IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.7240 of 2004 Between: 1 K.Veerender Reddy, S/o K.Satyanarayana Reddy, R/o Secunderabad. 2 K.Satyanarayana Reddy, S/o Late K.C.Reddy, R/o Secunderabad. 3 K.Chandrakala, W/o K.Satyanarayana Reddy, R/o Secunderabad. ..... PETITIONERS AND 1 The Executive Officer, Secunderabad Cantonment Board, Secunderabad. 2 The Estates Officer, Cantonment Board, 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 an appropriate Writ or Order or direction more particularly one in the nature of Writ of Mandamus declare the proceedings instituted under Section 5A and 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act 1971 as illegal, arbitrary and without jurisdiction and issue a consequential direction that the Respondents have no competence to adjudicate title Counsel for the Petitioner: SRI D.V.SITARAMAMURTHY Counsel for the Respondents : SRI Y.V.RAVI PRASAD FOR RVAK. The Court made the following : THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.7240 of 2004 ORDER: The ﬁrst petitioner is the son of second and third petitioners. In the aﬃdavit ﬁled by the ﬁrst petitioner it is stated that he, his brother and his parents purchased an extent of 524 square yards each in Survey No.170 (part) situated at Mudfort, Thokatta Village in Secunderabad. They are in possession of the property. The petitioners contend that Thokatta Village was part of estate of Salar Jung Bahadur in Secunderabad cantonment and it was never treated as “occupied land” by the Government of India. The petitioners further contend that out of the total extent of land comprised in Survey No.170, only an extent of Acs.6.10 (Cantonment Workshop) belongs to Military Authorities, and other land is a private land, and therefore, it is not a public premises within the meaning of Section 2(e) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (the Act, for brevity). It is also alleged that Union of India ﬁled a suit, being O.S.No.266 of 1991, on the ﬁle of the Court of the III Assistant Judge, City Civil Court, Secunderabad, for declaration of title in respect of land in Survey No.170 (old Survey No.32/2), and the suit was dismissed on 15.03.1996. In spite of the same, the ﬁrst respondent issued a notice dated 26.08.1999 to stop unauthorized construction. The petitioners sent a reply. By another letter dated 04.10.1999 the petitioners were advised not to proceed with the work. The petitioners then placed all the material before the respondents, and in spite of the same, the second respondent initiated action under the Act and issued a notice dated 20.02.2004 calling upon the petitioners to give representation with reference to earlier notice dated 20.02.2001. Aggrieved by the same, the present writ petition is filed. This Court while admitting the writ petition on 16.04.2004 ordered interim stay of all the further proceedings under the Act. Respondents have now moved W.V.M.P.No.3398 of 2004 for vacating the interim order. As the writ petition itself is ﬁled against the notice, the matter is being disposed of at the interlocutory stage. A perusal of the notice bearing No.EB/PPE Act/Hearing/738, dated 20.02.2004 issued by the second respondent would show that earlier another notice under Section 4(1) of the Act was issued on 20.02.2001, and so as to aﬀord ﬁnal opportunity to the petitioners another notice dated 20.02.2004 was issued informing them that they may make their representation, and that the case is posted on 05.03.2004. From this it becomes clear that the second respondent who is, admittedly, competent authority under the Act has not yet taken a decision to evict the petitioners from the premises or has not arrived at a ﬁnal conclusion necessary for exercising his authority under the Act. In such a situation it is not proper to adjudicate the issue. The learned Counsel for the petitioners has, however, placed reliance on an unreported judgment dated 19.06.2007 in K.Satyanarayana Reddy v State of Andhra Pradesh (W.A.No.436 of 2007) wherein this Court held that the provisions of Section 5A(1) and (2) of the Act can be invoked only if a building or movable or immovable structure or ﬁxture is erected in front of any public premises in violation of the authority under which a person is allowed to occupy the premises. The Division Bench also further observed that, “if the person is said to be unauthorizedly occupying public premises, then appropriate action can be taken in terms of Sections 4 and 5 of the Act and not under Section 5A”. This observation itself makes it clear that if, prima facie, the Estate Oﬃcer comes to conclusion that a person is in unauthorized occupation of public premises, as a ﬁrst step, he has to issue notice under Section 4(1) of the Act, and then proceed further with the matter. When the second respondent issued a notice, the issuance of such notice by itself cannot be a ground for issuing a writ of mandamus, especially, when it is done in compliance with requirements of law. Therefore, as the ﬁrst step, the petitioners are given liberty to ﬁle explanation to the notices dated 20.02.2001 and 20.02.2004 within a period of two weeks from the date of receipt of a copy of this order. As and when such explanation is ﬁled the second respondent shall aﬀord an opportunity of hearing to the petitioners and pass appropriate orders in accordance with law. Needless to mention that unless and until appropriate order is passed under Section 5(1) of the Act, the petitioners’ possession shall not be disturbed. The Writ Petition, with the above observation and direction, is disposed of accordingly. No costs. _____________ (V.V.S.RAO, J) 10.09.2008 Note: Issue C.C by 12.09.2008. B/o. vs To 1 The Executive Officer, Secunderabad Cantonment Board, Secunderabad. 2 The Estates Officer, Cantonment Board, Secunderabad. 3 2CCs to 4 2CD copies Form-NIC-OGS/WP{VSR}