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K. Kumar v. The Defence Estate Officer-Cum-Commander, Andhra Sub-Area, Sec-Bad. & Anr.

Andhra Pradesh High Court

Jan 19, 2009

Judgment

Subsequent
References

CaseIQ

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Summary of the Opinion

Factual and Procedural Background

The petitioner challenged an order dated 20.09.2005 of the I Additional Chief Judge, City Civil Court, Secunderabad (C.M.A. No. 60 of 2001), which dismissed the petitioner’s appeal against an order dated 18.08.2001 passed by the Estate Officer under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The impugned order had directed eviction of the petitioner from a house described as House No. 7-107 in survey No. 228 (total area 3.23 acres) in Yapral Village, Malkajgiri Mandal, Ranga Reddy District.

The petitioner’s father, late Mallaiah, formerly owned land in survey No. 227 (3.08 acres) and survey No. 228 (3.23 acres). In the 1970s, survey No. 228 was acquired (vested in the Defence Authorities), while survey No. 227 remained with Mallaiah. The Estate Officer alleged that the petitioner encroached 0.04 acre in survey No. 228 and constructed a pucca house. A Form-A show cause notice under Section 4 was issued; the petitioner submitted an explanation denying encroachment in No. 228 and asserting construction in No. 227, and claiming permission from the Cantonment Board.

The Estate Officer relied on a joint survey report (Ex. A1) and concluded the construction was in survey No. 228 (acquired). A Form-B notice under Section 5 was issued directing removal of the encroachment. The petitioner’s appeal to the City Civil Court was dismissed relying on Ex. A1. In proceedings before this Court, because the joint survey underlying the show cause was conducted without giving the petitioner notice, the Court ordered a limited survey (to determine whether the disputed land was in survey No. 227 or 228). Two court-ordered surveys (23.10.2008 and 15.12.2008) both reported that the petitioner’s encroachment was in survey No. 228. The first survey also reported Defence Authorities’ encroachment into survey No. 227 (reported as 554 square yards), although in subsequent objections the petitioner claimed 242 square yards. Both sides filed objections to the survey reports. The petitioner also submitted that his father constructed two rooms and a staircase before acquisition and that the family had been residing there for over three decades. The petitioner later sought an amicable settlement by representation dated 13.01.2009.

Legal Issues Presented

Whether the disputed construction stood in survey No. 227 (private land not acquired) or in survey No. 228 (public premises acquired by the Defence Authorities), i.e., the factual question which determined whether eviction proceedings under the Act applied.
Whether the petitioner, having obtained permission from the Cantonment Board (as argued), could nonetheless be treated as an encroacher of public premises.
Whether a survey report prepared without notice to the petitioner (the joint survey report Ex. A1) could be relied upon and whether a court-ordered survey would be appropriate to determine the precise survey number of the disputed site.
Whether questions of title or the petitioner’s substantive title/rights in the land could be adjudicated in the writ proceedings under the Act, or whether such issues require a separate suit.

Arguments of the Parties

Petitioner's Arguments

The petitioner contended that he obtained necessary permission (from the Cantonment Board) when constructing the building (two rooms and a staircase), and therefore could not be treated as an encroacher of public premises.
The petitioner argued that the Estate Officer and the appellate authority relied on the joint survey report (Ex. A1) about which the petitioner had no notice; the survey was "behind the back" of the petitioner and thus of no avail.
In later objections filed in Court the petitioner contended his father built the rooms before acquisition and that his family had resided there for more than three decades; he also asserted Defence Authorities had encroached upon portions of survey No. 227 (stating 242 sq. yards in his objection).

Respondent's Arguments

The Assistant Solicitor General submitted that the disputed question of fact (whether construction was in survey No. 227 or 228) was alien to the writ proceedings and that questions of title could not be gone into in such proceedings under the Act.
It was also submitted that the petitioner had not, before the appellate authority, objected to Ex. A1 nor sought appointment of an Advocate Commissioner or Government surveyor to delineate the land between the two survey numbers, and therefore could not raise that objection at the writ stage.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court framed the limited scope of adjudication in eviction proceedings under the Act: primarily to determine (a) whether the land/building is "public premises" as defined in Section 2(e) of the Act, and (b) whether the occupation is an "unauthorised occupation" as defined in Section 2(g). The Court observed that if a person disputes that the land is public premises, the Estate Officer is not required to decide complex title questions where there is prima facie evidence that the land is public premises.

The Court noted that the petitioner's representation dated 04.09.2001 had expressly objected to the joint survey report (Ex. A1), but the Estate Officer had relied on Ex. A1 and overruled the objection. Because Ex. A1 had been prepared without giving the petitioner notice, the Court—by consent of the parties and in exercise of its duty—ordered a fresh, limited survey to determine whether the land from which eviction was sought formed part of survey No. 227 or 228, and directed that notice be given to the petitioner before the survey.

The first court-ordered survey (23.10.2008) and the report with demarcation sketch concluded that the petitioner had encroached land in survey No. 228. That report also (separately) reported that Defence Authorities had encroached into survey No. 227 (recorded as 554 sq. yards). Both parties objected to aspects of the report (petitioner to the finding against him; respondents to the finding against Defence Authorities as beyond the survey brief). The Court then ordered a second survey limited to the petitioner's property (order dated 11.11.2008). The second survey (15.12.2008) produced a panchanama and demarcation sketch that the Court found to be a repetition of the earlier survey, again reporting encroachment by the petitioner in survey No. 228.

The Court compared the petitioner’s earlier explanation (that permission had been obtained and construction was in survey No. 227) with later statements in objections to the survey, in which the petitioner admitted that his father constructed two rooms and a staircase before acquisition of survey No. 228 and that the family had been residing there for decades. The Court observed this amounted to a materially different case from the earlier plea of prior permission, and further observed inconsistent figures about Defence Authorities’ alleged encroachment (554 sq. yards in the survey report vs. 242 sq. yards asserted by the petitioner).

The Court declined to decide title: it expressly stated that whether the petitioner or his predecessor retained title in respect of any portion of survey No. 228 even after acquisition is a matter to be decided in a properly constituted suit. The Court also noted that the representation dated 13.01.2009 seeking an amicable settlement could be considered if such a course is permissible in law.

In sum, the Court treated the factual finding (from the court-ordered surveys) that the petitioner’s construction was in survey No. 228 as determinative for the limited question before it, and found the writ petition lacking in merit.

Holding and Implications

Holding: The Writ Petition was DISMISSED as devoid of merits.

Implications:

The dismissal means that, on the limited factual record and court-ordered surveys, the petitioner failed to establish that his construction was in survey No. 227 rather than in survey No. 228 (the latter having been acquired and vested in the Defence Authorities).
The Court declined to adjudicate substantive title issues or determine whether any right of the petitioner or his predecessors survived acquisition; it held that such issues must be raised and decided in a properly constituted suit.
The Court acknowledged a pending representation (13.01.2009) proposing settlement by exchange of land and noted that the same could be considered if legally permissible; the opinion did not resolve that representation.
No costs were imposed (the Court recorded "No costs").
No new precedent was declared by the Court beyond the application of the statutory framework and the conclusion that the issue of title requires separate adjudication in a suit.

This summary is limited to the information contained in the provided opinion and does not add or infer facts beyond that text.

Show all summary ...

1. The petitioner assails the order of the learned I Additional Chief Judge, City Civil Court, Secunderabad, dated 20.09.2005, in C.M.A No. 60 of 2001, whereby and whereunder the learned Chief Judge dismissed the appeal of the petitioner filed against the order dated 18.08.2001 of the first respondent (Estate Officer) under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (Central Act No. 40 of 1971) (the Act, for brevity), ordering eviction of the petitioner from the land bearing House No. 7-107 in survey No. 228 (totally admeasuring Acs. 3.23) situated at Yapral Village, Malkajgiri Mandal in Ranga Reddy District.

2. The father of the petitioner, late Mallaiah, owned the land in survey No. 227 (Acs. 3.08) and land comprised in survey No. 228 (Acs. 3.23). Sometime in 1970s the entire extent of land in survey No. 228 was acquired and the entire land in survey No. 227 remained with Mallaiah. First respondent initiated action under the Act on an allegation that the petitioner herein encroached the land admeasuring Ac. 0.04 in survey No. 228 and constructed a pucca house. A show cause notice was issued in Form-A under Section 4 of the Act. Petitioner submitted explanation along with the documents asserting that he did not encroach any land in survey No. 228, and that he constructed house only in survey No. 227, which was not acquired. First respondent relied on the report of the joint survey team and came to the conclusion that petitioner constructed a house in survey No. 228, which was acquired and which vested in Defense Authorities. The plea of the petitioner that he obtained permission of the Cantonment Board before constructing house was rejected on the ground that when the petitioner applied, he sought for permission for construction of house in survey No. 227, but construction was made in survey No. 228 belonging to the Defense Authorities. On these findings, order/notice in Form-B under Section 5 of the Act was issued directing the petitioner to remove the encroachment, failing which he will be evicted by use of force. The appellate authority, namely, the learned I Additional Chief Judge, considered the appeal with reference to the question whether the petitioner constructed pucca house in survey No. 227 or 228. Placing reliance on the joint survey report (Ex. A1), the appeal was dismissed.

3. Learned Counsel for the petitioner raised two contentions. First, when petitioner made construction of a building consisting of two rooms and a staircase, necessary permission was obtained, and having obtained permission, petitioner cannot be treated as an encroacher of public premises. Secondly, he submits that the Estate Officer as well as appellate authority arrived at the finding entirely based on Ex. A1, Joint survey report, about which the petitioner had no notice. The survey conducted behind the back of the petitioner is of no avail. Per contra, learned Assistant Solicitor General submits that the disputed question of fact whether construction was made in survey No. 227 or 228 is alien to the writ proceedings, and in any event, question of title cannot be gone into. Secondly, he submits that when the matter was heard by the appellate authority, petitioner never raised an objection regarding Ex. A1 nor resort for appointment of an Advocate Commissioner/Government surveyor for delineating the land in two survey numbers, and therefore, such a question cannot be permitted in the writ petition.

4. The matter was initially heard in September 2008. Having regard to the controversy whether the petitioner raised construction in the land comprised in survey No. 227 or 228, this Court with the consent of the parties and ex debito justitiae ordered survey to the limited extent of finding out whether the land from which the petitioner is sought to be evicted forms part of survey No. 227 or 228. Authorities were directed to give notice to the petitioner before such survey. Accordingly, survey was conducted on 23.10.2008 In the report submitted to this Court along with demarcation sketch of survey No. 228 of Yapral, joint survey team reported that the petitioner made encroachment in land comprised in survey No. 228. It is also reported that to an extent of 554 square yards, Defense Authorities encroached into the land forming part of survey No. 227. After receiving the copies of the report, both sides filed objections. Petitioner objected the finding of encroachment allegedly made by him in survey No. 228 and respondents opposed the finding that Defense Authorities encroached the land in survey No. 227. Their contention is that survey team exceeded their brief in recording such a finding. Therefore, this Court passed orders on 11.11.2008 directing that survey may be conducted again only with reference to petitioner's property. After undertaking survey for the second time on 15.12.2008, panchanama as well as demarcation sketch again are enclosed which are just a repetition of earlier panchanama and earlier sketch. Similar objections are raised this time by the learned Assistant Solicitor General. Petitioner filed separate objections into the Court.

5. When the Estate Officer under the Act initiates action for eviction of a person, who has allegedly encroached “public premises”, the limited exercise required is to know whether the land/building is public premises as defined under Section 2(e) of the Act, and whether the occupation of a person is not “authorized occupation” as defined in section 2(g) of the Act. If a person disputes that the land is not a public premises, such a question cannot be decided by the Estate Officer, if there is a prima facie evidence that the land/building is a public premises. A perusal of explanation submitted by the petitioner on 04.09.2001 would show that he seriously objected to the joint survey report, which was the basis for show cause notice, while maintaining the stand that he made construction in survey No. 227. Estate Officer relied on Ex. A1 Joint survey report, and overruled his objection. Petitioner was unsuccessful before the learned Chief Judge. In this Court, having regard to the admitted-fact that while joint survey was conducted vide Ex. A1 report no notice was issued to the petitioner, a survey was ordered. In both the surveys a finding is given that petitioner encroached the land in survey No. 228, which was admittedly acquired by Government of India for Defense Estate Office sometime in 1970s. Even in the objections filed in the Court today, the petitioner took the following stand.

6. It is humbly submitted that I categorically contended in my representation dt. 4.9.2001 submitted to the 1 Respondent that in seventies when our father, Sri K. Mallaiah, was alive the land in S. No. 228 was acquired by the Defense Authorities and that the Defence Authorities paid the compensation partly and that the building consisting of 2 rooms and staircase was constructed by our father, late K. Mallaiah, before the acquisition of the land in S. No. 228 by the Defence Authorities. It is humbly submitted that ever since its construction we have been residing therein for more than 3 decades.

7. It is humbly submitted that as per the Survey Report dt. 15.12.2008, the Defence Authorities have encroached upon 242 sq. yards of site in S. No. 227 which belongs to us.

8. In view of the said situation 1 submitted a representation dt. 13.1.2009 to the Respondent Authorities for amicable settlement and the same is enclosed herewith.

9. A perusal of the above would show that the petitioner admitted that his father constructed two rooms and staircase before acquisition was made in survey No. 228. This altogether is a difference case, because in his explanation dated 04.09.2001 he took a plea that he applied for permission and constructed the building. Secondly, in paragraph 2 of the objections as above, he only asserts that an extent of 242 square yards in survey No. 227 (not 554 square yards) has been encroached upon by the Defense Authorities. From this, an inference can be drawn that the petitioner's building is situated in survey No. 228, and it does not matter whether it was constructed before acquisition or after acquisition, This Court, however, hastens to add that the question whether even after acquisition of land in survey No. 228 the petitioner or his predecessor retained title in respect of that portion of the land in survey No. 228 has to be decided in a properly constituted suit. Petitioner's Counsel submits that a representation is made on 13.01.2009 to the Headquarters, Andhra Sub Area, Secunderabad, proposing some sort of settlement by way of exchange of land. There cannot be any objection for considering the same, if such course is permissible in law. The Writ Petition, for the above reasons, is devoid of any merits, and the same is accordingly dismissed with the above observations. No costs.