IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE NINETEENTH DAY OF JANUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.25112 of 2005 Between: K. Kumar, S/o. Mallaiah, R/o. 7-107, Yapral Village, Secunderabad, ..... PETITIONER AND 1 The Defence Estate Officer-Cum-Commander, Andhra Sub-Area, Bolaram, Secunderabad, 2 2 Engineer Regiment C/o. 56 APO - Rep. by Office Incharge, Secunderabad, .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ of Certiorari or any other appropriate writ order or direction, calling for the records pertaining to the order dt. 20-9-2005 passed by the Court of the 1st Additional Chief Judge, City Civil Court, Secunderabad confirming the order dt. 18-8-2001 passed by the Estate Officer-Cum-Commander, Andhra Sub-Area, Bolaram, Secunderabad in case No. 3995/1/KK/Q3L of 2001 and set aside the same and pass such further order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:SRI A.V.SESHA SAI Counsel for the Respondents: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) The Court made the following : THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.25112 of 2005 ORDER: The petitioner assails the order of the learned I Additional Chief Judge, City Civil Court, Secunderabad, dated 20.09.2005, in C.M.A.No.60 of 2001, whereby and whereunder the learned Chief Judge dismissed the appeal of the petitioner filed against the order dated 18.08.2001 of the first respondent (Estate Officer) under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (Central Act No.40 of 1971) (the Act, for brevity), ordering eviction of the petitioner from the land bearing House No.7-107 in survey No.228 (totally admeasuring Acs.3.23) situated at Yapral Village, Malkajgiri Mandal in Ranga Reddy District. The father of the petitioner, late Mallaiah, owned the land in survey No.227 (Acs.3.08) and land comprised in survey No.228 (Acs.3.23). Sometime in 1970s the entire extent of land in survey No.228 was acquired and the entire land in survey No.227 remained with Mallaiah. First respondent initiated action under the Act on an allegation that the petitioner herein encroached the land admeasuring Ac.0.04 in survey No.228 and constructed a pucca house. A show cause notice was issued in Form-A under Section 4 of the Act. Petitioner submitted explanation along with the documents asserting that he did not encroach any land in survey No.228, and that he constructed house only in survey No.227, which was not acquired. First respondent relied on the report of the joint survey team and came to the conclusion that petitioner constructed a house in survey No.228, which was acquired and which vested in Defense Authorities. The plea of the petitioner that he obtained permission of the Cantonment Board before constructing house was rejected on the ground that when the petitioner applied, he sought for permission for construction of house in survey No.227, but construction was made in survey No.228 belonging to the Defense Authorities. On these findings, order/notice in Form-B under Section 5 of the Act was issued directing the petitioner to remove the encroachment, failing which he will be evicted by use of force. The appellate authority, namely, the learned I Additional Chief Judge, considered the appeal with reference to the question whether the petitioner constructed pucca house in survey No.227 or 228. Placing reliance on the joint survey report (Ex.A1), the appeal was dismissed. Learned Counsel for the petitioner raised two contentions. First, when petitioner made construction of a building consisting of two rooms and a staircase, necessary permission was obtained, and having obtained permission, petitioner cannot be treated as an encroacher of public premises. Secondly, he submits that the Estate Officer as well as appellate authority arrived at the finding entirely based on Ex.A1, Joint survey report, about which the petitioner had no notice. The survey conducted behind the back of the petitioner is of no avail. Per contra, learned Assistant Solicitor General submits that the disputed question of fact whether construction was made in survey No.227 or 228 is alien to the writ proceedings, and in any event, question of title cannot be gone into. Secondly, he submits that when the matter was heard by the appellate authority, petitioner never raised an objection regarding Ex.A1 nor resort for appointment of an Advocate Commissioner/Government surveyor for delineating the land in two survey numbers, and therefore, such a question cannot be permitted in the writ petition. The matter was initially heard in September 2008. Having regard to the controversy whether the petitioner raised construction in the land comprised in survey No.227 or 228, this Court with the consent of the parties and ex debito justitiae ordered survey to the limited extent of finding out whether the land from which the petitioner is sought to be evicted forms part of survey No.227 or 228. Authorities were directed to give notice to the petitioner before such survey. Accordingly, survey was conducted on 23.10.2008. In the report submitted to this Court along with demarcation sketch of survey No.228 of Yapral, joint survey team reported that the petitioner made encroachment in land comprised in survey No.228. It is also reported that to an extent of 554 square yards, Defense Authorities encroached into the land forming part of survey No.227. After receiving the copies of the report, both sides filed objections. Petitioner objected the finding of encroachment allegedly made by him in survey No.228 and respondents opposed the finding that Defense Authorities encroached the land in survey No.227. Their contention is that survey team exceeded their brief in recording such a finding. Therefore, this Court passed orders on 11.11.2008 directing that survey may be conducted again only with reference to petitioner’s property. After undertaking survey for the second time on 15.12.2008, panchanama as well as demarcation sketch again are enclosed which are just a repetition of earlier panchanama and earlier sketch. Similar objections are raised this time by the learned Assistant Solicitor General. Petitioner filed separate objections into the Court. When the Estate Officer under the Act initiates action for eviction of a person, who has allegedly encroached “public premises”, the limited exercise required is to know whether the land/building is public premises as defined under Section 2(e) of the Act, and whether the occupation of a person is not “authorized occupation” as defined in section 2(g) of the Act. If a person disputes that the land is not a public premises, such a question cannot be decided by the Estate Officer, if there is a prima facie evidence that the land/building is a public premises. A perusal of explanation submitted by the petitioner on 04.09.2001 would show that he seriously objected to the joint survey report, which was the basis for show cause notice, while maintaining the stand that he made construction in survey No.227. Estate Officer relied on Ex.A1, joint survey report, and overruled his objection. Petitioner was unsuccessful before the learned Chief Judge. In this Court, having regard to the admitted fact that while joint survey was conducted vide Ex.A1 report no notice was issued to the petitioner, a survey was ordered. In both the surveys a finding is given that petitioner encroached the land in survey No.228, which was admittedly acquired by Government of India for Defense Estate Office sometime in 1970s. Even in the objections filed in the Court today, the petitioner took the following stand. It is humbly submitted that I categorically contended in my representation dt.4.9.2001 submitted to the 1st Respondent that in seventies when our father, Sri K.Mallaiah, was alive the land in S.No.228 was acquired by the Defense Authorities and that the Defence Authorities paid the compensation partly and that the building consisting of 2 rooms and staircase was constructed by our father, late K.Mallaiah, before the acquisition of the land in S.No.228 by the Defence Authorities. It is humbly submitted that ever since its construction we have been residing therein for more than 3 decades. It is humbly submitted that as per the Survey Report dt.15.12.2008, the Defence Authorities have encroached upon 242 sq.yards of site in S.No.227 which belongs to us. In view of the said situation I submitted a representation dt.13.1.2009 to the Respondent Authorities for amicable settlement and the same is enclosed herewith. A perusal of the above would show that the petitioner admitted that his father constructed two rooms and staircase before acquisition was made in survey No.228. This altogether is a difference case, because in his explanation dated 04.09.2001 he took a plea that he applied for permission and constructed the building. Secondly, in paragraph 2 of the objections as above, he only asserts that an extent of 242 square yards in survey No.227 (not 554 square yards) has been encroached upon by the Defense Authorities. From this, an inference can be drawn that the petitioner’s building is situated in survey No.228, and it does not matter whether it was constructed before acquisition or after acquisition. This Court, however, hastens to add that the question whether even after acquisition of land in survey No.228 the petitioner or his predecessor retained title in respect of that portion of the land in survey No.228 has to be decided in a properly constituted suit. Petitioner’s Counsel submits that a representation is made on 13.01.2009 to the Headquarters, Andhra Sub Area, Secunderabad, proposing some sort of settlement by way of exchange of land. There cannot be any objection for considering the same, if such course is permissible in law. The Writ Petition, for the above reasons, is devoid of any merits, and the same is accordingly dismissed with the above observations. No costs. ____________ (V.V.S.RAO, J) 19.01.2009 Note: Issue C.C in one week. B/o. vs To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{VSMI}