Telangana High Court
Namrata Arpit Patel Nitika R Patel And ... vs Government Of India And 2 Others on 14 June, 2022
Author: G. Radha Rani
Bench: G. Radha Rani
THE HON'BLE Dr. JUSTICE G. RADHA RANI
WRIT PETITION No.224 OF 2022
ORDER:
This writ petition is filed to issue writ of prohibition calling for the records in Case No.3995/176/NAP/Q3L(Part) under sub-Section (1) and Clause (b)(ii) of sub-Section (2) of Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short 'the 1971 Act') from the file of the 3rd respondent and to declare that the 3rd respondent had no jurisdiction to entertain the case and consequently to dismiss the said case as not maintainable.
2. Heard Sri Kishore Rai, learned counsel for the petitioners and Sri Surya Karan Reddy, learned Additional Solicitor General of India representing Sri B. Jithender, learned Standing Counsel for the Central Government for respondents.
3. The learned counsel for the petitioners submitted that the petitioners' paternal grandfather Mr. Jayanthi Bhai Ambalal Patel purchased property admeasuring Acs.4.15 gts., in Sy.No.221/A, situated at Yapral Village, Malkajgiri Mandal, Ranga Reddy District under registered sale deed, dated 20.05.1975 bearing document No.327/1978 from Sri S. Veeraraghava Reddy. The paternal grandfather of the petitioners, during his lifetime executed a Will dated 26.05.1984 bearing document Dr.GRR,J 2 WP No.224 of 2022 No.16/84 bequeathing the property owned by him to the petitioners. The paternal grandfather of the petitioners i.e. Jayanthi Bhai Ambalal Patel expired on 01.10.1985. The petitioners became absolute owners of the said property. The Tahsildar, Malkajgiri Mandal had mutated the names of the petitioners and issued pattedar passbooks and title deeds in favour of the petitioners. For better enjoyment, the petitioners exchanged an extent of 1915 sq.yds., of land out of Acs.4.15 gts., in Sy.No.221/A with adjacent land owner Mr. Samala Venkata Ranga Reddy for the same extent out of total land admeasuring 29 gts., or 3509 sq.yds., in Sy.No.223 situated at Yapral Village, Malkajgiri Mandal, Ranga Reddy District under registered sale deed dated 06.08.2014 bearing document No.2962 of 2014. In order to develop the property i.e. land admeasuring 21175 Sq. Yds., [Acs.4.15 gts. (land admeasuring 19260 sq. yds in Sy.No.221/A and 1915 sq. yds in Sy.No.223)], the petitioners submitted proposals to GHMC for construction of Gated Community (Villas) consisting of Ground + 1st floor and GHMC after conducting physical inspection accorded sanction vide permit No.53351/HO/N2/CIR-16/2016, dated 26.09.2017 for construction of 49 Villas with amenity block. The local Military authorities had given security clearance for construction on private land, subject to the conditions mentioned therein on 30.04.2016 in pursuance of the request of Dr.GRR,J 3 WP No.224 of 2022 the Commissioner, Town Planning Section vide letter No.73859/16/10/2014, dated 18.03.2015.
4. As the matter remained thus, as the defence authorities were interfering with the possession of the petitioners, the petitioners filed O.S. No.148 of 2017 on the file of the IX Additional Senior Civil Judge, L.B. Nagar, Ranga Reddy District and the same was pending. The petitioners also filed an application vide I.A. No.68 of 2017 seeking interim injunction and the IX Additional Senior Civil Judge granted interim order on 01.06.2017 restraining the Military authorities from interfering with the possession of the petitioners over the suit schedule property, pending disposal of the suit. The Military authorities filed written statement in the said suit. In the said written statement also, the Military authorities had not claimed title. Inspite of the order of injunction being granted restraining the local Military authorities from interfering with the petitioners' possession, day in and day out the Military officers were threatening to demolish the structures, as such, the petitioners filed an application for contempt along with an application for police protection and the said applications were pending disposal before the Senior Civil Judge, Malkajgiri.
Dr.GRR,J 4 WP No.224 of 2022
5. While the matter stood thus, the Estate Officer (the 3rd respondent herein) issued the impugned notice under sub-Section (1) and Clause
(b)(ii) of sub-Section (2) of Section 4 of the 1971 Act under Form-A stating that the petitioners encroached an area of 9597 sq.ft., in A-1 defence land vide GLR Survey No.127 falling under Yapral Village, Malkajgiri Mandal, Ranga Reddy District, Secunderabad Cantonment and that they had constructed buildings illegally by encroaching the A-1 defence land, the property of Government of India by claiming it as a private land and passed orders.
6. The learned counsel for the petitioners submitted that the order of the Estate Officer was without jurisdiction and based on assumptions and presumptions and was in the nature of collecting evidence. The Estate Officer ought to have seen that the provisions of the 1971 Act were not applicable to the petitioners as the petitioners nowhere admitted that the subject land in occupation of the petitioners was a defence land owned by the respondents. The defence authorities had not disputed the ownership and possession of the petitioners in O.S. No.148 of 2017, but in the notice under Form-A, the 3rd respondent was trying to make out a case without there being any survey by the competent authorities that the petitioners had encroached the land in GLR Survey No.127. The property of the Dr.GRR,J 5 WP No.224 of 2022 petitioners was covered by the compound wall on all sides. To invoke the provisions of the 1971 Act, it was mandatory that the premises in question must be a public premises and then only the Parliament had conferred a limited jurisdiction on the Estate Officer to determine whether the occupation was authorized or unauthorized and whether the construction was authorised or not so. The nature of enquiry provided under the provisions of the 1971 Act was summary in nature. The Estate Officer had no jurisdiction when there was a dispute with regard to title and nature of the property. The 3rd respondent could not decide the disputed questions of title by undertaking the summary provisions of 1971 Act. The Estate Officer had no jurisdiction to decide whether the Military authorities or the petitioners had title over the property, more so, when the matter was subjudice before the competent civil court in O.S No.148 of 2017 and there was subsisting injunction order in force restraining the Military authorities from interfering with the possession of the petitioners in the said case. The 3rd respondent wrongly assumed jurisdiction in respect of a civil dispute and issued notice to the petitioners. Hence, the petitioners were compelled to move this Court by seeking a writ to forbid the 3rd respondent from hearing the case and prayed to allow the petition.
Dr.GRR,J 6 WP No.224 of 2022
7. Learned Additional Solicitor General of India, on the other hand, contended that the security clearance was given by the local Military authority to the GHMC for construction of ground floor in respect of the property in Sy.No.221/part. In addition to construction work in Revenue Sy.No.221, the petitioners also unauthorizedly encroached inside A-1 defence land in GLR No.127 to an extent of approximately 9597 sq.ft. falling under Yapral Village, Malkagjiri Mandal, Ranga Reddy District, therefore, the Estate Officer rightly issued Form-A notice to the unauthorized occupants under Sub-Section (1) Clause (b) (ii) of Sub- Section 4 of 1971 Act as the petitioners had not only encroached inside A-1 defence land but also constructed illegally claiming it as their private land. The petitioners already encroached 9597 sft., and were making repeated attempts to carry out further encroachment by constructing boundary wall. The submissions of the petitioners that the property was covered on all sides by a compound wall, was false. It had boundary wall only on three sides and the side adjoining GLR Sy.No.127 had partial boundary wall. The petitioners on three previous occasions i.e. on 10.08.2021, 04.12.2021 and 05.01.2022 made attempts to construct a boundary wall to further encroach inside A-1 defence land in GLR Sy.No.127 which had been objected and not permitted by military Dr.GRR,J 7 WP No.224 of 2022 authorities and police complaints for all three encroachment attempts have been filed. The learned counsel for the petitioners was trying to mis-lead the court by referring to O.S. No.148 of 2017, but the said matter was for NOC violation case with regard to property within the revenue Sy.No.221/part for which permission was accorded for constructing ground floor only and the petitioners, violating the said sanction, proceeded to construct G + 1 floors, thereby, posing serious security threat to the adjoining defence areas in A-1 defence land.
7.1. He further contended that the claim of the petitioners with respect to grant of injunction order in I.A .No.68 of 2017 was to mis-lead the Court as the Court only partly accepted the prayer for injunction and dismissed the part of prayer wherein the petitioners wanted the construction to be carried out on the sub-judice property without any restriction. The issue of ownership and title in respect of land in Revenue Sy. No.221/Part was never objected or contested by the Military Authorities. However, invocation of provisions of 1971 Act was due to encroachment made by the petitioners inside A-1 defence land in GLR Sy.No.127 and making repeated attempts to further encroach the said land. A joint survey was conducted in the past by the Revenue Department Dr.GRR,J 8 WP No.224 of 2022 during the years 2011, 2013 and 2015 which would bring out the fact that the petitioners encroached A-1 defence land.
7.2 He further submitted that as per Section 15 of the 1971 Act, there was a bar of jurisdiction on the Courts to entertain any suit or proceeding. Under Section 10 of the said Act, the orders made by the Estate Officer or Appellate Officer were final and were not to be called in question in any suit or application or execution proceedings and no injunction should be granted by any court or authority. Hence, challenging the interim orders passed by the Estate Officer was totally illegal. As per Section 9 of the 1971 Act appeal would lie from every order of the Estate Officer to an Appellate Authority who shall be the District Judge of the District. The petitioners straight away approached this Court without the proceedings of the Estate Officer completed and without availing the right to appeal before the District Court and prayed to dismiss the writ petition.
8. Perused the record. As seen from the contentions of the learned counsel for both the parties, the respondents are also not disputing the title of the petitioners in Revenue Survey No.221/part situated at Yapral Village, Malkajgiri Mandal, Ranga Reddy District and that they were in possession of the same and obtained permission from GHMC for construction of Villas and a security clearance was also given by the local Dr.GRR,J 9 WP No.224 of 2022 Military authorities in respect of construction of the property in Sy.No.221/part. Their only contention was that the permission was given for construction of ground floor only and that the petitioners were constructing ground + first floors in violation of the security clearance. The petitioners filed O.S No.148 of 2017 restraining the respondents from interfering with their possession and an injunction was also granted in their favour vide I.A. No.68 of 2017, though it was dismissed in part with regard to carrying out the construction on the property without any restriction. As such, subject to the restrictions, the petitioners can carry out the construction in the property in Sy.No.221/part.
9. The contention of the learned counsel for the respondents was that the petitioners had unauthorizedly encroached 9,597 sft of defence land in GLR Sy.No.127 and were constantly attempting to further encroach inside the Government land for which police complaints were filed by them. Their contention was that Form-A notice was issued to the petitioners under sub-Section 1 and Clause b(ii) of Sub-Section 4 of the 1971 Act due to the encroachment made by the petitioners inside the A-1 defence land in GLR Sy.No.127 to an extent of 9597 sft. falling in Yapral Village, Malkajgiri Mandal, Ranga Reddy District. The contention of the petitioners was that the property in occupation of the petitioners was in Dr.GRR,J 10 WP No.224 of 2022 Sy.No.221/A and 223, but not in GLR Sy.No.127 as alleged by the respondents.
10. When there was a dispute with regard to the title and the boundaries, whether a notice under Form-A could be issued by the 3rd respondent, is the issue in question in this writ petition. The High Court of A.P. in Podduturi Vasantha Reddy v. Estate Officer, Airports Authority of India, N.A.D.1 held that:
"10. Before I consider the respective contentions of the learned counsel for the parties, I deem it appropriate to refer to the Statement of Objects and Reasons of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. This Act was enacted to provide for a speedy machinery for eviction of unauthorised occupants of public premises. In the said objects, it is stated that it has become impossible for Government to take expeditious action even in flagrant cases of unauthorized occupation of public premises and recovery of rent or damages for such unauthorized occupation. It is therefore, considered imperative to restore a speedy machinery for the eviction of persons who are in unauthorized occupation of public premises, keeping in view, at the same time, the necessity of complying with the provisions of the Constitution and the judicial pronouncement. "Premises" is defined under Section 2(c) and "Public Premises" is defined under Section 2(e) of the said Act. As evident from the definition under Section 2 (e) of the Act, 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 placed by the Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised 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. Further, it also includes any premises belonging to, or taken on lease by or on behalf of any Company in which not less than 51% of the paid-up share capital is held by the Central Government or any Company which is a subsidiary of the Government Company, and also 1 AIR 2010 AP 46 Dr.GRR,J 11 WP No.224 of 2022 includes any premises belonging to any Corporation or a local authority established by or under a Central Act and owned or controlled by the Central Government.
11. In that view of the matter, the definition pre-supposes that the premises shall belong to the Government or the Government-owned Company, so as to construe the same as a 'public premises', and the said Legislation is enacted for the purpose of taking steps for eviction and removal of constructions on such public premises. Section 5 of the said Act empowers the authorities to order eviction of the unauthorized occupants, whereas Section 5-A empowers the authorities to remove the unauthorized constructions, etc.
12. .. Having regard to the objective of the skid Legislation and the provisions contained therein, it is designed and intended for ordering evictions and removal of encroachments in cases where there is no dispute with regard to title and possession of property in question. The powers conferred on the authorities under the said Legislation are only to order eviction and removal of constructions with regard to premises which belong to them. But in cases, where there is a bona fide dispute with regard to title/boundaries of the land belonged to the Government or its Corporations or Companies, such disputes are outside the scope of said Legislation, and the authority constituted under the said enactment cannot be said to have jurisdiction to embark upon the domain of the Civil Court for the purpose of adjudicating civil disputes, the power of which, is exclusively vested in such Courts, and it would be unreasonable to allow such authority to decide such disputes by invoking the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, which provides for a summary procedure to conduct inquiry and order for eviction and removal of constructions. In that view of the matter, when the said provisions are read with reference to the object of the Legislation, it is clear that the said piece of Legislation never intended to give its authorities the power to decide such complicated questions of title disputes, so as to decide the same by passing orders under Section 5 of the said Act."
11. The learned counsel for the petitioners also relied upon the judgment of the Hon'ble Apex Court in Kaikhosrou (Chick) Kavasji Dr.GRR,J 12 WP No.224 of 2022 Framji v. Union of India2, which was a case under the Public Premises (Eviction) Act, wherein it was held that:
"64. Keeping in view the statement of law laid down by this Court in cited decisions supra, when we examine the facts of the case in hand, we have no hesitation in holding that the appellants have raised a bona fide dispute on the question of ownership of the suit property qua respondent No.1 (Union of India).
65. A fortiori, in such case, respondent No. 2 has no jurisdiction to invoke the powers under section 4 of the PP Act by resorting to a summary procedure prescribed in the PP Act by sending a notice under Section 4 of the PP Act for appellant's eviction from the suit property."
It was also held that:
"71. The Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act."
12. He also relied upon the judgment of the High Court of A.P. in Roshan Minoo Patel and Others v. Union of India3, wherein after elaborate discussion on various aspects whether the Estate Officer can determine the jurisdictional fact whether the schedule property was a public premises in particular, when there was a bonafide dispute involving determination of complex questions of law and fact and the nature of the enquiry provided under the provisions of the 1971 Act was summary in nature, the Court observed that:
2
AIR 2019 SC 1692 3 2011 (5) ALD 626 Dr.GRR,J 13 WP No.224 of 2022 "130. The preceding analysis; in particular on Issue No. 2, compels the conclusion that existence of an appellate remedy, under Section 9 of the 1971 Act, bars neither the jurisdiction nor operates to exclude the discretion of this Court to entertain and adjudicate upon this writ petition assailing the order of the DEO dated 30.5.2002.
131. The impugned order is patently erroneous and unsustainable for a plurality of reasons:
(a) The impugned order records that the premises is a public premises; (b) this finding is unsustainable since having regard to the complex issues involved in determination of the fact as to ownership of the schedule property and the summary nature of the process provided under the provisions of the 1971 Act, the title dispute is outside the adjudicatory domain of the DEO under the provisions of the 1971 Act; and (c) since the DEO proceeded to assume without doctrinal foundation that entries in the 1956 GLR constitute conclusive evidence of title to the schedule property vesting in the Central Government, contrary to the established precedents in this area, analysed above. In view of exclusion of jurisdiction with respect to determination of the jurisdictional fact, in view of the bona fide and serious disputes as to ownership and title of property, from the domain of the DEO; the substantive determination by the impugned order, of occupation of the petitioners as well as the constructions being unauthorized is patently unsustainable.
Since the very jurisdiction of the DEO is in issue, the existence of an alternative and appellate remedy is no bar to the exercise of discretion by this Court to entertain this writ petition to examine the validity of the impugned order, in certiorari.
132. On the analysis supra, and in view of the conclusions on the earlier issues formulated for determination, this Court holds:
(a) The order of the 3rd respondent dated 30.5.2002, in Case No. 21/188/EV/SY.No. 528/B. No. 176, is unsustainable and quashed:
(b) It is declared that since the competing claims of the petitioners and the respondents as to ownership and title to Bungalow No. 176, situate in the Secunderabad Cantonment area, involves adjudication of a complex variety of facts and complicated questions of law as well; unsuitable in the context of the summary procedure provided under the Public Premises (Eviction of Dr.GRR,J 14 WP No.224 of 2022 Unauthorized Occupants) Act, 1971, adjudication of this jurisdictional and collateral fact is precluded from determination under the provisions of the 1971 Act and the adjudication of title, in the circumstances, is more appropriately pursued before the Civil Court of competent jurisdiction;
(c) It is declared that since the petitioners are in long, open and uninterrupted possession of the property since and under the registered sale deed, dated 18.8.1905, there is a presumption that they are the owners of the property; consequently and since the respondent claim to the contrary, they must seek declaration of title before the appropriate Civil Court, of competent jurisdiction;
(d) The impugned proceedings of the 3rd respondent, dated 30.5.2002 ordering demolition of unauthorized constructions by the petitioners in the schedule property situate in the Cantonment area is declared incompetent and unsustainable, since it is passed pursuant to provisions of the 1971 Act, which are applicable only to public premises;
(e) There is no legally sustainable finding that the property is public premises, in the impugned order;
(f) That nothing in this judgment shall however be construed as inhibiting the respondents from proceeding in accordance with law, against unauthorized constructions, if any, in the schedule property under any other law authorising the respondents to so proceed; or even under the provisions of the 1971 Act, if the respondents establish title or ownership to the property in appropriate proceedings before a Civil Court of competent jurisdiction;
(g) The liberty of the respondents to proceed against the petitioners under the provisions of the 1971 Act for unauthorized occupation of the property is also not impaired, subject to the respondents' obtaining a declaration from the appropriate Court as to their ownership of the schedule property."
Dr.GRR,J 15 WP No.224 of 2022 He also relied upon the judgment of the High Court of Delhi in DCM Limited v. Delhi Development Authority4 wherein it was held that:
"21. .....The next question is whether the decision of the Estate Officer can, in view of this finding, be held as res judicata. This court, on this score does not experience any difficulty in holding that the principle of res judicata would not stand in the way of independent adjudication of a bona fide dispute regarding title to the disputed suit lands. Once it is concluded, as the court has done earlier, in this judgment- that the Estate Officer was not competent to rule upon issues of title, or grant RFA(OS)104/2012, C.M. NO.18873/2012 Page 25 declaration of title to an occupant, any determination by him would have to be deemed as having been made without jurisdiction....
It is, therefore, held that the decision of the Estate Officer cannot act as res judicata, or constructive res judicata, because in the first place that officer did not possess the jurisdiction to decide upon the Appellant's plea of being lawful owner of the properties."
13. Thus, the above judgments would clearly disclose that the Estate Officer was not competent to rule upon the issue of title and did not possess the jurisdiction to decide as to who were the lawful owners of the properties and the disputed questions of title and boundaries cannot be decided in the summary proceedings. The proceedings under the provisions of the 1971 Act are summary in nature. The title of the respondents on the property in occupation of the petitioners was not admitted by the petitioners. The petitioners admittedly filed O.S No.148 of 4 2013 (136) DRJ688 Dr.GRR,J 16 WP No.224 of 2022 2017 on the ground that the respondents were interfering with their possession over the property in Sy.No.221/A. No proof was filed by the respondents to show that the petitioners were in occupation of GLR Sy.No.127 as alleged by them. The petitioners contended that the survey alleged to have been conducted in the years 2011, 2013 and 2015 was without any notice to them, who were absolute owners of the property in Sy.No.221/P and in the internal letter dated 15.06.2015 filed by the respondents, it was clearly mentioned in the remarks column that:
"The land has been inspected and it has been reported that the site is lying vacant and falls outside the boundary of the defence Land and no defence land is involved. The site is surrounded by Defence A (1) land and other 3 sides by Private Open land and road."
14. The learned counsel for the petitioners also contended that the Google Maps filed by the respondents were truncated ones and the Geo- coordinates given in the Google plan filed by the respondents were incorrect ones and the petitioners with the same Geo-coordinates had taken out a plan from Google search and the same would show that the property of the petitioners was nowhere near the line in between the two alleged pillars. The survey plans referred to by the respondents, conducted by the respondent authorities in the years 2011, 2013 and 2015 also would not show any encroachment, as alleged. The property of the petitioners was in Dr.GRR,J 17 WP No.224 of 2022 Sy.No.221/P and the dotted land would show that the same was away from the line referred to by the respondents from Pillar No.80-81.
15. Hence, considering these disputed contentions and as the respondents failed to show that the petitioners were in unauthorized occupation of their land in GLR Sy.No.127, the notice issued by the Estate Officer is considered as without jurisdiction and as such, it is considered fit to allow the writ petition by dismissing the Case No.3995/1/76/NAP/ Q3L(Part) under sub-section (1) and Clause (b)(ii) of Sub-Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 on the file of the 3rd respondent.
16. Accordingly, the Writ Petition is allowed and Case No.3995/1/76/NAP/Q3L(Part) under sub-section (1) and Clause (b)(ii) of Sub-Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 on the file of the 3rd respondent is dismissed as not maintainable. No order as to costs.
Miscellaneous Petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J June 14, 2022 KTL