Government of Andhra Pradesh Vs.
Thummala Krishna Rao & ANR [1982] INSC 38 (16 March 1982)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) VARADARAJAN, A. (J) SEN, AMARENDRA NATH (J)
CITATION: 1982 AIR 1081 1982 SCR (3) 500 1982
SCC (2) 134 1982 SCALE (1)180
ACT:
Andhra Pradesh Land Encroachment Act, 1905-S.
6- Provision for summary eviction of unauthorised occupant of government
land-Existence of bona fide dispute regarding title between government and
occupant-Resort to summary remedy-Whether valid and legal?
HEADNOTE:
The Andhra Pradesh Land Encroachment Act,
1905 was enacted to check unauthorised occupation of government lands. Under s.
2 of the Act all public roads, streets, lands, paths, bridges etc, are deemed
to be government property. Any person who is in unauthorised occupation of any
land which is the property of the government is liable to pay assessment as
provided in s. 3 of the Act. Section 5 provides that any person, liable to
assessment shall also be liable to pay an additional sum by way of penalty.
Under s. 6(1) the Collector, Tahsildar or Deputy Tahsildar has the power to
summarily evict any person unauthorisedly occupying any land for which he is
liable to pay assessment under s. 3 after issuing a show cause notice as
provided in s. 7.
Sometime between the years 1932 and 1937
certain lands were acquired by the Government of Nizam of Hyderabad for the
benefit of a University. A question having arisen as to whether three specific
plots of land had been included in the acquisition, the University filed a suit
in 1956 praying for the eviction of the occupant. This suit was dismissed in
1959 on the ground that one of the plots had not been acquired by the
Government and in respect of the other two plots the University had failed to
prove its possession within 12 years before the filing of the suit. The trial
court found that the heir of the original owner of the plots had encroached on
the said two plots in 1942. The judgment of the trial court was confirmed by
the High Court in 1964.
The State Government was not a party to those
proceedings.
The University activated the State Government
for summary eviction of the heir of the original owner from the three plots of
lands. The Tahsildar initiated action and passed an order of eviction under s.
6(1) of the Act on December 15, 1964. Appeals against the order were rejected
by the Collector in 1965 and by the Revenue Board in 1968.
The respondents who purchased the plots
during the pendency of the appeal before the Revenue Board were impleaded as
parties 501 to the proceedings on the death of the heir of the original owner
and. their appeal from the decision of the Revenue Board was rejected by the
Government in 1973 The respondents challenged the order of eviction by a
petition under Art. 226 which was dismissed by a Single Judge of the High Court
who held that the question of title to the property could not properly be
decided by him under Article 226 but the fact that there was a finding by the
Civil Court that there was encroachment by the alleged encroacher was
sufficient to entitle the Government to initiate action under the provisions of
the Land Encroachment Act.
The appeal of the respondents was allowed by
the Division Bench which held that a dispute relating to as far back as 1942
could not be dealt with in summary proceedings under the provisions of the Land
Encroachment Act. The summary remedy could not be resorted to unless there was
an attempted encroachment or encroachment of a very recent origin; nor could it
be availed of in cases where complicated questions of title arose for decision.
Dismissing the appeals,
HELD: (I) The summary remedy for eviction
provided by s. 6 of tho Act can be resorted to by the Government only against
persons who are in unauthorised occupation of any land which is the property of
the Government. If there is a bonafide dispute regarding the title of the
Government to any property, the Government cannot take a unilateral decision in
its own favour that tho property belongs to it and on that basis take recourse
to the summary remedy provided by s 6. In the instant case there was
unquestionably a genuine dispute , between the State Government and the
respondents as to whether the three plots of land bad been the subject-matter
of acquisition proceedings taken by the then Government of Hyderabad, and
whether the University for whose benefit the plots were alleged to have been
acquired had lost title to the property by operation of the law of limitation.
The respondents had a bonafide claim to litigate and they could not be evicted
save by the due process of law. The summary remedy prescribed by s. 6 was not
the kind of legal process which was suited to adjudication of complicated
questions of title. That procedure was, therefore, not the due process of law for
evicting the respondents. [506 H; 507 A; 507 D-H]
2. The view of the Division Bench that the
summary remedy provided for by s. 6 could not be resorted to unless the alleged
encroachment was of "a very recent origin" cannot be stretched too
far. It is not the duration, short or long, of encroachment that is conclusive
of the question whether the summary remedy prescribed by the Act can be put
into operation for evicting a person. What is relevant for the decision of that
question is more the nature of the property on which the encroachment is
alleged to have been committed and the consideration whether the claim of the
occupant is bonafide. Facts which raise a bonafide dispute of title between the
Government and the occupant must be ad- judicated upon by the ordinary courts
of law. The duration of occupation is relevant in the sense that a person who
is in occupation of a property openly for 502 an appreciable length of time can
be taken prima facie to have a bona fide claim to the property requiring an impartial
adjudication according to the established procedure of law. In the instant
case, the long possession of the respondents and their predecessors-in-title
raised a genuine dispute between them and the Government on the question of
title. Whether the title to the property had come to be vested in the
Government as a result of acquisition and whether the heir of the original
owner had encroached upon that property and perfected his title by adverse
possession had to be decided in a properly constituted suit. [508 A-D; 508 E-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2031 of 1977.
Appeal by special Leave from the judgment and
order dated the 30th June, 1977 of the Andhra Pradesh High Court in Writ
Petition No. 905 of 1975.
WITH Civil Appeal Nos. 136 & 137 of 1978.
From the judgment and order dated the 30th
June, 1977 of the Andhra Pradesh High Court in Writ Petition Nos. 796 & 922
of 1975 respectively.
Ramachandra Reddy, Advocate General and B.
Parthasarthi for the Appellants P. Rama Reddy and A.V.V. Nair for Respondent
No. 2 in CA. 2031, R. 3 in 136 & R. 2 in 137.
A. Subba Rao for RR I & 2 in CA. 136/78.
A.K. Sen, e. Rajendra Choudhury, G.R.
Subbaryan, I.
Koti Reddy and Mahabir Singh for Respondent
No. 1 in CA. 137/78.
B. Ranta Rao for Respondent No. 1 in CA.
2031/77.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J. these three appeals arise out of a common judgment dated June
30. 1977 of a Division Bench of the High Court of Andhra Pradesh, setting aside
the judgment of a learned single Judge dated November 18, 1975 in Writ
Petitions Nos. 1539 of 1974 and 798 of 1975. Civil Appeal No. 2031 (NCM) of
1977 is by special leave while the other two appeals are by certificate granted
by the High Court The question which these appeals involve is whether the
appellant, the Government of Andhra Pradesh, has the power to evict the
respondents summarily in exercise of the power conferred by the Andhra Pradesh
Land Encroachment Act, 1905. This question arises on the following facts:
We are concerned in these appeals with three
groups of lands situated in Habsiguda, Hyderabad East Taluk, Andhra Pradesh.
Those lands are: R.S. No 10/1, which corresponds to plot No. 94 admeasuring 10
acres and 2 guntas, R.S. No. 10/2 which corresponds to plot No. 104 admeasuring
9 acres and 33 guntas; and R.S. Nos. 7, 8 and 9 which correspond to plot No.
111 admeasuring 26 acres and 14 guntas. These lands belonged originally to
Nawab Zainuddin and after his death, they devolved on Nawab Habibuddin.
Sometime between the years 1932 and 1937, certain lands were acquired by the
Government of the Nizam of Hyderabad under the Hyderabad Land Acquisition Act
of 1309 Fasli, the provisions of which are in material respects similar to
those of the Land Acquisition Act, 1894. The lands were acquired for the
benefit of the osmania University which was then administered as a Department
of the Government of Hyderabad.
The University acquired an independent legal
status of its own under the osmania University Revised Charter, 1947, which was
promulgated by the Nizam. E The question whether the aforesaid three plots of
land were included in the acquisition notified by the Government of Nizam
became a bone of contention between the parties, the osmania University
contending that they were so included and that they were acquired for its
benefit and the owner, Nawab Habibuddin, contending that the three plots were
not acquired. On February 13, 1956 the osmania University filed a suit (O.S.
No. 1 of 1956) against Nawab Habibuddin, in the City Civil Court, Hyderabad,
claiming that the three lands were acquired by the Government for its benefit
and asking for his eviction from those lands. That suit was dismissed in 1959
on the ground that plot No. 111 was not acquired by the Government and that
though plots Nos. 94 and 104 were acquired, the University failed to prove its
possession thereof within twelve years before the filing of the suit.
In regard to plots Nos. 94 & 104, it was
found by the trial court that Habibuddio had encroached thereupon in the year
1942, which was more than twelve years before the filing of the suit. Civil
Appeal No. 61 of 1959 filed by 504 the University against that judgment was
dismissed on January 24, 1964 by the High Court which affirmed the findings of
the trial court. The State Government was not impleaded as a party to those
proceedings.
On May 8, 1964 the osmania University wrote a
letter to the Government of Andhra Pradesh, requesting it to take steps for the
summary eviction of persons who were allegedly in unauthorised occupation of
the 3 plots. On December 8, 1964, the Tahsildar, Government of Andhra Pradesh,
acting under section 7 of the Land Encroachment Act, 1905, issued a notice to
Nawab Habibuddin to vacate the lands and on December 15, 1964 the Tahsildar
passed an order evicting him iron the lands. The appeal filed by Habibuddin to
the Collector was dismissed in 1965 and the appeal against the decision of the
Collector was dismissed by the Revenue Board in 1968 During the pendency of the
appeal before the Revenue Board, the respondents purchased the plots from
Habibuddin for valuable consideration and on the death of Habibuddin, they were
impleaded to the proceedings before the Revenue Board. They preferred an appeal
from the decision of the Revenue Board to the Government but that appeal was
dismissed on November 26, 1973.
On March 19, 1974, the respondents filed Writ
Petitions in the High Court of Andhra Pradesh challenging the order by which
they were evicted from the plots summarily under the provisions of the Act of
1905. The learned single Judge dismissed those Writ Petitions observing:
"The question whether the lands with
which we are concerned in the writ petition were acquired by the Government or
not and the question whether the Government had transferred its title to the
University or not are questions which cannot properly be decided by me in an
application under article 226 of the Constitution. The appropriate remedy of
the petitioners is to file a suit to establish their title." The learned
Judge held that:
"Though the title of the Government is
not admitted by the alleged encroacher, there is a finding by the Civil 505
Court that there was encroachment by the alleged encroacher. That is sufficient
to entitle the Government to initiate action under the provisions of the Land
Encroachment Act." Three appeals were preferred to The Division Bench
against the judgment of the learned single Judge, two of them being by the
petitioners in one writ petition and the third by the petitioner in the other
writ petition. The Division Bench, while setting aside the judgment of the
learned single Judge, held:
"The question whether the lands. belong
to osmania University or not will have to be decided as and when the Government
comes forward with a suit for the purpose. Even if we assume for the purpose of
our judgment, as we are not pronouncing any conclusion as to whether the land
vested in the Government or University, that the Government is the owner, the
dispute going back from 1942 - cannot be dealt with in summary proceeding under
section 7 of the Land Encroachment Act." The summary remedy provided by
section 7, according to the Division Bench, cannot be resorted to "unless
there is an attempted encroachment or encroachment of a very recent origin"
and further, that it cannot be availed of in cases where complicated questions
of title arise for decision.
We are in respectful agreement with the view
taken by the Division Bench, subject however to the observations made herein
below. The Andhra Pradesh Land Encroachment Act, 1905, was passed in order
"to provide measures for checking unauthorised occupation of lands which
are the property of Government." The preamble to the Act says that it had
been the practice to check unauthorised occupation of lands which are the
property of the Government "by the imposition of penal or prohibitory
assessment or charge" and since doubts had arisen whether such practice
was authorised by law, it had become necessary to make statutory provisions for
checking unauthorised occupations. Section 2 (1) of the Act provides that all
public roads, streets, lands, paths, bridges, etc. shall be deemed to be the
property belonging to Government, unless it falls under clauses (a) to (e) of
that section. Section 2 (2) provides that all public roads and streets 506
vested in any public authority shall be deemed to be the property of the
Government by section 3 (1), any person who is in unauthorised occupation of
any land which is the property of Government, is liable to pay assessment as
provided in clauses (i) and (ii) of that section. Section S provides that any
person liable to pay assessment under section 3 shall also be liable, at the
discretion of the Collector, to pay an additional sum by way of penalty.
Sections 6 (1) and 7, which are relevant for
our purpose, read thus:
"Sec. 6 (1) Any person unauthorisedly
occupying any land for which he is liable to pay assessment under section 3 may
be summarily evicted by the Collector, Tahsildar or Deputy Tahsildar and any
crop or other product raised on the land shall be liable to forfeiture and any
building or other construction erected or anything deposited thereon shall
also, if not removed by him after such written notice as the Collection
Tahsildar. or Deputy Tahsildar may deem reasonable, be liable to forfeiture.
Forfeitures under this section shall be
adjudged by the Collector, Tahsildar or Deputy Tahsildar and any property so
forfeited shall be disposed of as the Collector, Tahsildar or Deputy Tahsildar
may direct." "Sec. 7. Before taking proceedings under section 5 or
section 6, the Collector or Tahsildar or Deputy Tahsildar as the case may be
shall cause to be served on the person reputed to be in unauthorised occupation
of land being the property of Government, a notice specifying the land so
occupied and calling on him to show cause before a certain date why he should
not be proceeded against under section S or section 6." It seems to us
clear from these provisions that the summary remedy for eviction which is provided
for by section 6 of the Act can be resorted to by the Government only against
persons who are in 507 unauthorized occupation of any land which is "the
property of Government". In regard to properly described in sub- sections
(I) and (2) of section 2, there can be no doubt, difficulty or dispute as to
the title of the Government and, therefore, in respect of such property, the
Government would be free to take recourse to the summary remedy of eviction
provided for in section 6. A person who occupies a part of a public road,
street, bridge, the bed of the sea and the like, is in unauthorised occupation
of property which is declared by section 2 to be the property of the Government
and, therefore, it is in public interest to evict him expeditiously which can
only be done by resorting to the summary remedy provided by the Act. But
section 6 (1) which confers the power of summary eviction on the Government
limits that power to cases in which a person is in unauthorised occupation of a
land "for which he is liable to pay assessment under section 3''. Section
3, in turn, refers to unauthorised occupation of any land "which is the
property of Government" If there is a bond 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 section 6 for evicting
the person who is in possession of the property under a bona fide claim or
title. In the instant case, there is unquestionably a genuine dispute between
The State Government and the respondents as to whether The three plots of land
were the subject-matter of acquisition proceedings taken by the then Government
of Hyderabad and whether the osmania University. for whose benefit the plots
are alleged to have been acquired, had lost title to the property by operation
of the law of limitation. The suit filed by the University was dismissed on the
ground of limitation, inter alia, since Nawab Habibuddin was found to have
encroached on the properly more than twelve years before the date of the suit
and the University was not in possession of the property at any time within
that period. Having tailed in the suit, the University activated the Government
to evict the Nawab and his transferees summarily, which seems to us
impermissible. The respondents have a bona fide claim to litigate and they
cannot be evicted save by the due process of law. The summary remedy prescribed
by section 6 is not the kind of legal process which is suited to an
adjudication of complicated questions of title. That procedure is, therefore,
not the due process of law for evicting the respondents.
508 The view of the Division Bench that the
summary remedy provided for by section 6 cannot be resorted to unless the
alleged encroachment is of "a very recent origin", cannot be
stretched too far That was also the view taken by the learned single Judge himself
in another case which is reported in Meherunnissa Begum v. State of A.P. which
was affirmed by a Division Bench.(2) It is not the duration, short or long, of
encroachment that is conclusive of the question whether the summary remedy
prescribed by the Act can be put into operation for evicting a person. What is
relevant for the decision of that question is more the nature of the property
on which the encroachment is alleged to have been committed and the
consideration whether the claim of the occupant is bona fide. Facts "
which raise a bond fide dispute of title between the Government and the
occupant must be adjudicated upon by the Ordinary courts of law. The Government
cannot decide such questions unilaterally in its own favour and evict any
person summarily on the basis of such decision. But duration of occupation is
relevant in the sense that a person who is hl occupation of a property openly
for an appreciable length of time can be taken, prima facie, to have a bonafide
claim to the property requiring an impartial adjudication according to the
established procedure of law.
The conspectus of facts in the instant case
justifies the view that the question as to the title to the three plots cannot
appropriately be decided in a summary inquiry contemplated by sections 6 and 7
of the Act. The long possession of the respondents and their predecessors-in-
title of these plots raises a genuine dispute between them and the Government
on the question of title, remembering especially that the property, admittedly,
belonged originally to the family of Nawab Habibuddio from whom the respondents
claim 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 acquisition and the
further question whether the Nawab encroached upon that property thereafter and
perfected his title by adverse possession must be decided in a properly
constituted suit. May be, that the Government may succeed in establishing its
title to the property but, until that is done, the respondents cannot be
evicted summarily.
For these reasons, we uphold the judgment of
the Division Bench of the High Court and dismiss these appeals with costs.
509 We do not propose to pass any orders on
Civil Misc. Petitions a Nos. 18974, 18975, 18976, 18497, 18498 and 18499 of
1981 which have been filed for adding certain parties as respondents to these
appeals. Those petitions involve the question of a Will alleged to have been
made by Nawab Habibuddin in favour of Entashamuddin alias Anwar Siddiqui and
his elder brother. We cannot go into the validity of that Will and other incidental
questions in these appeals.
H.L.C. Appeals dismissed.
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