of law or unwarranted. Veera Raghavulu vs. District Collector, 1986 (1JAPLJ44 (SN).
Government
have no power to permit encroachment on public street. Gopalakrishna vs. Narasimham, AIR 1958 A.P. 586.
Whether the bed of a natural stream is proved
to belong to Government or pattadar is a question of fact in
each case. Mere omission to register natural stream as poramboke
in Government records would not affect
rights of Government to collect cess. P. Ayyanna vs State of A.P., 1965(1) An.WR 361.
3. Levy of assessment on lands unauthorizedly occupied:—
(1) Any person who shall unauthorizedly
occupy any land which is the
property of Government shall be
liable to pay by way of assessment—
(i) if the
land so occupied forms an assessed survey number or part
thereof, the full assessment of
such number for the whole period of his
occupation or a
part thereof proportionate to the area occupied, as the
case maybe, provided that,
for special reasons, the Collector or subject
to his control, the Tahsildar
may impose the full assessment of such
number or any lesser sum
irrespective of the area occupied.
(ii) if the land so
occupied be unassessed, an assessment on the area
occupied calculated for the
same period at the rate imposed on lands
of a similar quality in
the neighbourhood, or at the highest dry or wet
rate of the village, as the
case may be, or when no such rates exist in
such manner as maybe
prescribed in rules or orders under Section 8:
Provided that payment of assessment under this
sub-section shall not confer
any right of occupancy.
Explanation:— For the purposes of
this sub-section occupation for an incomplete portion of a fasli may be deemed
to be occupation for a whole fasli.
(2) In the case of any class of
land which is ordinarily granted on lease or
licence, the Government may levy, in addition to the
assessment imposed
under sub-section (1), a further sum
equivalent to the annual rent or fee
which would normally be realisable thereon.
4. Conclusiveness
of decision as to amount of assessment:—
The decision as to the rate or amount of
assessment, rent or fee, payable under Section 3 shall be recorded in writing and
shall not be questioned in any civil court.
5. Liability of person unauthorized!y occupying land to
penalty after
notice:—
Any person liable to pay assessment under
Section 3 shall also be liable at the discretion of the Collector or subject to his
control, the Tahsildar or Deputy Tahsildar to pay in addition by way of penalty—
(i) if the land be
an assessed land, a sum not exceeding five rupees or, when ten
times the assessment payable for one year under Section 3 exceeds five rupees,
a sum not exceeding ten times such assessment, provided that no penalty
shall ordinarily be imposed in respect of the unauthorized occupation
of such land for any period not exceeding one year; (ii) if the land been
assessed, a sum not exceeding ten rupees, or when twenty times
the assessment payable for one year under Section 3 exceeds ten rupees, a sum
not exceeding twenty times such assessment.
6. Liability
of person unauthorizedly
occupying land to summary
eviction, forfeiture of crops, etc.:—
(1)
Any person unauthorizedly
occupying any land for which he is liable to
pay assessment under Section 3 may be summarily evicted by the
Collector, Tahsildar or Deputy Tahsildar, and any crop or other product
raised on the land shall be liable to forfeiture and any building or
other
construction erected or anything deposited thereon shall also, if not
removed by him after such written notice as the Collector, Tahsildar or
Deputy Tashildar may deem reasonable, be
liable to forfeiture. Forfeitures
under this section shall be adjudged by the Collector, Tahsildar or Deputy
Tahsildar and
any property so forfeited shall be disposed of as the
Collector, Tahsildar or Deputy Tahsildar may direct1.
(2)
Mode
of eviction:—An eviction under this section shall be made
in the
following manner, namely:— By serving a notice in the manner provided
in Section 7 on the person reputed to be in occupation or his agent
requiring him within such time as the Collector, Tahsildar
or Deputy
Tahsildar may
deem reasonable after receipt of the said notice to vacate
the land, and if such notice is not obeyed, by removing or deputing a
subordinate to remove any person who may refuse to vacate the same, and
if the officer removing any such person shall be resisted or obstructed
by
any person, the Collector shall hold a summary inquiry into the facts of
the case, and if satisfied that the resistance or obstruction was
without
any just cause and that such resistance or obstruction shall continue,
may issue a warrant for the arrest of the said person and on his
appearance commit him to close custody in the office of the Collector or
of any Tahsildar or Deputy Tahsildar
for such period not exceeding 30
- - -
1.
Ins. byA.P. Act 22 of 1978 (w.e.f. 22-8-1978).
- - -
days as may be necessary to prevent the continuance of such
obstruction or resistance or may send him with a warrant in the form of the
schedule for imprisonment in the civil jail
of the district for the like period: Provided that no person so
committed or imprisoned under this section shall
be liable to be
prosecuted under Sections 183, 186or 188 of the Indian Penal Code
in respect of the same facts.
(3) Any person who unauthorized by re-enters
and occupies any land from which he was evicted under this section, shall
be punished with imprisonment for a term which may extend to
six months or with fine which may extend to one thousand rupees or with
both."
CASE LAW
Section 6 - Unauthorised occupation of Government land - Summary eviction -Procedure to be followed - Government cannot take
unilateral decision that the property belongs to it and cannot take recourse to
summary remedy if a person is in possession of property under a bona fide claim
or title. Long possession would raise a genuine dispute between claimant and Government on the question of
title. Prime consideration is whether claim
of occupant to property is bona fide. A person in occupation of property openly
for an appreciable length of time
can be taken, prima facie, to have a bona fide claim to property requiring impartial adjudication under
law. Summary procedure of eviction be avoided in such cases. Unauthorised
constructions made in the case without complying with the provisions of Hyderabad Municipal Corporation Act. Government resorting to summary procedure under Sec. 6 of
demolishing constructions. Order of single Judge in restraining
Government from evicting the petitioners by adopting summary procedure held to be not correct. Held that best course
would be to leave the dispute for adjudication by civil Court. Status quo ordered to be maintained in the circumstnaces of the case for one month to enable
petitioners-respondents to move civil Court for appropriate relief. District Collector,
Rangareddy vs. K. Narasing Rao,
1997 (4) ALT 428 (D.B.).
Since checking of unauthorised
occupation was the object of the Act, the provisions of summary
eviction must be understood and utilised in that
context, namely the provisions of this must be resorted to in case where unauthorised occupation is admitted or of recent origin.
It can not be contended that Sections 6 and 7 gave unfettered and unguided discretion
to the Collector and Tahsildar. The provisions
dealing with summary eviction are not violative
of Art. 14 of the Constitution. Meharunnisa Begum vs.
State of A.P., 1970 (1) ALT 88.
Eviction
of persons already in the possession on the notified date.
Procedure laid down in Section 6 has no application. They can be
dispossessed only in accordance with Section 3 (d) of Estates Abolition Act and
Rules thereunder. N. Narayana
Prasad Rao vs. State ojA.P., AIR
1972 AP331 = 1972 (l)An.W.R.
123.
Notice issued under Section 6 - An appeal
under Section 10 lies against that notice. S. Sriramulu us.'Tahsildar,
W.P. 3560/69, dt 19-7-1971
(Unreported).
Persons
in possession of land under registered lease deeds from 1956. Dispute as regards the title
between the Government and the lessees and lessor. It
must be adjudicated upon by the ordinary Courts of law. Spl Dy. Collector, Land
Eviction, Hyderabad vs.
KondaLaxmanBapaji, 1983 (2) ALT 138 (NRC) = 1984 (l)An.WR 404.
Levy of penal assessment by Government - Does
not preclude taking proceedings under Section 6 (1) against persons in unauthorised occupation of Government lands. L. Permallu. vs. R.D.O., Gudivada,
1956An.WR 140 (NRC).
Sections 6 and 15-A - Initiation of Proceedings by Mandal
Revenue Officer against a person in possession of land assigned to
another person and directing eviction under Section 6 of the Act without first
terminating assignment for breach of terms of lease granted - Not legal. Unless
lease is terminated, person in possession of assigned land cannot be considered to be a person unauthorisedly occupying such land for the purpose of Section 3 of the Act for taking action under
Sections 6 and 15-A of the Act. Prakash Kathode Abdul Gaffar vs. Sab-Collector, Asifabad, 1995 (1)
ALT 535 = AIR 1995 A.P. 157. ' Sections 6 and 7 - Certain lands were said to have been acquired for purpose of
Osmania
University.
The University filed a suit for possession of a certain land claiming to
have right over the land, as they have been acquired long ago. The person in
possession claims to be the owner of the property and also claims
that the land was not included in the acquisition proceedings. The person also
claims the property by adverse possession. These are complicated
questions of title, which arises for decision and a bonafide dispute regarding
the title of the Government is made. It is not the duration, short or long, of encroachment
that is conclusion of the question, whether the summary remedy prescribed by
the Act can be put into operation for evicting a person. Of course, long
possession raises a genuine dispute. In such a case the
Government cannot summarily evict the person in occupation of the land.
Government of A. P. vs. Krishna Rao, 1982(2) APLJ 7 (SC)= AIR 1983
SC 1081,
If there is a bonafide dispute regarding the title of the
Government to any property, the Government
cannot take unilateral decision in its own favour
that the property belongs to it.
Relevant points for
consideration is (i) the nature of the property on which
the encroachment is alleged to have been
committed and (ii) whether the claim of the occupant is bonafide.
Though the duration, short or long, of
encroachment is not conclusive, theoccupation of
the property only for an appreciable length of time can be taken as primafacie bonafide claim
to the property. In this regard, the principle laid by the High Court that the
Act applies to encroachments of very recent origin is not
correct. It is also true that complicated questions of title or decisions cannot
summarily decided under the Act. Government
of A. P. vs. Tirumala
Krishna Rao, 1983 (2) An.WR
1 (SC).
If there is a bonafide dispute
regarding the nature of the occupation, then such dispute takes the matter of
the provisions of the act mere long occupation without ripened adverse
possession cannot be a ground to refuse enforcement. Shivalingappavs.
StateofA.P.,
1988 (1)
ALT 716.
Notice of eviction by merely affixing it on
the gate of a vacant site belonging to a owner and
not by service on owner residing elsewhere and whose address was known to the authorities
- Not legal. G. Padmauathi vs. Government ofA.P., W.P. No. 3954/87, dt 27-9-1988(Unreported).
Constitutional
validity - Notviolative of Art. 14 of the Constitution of India. M. Begum vs.
Government of A.P., 1971 (1) ALT292 = ILR 1972 A.P. 44 =A/R
1971 A.P. 382 = 1971 APHN52.
Summary eviction - Procedure - Explained. R.
Abbayya vs. State of A.
P., AIR 1960 A. P. 134.
District Collector can only pass orders under Section 6 after
enquiry. Land does not belong to Government
but a donation given to a school. District Collector is not competent to pass orders in respect of the dispute basing on
custom and usage. Courts alone can decide
such dispute. K.jR. ZillaParishad High
School
Committee vs. State, 1976 (1) An. W.R. 86.
Issue
of notices under the Act for eviction of a person from
Government Land - Not illegal. Eerappa
vs. M.R.O., RoRaMandal, W.P.No.
766/88, dt 1 7-8-1992.
Sections
6 and 7 and Board Standing Order 15 (36) and G.O.Ms.No.
1725 dt. 26-8-1959 Part
5 - Order of eviction of the landless poor from the lands without notice. Assignment of lands without
notice to the encroacher - IIIegal. B.
BayapuReddi vs. Tahsildar,
W.P. No. 668/1974, dt. 22-7-1974
(Unreported).
7. Prior notice to person in occupation:—
Before taking proceedings under Section 5 or
Section 6 the Collector or Tahsildar, or Deputy Tahsildar, as the case may be, shall cause to be served on
the person reputed to be in unauthorised occupation
of land being the property of Government, a notice specifying the land so occupied and
calling on him to show cause before a certain date why he should not be
proceeded against under Section 5 or Section 6.
Such nouVce shall
be served in the manner prescribed in Section 25 the Andhra Pradesh
Revenue Recovery Act, 1864, (Act II of 1864) or in such other manner as the
State Government by rules or order under Section 8 may direct.
I , CASE LAW
Sections 7 and 6 - Prior notice to person in unauthorized
occupation of land of Government -
Specifying of time in the notice under Section 7 for filing objections before initiating actiomunder
Section 5 or 6. Mandatory - In the notice in question issued to appellant/petiti
drier-Society, no specific time was mentioned even though original records produced before Court showing that specific time
was mentioned in the original notice. Petitioner
sent reply to notice filing objections two days after issuing order under
Section 6 of the Act. In the
circumstances of the case, notice issued under Sec. 7 of the Act held proper.
However, the order passed under Section 6 of the Act without considering the objections of petitioner - Set aside. Authorities
permitted to pass appropriate orders in the light of objections filed and directed not to take coercive steps for
eviction of Society from the lands
leased out pending decision. Jyothi Education Society vs. Government oJA.P.,
2002 (4) ALT 417.
Sections
7 and 6 and A.P. Scheduled Areas Land Transfer Regulation, 1959, Section 3 - Eviction of
encroacher - Assignment of house-site in scheduled area to a non-tribal (husband of petitioner).
Prohibited under the Regulation - Assignment is transfer within the meaning of Section
2(g) of the Regulation. Assignment of land and patta issued cancelled on that ground. Cancellation of patta
became final - On such cancellation, assignee
is an encroacher and liable to be evicted under the Land Encroachment Act even
if he is a landless poor. Construction of house thereon by assignee does not
give any right to continue in illegal possession. Provisions of the
Encroachment Act extend to entire State of
A.P.
including scheduled areas unless operation of the Act is excluded in respect of
scheduled areas by Governor by issue of notification under Schedule V of
Constitution of India - No such notification issued. Land in
scheduled area cannot be acquired under Land Acquisition Act for providing house-sites even to Scheduled
Castes de hors the Regulation. Transfer of
land in scheduled areas in favour of any persons
other than non-tribals. Totally prohibited under the Regulation - Petitioner,
wife of assignee has no right to
continue in possession of house-site and house thereon contrary to Regulation. Eviction of petitioner under Land Encroachment
Act - Sustainable - Petition dismissed. Koppula Saramma
vs. Government of A. P., Social Welfare Dept. 2001 (3) ALT 501.
Section 7 and
Constitution of India, Arts. 226 and 215 - Contempt of Courts Act, 1971, Section
13 - IIIegal dispossession - Power of Court in writ
petition and contempt
proceedings to
direct redelivery. Order of injunction passed restraining respondents from interfering with
possession and enjoyment of house in question by petitioner. Plea of petitioner being that he was dispossessed forcibly
after issuing injunction and that respondents
committed contempt of Court. Plea of respondents being that plaintiff encroached Government land. Petitioner claiming
adverse possession - Facts of the case and
documents filed showing that petitioner was in possession of house on the date
of filing writ petition and that he was forcibly evicted by police after
passing order of injunction and thereby
committed disobedience of orders of Court. However, circumstances of the case not showing that the matter calls for
any proceedings for alleged contempt having
regardto Section 13 of Contempt of Courts Act. Writ
Court can order redelivery of possession
in such cases of illegal dispossession even in these proceedings without relegating
party to any other proceedings to get back possession. Such an order can be passed even exercising contemptjurisdiction.
Directions therefore given to allow petitioner to occupy the tin-roofed shed
which he was occupying before dispossession, allowing him proper ingress and egress and not to interfere
with his possession thereafter till appropriate
action is taken under law for the alleged encroachment of Government land by
petitioner - Petition allowed - Contempt case closed. Ponna
Narasimha Reddy vs. Deputy
Executive Engineer, Panchayat Raj 2001 (3) ALT47 =
2001 ALT (Rev.) 223.
See
A.P.
Land Encroachment Act, 1905, Section 15-A. Jyothi Education Society vs. Government
of A. P., 2002 (4) ALT 41 7.
When the Government issued notice under Sec.
7 of the Act, the Government claiming to be the owner of the land, the tenant, of
the land can plead eviction by title paramount where the true owner be the Government or a private person, the principle is
applicable. The eviction need not be by actual dispossession of the
tenant. If the true owner is armed with legal process for eviction; cannot be
lawfully resisted even though the tenant is not put out of possession,
the threat to put him out of possession amounts in law to eviction. Alagan
Pillai vs. Ramaswamy Thevar, AIR 1926 Mad. 187.
When the Writ petitioners were in possession
of the property for more than 20 years, there is a bonafide dispute of title
between the Government and the Writ Petitioners and it
must be adjudicated upon by the ordinary Courts of law and not by summary
procedure. Special Deputy Collector vs. Konda Lakshman Bapuji, 1984 (1) An. WR 404 (DB).
The Writ Petitioner sought mandamus to
restrain the Government not to take recourse to the Land Encroachment Act, in
view of their bonafide claim and long possession. The Government
filed a Counter stating that the land did not belong to the Nizam
and produced 'Blue Book' wherein the properties of the Nizam were noted and the land in question was not to be
found there. The Petitioner filed only one receipt of the year 1982, though
they claimed title from the Nizam
through the Predecessors in title and also claimed possession. The
petitioner did not file any other document. The summary machinery provided for
the eviction of the encroachers of the Government land can not be put into
operation against persons in occupation bonafide. The
High Court can not legally speaking restrain the Government from
applying the Act on the ground that the Encroacher has been there for a long
period. Time is not, in those circumstances, capable of creating bonafide dispute
or title. The Petitioner was directed to seek remedies under the Act and
finally by way of a suit. Shivalingappa vs. State ofA.P., 1988 (1) ALT 716.
Section
7 and Constitution of India, Arts. 19 (1) (e) and Art 21 - Three hundred hut-dwellers,
claiming to be poor and occupying Government land for over fifteen years, filed the Writ Petition. Without considering their applications for
assignment of the land over which they constructed huts, the Government
was trying to demolish their huts. The land was said to be
allotted for construction of building for private Colleges for Girls. It wascontended
that the Government can not be compelled to assign the Government land to dwellers.
Relying on OlgaTellis
vs. Bombay Municipal Corporation (Pavement Dwellers' case) AIR 1986
SC 180. It was held that right to life includes the right to livelihood and
demolishing the huts would amount to deprivation of livelihood. So
it is deprivation of right to life and is accordingly unconstitutional offending
Art. 19 (1) (e) and
Art. 21.
When applications for assignment are pending,
it is the duty of the Authorities to consider them and accord assignment. Of the two competing public
purposes, namely
assignment of land to
private College and assignment to existing hut dwellers, the latter is more important. G. Kanthayya
vs. District Collector, Warangal,
1989 (3) ALT 129.
Section 7 and Evidence Act, Section 116 -
Notice issued to tenant under Section 7 by Dy. Tahsildar not taking effect. No proof that the tenant
appealed to Government that he paid cist or obtained patta from Government.
Principle of estoppel does not arise when the tenant
pleads an eviction by a person having a title paramount and entitled to
immediate possession or under threat of eviction by such person. B, Gowresu vs. K. Subadramrna, 1956An.WR 1090= AIR 1957AP. 961.
See Sec.6. GovernmentofA.P.
vs. KrishnaRao, 1982 (2)APLJ7(SC)
=AIR 1983 SC1081.
See Sec. 6. JR. Abbayya
vs. State ofA.P., AIR 1960 A.P. 134.
See Sec. 6. K.JR.
Zilla
Parishad
High
School Committee vs. State,
1976 (l)An.W.R. 86.
See Sec. 6. Eerappa vs. M.R.O., RollaMandal, W.P.No.
766/88, dt. 1 7-8-1992.
H7-A.
Encroachment by group of persons on Government lands and their eviction:—
(1)
Where the District Collector knows or has
reason to believe that a group
or groups of persons without any entitlement and with the common object
of occupying any land, which is the property of the Government, are
occupying or have occupied any such land, and if such group or groups
of persons have not vacated the land on demand by the District Collector
or any officer authorised by him in this
behalf, the District Collector shall,
notwithstanding anything in this Act, order without any notice, the
immediate eviction of the encroacher from the land and the taking of
possession of the land; and there upon it shall be lawful for any officer
authorised by
the District Collector in this behalf to evict the encroachers
from the land by force, taking such police assistance as maybe necessary,
and take possession of the land:
(2)
Where, in any proceedings taken und r this
section, or in consequence of
anything done under this section, a question arises as to whether any
land
is the property of the Government, such land shall be presumed to be the
property of the Government until the contrary is proved.
(3)
Notwithstanding anything in this Act, but
subject to the provisions of
Section 12-A, any order of eviction passed by the District Collector
under
sub-section (1) shall be final and shall not be questioned in any
Court].
CASE LAW
Section 7-A does not violate Article 14 or 21
of the Indian Constitution : The Section
empowers the District Collector to evict group of encroachers of Government
- - -
1.
Section 7-A inserted by A.P. Act 23 of 1978 (w.e.f. 13-5-1980).
- - -
Lands without notice. It
cannot be said that Sec.7-A suffer from procedural unreasonableness
nor can it be said to provide an arbitrary procedure which is inherently discriminatory
and violative of Article 14or21 of Constitution of
India. Bha.ratiyaDalU.ha Jathnla Sangam us. State
ofAndhra Pradesh, 1982 (2) ALT 47 (NRC).
The object of the new provision introduced by Act 23 of 1980 is
when there are organised attempts on the part of lawless persons
operating in groups to forcily trespass into Government lands the same should be prevented
as situations are leading to confrontation
between the police and such occupants thereby resulting in frequent breach of peace. It is clear that the authority invoked
under Section 7-A of the Act must be able to show that there is reason to believe that a group or groups of persons
without any entitlement and with the
common object of occupying any land, which is the property of the Government, occupied it. So it is intended
only against group of persons enmasse who attempted to take the law in their hands forcily trespass into the Government lav'.
It is not intended against an
individual to set up a claim where the usual procedures under Section 7 and 8 are invoked. Manohar us. Tahsildar
Wankidi, 1986 (2) ALT 3 (NRC).
The procedure adopted under Sec.7-Ashould
show fundamental fairness in procedure and the right of hearing must be read into
Sec.'7-A (1) of the Act. The person in occupation must be given an
opportunity. In case of an urgency and possible delay and the gravity of the situation, the District Collector must pass
an order under the Second limb subsection
(1) of Section 7-A. In such a case, the District Collector must give post-decisio. ;1 opportunity of hearing and consider the matter on
the basis of the material available before him. Under Section 7-A (1), the District Collector alone shall pass the
order and the non-compliance thereof vitiates actions. The Citizens Welfare
Society vs. Government ofA.P., W.P.No. 1254 and 1367 of 1987 = 1987 (1) APLJ 66 (S.N).
8. Power to make rules:—
The State Government may make rules or orders
either generally or in any particular instance—
(a)
regulating the rates of assessment, rent or
fee leviable under Section 3:
(b)
regulating the imposition of penalties under
Section 5:
(c) declaring
that any particular land or class of lands which are the property
of Government shall not be open to occupation:
(d)
regulating the
service of notices under this Act.
Such general rules or orders shall be made only after
previous publication.
9. Recovery of assessment or
penalty levied as arrears of land revenue:—
The amount of assessment,
rent, fee and penalty imposed under this Act on
any person unauthorizedly occupying any land shall be deemed to be
land revenue and may be recovered from him as arrears of land
revenue under the provisions of the Andhra Pradesh Revenue
Recovery Act, 1864.
CASE LAW
Though the amount of penalty and penal
assessment is not land revenue in realilty, it
must be taken to be land revenue for the parties of the Act under Section 9. The circumstances leading to the
encroachment of Act. 3/1905 and the full Bench decision in
I.L.R. 27 Mad . 386 was discussed. Secretary
of State vs. Jodoraj DhupaJee.
AIR 1942 Mad.
244.
10. Appeal:—
(1) An appeal shall lie (a) to the
Collector from any decision or order passed
by a Tahsildar
or Deputy Tahsildar under this Act and (b) to the
District
Collector from any decision or order
of a Collector passed otherwise than
5 on appeal, and (c) to the Board of Revenue
from any decision or order of a District Collector passed otherwise than on
appeal. There shall be no appeal against a decision or order passed by
the Collector or the District Collector on appeal, but the District
Collector may revise any decision or order passed by a Deputy Tahsildar
or Collector under this Act and the Board of Revenue may revise any decision or
order passed by any officer under this Act.
(2) Pending the disposal of any
appeal or petition for revision under this Act,
the District Collector or the Board of
Revenue as the case may be, may
suspend the execution of the order
appealed against or sought to be
revised.
CASE LAW
Appeal - Order of appellate authority
(Sub-Collector) arising out of incompetent proceedings initiated by
Mandal Revenue Officer directing eviction from assigned land under Section 6 of the
Act. Liable to be set aside. Prakash Kathode Abdul Cqffar us.
Sub-Collector, Asifabad,
1995 (1) ALT535= 1995 (1) APLJ389 = AIR 1995 A.P. 157.
Sections 10 and 14 A.P. Public Premises
(Eviction of Unauthorised Occupants
) Act, 1961 - Later Act is not more rigorous and less
advantageous than Land Encroachment Act and cannot be struck down under Art. 14 of the Constitution. BudanKhan vs. Estate Officer.
1965 (2) An.WR 268 = AIR 1966 A.P. 336.
11. Limitation of appeal I—
No appeal shall be brought after the expiration of sixty days from the
date of
decision or order complained of provided that
in computing the period of sixty days, the time required to obtain a copy
of the decision or order appealed against shall be excluded, but the
appeal may be admitted after the period hereby prescribed when the appellant
satisfies the authority to whom he appeals that he had sufficient cause for not
preferring the appeal within the prescribed period.
12. Document accompanying petition of appeal:— *
Every petition of appeal under this Act
shall be accompanied by the decision or order appealed against or by an authenticated copy of the same.
12-A. Power of Government to call for records and pass
orders:—
(1) The State Government may, in their discretion, at any time,
either suo motu or an
application made to them, call for and examine, the records relating to any
decision or order passed or proceeding taken by any authority or officer subordinate to them under this Act for the purpose
of satisfying themselves as to the
legality or propriety of such decision or order, as to the regularity of
such proceeding and pass such proceeding and
pass such order in reference thereto as they think fit.
(2) The State Government may stay the
execution of any such decision, order or proceeding pending the exercise of their powers under
sub-section (1) in respect thereof [Inserted
by Section 10 of the A. P. Land Encroachment (Extn. and Admt.) Act, 1958 {A.P. Act XXV of 1958).
CASE LAW
Revision - Government can exercise power of
revision only against a decision or ordef passed
by concerned authority in the matter of encroachment and not against a
show-cause notice issued to encroacher. Entertainment of
revision by Government against show-cause
notice and stopping all further proceedings pursuant thereto. IIIegal and
void. Observations made that Government is entertaining
revisions and passing orders in a routine manner even in cases where,revisions are not permissible
under the statute. G. Rajender
Reddy vs. Gout. ofA.P. 2002 (5) ALT 289.
13. Saving of operation of
other laws in force:—
Nothing in this Act contained shall be
construed as exempting any person unauthorisedly
occupying land from libility to be proceeded against
under any law
for the time being in force :
Provided that if any penalty has been levied
from any person under Section 5 of this Act, no similar penalty shall be
levied from him under any other law in respect of such occupation.
l[14.
Bar of jurisdiction of Civil Courts:—
No decision made or order passed or
proceeding taken by any officer or authority or the State Government under this Act, not being a
decision, order or proceeding affecting the
title to the land of a person, shall be called in question before a civil court in any suit, application or
other proceeding and no injunction shall
be granted by any court in respect of any proceeding taken or about to be taken by such officer or authority or State
Government in pursuance of any power conferred
by or under this Act.]
15. Validation of levy of penal assessment
before the passing of Act— Saving of
pending suits:—
Every proceeding taken by a Collector for the
recovery of any sum of money by way of penal or prohibitory assessment or
charge from any person who has unauthorizedly
occupied any land hereby declared to be the property of Government
shall, if such sum has been recovered prior to the passing of this Act, be
deemed to have been lawfully taken, provided that this section shall not apply to any suits pending when
this Act comes into force in a Court of First Instance or in a Court of Appeal or affect the validity and operation of any
decree or order already passed by a
court of competent jurisdiction.
15-A. Certain persons deemed to be in
unauthorized occupation of land:—
Where a lease of land which is the property of
Government expires or is terminated by the Government or any other
authority competent in that behalf, the lessee or any other person remaining in
possession of the land after such expiry of termination, or where land granted
to any person is liable to be resumed
- - -
1. Subs. byA.P. Act 23 of 1976 (w.e.f. 28-8-1975).
- - -
by the Government for the breach or non-observance of any
of the conditions subject to which the grant is made and the
Government or any other authority competent in that behalf have passed orders
resuming the land for such breach or non-observance, the grantee or any other
person remaining in possession of the land after the passing of those orders, shall for the purposes
of Sections 3 to 15, be deemed to be a
person unauthorizedly occupying such land—(Inserted
as per A.P. Amendment Act XXIX of
1950).
CASE LAW
Sections 15-A, 7 and 6 and Transfer of
Property Act, 1882, Sec. 116 - Tenant holding over - Ingredients necessary to
reap the benefits of Section 116 - Period oflease
expired. To continue in possession of lands leased out without any written
agreement, lessee must show that rents for the entire period after
expiry oflease were paid and received by the lessor-Government. Appellant/petitioner-Society
neither paid rents for about 2 years nor obtained permission to stay in the lands. Petitioner cannot
therefore claim to be tenant in holding. Petitioner-lessee must be deemed to be
in unauthorized occupation of Government
land. Initiation of proceedings under Land Encroachment Act by author! ties for eviction
- Justified. When there is an express provision under special statute (Land
Encroachment Act) to check unauthorized occupation, provisions under general
statute (T.P. Act) need not be taken
recourse to. Jyothi Education Society us. Government
of A.P., 2002 (4) ALT 417.
16. Savin* of lands claimed by
right of escheat or reversion:—
Nothing in this Act save as provided in
Section 15-A shall apply to any lands claimed by right of escheat or reversion
until such lands have been reduced into possession by the State Government.
SCHEDULE
Form of Warrant to be issued by the
Collector under Section 6 Seal
To
The Officer in-charge of the CMUail at......................................................
Whereas A.P. of.......................................... has resisted (or
obstructed) C.D.
in removing E.F. (or
himself, that is, the said A. B.) from certain lands in the village
of........................................... in the.................................................... Taluk,
and whereas it is
necessary in order to prevent the continuance 01 such obstruction
(or resistance) to commit the said A.B, to close custody, you are hereby
required under the provisions of Section 6 of the Andhra Pradesh Land Encroachment
Act, 1905, to receive the said A.B. into the jail under your charge
arid
there to keep him in safe custody for................................. days. Dated
this................................. day of..........................................
(Signature of Collector)