16 March 1982
Supreme Court


Case number: Appeal Civil 2031 of 1977








CITATION:  1982 AIR 1081            1982 SCR  (3) 500  1982 SCC  (2) 134        1982 SCALE  (1)180

ACT:      Andhra  Pradesh   Land  Encroachment  Act,  1905-S.  6- Provision for  summary eviction  of unauthorised occupant of government land-Existence  of bona  fide  dispute  regarding title between  government  and  occupant-Resort  to  summary remedy-Whether valid and legal?

HEADNOTE:      The Andhra  Pradesh Land  Encroachment  Act,  1905  was enacted  to  check  unauthorised  occupation  of  government lands. Under  s. 2  of the  Act all  public roads,  streets, lands, paths,  bridges etc,  are  deemed  to  be  government property. Any  person who  is in  unauthorised occupation of any land  which is  the property of the government is liable to pay  assessment as provided in s. 3 of the Act. Section 5 provides that any person, liable to assessment shall also be liable to  pay an additional sum by way of penalty. Under s. 6(1) the  Collector, Tahsildar  or Deputy  Tahsildar has the power to summarily evict any person unauthorisedly occupying any land for which he is liable to pay assessment under s. 3 after issuing a show cause notice as provided in s. 7.      Some time between the years 1932 and 1937 certain lands were acquired  by the  Government of  Nizam of Hyderabad for the benefit  of a University. A question having arisen as to whether three  specific plots  of land  had been included in the acquisition, the University filed a suit in 1956 praying for the eviction of the occupant. This suit was dismissed in 1959 on  the ground  that one  of the  plots  had  not  been acquired by  the Government  and in respect of the other two plots the  University had  failed to  prove  its  possession within 12  years before  the filing  of the  suit. The trial court found that the heir of the original owner of the plots had encroached  on the  said two plots in 1942. The judgment of the  trial court was confirmed by the High Court in 1964. The State Government was not a party to those proceedings.      The  University  activated  the  State  Government  for summary eviction  of the heir of the original owner from the three plots  of lands.  The Tahsildar  initiated action  and passed an  order of  eviction under  s. 6(1)  of the  Act on December 15,  1964. Appeals  against the order were rejected by the  Collector in  1965 and by the Revenue Board in 1968.



The respondents  who purchased the plots during the pendency of the  appeal before  the Revenue  Board were  impleaded as parties 501 to the  proceedings on the death of the heir of the original owner and.  their appeal  from the  decision of  the Revenue Board was rejected by the Government in 1973      The respondents  challenged the  order of eviction by a petition under  Art. 226  which was  dismissed by  a  Single Judge of  the High Court who held that the question of title to the  property could  not properly be decided by him under Article 226  but the  fact that  there was  a finding by the Civil Court  that there  was  encroachment  by  the  alleged encroacher was  sufficient  to  entitle  the  Government  to initiate  action   under  the   provisions   of   the   Land Encroachment Act.      The appeal  of  the  respondents  was  allowed  by  the Division Bench  which held that a dispute relating to as far back as  1942 could not be dealt with in summary proceedings under the  provisions of  the  Land  Encroachment  Act.  The summary remedy  could not be resorted to unless there was an attempted encroachment  or encroachment  of  a  very  recent origin;  nor   could  it   be  availed  of  in  cases  where complicated questions of title arose for decision.      Dismissing the appeals, ^      HELD: (I)  The summary  remedy for eviction provided by s. 6  of tho  Act can  be resorted to by the Government only against persons  who are  in unauthorised  occupation of any land which  is the property of the Government. 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 tho property belongs to it and on  that basis  take  recourse  to  the  summary  remedy provided  by   s  6.   In  the   instant  case   there   was unquestionably  a   genuine  dispute  ,  between  the  State Government and the respondents as to whether the three plots of  land   bad  been   the  subject-matter   of  acquisition proceedings taken  by the  then Government of Hyderabad, and whether the  University for  whose benefit  the  plots  were alleged to have been acquired had lost title to the property by operation of the law of limitation. The respondents had a bonafide claim  to litigate  and they  could not  be evicted save  by   the  due  process  of  law.  The  summary  remedy prescribed by  s. 6  was not the kind of legal process which was suited  to  adjudication  of  complicated  questions  of title. That procedure was, therefore, not the due process of law for evicting the respondents. [506 H; 507 A; 507 D-H]      2. The  view of  the Division  Bench that  the  summary remedy provided  for by s. 6 could not be resorted to unless the alleged  encroachment was  of  "a  very  recent  origin" cannot be  stretched too  far. 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. Facts  which raise a bonafide dispute of title between the Government and the occupant must be ad- judicated upon  by the  ordinary courts of law. The duration of occupation  is relevant in the sense that a person who is in occupation of a property openly for 502 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. In  the instant case, the long possession of the  respondents and their predecessors-in-title raised a genuine dispute  between them  and  the  Government  on  the question of  title. Whether  the title  to the  property had come  to  be  vested  in  the  Government  as  a  result  of acquisition and  whether the  heir of the original owner had encroached upon  that property  and perfected  his title  by adverse  possession   had  to   be  decided  in  a  properly constituted suit. [508 A-D; 508 E-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2031 of 1977.      Appeal by  special Leave  from the  judgment and  order dated the  30th June,  1977 of the Andhra Pradesh High Court in Writ Petition No. 905 of 1975.                             WITH             Civil Appeal Nos. 136 & 137 of 1978.      From the  judgment and  order dated the 30th June, 1977 of the Andhra Pradesh High Court in Writ Petition Nos. 796 & 922 of 1975 respectively.      Ramachandra Reddy, Advocate General and B. Parthasarthi for the Appellants      P. Rama  Reddy and  A.V.V. Nair for Respondent No. 2 in CA. 2031, R. 3 in 136 & R. 2 in 137.      A. Subba Rao for RR I & 2 in CA. 136/78.      A.K. Sen,  e. Rajendra  Choudhury, G.R.  Subbaryan,  I. Koti Reddy  and Mahabir  Singh for  Respondent No.  1 in CA. 137/78.      B. Ranta Rao for Respondent No. 1 in CA. 2031/77.      The Judgment of the Court was delivered by      CHANDRACHUD, C.J.  these three  appeals arise  out of a common judgment  dated June  30. 1977 of a Division Bench of the High Court of Andhra Pradesh, setting aside the judgment of a  learned single  Judge dated  November 18, 1975 in Writ Petitions Nos.  1539 of  1974 and  798 of 1975. Civil Appeal No. 2031  (NCM) of  1977 is by special leave while the other two appeals are by certi- 503 ficate granted  by the  High Court  The question which these appeals involve  is whether the appellant, the Government of Andhra Pradesh,  has the  power  to  evict  the  respondents summarily in  exercise of  the power conferred by the Andhra Pradesh Land Encroachment Act, 1905. This question arises on the following facts:      We are  concerned in these appeals with three groups of lands situated  in Habsiguda,  Hyderabad East  Taluk, Andhra Pradesh. Those lands are: R.S. No 10/1, which corresponds to plot No. 94 admeasuring 10 acres and 2 guntas, R.S. No. 10/2 which corresponds to plot No. 104 admeasuring 9 acres and 33 guntas; and  R.S. Nos.  7, 8  and 9 which correspond to plot No. 111  admeasuring 26  acres and  14 guntas.  These  lands belonged originally  to Nawab Zainuddin and after his death, they devolved  on Nawab  Habibuddin.  Sometime  between  the years 1932  and 1937,  certain lands  were acquired  by  the Government of  the Nizam  of Hyderabad  under the  Hyderabad Land Acquisition  Act of 1309 Fasli, the provisions of which are in  material respects  similar  to  those  of  the  Land Acquisition Act,  1894. The  lands  were  acquired  for  the benefit  of   the  osmania   University   which   was   then administered as a Department of the Government of Hyderabad.



The University  acquired an  independent legal status of its own under  the osmania  University  Revised  Charter,  1947, which was promulgated by the Nizam. E      The question  whether the aforesaid three plots of land were included  in the acquisition notified by the Government of Nizam  became a  bone of  contention between the parties, the osmania University contending that they were so included and that  they were  acquired for its benefit and the owner, Nawab Habibuddin,  contending that  the three plots were not acquired. On  February 13, 1956 the osmania University filed a suit (O.S. No. 1 of 1956) against Nawab Habibuddin, in the City Civil  Court, Hyderabad,  claiming that the three lands were acquired  by the  Government for its benefit and asking for his  eviction from  those lands. That suit was dismissed in 1959  on the ground that plot No. 111 was not acquired by the Government  and that  though plots  Nos. 94 and 104 were acquired, the  University failed  to  prove  its  possession thereof within  twelve years  before the filing of the suit. In regard  to plots Nos. 94 & 104, it was found by the trial court that  Habibuddio had  encroached thereupon in the year 1942, which  was more than twelve years before the filing of the suit. Civil Appeal No. 61 of 1959 filed by 504 the  University  against  that  judgment  was  dismissed  on January 24,  1964 by  the  High  Court  which  affirmed  the findings of  the trial  court. The  State Government was not impleaded as a party to those proceedings.      On May 8, 1964 the osmania University wrote a letter to the Government  of Andhra  Pradesh, requesting  it  to  take steps for the summary eviction of persons who were allegedly in unauthorised  occupation of  the 3  plots. On December 8, 1964, the  Tahsildar, Government  of Andhra  Pradesh, acting under section 7 of the Land Encroachment Act, 1905, issued a notice to  Nawab Habibuddin  to  vacate  the  lands  and  on December 15, 1964 the Tahsildar passed an order evicting him iron the  lands. The  appeal  filed  by  Habibuddin  to  the Collector was  dismissed in  1965 and the appeal against the decision of the Collector was dismissed by the Revenue Board in 1968 During the pendency of the appeal before the Revenue Board, the  respondents purchased  the plots from Habibuddin for valuable  consideration and  on the death of Habibuddin, they were  impleaded to  the proceedings  before the Revenue Board. They  preferred an  appeal from  the decision  of the Revenue  Board   to  the  Government  but  that  appeal  was dismissed on November 26, 1973.      On March 19, 1974, the respondents filed Writ Petitions in the High Court of Andhra Pradesh challenging the order by which they  were evicted  from the plots summarily under the provisions of  the Act  of 1905.  The learned  single  Judge dismissed those Writ Petitions observing:           "The question  whether the lands with which we are      concerned in  the writ  petition were  acquired by  the      Government  or   not  and   the  question  whether  the      Government had  transferred its title to the University      or not  are questions  which cannot properly be decided      by me  in an  application  under  article  226  of  the      Constitution. The appropriate remedy of the petitioners      is to file a suit to establish their title." The learned Judge held that:           "Though  the   title  of  the  Government  is  not      admitted by  the alleged encroacher, there is a finding      by the Civil 505      Court  that  there  was  encroachment  by  the  alleged      encroacher.  That   is  sufficient   to   entitle   the



    Government to  initiate action  under the provisions of      the Land Encroachment Act."      Three appeals  were preferred  to  The  Division  Bench against the  judgment of  the learned  single Judge,  two of them being  by the  petitioners in one writ petition and the third by  the petitioner  in the  other writ  petition.  The Division Bench,  while setting  aside the  judgment  of  the learned single Judge, held:           "The question whether the lands. belong to osmania      University or  not will  have to be decided as and when      the Government  comes  forward  with  a  suit  for  the      purpose. Even  if we  assume for  the  purpose  of  our      judgment, as  we are  not pronouncing any conclusion as      to  whether  the  land  vested  in  the  Government  or      University, that  the  Government  is  the  owner,  the      dispute going  back from 1942 - cannot be dealt with in      summary  proceeding   under  section   7  of  the  Land      Encroachment Act." The summary  remedy provided  by section 7, according to the Division Bench,  cannot be  resorted to  "unless there is an attempted encroachment  or encroachment  of  a  very  recent origin" and  further, that  it cannot be availed of in cases where complicated questions of title arise for decision.      We are  in respectful  agreement with the view taken by the Division Bench, subject however to the observations made herein below.  The Andhra  Pradesh  Land  Encroachment  Act, 1905, was  passed in order "to provide measures for checking unauthorised occupation  of lands  which are the property of Government." The  preamble to  the Act says that it had been the practice to check unauthorised occupation of lands which are the  property of  the Government  "by the  imposition of penal or  prohibitory assessment or charge" and since doubts had arisen  whether such  practice was authorised by law, it had  become  necessary  to  make  statutory  provisions  for checking unauthorised  occupations. Section 2 (1) of the Act provides that  all  public  roads,  streets,  lands,  paths, bridges, etc.  shall be  deemed to be the property belonging to Government,  unless it  falls under clauses (a) to (e) of that section.  Section 2  (2) provides that all public roads and streets 506 vested in  any public  authority shall  be deemed  to be the property of  the Government by section 3 (1), any person who is in  unauthorised occupation  of any  land  which  is  the property of  Government, is  liable  to  pay  assessment  as provided in  clauses (i) and (ii) of that section. Section S provides that  any person  liable to  pay  assessment  under section 3  shall also  be liable,  at the  discretion of the Collector, to  pay an  additional sum  by  way  of  penalty. Sections 6  (1) and  7, which  are relevant for our purpose, read thus:      "Sec. 6  (1)    Any person unauthorisedly 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  thereon  shall                     also, if  not removed  by him after such                     written   notice   as   the   Collection                     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."          "Sec. 7.    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 in unauthorised                     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  he                     should not  be proceeded  against  under                     section S or section 6."      It seems  to us  clear from  these provisions  that the summary remedy for eviction which is provided for by section 6 of  the Act  can be  resorted to  by the  Government  only against persons who are in 507 unauthorized occupation  of any  land which is "the property of Government".  In regard  to properly  described  in  sub- sections (I)  and (2)  of section  2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free  to take  recourse to the summary remedy of eviction provided for in section 6. A person who occupies a part of a public road,  street, bridge,  the bed  of the  sea and  the like, is  in unauthorised  occupation of  property which  is declared by  section 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. But section 6 (1) which confers the  power of  summary eviction  on  the  Government limits  that  power  to  cases  in  which  a  person  is  in unauthorised occupation of a land "for which he is liable to pay assessment under section 3’’. Section 3, in turn, refers to  unauthorised  occupation  of  any  land  "which  is  the property of Government" If there is a bond 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 bona fide claim or title. In the instant case, there is  unquestionably  a  genuine  dispute  between  The  State Government and the respondents as to whether The three plots of land  were the  subject-matter of acquisition proceedings taken by  the then  Government of  Hyderabad and whether the osmania University.  for whose benefit the plots are alleged to have  been acquired,  had lost  title to  the property by operation of  the law  of limitation.  The suit filed by the University was  dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the properly  more than  twelve years before the date of the suit and  the  University  was  not  in  possession  of  the property at  any time  within that  period. Having tailed in the suit,  the University  activated the Government to evict the Nawab  and his  transferees summarily, which seems to us impermissible. The  respondents have  a bona  fide claim  to litigate and  they cannot be evicted save by the due process of law.  The summary  remedy prescribed  by section 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 respondents. 508      The view  of the Division Bench that the summary remedy provided for  by section  6 cannot be resorted to unless the alleged encroachment is of "a very recent origin", cannot be stretched too  far That  was also  the  view  taken  by  the learned single  Judge him  self in  another  case  which  is reported in  Meherunnissa Begum  v. State  of A.P. which was affirmed by  a Division  Bench.(2) 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. Facts " which raise a bond fide  dispute of  title between  the Government and the occupant must  be adjudicated upon by the Ordinary courts of law.   The   Government   cannot   decide   such   questions unilaterally  in   its  own  favour  and  evict  any  person summarily on  the basis  of such  decision. But  duration of occupation is  relevant in the sense that a person who is hl occupation of a property openly for an appreciable length of time can  be taken, prima facie, to have a bonafide claim to the property  requiring an  impartial adjudication according to the established procedure of law.      The conspectus  of facts  in the instant case justifies the view  that the  question as  to the  title to  the three plots cannot  appropriately be  decided in a summary inquiry contemplated by  sections 6  and 7  of  the  Act.  The  long possession of  the respondents  and  their  predecessors-in- title of  these plots  raises a genuine dispute between them and the  Government on  the question  of title,  remembering especially   that   the   property,   admittedly,   belonged originally to  the family  of Nawab Habibuddio from whom the respondents claim  to have  purchased it. The question as to whether the  title to  the property came to be vested in the Government as  a  result  of  acquisition  and  the  further question whether  the Nawab  encroached upon  that  property thereafter and  perfected his  title by  adverse  possession must be decided in a properly constituted suit. May be, that the Government  may succeed in establishing its title to the property but,  until that is done, the respondents cannot be evicted summarily.      For these  reasons,  we  uphold  the  judgment  of  the Division Bench  of the  High Court and dismiss these appeals with costs. 509      We do  not propose  to pass  any orders  on Civil Misc. Petitions A Nos. 18974, 18975, 18976, 18497, 18498 and 18499 of 1981  which have been filed for adding certain parties as respondents to  these appeals.  Those petitions  involve the question of  a Will  alleged to  have  been  made  by  Nawab Habibuddin in  favour of  Entashamuddin alias Anwar Siddiqui and his  elder brother.  We cannot  go into  the validity of that Will and other incidental questions in these ap peals. H.L.C.                                    Appeals dismissed. 510