Telangana High Court
Estate Officer And A.P.D. Hyd. vs Smt.T.Satya Suguna Devi, Hyd. on 6 February, 2024
* THE HONOURABLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HONOURABLE SRI JUSTICE N.V. SHRAVAN KUMAR
+ WRIT APPEAL Nos.1052, 1053, 1054, 1055 and 1056 of 2010
% Dated 06-02-2024
Between:
# Estate Officer & A.P.D.,
Airports Authority of India,
N.A.D., Hyderabad Airport,
Hyderabad - 500 016.
...Appellant
and
$ Smt. T.Satya Suguna Devi
....Respondent
! Counsel for the Appellant : Mr. E.Madan Mohan Rao
^ Counsel for the respondents : Mr.M.V.Durga Prasad
< GIST : ---
>HEAD NOTE : ---
? Cases referred: :
1. AIR 1977 BOMBAY 220
2. AIR 1982 SC 1081
3. AIR 2003 JHARKHAND 17
4. AIR 2003 MP 256
5. 1995 Supp (2) SCC 290
6. 2004 (3) ALT 276
7. AIR 1991 SC 855 (1)
8. AIR 1972 SC 2205
HCJ (AAJ) & NVSKJ
2 W.A. No.1052 of 2010 and batch
THE HONOURABLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HONOURABLE SRI JUSTICE N.V. SHRAVAN KUMAR
WRIT APPEAL Nos.1052, 1053, 1054, 1055 and 1056 of 2010
COMMON JUDGMENT:
(Per the Hon'ble Sri Justice N.V. Shravan Kumar)
Heard Mr. E.Madan Mohan Rao, learned Senior Counsel for the
appellant.
Mr. M.V.Durga Prasad, learned counsel for the respondents in
W.A. Nos.1052, 1055 and 1056 of 2010.
None for the remaining respondents.
2. The W.A. Nos.1052, 1053, 1054, 1055 and 1056 of 2010
have been filed against the common order dated 22.09.2009 passed in
W.P. Nos.9083, 9584, 10391, 14417 and 20345 of 2001 by the
learned Single Judge. The appellant herein is the Estate Officer &
A.P.D., Airports Authority of India. The respondents in these appeals
are the writ petitioners in the said writ petitions.
3. Since the common issues are involved in these intra court
appeals between the parties they were heard together and are being
decided by this common judgment.
4. For the facility of reference, facts from W.A. No.1055 of 2010 are
being referred to as a lead matter.
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5. For the sake of convenience, the parties hereinafter will be
referred to as they were arrayed in the impugned common order dated
22.09.2009.
Facts of the case:
6. As in all the writ petitions, identical orders were questioned,
the learned Single Judge had referred to the facts as narrated in
W.P.No.14417 of 2001.
7. In all the above writ petitions, the petitioners/respondents
herein have questioned the orders issued under Section 5-A (2) of the
Public Premises (Eviction of Unauthorised Occupations) Act, 1971,
(hereinafter referred to as 'the Act') by the respondent/appellant
herein. Through the aforesaid orders, the respondent/appellant
herein has ordered for removal of flats in a residential complex,
namely 'Archana Apartments'.
8. It is the case of the petitioner/respondent herein that one
Smt. C.Kamsamma, claiming to be the owner and possessor of land to
an extent of 600 square yards in the premises bearing
No.1-11-252/1/E in Survey No.19 of Begumpet, has sold her
undivided share to the petitioner/respondent herein by registered sale
deed dated 26.10.1994, bearing document No.3071/94.
After purchase of the said plot, the petitioner/respondent herein has
entered into an agreement for construction of flat bearing No.204 and
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the same was constructed, and ever since, the petitioner/respondent
herein is in its possession and enjoyment.
9. As averred in the affidavit filed in support of the writ petition,
it is the case of the petitioner/respondent herein that one Sri Mamilla
Krishna Reddy, who was the father of Smt.C.Kamsamma, was the
original owner and possessor of the land as he has purchased the
same from its earlier owner one Sri Hzaratulla by a registered sale
deed bearing document No.6041, dated 5th Aban, 1358 Fasli, and the
said property is given to Smt.C.Kamsamma by way of pasupu
kumkuma at the time of her marriage. Afterwards, when there was a
claim by her sisters also for the property, the said Kamsamma had
filed a suit for declaration of title, in O.S.No.252 of 1990 on the file of
Subordinate Judge, Ranga Reddy District, and the said suit was
decreed by a judgment and decree dated 15.03.1991. Thereafter,
she entered into development agreement with M/s.Naveen
Constructions on 4th January 1993, to develop the said property and
obtained permission from the Municipal Corporation of Hyderabad to
construct an apartment complex, vide permission bearing No.415/12,
dated 12th February 1993. The petitioner/ respondent herein has
availed housing loan from Canara Bank and having paid the said
amount to the vendor of the land, she got constructed the flat in
question and is in possession of the same by letting out to a tenant.
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10. At this stage, respondent/appellant herein has issued the notice
dated 11th January 2001, in exercise of powers under Section 5-A (1)
of the Act, alleging that the Airports Authority has got surveyed the
land in Survey No.15 and it was found that the building in question is
constructed by encroaching upon its land to an extent of 570 Square
yards, as such, directed the petitioner/respondent herein to remove
these flats. Initially, the petitioner/respondent herein sent a telegram
dated 13.02.2001, thereafter, through an Advocate, got filed a detailed
representation dated 24.02.2001, questioning the authority of the
respondent/appellant herein in invoking the provisions of Act.
After filing of explanation by the petitioner/respondent herein,
the respondent/appellant has issued the notice dated 26.04.2001 in
exercise of powers under Section 5-A (2) of the Act, directing the
petitioner/respondent herein for removal of her flat. In the aforesaid
notice, it is stated that the land in Survey No.15 of Begumpet village
has been acquired for establishment of Hyderabad Airport by the then
Civil Aviation Department by paying compensation and the said land
is now in possession of the Airports Authority, as such, the land in
Survey No.15 is the public premises and being encroached by Archana
Apartments, which had constructed in Survey No.15 but not in Survey
No.19 and the representation of the petitioner/respondent herein was
not considered. Consequently, orders were issued for removal of said
flats.
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11. In the writ petition, it is the case of the petitioner/respondent
herein that the said apartments are constructed in the land covered
by Survey No.19, but not in Survey No.15. It is submitted that after
purchase of the land by one Mamilla Krishna Reddy through a
registered sale deed bearing document No.6041, dated 5th Aban, 1358
Fasli, the name of said Krishna Reddy is recorded in all the revenue
records right from the Khasra Pahani of 1954-55, and after the said
land was given in pasupu kumkuma to Smt.C.Kamsamma, her name
was also recorded in all the subsequent pahanis prepared for
Begumpet village. It is also the case of the petitioner/respondent
herein that when there was an interference by the National Airports
Authority, the vendor of the petitioner/respondent herein i.e.
Smt.Kamsamma has filed the suit in O.S.No.137 of 1991 on the file of
the I Additional Sub-Judge, Ranga Reddy District, and the said suit
was decreed by a judgment and decree dated 16th July 1997. It is
submitted that when the respondent/appellant herein has lost its
claim in Civil Proceedings, it is not open for them to invoke the
provisions under the Act, and deprive the petitioner/respondent
herein of her property, by resorting to summary inquiry contemplated
under the said Act. It is the case of the petitioner/respondent herein
that as much as the apartment complex is constructed in Survey
No.19 of Begumpet village, but not in Survey No.15 as claimed by the
respondent/appellant herein, which is beyond the scope of the
provisions contained under the Act to resolve such disputes and to
order for removal of structures. It is submitted that in view of the
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long-standing possession of the vendor of the petitioner/respondent
herein and the petitioner/respondent herein after construction of the
flat in question, if there is any claim by the respondent-
Authority/appellant herein, it is for them to approach the competent
Civil Court to establish their claim, but at the same time, they cannot
pass any order unilaterally, presuming that the property in question is
'public premises' within the meaning of Section 2 (e) of the Act.
12. On behalf of respondent/appellant herein, counter affidavit was
filed by the Senior Manager (Law). In the counter, while generally
denying the allegations of the petitioner/respondent herein,
it is stated that during the course of inquiry under the provisions of
the Act, the claim of the petitioner/respondent herein was that she
has purchased the ownership rights in Survey No.19 and Archana
Apartments are constructed in Survey No.19, which is outside the
Airports Authority owned land. It is stated that in support of her
claim, the petitioner/respondent herein has submitted several
documents, but all the documents pertain to Survey No.19 and they
are nothing to do with Survey No.15. While referring to the telegram
dated 13th February 2001 issued by the petitioner/respondent herein
and the reply dated 24th February 2001 issued on behalf of the
petitioner/respondent herein, it is stated that as much as all the
documents produced by the petitioner/respondent herein relate to
Survey No.19, but not 15, as such, respondent/appellant herein has
issued orders for removal of the structures which are constructed in
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Survey No.15. It is stated that since the petitioner/respondent's claim
of title is over Survey No.19 and the Airports Authority's claim of title
is over Survey No.15, there is no dispute regarding title of their
respective land and it is only identification of property in question,
as such, the respondent/appellant herein is within its powers for
invocation of provisions under the Act. It is also stated that the
survey report submitted by the revenue authorities, dated 10th August
2000, also shows that the land covered by Survey No.15 belongs to
the Airports Authority, and therefore, no conflicted question of law or
fact arise for consideration, but it is only the question of identification
of the land. Further, with regard to suit in O.S.No.137 of 1991, it is
stated that the said suit pertains to the land belonging to Survey
No.19, but not 15.
13. A reply affidavit was also filed on behalf of the petitioner/
respondent herein, reiterating that the land in question has been in
possession and enjoyment of the petitioner/respondent herein and her
predecessors in title, for more than 50 years. It is also stated that no
notice was given to the petitioner/respondent herein before
conducting survey by the revenue authorities, as referred in the
counter affidavit. It is further stated that the suit schedule property
in O.S.No.137 of 1991 relates to the same property in which the
petitioner/respondent's flat was constructed.
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CONTENTIONS OF THE LEARNED COUNSEL FOR THE PETITIONERS IN THE
WRIT PETITION:
14. It is contended by the learned counsel appearing for petitioners/
respondents herein in the batch of cases, that the petitioners/
respondents herein have purchased the undivided share of land and
got constructed the residential complex in the land covered by Survey
No.19, but not Survey No.15. It is submitted that the title and
possession of petitioners/respondents herein and their vendor is
traceable to last more than 50 years, which is evident from various
public documents issued by the revenue and Municipal authorities.
Referring to such documentary evidence, it is submitted by the
learned counsel that when there is a serious dispute with regard to
title and possession of property in question, the respondent/appellant
herein has no authority or jurisdiction to invoke the provisions under
the Act and deprive the petitioners/respondents herein of their land,
and such action on the part of respondent/appellant herein is illegal
and arbitrary, and also runs contrary to the object of the very
Legislation. It is submitted that the predecessor of the
petitioners/respondents herein in title Smt.Kamsamma was in actual
physical possession of the land and the building was constructed
thereon, and when there was interference by the
respondent/appellant herein, she filed suit during her lifetime in
O.S.No.137 of 1991, and there was no dispute that on the very same
property, the flats in question were constructed. It is submitted that
when the suit was filed by the predecessor in title of the
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petitioners/respondents herein is decreed and when such judgment
and decree has become final, it is not open for the
respondent/appellant herein to invoke the provisions under the Act,
so as to deprive them of their property in illegal and
high-handed manner. It is submitted that having regard to the object
of the Legislation, it is not intended to decide the complicated
questions of title and possession, and if the respondent/appellant
authorities herein are having any right over the land in question,
it is for them to approach the competent Civil Court to establish title.
In support of their contentions, the learned counsel for petitioners/
respondents herein has placed reliance on the judgments rendered in
the case of S.R.B.Gaikwad V. The Union of India 1, Govt. of A.P. V.
Thummala Krishna Rao & another 2, M/s.Shree Bajrang Hard Coke
Manufacturing Corporation V. Ramesh Prasad & others 3,
Madhya Pradesh Electricity Board V. Badri Prasad & others 4 and
State of Rajasthan V. Padmavati Devi & others 5.
CONTENTIONS OF THE LEARNED COUNSEL FOR THE RESPONDENTS-
AIRPORTS AUTHORITY IN THE WRIT PETITION:
15. Per contra, it is contended by Sri E.Madanmohan Rao, learned
counsel appearing for the respondent-Airports Authority that as much
as it is not in dispute that the land covered by Survey No.15 is the
land belonging to the respondent/appellant-Authority and the same
AIR 1977 BOMBAY 220
AIR 1982 SC 1081
AIR 2003 JHARKHAND 17
AIR 2003 MP 256
1995 Supp (2) SCC 290
HCJ (AAJ) & NVSKJ
was acquired for Hyderabad Airport, in that view of the matter,
as the petitioners/respondents herein got constructed their flats by
encroaching into the land belonging to the respondent/appellant
herein, they have rightly invoked the provisions under the Act and
ordered for removal of said structures. It is submitted that as all the
documentary evidence filed by the petitioners/respondents herein are
not helpful to the petitioners/respondents herein in support of their
claim for title and possession. It is further submitted by the learned
counsel that in view of the provision contained under Section 15 of the
Act, there is a bar on the respondent/appellant-Airports Authority on
approaching the Civil Court, and in that view of the matter, the only
remedy available to the respondent/appellant herein is to invoke the
provisions of the Act, so as to remove the unauthorized structures.
In support of his argument, the learned counsel has relied upon the
judgments rendered in the case of S.Lingamaiah V. State of A.P. 6,
Ashoka Marketing Ltd. V. Punjab National Bank and others 7, and
Hari Singh & others V. The Military Estate Officer 8.
16. After taking into consideration the aforementioned various
judicial pronouncements, the learned Single Judge has allowed the
writ petitions holding as under:
"22. For the aforesaid reasons, as this Court is of
the view that the respondents are not empowered to
decide such complicated questions of title and
2004 (3) ALT 276
AIR 1991 SC 855 (1)
AIR 1972 SC 2205
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possession which are involved having regard to the
pleas of the petitioners herein, the impugned orders are
liable to be quashed.
23. Accordingly, all the writ petitions are allowed,
declaring the initiation of proceedings against the
petitioners under the provisions of the public Premises
(Eviction of Unauthorised Occupations) Act, 1971 as
illegal, and consequently, the impugned orders issued
under Section 5-A (2) of the said Act against the
petitioners in all these writ petitions, are hereby
quashed. No order as to costs."
17. Assailing the said common order, the present appeals have been
preferred by the appellant/respondent.
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE APPELLANT:
18. The learned Senior Counsel Mr. E.Madan Mohan Rao, appearing
for the appellant would submit that the learned Single Judge has not
properly considered the factual legal contentions raised in the writ
petition and came to a wrong conclusion that there is a bona fide
dispute of title and the issue to be adjudicated in Civil Courts,
whereas it is nothing but dispute of survey/boundary/identification of
the property in respect of the land bearing Sy.No.15 held by the
Airport Authority which can be resolved by the authority concerned
under the Act 40 of 1971 as the Tribunal can decide the issue whether
the property is public premises or not. He further submitted that the
petitioners/respondents herein are claiming the land in Sy.No.15 as
the land bearing Sy.No.19 by illegally occupying the same in Sy.No.15
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and therefore, the appellant authority have initiated eviction
proceedings under Section 5 of the Act by a notice dated 11.01.2001
and passed eviction order dated 19/26.04.2001. It is further
submitted that the suit in O.S. No.137 of 1991 is only an injunction
suit in respect of the land bearing Sy.No.19 of Begumpet village not to
dispossess the respondents' vendor except in accordance with law but
not declaration of title over the property. Eventually he sought to
allow the writ appeals by setting aside the impugned common order.
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE RESPONDENTS
19. On the other hand, the learned Senior Counsel appearing for
the respondents herein submitted that the learned Single Judge after
considering the factual legal contentions raised by the learned counsel
for the appellant herein in the writ petitions and after taking into
consideration the various judicial pronouncements, has rightly passed
the impugned order and therefore no interference of this Court is
warranted with the impugned common order and sought to dismiss
the appeals.
20. Heard the learned Senior Counsel on either side and perused
the material made available on record.
ANALYSIS AND CONCLUSIONS:
21. Having gone through the impugned common order passed by
the learned Single Judge, it is apposite to note that since the
impugned order dated 26.04.2001 in the writ petition has been passed
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under Sub Section (2) of Section 5-A of the Act, the learned Single
Judge had preliminarily considered the Statement of Objects and
Reasons of the Act and found to be held as under:
"10. Before I consider the respective contentions
of the learned counsel for the parties, I deem it
appropriate to refer to the Statement of Objects and
Reasons of the Public Premises (Eviction of
Unauthorised Occupations) Act, 1971. This Act was
enacted to provide for a speedy machinery for eviction
of unaurhorised occupants of public premises. In the
said objects, it is stated that it has become impossible
for Government to take expeditious action even in
flagrant cases of unauthorized occupation of public
premises - and recovery of rent or damages for such
unauthorized occupation. It is therefore, considered
imperative to restore a speedy machinery for the
eviction of persons who are in unauthorized occupation
of public premises, keeping in view, at the same time,
the necessity of complying with the provisions of the
Constitution and the judicial pronouncement.
"Premises" is defined under Section 2 (c) and "Public
Premises" is defined under Section 2 (e) of the said Act.
As evident from the definition under Section 2 (e) of the
Act, any premises belonging to, or taken on lease or
requisitioned by or on behalf of the Central
Government, and includes any such premises which
have been placed by the Government, whether before or
after the commencement of the Public Premises
(Eviction of Unauthorised Occupants) Amendment Act,
1980, under the control of the Secretariat of either
House of Parliament for providing residential
accommodation to any member of the staff of that
Secretariat. Further, it also includes any premises
belonging to, or taken on lease by or on behalf of any
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Company in which not less than 51% of the paid-up
share capital is held by the Central Government or any
Company which is a subsidiary of the Government
Company, and also includes any premises belonging to
any Corporation or a local authority established by or
under a Central Act and owned or controlled by the
Central Government.
11. In that view of the matter, the definition
pre supposes that the premises shall belong to the
Government or the Government-owned Company, so as
to construe the same as a 'public premises', and the
said Legislation is enacted for the purpose of taking
steps for eviction and removal of constructions on such
public premises. Section 5 of the said Act empowers the
authorities to order eviction of the unauthorized
occupants, whereas Section 5-A empowers the
authorities to remove the unauthorized constructions,
etc."
22. Admittedly, it is not in dispute that the appellant's land is
claimed to be fallen in Sy.No.15 and whereas the land claimed by the
petitioners/respondents herein is fallen in Sy.No.19 of Begumpet
village. It is the specific case of the appellant that the learned Single
Judge has not properly considered the factual legal contentions raised
in the writ petitions and has come to a wrong conclusion that there is
a bona fide dispute of title. At this juncture, it is pertinent to note
here that it is the specific case of the petitioners/respondents herein
that the flats in question are forming part of apartment complex
constructed in Sy.No.19 of Begumpet village and the predecessor in
title of the petitioners/respondents herein were found to be in
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possession for the last more than 50 years. To substantiate the claim
of the petitioners/respondents herein they have filed various public
documents namely, Khasra Pahani for the year 1954-55 and
subsequent pahanis, wherein, Smt. Kamsamma's father was shown to
have been in possession of the land in question covered by the Survey
No.19 and also Smt.Kamsamma, after the said land was given to her
by way of pasupu kumkuma at the time of her marriage.
23. Further, it is not out of place to note here that when there was
an interference by the appellant authorities with regard to possession
of Smt.Kamsamma, she filed a suit in O.S. No.137 of 1991 wherein a
written statement was filed on behalf of the defendants No.3 therein,
who is the appellant herein, stating that the suit land does not fall in
Survey No.19 but is part of Survey No.15 of Begumpet village and did
not choose to contest the matter and subsequently the said suit was
decreed by a judgment and decree dated 16.07.1997.
24. It is the further case of the appellant that it is a dispute of
survey/boundary/identification of the property in respect of the land
bearing Sy.No.15 held by the appellant which can be resolved by the
authority concerned under the provisions of the Act as the Tribunal
can decide the issue whether the property is public or not. In this
regard, it is not out of place to observe that it has been stated in the
counter affidavit filed in the writ petition that the proceedings have
been initiated pursuant to the survey conducted by the Assistant
Director of Survey and Land Records, Ranga Reddy District, who has
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addressed a letter dated 10.08.2000, but it is found to be conducted
without issuing any notice to the affected persons, who is none other
than the petitioners/respondents herein, as such there is no basis for
initiation of the proceedings against the petitioners/respondents
herein.
25. The learned Senior Counsel appearing for the appellant has
vehemently argued that the petitioners/respondents herein are
claiming the land in Sy.No.15 as the land bearing Sy.No.19 by illegally
occupying the same and therefore, the appellant authority have
initiated eviction proceedings under the provisions of the Act. From
the above submission itself it is clear that there is serious dispute
between the parties with regard to the title and possession of the land
in question. Further it could be culled out from the record that the
appellant authorities themselves have addressed the survey
authorities to decide the boundary dispute by demarcating the land
covered by Sy.No.15 as well as 19, which itself also indicates that
there was a boundary dispute with regard to land covered by
Sy.Nos.19 and 15. At the cost of reiteration, it is to be noted here that
the proceedings were initiated by the appellant authorities pursuant
to the survey conducted by the Assistant Director of Survey and Land
Records, Ranga Reddy District and the said survey is found to be an
ex parte survey and based on which the appellant authorities cannot
invoke the provisions under the Act.
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26. In view of the above, the learned Single Judge has rightly
appreciated the case on hand and the objective of the Legislation and
the provisions contained therein and held that "Having regard to the
objective of the said Legislation and the provisions contained therein,
it is designed and intended for ordering evictions and removal of
encroachments in cases where there is no dispute with regard to title
and possession of property in question. The powers conferred on the
authorities under the said Legislation are only to order eviction and
removal of constructions with regard to premises which belong to them.
But in cases, where there is a bona fide dispute with regard to
title/boundaries of the land belonged to the Government or its
Corporations or Companies, such disputes are outside the scope of said
Legislation, and the authority constituted under the said enactment
cannot be said to have jurisdiction to embark upon the domain of the
Civil Court for the purpose of adjudicating civil disputes, the power of
which, is exclusively vested in such Courts, and it would be
unreasonable to allow such authority to decide such disputes by
invoking the provisions of the Public Premises (Eviction of Unauthorised
Occupations) Act, 1971, which provides for a summary procedure to
conduct inquiry and order for eviction and removal of constructions.
In that view of the matter, when the said provisions are read with
reference to the object of the Legislation, it is clear that the said piece of
Legislation never intended to give its authorities the power to decide
such complicated questions of title disputes, so as to decide the same
by passing orders under Section 5 of the said Act."
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27. Coming to the aspect of consideration of the legal position,
the learned Single Judge has considered the following judgments,
which are taken note of hereunder.
28. In the judgment in the case of S.R.B.Gaikwad (1 supra),
a Division Bench of Bombay High Court, while considering the scope
of the definition of 'public premises' under Section 2 (e) of the Public
Premises (Eviction of Unauthorised Occupations) Act, 1971, has held
to the effect that 'public premises' means any premises belonging to or
taken on lease or requisitioned by or on behalf of the Central
Government. In the said judgment, it is further held that the
enactment, as indicated in the preamble, is intended to provide for
eviction of unauthorized occupants from public premises and for
certain incidental matters. The enactment is not so much concerned
with the title as with the possessory rights vested in the Central
Government, and Section 2 (e) only indicates the sources by which
such right to possession can be acquired, one such being, the taking
of the premises on lease, from its owner. The definition, thus, is
descriptive of the source or origin of the possessory rights acquired by
the Central Government. It is the continuance of the vesting of this
possessory right in Government and not so much more the origin
thereof, that makes any premises, a public premises under the Act.
In the same judgment, it is held that the enactment is thus aimed at
ensuring the continuance of possessory rights acquired through the
modes indicated in the definition clause.
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29. In another judgment in the case of Govt. of A.P. V. Thummala
Krishna Rao (2 supra), while elaborately considering the scope of
similar such provision under Sections 6 and 7 of the A.P. Land
Encroachment Act, 1905, the Hon'ble Supreme Court has held as
under :
"The summary remedy for eviction which is
provided for by S.6 of the Act can be resorted to by the
Government only against persons who are in
unauthorized occupation of any land which is
"the property of Government". If there is a bona fide
dispute regarding the title of the government to any
property, the Government cannot take a unilateral
decision in its own favour that the property belongs to
it, and on the basis of such decision take recourse to
the summary remedy provided by S.6 for evicting the
person who is in possession of the property under a
bona fide claim or title. The summary remedy
prescribed by S.6 is not the kind of legal process which
is suited to an adjudication of complicated questions of
title.
Held, that the questions as to the title to the three plots
could not appropriately be decided in a summary
inquiry contemplated by Ss.6 and 7 of the Act. The long
possession of the respondents and their predecessors-
in-title of those plots raised a genuine dispute between
them and the Government on the question of title,
remembering specially that the property, admittedly,
belonged originally to the family of Nawab Habibudin
from whom the respondents claimed to have purchased
it. The question as to whether the title to the property
came to be vested in the Government as a result of
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acquisition and the further question whether the
Nawab encroached upon that property thereafter and
perfected his title by adverse possession had to be
decided in a properly constituted suit and until the
Government succeeded in establishing its title to the
property, the respondents could not be evicted
summarily."
30. In the case of M/s.Shree Bajrang Hard Coke Manufacturing
Corporation (3 supra), wherein, a Division Bench of Jharkhand High
Court, while considering the scope of provision under Section 5 of the
Public Premises (Eviction of Unauthorised Occupations) Act, 1971,
has held in paras 14 and 19 as under :
"14. From what has been discussed and quoted
above, it is abundantly clear that an authority under
the aforementioned Act has a very limited jurisdiction
and it has to determine only a dispute that may arise,
vis-à-vis a public premises. Upon an application made
before it, it has to proceed in a summary disposal
thereto. The question, as to whether the area formed
part of the Royal Tisra Colliery or not, consequently
making it a public premise is a question that becomes
the focal point of the instant case and it, therefore,
obviously involve determination/finding of fact.
Undoubtedly, while attempting to come to such finding,
the authority may be faced with complicated question of
title as is involved in the instant case. The authority in
the aforementioned case cannot be said to have the
jurisdiction to embark upon the domain of the Civil
Court for the purposes of adjudicating on a question of
a complicated title, which can only be done by a Civil
Court. It would be extremely unreasonable to allow a
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Court vested with summary procedure to give a finding,
which can only be arrived at by a Civil Court having the
necessary judicial competence.
19. .....Now, under Section 5 of the
aforementioned Public Premises (Eviction of
Unauthorised Occupants) Act, 1971, it is clear that a
Estate Officer after following the procedure required to
be followed therein and after reaching to a conclusion
that a person is in unauthorized occupation of a public
premises, he may make an order of eviction. The catch
words that cannot be lost track of in this provision are
that, all that the Estate Officer is required to do is that
he must come to a conclusion that a person is in
occupation of an area which is already confirmed or
which has already been declared to be a public
premises. He cannot nor does he have the jurisdiction
to identify a particular piece of property and then give a
finding that, that piece of property is a public property.
This power is vested only with a Court of competent
civil jurisdiction and not in a statutory authority, such
as Estate Officer, who has been conferred only with
summary powers. If such Estate Officers are allowed to
give such finding, it would amount to conferring them
with the powers of adjudication and delivery of
judgments within the meaning of Section 2(a) read with
provisions of Order XIV of the Code of Civil Procedure
and/or principles/provisions analogous thereto."
31. In the case of State of Rajasthan (5 supra), wherein,
the Hon'ble Supreme Court, while considering the provisions under
Section 91 of Rajasthan Land Revenue Act, 1956, which provides for
summary proceedings for eviction of unauthorized occupants,
has observed that where there is a bona fide dispute, the matter
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cannot be decided under the said Section, and it is held that in such
cases, proper course would be to have the matter adjudicated by the
competent Court of Law.
32. Taking into consideration the above all referred judgments the
learned Single Judge has observed at para 17 of the impugned order
as under:
"17. All the above referred judgments support the
case of the petitioners as much as there is abundant
material in support of their plea that the constructed
portions fall within the land covered by Survey No.19,
but not 15. When such a plea is raised, in view of the
judgments referred above, it is not open for the
respondents to record a finding to the effect that such
piece of land is covered by Survey No.15 and to order
removal of constructions by the authority under the
Act. In view of the material placed on record on behalf
of the petitioner, it is a clear case where there is a bona
fide claim of the petitioners with regard to their plea
that the constructions are in Survey No.19, but not in
15. Having regard to such a plea, it is not open to the
respondents to initiate proceedings under the Public
Premises (Eviction of Unauthorised Occupations) Act,
1971, and order eviction."
33. On behalf of the appellant, the learned counsel placed reliance
on the judgment in the case of Ashoka Marketing Ltd. (7 supra), and
also in the case of Hari Singh & others (8 supra) and the learned
Single Judge while considering the same has observed at para Nos.18,
19 and 20, which reads as under:
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"18. The learned counsel for respondent has relied on
the judgment in the case of Ashoka Marketing Ltd. (7
supra), wherein, the Hon'ble Supreme Court has held
that the Nationalised Bank is a Corporation established
by a Central Act and it is owned and controlled by the
Central Government. As such, the premises belonging
to such banks are the 'public premises' within the
meaning of Section 2(e)2(ii) of the Public Premises Act.
19. Reliance is also placed in the case of Hari Singh &
others (8 supra). In the said judgment, by upholding
the Legislative competency to enact such a law, the
Hon'ble Supreme Court has held that the word
'premises' as used in Section 2 (c) of the Act would
apply to agricultural land also.
20. The questions, which fall for consideration in the
aforesaid two judgments relied upon by the learned
counsel for the respondent-Authority, would not render
any assistance in support of his plea, having regard to
the facts and circumstances of the cases on hand."
34. Eventually, the learned Single Judge has considered the
argument advanced on behalf of the appellant herein that in view of
the provision under Section 15 of the Act there is a bar on them to
approach the Civil Court and held at para 21 as under:
"21. Though a further argument is advanced by the
learned counsel for respondent that in view of the
provision under Section 15 of the Public Premises
(Eviction of Unauthorised Occupations) Act, 1971, there
is a bar on them to approach the Civil Court, but it is
very difficult to accept such contention advanced by the
learned counsel. As per the provisions under Section 15
of the Act, there is a bar of jurisdiction created on the
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Courts only in respect of orders passed under the said
Act. Upon a reading of the said provision, it is very clear
that it creates a bar on the Courts to entertain any suit
or proceeding in respect of eviction of any person who is
in unauthorized occupation of any public premises or
in respect of removal of any building, structure or
fixture or goods, cattle or other animal from any public
premises etc. But, when there is a dispute with regard
to title and possession of the very public premises, this
bar created under Section 15 of the Act would not come
in the way of respondents to seek declaration with
regard to title and possession, in the event of any
disputes with regard to boundaries of the public
properties. As such, the contention advanced on behalf
of the learned counsel cannot be accepted."
35. In the case on hand, the appellant/respondent authorities have
issued the impugned proceedings dated 19/26.04.2001 in the writ
petition after the constructions were over. The appellant/respondent
authorities ought to have taken steps when the constructions were in
progress on the disputed site, however, issued the impugned
proceedings in the writ petition belatedly that too after constructions
were completed.
36. It is pertinent to note here that the learned Single Judge has
observed that the survey was conducted without issuing any notice to
the affected persons. However, the learned Single Judge while
referring to the judgments in support of the case of the petitioners/
respondents herein and on the basis of the material in support of
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their plea observed that the constructed portions on the subject lands
fall within the land covered by Survey No.19 but not in Survey No.15.
37. The core issue involved in these appeals, which falls for
consideration, is the very identification of the disputed property and
clear demarcation of boundary, which is only possible by way of
proper survey and thereby rights of the parties would be determined.
In view of the same, the parties are left open to pursue their remedies
as available under law.
38. On the analysis supra and for the aforementioned reasons,
the findings recorded by the learned Single Judge to the extent that
the appellant authorities have not empowered to decide such
complicated questions of title and possession which are involved
having regard to the pleas of the petitioners/respondents herein and
declaring the initiation of proceedings against the petitioners/
respondents herein under the provisions of the Act as illegal,
we do not find any reason to interfere with the impugned common
order dated 22.09.2009.
39. In the result, the Writ Appeals No.1052, 1053, 1054, 1055 and
1056 of 2010 fail and accordingly are dismissed in terms of the above,
leaving it open to the parties to avail their remedies as available under
law, if so desired. There shall be no order as to costs.
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Miscellaneous applications pending, if any, shall stand closed.
___________________________
ALOK ARADHE, CJ
___________________________
N.V. SHRAVAN KUMAR, J
Date: 06-02-2024
Note: L.R. Copy be marked.
B/o.
LSK
