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Wednesday, July 6, 2016

"The Government cannot evict the persons in occupation of the Government land un-authorisedly in exercise of its powers under Sections 6 and 7 of the Andhra Pradesh Land Encroachment Act, where the complicated questions of title arise for decision. The summary remedy, for eviction which is provided for Section 6 of the Act can be resorted to by any Government only against persons who are in un-authorised occupation of any land, which is "the property of the Government", but not in respect of the persons who have bona fide claim to litigate and they cannot be evicted saved by due process of law. The summary remedy prescribed by Section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title".

PETITIONER:
GOVERNMENT OF ANDHRA PRADESH

Vs.

RESPONDENT:
THUMMALA KRISHNA RAO & ANR.

DATE OF JUDGMENT16/03/1982

BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
VARADARAJAN, A. (J)
SEN, AMARENDRA NATH (J)

CITATION:
 1982 AIR 1081  1982 SCR  (3) 500
 1982 SCC  (2) 134  1982 SCALE  (1)180


ACT:
     Andhra  Pradesh   Land  Encroachment  Act, 1905-S.  6-
Provision for  summary eviction of unauthorised occupant of
government land-Existence  of bona  fide  dispute  regarding
title between  government  and occupant-Resort to  summary
remedy-Whether valid and legal?



HEADNOTE:
     The Andhra Pradesh Land  Encroachment  Act,  1905 was
enacted to  check  unauthorised  occupation  of  government
lands. Under  s. 2  of the  Act all  public roads,  streets,
lands, paths,  bridges etc,  are  deemed  to  be  government
property. Any  person who  is in  unauthorised occupation of
any land  which is  the property of the government is liable
to pay assessment as provided in s. 3 of the Act. Section 5
provides that any person, liable to assessment shall also be
liable to  pay an additional sum by way of penalty. Under s.
6(1) the  Collector, Tahsildar or Deputy  Tahsildar has the
power to summarily evict any person unauthorisedly occupying
any land for which he is liable to pay assessment under s. 3
after issuing a show cause notice as provided in s. 7.
     Some time between the years 1932 and 1937 certain lands
were acquired  by the  Government of  Nizam of Hyderabad for
the benefit  of a University. A question having arisen as to
whether three  specific plots  of land had been included in
the acquisition, the University filed a suit in 1956 praying
for the eviction of the occupant. This suit was dismissed in
1959 on the ground  that one  of the  plots  had  not been
acquired by  the Government  and in respect of the other two
plots the  University had  failed to  prove  its  possession
within 12  years before the filing  of the  suit. The trial
court found that the heir of the original owner of the plots
had encroached on the said two plots in 1942. The judgment
of the trial court was confirmed by the High Court in 1964.
The State Government was not a party to those proceedings.
     The  University  activated the  State  Government for
summary eviction  of the heir of the original owner from the
three plots  of lands. The Tahsildar  initiated action and
passed an  order of  eviction under  s. 6(1)  of the  Act on
December 15,  1964. Appeals  against the order were rejected
by the Collector in  1965 and by the Revenue Board in 1968.
The respondents who purchased the plots during the pendency
of the appeal before  the Revenue  Board were impleaded as
parties
501
to the proceedings on the death of the heir of the original
owner and.  their appeal  from the  decision of the Revenue
Board was rejected by the Government in 1973
     The respondents  challenged the  order of eviction by a
petition under Art. 226  which was  dismissed by  a  Single
Judge of  the High Court who held that the question of title
to the property could not properly be decided by him under
Article 226  but the  fact that there was  a finding by the
Civil Court  that there was  encroachment  by the  alleged
encroacher was sufficient  to entitle the  Government  to
initiate  action   under  the provisions   of  the Land
Encroachment Act.
     The appeal of  the  respondents  was  allowed  by the
Division Bench which held that a dispute relating to as far
back as 1942 could not be dealt with in summary proceedings
under the  provisions of  the  Land  Encroachment  Act. The
summary remedy could not be resorted to unless there was an
attempted encroachment or encroachment of  a very  recent
origin; nor   could  it   be  availed of  in cases  where
complicated questions of title arose for decision.
     Dismissing the appeals,
^
     HELD: (I) The summary  remedy for eviction provided by
s. 6  of tho  Act can  be resorted to by the Government only
against persons who are  in unauthorised  occupation of any
land which  is the property of the Government. If there is a
bonafide dispute  regarding the title of  the Government to
any  property, the  Government cannot take  a  unilateral
decision in  its own  favour that tho property belongs to it
and on that basis  take  recourse  to the  summary  remedy
provided  by   s  6.   In  the instant  case there was
unquestionably a   genuine  dispute  , between  the  State
Government and the respondents as to whether the three plots
of  land   bad been   the  subject-matter   of acquisition
proceedings taken  by the  then Government of Hyderabad, and
whether the  University for  whose benefit  the plots were
alleged to have been acquired had lost title to the property
by operation of the law of limitation. The respondents had a
bonafide claim to litigate  and they  could not  be evicted
save  by   the due  process  of  law. The  summary  remedy
prescribed by  s. 6  was not the kind of legal process which
was suited  to adjudication  of  complicated  questions  of
title. That procedure was, therefore, not the due process of
law for evicting the respondents. [506 H; 507 A; 507 D-H]
     2. The  view of  the Division  Bench that the  summary
remedy provided for by s. 6 could not be resorted to unless
the alleged  encroachment was  of  "a  very  recent  origin"
cannot be  stretched too  far. It is 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 operation for evicting  a person. What is 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  bonafide. Facts  which raise a bonafide dispute
of title between the Government and the occupant must be ad-
judicated upon by the ordinary courts of law. The duration
of occupation  is relevant in the sense that a person who is
in occupation of a property openly for
502
an appreciable length of  time can  be taken prima facie to
have  a bona  fide  claim  to the  property  requiring  an
impartial  adjudication  according   to   the established
procedure of  law. In  the instant case, the long possession
of the respondents and their predecessors-in-title raised a
genuine dispute between them  and  the Government  on the
question of  title. Whether  the title to the property had
come  to  be  vested  in  the  Government  as  a  result  of
acquisition and whether the  heir of the original owner had
encroached upon that property and perfected  his title  by
adverse possession   had  to be  decided  in a  properly
constituted suit. [508 A-D; 508 E-G]



JUDGMENT:
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2031 of
1977.
     Appeal by special Leave  from the judgment and  order
dated the  30th June,  1977 of the Andhra Pradesh High Court
in Writ Petition No. 905 of 1975.
   WITH
   Civil Appeal Nos. 136 & 137 of 1978.
     From the  judgment and  order dated the 30th June, 1977
of the Andhra Pradesh High Court in Writ Petition Nos. 796 &
922 of 1975 respectively.
     Ramachandra Reddy, Advocate General and B. Parthasarthi
for the Appellants
     P. Rama  Reddy and A.V.V. Nair for Respondent No. 2 in
CA. 2031, R. 3 in 136 & R. 2 in 137.
     A. Subba Rao for RR I & 2 in CA. 136/78.
     A.K. Sen, e. Rajendra  Choudhury, G.R.  Subbaryan,  I.
Koti Reddy  and Mahabir Singh for  Respondent No.  1 in CA.
137/78.
     B. Ranta Rao for Respondent No. 1 in CA. 2031/77.
     The Judgment of the Court was delivered by
     CHANDRACHUD, C.J. these three  appeals arise  out of a
common judgment dated June  30. 1977 of a Division Bench of
the High Court of Andhra Pradesh, setting aside the judgment
of a  learned single  Judge dated  November 18, 1975 in Writ
Petitions Nos. 1539 of 1974 and  798 of 1975. Civil Appeal
No. 2031  (NCM) of  1977 is by special leave while the other
two appeals are by certi-
503
ficate granted by the High Court  The question which these
appeals involve is whether the appellant, the Government of
Andhra Pradesh, has the  power to  evict  the respondents
summarily in  exercise of  the power conferred by the Andhra
Pradesh Land Encroachment Act, 1905. This question arises on
the following facts:
     We are  concerned in these appeals with three groups of
lands situated in Habsiguda,  Hyderabad East  Taluk, Andhra
Pradesh. Those lands are: R.S. No 10/1, which corresponds to
plot No. 94 admeasuring 10 acres and 2 guntas, R.S. No. 10/2
which corresponds to plot No. 104 admeasuring 9 acres and 33
guntas; and  R.S. Nos. 7, 8  and 9 which correspond to plot
No. 111 admeasuring 26 acres and  14 guntas. These  lands
belonged originally  to Nawab Zainuddin and after his death,
they devolved  on Nawab Habibuddin.  Sometime between the
years 1932  and 1937,  certain lands  were acquired  by the
Government of  the Nizam  of Hyderabad under the  Hyderabad
Land Acquisition  Act of 1309 Fasli, the provisions of which
are in material respects  similar  to those  of  the Land
Acquisition Act,  1894. The  lands  were  acquired  for the
benefit of   the  osmania   University  which  was then
administered as a Department of the Government of Hyderabad.
The University acquired an  independent legal status of its
own under  the osmania University  Revised  Charter,  1947,
which was promulgated by the Nizam. E
     The question  whether the aforesaid three plots of land
were included  in the acquisition notified by the Government
of Nizam  became a  bone of  contention between the parties,
the osmania University contending that they were so included
and that  they were  acquired for its benefit and the owner,
Nawab Habibuddin,  contending that  the three plots were not
acquired. On  February 13, 1956 the osmania University filed
a suit (O.S. No. 1 of 1956) against Nawab Habibuddin, in the
City Civil  Court, Hyderabad,  claiming that the three lands
were acquired  by the  Government for its benefit and asking
for his eviction from those lands. That suit was dismissed
in 1959 on the ground that plot No. 111 was not acquired by
the Government and that  though plots Nos. 94 and 104 were
acquired, the  University failed  to  prove  its  possession
thereof within twelve years  before the filing of the suit.
In regard  to plots Nos. 94 & 104, it was found by the trial
court that  Habibuddio had  encroached thereupon in the year
1942, which  was more than twelve years before the filing of
the suit. Civil Appeal No. 61 of 1959 filed by
504
the  University against  that judgment  was  dismissed  on
January 24,  1964 by  the  High Court which  affirmed the
findings of  the trial court. The  State Government was not
impleaded as a party to those proceedings.
     On May 8, 1964 the osmania University wrote a letter to
the Government of Andhra  Pradesh, requesting it  to take
steps for the summary eviction of persons who were allegedly
in unauthorised occupation of the 3  plots. On December 8,
1964, the  Tahsildar, Government  of Andhra  Pradesh, acting
under section 7 of the Land Encroachment Act, 1905, issued a
notice to  Nawab Habibuddin  to vacate the  lands  and  on
December 15, 1964 the Tahsildar passed an order evicting him
iron the  lands. The  appeal  filed  by Habibuddin  to the
Collector was  dismissed in  1965 and the appeal against the
decision of the Collector was dismissed by the Revenue Board
in 1968 During the pendency of the appeal before the Revenue
Board, the  respondents purchased  the plots from Habibuddin
for valuable  consideration and on the death of Habibuddin,
they were  impleaded to the proceedings  before the Revenue
Board. They  preferred an  appeal from the decision  of the
Revenue Board to  the  Government  but  that appeal was
dismissed on November 26, 1973.
     On March 19, 1974, the respondents filed Writ Petitions
in the High Court of Andhra Pradesh challenging the order by
which they  were evicted  from the plots summarily under the
provisions of  the Act of 1905.  The learned  single  Judge
dismissed those Writ Petitions observing:
 "The question whether the lands with which we are
     concerned in  the writ  petition were  acquired by the
     Government or   not  and the  question whether the
     Government had  transferred its title to the University
     or not  are questions  which cannot properly be decided
     by me  in an  application under  article 226  of the
     Constitution. The appropriate remedy of the petitioners
     is to file a suit to establish their title."
The learned Judge held that:
 "Though  the title of  the Government  is not
     admitted by  the alleged encroacher, there is a finding
     by the Civil
505
     Court  that  there was  encroachment  by the  alleged
     encroacher.  That is  sufficient  to   entitle the
     Government to  initiate action  under the provisions of
     the Land Encroachment Act."
     Three appeals  were preferred  to The  Division  Bench
against the  judgment of  the learned  single Judge,  two of
them being  by the  petitioners in one writ petition and the
third by  the petitioner  in the  other writ  petition. The
Division Bench, while setting aside the  judgment  of the
learned single Judge, held:
 "The question whether the lands. belong to osmania
     University or  not will  have to be decided as and when
     the Government  comes  forward  with  a  suit  for the
     purpose. Even  if we  assume for  the  purpose  of our
     judgment, as  we are  not pronouncing any conclusion as
     to whether  the  land  vested  in the  Government  or
     University, that  the  Government is  the owner, the
     dispute going  back from 1942 - cannot be dealt with in
     summary  proceeding   under  section   7  of  the Land
     Encroachment Act."
The summary  remedy provided  by section 7, according to the
Division Bench, cannot be  resorted to "unless there is an
attempted encroachment or encroachment of  a very  recent
origin" and  further, that  it cannot be availed of in cases
where complicated questions of title arise for decision.
     We are  in respectful  agreement with the view taken by
the Division Bench, subject however to the observations made
herein below.  The Andhra  Pradesh  Land  Encroachment Act,
1905, was  passed in order "to provide measures for checking
unauthorised occupation of lands  which are the property of
Government." The  preamble to  the Act says that it had been
the practice to check unauthorised occupation of lands which
are the property of  the Government  "by the  imposition of
penal or  prohibitory assessment or charge" and since doubts
had arisen  whether such  practice was authorised by law, it
had  become  necessary to  make  statutory  provisions for
checking unauthorised  occupations. Section 2 (1) of the Act
provides that  all  public  roads,  streets,  lands,  paths,
bridges, etc.  shall be deemed to be the property belonging
to Government, unless it  falls under clauses (a) to (e) of
that section.  Section 2  (2) provides that all public roads
and streets
506
vested in  any public  authority shall be deemed  to be the
property of  the Government by section 3 (1), any person who
is in  unauthorised occupation of any land  which  is the
property of  Government, is  liable  to pay  assessment  as
provided in  clauses (i) and (ii) of that section. Section S
provides that  any person  liable to  pay  assessment  under
section 3  shall also  be liable,  at the  discretion of the
Collector, to  pay an  additional sum  by  way of  penalty.
Sections 6  (1) and  7, which  are relevant for our purpose,
read thus:
     "Sec. 6  (1)    Any person unauthorisedly occupying any
   land for  which  he is  liable  to pay
   assessment under section 3   may  be
   summarily  evicted by  the  Collector,
   Tahsildar or  Deputy Tahsildar  and any
   crop or other product raised on the land
   shall be  liable to forfeiture and any
   building or other construction  erected
   or anything   deposited  thereon  shall
   also, if  not removed  by him after such
   written   notice   as   the  Collection
   Tahsildar. or  Deputy Tahsildar may deem
   reasonable, be  liable  to forfeiture.
   Forfeitures under  this section shall be
   adjudged by the Collector, Tahsildar or
   Deputy Tahsildar  and  any property  so
   forfeited shall  be disposed  of as the
   Collector, Tahsildar or Deputy Tahsildar
   may direct."
"Sec. 7.    Before taking proceedings under section
   5  or   section  6,  the  Collector  or
   Tahsildar or  Deputy  Tahsildar  as the
   case may  be shall cause to be served on
   the person reputed to be in unauthorised
   occupation of land being the property of
   Government, a notice specifying the land
   so occupied and calling  on him to show
   cause  before  a  certain  date  why  he
   should not be proceeded  against  under
   section S or section 6."
     It seems  to us  clear from  these provisions  that the
summary remedy for eviction which is provided for by section
6 of  the Act  can be  resorted to  by the  Government only
against persons who are in
507
unauthorized occupation of any land which is "the property
of Government". In regard  to properly described  in sub-
sections (I)  and (2)  of section  2, there can be no doubt,
difficulty or dispute as to the title of the Government and,
therefore, in respect of such property, the Government would
be free to take  recourse to the summary remedy of eviction
provided for in section 6. A person who occupies a part of a
public road,  street, bridge,  the bed of the sea and the
like, is  in unauthorised  occupation of  property which  is
declared by  section 2 to be the property of the Government
and, therefore, it is in  public  interest  to  evict him
expeditiously which  can only  be done by resorting  to the
summary remedy provided by the Act. But section 6 (1) which
confers the  power of  summary eviction on  the  Government
limits that  power  to cases in  which  a  person  is  in
unauthorised occupation of a land "for which he is liable to
pay assessment under section 3''. Section 3, in turn, refers
to  unauthorised  occupation  of  any  land  "which  is the
property of Government" If there is a bond dispute regarding
the title  of the  Government to any property the Government
cannot take a unilateral decision in its own favour that the
property belongs  to it,  and on  the basis of such decision
take recourse  to the  summary remedy  provided by section 6
for evicting the person who is in possession of the property
under a bona fide claim or title. In the instant case, there
is  unquestionably  a  genuine dispute between  The  State
Government and the respondents as to whether The three plots
of land were the  subject-matter of acquisition proceedings
taken by  the then  Government of  Hyderabad and whether the
osmania University.  for whose benefit the plots are alleged
to have been acquired, had lost  title to  the property by
operation of  the law  of limitation.  The suit filed by the
University was dismissed on the ground of limitation, inter
alia, since Nawab Habibuddin was found to have encroached on
the properly  more than twelve years before the date of the
suit and  the  University  was not  in possession  of the
property at  any time  within that  period. Having tailed in
the suit,  the University  activated the Government to evict
the Nawab  and his  transferees summarily, which seems to us
impermissible. The  respondents have  a bona  fide claim  to
litigate and  they cannot be evicted save by the due process
of law. The summary  remedy prescribed by section 6 is not
the kind of legal process which is suited to an adjudication
of  complicated questions  of title. That  procedure is,
therefore, not the due process of  law  for  evicting the
respondents.
508
     The view  of the Division Bench that the summary remedy
provided for  by section  6 cannot be resorted to unless the
alleged encroachment is of "a very recent origin", cannot be
stretched too  far That was also  the view  taken  by the
learned single Judge him  self in  another  case  which  is
reported in  Meherunnissa Begum v. State  of A.P. which was
affirmed by  a Division Bench.(2) It  is 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  operation for evicting a  person. What is
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. Facts " which raise a
bond fide  dispute of  title between  the Government and the
occupant must  be adjudicated upon by the Ordinary courts of
law.   The   Government  cannot   decide   such   questions
unilaterally  in   its own  favour  and  evict any  person
summarily on  the basis of such  decision. But duration of
occupation is  relevant in the sense that a person who is hl
occupation of a property openly for an appreciable length of
time can  be taken, prima facie, to have a bonafide claim to
the property  requiring an  impartial adjudication according
to the established procedure of law.
     The conspectus  of facts  in the instant case justifies
the view  that the  question as to the title to  the three
plots cannot  appropriately be decided in a summary inquiry
contemplated by sections 6  and 7  of the  Act.  The long
possession of  the respondents and  their  predecessors-in-
title of  these plots  raises a genuine dispute between them
and the Government on the question  of title, remembering
especially   that   the  property,   admittedly,   belonged
originally to  the family  of Nawab Habibuddio from whom the
respondents claim  to have  purchased it. The question as to
whether the  title to  the property came to be vested in the
Government as  a  result  of  acquisition  and the  further
question whether  the Nawab  encroached upon  that  property
thereafter and perfected his  title by adverse  possession
must be decided in a properly constituted suit. May be, that
the Government may succeed in establishing its title to the
property but,  until that is done, the respondents cannot be
evicted summarily.
     For these reasons,  we  uphold  the  judgment  of the
Division Bench of the High Court and dismiss these appeals
with costs.
509
     We do  not propose to pass  any orders  on Civil Misc.
Petitions A Nos. 18974, 18975, 18976, 18497, 18498 and 18499
of 1981 which have been filed for adding certain parties as
respondents to these appeals. Those petitions involve the
question of  a Will  alleged to have  been  made  by  Nawab
Habibuddin in  favour of  Entashamuddin alias Anwar Siddiqui
and his elder brother. We cannot  go into  the validity of
that Will and other incidental questions in these ap peals.
H.L.C.  Appeals dismissed.
510



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