1. This petition is filed seeking to declare the action of the 3rd respondent in proposing to conduct the public auction of the land admeasuring Ac.25-53 cents situated in Survey No.316/2, Bodavada Mandagunta, Pachuru Mandal, Prakasam District, as illegal and arbitrary.2. Heard the counsel for the petitioners and the Government Pleader appearing for respondents 1 and 2.3. The counsel for the petitioners contends that the respondents are trying to dispossess the petitioners from the subject land without following any due process of law as is laid down in Sections 83 to 85 of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (for short, “the Act”) by conducting an auction for the land. The petitioner is an encroacher, admittedly. But his contention is that even in respect of an encroacher, the Act prescribes a procedure for encroachment. On the other hand, the contention of the Government Pleader is that the petitioners cannot be termed as Encroachers as they unauthorisedly occupied the land without any lease or licence.4. In the considered opinion of this court, the understanding of the definition of the term, ‘Encroacher’, which is made under the explanation to Section 83(1), is misconceived by the Government Pleader. The explanation to Section 83(1) describes any person, who unauthorisedly occupy any land or building or space and deemed to include any person who is in occupation of the land or building or space without the approval of the competent authority sanctioning lease or mortgage, or licence and also a person who continues to remain in the land or building or space after the expiry or termination or cancellation of the lease, mortgage or licence in respect thereof granted to him, as an encroacher. The Government Pleader by reading the second part of the definition of Encroacher endeavours to impress upon this court that it is only a person, whose lease, mortgage or licence is not cancelled or extended, can be termed as an Encroacher.5. Section 83 of the Act is extracted hereunder for ready reference.“83. Encroachments by persons on land or building belonging to charitable or religious institution or endowment and the eviction of encroachers. - (1) Where the Assistant Commissioner having jurisdiction, either suo motu or upon a complaint made by the trustee has reason to believe that any person has encroached upon (hereinafter in this Chapter referred to as encroacher') any land, building, tank, well, spring or water-course or any space belonging to the institution or endowment, wherever situated or deemed as an encroacher under any of the provisions of this Act, the Assistant Commissioner shall report the fact together with relevant particulars to the [Endowments Tribunal] having jurisdiction over the division in which the institution or endowment is situated. Explanation. - For the purpose of this Chapter the expression ‘encroacher' shall mean any person who unauthorisedly occupy any land or building or space and deemed to include any person who is in occupation of the land or building or space without the approval of the competent authority sanctioning lease or mortgage, or licence and also a person who continues to remain in the land or building or space after the expiry or termination or cancellation of the lease, mortgage or licence in respect thereof granted to him or it.(2) Where, on a perusal of the report received by him under sub- section (1), the [Endowments Tribunal] finds that there is a prima facie case of encroachment, [it] shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling on him to show cause before a certain date why an order requiring him to remove the encroachment before the date specified in the notice should not be made. A copy of the notice shall also be sent to the trustee of the institution or endowment concerned.(3) The notice referred to in sub-section (2) shall be served in such manner as may be prescribed.(4) Where after considering the objections, if any, of the encroacher received during the period specified in the notice referred to in sub-section (2) and after conducting such enquiry as may be prescribed, the [Endowments Tribunal] is satisfied that there has been an encroachment, [it] may, by order, require the encroacher to remove the encroachment and deliver possession of the land or building or space encroached upon to the trustee before the date specified in such order.(5) The order of the [Endowments Tribunal] under sub-section (4) shall be in writing and shall contain the grounds on which he has passed the order.(6) During the pendency of the proceedings, the [Endowments Tribunal] shall order the encroacher to deposit such amount as may be specified by [it] in consideration of the use and occupation of the properties in question in the manner prescribed.”6. The interpretation of the Government Pleader comes forth with absolute lack of understanding by a comprehensive reading of the definition of ‘Encroacher’. When once it is accepted that the petitioners are occupying the lands unauthorisedly, they stand to be encroachers. Even an encroacher cannot be dispossessed without following the procedure laid down under Sections 84 and 85 of the Act. In the foremost, a notice is to be served on the Encroacher under Section 83(2). Section 83(2) applies even to a person, who prima facie appears to be an encroacher. In the present case, by admitting that the petitioners are in unauthorized occupation of land, they stand to be encroachers.7. The Government Pleader relies on the judgment of the erstwhile High Court of Judicature of Andhra Pradesh at Hyderabad, between Panthagada Suryarao vs. Kesavaswamyvari Devasthanam (2009) 1 ALD 651), to contend that the Encroacher cannot agitate for his rights. It was held therein that Section 83 of the Act prescribes the procedure for removal of an encroacher and by itself it does not confer any rights upon the person, who calls himself as an encroacher. It cannot be used as a device to perpetuate an undisputed illegality. Here, the effort of the petitioners is not to perpetuate their unauthorized occupation. Their sudden dispossession from the land is what is questioned in this writ petition, which cannot be permitted without following the procedure laid down under Sections 83 to 85 of the Act.8. The petitioners’ counsel takes the help of the judgment of the erstwhile High Court of Judicature of Andhra Pradesh at Hyderabad, in a batch of writ petitions viz., W.P.Nos.34361, 39013 and 39151 of 2016, wherein this court by order, dated 04.07.2018, has very clearly explained the meaning of Section 83 of the Act. It was observed that when an Assistant Commissioner on his finding reason to believe that any person has encroached upon the land belonging to an institution or endowment, or a person is deemed to be an encroacher under the explanation to Section 83(i) of the Act, has to report the fact together with the relevant particulars to the Endowment Tribunal and it is for the Endowments Tribunal, thereafter, to put the alleged encroacher on notice, giving him an opportunity of being heard, and thereafter pass an order requiring the encroacher to remove the encroachment and deliver possession of the land to the trustee of the temple or Endowment. It was further held that the safeguard conferred by Section 83 of the Act, on a person in occupation of the property belonging to a religious institution or endowment, has been negated by Rule 15(1) and (2) of the Amended Rules notified in G.O.Ms.No.426, dated 09.11.2015, whereby the power is given to the executive Authority to evict a person in occupation of the land with the assistance of police treating him as an encroacher without recourse to any such determination by the Endowments Tribunal.9. In the case on hand, the Government Pleader does not contend that they have followed the procedure before trying to dispossess the petitioners, which stands to be a worse case than the case dealt with by the Division Bench in the aforesaid writ petitions.10. I
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n view of the above discussion, this court opines that the action of the respondents in proposing to dispossess the petitioners from the subject land and to conduct public auction of the subject land is not sustainable.11. In the result, the Writ Petition is allowed and the respondents are directed not to conduct any public action of the land admeasuring Ac.2-53 cents situated in Survey No.316/2, Bodavada Mandagunta, Pachuru Mandal, Prakasam District and the respondents shall not dispossess the petitioners from the subject land without following the procedure laid down under sections 83 to 85 of the Act. However, it is made clear that the respondents are not disabled by this order from taking any action against the petitioners, if they so choose, under section 83 of the Act.As a sequel, the miscellaneous applications pending, if any, shall stand closed. There shall be no order as to costs.