Andhra HC (Pre-Telangana)
District Collector And Ors. vs K. Narasing Rao And Ors. on 18 June, 1997
Equivalent citations: 1997(4)ALT428
JUDGMENT P.S. Mishra, C.J.
1. This appeal has arisen from a proceeding under Article 226 of the Constitution of India, seeking interference in the alleged demolition of the houses of the petitioner-respondents in Begumpet, one of the quarters of the city of Hyderabad. The prayer, which appeared quite innocuous and sensible for a direction to the appellants herein to demolish the houses only by following the procedure prescribed bylaw, however, is based on a claim of title, in respect of which a brief history of the land transactions is stated in the writ petition. Learned single Judge has taken notice of the facts, which read as follows:
"Originally the land admeasuring Ac. 8.20 guntas in S.No. 194/12 of Begumpet village, belongs to one lady Vicar-Ul-Umra. Muzafer Nawab Jang, her son, after her death, gifted the said land to Syed Bin Suleman Ahmed under a registered gift deed. The said Syed Bin Suleman Ahmed sold the said land under a registered sale deed dated 16th Aban 1360 F. to the Mohd. Akbar Azam, who sold the same land to Vengal Reddy and his partner Ananda Rao under a registered sale deed dated 27-2-1952. 'Ananda Rao gifted Ac. 4.10 guntas of land i.e., his half share in the entire land, to his daughter K. Suseela, under a registered gift deed dated 20-2-1955. Suseela entered into an agreement of sale dated 15-3-1970 with the petitioners to sell Ac. 1.20 guntas out of Ac. 4.10 guntas and delivered possession of the said land to the petitioners. Thus the petitioners came into possession of the land in question and are in enjoyment of the same without any interruption by anybody. Since Suseela committed breach of that agreement of sale, the petitioners filed O.S.No. 142 of 1991 on the file of the learned I Assistant Judge, City Civil Court, Hyderabad for a specific performance of the said agreement of sale dated 15-3-1970. That suit was decreed on 22-3-1991. In pursuance of the said decree, the petitioners filed E.P. 14 of 1991 for execution of the sale deed and on 15-4-1991 the I Assistant Judge, City Civil Court, Hyderabad executed a registered sale deed in favour of the petitioners so far as the land of Ac. 1.20 guntas is concerned. Thus the petitioners have got right, title and possession to the said land of Ac. 1.20 guntas in S.No. 194/12 of Begumpet. village.
The petitioners divided the said land into plots and sold them to others, who were inducted into possession, constructed residential houses and are residing there with their families peacefully without being interrupted by anybody, paying property tax, non-agricultural land tax, water bills, electricity consumption charges, telephone bills etc. The petitioners' names were entered in the revenue records and pahanies showing" that they are in possession of the said land.
While matters stood thus, in January, 1994 the Executive Engineer, Roads and Buildings Department and the Officers of Municipal Corporation of Hyderabad came to the land and houses in question and tried to interfere with the petitioner's possession, claiming the land as belonging to them, which led to filing O.S.No. 26 of 1994 on the file of the learned District Munsif, West and South, Rangareddy District by the petitioners and in that suit in I.A.No. 46 of 1994 the Court granted status quo order on 25-1-1994 which is still in substance."
It is said the Mandal Revenue Officer, Balanagar, Mandal Revenue Officer, Secunderabad and the staff of Municipal Corporation of Hyderabad, accompanied by police force headed by the Assistant Commissioner of Police, Begumpet came and started taking measurements etc., of the land and when the petitioner-respondents questioned them why they were doing so, they informed them that the land belonged to the Government, that the petitioner-respondents were in unauthorised possession and that they were going to demolish the buildings on 10-2-1995. Although petitioner-respondents presented the title deeds before them and sought notice of demolition, it is alleged, the appellants entered their houses without permission and highhandedly acted in demolishing the houses. Petitioner-respondents filed W.P.No. 2366 of 1995, which was admitted and order to maintain status quo was passed. Several other writ petitions were also filed for grant of interim injunctions restraining the appellants, their men, agents and subordinates from interfering with the possession and enjoyment of the vendees of the petitioners over the dwelling houses. According to the petitioner-respondents, even though there was injunction order in force, on 25-5-1996 a Law Officer, attached to the Office of the District Collector, Hyderabad, came to the land in question, along with the Tahsildar and Deputy Tahsildar and brought with him nine bull-dozers in the early hours of the morning of 25-5-1996 and started demolishing the compound walls and houses. When the petitioner-respondents showed the interim injunction orders, they said that the orders were not binding on them as the District Collector, Hyderabad was not a party to the said order and that the area where the houses in question were situate fell within the jurisdiction of the District Collector, Hyderabad and not within the jurisdiction of the District Collector, Ranga Reddy District. In spite of the petitioner-respondents showing them the revenue records and the maps prepared by the Revenue Department, which show that the land in question fell within the jurisdiction of the District Collector, Ranga Reddy District, they did not stop the demolition work. There are other allegations also, which, however, are not very necessary except to appreciate that the petitioner-respondents, who obtained the alleged agreement for sale and got the same performed by the decree of the Court against the vendor, found themselves facing the charge that they had encroached upon the Government lands and their transferees faced demolition and action for demolition of the compound walls and the buildings is by a group of officials, against whom, they moved this Court and got interim orders of injunction and thereafter the appellants, notwithstanding the orders of the Court, proceeded to demolish the compound walls and the buildings.
2. Counter-affidavits have been filed by the Mandal Revenue Officer, Balanagar, the District Collector, Hyderabad and the Municipal Corporation of Hyderabad, from which it transpires that as per Revenue Records the land belonged to Paigh Sir Vicar-Ul-Umara and under the direct control and superintendence of Paigah Authorities upto 1950 and later under the control of the Court of Wards, which control continued even up-to-date. The land was acquired by the Special Deputy Collector, Land Acquisition, Hyderabad as per the Award No. A5/423/LA/62 on the requisition of the Executive Engineer, P.W.D, Special Buildings Division No. II for construction of Secretariat Staff Quarters and "physical possession" of the land was handed over to the R&B Department in the year 1964 and the staff quarters were also constructed. Petitioner-respondents never had, according to the counter affidavit, any right or title over the land in question. In the suit for specific performance, neither the Court of Wards was a defendant nor the Government of the State. Any constructions made by the petitioner-respondents were in violation of Sections 428 and 433 of the Hyderabad Municipal Corporation Act. They got such constructions done without their obtaining the necessary sanction, there being any land approved and without thus there being any legal coverage to protect or to assert that there was any semblance of the existence of a legal right or title in favour of the petitioner-respondents. Learned single Judge stated in the impugned judgment as follows:
"A perusal of the averments in the writ affidavits as well as the counter-affidavits clearly shows that there are disputes (1) regarding title and possession of the land in question, (2) regarding the identity of the land; (3) regarding acquisition of the land; (4) regarding control of the land by the Court of Wards till to-day; (5) regarding the demolition of the houses in question etc. These disputes are in the nature of civil disputes which can be alone decided by the Civil Court and not by this Court under Article 226 of the Constitution."
After stating as above, learned single Judge has gone only by the allegation that S.No. 194/12 where the houses are allegedly constructed, is situated within Begumpet village limits and "admittedly Begumpet village is within the jurisdiction of the District Collector, Ranga Reddy and not within the jurisdiction of the District Collector, Hyderabad". He has thereafter stated: "admittedly in these cases, summary remedy for eviction took place. Whether the petitioners are in legal possession of the same or not, it is the bounden duty of the respondent-authorities to serve a show cause notice of demolition Under Section 7 of the Land Encroachment Act before the actual demolition takes place". He has thereafter said:
"When 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 the property belongs to it, and on the basis of such decision, take recourse to the summary remedy for eviction as provided by Section 6 of the Land Encroachment Act for evicting the persons who are in possession of the said property under a bona fide claim of title. The summary remedy prescribed by Section 6 of the Land Encroachment Act is not the kind of legal process which is suited to an adjudication of complicated questions of title, If the Government is so interested, it can move the civil Court and establish its right and title over the disputed land and then proceed with eviction proceedings."
3. We have good reasons to agree with the view taken by the learned single Judge that the proceeding under Article 226 of the Constitution of India, is not suited for any adjudication into the title of any person in a property. We have, however, good reasons to differ with the view taken by the learned single Judge that Section 6 of the Land Encroachment Act is not available to the appellants for removal of the alleged encroachments upon a land, which satisfies the requirements under the A.P. Land Encroachment Act, 1905. Section 6 of the Act states:
"(1) Any person unauthorizedly 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 therein shall also, if not removed by him after such written notice as the Collector, 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."
This section does not speak either of the duration, short or long, of encroachment and indicate that for the decision whether any person should be summarily evicted rests with the Collector, Tahsildar or Deputy Tahsildar, as the case may be and on the decision of the question in respect of the nature of the property on which the encroachment is alleged to have been committed. What may finally be relevant in such a case in issue is whether some one is in occupation of a property bonafide and whether such possession is exercised by him openly. If such possession is exercised for an appreciable length of time, one can prima facie accept the bonafide of the claim, otherwise, the claim may not be deemed without there being adjudication to be bona fide. In Government of Andhra Pradesh v. T. Krishna Rao, the Supreme Court has said: "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 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 bonafide claim or title." In this case, the Supreme Court has also indicated that long possession would raise a genuine dispute between the claimant and the Government on the question of title, but also pointed out: "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. But duration of occupation is relevant in the sense that a person who is in occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law." What thus flows from the above, in our considered view, is that primary concern will be to see whether there is a bona fide claim of title and there are reasonable grounds to prima facie hold that the title to the property is in dispute and as such that a primary (sic. summary) procedure for eviction should be avoided. Adverting to the facts of the case, what is seen is, a series of transactions in respect of the property without, however, any dispute as to the property being under the Court of Wards and an agreement for sale, which has taken to the Civil Court for a specific performance and allegedly decreed by the Court against the alleged vendor of the petitioner-respondents. Constructions are said to have come up, but there is no claim on behalf of the petitioner-respondents that they complied with the requirements of the various provisions of the Hyderabad Municipal Corporation Act. Unauthorised character of the occupation of the land is not displaced by the materials which are brought on the record of the instant proceeding and unauthorised construction is writ large, because provisions of the Hyderabad Municipal Corporation Act are not complied with. Relief, which this Court at such a juncture can grant will be only in the nature of interim injunction leaving the parties to seek their remedy before the appropriate civil Court. Learned single Judge, on the facts as stated above, has chosen to restrain the Government from evicting the petitioner-respondents and /or demolishing constructions by resorting to the summary procedure Under Section 6 of the Act and asked the Government to seek adjudication of title and eviction in the Civil Court. The order, thus, has the effect of making the appellants to resign to the legal acts of the petitioner-respondents of coming up with the constructions upon the land, for which the appellants have a definite and bona fide claim. In our considered view, the best course, on the facts and in the circumstances of the case, would be to leave the dispute for adjudication by the Civil Court without there being any such condition of injunction in favour of the petitioner-respondents, as injunction, if any, can always be granted by the Civil Court if the petitioner-respondents establish a prima facie case and show balance of convenience in their favour.
4. For the reasons aforementioned, we modify the directions issued by the learned single Judge to the extent that the parties are at liberty to move the Civil Court for adjudication of the dispute and seek such remedy as they deem fit and proper in accordance with law. To enable, however, the petitioner-respondents, who have been benefitted of the order of injunction issued by this Court in the proceeding under Article 226 of the Constitution of India, to move the Civil Court, if so advised, we direct that status quo shall be maintained in respect of the property in question for a period of one month from to-day, within which period the petitioner-respondents may move the Civil Court for appropriate relief.
5. The directions herein shall not obliterate violation, if any, of the orders of this Court pending disposal of the writ petition.
6. The appeal is allowed to the extent indicated above.