HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.21378 of 2010 Date: October 11, 2011 Between: 1. Omkarnagar Yuvajana Seva Sangham, rep. by its President, Palla Jai Bharat Kumar, a society registered under A.P. Co-Op. Societies Act, 1964 with regd. No.697/91, New Colony, near Sevanagar, Visakhapatnam & another. … Petitioners And 1. Estate Officer, Estate Office, East Coast Railway, Waltair, Visakhapatnam & 4 others. … Respondents * * * HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.21378 of 2010 O R D E R: This writ petition has been instituted by one Omkarnagar Yuvajana Seva Sangham, Visakhapatnam, said to be a society registered under the A.P. Co-Operative Societies Act, 1964, in the company of one individual by name Sri Palla Jai Bharat Kumar. They seek a writ of Mandamus directing the first respondent not to evict them from the land and buildings in a piece of railway land measuring 8250 square metres (2.04 acres) situated at Omkarnagar Colony, near Sevanagar, adjacent to Waltair Railway Station, Visakhapatnam, pursuant to the notice issued on 11th April 2007 by the Estate Officer. 2. The Estate Officer of the railways has issued a notice in terms of sub-section (2) of Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for short ‘the Act’), directing the petitioners to show cause as to why they be not evicted from the public premises under their unauthorized occupation. That gave rise to the present writ petition. 3. Heard Sri K. Subrahmanyam, learned counsel for the petitioners and Sri P. Ganga Rami Reddy, learned standing counsel for the Railways. 4. It is contended on behalf of the petitioners by the learned counsel that for nearly last five decades and more period several poor persons drawn from socially disadvantaged segments have occupied an otherwise useless portion of land belonging to the railways and made improvements thereon to make it habitable and constructed small dwelling units thereon and approximately 350 families are living in those dwelling units and at this length of time the petitioners and others cannot be sought to be thrown out of the said land. It is also submitted that the local municipal corporation and the District Collector have also taken up the matter with the Indian Railways so as to allow this piece of land to be continued to be occupied by the hut dwellers, notwithstanding that, a civil suit O.S. No.1283 of 1993 filed by the first petitioner’s sangham herein, has been dismissed on 30.12.1996. The learned counsel for the petitioners would further submit that each individual hut dweller/occupier has got to be put on notice under sub-section (2) of Section 4 by the Estate Officer and the land under occupation of each individual has not also been set out specifically in the notice. The learned counsel for the petitioners would further contend that the Indian Railways will have to first of all establish their right, title and interest over the land and without doing so they cannot unilaterally seek to evict the petitioners highhandedly. 5. It is stated on behalf of the respondents in their detailed counter-affidavit that the land of an extent of Ac.2.04 cents situated in T.S. No.3, Block No.2 of Allipuram, Ward No.36, Visakhapatnam, was acquired by the Indian Railways in accordance with the provisions contained under the Land Acquisition Act in the year 1942 for a public purpose viz., to undertake developmental works by the Indian Railways such as establishing Visakhapatnam Railway Station, railway yard office, construction of residential quarters for the railway employees and for other circulating and operational uses of the Indian Railways. It is also brought out that an award was passed fixing the compensation payable to the land owners on 25.12.1943 and accordingly the compensation has been paid to the original land owners. Therefore, the right, title and interest over the said parcel of land stood vested in the then existing Railways. Later on it was transferred to Indian Railways. The site in question is located nearby Waltair Railway Station and taking advantage of the slack supervision of the estate of the Indian Railways, several persons have freely encroached upon the said land and various measures taken to secure eviction of the petitioners and their likes have been resisted by instituting W.P. No.16259 of 1993, which was ultimately disposed of by this Court on 25th March 2004 granting liberty to the railways to take appropriate action in accordance with law to secure eviction of the members of the petitioner society. Further, the first petitioner society herein has filed a civil suit O.S. No.1283 of 1993, which upon contest, was dismissed on 30.12.1996 by the civil Court and the said judgment and decree have become final and that the Estate Officer when is taking action in accordance with law, the present writ petition has been prematurely launched to stall all further proceedings in the matter. It was also brought out that the land in question is needed for utilisation by the Indian Railways and hence no fault can be attributed for following the due process of law for securing eviction of the petitioners and their likes. 6. I had an occasion to deal with two cases (1) W.P. No.19740 of 2011 (2) W.P. No.21962 of 2011 and W.P. No.21509 of 2011 which were brought before me by a set of licensees who have been granted licences for occupation of certain railway land. In those two cases, which were decided by me on 28th September 2011 and 30th September 2011, I had traced out the legal principles on the subject matter relating to eviction of unauthorised occupants of railway lands. Therefore, I do not propose to revisit all those principles all over again now. Suffice it to notice that the Parliament enacted the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, for securing a speedy remedy for the eviction of unauthorised occupants from the public premises. 7. As per the definition of expressions ‘premises’ and ‘public premises’ found in clauses (c) and (e) of Section 2 of the said Act, any land or any building or part of a building including a garden, grounds and outhouses belonging to, or taken on lease or requisitioned by, or on behalf of, the Central Government become public premises. Ministry of Railways is a part of the Central Government. Therefore any land or building or part of land or building or ground belonging to the Ministry of Indian Railways a fortiori becomes public premises. Further, the averment contained in paragraph 3 of the counter-affidavit filed in this case by the Senior Divisional Engineer (Headquarters), East Coast Railway, Visakhapatnam, setting out that the land in question has been acquired in the year 1942 by following the provisions contained in the Land Acquisition Act has not been controverted. It is further brought out that an award was passed by the competent authority on 25.12.1943 fixing the compensation for the compulsory acquisition of land and hence the right, title and interest over that parcel of land stood vested thereupon in the Central Government. Therefore, the land in question is owned by the Central Government is a fact which is not capable of being called in question at all. 8. It must also be stated in fairness to the petitioners herein that they do not dispute this fact seriously. It will be appropriate to notice that in paragraph 2 of the affidavit filed in support of this writ petition it is stated as under: “I submit that the above said Sangham submits that even prior to the formation of the Omkarnagar Yuvajana Seva Sangham, since long time i.e., more than 50 years, there are several families which occupied the land said to be belonging to the railway” Therefore it is clear that the petitioners have not set up any independent title to the land in question on their own, but, grudgingly acknowledge the title thereto of the Railways. 9. Section 3 of the Act authorises the Central Government by notification in the Official Gazette to appoint such persons, being Gazetted Officers of Government, to be Estate Officers for the purpose of the said Act. Section 4 of the Act conferred power on the Estate Officer to evict any person in unauthorised occupation of any public premises. Sub-section (3) of Section 4 authorises the Estate Officer to cause 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. Therefore, the first contention canvassed by the learned counsel for the petitioners that all the individual residents of the tenements occupying unauthorisedly the land belonging to the railways need not necessarily be put on notice. Sub-section (3) of Section 4 makes the position clear in this regard. Obviously, the lawmakers are conscious that in certain given circumstances service of individual notice cannot be successfully accomplished. For a variety of good reasons the service cannot be effected individually, for instance, when the person occupying the land could keep changing at regular periodicity. Therefore, a fiction has been incorporated with regard to the service of notice under sub-section (3) of Section 4. 10. Fortunately, the first petitioner herein is a co-operative society. It has been established with the primary objective of protecting the welfare and interests of the unauthorised occupants or residents of Omkarnagar locality. It was not disputed that the notice has been received by the first petitioner from the Estate Officer. It is therefore reasonable to infer that all the individual residents of various tenements situated in Omkarnagar are served with the notices by the Estate Officer. Hence, it is open to each of them to raise their objection(s) before the Estate Officer and participate in the enquiry. The Estate Officer, after considering the cause if any shown by the person to whom the notice was issued under Section 4 and after considering any evidence that might be produced by him/them in support of their claim(s) and after a personal hearing if, he is satisfied that the public premises are in unauthorised occupation, he may order for eviction. The law on this subject is very clear. Even if a licence was granted by the Indian Railways for occupation of any of its premises, the occupation to the extent of the period so granted will become authorised, otherwise such occupation is impermissible under law. After the period of grant is over, even a former licensee converts himself into an unauthorised occupant, if he were to be continuing to occupy the premises. Every such unauthorised occupant, in whose favour a grant for occupation of the land in question has not been accorded and or subsisting becomes an unauthorised occupant and liable to be evicted in accordance with Sections 4 and 5 of the Act. 11. Visakhapatnam city is one of the prominent cities on the East Coast of this country. With a huge increase in population, the railway network was becoming busier day-by-day, what with many fold increase in operations of commercial freight and passenger public. Therefore, a parcel of land belonging to the Indian Railways, which may not have been put to immediate and effective utilisation by it, cannot be converted into an unauthorised colony by the encroachers thereon. The individual private interests must yield themselves to the larger public good and public interest. Indian Railways therefore needs land belonging to it. When a gigantic organisation like the Indian Railways keeps a certain percentage of land as a buffer stock to meet with its future needs, such an attempt cannot be described as an illegal act on the part of the railways. Man power and public utility service intensive industries like railways have to necessarily provide for a buffer stock of the essential ingredients such as land. That will be put to use over a period of time depending upon the increase in the network of operations. A realistic assessment of the expansion of the operations will be undertaken only after thorough scrutiny and study. The capital investment required also has got to be taken care of by the Central Government depending upon the budgetary sanctions. Therefore, the delay on the part of the Indian Railways to immediately utilise the lands available with it cannot afford a justifiable basis for unauthorised occupations either to flourish or seek further continuance thereof. The lands cannot be unauthorisedly occupied by someone or the other first and then set up a plea of long unauthorised occupation to be recognised, for it to be converted into a free hold right. Such lawlessness can never be encouraged. Most of the human miseries, as I find, arise out of lack of respect and adherence to law. The present problem projected by the petitioners herein is one such. 12. The learned counsel for the petitioners Sri K. Subrahmanyam placed strong reliance upon the judgment rendered by the Supreme Court in New India Assurance Company Ltd. V. Nusli Neville Wadia and another[1] in support of his contention that without establishing first, the right, title and interest of the Indian Railways and also its immediate necessity to put this very land to use, the Indian Railways cannot adopt a summary procedure prescribed under the Act and throw out the petitioners and their likes from the land in question. 13. I had the benefit of carefully studying the judgment rendered by the Supreme Court in New India Assurance Company Ltd. V. Nusli Neville Wadia and another referred to supra. I do not find that there is any such ratio deducible therefrom to hold that the Indian Railways must establish its valid title first before the Estate Officer and then proceed in the matter. On the other hand, to my mind, it is for the petitioners herein to produce such evidence as is normally admissible and reliable to establish their title. If there is a genuine dispute with regard to the right and title of a particular piece of immovable property, in such circumstances, perhaps falling back upon the option of summary eviction under the Act may not be the appropriate course. In the absence of any such bona fide dispute relating to the title of the land in question, it does not lie in the mouth of the petitioners to contend that the procedure laid down under the Act cannot be adopted by the respondents. 14. I do not find any merit in this writ petition. It stands dismissed, but however without costs. The respondents are at liberty to forthwith proceed and finalise further necessary action in terms of the notice issued by the Estate Officer under sub-section (2) of Section 4. _______________________________ NOOTY RAMAMOHANA RAO, J Date: October 11, 2011. BSB [1] (2008) 3 Supreme Court Cases 279