1. The petitioners seek a writ of Mandamus commanding the State of Andhra Pradesh and the Tahsildar, Gannavaram Taluk, respondents 1 and 2 respectively to refrain from enforcing the provisions of the Madras Land Encroachment Act, 1903 against them.
2. The material facts may be briefly stated here. The lands are situate in Vuyyuru which is an estate village in Vuyyuru estate. That estate was taken over by the Government under the Estates Abolition Act. These lands were purchased in the year 1922 by one Nadella Veerabhadraiah and Kopuru Kotaiah for Rs. 10,000/- from Akkineni Venkata Ratnam. When in 1929 survey was made, it was found that the land was in occupation of N. Virabhadraiah and K. Kotaiah, Pata No. 153 was granted to them accordingly and they continued to enjoy the land under the said patta. There was division between the two persons later and the Village Officers were collecting the wet cist from each sharer every year until now. The entire land is Ryoti land in respect of which the occupiers are entitled to pattas. The present petitioners acquired portions of the lands subsequently by virtue of purchases for valuable consideration. While so, the village officers issued petitioners 1 to 3 notices under Section 6 of the land Encroachment Act on 7-3-1970 calling upon them to vacate the lands mentioned in the notices. Thereupon, the petitioners filed this Writ Petition.
3. A number of contentions were raised, one of them being that the Madras Land Encroachment Act, 1903 is opposed to Article 14 of the Constitution. Now that a Bench of this Court upheld the validity of the Act, that argument is not pressed before me. The other two points stated in the writ petition are that the lands in respect of which the petitioners have vested rights under the Estates Abolition Act, 1948 and the Estates Land Act, 1908 and that without issuing notice under Section 7 in advance , the issuance of notice under Section 6 is invalid.
4. Unfortunately, there is no counter filed by the respondents. In the absence of a counter. I will have to accept the averments contained in the affidavit as correct. When that is the case, what emerges is that the present petitioners have come to be in possession of the lands from 1940 onwards having purchased them from N. Veerabhadraiah and K. Kotaiah, and their successors who had acquired these lands in the year 1922. It is thus obvious that the petitioners and their predecessors in title have been in occupation of the lands long prior to the Estates Abolition Act and the date on which this estate was taken over.
5. Now the question is whether the respondents can have recourse to the procedure of the Land Encroachment Act to dispossess the petitioners from the lands. The answer to the question does not involve any difficulty. The Estates Abolition Act and the Rules made thereunder have laid down an elaborate procedure for requiring into the rights of the parties and for dispossessing persons who are not prima facie entitled to ryotwari pattas. By virtue of Sec. 3. once an estate is notified and taken over, it in the entirety vests in the Government. Clause (d) thereof empowers the Government to take possession of the estate after removing any obstruction that may be offered. The proviso thereto, however, precludes the Government from dispossessing any person of any land in the estate in respect of which they consider he is prima facie entitled to a ryotwari patta. It is admitted that the petitioners have not filed any applications for pattas under Section 11 of the Act. Even then , the Rules made in G. O. No. 163 (revenue) dated 20-7-1955 under Section 67 lay down clearly the procedure that has to be adopted in such cases. Rule (1) requires that before taking possession of any land in an estate under the proviso to Section 3 (d) of the Madras Estates (Abolition and Conversion into Ryotwari) Act. 1948, the Manager of an estate shall examine whether any Ryot or landholder holding lands in the estate is prima facie entitled to ryotwari patta, or not, Rule (2) says that if the Manager considers that any occupant is prima facie entitled to a ryotwari patta, he shall allow such occupation tentatively to continue. If on the other hand, the Manager considers that a person is not prima facie entitled to a patta, Rule (3) (a) provides that the manager shall cause a notice to be served on the person concerned calling upon him to show cause why he should not be dispossessed of the land. Clause (b) of the Rule requires the Manager to examine the representation, if any, made on the date fixed for the enquiry and after such enquiry as he may consider necessary, shall pass orders holding that the occupant is or is not prima facie entitled to ryotwari patta in respect of the land. Then the other rules provide for several contingencies arising out of the decision of the manager and also for preferring appeals against his decision and a further revision thereon. Then,. Rule 7 provides that when an occupant of any land is found not to be actually entitled to the ryotwari patta, a notice shall be served by the manager on the person in occupation of the land and it also authorises the Manager to take such further steps as are necessary to evict the occupant. Such eviction can be carried out in accordance with the provisions of Rule 6. The form of notice is also prescribed by the rulers. Further Rule 9 took care to state that nothing contained in the rulers shall be construed as exempting any person unauthorisedly occupying land from the liability to be proceeded against under any law for the time being in force. Finally Rule 10 clearly says that the rules shall not apply to cases where the land is encroached upon after the estate has been notified. From the provisions of these rules and the Act, it is manifest that the procedure adopted for evicting a person who is not prima facie entitled for ryotwari patta under the Estates Abolition Act is kept distinct and separate from the eviction procedure that is taken under the Land Encroachment Act. The two should not be confused with each other. In so far as the persons who were in possession of some land in the estate as on the notified date are concerned, they had to be dispossessed, if dispossession is ultimately decided upon, only in accordance with the provisions of Section (3) (d) and the Rules made in G. O. Ms. No. 163. The procedure for eviction laid down by the Land Encroachment Act has no application to such dispossession. That is made explicit by Rule 10.
6. Applying the above said principles to the facts of the present case it is beyond doubt that the Land Encroachment Act cannot be invoked to dispossess the petitioners. The petitioners and their predecessors in interests had been in possession of the lands as I have already noted above, for a long time prior to the notified date. The manager will have to first find out whether they are prima facie entitled to the ryotwari patta when the petitioners have not applied to such pattas under Sec. 11 of the Abolition Act. If he is prima facie not satisfied that they are entitled for such pattas, he must give them notice in Form No. 1 prescribed by the rules calling upon the petitioners to show cause why they should not be dispossessed. Then he should examine their representation and hold such enquiry as he may consider necessary and then pass orders whether the petitioners are or are not prima facie entitled to ryotwari Pattas. If and when he comes to the conclusion that they are not entitled to the pattas prima facie, then he should take proceedings for dispossession as prescribed by Rule 6, and 7. It is obvious that instead of applying this procedure, the respondents have wrongly taken recourse to the Land Encroachment Proceedings to do which they have no jurisdiction and in fact are precluded from adopting by Rule 10. Further the procedure prescribed by the Land Encroachment Act for eviction can be taken only if the occupation of the petitioners is unauthorised. In the circumstances of the cases it cannot be said, until it is formally decided in regular proceeding that the occupation of the petitioner is unauthorised.
7. In any view of the matter it is clear that the issuance of notice under Section 6 of the Land Encroachment Act by the respondents to the petitioners is illegal and unwarranted.
8. In the result a mandamus will issue to the respondents to desist from invoking the provisions of the Land Encroachment Act, 1963 against the petitioners.
9. The Writ Petition is accordingly allowed with costs. Advocate's fee Rs. 100/-
10. Writ petition allowed.