IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SIXTEENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION NO : 10745 of 2002 Between: Gosha Mahal Baradari Masonic Building Committee Rep by its Secretary Dr.M.V.Ram Seshu S/o Dr.M.V.S.Sastry. Hyderabad ..... PETITIONER AND 1 State Of A.P Rep By its Secreatary PWD Secretariat , Hyderabad. 2 The Estate Officer,Hyd & Sec'bad Khairtabad , Hyderabad. 3 The Executive Engineer PWD R & B Central Building Division Hyderabad. .....RESPONDENT(S) 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 a Writ , order or direction in the nature of Mandamus or otherwise declaring that the action of the repondent in initating proceedings before the Estate Officer , Hyderbad & Sec'bad in file No.B1/4709/78 Dt: 31-5-1997 as confirmed by the Chief Judge , City Civil Court, Hyderabad in CMA No.118/97 Dt: 12-4-2001 is illegal , Unconstitutional ,arbitrary and ultravires A.P.Public Premises (Eviction of Unauthorised Occupants ) Act and consequently declare that the same is untenable and be pleased to pass such other orders . Counsel for the Petitioner:MR.T.S.PRAVEEN KUMAR Counsel for the Respondent No.: GP FOR ROADS & BUILDINGS The Court made the following : THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION NO : 10745 of 2002 ORDER: This Writ Petition is filed seeking a Mandamus declaring the orders passed in file No.B1/4709/78 dated 31.5.1997 as confirmed by the Chief Judge, City Civil Courts, Hyderabad in C.M.A.No.118 of 1997 dated 12.4.2002 as arbitrary, illegal and contrary to the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1968, (for short ‘the Act). It appears that an edifice known as “Gosha Mahal Baradari” along with vast open land was under the control and possession of Hyderabad Military authorities and they were using it as a Mess and Stores. One of the Masonic Lodges had taken on hire the first floor portion of the building and was holding its meetings. Later, when there was a proposal to transfer Gosha Mahal Baradari and the entire open land from the Military authorities to the Civil authorities, Sir Terrance Keyes, who was the then President of the Masonic Committee submitted a Memorial to H.E.H the Nizam to give the building along with some open land for practicing Free Masonary and for parking of members’ vehicles. The Executive Council recommended the proposal, whereupon H.E.H the Nizam issued a Firman dated 1st Jamadi-ul-Awal 1350 H (1930) which on translation reads as follows: “The above mentioned building (Gosha Mahal Baradari) on the stipulated conditions of the council, be handed over to Masonic Lodge.” According to the petitioner Sir Terrance Keyes raised huge funds to a tune of Rs.60,000/- to renovate and to carry out the necessary repairs and construction for the purpose of Free Masonary. Finally, in 1933, H.E.H. the Nizam at a ceremony of dedication, handed over the same and in his reply H.E.H. the Nizam said “……I now declare the Gosha Mahal Baradari open and deliver it into your charge to maintain for the purpose of Free Masonary in my dominions. In conclusion I take the opportunity to announce that in commemoration of the opening ceremony of this historic building, I intend to present a painting of mine to the Lodge in the near future.” The portrait of H.E.H the Nizam is installed at the main entrance. Thus, since 1933, i.e., from the date of dedication and gift of the Goshamahal Baradari Masonic Lodge viz., Deccan No.20 Morland No.25 and Hyderabad No.50 have been practicing Free Masonary and have been also holding their regular meetings in it. While that being so, in 1966, the Estate Officer of the Government of Andhra Pradesh issued a notice dated 27.9.1966 seeking eviction of the Free Masonary Lodges from the building under Section 4 (1) of the Act. The committee submitted its explanation and also filed the Firman claiming title to the building. As nobody appeared on behalf of the Government on the date fixed for enquiry, the Estate Officer dismissed the claim of the Government for default in proceedings No.A/1035/66 in the presence of the counsel for the Committee and the same attained finality as the Government did not carry it in appeal under the provisions of the said Act. Later in the year 1968, the Government of Andhra Pradesh issued G.O.Ms.No.706 P.W.D dated 20.4.1967 whereby it revoked the Firman of 1930 and directed the Masonic Lodges to hand over vacant possession of the building. The Masonic Lodge filed W.P.No.4453 of 1968 before this Court of A.P., assailing G.O.Ms.No.706 dated 20.4.1967 and obtained stay. When the matter came up for hearing before a Division Bench on 26.3.1971, this Court passed the following order:- “The learned Principal Government Pleader represented that the government had decided not to evict the petitioner until they proceed in accordance with law preferably by instituting a suit in the Civil Court because the title to the property is in question. In view of this representation, we do not think it necessary to decide the question arising in this case. The writ petition, therefore, subject to the above said observation is dismissed as withdrawn. In the circumstances, however, we made no order as to costs.” In the year 1975, Gosha Mahal Baradari Masonic Building Committee was registered as a Society bearing registrationNo.664/1975 under the Hyderabad Societies Registration Act. Presently, according to its byelaws, the masters and secretaries of the above named three lodges are the ex-officio members and each lodge elects three members to the Managing Committee. Thus, the 15 members elect amongst themselves the office bearers. There was a lull for a period of four years and again in the year 1975, the Executive Engineer, P.W.D (R & B), Central Buildings Division, Hyderabad, issued a notice in proceedings No.D4/994/M/D1 dated 24.7.1975 directing the building committee to hand over vacant possession within 30 days of the receipt of the said notice basing upon G.O.Ms.No.706 dated 28.4.1967, which had been questioned by the Committee in W.P.No.4453 of 1968. Again the Committee filed W.P.No.4438 of 1975 and obtained stay. Finally the matter was heard by a Division Bench. Though the Division Bench allowed the writ petition and quashed the impugned notice as without jurisdiction gave findings on law against the Committee, and said that the Government was not precluded from taking necessary action under the provisions of the Act. Being aggrieved by the said judgment of the Division Bench dated 4.11.1978 as the Division Bench had recorded certain findings against the interests of the Committee, an appeal was carried to the Supreme Court of India in Civil Appeal No.1110 of 1979 and the Supreme Court of India by order dated 12.2.1979 observed as follows: “As the High Court has already quashed the impugned notice by its order, the petitioner cannot have any grievance. If fresh notice of eviction is served, the petitioner may raise such legal objection, as may be available to the petitioner. Petition dismissed.” However, the present enquiry was initiated on the basis of the notice No.B1/4709/78 dated 18.1.1979 issued by the Estate Officer under the Act. In response to the aforesaid notice, the petitioners filed appropriate reply mentioning the aforesaid notice as well as various legal contentions and also filed written submissions before the primary authority i.e., Estate Officer. The Estate Officer however passed order of eviction dated 31.5.1997. Aggrieved by the said order, petitioners preferred an appeal before the appellate authority i.e., Chief Judge, City Civil Court, Hyderabad and the same was also dismissed by the order under challenge. Hence, writ petition. Learned Senior Council Sri D. Prakash Reddy appearing for the petitioners strenuously contended that this is a building which was conferred on the petitioner society by way of a Firman issued by H.E.H. the Nizam way back in the year 1931. When the G.O.Ms.No.706 dated 28.4.1967 was issued and that was challenged before this Court in W.P.No.4453 of 1968, the writ petition was closed, in view of the undertaking given by the learned Principal Government Pleader, saying that the Government has decided not to evict the petitioner, until they proceed in accordance with law, preferably by instituting a suit in the Civil Court, because the title of the property was in question. Thereafter, nothing happened for a period of five years and again the provisions of the Act were invoked and a notice was issued on 24.7.1975 by the Executive Engineer and that was again challenged before this Court in W.P.No.4438 of 1975 was disposed of by making certain observations against the petitioner. When the matter was carried before the Supreme Court, the order as noted above was passed. Therefore, it must be deemed that all the questions were left open for being decided by the authority, whenever it was made necessary. Whereas in the impugned proceedings, the learned Chief Judge, City Civil Court, has erroneously made an observation that the question as to the Firman and the undertaking given by the Government Pleader and that the Firman was not affirmed by the succeeding sovereign Government were not considered though raised by the petitioners herein stating that they were all considered in the earlier WPs. Therefore, the order passed by the learned Chief Judge, City Civil Court, is liable to be set aside. The Learned Government Pleader appearing for the respondents supported the order passed by the learned Chief Judge, City Civil Court, Hyderabad, and further submitted that all these questions raised by the petitioner have attained finality in the writ petition filed by the petitioners before this court in W.P.No.4438 of 1975. Therefore, the order passed by the learned Chief Judge, City Civil Court, Hyderabad, in C.M.A.No.118 of 1997 cannot be said to be arbitrary or illegal and does not call for any interference from this Court. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the material made available on record. The controversy that requires to be resolved in this writ petition is whether the learned Chief Judge, City Civil Court, Hyderabad, was right in holding that all the issues raised by the petitioner have attained finality in view of the judgment rendered in W.P.No.4438 of 1975 or not. In this regard, at the cost of repetition, the orders rendered by this Court in W.P.No.4453 of 1968 and W.P. No.4438 of 1975 and the order passed by the Apex court in Civil Appeal No.1110 of 1979 dated 12.2.1979 needs to be noticed which read as under. W.P.No.4453 of 1968:- “The learned Principal Government Pleader represents that the Government has decided not to evict the petitioner until they proceed in accordance with law preferably by instituting a suit in the Civil Court because the title to the property is in question. In view of this representation we do not think it necessary to decide the question arising in this case. The Writ Petition, therefore, subject to the above said observation, is dismissed as withdrawn. In the circumstances however, we make no order as to costs.” W.P. No.4438 of 1975:- “ The counsel representing the Government had made a wrong concession that there was a dispute as to the title without noticing effect that there was no recognition by the succeeding sovereign power. After due enquiry and investigation the Government rightly came to the conclusion that the occupation was an unauthorized one. The Government has every right to get the petitioner evicted from the building as provided under Section 11 of the Act and the Government need not go to a civil court. However the impugned notice has to be quashed on a different ground. It was issued by the Executive Engineer, P.W.D., R & B, Hyderabad Central Buildings Division viz., the 2nd respondent. As per Section 4 of the Act, it is the Estate Officer that has to give a notice in the manner provided calling upon the person who is in unauthorised occupation of the public premises to show cause why an order of eviction should not be made. Therefore, if the Government wants to get the petitioner evicted under the Act, it has to adhere to the provisions of the Act and the Executive Engineer P.W.D R & B has no power to issue the notice. The impugned notice shows that the Government intended to summarily evict the petitioner on the ground that the building has been unauthorisedly occupied. The argument before us also proceeded on the same basis. Since this impugned notice is not in accordance with the provisions of Section 4 of the Act the same has to be quashed. In the result, the writ petition is allowed and the notice No.D4/994/M/Dn. Dated 24.7.75 issued by the 2nd respondent is quashed. The does not however preclude the Government from taking necessary action under the provisions of the Andhra Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 1968. There shall be no order as to costs.” Civil Appeal No.1110 of 1979 (Apex Court) “As the High Court has already quashed the impugned notice by its order, the petitioner cannot have any grievance. If fresh notice of eviction is served, the petitioner may raise such legal objection, as may be available to the petitioner. Petition dismissed.” There is no necessity of going into all the details. It is suffice to notice that the Estate Officer while passing the order infact considered this aspect and observed that the Government cannot rely on the findings rendered in the order in W.P.No.4438 of 1975. Since the findings are obiter and set aside by the Supreme Court in Civil Appeal No.1110 of 1979 dated 12.2.1979 as per which the petitioner is at liberty to raise all the pleas available to it. Unfortunately, though the said finding was not the subject matter of challenge in C.M.A, the learned Chief Judge, City Civil Court, Hyderabad observed in this case “that the Executive Engineer, P.W.D and R & B Central Building Division, Hyderabad issued a notice No.D4/994/M/Dn, dated 24.7.1975, the same was questioned by the appellant in W.P.No.4438 of 75. The writ petition was allowed and quashed the notice. The High Court made some observations on question of facts. Aggrieved by the same, the appellant has preferred Special Leave Petition in the Supreme Court. The Special Leave Petition was dismissed”. It is further stated that the observations of the High Court have become final as the Special Leave Petition directed against the said judgment was dismissed by the Supreme Court. This is the area, which is, not probably understood by the appellate court. The order passed in W.P.No.4453 of 1968 was taken away in W.P.No.4438 of 1975 by making certain observations. However, being aggrieved by the observations made by this Court in W.P.No.4438 of 1975, when the matter was taken to the Supreme Court, the Supreme Court passed orders as noticed above. Therefore, it may be right for the learned Chief Judge, City Civil Court, Hyderabad to say that all the observations of the High Court have become final as the Special Leave petition against the judgment was dismissed and the petitioner could not have raised any objection in the original proceedings under the Act initiated afresh. I am of the opinion that the learned Chief Judge, City Civil Court, Hyderabad has not properly understood the purport of the order of the Supreme Court. In fact, when such observations which are against the interests of the petitioner they carried the matter to the Supreme Court. The main observations made by this Court in W.P.No.4438 of 1975 was firstly the undertaking given by the Government Pleader by which W.P.No.4453 of 1968 was disposed of and the “Firman” was not approved by the succeeding Sovereign Government etc. I am of the opinion that the learned Chief Judge, City Civil Courts, Hyderabad, erred in not properly considering these aspects. In view of the judgment of the Supreme Court in Civil Appeal No.1110 of 1979 dated 12.2.1979, all the issues are left open and the petitioner is at liberty to raise the same and it is the duty of the court to answer them properly on consideration of the evidence placed before it as per law. I am of the opinion that such course of action has not been adopted by the learned Chief Judge, City Civil Court, Hyderabad while disposing of C.M.A No.118 of 1997. Therefore, the writ petition is allowed and the order made in C.M.A.No.118 of 1997 dated 12.4.2002 is set aside and the matter is remanded to the learned Chief Judge, City Civil Court, Hyderabad, for fresh disposal in accordance with law after considering all the issues that may arise in the case without reference to the observations/findings recorded by this Court in earlier WP No.4438 of 1975 dated 4.11.1978. No order as to costs. ________________ C.V.RAMULU,J. Date:16.07.2009. Gk/cvrk HONOURABLE SRI JUSTICE C.V.RAMULU W.P.NO.10745 OF 2002 Date:16.7.2009 Gk/cvrk.