Andhra HC (Pre-Telangana)
Pre. Jothi Education Society vs Secretary, Major Irrigation, ... on 7 June, 2002
Equivalent citations: 2002(6)ALD83, 2002(4)ALT417, 2002 A I H C 3576, (2002) 6 ANDHLD 83 (2002) 4 ANDH LT 417, (2002) 4 ANDH LT 417
Author: G. Rohini
Bench: G. Rohini
ORDER MBN, J.
1. The appellant in W.A.No.850 of 2001 and the petitioner in W.P.No.9609 of 2001 are on and the same. During the course of hearing of the Writ Appeal, we suggested to the learned counsel for the parties that the Writ Petition could also be taken up for hearing along with the Writ Appeal so that the controversy raised in the Writ Petition could be decided. The learned counsel agreed to our suggestion and as such, the Writ Appeal and the Writ Petition are taken up for decision and we dispose of the same by the following common order:
Before we decide the issue raised in the writ petition, few facts are set out for proper appreciation of the case of the writ petitioner as well as the respondents. For the sake of convenience the parties are referred to with their status in the writ petition.
2. The writ petitioner-Jyothi Education Society, Vijayawada was established in the year 1964 under Regd.No.95/1964. The object of the petitioner-Society is to establish educational institutions. According to the petitioner-Society, it established High-Schools, Junior Colleges, Degree Colleges and Post Graduate Centers, which are recognized and affiliated to the Board of Intermediate Education and other respective Universities.
3. In the year 1964, the petitioner-Society established an English Medium School at Vijayawada named as Jyothi Bala Mandir High-School, Vijayawada. The petitioner approached the Irrigation Department for allotment of lands in Vijayawada Town in N.T.S.No.627/A, M-1/3-4 on Eluru Canal belonging to P.W.D. for release. On the basis of the recommendations of the Chief Engineer, Major Irrigation/2nd respondent, the Government of Andhra Pradesh, issued G.O.Ms.No.287, dated 13.6.1969 permitting 2nd respondent to lease out an extent of 1000 sq. yards to the petitioner-Society for a period of 25 years on a nominal rent of Rs.10-50 ps. per plot per month and permitted the petitioner-Society to construct buildings. The Government also issued yet another G.O. i.e., G.O.Ms.No.1106, dated 16.8.1971 according sanction to lease out P.W.D. site measuring 1032 1/3 sq. yards in favour of the petitioner-Society for a period of 25 years on a nominal rent at Rs.10-50 ps. per plot (at the same rate as was fixed pursuant to G.O.Ms.No.287, dated 13.3.1969) and also permitted the petitioner-Society to construct buildings. The Government of Andhra Pradesh later issued Memo No.3338-S2/71-1, dated 17.9.1971 amending G.O.Ms.No.1106, dated 16.8.1971 whereby the entire area situated between the site already leased out to the petitioner-Society and Kannada Seva Sangham in N.T.S.No.627-A was allotted to the petitioner-Society. Thus in all an extent of 3283 sq. yards of land was lease out to the petitioner-Society by way of three different proceedings, dated 13.3.1969, 16.8.1971 and 17.9.1971 respectively for a period of 25 years. The 1st lease granted pursuant G.O.Ms.No.287, dated 13.3.1969 expired by 13.3.1994; the second lease granted pursuant to G.O.Ms.No.1106, dated 16.8.1971 expired by 16.8.1996 and the third lease granted pursuant to Memo No.3338-S2/71-1, dated 17.9.1971 expired by 17.9.1996.
4. It is the case of the petitioner-Society that after grant of the leases as indicated above, the petitioner-Society invested huge amounts and constructed pucca buildings besides providing furniture and other infrastructure with an expectation that the Government would extend the lease period or permanently alienate the land to the petitioner-Society at a nominal rate or at free of cost as the petitioner-Society is involved in educational activities. According to the petitioner-Society, it made a representation to the respondents on 18.5.1990 with a request to extend the lease period. The petitioner-Society said to have received a communication on 18.4.1996 from the office of the District Collector, Krishna, calling upon the petitioner-Society to furnish certain information for considering the case of the petitioner for extending the lease period. A reply seems to have been submitted by the petitioner on 24.4.1996, but the matter seems to have been kept under cold storage. However, according to the petitioner-Society, the Assistant Engineer issued a demand notice on 4.10.1999 to the petitioner-Society for payment of arrears of rent. The petitioner-Society promptly reacted to the said notice and paid the rents. The Assistant Engineer received the rent from the petitioner-Society for the months from April, 1999 to October, 1999 under receipt dated 19.11.1999. It is also claimed by the petitioner-Society that the Assistant Engineer received the rents for the period from November, 1999 to April, 2000 under receipt, dated 29.4.2000. According to the petitioner-Society, the Department refused to receive the rents thereafter and therefore, the petitioner-Society sent the amounts for the period from May, 2000 to March, 2002 by way of a pay order dated 2.3.2002 to the Department.
5. While the matter stood thus, it is complained to this Court that the respondents issued a notice under Section 7 of the A.P. Land Encroachment Act, 1905 on 18.4.2001 to the petitioner-Society calling upon it to show cause why they should not proceed under Section 6 of the A.P. Land Encroachment Act 1905 (hereinafter referred to as "the Encroachment Act"). It is also complained that, though no specific time was fixed in Sec.7 notice for filing objections, however, the petitioner-Society filed objections on 30.4.2001. It is further complained that even without examining the objections filed by the petitioner-Society, the respondents issued a notice under Section 6 of the Encroachment Act on 28.4.2001 to the petitioner-Society giving only two days time for vacating the lands leased out to it. It is also complained that the respondents high-handedly locked the buildings constructed by the petitioner-Society on 2.5.2001 and under this back ground, the petitioner-Society approached this Court by filing W.P.No.9609 of 2001 seeking a writ of Mandamus declaring the action of the respondents in closing the Jyothi Bala Mandir and other institutions under the management of the petitioner-Society as illegal, without jurisdiction and also seeking a consequential direction to break open the locks and seals of the premises and a further direction to the respondents not to interfere with the peaceful possession and enjoyment of the petitioner-Society in running the educational institutions and to pass such other relief.
6. The learned single Judge (Vacation Court) while admitting the writ petition on 16.5.2001 granted status quo appearing as on that day in W.P.M.P.No.12140 of 2001, against which the petitioner-Society filed W.A.No.850 of 2001. In the said Writ Appeal, the learned Division Bench (Vacation Court) while admitting the Writ Appeal, on 22.5.2001 granted interim direction in W.A.M.P.No.1941 of 2001 directing the respondents to open the locks and permitted the petitioner-Society to run its educational institutions.
7. As against the interim order granted by the learned Division Bench on 22.5.2001 in W.A.M.P.No.1941 of 2001, the respondents filed a vacate petition in W.A.V.M.P.No.3586 of 2001. Thus, the Writ Appeal came up for hearing before this Court.
8. At that stage we desire the W.P.No.9609 of 2001 could also be taken up for consideration for a decision along with W.A.No.850 of 2001.
9. Sri T. Veerabhadraiah, learned counsel for the petitioner-Society submitted that the petitioner-Society secured the sites in question on lease through various G.Os. issued by the Government of Andhra Pradesh for a period of 25 years on payment of nominal rent and that during the subsistence of the lease period, the petitioner-Society filed various representations to the Government, District Collector as well as the concerned authorities for extending the lease period and despite the representations made by the petitioner-Society, the Department failed to accede to the request of the petitioner-Society. He further submitted that though the lease period relating to the sites in question expired in the year 1994 and 1996 respectively, the respondents have been collecting rents from the petitioner-Society and a notice dated 4.10.1999 was also issued by the respondents calling upon the petitioner-Society to pay the rents for the months of April, 1999 to September, 1999 and the amounts were also paid. He further submitted that since the petitioner-Society has been paying rents and the respondents have been collecting rents even after expiry of the lease period, the tenancy is month to month and as such the status of the petitioner-Society is a tenant in holding. He complained to this Court that the respondents having collected the rents up to April, 2000, could not have resorted to issuance of notice under Section 7 of the Encroachment Act on 18.4.2001. Even otherwise, according to the learned counsel for the petitioner, a reply was issued by the petitioner-Society on 30.4.2001 to the Section 7 notice, dated 18.4.2001, but the respondents without waiting for the objections of the petitioner, issued a notice under Sec.6 of the Encroachment Act on 28.4.2001 giving only two days time to the petitioner-Society to vacate the sites leased out to it and thereafter on 2.5.2001 locked the buildings, leaving the petitioner at the mercy of the respondents. The learned counsel also complained that when the petitioner-Society had constructed several pucca buildings for running the educational institutions and several students have been imparting teaching in the educational institutions and staff also has been engaged by the petitioner-Society for running the educational institutions, the respondents could not have resorted to issuance of notices under Sections 7 and 6 of the Encroachment Act and could not have locked the buildings. He submitted that as required under Sec.7 of the Encroachment, specific time has to be indicated in the notice for offering explanation, which is a mandatory requirement and having not specified the time, the notice issued under Sec.7 is illegal and unsustainable and the consequential proceedings issued by the respondents under Sec. 6 of the Encroachment Act and the action of the respondents in locking the premises are illegal and without any authority and on this ground also the impugned proceedings are liable to be set aside. The learned counsel also pleaded that the provisions of the A.P. Land Encroachment Act, 1905 would not apply to the facts of the present case as the petitioner-Society has been in occupation of the premises as a tenant in holding and therefore, the respondents could not have invoked the provisions of the Encroachment Act and therefore, seeks appropriate direction from this Court.
10. The learned Government Pleader for Irrigation and Command Area Development representing the respondents, while admitting the fact of leasing out the lands in question for a period of 25 years to the petitioner-Society pursuant to the three separate proceedings, contended that the lease period under the 1st G.O. expired by 13.3.1994, the second lease expired y 16.8.1996 and the third lease also expired by 17.9.1996. According to the learned Government Pleader, the respondents expected that the petitioner-Society would deliver possession of the lands leased out after the expiry of the lease period and in the absence of petitioner-Society showing any inclination to vacate and hand over the possession of the lands leased out to it, the respondents issued a quit notice on 21.12.1999 under Section 106 of the Transfer of Property Act. He further submitted that no reply was sent by the petitioner-Society to the said quit notice and after issuing the quit notice, no rents were received by the respondents. He further submitted that on 4.10.1999 the respondents issued a notice calling upon the petitioner to pay the rents as the petitioner was utilizing the sites without paying any rent. The learned Government Pleader admitting the fact of receiving rents up to April, 2000 for the lands lease out, contended that during pendency of the writ petition and when the writ appeal came up for consideration, the petitioner sent the rents for the months from May, 2000 to March, 2002 by way of a pay order, which was not accepted by the respondents and returned. He further submitted that when the petitioner stopped payment of rents to the Department from May, 2000, on 10.11.2000 the Assistant Engineer concerned issued a second quit notice to the petitioner asking the petitioner-Society to vacate the lands leased out to it and handover the possession of the same. He further submitted that as the petitioner has been in possession of the leased out lands even after expiry of the lease period, the respondents are justified in invoking the provisions under Sections 7 and 6 of the Encroachment Act and pleaded for dismissal of the Writ Petition and Writ Appeal.
11. On an elaborate hearing of the learned counsel for the petitioner and the learned Government Pleader for the respondents, the question that arises for consideration is, whether initiation of proceedings by the respondents against the petitioner-Society under the provisions of the A.P. Land Encroachment Act, 1905 is justified?
12. The learned counsel for the petitioner contended that the petitioner is a tenant in holding and even after expiry of the lease period the respondents have received rents and thus consented to continue the occupation of the petitioner and by such permission only the petitioner has been continuing in the occupation of the lands leased out to it and therefore, the respondents could not have taken recourse under Sections 7 and 6 of the Encroachment Act. It would be difficult for us to appreciate this submission. Admittedly, the lease periods expired by 13.3.1994, 16.87.1996 and 17.9.1996 respectively. No doubt the petitioner had filed a representation before the appropriate authority seeking extension of lease period, however there is no order accepting the request of the petitioner. The petitioner did not choose to file a reply to the quit notice issued by the respondents on 21.12.199 under Section 106 of the Transfer of Property Act. As the petitioner has been continuing in occupation of the lands leased out to it, the respondents demanded rents from the petitioner initially up to March, 1999. The respondents have admitted in the counter that rents have been received from the petitioner up to April, 2000 and thereafter the petitioner neither paid any rents nor vacated the lands leased out to it. In the back ground of the petitioner squatting over the lands unauthorizedly even after expiry of the lease period, the respondents have invoked the provisions under Sections 7 and 6 of the A.P. Land Encroachment Act, 1905.
13. Section 15-A of the A.P. Land Encroachment Act, 1905 provides thus:
"S.15-A. Certain persons deemed to be in unauthorized occupation of land:- Where a lease of land which is the property of Government expires or is terminated by the Government or any other authority competent in that behalf, the lessee or any other person remaining in possession of the land after such expiry of termination, or where land granted to any person is liable to be resumed by the Government for the breach or non-observance of any of the conditions subject to which the grant is made and the Government or any other authority competent in that behalf have passed orders resuming the land for such breach or non-observance, the grantee or any other person remaining in possession of the land after the passing of those orders, shall for the purpose of Sections 3 to 15, be deemed to be a person unauthorizedly occupying such land."
14. A reading of this provision would amply demonstrate that where a lease of land which is the property of Government expires or is terminated by the Government or any other authority competent in that behalf, the lessee or any other person remaining in possession of the land after such expiry or termination, shall for the purpose of Sections 3 to 15 be deemed to be a person unauthorizedly occupying such land.
15. Admittedly, the lease period expired long back as indicated above. Though initially a quit notice under Section 106 of the Transfer of Property Act was issued by the respondents on 21.12.1999, the petitioner failed to give any reply to the said notice, but however, was sending some rents for few months and later on the basis of the notice issued by the respondents for payment of rents for certain months, the petitioner paid the rents up to November 1999. Admittedly, the respondents have also received rents up to April, 2000 and thereafter from May, 2000 onwards no rents were paid by the petitioner. During the hearing of the Writ Appeal, an effort has been made by the petitioner by sending rents for the period from May, 2000 to March, 2002 by way of a pay order dated 2.3.2002, which was in fact rejected and not received by the respondents. This step taken by the petitioner-Society, would amply demonstrate, how the petitioner tried to play his cards close to its heart.
16. The learned counsel for the petitioner submitted that the petitioner is a tenant in holding and therefore, falls within the ambit of Section 116 of the Transfer of Property Act. In order to appreciate this contention, it is relevant to quote Section 116 of the Transfer of Property Act, which reads as under:
"S.116: Effect of holding over:- If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which that property is leased, as specified in Section 106."
17. A reading of this Section would undoubtedly show that even after determination of the lease, the lessor, his legal representative accepts rents from the lessee or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month.
18. Though it is submitted on behalf of the petitioner that the petitioner is a tenant in holding, we do not think such a general view could be taken in the set of circumstances as discussed elaborately. The first notice was issued in the year 1999, but no reply was given by the petitioner and no rents were paid. The rents for few months were paid on issuing notice by the respondents. Rents were paid by the petitioner up to April, 2000, which fact was admitted by the respondents. The respondents all the way complaining that even though another quit notice was issued on 10.11.2000 by the Assistant Engineer asking the petitioner to vacate the lands in question and handover possession of the same, the petitioner has not taken any steps to vacate the lands and failed to handover possession of the same, though the petitioner paid rents up to April, 2000.
19. In order to reap the benefits under Section 116 of the Transfer of Property Act, it is for the petitioner to show that rents for the entire period were paid and they were received by the respondents and such receipt of rents would mean that the respondents presumably permitted the petitioner to continue in possession of the lands leased out to it without any written agreement. As discussed above, the learned Government Pleader has rightly pointed out to this Court that during hearing of the Writ Appeal, an effort is made by the petitioner by sending the rents for the period from May, 2000 to March, 2002 by way of a pay order dated 2.3.2002, which was refused. Thus it is clear that the petitioner neither paid rents for the period from May, 2000 onwards nor had any permission from the respondents to stay in the lands leased out to it. In this view of the matter, we are inclined to hold that the respondents are justified in invoking the provisions under Sections 7 and 6 of the Encroachment Act as the petitioner cannot be treated as a tenant in holding. On the contrary, without any hesitation, we hold that the petitioner has been squatting over the lands leased without any authority of law and therefore, the respondents are justified in initiating proceedings under the Encroachment Act invoking the provisions under Sections 7 and 6 of the Act.
20. Though it is contended by the learned counsel for the petitioner that the respondents could have taken recourse to the provisions of the Transfer of Property Act and could have filed a regular suit against the petitioner for eviction, we are not inclined to accept this submission. When there is an express provision under a Special Statute, provisions under General Statute need not be taken recourse to. The A.P. Land Encroachment Act, 1905 is a Special Act, which provides measures for checking unauthorized occupations of lands which are the property of Government. When there is a Special Act, which provided measures to meet a contingency arising out of unauthorized occupations, in our considered view, the respondents are justified in taking recourse to the provisions of the A.P. Land Encroachment Act, 1905. This view is reflected in the various pronouncements viz., in Jogendra Lal Saha vs. The State of Bihar ; in The State of Gujarat vs. Parel Ramjibhai and in Maharashtra Secondaryand Higher Education vs. Paritosh Bhupesh Kurmarsheth .
21. The learned counsel for the petitioner contended that when the representations filed by the petitioner for extension of the lease period are pending before the respondents, the respondents could not have taken recourse to the provisions under the Encroachment Act, seeking eviction of the petitioner. In support of his contention, the learned counsel for the petitioner relied on the decisions in Government of Andhra Pradesh vs. Bandi Venkatarama and in Ganginamena Kanthayya vs. The District Collector (1989(1) APLJ 108). These decisions, in our view, have no bearing on the facts of this case and the ratio laid down cannot be applicable to the facts of the case on hand.
22. The next question is, whether the notice issued under Section 7 of the Encroachment Act without specifying the time for filing objections suffers from any irregularity and the consequential order passed under Section 6 of the Encroachment Act by the respondents could be sustainable?
23. Section 7 of the A.P. Land Encroachment Act, 1905 reads as under:
S.7: Prior notice to person in occupation:- Before taking proceedings under Section 5 or Section 6 the Collector or Tahsildar, or Deputy Tahsildar, as the case may be, shall cause to be served on the person reputed to be ion unauthorized occupation of land being the property of Government, a notice specifying the land so occupied and calling on him to show cause before a certain date why should not be proceeded against under Section 5 or Section 6."
24. This Section, in our view, mandates the authority to specify the time for filing objections before initiating action under Section 5 or Section 6. Admittedly, the respondents issued a notice under Sec. 7 of the Encroachment Act on 18.4.2001. It is contended by the learned counsel for the petitioner that in the notice dated 18.4.2001 issued under Section 7 of the Encroachment Act, no specific time is indicated for filing objections by the petitioner.
25. As per the direction of this Court, dated 20.2.2002, the learned Government Pleader placed the original records before us. On verification of the original notice dated 18.4.2001 issued by the respondents, it is noticed that specific time is mentioned for filing objections. The learned counsel for the petitioner contended that as in the notice sent to the petitioner no specific time is mentioned and therefore, it can be presumed that there is insertion of the time in the original notice by the respondents. Be that as it may, we do not propose to go into the circumstances leading to insertion of time in the notice, keeping in view the fact that Section 7 notice was issued way back on 18.4.2001 and admittedly a reply to the said notice has also been sent by the petitioner on 30.4.2001. However, this reply could not be considered by the respondents, while passing an order under Section 6 of the Encroachment Act, as the order under Section 6 of the Act was passed on 28.4.2001 itself. Since the petitioner has sent reply to the notice on 30.4.2001, after understanding the implication, in our considered view, the notice issued by the respondents for all purposes, shall be held as proper notice issued under Section 7 of the Encroachment Act.
26. Since the respondents passed the order under Section 6 of the Encroachment Act on 28.4.2001 without considering the objections of the petitioner, in order to meet the ends of justice, the order passed by the respondents under Section 6 of the Encroachment Act on 28.4.2001 has to be set aside and we do so. Since we have held that the notice dated 18.4.2001 issued by the respondents under Section 7 of the Encroachment Act is a proper notice and the objections filed by the petitioner on 30.4.2001 have not been considered, we permit the respondents to pass appropriate order in the light of the objections filed on 30.4.2001 by the petitioner to the Sec.7 notice, according to law. Pending a decision by the respondents as directed by us, no coercive steps shall be taken against the petitioner by the respondents.
27. The writ petition is accordingly disposed of in the above terms. No costs. In view of the disposal of the Writ Petition, we do not think any thing survives in the Writ Appeal and it is accordingly dismissed.