SPECIAL DY COLLECTOR Vs. KONDA LAKSHMAN BAPUJI

JUDGEMENT

(1.) These two writ appeals, filed by the Special Deputy Collector, Land Eviction, Hyderabad, and the Tahsildar, Taluk Urban, Hyderabad, arise out of a common judgment allowing writ petitions No 1414 and 1413/77. The respondents are the writ petitioners Notices under Sec. 8 of the A P Land Encroachment Act were issued to the petitioners in W P No 1414/77 and 1413/77 on 1-5-73 and 3-6-76 respectively, calling upon them to show cause why they should not be evicted from certain extents of land in Khairatabad village forming part of S Nos 9/15, 9/16 and 9/17. They submitted their representations on 11-6-76 claiming that they are in possession of the land as permanent lessees under two separate registered lease deeds executed on 8-12-56. The petitioners complain that the authorities are seeking to evict them even before the completion of the enquiry and found to be encroachers within the maaning ot the act The petitioners prayed for a writ of mandamus restraining the respondents from evicting and interfering with their possession. The case of the petitioner in W P No 1414/77 is that under the agreement dated 28-11-52 he was inducted into possession as a permanent lessee and thereafter a regis- tered lease deed was executed in his favour on 11-12-57. Whereas the case of the petitioner in W P No 1413/77 is that she was inducted into possession as a lessee undar a registered lease deed dated 8-12-56. The Government, however claims that these extents forming part of S. Nos 9/15, 9/16 and 9/17 are government lands and the respondents, being encroachers, are liable to be evicted summarily under Sec 6 of the Act. The Tahsildar is the competent authority to take proceedings under the Act, and therefore, no writ, as such, would lie.

(2.) Justice Chinnappa Reddy (as he then was) by a judgment, following an earlier judgment of this court in Meharunnissa Begum v. State of Andhra Pradesh 1970 (1) A. L. T. 88 in which a Division Bench of this Court affirmed the view taken by the learned single judge, held that the statute enables the Collector or the Tahsildars to take action under the Act only in cases where the occupation is recent or where the occupant by some action of his indicated that he admits his occupation to be unauthorised. The view taken by this court in Meharunnissa Begum vs State of Andhra Pradesh (cited supra) was approved by the Supreme Court in Govt. of A P vs T Krishna Rao AIR 1982 SC 1081. The Supreme Court has laid down that "if there is a bona fide 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 Sec. 6 for evicting the person who is in possession of the property under a bona fide claim or title". The court further held that the summary remedy prescribed by Sec. 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title, That procedure is, therefore, not the due process of law for evicting the alleged trespassers. The court further observed : "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 bonafide. 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". Giviny examples of property in respect of which summary proceedings under Sec. 6 and 7 of the Act could be taken, their Lordships pointed out that "a person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is unauthorised occupation of property which is declared by Sec, 2 to be the property of the Government and, therefore, it is in public interest to evict him expeditiously, which can only be done by resorting to the summary remedy provided by the Act".

(3.) Keeping the above dicta in view if we examine the facts of this case, we must find that no proceedings under the A.P, Land Encroachment Act can be taken against the respondents. Earlier one Rasheed Shapoorji Chenoy had filed a suit O.S. No. 13/58 on the file of the Additional Chief Judge, City Civil Court, Hyderabad against the writ petitioners and their lessors as also the Government for declaration of title and recovery of possession. That clearly implies that even by the date of filing of the suit, the petitioners were in possession. It is not disputed that the writ petitioners or their lessors were in possession atleast from 1952. Rasheed Shapoorji Chenoy no doubt lost in that suit and the trial court gave a categorical finding that the title of the property vested in the Government. Rasheed Shapoorji Chenoy did not pursue the matter further by way of an appeal. However, the writ petitioners, who are the persons actually in possession of the property apprehending that the declaration of title in favour of the Government in a suit filed by Rasheed Shapoorji Chenoy may adversely affect them carried the matter in appeal to this court in CCCA. 8 and 85/76 Their lessor also preferred an appeal CCCA 116/76. A division Bench of this court came to the conclusion that the trial court having found that Rasheed Shapoorji Chenoy was not the owner of the property, was not required to give a further finding whether the title vested in the Government. The finding that Rasheed Shapoorji Chenoy, the plaintiff, was not the owner was sufficient to dismiss his suit. In that view of the matter the court held that the appeals preferred by the writ petitioners and their lessor were not maintainable. It also held that finding does not operate as res judicata as between the writ petitioners their lessor and the Government. Thus, the question of title as set at large. Admittedly, the writ petitioners are in possession of the land eversince the date of the registered lease deeds of 1956. Notices under sec. 7 of the A P. Land Encroachment Act were issued for the first time in 1976 ie. 20 years after the registered lease deeds. In fact the petitioners and their lessor claim to be in possession atleast from 1952 i.e. nearly 25 years prior to the issuance of the impugned notices. Thus their possession is not only long standing but also openand continuous and long before even the third party Rasheed Shapoorji Chenoy filed a suit Claiming title in himself and denying the title of the government and seeking eviction of the writ petitioners. Even that suit was resisted by the writ petitioners claiming that they are lessees of one Mohd Nocruddin. If really the Government was keen on summarily evicting the writ petitioners they should have taken procesdings within a reasonable time after the writ petitioners or their lessor had encroached upon the land. The occupation of the property by the writ petitioners being open and for an appreciable length of time as observed by the Supreme Court 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. Since there is a bona fide dispute of title between the Government and the writ petitioners it must be adjudicated upon by the ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict them summarily on the basis of such decision. The land in possession of the writ peiitioners is not part of a public road street, bridge or the bed of the sea and the like. Therefore, we are clearly of the view that the proceedings under the A.P. Land Encroachment Act cannot be taken and no enquiry can be held by the Tahsildar and the petitioners cannot be evicted in pursuance of any such enquiry. We therefore affirm the view taken by the learned single judge.