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
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
