Andhra HC (Pre-Telangana)
The Auto And General Engineering ... vs The Govt. Of Andhra Pradesh And Anr. on 17 March, 1987
Equivalent citations: AIR1988AP266, AIR 1988 ANDHRA PRADESH 266
Author: K. Ramaswamy
Bench: K. Ramaswamy
ORDER
1. The two writ petitions can be disposed of by a common judgment since common question of law and fact arise for decision.
2. The petitioner, Auto and General Engineering Citizens Welfare Society, filed W.P. No. 1254/87 on behalf of thirty -eight persons residing near the Minister's road Secunderabad, with the door numbers mentioned in the annexure to the writ petition. Three persons, namely Kalavathy, Mohammed Iqbal and Mohammed Mohaboob, who are already petitioners in the earlier writ petition, filed a separate writ petition No. 1367/87. The sum and substance of their allegations of the writ petition is that their predecessors one, Mr. Padma Rao, had acquired title by purchasing the property, under registered sale deeds who in turn sold it in plots to the petitioners and ever since the purchases, they have been in possession and enjoyment of the property as owners thereof. Padma Rao himself laid the suit O.S. No. 1324/83 on the file of the IV Addl. Judge City Civil Court, Hyderabad for declaration of title and permanent injunction impleading the State Government, Hyderabad Urban Development Authority and the Tahsildar and by order in I.A. No. 169/84 dt. July 20, 1984, Status quo was directed to be maintained. The respondents, being parties to the suit, they have no power to take any action ejecting them unlawfully. After the issue of the status quo order, the respondents have moved the machinery of the Municipal Corporation of Hyderabad to have the structures of the petitioners demolished but become unsuccenful and then the Collector, the first respondent, is now asserting to have exercised the power under S. 7A of the Andhra Pradesh Land Encroachment Act (Act 3 of 1905 for short the Act) as amended by the Andbra Pradesh Amendment Act (Act 23 of 1980 for short 'the amendment Act') but the procedure prescribed thereunder has not been followed and, therefore, not only it is an arbitrary exercise of the power offending their right but obnoxious to the fair-play, offending principles of natural justice. The respondents have denied the allegations. It is stated that the lands in old $. No. 43, now S. No. T. S. 4 in ward No. 100, block A situated in Bholkapur, is the Government land, opposite to the Deccan Continental Hotel on the Minister's Road. The encroachments are being made day in and day out either individually or in groups. It has become difficult for the Government to prevent encroachments. The Collector has personally made inspection and found them to be recent encroachments. Therefore, notices as required under S. 7A were issuers but they have been refused. Therefore, action was taken against the three writ petitioners in W.P. No. 1367187 by effecting substituted service signed by two panchas and drawn by the Revenue Inspector. Thereafter, proceedings were taken under panchanama dt. 2-2-1987 for taking delivery of the possession of the land from four persons, including the three writ petitioners in W. P. No. 1367/87. Proceedings were initiated against others, but for the stay order, procedure under S. 57-A would have been followed and possession taken. Therefore, the action taken by the Government is perfectly in consonance with the provisions of S.T.A.
3. Under S. 2(1) of the Act "The right to property, public roads ... bed....and tanks and lands wherever situated, save in so far, as the same are the property mentioned in Cls. (a) to (c) (of Sub-s. (1) thereof ) are declared to be the property of the Government except as may be otherwise provided by any law for the time being in force, subject always to all rights of way and other public rights and to the natural and easement right of other land owners, and to all customary rights legally subsisting". S. 24 of the A. P. (Telangana Area) Land Revenue Act, 1317 Fasli declares that all lands wherever situated together with aft rights appurtenant thereto are the property of the Government. The two material provisions clearly declare that all lan2Is mentioned therein and the rights appurtenant thereto including tank-bed lands, are declared to be the land belonging to the Government and, therefore, statutorily stand vested in the State. Whenever any proceedings are taken under S. 7A, sub-s. (2) thereof draws a presumption that the land forming subject- matter of the proceedings under Section 7A is the property of the Govt. until the contrary is proved. Therefore for the purpose of the proceedings in the writ petitions, we shall proceed on the statutory presumption that the land in old S. No. 43 now T. S. No. 4 in ward No.100,-Block-AsituatedinBhotkapur, opposite, Deccan Continental Hotel is the tank bed property of the Government. The contention of Mr. Mohan Rao is that the lands were transferred to the Hyderabad Urban Development Authority and therefore, the Collector is divested of her power to take action under the Act and, therefore, it is without jurisdiction, I am unable to agree. As seen, the property shall stand vested in the Government. The handing over of possession to the Hyderabad Urban Development Authority is only for the purpose of utilisation for a public purpose. The title of the Government is not thereby divested. In fact, in similar circumstances when a contention was raised that the Government have no power to erect statues on road margins at tank-bund, since the road stands vested in the Municipal Corporation of Hyderabad this Court in Ibrabim Bin Abdullah Masqathi v. State of Andhra Pradesh (1987) 1 Andh LT 54 has considered the effect of the vesting and held that though the public roads vest in the Municipal Corporation for the purposes of management the Government continues to be the owner of the property. The decision was upheld by the Division Bench. Therefore, the contention is devoid of substance.
4. As seen Padma Rao himself claiming to, he the owner of the property under the alleged sale deeds mentioned in the plaint, laid the suit O.S. No. 1324183 for declaration of title and the title suit is pending. Admittedly, Government is not a party to the sales and is not bound by the sales. Therefore, it is premature to decide the title in the summary proceedings in this writ petition. It would be open to the plaintiff to adduce evidence and establish his title to the land in dispute. As seen, admittedly, the petitioners in either of the writ petitions eo nominee are not parties to the suit nor to the orders passed in I.A. No. 189/84 of July 20, 1984. Therefore, the respondents on taking the impugned action, 'are not violating the status quo order dt. July 20, 1984. The respondents claim that it is a recent encroachment by a group or groups of persons without any entitlement with the common object of occupying the Govt. land necessitating the action taken under S. 57A. The constitutional vafidity of S. 7Awasupheld by this Court in Bharatiya Dalita Jatula Sangam v. Government of Andhra Pradesh (1982) 2 APLJ (SN) p. 36(1). 5.7A(I) of the Act reads thus:
'7-A. Encroachment by group of persons o4 Government lands and their eviction : -
(1) Where the District Collector knows or has reason to believe that a group or groups of persons without any entitlement and with the common object of occupying any land, which is the property of the Government, are occupying' or have occupied any such land, and if such group or groups of persons have not vacated the land on demand by the District Collector or any officer authorised by him in this behalf, the District Collector shall, notwithstanding anything in this Act, order without any notice, the immediate eviction -of the encroachment from the land and the taking of possession of the land and thereupon it shall be lawful for any officer authorised by the District Collector in this behalf to evict the encroachers from the land by force, taking such police assistance as may be necessary and take possession of the land.'
5. Therefore, it is permissible for the District Collector when she knows or has reason to believe that a group of persons without any entitlement and with the common object of occupying any land, which is the property of the Government are occupying or have 'occupied such land, then the is empowered to take 'action under S. 7-A- If such group or groups of persons have not vacated the land on demand by either the District Collector herself or any officer authorised by the District Collector. in that behalf the District Collector shall, notwithstanding anything in the Act, order, without any notice, immediate eviction of the encroachers from the land and take possession of the land. Thereupon, it shall be lawful for the authorised officer in that behalf to evict the encroachers from the land by force taking such police assistance as may be necessary and take possession of the land. Therefore, two limbs of action to be taken under subs. (1) of S. 7-A are mandatory and to be complied with. The condition precedent for taking such an action is that the District Collector must know or have reason to believe, on the basis of the material available on record, that a group or groups of persons without any entitlement and with the common object of occupying the Government land, are occupying or have occupied such land.
Then, the District Collector may himself/herself, or any officer authorised by him/her to give a demand on them to vacate the land. If the encroachers do not vacate, then the District Collector shall, notwithstanding anything in this Act, order without any notice, the immediate eviction of the encroachers from the land, and in case, he authorises any officer, the officer so authorised is empowered to take possession of the lan& On giving such authorisation, the action to be taken is adumbrated thus:
"And thereupon it shall be lawful for any officer authorised by the District Collector in this behalf to evict the encroachers from the land by force taking such police assistance as may be necessary and take possession of the land."
6. It is true that in Government of Andhra Pradesh v. T. Krishna Rao-, as contended by Sri Mohan Rao, (it was) held that if there is any bona fide dispute regarding title of the Government to take 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 under S. 7 for evicting the persons who are in possession of the property under bona fide claim or title for a long period. In the normal circumstances where there is evidence that encroacher was allowed to remain for considerably long period and who thereafter lays a bona fide claim or title to the suit property, the summary procedure provided under S. 6 cannot be resorted to by the Government in assertion of its title thereto. But in my view the change has been brought about by the Legislature in introducing S.7- A in addition to the summary remedy available under S. 6 normally in solitary and stray cases where acting under S. 7, is necessitated after issuing notice and passing an order under S. 6 for ejectment of encroachers, of long standing duration, the recourse to the said provisions cannot be had. But in cases where encroachement is by group or groups of persons without any entitlement and with the unlawful object of occupying the Government land are occupying or have occupied and where it is not possible to prevent such encroachments, to put down such tendency Legislature stepped in and introduced S. 7-A arming the Government to take recourse to the said power in a given situation. Therefore. the ratio in Krishna Rao's case (supra) rendered ineffectual to the gamut of operation of S. 7-A.
7. The argument of Sri Mohan Rao, is that the Collector shall herself make a demand or an Officer authorised by her in that behalf shall make a demand, obviously in writing and after giving reasonable opportunity to resist the action, an order is to be passed thereon. On failure to vacate the land on making such demand, then the Collector shall make an order directing immediate eviction of the encroacher from the land and thereupon it shall be lawful for the officer authorised by the District Collector to evict the encroachers from the land by force and after taking such police assistance as may be necessary, then only the possession of the land can be taken. Any attempt to take possession otherwise than through the above procedure is obnoxious to fair procedure under Art 14anddeprivationofthelivelibood under Art. 21 of the Constitution. It is true as contended by Sri Mohan Rao that demolition of the buildings in occupation without just and fair procedure would amount to deprivation of their livelihood offending Art. 21 of the Constitution. The contention of Sri Subba Reddy, the learned Government Pleader, that in view of S. 7-A the procedure of issuing notice and regular enquiry is dispensed with by necessary implication cannot be accepted. The sweep of the right to fife conferred by Art. 21 is wide and far- reaching. In Olga Telis v. Bombay Municipal Corporation, their Lordships of the Supreme Court .held that "no person can live without the means of living i.e., the means of livelihood. If the right to livelihood is not treated as a part of the Constitutional right to life, the easiest way of depriving a person of his right to life would to deprive him of his means to livelihood to the point abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live, and yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life' Indeed, the massive migration of the rural population to big cities is in a search of livelihood. They migrate because they have no means of livelihood in the villages. The motive force which propels their discretion of their hearts and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live. Only a handful can afford the luxury of living to eat. That they can do, namely eat, only if they have the means of livelihood. In para 37 of the judgment in Olga Tellis' Case , Chandrachud, C. J. held thus:
"Two conclusions emerge from this discussion. One, that the right to live which is conferred by Art. 21 includes the right to livelihood and (2) that it is established that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. But the Constitution does not put an absolute embargo on the deprivation of life or personal liberty. By Art. 21, such deprivation has to be according to procedure established by law."
In Para 40, it is held thus 'Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right in this case the right to life, must conform to the nor" of justice and fairplay. Procedure which is unjust or unfair in the circumstances of a case attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore to be tested by the application of two standards, the action must be within the scope of the authority conferred by law and secondly, it must be reasonable. If any action, within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the procedure established by law under which that action is taken is itself unreasonable. The substance of the law cannot be divorced from the procedure which it prescribes for, how reasonable the law is, depends upon how fair is the procedure prescribed by it."
The purpose of rule of law is the protection of the individual against arbitrary exercise of power. In a Democracy governed by rule of law, the statutory authority should possess no arbitrary power over the interests of a citizen. Therefore, the procedure adopted under 5. 7-A must also be reasonable. Just and fair, conducive to the given circumstances of a case but in no case it should be unreasonable or arbitrary. Therefore let us see what exercise of the power under S.7-A would amount deprivation of right to life. No one has a right to encroach upon public property and construct houses and do a regular avocation or practise profession. We Shave already seen the operation of sub-s. (1) of S. 7-A. The rule of audi alteram partem nas to be read into the first limb of S. 7-A(I). The District Collector by proceedings dt. Jan 24, 1987, authorised the Revenue Divisional Officer and Mandal Revenue Officer, Secunderabad, to demand from the groups of persons in occupation of the land situated in old S.NI. 43, now T.S. No, 4 in ward No. 100 block-A Bholakpur, opposite to Deccan Continental Hotel, to vacate the land and on their failure to vacate the said officers have further been authorised to cause immediate eviction of the encroachers and to take possession of the land. Subsequent thereto, by proceedings dt. Jan. 28, 1987 the Mandal Revenue Officer issued demand notice in exercise of the power under S. 7-A thus :-
"Whereas the District Collector, Hyderabad, during the inspection noticed that several groups of persons have illegally occupied the portion of the land mentioned below with the common object of appropriating the same and which property belongs to the Government as per the survey and settlement and other revenue records and whereas the District Collector, Hyderabad authorised the undersigned in this behalf to demand the eviction of the encroachment, the persons occupying the area are hereby required to vacate the same within three days and remove their belongings, failing which it will be removed and possession will be taken as per ,above orders."
From the record also, it would appear that it was served by substituted service on Jan. 28, 1987 on four persons, including the three petitioners in the second writ petition and the possession has been taken under the panchanama dt. 2-2-1987 duly drawn. The procedure adopted is just and fair and it does not amount to deprivation of livelihood offending Art. 21 of the Constitution. Yet, the procedure adopted must meet the test of fair-play.
8. The next contention of Mr. Mohan Rao, is that the action is violative of the principles of natural justice. It is mandatory that the District Collector herself or an officer authorised shall order demanding possessing and conduct an enquiry; pass an order and on their failure to vacate the land, the District Collector, shall again pass an order without notice immediate eviction of the encroachers from the land and it shall be lawful for the authorised officer thereafter to take possession of -the land. In Liberty Oil Mills v. Union of India, , Chinnappa Reddy, J.9 held that an opportunity of hearing either pre-decisional or post-decisional shall be read into Cl. 8-B of the Import Control Order, 1955, and on that premise, upheld the rule. Equally, in Olga Tellis case (supra), the constitution Bench construed 5. 314 of the Bombay Municipal Corporation Act which gives power to the Commissioner, without notice, to take steps for removal of the encroachment in or around or on any street, channel drain, etc. It was contended on- behalf of the corporation that notice is not necessary and it is a futile exercise to give notice to the squatters and, therefore, the action taken without notice is not violative of the principles of natural justice. Construing the need to read into S. 314 of the doctrine of audi alteram partem Chandrachud, C. J., held thus :
"While vesting in the Commissioner the power to act without notice, the legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partetn (Hear the other side) could be presumed to have been intended. Section 314 is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place, the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required the burden being upon those who affirm their existence."
The propositio that notice need not be given of a proposed -action because there can possibly be no answer to it, is contrary to the well-recognised understanding of the real import of the rule of bearing. That proposition overlooks that justice must not only be done but must manifestly be seen to be done and confuses one for the other. The appearance of injustice is the denial of justice. It is like the dialogue with the person likely to be affected by the proposed action which meets the- requirement that justice must also be seen to be done. Procedural safeguards have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institutional cheek on arbitrary action on the part of the public authorities. The right to be heard has two facets, intrinsic ant instrumental The intrinsic value of the right consists in the opportunity which it gives to the individuals or groups, against whom decisions taken by the public authorities operate to participate in the process by which those decisions are made; a word that expresses their dignity as persons. With regard to the squatters on public properties and their right to be heard, the same has been considered in para 49, which reads thus : -
"The jurisprudence requiring hearing to be given to those who have encroached on pavements and other public properties evoked a sharp response from the 'respondents' counsel. 'Hearing to be given to trespassers who have encroached on public properties. To persons who commit crimes', they seemed to ask in wonderment. There is no doubt that the petitioners are using pavements and other public properties for an unauthorised purpose. But, their intention or object in doing so is not to "commit an offence or intimidate, insult or annoy any period', which is the &t of the offence of 'criminal trespass' under S. 441 of the Penal Code. They manage to find a habitat in places which are mostly filthy or marshy, out of sheer helplessness. It is not as if they have a free choice to exercise as to whether to commit an encroachment and if so where. The encroachments committed by these persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice. Trespass is a tort. But, even the Law of Torts requires that though a trespasser gay be evicted forcibly, the force used must be no greater than what is reasonable and reasonable and appropriate to the occasion acted what is even more important, "the trespasser should be asked and given reasonable opportunity to depart before force is used to expel him."
9. The ratio laid down in the above two decisions leads to- the irresistible conclusion that an authority empowered under a statute has to exercise the power consistent with the object for which the power has been invested and having regard to the exigencies, the appropriate procedure has to be devised and followed. Right to bearing must be either pre-decisional or post-decisional and depending upon the exigencies the doctrine of audi alteram partem at pre-decisional stage could be denied only if the action does not brook any delay. Otherwise, as nunimum a time as possible, and an opportunity of hearing must be given and a person affected must have an opportunity of fair hearing be it individually or collectively, either in person or through an authorised representative or a counsel and then decision be taken by the competent authority authorised under the .statute. In Superintendent of Post Officer, Khammam v. Kalluri Vasayya, (1 984) 3 APLJ page 9 : (1984 Lab IC NOC 87) 1 had an occasion to consider the effect of the doctrine of audi alteram partern in the context of denial to a legitimate expectation of appointment of the selection to a post relying on adverse confidential report and held in paras 130 and 131 thus: -
'The Audi alteram partem rule must be flexible, malleable and adaptable concept to adjust and harmonise the need for speed and obligation to act fairly. When the rights of the Government are widely stressed, the rights of the person are often threatened, when the latter are over emphasised Government becomes weak to keep order. Therefore, the rule can be tailored and the measure of its application cut short in reasonable proportion to the exigencies of the situation. The administrative agency can develop a technique of decision worthy of being called "ethos of adjudication". In the words of Harry W. Jones that : "meaningful statutory standards, realistic procedural requirements and discriminatory techniques of judicial review are among the tools to control the discretionary power. (Rule of Law and Wellfare State (1958) 58 Columbia Law Review ',"143 at 152). It makes no difference whether the occasion for the excrcise of power is personal default or act 'of policy. Good administration demands fair consultation in each case and this the law can and should enforce.' "This the insistence of the observance of fundamental fairness in the procedure becomes a balancing balm to alleviate apprehension of arbitrary decision by the executive Government while assuring opportunity to disabuse the prima facie impression formed against the person to usher in an era of largest good to largest number of people with proper checks and balances between needs of the State and the rights of the individual. Thus the brooding omnibenevolence and omnicompetency of the need for expediency and claim for justices interplaying ethos of fair adjudication in action.'
10. To subserve the fundamental fairness in procedure and to avoid arbitrary exercise of power under S. 7-A right of hearing must be read into S. 7-A(1) of the Act. Undoubtedly, the District Collector, on knowing, or having reason to believe that group or groups of persons without an entitlement and with the unlawful object to occupy the Government land encroachee upon and are taking or have taken possessions thereof, is entitled to give demand on the encroachers to vacate and deliver possession thereof. The demand obviously must be in writing and served on the encroachers encroachers. It is open to the occupier or occupiers to lay his/their claim in support thereof and place before the District Collector of their claim for title to and possession of the land in their own right or any other tangible right. Therefore, before taking any further steps as required under the second limb of sub-s. (1) of S. 7-A and passing an order ox ejectment in exercise thereof, the person in occupation must be given an opportunity ox being heard either in person or through an authorised re-presentative. If the urgency is such a grave one and the situation is such that, it does not brook any delay and the gravity of the situation warrants to take immediate possession without prior hearing it may be permissible for the District Collector to pass an order under the second limb of sub-s (1) of S.7A directing ejectment of the officer to take immediate possession. In such a case, the District Collector must provide a post- decisional opportunity of hearing and then reconsider the matter on the basis of the material placed before the Collector. If the situation is not grave or the urgency does not exist, then pre-decisional opportunity of hearing is the rule and the doctrine of audi alteram partem has to be adhered to. Depending upon the exigencies, the time may be given for hearing. The time may be as minimal as possible. Normally, when the occupation of land is for a long time, recourse to S. 6 action can be had. If the contest of title is complex and complicated, right to suit and resolution thereof is the satisfactory course. If the occupation of the Government land and construction of the houses thereon are of recent past without any entitlement, then persons in occupation need breathing time to make alternative arrangements for shifting. Human compassion softens the rough edges of justice. Right to hearing subsumes the too tense a situation and assuages the feeling of injury of arbitrary action by the executive. Even persons without any semblance of right may even make representations to the District Collector to provide them alternative Government land if available elsewhere for their rehabilitation or may request for a longer period for evicting' from the lands in their occupation. Abrupt eviction of slum dwellers humblest and lowest and destruction of their improvised dwellings not only ruin all they held dear to life but also deprives them of their livelihood. Considered from this perspective, the hearing however, informal, is pragmatic and help in a great way. Therefore, it is mandatory. Even if their claim gets rejected, their request for reasonably sufficient time to vacate the land could, under no circumstances, be said to be unreasonable. Even after order is passed under the first limb of sub-s. (1) of S. 7-A and before taking possession it is mandatory that the District Collector shall pass an order to immediately vacate the land and the officer authorised for the purpose thereupon is entitled to take forcible possession with the assistance of the police. The words 'shall order eviction" under the second limb 'of sub- s. (1) of S.7-A is couched in mandatory language. Therefore, the District Collector is herself enjoined to pass an order under the second limb of sub-s. (1) of S. 7-A. The non- compliance thereof vitiates the action.
11. As soon in this case, the District Collector passed orders as required under the first limb of sub-s. (1) of S. 7-A and authorised the Revenue Divisional Officer and Mandal Revenue Officer to demand possession of the land from the petitioners. As a follow up action, the Mandal Revenue Officer in his proceedings dt. Jan. 27, M7, made a demand on them and served the notices by substituted service on the petitioners in the second writ petition, namely, W. P. No. 1367187 giving three days time and follow-up action is yet to be pursued against the other writ petitioners. Possession was not deuvered by the three writ petitioners in the second writ petition and another. But the District Collector did not make an order as required under the second limb of sub-s. (1) of S. 7-A.ThecontentionofSriSubbaReddy, the learned Government Pleader, that the composite order dt. Jan. 24, 1987 is a valid one and the Mandal Revenue Officer thereby gets jurisdiction to order ejectment, cannot be countenanced. Both the first step as well as the second step are mandatory. The formation of an objective satisfaction is by the District Collector that the land belongs to the Government and that its occupation by a group or groups of persons with the common object of occupying the said land is without any entitlement. Then either herself or the officer authorised can make the demand for delivery of the possession. Therefore, the demand by the officer authorised by the District Collector is a ministerial act. Either on refusal to deliver possession or on failure to deliver possession, then passing an order of immediate eviction shall be by the District Collector and not by the Officer so authorised. The Legislature did not give any indication that the second limb of the action could be performed by the authorised officer. On passing the order under the second limb of sub-s. (1) of S. 7-A, then as indicated in sub. s. (1) of S. 7-A (thereupon it shall be lawful for any officer authorised by the District Collector in this behalf to evict the Encroachers from the land by force) amplifies that it would be only ministerial act that was given to the authorised officer but the statutory performance of the duty must be by the District Collector personally.
12. In this case no opportunity of hearing been given to the petitioners after the demand was made for delivery of the possession and no order of immediate eviction of tile petitioners was made by the District Collector. Therefore, without making of any under by the District Collector, as enjoined under the second limb of sub-s. (1) of S. 7-A, the authorised officer is devoid of authority of law to pursue follow-up action of taking forceful possession from the petitioners. I have, therefore, no hesitation to hold that the action taken by the respondents is clearly illegal Accordingly, it is declared-.
13. Then what is the suitable order that may be made is the question? Normally, the result must follow the event. But it is found by the Collector that it has become difficult to control the encroachments on the Government land being made with impunity and, therefore, action was initiated on a time bound frame and the possession was taken from the petitioners 1 to 3 in the second writ petition and another and follow-up action is yet to be gone through in respect of other persons in the first writ petition. The commissioner appointed, by this Court submitted the report. The report shows that the properties have not been completely removed from the site. The petitioners 1 to 3 are prevented from entering into the area after taking delivery of the possession under the panchanama dt. 2-2-1987. The Division Bench in W.A.M.P. No. 221/87 in W.A. No. 131/87 on Feb, 16, 1987, against the order passed by the learned single Judge, directed, to maintain status quo as on that day as per the Commissioner's report and it shall continue. The first petitioner in the second writ petition shall be allowed to remove the steel and other materials from her premises. They shall also be permitted to keep a watchman at their premises. The barricade may be removed for the purpose of enabling the petitioners to remove the materials stored in the premises. The Division Bench order shall continue to be in operation till the petitioners are heard and orders passed by ,he Collector. The petitioners are directed to submit their representation either In person. or through counsel within a period of one week from today. The Collector shall give an Opportunity of hearing to them within a period of one week thereafter and depending upon 'he result in the enquiry, In the event of a Direction to vacate the land is passed, reasonable time of two weeks may be given :o the petitioners except petitioners in the W.P. No. 1367187 to vacate the lands and if they do not vacate, then it shall be open to the District Collector to pass an order directing them to be evicted without any notice and possession taken as per the second limb of sub-s. (1) of S. 7-A.
14. The writ petitions are accordingly allowed with the above directions but in the circumstances, each party is directed to bear its own costs. Advocate's fee Rs.500/- in each.
15. Petitions allowed.