HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos. 9083, 9584, 10391, 14417 & 20345 of 2001 Date : 22.09.2009 Between : T.Satya Suguna Devi & others. …..Petitioners And Estates Officer & A.P.D., Airports Authority of India, Hyderabad. …..Respondent For the petitioners : Sri M.V.Durga Prasad and Sri Prabhakar Sripada, Advocates. For the Respondent : Sri E.Madanmohan Rao. < Gist: > Head Note: ? CITATIONS: 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 C/15 HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos. 9083, 9584, 10391, 14417 & 20345 of 2001 Date : 22.09.2009 Between : T.Satya Suguna Devi & others. …..Petitioners And Estates Officer & A.P.D., Airports Authority of India, Hyderabad. …..Respondent HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos. 9083, 9584, 10391, 14417 & 20345 of 2001 COMMON ORDER : As much as common questions of law are raised for consideration on same set of facts, all these writ petitions are heard together and are being disposed of by this common order. 2. In all the above writ petitions, the petitioners herein have questioned the orders issued under Section 5-A (2) of the Public Premises (Eviction of Unauthorised Occupations) Act, 1971, by the respondents. Through the aforesaid orders, the respondent has ordered for removal of flats in a residential complex, namely ‘Archana Apartments’. As in all the writ petitions, identical orders are questioned, I refer to the facts as narrated in W.P.No.14417 of 2001. 3. 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 by registered sale deed dated 26.10.1994, bearing document No.3071/94. After purchase of the said plot, the petitioner has entered into an agreement for construction of flat bearing No.204 and the same was constructed, and ever since, the petitioner is in its possession and enjoyment. As averred in the affidavit filed in support of the writ petition, it is the case of the petitioner 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 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 of 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 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. At this stage, respondents have issued the notice dated 11th January 2001, in exercise of powers under Section 5-A (1) of the Public Premises (Eviction of Unauthorised Occupations) Act, 1971, 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 to remove these flats. Initially, the petitioner 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 respondents in invoking the provisions of the Public Premises (Eviction of Unauthorised Occupations) Act, 1971. After filing of explanation by the petitioner, the respondents have issued the impugned notice dated 26.04.2001 in exercise of powers under Section 5-A (2) of the said Act, directing the petitioner for removal of her flat. In the aforesaid impugned 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 as such, the said land is now in possession of the Airports Authority, as such, the land in Survey No.15 is the public premises and as the land in the said survey number is encroached by Archana Apartments, which are constructed in Survey No.15 but not in Survey No.19, the representation of the petitioner is not considered. Consequently, orders are issued for removal of said flats. 4. In the writ petition, it is the case of the petitioner that the said apartments are constructed in the land covered by Survey No.19, but not 15. It is submitted that after purchase of the land by one Mamilla Krishna Reddy by the 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 that when there was an interference by the National Airports Authority, the vendor of the petitioner 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 respondents have lost their claim in Civil Proceedings, it is not open for them to invoke the provisions under the Public Premises (Eviction of Unauthorised Occupations) Act, 1971, and deprive the petitioner of her property, by resorting to summary inquiry contemplated under the said Act. It is the case of the petitioner 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 respondents, it is beyond the scope of the provisions contained under the Public Premises (Eviction of Unauthorised Occupations) Act, 1971 to resolve such disputes and to order for removal of structures. It is submitted that in view of the long-standing possession of the vendor of the petitioner and the petitioner after construction of the flat in question, if there is any claim by the respondent-Authority, 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 Public Premises (Eviction of Unauthorised Occupations) Act, 1971. 5. On behalf of respondents, counter affidavit is filed by the Senior Manager (Law). In the counter, while generally denying the allegations of the petitioner, it is stated that during the course of inquiry under the provisions of the Public Premises (Eviction of Unauthorised Occupations) Act, 1971, the claim of the petitioner 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 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 and the reply dated 24th February 2001 issued on behalf of the petitioner, it is stated that as much as all the documents produced by the petitioner relate to Survey No.19, but not 15, as such, respondents have issued orders for removal of the structures which are constructed in Survey No.15. It is stated that since the petitioner’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 respondents are within their powers for invocation of provisions under the Public Premises (Eviction of Unauthorised Occupations) Act, 1971. In the counter affidavit, 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, there is no conflicted question of law of 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. 6. A reply affidavit is also filed on behalf of the petitioner, reiterating that the land in question has been in possession and enjoyment of the petitioner and her predecessors in title, for more than 50 years. It is also stated that no notice was given to the petitioner 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’s flat was constructed. 7. Heard learned counsel Sri M.V.Durga Prasad and Sri Prabhakar Sripada, for the petitioners in all the writ petitions and Sri E.Madanmohan Rao, for the respondent- Airports Authority. 8. It is contended by the learned counsel appearing for petitioners in this batch of cases, that the petitioners 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 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 respondents have no authority or jurisdiction to invoke the provisions under the Public Premises (Eviction of Unauthorised Occupations) Act, 1971, and deprive the petitioners of their land, and such action on the part of respondents is illegal and arbitrary, and also runs contrary to the object of the very Legislation. It is submitted that the predecessor of the petitioners in title Smt.Kamsamma was in actual physical possession of the land and the building constructed thereon, and when there was interference by the respondents, 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 filed by the predecessor in title of the petitioners is decreed and when such judgment and decree has become final, it is not open for the respondents 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 respondents 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 have placed reliance on the judgments in the case of S.R.B.Gaikwad V. The Union of India[1], in Govt. of A.P. V. Thummala Krishna Rao & another[2], in M/s.Shree Bajrang Hard Coke Manufacturing Corporation V. Ramesh Prasad & others[3], in Madhya Pradesh Electricity Board V. Badri Prasad & others[4] and in the case of State of Rajasthan V. Padmavati Devi & others[5]. 9. 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-Authority and the same was acquired for Hyderabad Airport, in that view of the matter, as the petitioners got constructed their flats by encroaching into the land belonging to the respondents, they have rightly invoked the provisions under the Public Premises (Eviction of Unauthorised Occupations) Act, 1971 and ordered for removal of said structures. It is submitted that as all the documentary evidence filed by the petitioners relate only to Survey No.15, but not 19, in that view of the matter, they are not helpful to the petitioners in support of their claim for title and possession with regard to the land covered by Survey No.19. It is submitted by the learned counsel that in view of the provision contained under Section 15 of the Public Premises (Eviction of Unauthorised Occupations) Act, 1971, there is a bar on the respondent-Airports Authority on approaching the Civil Court, and in that view of the matter, the only remedy available to the respondents 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 in the case of S.Lingamaiah V. State of A.P.[6], in Ashoka Marketing Ltd. V. Punjab National Bank and others[7], and in Hari Singh & others V. The Military Estate Officer[8]. 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 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. 12. Coming to the case on hand, it is the specific case of the petitioners that the flats in question are forming part of apartment complex constructed in Survey No.19 of Begumpet village. It is also their case that earlier, the said piece of land is held by Sri Mamilla Krishna Reddy, which was given to his daughter by name Smt.C.Kamsamma in pasupu kumkuma, and it is their specific case that for the last more than 50 years, it was in possession of either the petitioner or her predecessors in title. In support of her claim, the petitioner has also filed public documents, namely, Khasra pahani for the year 1954-55 and subsequent pahanis, wherein, Smt.Kamsamma’s father is shown to have been in possession of the land in question, covered by 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. Further, when there is an interference by the respondents with regard to possession of Smt.Kamsamma, she has filed a suit in O.S.No.137 of 1991, wherein, a written statement was filed on behalf of defendant No.3, and in para 3 of the said written statement, it is categorically alleged that the suit land does not fall in Survey No.19, but is part of Survey No.15 of Begumpet village. Though the written statement is filed, subsequently, the defendants have not contested the proceedings before the Civil Court, and ultimately, the suit in O.S.No.137 of 1991 was decreed by a judgment and decree dated 16th July 1997. Though it is stated in the counter affidavit 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 addressed a letter dated 10th August 2000, but it appears that the said survey was conducted without issuing any notice to the affected persons. When the piece of land was purchased by the petitioner and when constructions have already come up, the survey conducted by the respondents, without any notice to the petitioners, could not have been the basis for initiation of proceedings against the petitioners. In the reply affidavit filed on behalf of the petitioner, it is categorically stated that the petitioner and other interested persons were not put on notice and there was no survey to their knowledge. I have also perused the various documents filed on behalf of petitioners. With regard to same premises, there were notices of demand for assessment, issued right from the year 1982, and there is also an inquiry notice with regard to non-assessment of property tax, issued to the vendor of the petitioner on 13.11.1982. The very same premises was assessed to property tax in the name of the petitioner’s vendor under the provisions of the Hyderabad Municipal Corporation Act, 1955. The petitioner has also placed on record, a notice, dated 02.11.1986, issued to her for assessment of property tax with respect to the premises bearing No. 1- 11-252/1/E, at which place, the present apartment complex has come up. In addition to the same, a copy of Khasra Pahani for the year 1954-55 is filed. In the said pahani patrika, the name of Sri Mamilla Krishna Reddy i.e. the father of Smt.C.Kamsamma is recorded as possessor and the name of one Allauddin was recorded as pattedar. Even in the subsequent pahani patrikas also, the name of Smt.C.Kamsamma was recorded as the person in actual possession of the property in question, covered by Survey No.19. When the suit was filed by Smt.Kamsamma in O.S.No.137 of 1991, the respondents have filed the written statement, and with regard to very same premises, it is their case that the said property is covered by Survey No.15, but not by 19. Inspite of the same, they have not contested the proceedings, and ultimately, the suit was decreed. In that view of the matter, having regard to the decree obtained by Smt.C.Kamsamma, vendor of the petitioner, and the abundant documentary evidence filed by the petitioners, it is a clear case, where, serious dispute arises for consideration with regard to title and possession of the land in question. It is also to be noticed that at several times, respondents themselves were addressing the survey authorities to decide the boundary dispute by demarcating the land covered by Survey No.15 as well as 19, which itself indicates that there was a boundary dispute with regard to land covered by Survey Nos.19 and 15, and in that view of the matter, based on the exparte survey conducted, the respondents cannot invoke the provisions under the Public Premises (Eviction of Unauthorised Occupations) Act, 1971. 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. 13. In the judgment relied upon by the learned counsel for the petitioners 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. 14. In another judgment relied upon by the learned counsel 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