HON’BLE SRI JUSTICE R. SUBHASH REDDY Writ Petition No.27566 of 2005 Date: December 15, 2009 Between: K. Rukmini Bai, W/o. late K. Hansraj, Aged about 56 years, Occ: Housewife, R/o.12-7-1060, Mettuguda, Secunderabad. … Petitioner And The Estate Officer & Addl. Divisional Railway Manager, Hyderabad Division, South Central Railway, Secunderabad, and another. … Respondents Order: The petitioner seeks a Writ of Mandamus declaring the action of the first respondent in initiating proceedings for her eviction from the premises bearing No.12-7-107/3/2/B (old) constructed in an area of 660 sq. yards, situated at Mettuguda village, Malkajgiri, pursuant to notice dated 14-12-2005 issued in proceedings reference No.YW/277/W.V/LGD/IRISET, under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as illegal and arbitrary. 2. Briefly stated the facts of the case are as under: The petitioner herein is the wife of one late Sri K. Hansraj. She claims ownership and possession with regard to House No. 12-7-107/3/2/B (old) constructed in an area of 660 sq. yards, situated at Mettuguda village, Malkajgiri, purchased by her late husband, by way of registered sale deed bearing No.164/85, dated 19-01-1985. One Sri Abdul Aziz Khan was the original owner and possessor of lands covered by Sy.Nos.784 and 786 of Malkajgiri and Sy.Nos.192, 198, 102 and 227 of Lalaguda village. After his death, the properties were devolved upon his heirs Sri Mohiuddin Khan and others. While things stood thus, an extent of Ac.33.03 guntas was acquired by the Railways for the purpose of constructing Railway staff quarters and an award, granting compensation under the provisions of the Land Acquisition Act, 1894, was passed on 17-02-1960. 3. The petitioner claims that the balance land, after acquisition by the Railways, was converted into house plots by the legal heirs of Sri Abdul Aziz Khan and one such plot admeasuring 660 sq. yards was purchased by her late husband. 4. When there was interference by the Railways on the ground that the plot in question is part of land acquired by them, late husband of the petitioner filed suit in O.S.No.17 of 1992 on the file of the I Asst. Judge, City Civil Court, Secunderabad against the Railways for perpetual injunction. The said suit was dismissed by judgment and decree dated 03-12-1996. As against the same, an appeal suit, being A.S.No.2 of 1997 was filed before the I Addl. Chief Judge, City Civil Court. Even in the said appeal, the petitioner was unsuccessful and challenging the same, the petitioner filed S.A.No.108 of 2001 before this court. This court, by judgment and decree dated 05-08-2005 allowed the appeal, by decreeing the suit. This court, while disposing of the second appeal, observed that if respondents therein were of the view that plaintiff deserved to be evicted under the provisions of law, it would be open to the respondents therein to do so. Taking clue from the said observation, the second respondent initiated proceedings under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, alleged to be under obedience and compliance of the directions of this court in S.A.No.108 of 2001, and issued notice in Form-A in exercise of powers under sub-section (1) and Clause (b) (ii) of sub-section (2) of Section 4 of the Act. By the aforesaid notice, alleging that the petitioner is in unauthorized occupation of the premises belonging to the Railways, she was called upon to show cause why she should not be evicted from the said property. Questioning the said notice, this writ petition is filed. 5. In this writ petition, it is the case of the petitioner that she is the owner and possessor of the land admeasuring 660 Sq. yards, along with structures, which is assigned with House No. 12-7- 107/3/2/B (old), by virtue of purchase of the same by her late husband by registered sale deed bearing No.164/85, dated 19-01- 1985. It is stated that the original pattedar was the possessor of the said piece of land, whose name was recorded as pattedar and possessor in all the revenue records and after acquisition of an extent of Ac.33.03 guntas of land for the purpose of constructing quarters by the Railways, remaining land was sold by the legal heirs of the original pattedar by making plots and her husband is the purchaser of one such plot, along with structures. It is stated that the very same claim which was projected by the respondents in the civil proceedings was not accepted and this court has allowed the second appeal, by which the suit filed by the husband of the petitioner for perpetual injunction with regard to the very same property was decreed; as such, it is the case of the petitioner that as much as she is not in possession of any public premises within the meaning of the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, it is not open for the respondents to take any steps for her by initiating proceedings under the said Act. 6. The Divisional Engineer, South Central Railway, Hyderabad Division, has filed a counter affidavit on behalf of the second respondent. In the counter affidavit, while, generally, denying various allegations made by the petitioner, it is averred that the plot admeasuring 660 Sq. yards, which was allegedly purchased by the husband of the petitioner, belongs to the Railways and it is within the boundaries of the Railways’ land. The second respondent has denied existence of two rooms and assigning of door number to the said piece of land and also the claim of the petitioner that the leftover land after acquisition by the Railways was converted into plots by the pattedars and one such plot was sold to the husband of the petitioner. Further, with reference to civil proceedings initiated by the petitioner, it is admitted in the counter affidavit that S.A.No.108 of 2001 filed by the husband of the petitioner was allowed on 06-08-2005 wherein finding was recorded that the husband of the petitioner was in physical possession of the land on the date of filing of the suit. It is further stated that the impugned notice is issued in view of the observations made by this court leaving discretion to the respondents to evict the petitioner in accordance with law. It is the case of the respondents that as much as the subject matter of the property is a public premises, it is always open to the respondents to evict the petitioner by conducting enquiry under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. It is stated that no case is made out to interfere at this stage as much as impugned notice is a show cause notice inviting explanation and there is no reason or justification for the petitioner to approach this court, at this stage, questioning the very initiation of proceedings. 7. Heard Sri M. Ravindranath Reddy, learned counsel for the petitioner and Sri N.V. Suryanarayana Murthy, learned senior counsel appearing for the second respondent. 8. It is contended by Sri M. Ravindranath Reddy, learned counsel for the petitioner, that the husband of the petitioner has purchased the property in question vide registered sale deed bearing No.164/85 as early as on 19-01-1985 and since then he was in continuous and uninterrupted possession of the same and after his death, the petitioner succeeded to the possession and ownership of the said property. It is submitted that even prior to purchase of the said property by the late husband of the petitioner, the legal heirs of the original pattedar by name Sri Abdul Aziz Khan were in actual and physical possession of the same and after excluding the land to an extent of Ac.33.03 guntas, which was acquired for construction of quarters by the Railways, the remaining land was carved out into plots and was sold as such by the said legal heirs and one such plot admeasuring 660 sq. yards along with structures, which was assigned House No. 12-7- 107/3/2/B (old), was purchased by the husband of the petitioner. It is further submitted that the possession of the petitioner is established in view of the judgment of this court in the second appeal by which the suit of the petitioner seeking perpetual injunction to restrain the second respondent herein, was decreed. It is the contention of the learned counsel that in view of the limited scope of the legislation under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, it is not open to the respondents to initiate proceedings and evict the petitioner, who is a bona fide purchaser, for valuable consideration. It is submitted that the Act is designed to evict unauthorized occupants, where there is no dispute with regard to title and possession of the property; as such, no proceedings are maintainable for eviction of the petitioners. Learned counsel for the petitioner, in support of his submissions, placed reliance on the judgments of the Hon’ble Supreme Court in the cases of Govt. of A.P., v. Thummala Krishna Rao and another[1], State of Rajasthan v. Padmavathi Devi and others[2], Special Director and another v. Mohd. Ghulam Ghouse and another[3] and also a judgment of a learned single Judge of this court in the case of K. Pavan Raj v. Municipal Corporation of Hyderabad[4]. Apart from the said judgments, learned counsel has also placed reliance on a judgment of this court dated 22-09-2009 passed in W.P.Nos.9083 of 2002 and batch. 9. On the other hand, it is argued by Sri N.V. Suryanarayana Murthy, learned counsel appearing for the second respondent that, by the impugned notice, the petitioner was called upon to explain why she should not be evicted from the property in question; however, in stead of putting forth her case before the competent authority, she approached this court by coming up with the present writ petition. It is submitted that as the writ petition itself is directed against a show cause notice, the same is not maintainable and it is for the petitioner to file appropriate explanation before the competent authority. It is further submitted that while decreeing the suit filed by the husband of the petitioner, in S.A.No.108 of 2001, this court kept open to the respondents to evict the petitioner in accordance with law; as such, proceedings are initiated by issuing the impugned notice, which cannot be said to be illegal, so as to grant relief prayed for at this stage. 10. Before considering the rival contentions of the parties, it is apposite to refer the judgment of this court in the batch of cases in W.P.Nos.9063 of 2002 and batch, on which learned counsel for the petitioner has placed reliance, wherein the scope of various provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 is elaborately considered. In the said judgment, it is held as follows: “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 Public Premises (Eviction of Unauthorised Occupants) Act, 1971. This Act was enacted to provide for a speedy machinery for eviction of unauthorised occupants of public premises. In the said objects, it is stated that it has become impossible for the 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. 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. 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.” 11. In the aforesaid judgment, in identical circumstances, where there is a dispute with regard to title and possession of land, this court has held that proceedings for eviction are not maintainable under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 when complicated questions of title and possession are involved. In the said batch of cases, having considered the scope of provisions of the said Act, definition of public premises etc., this court has expressed a view that when there is a factual dispute with regard to title and possession, the person in occupation cannot be evicted by resorting to the provisions of the said Act. Coming to the case on hand, it is the claim of the petitioner that after acquisition of Ac.33.03 guntas of land for the purpose of constructions of staff quarters by the Railways, remaining extent of land was sold by the legal heirs of the original pattedar, Sri Abdul Aziz Khan, and one of the plots out of the said remaining extent was purchased by the husband of the petitioner by registered sale deed bearing No.164/85, dated 19-01-1985, and since then he is in possession of the land and after his death the petitioner has been in possession of the same. When there was interference with regard to the very piece of land and structures therein, the contention raised in the counter affidavit in this writ petition was raised on behalf of the second respondent, inter alia, to the effect that the said piece of land and structures was part and parcel of acquired portion for the Railways. Having regard to the evidence on record, the suit in O.S.No.17 of 1992 and first appeal in A.S.No.2 of 1997 were dismissed, but the second appeal filed there-against, by which suit of the plaintiff, restraining the respondents from interfering with his possession, was decreed. Although it is the case of the respondents that proceedings under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 were initiated by issuing the impugned notice as per the observations made by this court, but, it is to be noted here that while allowing the second appeal, this court merely observed that it is open to the respondents to take steps for eviction in accordance with law. The said observation cannot be constructed as direction for initiation of proceedings, as indicated in the impugned notice itself. The impugned notice is purported to have been issued in obedience and compliance of the judgment of this court in the said appeal. In absence of any direction issued by this court for initiation of proceedings, the observations made by this court cannot be made basis for initiation of proceedings. The said observation has to be construed subject to jurisdiction and maintainability of the proceedings under the Act. In view of the bona fide purchase of the property in question by the husband of the petitioner in the year 1985 and the earlier possession for several decades by the original pattedar and his legal heirs, it is a case where there are serious factual disputes with regard to title and possession of the property; in which event as held by this court in a batch of cases referred above, it is not open to the respondents to evict the petitioner by initiating eviction proceedings under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Having regard to legislative intent and object of the Act, the provisions contained therein are not designed to confer powers of the civil courts on the authorities notified under the provisions of the Act. The judgment rendered by this court in the batch of cases referred above fully supports the case of the petitioner with regard to maintainability of the proceedings under the Act. Further, in the case of Govt. of A.P., v. Thummala Krishna Rao and another (1 supra), while considering the scope of similar such provisions under Sections 6 and 7 of the A.P. Land Encroachment Act, 1905, the Hon’ble Supreme Court has held that the summary remedy for eviction which is provided for by Section 6 of the Act, cannot be resorted to by the Government in cases where complicated questions of title arise for decision. Further, in the case of State of Rajasthan v. Padmavathi Devi and others (2 supra), while considering the scope of Rajasthan Land Revenue Act, 1956, the Hon’ble Supreme Court has held that the power of eviction conferred under the said Act cannot be exercised, where there is a factual dispute about the right of the occupant to remain in possession of the land which is the subject matter of the dispute. In the case of Special Director (3 supra), relied on by learned counsel for the petitioner, while considering the scope of judicial review at the stage of show cause notice, it is held by the Hon’ble Supreme Court that writ petition challenging a show cause notice should not be ordinarily entertained except in case where show cause notice itself is found to be nullity. 12. Though it is submitted by learned counsel for the respondents that there is no reason to entertain the present writ petition at this stage because the impugned notice is only a show cause notice, but, it is to be noted that, in this case, the petitioner has questioned the very initiation of proceedings for eviction by resorting to summary proceedings under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In the judgments of the Hon’ble Supreme Court and also the judgment of this court in the batch of cases referred above, it is held that wherever there is a bona fide dispute with regard to title and possession, no eviction can be ordered by initiating proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In the case on hand, having regard to the claim of purchase of the property in question by the husband of the petitioner and longstanding possession of the same by the petitioner and, prior to that, by the vendor, it is a clear case where there is a bona fide dispute with regard to title and possession. In that view of the matter, no proceedings for eviction are maintainable. The summary proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 cannot be equated to the power of civil courts so as to decide the title and claim of possession of the petitioner. Having regard to the facts and circumstances of the case on hand, the judgments of the Hon’ble Supreme Court and the judgment of this court in the batch of cases, relied on by the learned counsel for the petitioner, support the case of the petitioner. 13. For the reasons mentioned above, it is evidently a fit case to declare the very initiation of proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 as illegal and without jurisdiction. As such, the impugned notice is declared to be illegal and without jurisdiction. 14. The writ petition is accordingly allowed. No order as to costs. ____________________ R. SUBHASH REDDY, J December 15, 2009 MRR [1] AIR 1982 SC 1081 [2] 1995 Supp (2) SCC 290 [3] (2004) 3 SCC 440 [4] 2008 (1) ALD 792