Holding

The summary eviction power under Section 6 of the Andhra Pradesh Land Encroachment Act, 1905 cannot be exercised where a bona‑fide dispute as to title exists; such disputes must be decided by a regular suit, not by summary proceedings.

Summary

The Government of Andhra Pradesh sought to evict Thummala Krishna Rao and others from three plots of land using the summary eviction provision of Section 6 of the Andhra Pradesh Land Encroachment Act, 1905. The respondents claimed a bona‑fide title, arguing that the land might have been acquired by the Nizam’s government for Osmania University and that the title dispute dated back to 1942, involving issues of acquisition, limitation, and adverse possession. The High Court initially allowed the summary eviction, but the Division Bench set aside that order, holding that where a genuine dispute over title exists, the government cannot unilaterally invoke the summary remedy. The Supreme Court affirmed this view, stating that Section 6 is only applicable to lands indisputably owned by the government and that disputes of title must be resolved through ordinary suits. Consequently, the appeals were dismissed, upholding the Division Bench’s decision.

Issues considered

Whether the Government can invoke the summary eviction power under Section 6 of the Andhra Pradesh Land Encroachment Act, 1905 when there is a bona‑fide dispute as to title of the land.
Whether the duration of alleged encroachment (i.e., whether it is of recent origin) affects the applicability of the summary eviction provision.
Whether lands acquired by the Nizam of Hyderabad for Osmania University are deemed government property for purposes of the Act.
Whether the summary remedy is a suitable process for adjudicating complex title disputes involving adverse possession and limitation.

Legislation cited

Andhra Pradesh Land Encroachment Act, 1905s. 2, s. 3, s. 5, s. 6, s. 7
Hyderabad Land Acquisition Act, 1309 Fasli
Land Acquisition Act, 1894

Subjects

land encroachmentsummary evictiontitle disputeadverse possessiongovernment landland acquisitionconstitutional lawArticle 226civil procedure

Judgment

I

A 500

GOVERNMENT OF ANDHRA PRADESH

v.
B
THUMMALA KRISHNA RAO & ANR.
•

March 16, 1982

[ Y.V. CHANDRACHUD, C.J., A. VARADARAJAN AND
c AMARBNDRA NATH SEN, JJ. )

Andhra Pradesh Land Encrqachment Aci, 1905-S. 6-Prot1ision for .summary
eviction of unauthorised occupant of government land-Existe11ce of bona fide
dispute regarding title between government and occupant-Resort to summary
remedy-Whether valid and legal?

.D The Andbra 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. Undei s. 6(1) the CoBector, Tahsildar or
E Deputy Tabsildar has the power to summarily evict any person unauthorisedly
occupying any land for which be is liable to pay assessment under s. 3, after
issuing a show ca.use notice as provided in s. 1.
:"'
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
F question having arisen es 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. Th.is suit was dismissed in 1959 on the ground that one of the plots
bad 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
bad encroached on the said two plots in 1942. The judgment of the trial courr
G 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 originaJ owner from the three plots of lands. The Tahsildar i:D.itia-
ted action and passed an order of eviction under s. 6(1) of the Act on December
H 15, 1964. Appeals against the order were rejected by the Collector in 1965 and
by the Revenue"Board in 1968. The respondents who pur<:hased tho plots during
the pendency of the appeal before the Revenue Board were impleaded as parties
ANDHRA PRADESH V. T.Jt. RAO 501

to the proceedings on the death of the heir of the original owner and their appeal A
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 Govern-
ment to initiate action under the provisions of the Land Encroachment
Act.

The appeal of the respondents ms allowed by the Division Bench which
bola 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.
c
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 ar·ose for decision.

Dismissing the appeals,
D
HELD : (I) The summary remedy for eviction provided by s. 6 of the
Act can be resorted to by the Government only against persons who are in un·
authorised occupation of any tand which is the property of ttie Government. If
there is a bonpfide 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 that basis take recourse to the summary remedy
provided by s 6. In the instant case there was unquestionably a genuine dispute E
between the State Government and the respondents as to whether the three plOts
of land had 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 bad lost title to the property by opera-
tion of the law of limitation. The respondents had a bona fide claim to litigate
and they c;ould 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 F
adjudication of ~ompJicated 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 enci'oacbment was of'~
very recent origin" cannot be stretched too far. It is not the duration, short or
G
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 qqestion is more the nature of the pro-
perty 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
bona fide dispute of title between the Government and th• occupant must be ad- H
judicated upon by the ordinary courts of law. The duration of occupation is
·relevant in the sense that a person who is in nccupation of a property openly for
502 SUPREME COURT REPORTS (1982] 3 S.C.R.

A an appreciable length pf time can be taken prima facie to have a bona fidt 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 Govern-
ment on the question of title. Whether the title to the property had come to be
vested in the Government as a resuit of acquisitjon and whether the heir of the
original owner had encroached upon that property and perfected his title by
B adverse possession had to be decided in a properly constituted suit.
[508 A-D; 508 E-0]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2031
of 1977.

C Appeal by special leave from the judgment and order dated
the 30th June, 1977 of the Andbra Pradesh High Court in Writ
Petition No. 905 of 1975.

WITH
D 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.

E Ramachandra Reddy, Advocate General and B. Parthasartm
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.
F
A.K. Sen, K. Rajendra Choudhury, G.R. Subbaryan, I. Kott
Reddy and Mahabir Singh for Respondent No. I in CA. 137/78.

B. Kanta Rao for Respondent No. I in CA. 2031/77.

G 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 tbe judgment of a
H learned single Judge dated November 18, 1975 in Writ Petitions
Nos. 1539 of 1974 and 79.8 of 1975. Civil Appeal No. 2031 (NCM)
of 1977 is by special leave while the other two appeals are by certi-
ANDHRA PRADESH v. T. K. RAO (Chandrachud, C.J.) 503

ficate granted by the High Court. The' question which these appeals A
involve is whether the appellant, the Government of Andhra
Pradesh, bas the power to evict the respondents summarily in exer-
cise of the power conferred by the Andhra Pradesh Land Encroach-
ment Act, 1905. This question arises on the following facts :

B
We are concerned in these appeals with three groups of lands
situated in Habsiguda, Hyderabad East Taluk, Aodhra Pradesh.
Those lands are : R.S. No. 10/ I, which corresponds to plot No. 94
aclmeasuring I 0 acres and 2 guntas, R.S. No. 10/2 which corresponds
to plot No. I 04 admeasuring 9 acres and 33 guntas ; and R.S.
Nos. 7, 8 and 9 which corre~pond to plot No. 111 admeasuring 26 c
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 Acquisi-
D
tion 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, con-
tending that the three plots were not acquired. On February 13,
F

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 bene-
fit and asking for his eviction from those lands. That suit was
G
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 po·ssession thereof within
twehe years before the filing of the suit. In regard to plots Nos. 94 &
104, it was found by the trial court that Habibuddin had encroached H
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 SUPREME COURT REPORTS [1982) J S.C.R.

A 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
B 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 tbe lands and on December 15, 1964 the Tahsildar passed an
c order evicting him from the lands. The appeal filed by Habibuddin
to the Colleetor 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
D impleaded to the proceedings before the Revenue Board. They pre·
ferred an appeal from the decision of the Revenue Board to
the Government but that appeal was dismissed on November
26, 1973.

E
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 siogle Judge dismissed those Writ Petitions

F
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 Govern-
ment had transferred its title to the University or not are
questions which cannot properly be decided by me in an
G 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 :
H
"Though the title of the Government is not admitted
by the alleged encroacher, there is a finding by the Civil
ANDHRA PRADESH v. T. K. RAO (Chandrachud, c. J.) 505

Court that there was encroachment by the alleged encroa- A
cher. That is sufficient to entitle the Government to
initiate action under the provisions of the Land Encroach-
ment Act."

Three appeals were preferred to the Division Bench against
8'
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
c
Government comes forward with a suit for tho purpose.,
4- 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 D
cannot be dealt with in summary proceeding under sec· \
tion 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, E
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 ii had been the practice to check un-
F

authorised occupation of lands which are the property of the
Government "by the imposition of penal or prohibitory assessment G
or charge" and since doubts bad arisen whether such
practice was authorised by law, it had become necessary to ·make
statutory provisions for checking unauthorised occupations. Sec-
tion 2 (I) of the Act provides that all public roads, streets, lands,
paths, bridges, etc. shall be deemed to be the property belonging ff
to Government, unless it falls under clauses (a) to (e) of that
section. Section 2 (2) provides that all public roads and streets
506 SUPREME COURT REPORTS

A vested in any public authority shall be deemed to be the property of
the Government. By section 3 (1), any person who is in un-
authorised 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 5 provides that any person liable
to pay assessment under section 3 shall also be liable, at the discre-
tion of the Collector, to pay an additional sum by way of penalty.
Sections 6 (I) and 7, which are relevant for our purpose, read
thus:

"Sec. 6 (1) Any person unauthori sedly occupying any land
c for which he is liable to pay assesssment 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
D thereon shall also, if not removed by him after
such written notice as the Collector, 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 pro-
E perty so forfeited shall be disposed of as the
Collector, Tahsildar or Deputy Tahsildar may
direct.''

F
"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 unau-
__), -
thorised occupation of land being the property
of Government, a notice specifying the land so
occupied and calling on him to show cause
G before a certain date why he should not be
proce~ded against under section 5 or section
6."

H It seems ·lo 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
"
ANDHRA PRADESH v. T. IC. RAO (Chandrachufl, C.J.) 507

unauthorized occupation of any land which is "the property of A
Government". In regard to property 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 ta,ke 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
B
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 (I) which confers the power of summary
eviction on the Government limits that power to cases in which a
c
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 bona fide dispute regarding the title
of the Government to any property, the Government cannot take a D
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 E
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 Na~ab Habibuddin was found F
to have encroached on the property more than.twelve years before
the date of the suit and the University was nor in possession of the
property at any time within that .period. Having failed 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 lwna fide claim to litigate and they cannot be G
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 Jaw, for evicting the
respondents. H
508 •UPREME COURT REPORTS [1982) 3 S.C.R.

A The view of the Division Bench that the summary remedy
provided for by section 6 cannot he 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.(') It is
B 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 ,J..--
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. Facti
c which raise a bona 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 unila teral!y
in its own favour and evict any person summarily on the basis of
such decision. But duration of occupation is relevant in the sense
D 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 adjuilication
according to the established procedure of law.

The conspectus of facts in the instant case justifies the view
E that the question as to the title to the three plots cannot appropria-
tely 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

F
family of Nawab Habibuddin from whom the respondents claim to
have purchased it. The question as to whether the title to the
property came to ·1'e vested in the Government as a result of acquisi-
tion 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,
G 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.

(I) (1970)) ALT 88.
!2) (1971) I A.L.T. 292; AIR 1971 A.P. 382.
ANDHRA PRADESH v. T. K. RAO (Chandrachud, C.J.) 509

We do not propose to pass any orders on CivU 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 B
the validity of that Will and other incidental questions in these
appeals.

H.L.C. Appeals dismissed.

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