HON’BLE SHRI G.S.SINGHVI, THE CHIEF JUSTICE AND HON’BLE SHRI JUSTICE C.V. NAGARJUNA REDDY Writ Apeal No. 436 of 2007 Between: K. Satyanarayana Reddy & another. …Appellants. And State of Andhra Pradesh Rep. by its Principal Secretary to Government, Revenue Department, Secretary, Saifabad, Hyderabad. ...Respondents :JUDGMENT: Counsel for the appellants : Sri D.V. Sitarama Murthy Counsel for respondent Nos. 1 to 3 : Government Pleader for Revenue Counsel for respondent Nos. 4 & 5 : Sri A. Rajasekhar Reddy, Assistant Solicitor General. June 19, 2007 Per G.S.SINGHVI, C.J. Whether Section 5A (2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short ‘the Act’) could be invoked by the Station Commander and Estate Officer (hereinafter referred to as ‘the Estate Officer’) for directing the occupants of GLR Survey No. 653, Hare Road, Mudfort, Secunderabad, is the question which arises for determination in this appeal filed by Sri K. Satyanarayana Reddy and Smt. S. Apritha Reddy (the appellants herein) for setting aside order dated 23.3.2007 passed by the learned Single Judge in Writ Petition No. 7121 of 1997 whereby he rejected their challenge to notice dated 18.4.1996. Appellant No. 1 claims to have purchased plot No. A measuring 548 square yards appurtenant to bungalow No. 215 in Survey No. 170 (Part) of Thokatta village, Secunderabad Mandal from Sri Syed Ibrahim Ali and others through registered document No. 491 of 1996 dated 27.2.1996. Likewise, appellant No. 2 claims to have purchased two plots bearing Nos. B and D measuring 400 and 423 square yards, respectively, appurtenant to bungalow No. 215 in Survey No. 170 (Part) of Thokatta village, Secunderabad Mandal from Sri Syed Tahir Ali s/o. Syed Ibrahim Ali through registered sale deed dated 27.2.1996. On 18.4.1996, the Estate Officer issued notice under Section 5A (2) of the Act to appellant No. 1 and others to remove the structures erected in contravention of Section 5A (1). Appellant No.1 filed reply dated 30.4.1996 stating therein that he had purchased the property from Sri Syed Ibrahim Ali and the same is not covered by the definition of ‘public premises’ so as to warrant invoking of Section 5A (2) of the Act. After some time, the appellants filed Writ Petition No. 7121 of 1997 for quashing order dated 5.3.1997 passed by Special Commissioner, Land Revenue, Andhra Pradesh, Hyderabad whereby the appeal preferred by one Sri Syed Sadiq Ali Khan under Section 158 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli, was dismissed. During the pendency of the writ petition, they filed W.P.M.P.No. 257 of 2004, which was ordered on 6.1.2004 to enable them to challenge notice issued under Section 5A (2) of the Act. In paragraphs 3 to 5 of additional affidavit dated 14.3.2006 filed by him, appellant No. 1 averred as under: “3. I humbly submit that in the affidavit filed in support of the above writ petition, I have set out in extenso the particulars relating to the nature and history of land etc. for the purpose of establishing that the defence authorities have no manner of right or title over the property. Hence, there cannot be any presumption that the land purchased by myself and the 2nd petitioner under registered sale deed 27.2.1996 constitute public premises and therefore the Estate Officer lacks competence and jurisdiction to initiate proceedings under 5A of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. However, all these allegations have not been set out in detail and, therefore, for the purpose of making the pleadings complete, I am filing this additional affidavit setting out the same. I respectfully submit that this is not new or additional plea raised for the first time. As already stated, the cause of action for filing the above writ petition was institution of proceedings under 5A and the insistence of respondents 4 and 5 to continue with the proceedings despite the submission of an explanation dated 30.4.1996 clearly pointing out absence of jurisdiction. 4. It is respectfully submitted that the 5th respondent issued a show cause notice under Sec. 5A (2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 stating that (i) that the land forming part of G.L.R. Survey No.653 adjoining the Bungalow No.215 (GLR 660) Hare Street, Mudfort, Secunderabad Cantonment, is a public premises belonging to Government of India and (ii) that the constructions made by the petitioners are constructions made in public premises and as such liable to be removed. It is thus seen that the 5th respondent proceeds on the assumption that the premises in question is public premises and the constructions are unauthorised. The 5th respondent failed to consider the threshold issue of jurisdiction. Under the provisions of the Act, the 5th respondent has no competence or jurisdiction to decide the disputes relating to tile. In the instant case along with our explanation dated 30.4.1996, we have filed copies of our sale deeds and other proceedings by which we were claiming title to the property in question. We have also stated that the constructions are existing and are of temporary in nature. However, the 5th respondent is insistent on passing orders directing us to remove the same. It is respectfully submitted that there is a bona fide dispute of title. Hence, the respondents cannot take recourse to summary proceedings for eviction under the Act. 5. It is fairly well settled that the Estates Officer under the Act has limited jurisdiction to determine only the disputes that may arise in relation to public premises when an application is made to him to evict an unauthorised occupant. The Defence Estate Officer has jurisdiction only if the premises in question is a public premises. The question as to whether the premises in question is or is not the public premises, is a question, which goes to the very root of the jurisdiction. In the instant case, as the issue raises considerable difficulties and involves complicated questions of title, the summary procedure prescribed by the statute to the authority is wholly insufficient to enable it to give a categorical finding on such a complicated question of title. In such an event, issue has to be left, to be decided by the civil court of competent jurisdiction. I humbly pray that this additional affidavit may be treated as part and parcel of the main affidavit. I submit that I could not file this additional affidavit earlier though the plea was raised in the affidavit filed in support of the writ petition for the reason that there was major calamity in my family and I was deeply disturbed for a considerable period of time. The tragic, untimely and sudden demise of younger son who was a qualified, well accomplished Software Engineer working in USA. I submit that the delay is neither willful nor wanton. I have not set out any new plea or fact.” In the counter filed by him some time in March, 2004, Dr. T. Arockianathan, who was then holding the post of Estate Officer, narrated the historical background in which the land in dispute is said to have vested in Government of India and pleaded that the petitioners do not have the locus to question the order dated 5.3.1997. In the supplementary affidavit dated 14.3.2006 filed by him, Sri S. Balakrishna pleaded that the action had been initiated against the appellants because they encroached upon the vacant land in GLR Survey No. 653 admeasuring 6000 square yards, corresponding to revenue Survey No. 170 of Thokatta village. According to him, notice was issued only for removal of immovable structures and the Estate Officer would have issued notice under Section 4 (1) of the Act for eviction of unauthorised occupant if actually any person is occupying the government land. For the sake of convenient reference, paragraph-6 of the affidavit of Sri S. Balakrishna is reproduced below: “6. It is observed from the records maintained by the Defence Estates Officer, A.P. Circle, Secunderabad that the petitioner has attempted to carry out some constructions on the said Government land while proceedings were under progress. Aggrieved by the illegal action of the petitioner, the Estate Officer initiated proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act 1971 under Section 5-A. The vacant land in GLR Sy.No. 653 admeasuring 6000 square yards corresponding to Revenue Survey No. 170 of Thokatta village was attempted to be encroached upon by the petitioner and since the Government land is in occupation/possession of the Government of India, Ministry of Defence, the Estate Officer might have issued notice only to remove the immovable structures under Section 5-A of the Public Premises (Eviction of Unauthorised Occupants) Act 1971 as otherwise, he would have issued notice under Section 4 (1) for eviction of the unauthorized occupant, if, actually any person is occupying the Government land. Since, it is a public premises, being Central Government land and it was not lease/granted to any individual, on the other hand, one Shri Syed Sadiq Ali Khan made an attempt to grab the land to which the present petitioner is also a party, to create a clumsy atmosphere or otherwise or to indulge in multiple litigations to serve their purpose of land grabbing.” At the hearing of the writ petition, learned counsel for the appellants did not press challenge to order dated 5.3.1997 and argued that notice issued under Section 5A (2) of the Act is liable to be quashed because neither the writ petitioners nor their predecessors were inducted into possession of the property in question by way of grant or other mode of transfer by the State. The learned Single Judge rejected the appellants’ challenge to notice dated 18.4.2006 by recording the following observations: “Section 5A (1) of the Act prohibits every person from carrying on any one of the activities enumerated there in any public premises, except in accordance with the authority under which such a person is allowed to occupy the premises. Sub-section (2) and (3) of Section 5A of the Act authorizes the estate officer to remove any building, goods or cattle which are found “on, or against, or in front of, any public premises”. In substance, Section 5A of the Act authorizes the removal of any building erected, goods or cattle or other animals not only brought on the public premises, but also erected or brought and placed in front of any public premises. The usage of the expression ‘on, or against, or in front of, any public premises’ occurring in Section 5A (1) (c), in my view, clearly militates against the construction sought to be put forth by the learned counsel for the petitioners in the language of Section 5A of the Act. If Section 5A of the Act authorizes the estate officer to remove the various violations prescribed under Section 5A (1) not only on the public premises, but also against or in front of the public premises, obviously it is on a premises, which is not be a public premises. The person who is allegedly in the unauthorized occupation of the public premises cannot be said that since he was not inducted into premises by virtue of a grant, the power under Section 5A of the Act is not available to the estate officer. Whether the premises in question is a public premises or not, is not a matter which I am called upon to decide in this writ petition nor can it be decided in this writ petition as it involves the disputed questions of fact relating to the title of the immovable property. In view of the above discussion, I do not see any merit in the writ petition and the same is therefore dismissed. However, it is open to the petitioners to establish before the fourth respondent that the premises in question is not a public premises by producing appropriate evidence. There shall be no order as to costs.” Sri D.V. Sitarama Murthy assailed the order under challenge and argued that the learned Single Judge committed serious error by upholding the action initiated by the Estate Officer under Section 5A (2) of the Act ignoring the fact that the appellants had not been inducted into possession by way of grant or otherwise and, as a matter of fact, they were occupying the property on the basis of sale deed executed by the owners. Sri A. Rajasekhar Reddy, Assistant Solicitor General, defended the action taken by respondent No. 4 and argued that any unauthorised construction made on or in front of any public premises can be removed by invoking Section 5A (2), irrespective of the fact that the person erecting such construction might not have been inducted into possession by the competent authority of the Union of India. We have considered the respective submissions. Section 2 (e), which defines the term ‘public premises’ and Sections 4, 5 and 5A, which have bearing on the decision of this appeal, read as under: “2.(e) "public premises" means- (1) 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 that 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; (2) any premises belonging to, or taken on lease by, or on behalf of, -- (i) any company as defined in section 3 of the Companies Act, 1956 (1 of 1956), in which not less than-fifty one per cent of the paid-up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the first- mentioned company; (ii) any corporation (not being a company as defined in section 3 of the Companies Act, 1956 (1 of 1956), or a local authority established by or under a Central Act and own owned or controlled by the Central Government; (iii) any University established or incorporated by any Central Act; (iv) any Institute incorporated by the Institutes of Technology Act, 1961 (59 of 1961; (v) any Board of Trustees constituted under the Major Port Trusts Act, 1963 (38 of 1963); (vi) the Bhakra Management Board constituted under section 79 of the Punjab Reorganisation Act, 1966 (31 of 1966), and that Board as and when re-named as the Bhakra-Beas Management Board under sub-section (6) of Sec. 80 of that Act; (vii) any State Government or the Government of any Union territory situated in the National Capital Territory of Delhi or in any other Union Territory; (viii) any Cantonment Board constituted under the Cantonments Act, 1924 (2 of 1924); and (3) in relation to the National Capital Territory of Delhi--- (i) any premises belonging to the Municipal Corporation of Delhi, or any Municipal Committee or notified area committee; (ii) any premises belonging to the Delhi Development Authority, whether such premises are in the possession of. or leased out by, the said Authority; and (iii) any premises belonging to, or taken on lease or requisitioned by, or on behalf of any State Government or the Government of any Union territory]; 4. Issue of notice to show cause against order of eviction.--(1) If the estate officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should by evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. (2) The notice shall- (a) specify the grounds on which the order of eviction is proposed to be made; and (b) require all persons concerned, that is to say, all persons who are, or may be. in occupation of, or claim interest. in the public premises,- (i) to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than seven days from the date of issue thereof, and (ii) to appear before the estate officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired. (3) The estate officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned. 5. Eviction of unauthorised occupants.--(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub- section (2), of Section 41, the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. (2) If any person refuses or fails to comply with the order of eviction on or before the date specified in the said order or within fifteen days of the date of Its publication under sub-section (1), whichever is later, the estate officer or any other officer duly authorised by the estate officer in this behalf may, after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from and take possession of, the public premises and may, for that purpose, use such force as may be necessary. 5A. Power to remove unauthorised construction, etc.--(1) No person shall-- (a) erect or place or raise any building or for other structure or fixture, any moveable or immoveable structure or fixture, (b) display or spread any goods, (c) bring or keep any cattle or other animal, on, or against, or in front of, any public premises except in accordance with the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy such premises. (2) Where any building or other immoveable structure or fixture has been erected, placed or raised on any public premises in contravention of the provisions of sub-section (1), the estate officer may serve upon the person erecting such building or other structure or fixture, a notice requiring him either to remove, or to show cause why he shall not remove such building or other structure or fixture from the public premises within such period, not being less than seven days, as he may specify in the notice; and on the omission or refusal of such person either to show cause, or to remove such building or other structure or fixture from the public premises, or where the cause shown is not, in the opinion of the estate officer, sufficient, the estate officer may, by order, remove or cause to be removed the building or other structure or fixture from the public premises and recover the cost of such removal from the person aforesaid as an arrear of land revenue. (3) Where any moveable structure or fixture has been erected, placed or raised, or any goods have been displayed or spread, or any cattle or other animal has been brought or kept on any public premises, in contravention of the provisions of sub-section (1) by any person the estate officer may, by order, remove or cause to be removed without notice, such, structure, fixture, goods, cattle or other animal, as the case may be, from the public premises and recover the cost of such removal from such person as an arrear of land revenue.” An analysis of the above reproduced provisions makes it clear that if a person is found to be in unauthorised occupation of the ‘public premises’, the Estate Officer can take action under Section 4 read with 5, which envisages issue of notice to the alleged unauthorised occupant to show cause against his/her proposed eviction specifying therein the ground on which the order of eviction is proposed to be made. Final order can be passed by the Estate Officer after considering the cause, if any, shown by the person to whom notice under Section 4 (1) is issued. Section 5 (2) lays down the mode, which can be adopted by the Estate Officer, if any person refuses or fails to comply with the order of eviction passed under Section 5 (1). Section 5A (1) is couched in negative form. It declares that no person shall --- (a) erect or place or raise any building or any movable or immovable structure or fixture, (b) display or spread any goods, and (c) bring or keep any cattle or other animal, on or against or in front of any public premises except in accordance with the authority whether by way of grant or any other mode of transfer under which he was allowed to occupy such premises. Sub-section (2) of Section 5A empowers the Estate Officer to serve upon the person, erecting any building or other structure or fixture in violation of Section 5A (1), a notice requiring him either to remove or to show cause as to why he shall not remove such building from the public premises within the period to be specified in the notice. If the person to whom notice is issued, omits or refuses to show cause or to remove such building, etc., or if the Estate Officer is not satisfied with the cause shown, then he can order removal of such building, structure, fixture, etc., from the public premises. A conjoint reading of sub-sections (1) and (2) of Section 5A makes it clear that the provision contained in sub-section (2) can be invoked only if a building or movable or immovable structure or fixture is erected, placed or raised by a person on, or against, or in front of, any public premises in violation of the authority under which he was allowed to occupy the premises. To put it differently, notice for removal of building or immovable structure or fixture erected, placed or raised on any public premises can be issued only to a person, who is allowed to occupy the premises, and who raises construction in violation of the conditions on which he was allowed to occupy the premises. If the person is said to be unauthorisedly occupying public premises, then appropriate action can be taken in terms of Sections 4 and 5 of the Act and not under Section 5A. The specific case set up by the appellants is that they had purchased the land in dispute from Sri Syed Ibrahim Ali and his son, Sri Syed Tahir Ali, and not by way of grant and were occupying the same on the strength of the sale deeds executed in their favour and that they were not put in possession by the competent authority of the Central Government. In the affidavits filed by respondent No.4, it was not pleaded that the appellants were allowed to occupy the land on the basis of any grant made by the competent authority of the Government of India. Therefore, it must be held that respondent No.4 did not have the jurisdiction, power or authority to initiate action under Section 5A (2) of the Act and the learned Single Judge committed an error by refusing to nullify the notice dated 18.4.1996. We are further of the view that questions relating to title of the property specified in the impugned notice and legality of the sale deeds dated 27.2.1996 executed by Sri Syed Ibrahim Ali and Sri Syed Tahir Ali in favour of the appellants cannot