THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY Writ Petition No.28119 of 2013 & Suo motu Contempt Case No.1758 of 2013

Dated 24 th December, 2013

Between:

R.Mallesham and another

And

…Petitioners

The Government of A.P., rep.by its Principal Secretary, Revenue, Secretariat, Hyderabad and others

…Respondents

Counsel for the petitioners: Sri G.Madhusudhan Reddy

Counsel for the respondents: AGP for Revenue

The Court made the following:

COMMON ORDER:

W.P.No.28119 of 2013 is filed for a mandamus to set aside proceeding bearing No.B/1623/2013, dated 18.09.2013, issued under Section 6 of the A.P.Land Encroachment Act, 1905 (for short 'the Act').

When this case came up on 27.09.2013, this Court has noticed that the impugned proceeding issued under Section 6 of the Act was not preceded by a notice under Section 7 of the Act, despite the order, dated 11.09.2013, passed by this Court in W.P.No.24477 of 2013 and accordingly passed an order on that day directing respondent No.3 to be personally present in the Court along with record to justify the impugned proceeding.

Accordingly, respondent No.3 was present before this Court on 30.09.2013. He has conceded that before issuing the impugned proceeding, notice under Section 7 of the Act was not issued. As the conduct of respondent No.3 was prima facie viewed as being in

violation of the above-mentioned order in W.P.No.24477 of 2013, suo motu contempt proceedings were initiated and the Registry was accordingly directed to register and number the contempt case. The Registry has numbered the contempt case as Suo motu Contempt Case No.1758 of 2013.

As regards the writ petition, the petitioners have earlier filed W.P.No.24477 of 2013 with the grievance that respondent No.3 herein has been unlawfully interfering with their possession and enjoyment of the property bearing House No.13-85/3 of Kodimial Village and Mandal, Karimnagar District. The said writ petition was disposed of by this Court by order, dated 11.09.2013, wherein it was observed that the material produced by the petitioners prima facie showed that they are not only in possession of the property but have also obtained building permission for construction and that unless respondent No.3 initiates appropriate proceedings under the provisions of the extant enactments, he cannot interfere with the petitioners' possession and enjoyment of the property. Accordingly respondent No.3 was restrained from interfering with the petitioners' right over the property till such time as appropriate proceedings are initiated and an order passed after giving the petitioners an opportunity of being heard.

After disposal of the said writ petition, respondent No.3 has issued the impugned proceeding straightway directing the petitioners to vacate the property within 15 days from the date of service of a copy of the same failing which they will be summarily evicted from the property. This proceeding was issued under Section 6 of the Act.

Respondent No.3 in his counter affidavit has conceded that the impugned proceeding was issued mistakenly without first issuing a notice under Section 7 of the Act.

In view of this concession made by respondent No.3, the impugned proceeding is liable to be set aside and the same is accordingly set aside. This order, however, does not preclude respondent No.3 from issuing notice under Section 7 of the Act and

pass a final order, after holding an enquiry on the petitioners' objections. Till this process is completed, the respondents shall not interfere with the petitioners' possession of the property.

The writ petition is accordingly allowed.

Coming to the contempt case, respondent No.3 has expressed regrets for the mistake committed by him by not issuing notice under Section 7 of the Act before issuing the impugned proceeding. He has also tendered unconditional apology for the mistake committed by him.

Considering the fact that respondent No.3 is on the verge of retirement and he has expressed his profound regrets for the alleged mistake committed by him, he is let off with a warning not to repeat such mistake in future.

The suo motu contempt case is accordingly closed.

As a sequel to disposal of the cases, the pending interlocutory applications shall stand disposed of as infructuous.

C.V.NAGARJUNA REDDY, J

24 th December, 2013 VGB