Andhra Pradesh High Court - Amravati
Nama Minni Sathya Bharathi vs The Union Of India on 3 May, 2024
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
1
NJS, J
WP_21064 & 21066_2023
APHC010409672023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3209]
(Special Original Jurisdiction)
FRIDAY ,THE THIRD DAY OF MAY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE NINALA JAYASURYA
WRIT PETITION No
Nos: 21064 & 21066 of 2023
W.P.No.21064 of 2023
Between:-
Nama Minni Sathya Bharathi .... Petitioner
And
Union of India, Rep.by its Joint Secretary,
Ministry of Railways,, New Delhi & Others. ..... Respondents
Counsel for the petitioner : Mr.Saranu Phani Teja,
Mr. C.R.Kalyan
for Ms.Aiswarya Nagula
Counsel for the respondents : Mr.Y.V.Anil Kumar
(Standing Counsel for Railways)
Mr.M.Manohar Reddy
(Standing Counsel for Municipal
Corporation)
G.P. for Municipal Administration
COMMON ORDER:
rders dated 07.08.2023 passed by the 4th Challenging the Orders respondent / Estate Officer under the provisions of the Public Premises (Eviction of Unauthorised nauthorised Occupants) Act (hereinafter referred to as 'PPE Act'), these writ petitions have been filed on various grounds. 2
NJS, J WP_21064 & 21066_2023 For the sake of convenience, the basic facts in W.P.No.21064 of 2023 are referred to.
2. The case of the petitioner in W.P.No.21064 of 2023, in brief, as per the averments made in the affidavit may briefly be stated thus:
The petitioner and her ancestors are in peaceful possession of an extent of 357.42 sq.yds., situated in Survey No.533/5, Door No.1-1-28, Ward No.2, Bapatla Town. Originally the petitioner's husband's grandfather one Mr.Kaligiri Chengiah purchased the said property vide registered Document No.541/1952 dated 09.04.1952 and in a family partition, the above said property fell to the share of petitioner's father-in-law, who gifted the same to the husband of the petitioner vide Document No.3579/2009 dated 22.09.2009. The petitioner's husband with a view to construct a residential building in the said property, requested the 5 th respondent vide letter dated 01.12.2009 to issue 'No Objection Certificate' for construction of a residential building near Railway boundary and the same was approved vide Letter dated 03.02.2010, with a condition that "16.15 meters of clear gap should be maintained from the centre line of the nearest track to the nearest edge of the proposed residential building as shown in the approved site plan No.B/WNOC/01/2010." Thereafter, the petitioner's husband made an application dated 04.02.2010 to the 6 th respondent (Sic. 7th respondent) seeking approval of the building plan and vide proceedings dated 10.02.2010, the 6th respondent (Sic.7th respondent) approved the same.
Thereafter a residential building was constructed in terms of the approved plan, without any deviation. The petitioner's husband died on 14.01.2014 3 NJS, J WP_21064 & 21066_2023 and her name was mutated in the records and the petitioner is in peaceful possession of the said property and paying the property tax etc.
3. While things stood thus, the 4th respondent issued Form-A Notice No.B/W.274/I/BPP/Land dated 04.07.2023 under Sub-Section(1) and Clause
(b) (ii) of Sub-Section (2) of Section 4 of the PPE Act and called upon the petitioner to appear before him on or before 11.07.2023 to show cause why an Order of eviction should not be passed. The petitioner attended the personal hearing, as the 4th respondent had given a deaf ear to the submissions made by her, a letter through Registered Post on 14.07.2023 along with the relevant documents was sent and the same was received by the 4th respondent on 17.07.2023. Thereafter, the 4th respondent issued Form-B Notice dated 07.08.2023 under Sub-Section (2) of Section 5 of the PPE Act, which is the subject matter of challenge. Contentions:
4. Mr.Saranu Phani Teja, learned counsel for the petitioner inter alia contended that the said proceedings / notice is contrary to Law and not sustainable. He submits that the very invocation of the provisions of the PPE Act is not tenable and the same are not applicable to the facts of the present case. He submits that to the Form-A Notice dated 04.07.2023, the petitioner submitted a Reply dated 11.07.2023 and without considering the same, the impugned Form-B Notice dated 07.08.2023 was issued. He submits that though the impugned proceedings / Notice refers to a joint survey by the authorities, no intimation, much less a notice in respect of the same was 4 NJS, J WP_21064 & 21066_2023 issued to the petitioner and the survey was conducted without any opportunity and behind the back of the petitioner.
5. Referring to the averments in the counter-affidavit and denying the participation of the petitioner in the said survey, the learned counsel submits that the petitioner's husband constructed a residential building as per the plan approved by the 7th respondent-Municipality, and the plea that the construction was made contrary to the 'No Objection Certificate' issued by the Railway Authorities, is not tenable. He also denies the averment that the land in which the petitioner's husband constructed building is required for laying third line and states that as per the enquiries made by the petitioner, it is for a loop line and the entire third line is already completed. He further submits that there is a bonafide dispute with regard to the ownership of the land and in such circumstances, the eviction of the petitioner summarily is legally impermissible. He submits that the petitioner cannot be simply dispossessed under the guise of the PPE Act and in view of the dispute with regard to title and possession, the Railways has to approach the competent Civil Court having jurisdiction. To buttress his submissions, the learned counsel places strong reliance on the following decisions;
(i) Podduturi Vasantha Reddy v. Estate Officer, Airports Authority of India, N.A.D1
(ii) Roshan Minoo Patel & Others v. Union of India(UOI) and Ors.,2
(iii) Shree Bajrang Hard Coke Manufacturing Corporation v. Ramesh Prasad3 1 2009(6) ALD 524 2 2011(5) ALD 626 5 NJS, J WP_21064 & 21066_2023
(iv) S.R.B. Gailkwad v. The Union of India4
(v) Government of Andhra Pradesh v. Thummala Krishna Rao 5
(vi) State of Rajasthan v. Padmavati Devi (Dead) by Lrs.,6
(vii) Express Newspapers Pvt.Ltd., v. Union of India(UOI)7
6. Mr.Kalyan, learned counsel appearing in W.P.No.21066 of 2023, while supporting the contentions advanced by the learned counsel in W.P.No.21064 of 2023, submits that the petitioner purchased land along with a tiled house in the year 2022 through a registered document No.2795 of 2022 dated 06.04.2022 and got mutated in his name by the 7th respondent. He submits that prior to that, the petitioners' vendors are in possession from 1963 and in view of the long standing possession in respect of the property situated in S.No.543/1 bearing D.No.1-2-183, Bapatla Town, the respondent-Railway-authorities have to approach the Civil Court, to establish their claim if any, but not under the PPE Act. While stating that after long lapse of time, the petitioner cannot be termed as an encroacher and eviction proceedings in a summary manner cannot be initiated, the learned counsel contends that invocation of the provisions of the PPE Act in the facts and circumstances, is wholly misconceived. The learned counsel also places reliance on the decision in Kaikshosrou 3 2002 SCC OnLine Jhar 211 4 AIR 1977Bom 220 5 AIR 1982 SC 1081 6 1995(2) UJ 69 7 AIR 1986 SC 872 6 NJS, J WP_21064 & 21066_2023 (Chick) Kavasji Framji v. Union of India 82019(20) SCC 705 and seeks to allow the writ petition by setting aside the notice / order dated 07.08.2023.
7. On the other hand, while refuting the said contentions, Mr.Y.V.Anil Kumar, learned counsel for the respondents / Railways advanced arguments stating that the Railways are not interfering with the property, for which 'NOC' was issued. He, however submits that in violation of the 'NOC', the petitioner illegally occupied the railway land. Referring to Ex.P5, dated 03.02.2010, he contends that as per the said proceedings, the petitioner's husband was granted 'NOC' for construction of a residential building, subject to the condition that "16.15 meters of clear gap should be maintained from the centre line of the nearest track to the nearest edge of the proposed residential building" and in the joint survey conducted by the authorities, it was found that the construction was made at a distance of "8 meters" from the centre line of the nearest track. He submits that pursuant to the Notice in Form-A issued to the petitioner, she attended the personal hearing and after perusal of the documents pertaining to the subject matter land, a joint survey of the concerned authorities was conducted on 22.07.2023. He submits that the petitioner though participated in the survey, had refused to affix her signature on the survey report. In this regard, the learned counsel also draws the attention of this Court to the photographs stated to be of the petitioner, taken at the time of the conduct of the said survey. 8 (2019) 20 SCC 705 7 NJS, J WP_21064 & 21066_2023
8. Contending that the land in respect of which the Notices are issued is "public property" and referring to Section 2 (e) of the PPE Act, he further submits that the provisions of the PPE Act are applicable and the contentions contra are not tenable. He submits that the respondent- authorities are justified in invoking the provisions of the PPE Act and after giving due opportunity in compliance with the principles of natural justice, the notice / order under challenge was issued. He submits that against the order impugned in the writ petition, appeal lies under Section 9 of the PPE Act and the invocation of the jurisdiction of this Court under Article 226 of the Constitution of India directly without availing the statutory remedies is not tenable. He submits that the matter, in fact, is squarely covered by a decision of the Hon'ble Division Bench of the erstwhile High Court of Andhra Pradesh at Hyderabad in South Central Railway v. Mutha Navin Krishna9. Making the said submissions, the learned counsel urges for dismissal of the writ petition.
9. Supporting the arguments advanced on behalf of the Railway- authorities to the extent of conducting survey, it is submitted on behalf of the 7th respondent that the petitioner participated in the survey and in the survey, it was found that the petitioner encroached upon the Railway land.
10. In reply to the arguments advanced by the learned counsel for the respondents, the counsel for the petitioner submits that the Railway- 9 (2007) 2 ALD 726 8 NJS, J WP_21064 & 21066_2023 authorities issued Form-A notice referring to KM 354/4, 354/39 and Form-B notice referring to only 354/4 and the extents as 33.25 sq.meters and 27.02 sq.meters respectively, which goes to show that the Railways have no proper land records. He submits that in the light of the various legal precedents cited earlier, the action of the Railway- authorities in resorting to summary proceedings of eviction is illegal, unjust and without jurisdiction. Accordingly, he seeks the reliefs as prayed for.
11. Insofar as the arguments in W.P.No.21066 of 2023 are concerned, the learned counsel for the Railways reiterated the contentions advanced in respect of the W.P.21064 of 2023. He submits that the petitioner has no right, much less, a legal right to remain in occupation of the land of the Railways and invocation of the provisions of the Act cannot be found fault. He also contends that it is not a case of boundary dispute which requires adjudication by the Civil Court.
12. The counsel for the respondent No.7 submits that the petitioner had not obtained any building permission from the Municipality in respect of the subject matter property in W.P.No.21066 of 2023. Consideration by the Court:
PPE Act is a special enactment and the statutory provisions, which are of immediate relevance reads as follows:9
NJS, J WP_21064 & 21066_2023 Section 2(c) - 'Premises' means any land or any building or part of a building and includes (i), the garden, grounds, outhouses, if any, appertaining to such building or part of a building
(ii)......
Section 2(e) - 'Public premises' means:
(1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of the Central Government, and includes any such premises which have been by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorized Occupants) Amendment Act, 1980) under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat.
Section 2(g) - 'unauthorized occupation' means, in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.
13. In the light of the above definitions, 'Premises' includes land and as per Section 2 (e) 'Public Premises' includes land of the Central Government.
14. On appreciation of rival contentions and perusal of the record, the main point for consideration is whether the provisions of the PPE Act are applicable and can be invoked, in the facts and circumstances of the case? 10
NJS, J WP_21064 & 21066_2023
15. Contending in the negative, the learned counsel for the writ petitioners seek the reliefs as prayed for, by relying on some decisions, which in the considered opinion of this Court are not of much aid, more particularly for the reasons stated hereinafter:
16. Decisions in Shree Bajrang Hard Coke Manufacturing Corporation and S.R.B.Gaikwad (referred to above) are of persuasive value only. The decisions in Roshan Minoo Patel and Podduturi Vasantha Reddy (referred to above) are rendered by learned Single Judges under the provisions of the PPE Act. There is no dispute with regard to the ratio laid down in Thummala Krishna Rao's case (referred to above), wherein the issue is with reference to the A.P.Land Encroachment Act. In Padmavathi Devi case referred to above, the Hon'ble Supreme Court was dealing with a case under the Rajasthan Land Revenue Act. Express Newspapers Pvt. Ltd., (referred to above), is a case where unauthorized basement was constructed in the property leased out to the petitioner therein on perpetual lease by the Government and the Hon'ble Supreme Court held that eviction of such premises by resorting to summary proceedings on the ground of unauthorized construction is without jurisdiction as the said construction would not attract the definition under Section 2 (g) of the PPE Act.
17. In Kavasji Framji referred to supra, the Hon'ble Supreme Court while examining the facts of the said case, inter alia held as follows:
"49. At this stage we consider apposite to take note of the Constitution Bench decision of this Court wherein this Court after examining and upholding the constitutional validity of the PP Act in Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd. [Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., (2002) 8 SCC 182] reiterated the view taken 11 NJS, J WP_21064 & 21066_2023 by this Court in an earlier decision of Northern India Caterers (P) Ltd. v. State of Punjab [Northern India Caterers (P) Ltd. v. State of Punjab, AIR 1967 SC 1581] that the PP Act does not create any new right of eviction but it only creates a remedy for a right which already exists under the general law. In other words, it was held that it only provides a remedy which is speedier than the remedy of a suit under the general law."
18. In the said case, there were earlier rounds of litigation between the parties which went upto the Hon'ble Supreme Court and while taking into account six reasons referred to in the judgment, the order of the High Court dismissing the writ petition against the notice issued under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act was set aside. From a close reading of the above referred judgment, it may be deduced that the Hon'ble Apex Court while reiterating that the remedy under the Public Premises (Eviction of Unauthorized Occupants) Act, 1980 is speedier than the remedy of a suit under the general Law, however held that "when there is a bonafide long standing dispute, recourse to remedy of summary procedure under the Public Premises Act is not sustainable."
19. In the cases on hand, as seen from the reply to the notice issued the PPE Act, the petitioner in W.P.No.21064 of 2023 took a stand that a building was constructed by leaving "6 Feet" outside the compound wall to the Railway track side. Even as per the admitted case of the petitioner, in terms of 'NOC' dated 03.02.2010, "16.10 meters of clear gap should be maintained from the centre line of the nearest track to the nearest edge of the residential building of the petitioner as shown in the approved site plan No.B/WNOC/01/2010." Only issue that needs to be determined, in the considered opinion of this Court, is the factual aspect as to whether the 12 NJS, J WP_21064 & 21066_2023 construction was made in terms of the above mentioned 'NOC' which can be determined / verified by conducting a Joint survey of the concerned officials of the Railways, Revenue, Town Planning Departments in the presence of the writ petitioner by giving advance notice. Be that as it may.
20. Coming to the other provisions of the PPE Act :-
Section 4(1) contemplates issue of notice to show cause against the order of eviction, if the Estate Officer has information that any person is in unauthorised occupation of any public premises and that he should be evicted. Section 5A of the Act deals with power to remove unauthorized constructions etc., and Section 5B (1) inter alia contemplates passing an order of demolition of unauthorised construction. As per proviso to Section 5 B, no order under the said sub-section shall be made unless the person concerned has been given, by means of a notice (of not less than seven days) served in the prescribed manner, a reasonable opportunity of showing cause why such order should not be made. Section 5 C gives power to seal unauthorized constructions and Section 6 provides for disposal of property left on public premises by unauthorised occupants. Section 7 grants power to require payment of rent or damages in respect of public premises. As per Section 8, an Estate Officer shall, for the purpose of holding any inquiry under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) any other matter which may be prescribed.
Section 9 provides for appeals against the orders of the Estate Officer made in respect of any public premises under (Section 5 or Section 5 B) (or Section 5C) or Section 7 to an appellate Officer who shall be the District Judge of the District in which the public premises are situate or such other judicial officer in that District of not less than ten years standing as the District Judge may designate in this behalf.
Section 15 stipulates that no Court shall have jurisdiction to entertain any suit or proceedings inter alia in respect of the eviction of any person who is in unauthorized occupation of any public premises and the other matters set out therein. 13
NJS, J WP_21064 & 21066_2023
21. The Act is a special enactment. A Constitutional Bench of the Hon'ble Apex Court upheld the validity of the Act in Kaiser-I-Hind(P) Ltd. V. National Textile Corpn. (Maharashtra North) Ltd.(2002 (8) SCC 182). The basis of the statute is that Government property requires special consideration and eviction from such property should be subject matter of special Laws.
22. In the present case, the allegation is that the petitioners had encroached the Railway Land and as per Section 2 (c) of the Act, 'Premises' includes 'land'. Therefore the invocation of provisions of the Act is legally sustainable. Further, the Act provides for remedy of appeal under Section 9 of the Act to the District Judge. Thus, the Act apart from stipulating issuance of notice under Section 4 and passing orders there on under Section 5, safeguards the interest of the persons against whom proceedings are initiated under PPE Act by providing an appeal against the order of the Estate Officer to the District Judge of the District or such other Judicial Officer in that District of not less than ten years standing as the District Judge may designate in this behalf. Thus the Legislature has taken due care to protect the rights of the parties to check arbitrary exercise of powers or to decide genuineness of Railway's claims.
23. In C.Sudhan Redy v. South Central Railway & Others10, a learned Judge of the erstwhile High Court of Andhra Pradesh at Hyderabad was dealing with a matter arising under the PPE Act and was not inclined to interfere with the order passed by the Appellate Authority viz., the District 10 2006 (3) ALD 720 14 NJS, J WP_21064 & 21066_2023 Judge. A contention was raised on behalf of the writ petitioners therein that the subject matter land does not form part of the land acquired by the Railways, the petitioners cannot be treated as unauthorized occupants under the provisions of the Act and it has no application. The learned Judge while opining that there cannot be any denial that under the provisions of the Act, the enquiry into the question whether a person is in unauthorized occupation of a Public Premises or not is of summary nature, held that the learned District Judge having considered the documents marked before him, for cogent reasons came to correct conclusion and the finding is unassailable.
24. The Hon'ble Division Bench of the erstwhile High Court of Andhra Pradesh at Hyderabad in Mutha Navin Krishna's case (which is binding more particularly in view of the parity) dealing with the provisions of the PPE Act, inter alia, opined that when an alternative remedy of appeal is available under the Act, entertaining a writ petition under Article 226 of the Constitution of India by the learned Single Judge, is not sustainable. In the said case, the Estate Officer issued notices to the writ petitioners under Section 4(1) of the Act requiring them to vacate the land comprised in R.S.No.1961/2 from 14/2 to 14/11-12 between the Kakinada Town and Kakinada Port Railways Station. They filed a Joint Reply dated 20.02.2006 and claimed that in view of the joint survey report dated 31.12.2005, the Railways do not have any right over the land comprised in Town Survey No.1961/1 measuring Ac.22.00, which was owned by one Mandal 15 NJS, J WP_21064 & 21066_2023 Suryanarayana and Others and, therefore, they cannot be treated as unauthorized occupants of public premises. Thereafter, the Estate Officer passed Order dated 31.03.2006 and called upon them to vacate the premises within 15 days with a stipulation that if they fail to do so, then they will be evicted by use of such force, as may be necessary.
25. The said Order of the Estate Officer was questioned by way of writ petition and the learned Single Judge allowed the same while holding that since the demarcation / identity of the land is seriously in dispute, unless the dispute is resolved by the competent authority and the claim of the respondents that the land in occupation of the petitioners forms part of T.S.No.1691/2 is established, the definition of 'Public Premises' under 2(e) of the Act is not attracted. The Hon'ble Division Bench after referring to a catena of decisions inter alia held that the case of the writ petitioners does not fall within the ambit of the exceptions carved out by the Hon'ble Supreme Court in Harbanslal Sahnia v. Indian Oil Corporation11, to the Rule of alternative remedy and that it was legally impermissible for the learned Single Judge to have entertained the writ petition and quash the order of eviction. The Hon'ble Division Bench further granted liberty to the writ petitioners to avail the remedy of appeal under Section 9 of the Act, while opining as follows:
"14. On the issue of efficacy of the alternative remedy of appeal, it is apposite to observe that the appellate authority i.e., the District Judge is entitled to examine all the issues and questions of fact and law including the one whether 11 (2003) 2 SCC 107 16 NJS, J WP_21064 & 21066_2023 the Estate Officer had the jurisdiction to initiate proceedings against the respondents under Section 4(1) of the 1971 Act."
26. A Division Bench of High Court of Madras in Union of India v. Principal District Judge, Vellore 12 , dealing with a matter under the provisions of PPE Act inter alia held that the Act was enacted to provide a speedy machinery for eviction of unauthorised occupants of public premises by way of summary eviction. The Hon'ble Division Bench while opining that the very object of the Act enabling the Estate Officer to evict the unauthorized occupants from the public premises by way of summary eviction proceedings is to protect the public property and to discourage the encroachments, as any further delay in evicting the encroachers would be a great danger, at Para No.6 held as follows:
"It is settled law that no person has right to encroach, by erecting any structure or otherwise, a place which is reserved or earmarked for public purpose and the public authorities are entitled to initiate action under the provisions of the Act to evict the unauthorized occupants."
27. In Utran Se Besthan Railway Jhopadpatti Vikas Mandal v. Government of India, the Hon'ble Supreme Court in Special Leave Petition (Civil) Diary No(s).19714 of 2021 dated 16.12.2021 filed against the judgment of the High Court of Gujarat in W.P.(PIL) No.222 of 2014 was dealing with a matter where the issue is with regard to unauthorized occupation of the Railway property and obstruction to the Public Project of linking of Railway Line between the Surat-Udhna upto Jalgaon (Third Railway Line Project). That project is being obstructed by unauthorized 12 AIR 2007 Mad 278 17 NJS, J WP_21064 & 21066_2023 structures on the Railway property. While directing notice, the Hon'ble Supreme Court inter alia observed that "there is a special enactment which enables the Railway authorities to protect its property. That is its statutory and public trust obligation. It was open to the concerned authority to invoke the provisions of special enactment including the Public Premises Act.". The Hon'ble Supreme Court also issued certain directions which inter alia include the following:
(i) The respondent - Western Railway do immediately issue notices to the occupants of the concerned structures which are falling within the belt which is required immediately for commencing the remaining project work by giving two weeks' time to the concerned occupant(s) to vacate the respective premises;
(ii) In respect of the remaining land owned by Railways, even though it may not be immediately required for the project, similar notice be given to the occupants of structures standing thereon by giving six weeks' time to vacate the respective premises;
(iii) ......
(iv) .....
(v) .....
(vi) .....
(vii) .....
(viii) .....
(ix) ......
(x) .....
28. In the light of the above stated legal position and on a thoughtful consideration of the matter, this Court is of the opinion that the invocation of the provisions of the PPE Act and initiation of proceedings against the 18 NJS, J WP_21064 & 21066_2023 petitioners under the provisions of the said Act are tenable in Law. There is no long standing bonafide dispute between the parties. Therefore, the contentions advanced on behalf of the petitioners contra are rejected.
29. Coming to other contentions with reference to the impugned order / notice in the present case, the dispute in question is with regard to the alleged encroachment of Railway land and in the Notice dated 04.07.2023 under Section 4 (1) and Sub-Section (2)(b)(ii) of the Act issued to the petitioner in W.P.No.21064 of 2023, it is inter alia mentioned as follows:
"It has come to the Notice of the Railway Administration that you had encroached the Railway land to the extent area of 9.50 X 3.50 = 33.25 sqm., at Km 354/4 & Chainage 354/39, Slab Roof which the detailed schedule is given below and that you should be evicted from the said Railway premises."
30. To the said notice, the petitioner submitted a reply dated 11.07.2023 referring to the 'NOC' dated 03.02.2010 issued by the Railway authorities to the petitioner's husband. The relevant portion of the said 'NOC' is extracted hereunder for ready reference:
"Your request for issue of "No Objection Certificate in respect of construction of residential building near Railway boundary at Bapatla has been approved by the competent authority based on the plan submitted by you subject to the following conditions.
16.15 meters of clear gap should be maintained from the centre line of the nearest track to the nearest edge of the proposed residential building as shown in the approved site plan No.B/WNOC/01/2010."19
NJS, J WP_21064 & 21066_2023
31. In the reply it is also stated that basing on the said 'NOC', the Bapatla Municipality approved house building plan and while constructing the house, from the petitioner's property they left 6 ft. outside the compound wall to the Railway Track and there is no encroachment into the Railway property.
32. Insofar the petitioner in W.P.No.21066 of 2023 is concerned, a Notice dated 04.07.2023 was issued, wherein it is mentioned as follows:
"It has come to the Notice of the Railway Administration that you had encroached the Railway land to the extent area of 21 x 4.50 = 94.50 Sqm at Km 354/18-20 & Chainage 354/483, Slab building which the detailed schedule is given below and that you should be evicted from the said Railway premises."
33. The petitioner submitted a Reply dt.11.07.2023 setting out his case.
34. Thus, the controversy is mainly with regard to the alleged encroachment of Railway Land which is denied by the petitioners and thereafter the Notice / Proceedings dated 07.08.2023 impugned in the writ petitions were issued. Challenging the same, it is inter alia contended that invocation of provisions of the PPE Act is not tenable and the Railway- authorities have to approach the competent Civil Court instead of resorting to summary proceedings of eviction, which are already considered and any other view in the firm opinion of this Court would frustrate the purpose of the PPE Act. Be that as it may.
35. As observed earlier, the issue as to whether the petitioner encroached upon the Railway Land or made any construction contrary to the 'No Objection Certificate' dated 03.02.2010 can as well be determined / verified by conducting a Joint survey in the presence of the petitioner. In fact, in the 20 NJS, J WP_21064 & 21066_2023 instant case, as seen from the material on record, a survey was initially conducted by the Railway authorities and the Town Planning Surveyor on 22.06.2023. Subsequently, another Joint Survey was conducted on 27.06.2023. Further, a re-joint survey was conducted by the railway authorities and Town planning surveyor of the 7th respondent-Municipality on 22.07.2023 stated to be in the presence of occupants at the encroachments area of BPP Station on DN Line side for confirmation of encroachments, but in the impugned Notice dated 07.08.2023, there is reference to the Survey dated 22.07.2023 only. In this regard, Mr.Phani Teja contended that it was conducted without notice and behind the petitioner's back, but as per the version of the Railway-authorities when the survey was conducted, the petitioner was present. The 7 th respondent-Municipality supported the same. However, no material is placed on record to establish that a Notice was issued to the petitioners in the present writ petitions with regard to the conduct of survey by the Railway authorities along with the Town Planning authorities.
36. In the absence of any such material, the contention that the survey was conducted in the presence of the petitioner cannot be accepted and the reliance on a photograph to contend that the petitioner in W.P.No.21064 of 2023 was present at the time of survey deserves no appreciation. Further, the Re-joint survey inspection report dated 22.07.2023 is vague and lacking in material particulars. No details with regard to the extent of Railway land which according to the said survey was encroached upon by the petitioners were mentioned. Under the aforementioned circumstances, the impugned 21 NJS, J WP_21064 & 21066_2023 Notice / Order on the basis of a vague report is not sustainable apart from the other reason that reliance on the same without furnishing a copy to the petitioner amounts to gross violation of principles of natural justice.
37. Further, the Notice / Order dated 07.08.2023 is also unsustainable for the reason that there is no mention about the Reply dated 11.07.2023 of the petitioner, let alone consideration of the same, with reference to the material filed along with it. No reasons are assigned in the notice / order dated 07.08.2023 as to why the explanation submitted merits no acceptance. It is well settled legal position that reasons are heart and soul of the order. In S.N.Mukherjee v. Union of India13, the Hon'ble Supreme Court has held as follows:
"36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law."13
(1990) 4 SCC 594 22 NJS, J WP_21064 & 21066_2023
38. In the light of the above stated factual and legal position, this Court is inclined to interfere with the Notice / Order dated 07.08.2023 impugned separately in the present writ petitions mainly on the above said grounds. Accordingly, the same are set aside.
39. Accordingly, the writ petitions are allowed in part, with a direction to the respondent railway authorities to conduct a joint survey by the officials of Railways, Revenue, Town Planning with the reference to the subject matter properties after issuing appropriate advance notices to the petitioners and conduct a survey in their presence. Thereafter, the Estate Officer shall issue appropriate notice to the petitioners setting out the details of encroachment of Railway Land, if any, along with a copy of the joint inspection report and grant reasonable time of 15 days for submitting explanation along with all documents in support of their case. On receipt of the explanation, if any, within the stipulated time, he shall afford an opportunity of hearing to the petitioners and pass appropriate orders, in accordance with Law and communicate the same to the petitioners under proper acknowledgment. The 4th respondent shall complete this exercise within a period of 6 weeks from the date of receipt of copy of this order and petitioners shall cooperate with the survey and enquiry as directed above. Till passing of appropriate orders, no coercive action in respect of the subject matter properties shall be resorted to.
23
NJS, J WP_21064 & 21066_2023 It is needless to mention that this Court has not examined claims of the parties herein and issues shall be examined by the authorities under the Act independently, based on the merits of the case and material placed before them.
40. Before parting with this order, this Court is not hesitant to add that one of the major reasons for encroachment of Railway Land / property is lackadaisical attitude of the concerned Railway authorities. They are expected, rather under an avowed duty and obligation to conduct periodical surveys / checks to curb the encroachments of Railway lands which are meant for various purposes, including extension of Railway lines in the interest of public at large. Timely action on the part of the concerned authorities would not only curtail occurrence of illegal encroachments, but also ensure removal of the same and avoid in-ordinate delays in implementation of the projects by reason of intervention of the Courts and prolonged legal battles, resulting in huge loss to the exchequer apart from injuring the public interest irreparably. As the old adage says - "A stitch in time saves nine".
There shall be no order as to costs. As a sequel, all pending applications shall stand closed.
__________________________ JUSTICE NINALA JAYASURYA Dated 03.05. 2024 BLV 24 NJS, J WP_21064 & 21066_2023 THE HON'BLE SRI JUSTICE NINALA JAYASURYA WRIT PETITION Nos: 21064 & 21066 of 2023 Date: 03.05.2024 BLV 25 NJS, J WP_21064 & 21066_2023