HON’BLE SRI JUSTICE NOUSHAD ALI W.P.No.4718 of 2002 DATED: Between: K.Satyam .. Petitioner And The Station Commander, Secunderabad and Estate Officer, Secunderabad and another. .. Respondent HON’BLE SRI JUSTICE NOUSHAD ALI W.P. No.4718 of 2002 ORDER: In substance, the eviction of the petitioner under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for brevity ‘the Act’) from the quarter No.53 of Asifnagar, situated at Sanjay Gandhinagar, Humayunnagar, Hyderabad, which was allotted to him while he was in military service, is under challenge in this writ petition. 2. To be precise, the 1st respondent by orders dated 19-06-1999 in Case No.115/3/SF/SSO/Golconda/94, held that the petitioner’s possession of the aforesaid premises as unauthorized and as a consequence of the same, directed eviction of the petitioner. The said order which was subjected to appeal in C.M.A.No.111 of 1999 in the Court of Chief Judge, City Civil Court, Hyderabad, since dismissed by orders dated 14-02-2002, this writ petition came to be filed. 3. There is a preceding history. The petitioner, while working as ‘Subedar’ in the field area, Indian Military Service, on his request, was allotted Quarter No.53 of Asifnagar Lines by an allotment letter dated 12-03-1987. The petitioner was retired from service on 01-10-1990 on attaining the age of superannation. He claims that this quarter is situated at Sanjay Gandhinagar, which is also known as Ex- servicemen Colony, wherein, 79 other quarters are also situated. All the quarters situated in the Sanjay Gandhinagar are in occupation of ex-servicemen. A representation was made through the Ex- serviceman Association to allot these quarters to the respective occupants, based on which, the matter was taken up with the State Government. The petitioner claims that initially his name was not included in the list of ex-servicemen in respect of whom the allotment was sought for. Subsequently, on his representation dated 01-02- 1991, his name was also included in the list as eligible for allotment of the quarter and the Headquarter, Secunderabad, informed the same by letter dated 20-02-1992 to the Director, Sainic Welfare. 4. However, the Station Staff Officer, Golconda, Hyderabad, after noticing that the petitioner, despite retired in December 1990, was still in occupation of the quarters, addressed an intra departmental letter dated 31-05-1991 indicating that he would be evicted from the premises, by 19-06-1991. The petitioner approached this Court and challenged the said order of the Station Staff Officer, Goncolda, in W.P.No.7469 of 1991. In the meanwhile, the letter dated 20-02-1991 of the Head Quarters, Secunderabad, under which, the name of the petitioner was included in the list for allotment of quarters along with others, was cancelled by proceedings dated 28-11-1991. Against this order, the petitioner approached this Court and filed a separate writ petition W.P.No.16357 of 1991. 5. Both the writ petitions, referred to above, were disposed of by a common order dated 17-03-1992. The relevant portion of the order in W.P.No.7469 of 1991 is as under: “………..What the petitioner is asking is only parity of treatment along with 79 occupants of other 79 other quarters. However, ultimately after discussions and after verification of the records, they find that the petitioner is not entitled to the allotment of the quarter. It is open to the respondents to pass orders to that effect. But at this stage they are not entitled to insist upon his vacating the quarters in pursuance of the orders dated 31-05-1991 nor or they entitled to delete the name already included in the list for discussions for the purpose of allotment by virtue of the second order 20-11-1991. In the result, W.P.No.7469 of 1991 is allowed. There shall be a direction to the respondents that the proceedings dated 31-05-1991 in 115/GoL/(18), passed by the 1st respondent, are quashed as it is arbitrary, illegal and unjust. The petitioner shall be permitted to continue in quarter No.53, situated at Asifnagar Lines, till the matter is finally decided treating him on par with other 79 occupants. Each party shall bear their own costs.” 6. Similarly W.P.No.16357 of 1991 was allowed in the following terms: “W.P.No.16357 of 1991 is allowed and the proceedings No.3661/Ex.S.M.Col (Army)/A, issued by the Head Quarters, Andhra Sub-Area, on 28-11-1991, is hereby quashed. It is made clear that the army is entitled to verify its own records and if the army finds that the quarters occupied by the petitioner is actually army married accommodation quarter, then it shall take appropriate action as per Rules. It shall not take any arbitrary action before the discussions with the State Government are completed with regard to the petitioner and the other 79 occupants of Asifnagar Lines. Each party shall bear its own costs.” 7. The writ appeals W.A.No.1377 and 1381 of 1991 filed against the aforesaid orders in the writ petitions, referred to above, were dismissed by order dated 25-11-1992. The Division Bench while dismissing the writ appeals observed as follows: “Reading through both these directions contained in both these two writ petitions, it is evident that it is for the authorities to find out as to which category the disputed quarter belongs to obviously, if it belongs to the category of ex-servicemen Colony or Sanjay Gandhinagar, the applicant will be treated on par with others, but not otherwise. Subject to the above directions, both the writ appeals are dismissed. No order as to costs.” 8. Thereafter, the proceedings to evict the petitioner under Section 4(1) (2) (b) (i) (i) of the Act were initiated and in that regard, issued a notice dated 21-04-1993. The petitioner again approached this Court and filed W.P.No.5649 of 1993 and the same was disposed of by order, dated 13-06-1993. The Division Bench while declining to interfere in the matter at the stage of ‘show cause notice’, directed that the petitioner was free to produce any evidence in support of his submissions. The relevant portion of the order is as under: “In view of the above, we dispose of the writ petition with the observation that the petitioner is free to take all his objections when he appears in person as required by the notice. He is free to produce any evidence in support of his submission and the Estate Officer may consider such evidence which, according to him, is relevant in passing final orders. Petitioner shall be permitted to continue in occupation of the premises for a period of one month after the final order is communicated to him, if the order happens to be against the petitioner, he may file an appeal against the order and seek appropriate orders from the appellate authority in the meantime.” 9. In pursuance of the aforesaid show cause notice, dated 21-04-1993, enquiry was conducted and orders dated 08-10-1994 were passed in Case No.115/SF/SSC/Golkonda/94, whereby, the petitioner was found to be unauthorized occupant and accordingly ordered to be evicted from the premises. The petitioner invoked the appellate remedy and filed C.M.A.No.221 of 1994 in the Court of the Chief Judge, City Civil Court, Hyderabad. The appellate Court felt that the Estate Officer failed to trace the history of the quarters comprised in ex-servicemen colony, which were under the occupation of the retired military people. The appellate Court, therefore, remanded the matter for fresh consideration with a direction to consider in detail the history of all those quarters and the disputed quarter No.53 from the date of police action against the Government of Nizam, Hyderabad State and how they are not similarly situate and to evict or not to evict the petitioner. The appellate Court also directed that the petitioner should be continued in the quarter till then. 10. Pursuant to the orders of the appellate Court in C.M.A.No.221 of 1994, dated 30-06-1998, the 1st respondent-Station Commander, Secunderabad and Estate Officer, issued notice to the petitioner and conducted enquiry. The petitioner participated in the enquiry with the assistance of an advocate. The 1st respondent considered the evidence Exs.A-1 to A-9 adduced on behalf of the Estate Officer and Exs.B-1 to B-9 adduced on behalf of the petitioner. The 1st respondent also visited the site on 01-06-1999 to ascertain the location of the quarter No.53. The 1st respondent on a consideration of the evidence and on his personal observation, after tracing out the history of the quarters, held that quarter No.53 belongs to the military authorities and it is an independent and separate quarter unconnected with other quarters. Also the 1st respondent took into consideration the fact that the quarters located in ex-servicemen colony are assessed by the Municipal Corporation and assigned with door numbers and provided with electricity and water supply connections. The 1st respondent accordingly found that the disputed quarter No.53 is meant for service personnel and cannot be converted into private accommodation. Accordingly, the 1st respondent found the petitioner’s occupation as unauthorized and directed his eviction by order dated 19-06-1999. 11. The petitioner again approached the appellate Forum and filed C.M.A.No.111 of 1999. The appellate Court considered the matter in detail with reference to the evidence and material produced before it and confirmed the findings of the 1st respondent and accordingly dismissed the appeal by order dated 14-02-2002. The present writ petition is field against this order passed in C.M.A.No.111 of 998, dated 14-02-2002. 12. Sri M.V.S. Suresh Kumar, learned counsel appearing for the petitioner and Sri Idamkanti Koti Reddy, learned counsel for the 1st respondent, advanced elaborate submissions. 13. The learned counsel for the petitioner while drawing attention to the various orders, referred to above, in particular, the observations made in the successive writ petitions and writ appeals, submitted that the observations made therein should be construed as having created a right in favour of the petitioner as a lawful occupant of the premises and therefore, so constrained, the petitioner is not liable to be evicted under the provisions of the Act 1971. Elaborating the arguments, the learned counsel further submitted that the petitioner is liable to be treated on par with the other 79 occupants of the quarters without resorting to discrimination and the case of the petitioner should not be refused to be considered qua the other 79 occupants of other quarters. The core contention of the learned counsel is that the disputed quarter No.53 is also located in the same Ex-servicemen Colony as evident from the report of the advocate-commissioner and, therefore, he contended that the orders impugned are unsustainable. 14. Per contra, the learned counsel appearing for the 1st respondent submitted that the petitioner who retired from service in 1990 has no legal right to be in occupation of the quarters. He submitted that this Court in the successive cases filed by the petitioner observed that enquiry could be conducted as to whether the disputed quarter No.53 is also liable to be allotted to the petitioner and directed conducting necessary enquiry before orders could be passed against the petitioner. He further contended that the petitioner was continued in occupation of the premises in obedience to the orders passed by this Court in different writ petitions, referred to above, and in particular, the observations of this Court, dated 30-06-1993, in W.P.No.5649 of 1993 which makes it evident that the Estate Officer could consider such evidence which, according to him, is relevant in passing final orders and that “the petitioner should be permitted to continue in occupation of the premises for a period of one month after final order is communicated to him if an order happens to be against the petitioner.” He further contended that enquiry was conducted by following the prescribed procedure and the petitioner was rightly ordered to be evicted. He, therefore, contended that the petitioner is not entitled to relief in this writ petition. 15. In the light of the aforesaid narration of facts and circumstances, the point that arises for consideration is whether the petitioner is an un- authorized occupant and if so whether liable to be evicted under the provisions of the Act? 16. It is not in dispute that Quarter No.53 was allotted to the petitioner when he was in service. It is also not in dispute that on attaining the age of superannuation, he was retired from service on 01-10-1990. It is also not in dispute this Court by a common order dated 17-03-1992 in W.P.No.7469 of 1991 and W.P.No.16357 of 1991, directed the authorities to continue the petitioner till the matter was finally decided by treating him on par with 79 other occupants and that the 1st respondent was also given liberty to verify its own records as to whether the said quarter was actually army married accommodation quarter and to take appropriate action as per Rules. Similarly, in the orders dated 25-11-1992 in W.P.No.1377 and 1381 of 1991, a learned Division Bench of this Court made it clear that it was for the authorities to find out as to which category the disputed quarter belonged to and that if it belonged to the category of ex-servicemen colony or Sanjay Gandhinagar, the petitioner should be treated on par with others. It is also not in dispute that in a later order, dated 13-06-1993, in W.P.No.5649 of 1993, a learned Division Bench of this Court directed that the petitioner should be permitted to continue in occupation of the premises for a period of one month after the final order was communicated to him and if the order happened to be against the petitioner, he could file an appeal and seek appropriate orders from the appellate authority. It is also not in dispute that subsequent thereto, enquiry was conducted and order of eviction dated 08-10-1994 was passed, and pursuant to the orders of remand dated 30-06-1998 in C.M.A.No.221 of 1994, again enquiry was conducted as per the directions in the appellate order. It is also not in dispute that the petitioner had notice of the said enquiry, and he participated in the enquiry with the assistance of an advocate. Thereupon, the 1st respondent passed orders dated 19-06-1999, whereunder the petitioner was directed to be evicted and the same was confirmed by orders dated 14-02-2002 in C.M.A.No.111/1999. 17. As noted above, the core contention advanced on behalf of the petitioner is that the petitioner, by virtue of the orders of this Court in the successive writ petitions and writ appeals, has acquired a right to be in occupation of the quarter and therefore, he cannot be treated as unauthorized occupant of the premises. According to him, refusal to consider his case on par with the other 79 occupants is discriminatory and the disputed quarter since located in the same ex-servicemen colony, he cannot be subjected to discrimination qua others. 18. To appreciate the above contention, it is necessary to examine the relevant provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. 19. The Act was enacted to provide for speedy and summary eviction of unauthorized occupants from the premises of the Central Government and various other organizations as enumerated in the definition in Section 2 (e) of the Act. 20. Under Section 3 (a) of the Act, Estate Officer is vested with power to order eviction of such persons who are in unauthorized occupation. This power is vested notwithstanding the powers vested on him under Section 4 of the Act. 21. Under Section 4 of the Act, if the Estate Officer is of opinion that any person is in unauthorized occupation of any public premises and that he should be evicted, he should give a notice in the prescribed manner and under Section 5 of the Act, if, after considering the cause shown by such person in pursuance of notice under Section 4 of the Act the Estate Officer is satisfied that the public premises is in unauthorized occupation, he should make an order of eviction and record the reasons therefor. The Estate Officer may direct that such premises should be evicted on any specified date and if the person in unauthorized occupation fails to comply such order, the Estate Officer is authorized to take possession and for that purpose, he may use such force as may be necessary. 22. Under Section 5-A of the Act where any building or other immovable structure or fixture has been created, placed or raised on any particular premises without authority, the Estate Officer is authorized to remove or caused to be removed such constructions. Similarly, under Section 5 (b) of the Act, the Estate Officer is authorized to order demolition of unauthorized constructions. Under Section 5 (c) of the Act the Estate Officer is authorized to make an order directing the sealing of the premises or other constructions before or after making order of demolition under Section 5 (b) of the Act. 23. In the present case, the 1st respondent invoked the provisions of Section 4 of the Act and gave notice and conducted enquiry. After giving notice to the petitioner, eventually orders of eviction were passed. There is no complaint with regard to the procedure followed by the 1st respondent and with regard to the opportunity provided to the petitioner before passing the orders of eviction. Further, it is not the complaint of the petitioner that the premises does not belong to the Central Government and that it is not public premises as defined under Section 2 (e) of the Act. 24. In the aforesaid admitted factual scenario, dehors the orders of this Court, referred to above, the occupation of the premises posterior to retirement of the petitioner on 01-10-1990 cannot be treated as authorized. Whoever occupies a public premises without authority and whoever occupies such premises with authority, but continues to remain in occupation after the expiry of such authority, is liable to be treated as an unauthorized occupant and such unauthorized occupation is liable to be summarily evicted under the provisions of the Act. The term “Authority” as used by the Legislature in Section 2 (g) of the Act must be understood in the sense which the context indicates. So understood the term ‘authority’ used in Section 2 (g) of the Act must be understood as conferment of right on a person for occupation and enjoyment of the premises. Such conferment may be by way of grant or any other mode of transfer which may include licence, lease and the like including every legal means by which property may be passed from one hand to another. In the instant case, admittedly no such authority has been given to the petitioner. Therefore, in the absence of such authority, it cannot be said that the orders of eviction passed by the 1st respondent are illegal. 25. In the context of the submission that the petitioner was permitted to stay in the premises by virtue of the Court orders and so continued in possession, it has to be examined whether it could be said that the petitioner is an unauthorized occupation or whether he has acquired any right to be in occupation of the premises by virtue of the said orders. 26. By order dated 25-11-1992 in W.A.Nos.1377 and 1381 of 1991 which arose out of the orders dated 17-03-1992 in W.P.Nos.7469 of 1991 and 16357 of 1991, a learned Division Bench while dismissing the writ appeals clarified that it was for the authorities to find out as to which category, the disputed quarter belonged and if it belonged to the category of ex-servicemen colony or Sanjaygandhinagar, the appellant should be treated on par with others but not otherwise. In a subsequent order dated 13-06-1993 in W.A.No.5649 of 1993, a learned Division Bench made it clear that “The petitioner shall be permitted to continue in occupation of the premises for a period of one month after the final order is communicated to him, if the order happened to be against the petitioner, he himself file an appeal and seek appropriate orders from the appellate authority in the meantime.” 27. It is therefore, evident from this order that the continuance of the petitioner was restricted, contingent and subjected to the final orders. Thereafter, the appellate authority, by order dated 30-06-1998 in C.M.A.No.221 of 1994 directed that the petitioner should be continued in the quarter until fresh orders were passed. Accordingly, orders were passed on 19-06-1999. In effect, the occupation of the premises by the petitioner under the aforesaid orders of the Courts, might be considered as permissive possession and the same were based on equity, but it is settled that equity must follow the Law. Therefore, the orders of this Court cannot be understood as ‘authority’ within the meaning of Section 2 (g) of the Act. 28. The contention that the orders of this Court in the successive writ petitions and writ appeals should be construed as creating a legal right in favour of the petitioner is not acceptable. Courts cannot create rights but only adjudicate upon and enforce the rights of the parties. In my sincere opinion, this Court in the orders referred to above, in fact, did not create any indefeasible right in favour of the petitioner to be in occupation of the premises. In my honest opinion, the observations in the cases, on the aspect of treating the petitioner on par with other occupants, cannot be understood as conferring any right on the petitioner to continue to hold the premises in his occupation irrespective of the statutory mandates. 29. The learned counsel however urged that the petitioner cannot be discriminated qua other persons and relied upon the orders of this Court referred to above. It is urged that the petitioner being the occupant of the premises located in the same colony is a similarly situated person like others and thus, the petitioner cannot be discriminated. The 1st respondent after enquiring into the history of the quarters, after personal inspection and on noticing that amenities provided by the respective authorities to different quarters and that Ex.A-1, letter, addressed by the Deputy Commissioner of Municipal Corporation, Hyderabad to the 1st respondent indicating that house No.53 belongs to military authorities and no such municipal door number was allotted to the Quarter, held that the premises in question is independent and separate from the other 79 quarters in respect of which recommendations were made. 30. The petitioner, however, sought to rely on Ex.B-6, report, of the advocate commissioner appointed by this Court. In the said report, it is stated inter alia, that the distance between the premises No.53 and the adjoining premises bearing No.10-4-501 is about 12 to 15 feet and there is a fence separating these two premises. It is observed that both are situated side by side in the same locality and in the same row. It is also stated that the other premises or buildings in the locality were allotted house numbers by the Municipal Corporation of Hyderabad and amenities were provided except the Quarter No.53 and that there is a school building in between Quarter No.53 and the other Quarter Nos.48 and 52. The report, in my considered view is not free from ambiguity. There is no explanation how there can be a fence separating the premises bearing No.53 and the other premises bearing No.10-4-501, if all the Quarters are located in the same colony. 31. A finding as to the disputed premises is a pure question of fact. The finding recorded by the 1st respondent that Quarter No.53 is not part of other quarters was confirmed on appreciation of the evidence in the appeal also. It cannot therefore be said that the petitioner is a similarly situated person like others and that he has been discriminated. 32. In the aforesaid analysis, there is no valid ground to interfere with the orders impugned in the writ petition. 33. The writ petition is liable to be dismissed and is accordingly dismissed. There shall be no order as to costs. _____________ April 2010 KVR