THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.18105 of 2006 (Dated : 02-08-2010) Between: T.Nanda Kumar S/o T.Satyanarayana R/o Malkajgiri, Hyderabad and others …Petitioners A n d Union of India rep. By its General Manager, South Central Railway, Secunderabad and another …Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.18105 of 2006 ORDER: This writ petition has been filed by the petitioners, who are eight in number, with a prayer to issue a writ of certiorari or any other appropriate writ, order or direction declaring the notices of the respondents bearing Nos.YW/277/WV/Eviction/06 dated 13-07-2006 as arbitrary, illegal and in violation of principles of natural justice. 2. The case of the petitioners as set out in the affidavit filed in support of the writ petition, in brief, is:- The petitioners purchased house plots in Survey No.174/1 near Safilguda railway station under the municipal limits of Malkajgiri, Ranga Reddy District under registered sale deeds in the year 1978. They constructed houses on the plots purchased by them and have been residing in those houses since the year 1986. They constructed houses after obtaining sanction plan from Malkajgiri Municipallity. One Kondaiah is one of the purchasers of the plots in Survey No.174/1. He has constructed a multi-storied apartment after obtaining sanction from the Municipality. The respondents, at no point of time, objected the constructions that have been made by the petitioners in the plots purchased by them. There has been some correspondence from the year 2000 onwards through their association M/s.Uttamnagar Welfare Association (a registered body, vide registration No.322 of 1976) with the railways, i.e., respondents herein and Mandal Revenue Officer, Malkajgiri when they came to know that some officials from the railways have been visiting and demarcating the area along with railway track of Safilguda railway station. A joint survey was conducted by the Railway Administration and the Mandal Revenue Officer. The Joint Survey transpires that Tippons were not available to conduct survey of the land in Survey No.174/1. Hence reference to the existing MG location for fixing the boundaries has been taken as per the village map from LC No.254 to Bridge No.752. The joint survey does not disclose of the petitioners occupying any portion of the railway land. While so, the petitioners have been served with notices under Sub Section (i) and Claue (b)(ii) of Sub Section (2) of Section 4 of the Public Premises (Eviction of Un-Authorized Occupants ) Act, 1971 (for brevity, the `Act’) . The petitioners are bona fide purchasers for valuable consideration and they have put up constructions after obtaining necessary permission from the concerned authorities, and therefore, invocation of the provisions of the Act is wholly unwarranted. For better understanding of the grievance of the petitioners, I deem it appropriate to refer paras 11 and 12 of the affidavit filed in support of the writ petition, which read as hereunder:- “11. The respondents do not have any right, title to the property which is sought to be claimed they have not acquired any land even if acquired they have in their possession to what they are entitled to. They have not established themselves as to what extent of land they are entitled to for which Joint Survey was conducted as such petitioner assert they are not the owners and they are entitled to any claim against these petitioners. At this distant time the respondents with a malafide intention without there being any encroachment to the Property have invoked the provisions of the Act 40 of 1971 which is not permissible and not entitled too as this Hon’ble Court as well as the Supreme Court in AIR 1982 SC page 1081 Full Bench of the SC have considered the provisions of the A.P.Land Encroachment act which is parimateria of act 40 of 1971. A similar question has risen before this Hon’ble Court as well as the Supreme Court in the above decision where the Supreme Court gave a clear findings that the summary provisions of the A.P.Land Encroachment Act which is Parimateria to the present impugned notices cannot be invoked where there is a bonafide dispute regarding the title to the property and hence summary provisions cannot be invoked between the parties and the possession of the property based on bonafide claim and there is un questionable long possession of the petitioners to the property in question i.e, involved which is alleged to be under the illegal occupation of the petitioners and involved in the present proceedings. Respondents have not proved their title to the property now sought to be claimed. 12. The Hon’ble Supreme Court in the above mentioned judgment has categorically gave findings that the provisions of the act which are summary in nature cannot be put to use and in a case of this nature, the Supreme Court also held that when there is an admitted encroachment or encroachment of recent origin or when it relates to the public Roads, Lanes, Streets, Paths, bridges, such things would not have all questions to be adjudicated upon since the right in respect of the properties/places would always vest with the Government. However, the property now under the occupation of the petitioners are housing plots which plots have been approved in the year 1964 vide sanctioned lay out of the year 1961/1964 and on various dates, the petitioners by themselves or their predecessors in title have purchased and constructed their houses to which power consumption charges, water consumption charges, property taxes are being collected by various Government agencies.” In nutshell, it is the contention of the petitioners that the respondents cannot take recourse to the summary procedure for eviction of the petitioners from the lands in their occupation. 3. Rule nisi came to be issued on 01.9.2006. An interim order came to be passed on the even date restraining the respondents from passing final orders. The order passed in W.P.M.P.No.22723 of 2006 reads as hereunder:- “ In the meanwhile, it is open to the second respondent to proceed with the enquiry initiated in pursuance of the impugned notice, however, no final orders shall be passed until further orders”. 4. The respondents entered appearance and filed counter. 5. When the vacate stay petition came up for hearing on 2.6.2010, the writ petition was directed to be listed for Final Hearing. Accordingly, the Writ Petition is listed under the caption `Final Hearing’. 6. Heard learned counsel appearing for the petitioners on 14.7.2010. There was no representation on behalf of the 1st respondent. Therefore, the matter was directed to be listed under the caption `For Orders’ on 21.7.2010, on which date the counsel appearing for the petitioners sought time to submit further arguments. Again, when the writ petition is listed on 28.7.2010, there was no representation on behalf of the respondents, and therefore, it was directed to be listed under the caption `For Orders’ on this day. 7. The counter of the respondents, in brief, is:- The petitioners, who have purchased the house plots made constructions beyond their plots encroaching the railway land. In the Joint Survey conducted by the Mandal Surveyor, Malkajgiri, in the year 2005, the encroached area of the railway land by the petitioners has been demarcated. The multi-storied building constructed by one sri Kondaiah is under litigation. The respondents are concerned only with the encroachment of railway land by the petitioners. The amenities granted by the concerned authorities to the encroachers cannot defeat the rights of the respondents to get them vacated. In the joint survey conducted on 23.5.2002 by the Mandal Surveyor and the railway authorities, the encroached portions of the railway property by the petitioners have been demarcated. The 2nd respondent issued notices to the petitioners indicating the extent of the land which they are in unauthorized occupation and directing them to appear before the ADRM, Hyderabad , Hyderabad Division along with evidence if they intend to produce. About 100 years back, the Nizam State Government acquired land from Secunderabad to Mudkhed station and accordingly railway boundary plans were made. The same was succeeded by the South Central Railway in the year 1966. The railway boundary lines tallies with the revenue record and village maps. Some people encroached railway land by shifting the boundary lines in Survey No.174/1. 8. Learned counsel appearing for the petitioners submits that the petitioners have been in occupation of the lands purchased under registered sale deeds for over a period of twenty years and even in case of some other petitioners , they have been in possession of the land for over a period of thirty years. The learned counsel refers the document under which the petitioners claim to have purchased various extents of house sites. It is the assertion of the petitioners that they have constructed the houses on the house plots purchased by them or their predecessors-in-interest under various registered sale deeds. Whereas, it is the case of the respondents that the petitioners under the guise of purchasing certain extents of house plots under different sale deeds, encroached on the railway property in Survey No.174/1 and put up some constructions such as compound wall etc. and in which case recourse taken by the respondents for eviction of the petitioners under the provisions of Public Premises (Eviction of Un-authorized Occupants) Act, 1971 is legal and proper. 9. Learned counsel appearing for the petitioners placing reliance on the judgment of the Supreme Court in Govt. of A.P v. T.Krishna Rao[1] and the decision of this Court in P.V.Reddy v. Estate Officer, Airports Authority of India, N.A.D., Hyderabad[2] contends that invocation of the provisions of the Act in the given facts and circumstances cannot be resorted to by the respondents. 10. In Govt. of A.P v. T.Krishna Rao ( 1 supra), the Supreme Court held that the power of the Government to evict summarily a person cannot be resorted to in a case where complicated question of title arises for adjudication. It is also held in the cited case that it not the duration, short or long, of encroachment, that is conclusive of the question whether the summary remedy prescribed by the Act can be put into relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. But duration of occupation is relevant in the sense that a person who is in occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bona fide claim to the property requiring an impartial adjudication according the established procedure of law. 11. I n P.V.Reddy v. Estate Officer, Airports Authority of India, N.A.D., Hyderabad ( 2nd supra), a learned Single Judge of this Court held that in cases where there is abona fide dispute with regard to title/boundaries of land belonging to the Government or its Corporations or companies, such disputes are outside scope of said Legislation , and authority constituted under said enactment cannot be said to have jurisdiction to embark upon the domain of the Civil Court for 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 Public Premises Act, 1971, which provides for a summary procedure to conduct inquiry and order for eviction and removal of constructions. 12. The issue involved in this writ petition is: Whether the petitioners encroached the site of the railway in the process of construction of the houses on the plots owned by them ? 13. POINT: Prior to initiation of proceedings under Act 40 of 1971, there was a joint inspection of the railway, municipal and revenue authorities. Basing on the joint inspection, the proceeding have been initiated under Act 40 of 1971 by the railway authorities on the premise that the petitioners have encroached on the railway land. Whereas, it is the contention of the petitioners that the boundary line has not been properly fixed and therefore, initiation of proceedings under the provisions of the Act is not warranted. 14. The material papers filed along with the writ petition contains a copy of the letter dated 15.3.2003 addressed to the President, Uttamnagar Colony Welfare Association. The text of the letter reads as hereunder:- “ The joint inspection of the Railway Municipal and Revenue have conducted on 23-08-200 and the respective departments have taken each copy of Joint Inspection. Therefore, you are hereby directed to approach the Railway Authorities with regard to any dispute for settlement.” 15. The above-referred contents of the letter indicates that joint inspection has been conducted and boundary has been fixed. What is challenged in the writ petition is the show-cause notice issued by the 2nd respondent under Sub Section (i) and Claue (b) (ii) of Sub Section (2) of Section 4 of the Public Premises (Eviction of Un-Authorized Occupants ) Act, 1971. The extent of land under unauthorized occupation has been indicated in the show-cause notice. They can, as well, submit their explanation to the show-cause notices and invite final orders. While passing final orders, the 2nd respondent has to take into consideration the documents under which the petitioners claim to have purchased open sites and the area under their occupation and whether the area in their occupation forms part and parcel of the railway property with reference to the boundary line fixed in the joint inspection. 16. With the above observation, the Writ Petition is disposed of. Till final orders are passed, pursuant to the show-cause notice issued under the provisions of the Public Premises (Eviction of Un-Authorized Occupants ) Act, 1971, both the parties shall maintain status quo existing as on this day with regard to the alleged encroached portion of the railway land. No costs. _____________________ B.SESHASAYANA REDDY, J Dt.02-08-2010 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.18105 of 2006 (Dated : 02-08-2010) [1] AIR 1982 SUPREME COURT 1081 [2] AIR 010 ANDHRA PRADESH 46