APHC010719732022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3330] WEDNESDAY, THE ELEVENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO WRIT PETITION NO: 27/2023 Between: 1. DIRISALA MANIKYAM, S/O D.RAMBABU, AGED 45 YEARS, OCC, COOLIE, RIO KAMBALAPALEM COLONY, ELESWARAM VILLAGE AND MANDAL, EAST GODAVARI DISTRICT, ...PETITIONER AND 1. THE STATE OF ANDHRA PRADESH, REPRESENTED BY ITS PRINCIPAL SECRETARY, REVENUE DEPARTMENT, SECRETARIAT BUILDINGS, VELAGAPUDI, GUNTUR DISTRICT. 2. THE DISTRICT COLLECTOR, KAKINADA, EAST GODAVARI DISTRICT, ANDHRA PRADESH. 3. THE REVENUE DIVISIONAL OFFICER, PEDDAPURAM, EAT GODAVARI DISTRICT. 4. THE COMMISSIONER, NAGARA PANCHAYATI, ELESWARAM MANDAL, EAST GODAVARI DISTRICT. 5. THE TAHSILDAR, ELESWARAM, ELESWARAM MANDAL, EAST GODAVARI. 6. KONALA VENKATA RAMANA, S/O K, MAHALAKSHMI. AGE, 25 YEARS, OCC, 6TH WARD COUNSELOR, ELESWARAM MANDAL, EAST GODAVARI DISTRICT. STATE OF ANDHRA PRADESH. ...RESPONDENT(S): Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased tomay be pleased to issue an order or direction, more in the nature of Writ of Mandamus, declaring the action of the respondents No 2 to 6 not to interfering with the peaceful possession and enjoyment of our house site in Sy No 119 to an extent of 120 Sq. Yards, in Kambalapalem Colony, Eleswaram Village, Mandal, East Godavari District. which was assigned/allotted to me by Tahsildar, Eleswaram on 08-02-2007. Required for community hall, without 2 Putting notice or following the due procedure contemplated under law, as being illegal, arbitrary and is violation of principle of natural justice apart from being in violation of Articles 14,and 21 of the constitution of India, and further threating to dispossess the petitioners without following due process of law is illegal, arbitrary, unconstitutional and consequently direct the respondents No 2 and 5 to consider the representations dated on 24-11-2022 and Mee Seva Vide Application No KKD2022112081657 dated on 28-11-2022, and pass such IA NO: 1 OF 2023 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to direct the respondents No 2 to 6 not interefare with peaceful possession and enjoyment of our house site in Sy No 119 to an extent of 120 Sq. Yards of Kambalapalem Colony, lileswaram Village and Mandal, East Godavari District and State of Andhra Pradesh, pending disposal of the above writ petition and pass such IA NO: 2 OF 2023 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to vacate the interim orders issued in IA.No.1 of 2023 in WP.No.27 of 2023 dated.03-01-2023 and consequently dismiss the Writ Petition with costs on the grounds of devoid of merits and pass Counsel for the Petitioner: 1. M CHALAPATHI Counsel for the Respondent(S): 1. GP FOR REVENUE 2. Sireesha Rani Vallabhaneni,Standing Counsel For Municipalities The Court made the following: 3 THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO WRIT PETITION NO: 27 of 2023 ORDER: This writ petition is filed under Article 226 of the Constitution of India seeking the following relief: “… to issue an order or direction, more particularly one in the nature of Writ of Mandamus declaring the action of the respondent Nos.2 to 6 in interfering with the peaceful possession and enjoyment of petitioner’s house site in Sy.No.119 to an extent of 120 square yards situated at Kambalapalem colony, Eleswaram village and Mandal, East Godavari District, which was assigned/ allotted to the petitioner by the then Tahsildar, Eleswaram on 08.02.2007, without following due process of law as illegal and arbitrary and consequently direct the respondents not to interfere with the peaceful possession of the petitioner over the subject property and consider the representations of the petitioner dated 24.11.2022 and Mee Seva Application dated 28.11.2022 and pass such other order or orders.…” 2. The grievance of the Writ Petitioner is that he is the absolute owner and possessor of the house site to an extent of 120 square yards in Sy.No.119 situated at Kambalapalem colony, Eleswaram village and Mandal, East Godavari District, the said land was allotted to the petitioner by the then Tahsildar, Eleswaram on 08.02.2007 and issued possession certificate, since then, the petitioner is in possession of the subject property. For the purpose of constructing the Community Hall in the subject property, without giving prior notice to the petitioner and without following due process of law, the respondent authorities along with un-official respondent, highhandedly, removed 4 the basement of the house in the subject property. The petitioner made representations/applications to the official respondents, but they did not take any against on the said representations/applications. Hence, the present Writ Petition. 3. Counter affidavit has been filed by the 4th respondent denying the averments made in the affidavit filed in support of the Writ Petition and further stated that though the petitioner has got patta/ assigned land from the Tahsildar, Eleswaram Nagar Panchayat, it is not according to law since it requires local body council resolution as per Section 37 of Andhra Pradesh Municipalities Act, 1956. It is further stated that the petitioner has not constructed house in the subject property even after lapse of 15 years, now it is vacant with jungle plants and in unhygienic condition and prayed to dismiss the petition. 4. Heard learned counsel for the petitioner and the learned counsel appearing for the respondents. 5. The learned counsel appearing for the respondents submits that though the possession certificate was issued in favour of the petitioner, he has not constructed the house even after lapse of 15 years. Since the said land is vacant with jungle plants, the Nagar Panchayat has proposed to construct a park with 14th finance funds to safeguard the public health. 6. On 03.01.2023, this Court, while admitting the Writ Petition, directed the respondents not to interfere with the subject matter 5 property in Sy.No.119 of Kambalapalem colony, Eleswaram village and Mandal, without following due process of law. The respondents have admitted the possession certificate issued to the petitioner with regard to subject matter of the property. 7. In Rame Gowda v. M.Varadappa Naidu,1 a three-Judge Bench of the Hon’ble Apex Court, while discussing the Indian law on the subject, observed as under: “..It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law.” 8. In the case of Ram Ratan and others Vs. State of Uttar Pradesh2, question cropped up before Hon’ble Supreme Court, with regard to right of private defence of trespasser against true owner. Their Lordships held that true owner has no right to dispossess the trespasser by use of force, in case trespasser was in possession in full knowledge of the true owner. Observation made by Hon'ble the Supreme Court is reproduced as under:- “In State of W.B. and others Vs Vishnunarayan and Associates (P) Ltd. and another, reported in (2002) 4 SCC 134, held that State and its executive officers cannot interfere with the rights of others 1 (2004)1 SCC 769 2 (1977) 1 SCC 188 6 except where their actions are authorized by specific provisions of law.” 9. In, H.B.Yogalaya Vs. State of U.P. and others3, the Hon’ble Apex Court held that without any show cause notice or hearing, neither demolition can take place nor a person may be dispossessed from the property, relevant portion is extracted hereunder: "Otherwise also principles of natural justice demand that a show- cause notice and hearing be given before demolishing or dispossessing a person from the properties of which he is in possession. Counsel appearing for the respondents did not contest this proposition." "It is well settled that the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under, the law." 10. In the celebrated case of Maneka Gandhi vs. Union of India4, the Hon'ble Supreme Court upheld the phrase no one shall be deprived of one’s life and liberty except procedure established by law as employed in Article 21 of the Constitution of India. The principles of natural justice demands that the persons who are affected should be heard. 11. Therefore, this Court is of the opinion that the petitioner should not be dispossessed except in accordance with the law, as held in Rame Gowda’s case (supra-1). 12. Hence, without going into merits of the case, the Writ Petition is disposed of, directing the respondents not to interfere with the 3 (2004) 13 SCC 518 4 AIR 1978 SC 25 7 peaceful possession and enjoyment of the petitioner’s subject property, except by following due process of law. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions pending, if any, shall stand closed. ___________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date : 11.02.2026 SJ 8 181 THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO WRIT PETITION NO: 27 of 2023 Date : 11.02.2026 SJ