Thadala Balaswamy, v. The State Of Telangana

HON'BLE SRI JUSTICE T.SUNIL CHOWDARY WRIT PETITION No.28333 OF 2016 ORDER:

This writ petition is filed under Article 226 of the Constitution of India seeking a Writ of Mandamus declaring the action of the sixth respondent in issuing notice dated 27.07.2016 directing the petitioner to remove his shop as illegal and arbitrary.

2. Heard the learned counsel for the petitioner, the learned Government Pleader for Irrigation and Command Area representing the respondents 1 to 6 and the learned Government Pleader for Revenue, representing the seventh respondent (Telangana).

3. It is the case of the petitioner that he, being landless poor person, occupied an extent of 13 square yards of vacant land beside Quarter No.B.68, N.S.P.Camp Colony, Nandipahad Road, Miryalaguda, Nalgonda District, in the year 1977. It is the further case of the petitioner that he has been running a hair cutting saloon in the said land by constructing a room under the name and style of 'Santosh Hair Styles'. A perusal of the record reveals that the Electricity Department has given service connection to the shop of the petitioner and he also obtained loan from Grameena Vikas Bank. The fact remains that the petitioner has been in possession and enjoyment of the land by running a hair cutting saloon.

4. It is the case of the respondents that the petitioner unauthorisedly occupied the vacant land belongs to the Irrigation Department.

5. Whether the petitioner has occupied the land belongs to the Irrigation Department or not is purely a disputed question of fact, which cannot be gone into while exercising the jurisdiction under Article 226 of the Constitution. Even assuming but not conceding that the petitioner has occupied the land of the Irrigation Department, the respondents have no right whatsoever to evict the petitioner without following due procedure. A perusal of the record reveals that the sixth respondent got issued a notice dated 27.07.2016 directing the petitioner to vacate the premises. The fact remains that the petitioner has not issued any show cause notice calling for his explanation. It is a settled principle of law that a person, who is in possession of the land, though an encroacher, cannot be dispossessed except by due process of law (see East India Hotels Ltd v Syndicate Bank[1], Meghmala v G.Narasimha Reddy[2] and Maria Margarida Sequeria Fernandes v Erasmo Jack De Sequeria (Dead) through L.Rs[3])

6. Having regard to the facts and circumstances of the case and also the principle enunciated in the cases cited supra, the respondents are hereby directed not to dispossess the petitioner from the land to an extent of 13 square yards situated beside quarter No.B-68, N.S.P.Camp Colony, Nandipahad Road, Miryalaguda, Nalgonda District without following due procedure.

7. Accordingly, this writ petition is disposed of. No order as to costs. Miscellaneous petitions, if any, pending in this writ petition shall stand closed.

___________________ T.SUNIL CHOWDARY, J 23.08.2016 Rns

[1] 1992 Supp (2) SCC 29 [2] 2011 (2) ALT 8 (SC) [3] AIR 2012 SC 1727