MtJNNA & OTHERS ETC.

STATE OF U.P. AND OTHERS ETC.

January 19, 1982

[P.N. BHAOWATI AND R.S. PATHAK, JJ.]

Constitution of India 1950, Article 32-Juvenile undertriaJ prisors-111treatmtnt ana exploitation in jail-Newspaper report-Writ petition filed seeking relief-A/legations denied by jailor-Al/egations h"eld seTious-Writ petition cannot be summarily dismissed.

Crime and Punishment-Juvenile delinquency-Inhibition against sending children to jail-Person under sixteen years of agt-Not to he sent to Jail- Detention in Children's Home or 'Place of safe'-Necessity of-Duty of Magistrates.

Uttar Pradesh Childrtn Act 1951, ss. 2(9), 29, 30, 32 and 33 & Uttar Pradesh Children's Rules 1962, Ru/ts U and 15. Child-Arrtsted for offenct-Not rtleastd on bail-Cannot be sent to jail-Detention in 'place of safety' or Children's Homt- Statutory requirement-Government to implement provisions of A.ct-Setting up plaCes for detention for chiJdren-Necessity of.

Three writ petitions wCre filed alleging on tbe basis of a news report in the Indian Express dated 2nd December, 1981 that one Mr. Madhu Mehta had visited the Kanpur Central Jail incognito and found several juvenile undertrial prisors lodged there even though there was a Cbildten's Home in Kanpur, and that these juvenile prisoners were being sexually exploited by adult prisoners.

Notice was issued to the State of Uttar Pradesh.

In the meanwhile a writ petition was filed in the High Court of Allahabad seeking relief in respect of these juvenile undertrial prisoners.

The High Court decided to investigate and by its order dated 18th December, 1981 directed the Sessions Judge of Kanpur to visit the Jail and to report whether any dctcou below the age of 16 years was detaiOed, whether any detenu below the age of 21 years was being kept under fetters, and whether they were subjected to torture by adult prisoners as alleged in the writ petition. The Sessions Judge visited the Jail on 21st December, 1981 and submitted his report dated 22nd December, 1981 to the High Court.

The report stated that there were admittedly seven juvenile undertrial prisoners below the age of sixteen in the jail and that one Des Raj was transferred to the Children's Home on 19th December, 1981 and that the rest of the prisoners happened to be released on different dates between 7th and 16th December, 1981 before the order of the High Court on 18th December, 1981. .The Sessions Judge in Annexure •A' to his report gave the names, ages and other particulars of 84 undertriaJ prisoners who according to the jail report were above 16 but below 21 years of age and stated that he had nine from among these undertrial prisoners examined by the Chief Medical Officer and appended the report as Annexure 'B'.

He fUrther reported about the general ignorance of the provisions of the Uttar

Pradesh Children's Act, l~SI and stated that he bad instructed the Jail Superin-

SUPRBMB COURT REPORTS [1982] 3 s.c.e.

tendent and the Jail Doctor that in case of any doubt about the age of an under .. trial pr)soner they should instead of relying upon the Police papers with regard to age, obtain the opinion of the Chief Medical Officer.

In the writ petitions, it was

HELO : 1. The allegations made in the writ petition are serious. lf correct they disclose to what utter depth of depravity man can sink.

The Court cannot abdicate its c_onstitutional duty of ensuring human dignity to the juvenile under. trial prisoners and summarily throw out the writ petitions me'rcly on the basis of a denial made by the Assistant Jailer. Tho instant case must be investigated not only in the interest of fair administration of justice but 3.lso for enforcing the basic human rights of undertrial prisoners who are alleged to have been illtreated. [53 D-E]

2. Juvenile delinquency is, by and large, a product of social and economic mal-adjustment. Even if it is found that juveniles have committed any offence they cannot be allowed to be mal-treated.

They do not shed their fundamental rights when they enter the jail. [53 EF]

3. The object of punishment being reformation, no social objective ca.n be gained by sending juveniles to jails where they would come into contact with hardened criminals and lose whatever sensitivity they may have to finer and nobler sentiments, That is the reason why Children Acts are enacted by States all over the country and the Uttar Pradesh Legislature has also enacted the Uttar Pradesh Children Act 1951. [53 F-G]

4. The inhibition against sending a child to jaif does not depend upon any - proof that he is a child under the age of 16 years but as soon as it appears that a person arrested is apparently under the age of 16 yc-ars this inhibition is attracted. The reason for this inhibition lies in the solicitude which the Jaw entertains for juveniles below the age of 16 years. [55 H, 56 A]

5. The law is very much concerned to see that juveniles do not come into contact with hardened criminals and that chances of reformation are not blighted by contact with criminal offenders.

The law throws a cloak of protection round juveniles and seeks to isolate them from criminal offenders, because the emphasis placed by the Jaw is not on incarceration but on reformation~ [56 B]

6. When a child is arrested for an offence and is not released on bail, he cannot be sent to jail but he must be detained in a 'place of safety' as defined in section 2 subsection (9) of the Act. The manner in which a child can be detained is prescribed in the Uttar Pradesh Children's Rules, 1962.

Rule 14 provides that except as provided in the Act, where a child having been arrested is not released on bail under section 23, the officer-in-charge of the Police Station shall cause him to be detained in a 'place of safety' until he can be brought before a court, and Rule 15 says that except as provided in the Act where a child is not released on bail, the court shall on remanding or committing a child for trial order him to be detained in a 'place of safety' pending the disposal of the proceedings.

[55 G-H, 55 DF]

7. How anxious is the. law to protect young children from contamination with hardened criminals is apparent from section 27 of the Act which provides

i.iUNNA V. U.P. STATB 49 ,

subject only to a few limited and exceptional cases referred to in the proviso, that notwithstanding anything contained to the contrary, no court can sentence a / . child to death or transportation or imprisonment for any term-or commit him to prison in default of payment of ftno.

Even where a child is convicted of an offence, he is not to be sent to a prison but ho may be committed_ to an approved school under section 29 or _be either discharged or committed to suitable custody under section 30.

Even where a child is found to have committed an offence of so serious a nature that that court is of opinion that no punishment which under the provisions of the Act it is authorised to inflict, is sufficient section 32 provides that tho offender shall not be sent to jail but shall be kept in safe custodyin such place or manner as it thinks fit and shall report the case for tke order of the State

Government.

Section 33 sets out various methods Of dealing with children charged with offences.

But in no case except the exceptional ones mentioned in the Act, a child can be sent to jail.

8(i) It is impressed upon tho magistrates in the State of Uttar Pradesh and also in the other parts of tho country that whore !the Children Acts are in force they must be extremely careful to see that no person apparently under the age of 16 years is sent to jail but he must be detained in a Children's Home or other 'place of safety'. (ii) It is absolutely essential in order to implement the provisions of the Uttar Pradesh Children Act, 1951 that Children's Home or other suitable places of safety afe set up by the Government for the purpose of providing a place of detention for children under the age of 16 years. [56 CH, '7 A)

The Court also gave the followin11 directions :

(I) Since the Assistant Jailor has denied the visit of Shri Madhu Mehta, it

is necessary that Shri Madhu Mehta should be impleaded as a party respondent E to th~, writ petitions so that he can state arr oath whether he visited the Jail, and if so what were the facts which he observed. [53 B-CJ ·

(2) The Superintendent of the Jail to inform by a proper affidavit as to what were the circumstances in which the six: children whose names are given at serial numbers 2 to 7 in Annexure 'B' were released and also produce the orders of the Magistrate directing their.release. He is also to inform wJly Des Raj was detained in tho Jail from. 7th March, 1981 though he was admittedly even on the basis of the jail records a child below 16 years of age and how it happened that suddenly on 19th December; 1981 an order wa-s obtained for transferring bi(ll to the Children's Home. The State of Uttar Pritdesh and the Superiniendent of the Jail will explain why an order for transfer of Des Raj to the Children's Home could not be obtained earlier. [54 C-E)

(3) The Registrar of the High Court to forward immediately copies of all Annexures to the Report of the Sessions Judge. [54 F)

(4) According to tho report of the Sessions Judge there were seven juvenile undertrial prisoners below the age of 16 years. Out of these six were released prior to the_ visit of the Sessions Judge, and they could not, therefore, be interviewed. Shri O.P. Garg, Secretary of the Uttar Pradesh State Board of Legal Aid and Advice to immediately contact these six children after finding out their addresse{ either from the court proceedings or from .the jail records and take

50 StJPRllMB CotJlT lBPOllTS [ 1982) 3 s.c.a.

A *heir statements with a view to ascertain w1lat was the treatment mented Out to them in the jail and whether any of them was mal-treated. The report to be submitted on or before 27th January, 1982. [53 GH, 54 A-BJ

ORIGINAL JURISDICTION I Writ Petition Nos. 9133, 8974 of 1981 & 6 of 1982.

Under article 32 of the Constitution of India.

Krishan Mahajan for the Petitioner in WP. 6/82.

Miss Lily Thomas for the Petitioner in WP. 8974/81.

Mrs. K. Hingorani for the Petitioner in WP. 9133/81.

R.K. Bhatt for Respondent in all WPs.

The Order of the Court was delivered by

BHAGWATI, J. These three writ petitions come before us on notice to the State of U ttar Pradesh. They seek relief in respect of certain juvenile undertrial prisoners in the Kanpur Central Jail. The allegations in respect of these juvenile undertrial prisoners are that though there is a Children's Home in Kanpur, these juvenile undertrial prisoners who arc, according to the allegations in the writ petitioners, more than JOO in number are lodged in the Kanpur Central Jail instead of being sent to the Children's Home and they are being sexually exploited by the adult prisoners.

These allegations are based on a news report published in the issue of the Indian Express dated 2nd December, 1981 where a reference is made to a visit of Shri Madhu Mehta of the Hindustani Andolan to the Kanpur Central Jail incognito. Shri Madhu Mehta, according to this news report, found that "young boys of JO to 14 years" were being "supplied to convicts for their delectation" and a boy named Munna whom he met, was in agony because "after the way he was used, he was unable to sit." When these three writ petitions based on the news report came up for admission, it was not possible to state whether these allegation' contained in the news report were correct or not. But if they were correct, they disclosed an extremely distressing state of affairs and they were sufficient to shock the conscience of the court. The Court, therefore, issued notice to the State of Uttar Pradesh in each of these three writ petitions. But, it appears that, in the, meanwhile, a writ petition bearing number 14645 of 1981 was also filed in the High Court of Allahabad by an organisation called

j ,

; I

MUNNA ' U.P. STATB (Bhagwatl, 1.) 51

Human Rights Organisation seeking relief in respect of these juvenile undertrial prisoners and on this writ petition, the High Court of Allahabad rightly activated itself and decided to investigate into the matter and with that end in view, made an order dated 18th December, 1981 requesting the senior most Sessions Judge of Kanpur to visit the Kanpur Central Jail and to make a report on the following points:

Whether there is any detenu below the age of 16 years who is being detained in the Dist!. Jail, Kanpur ? if so, the names of such detenus and the offences in connection with which they are being detained be indicated.

Whether any detenu below the age of 21 years is being kept under fetters or was being kept under fetters ?

Whether any such person is being subjected to torture of the nature mentioned in the petition ?

Whether such inmates of the prison are being provided with proper medical facilities ?

The Sessions Judge accordingly visited the Kanpur Central Jail on 21st December, 1981 and submitted his Report dated 22nd December, 1981 to the High Court of Allahabad.

We do not propose to consider this Report in detail at this stage, but suffice it to state that according to this Report, there were admittedly seven juvenile undertrial prisoners below the age of 16 in the Kanpur Central Jail, but, curiously enough, barring one Deshraj who was transferred to the Children's Home Kanpur on 19th December, 1981, all the rest happened to be released on different dates between 7th and 16th December, 1981, before the order made by the Allahabad High Court on 18th December, 1981. It is rather interesting to note that the news report in the issue of the Indian Express was published on 2nd December, 1981 and writ. petition No. 8974/81 which is the first of these three writ petitions was filed by Miss Lily Thomas on 3rd December, 1981 and these juvenile underttial prisoners were released within a few days of the publication of the news report and the filing of the writ petition. Even so far as Deshraj is concerned, though he was admitted in the Kanpur Central Jail on 7th March, 198.1 he was not transferred to the Children's Home Kanpur until 19th December, 1981 after the order was made by the Allahabad High Court.

The consequence of release of these undertrial juvenile prisoners, except Deshraj, was that the Sessions Judge could not

52 sUPRl!MB COURT REPORTS (1982] 3 s.c.f!..

interview any of them when he visited the Kanpur Central Jail on 21st December, 1981.

The Sessions Judge gave in Annexure A to his Report the names, ages and other particulars of 84 undertrial prisoners who, according to the jail record, were above 16 but below 21 years of age and added that the possibility could not be ruled out that on proper scientific medical examination, three or four out of these 84 undertrial prisoners might be found to be below 16 years ofage. The Sessions Judge picked out nine from amongst these undertrial prisoners and got them examined by the Chief Medical Officer and enclosed the Report of the Chief Medical Officer as Annexure B to his Report.

The Sessions Judge also reported that there appeared to be general ignorance in the Kanpur Central Jail about the provisions of the U.P. Children Act, 1951 and observed:

"All the child accused mentioned in Annexure B should have been produced before the Juvenile Judge after their arrest. Where there was doubt "hether the detenu was above the age of 16 or below it, he should have been sent for medical report in connection with his age and on being found to be a child, should have been dealt in accordance with the Children Act."

The Sessions Judge instructed the Jail Superintendent and the jail doctor that in case there was any doubt about the age of an undertrial prisoner, they should instead of relying upon the police papers with regard to age, obtain the opinion of the Chief Medical Officer and "apprise the court concerned of it so that the presiding officer directs the accused to be produced before the Juvenile Judge to enable him to take the benefit of the provisions of the Children Act for a better social order." We do not know what order has been passed by the Allahabad High Court in the writ petition before it but when these three writ petitions came up for hearing before us on 5th January, \982, the Report of the Sessions Jdge was placed before us and an affidavit in reply was also filed by the Assistant Jailer of the Kanpur Central Jail denying the allegations made in the news report.

Now in the first place, since these three writ petitions are based upon certain statements said to have been made by Shri Madhu Mehta and set out in the news report of the Indian Express;

we think it would be desirable to join Shri Madhu Mehta as a party

respondent in each of the three writ petitions, so that he can place before the court all the facts gathered by him in regard to the juvenile inlnates of the Kanpur Central Jail. The Assistant Jailer has in bis affidavit in reply disputed that Shri Madhu Mehta ever visited the jail, but since, according to the news report, Sbri Madbu Mehta entered the jail incognito, it is quite possible that the Assistant Jailer may not have any record of his visit.

But, since the Assistant Jailer bas denie.d the visit of Shri Madbu Mehta, we think it necessary that Shri Madhu Mehta should be impleaded as a party respondent to the writ petitions so that he can state on oath whether he visited the Kanpur Central Jail and if so, what were the fact which he observed.

We cannot reject in limine the allegations made in the news report in regard to what Shri Madho Mehta found in the course of his visit to the Kanpur Central Jail, merely because the

Assist3nt Jailer bas disputed the visit of Sbri Madhu Mehta.

The allegations are indeed so serious and, if correct, disclose to what utter depths of depravity man can sink, that the court cannot abdicate its constitutional duty of tnsuring huma'n dignity to the juvenile undertrial prisoners and summarily throw out the three writ petitions merely on the basis of a denial made by the Assistant Jailer.

We must investigate into this matter not only in the interest of fair administration of justice but also for enforcing the basic human rights of these unfortunate juvenile undertrial prisoners who are alleged t~ have been.the victims of sexual exploitation. Juvenile delinquency is, by and large, a product of social and economic maladi\lstment.

Even if it is found that these juveniles have committed any offences, they cannot be allowed to be mal-treated. They do not shed their fundamental rights when they enter the jail. Moreover, the object of punishment being reformation, we fail to see what social objective can be gained by sending juveniles to jails where they would come into contact with hardened criminals and lose whatever sensitivity they may have to finer and nobler sentiments. That is the , reason why Children Acts are enacted by States all over the country and the U.P. Legislature bas also enacted the Uttar Pradesh Children Act, 1951.

Since, according. to the Report of the Sessions Judge, there were 7 juvenile undertrial prisoper below the age of 16 years, that being the limit of age below which a juvenile would be regarded as a 'child' within the meaning of the Uttar Pradesh Children Act, 1951, and out of these seven child undertrial prisoners, six were released prior to the visit of the Session Judge and they could not therefore be interviewed by the Sessions Judge, we would direct Shri Q.P, Gar~, Secretary of the T, J.p. tate !}oar<). of Leal Aid ang

SUPREME COURT REPORTS

(1982) 3 S.C.R.

Advice, to immediately contact these six children after finding out their addresses either from the court proceedings or from the jail records and take their statements with a view to ascertaining what was the treatment meted out to them in the Kanpur Central Jail and whether any cf them was mal-treated or sexually exploited.

Shri O.P. Garg will immediately without any delay, proceed to take the statements of these six children and submit them to this Court along with bis report on or before 27th January, 1982. His expenses may be met by the U.P. State Board of Legal Aid and Advice.

We should also like the State of Uttar Pradesh and the Superintendent of the Kanpur Central Jail to inform us by a proper affidavit before the next hearing of the writ petitions as to what were the circumstances in which these six children whose names are given at serial numbers 2 to 7 in Annexure B were released, and also produce before us the orders of the Magistrates directing their release.

We should also like the State of Uttar Pradesh and the Superintendent of the Kanpur Central Jail to inform us as to why Deshraj was detained in the Kanpur Central Jail from 7th March, 1981 though he was admittedly, even on the basis of the jail records, a child below 16 years of age and how did it happen that suddenly on 19th December, 1981, an order was obtained for transferring him to the Children's Home, Kanpur. The State of Uttar Pradesh and the Superintendent of the Kanpur Central Jail will also explain as to why such an order for transfer of Desbraj to the Children's Home Kanpur could not be obtained earlier.

The learned counsel appearing on behalf of the State of Uttar Pradesh handed over to us copies of Annexures A and B, but we do not have copies of the other annexures to the Report of the Sessions Judge.

We would therefore request the Registrar of the High Court of Allahabad to forward to us immediately copies of all the annexures to the Report of the Sessions Judge. The copies may be in quaduplicate.

Since, according to the Report of the Sessions Judge, 7 children were lodged in the Kanpur Central Jail and perhaps a few more out of the 84 undertrial prisoners mentioned in Annexure A to the Report of the Sessions Judge could possibly .he children within the meaning of Uttar Pradesh Children Act, 1951, we think it is necessary to point out that under the provisions of that Act, no

hild can, except in the r11re cases provided in the Act, be detained

. -.r

1 ,_. --

in jail. Chapter IV of the Act deah with youthful offenders.

Section 23 which occurs in this chapter provides in sub-section (I) that when a person apparently under the age of 16 years is arrested for a nonbailable offence and cannot be brought forth before a court, the oflicerin-charge of the police station to which such person is brought may in any case and shall unless the offence is one of culpable homicide or-is an offence punishable with death or transportation release him on bail unless for reasons to be recorded In_ writing the officer believes that such release will bring him into association with any reputed criminal or expose him to moral danger or that his release would defeat the ends of justice. Section 24 then proceeds to enact that when a person apparently under the age of 16 years having been arrested is not released under section 23 or otherwise, the officer-in-charge of the police station, shall cause hini to be detained in the prescribed manner until he can he brought before a court. So also section 25 provides that a court, on remand ing or committing for trial a child who is not released on bail, shall order him to be detained in the prescribed manner.

The manner in which a child can be detained is prescribed by the Uttar Pradesh Children Rules, I 962 made in exercise of the powers conferred under sub-section (I) of section 88 of the Uttar Pradesh Children Act, 1951.

Rules 14 and 15 are the relevant rules which make provision in this behalf.

Rule I 4 provides that except as provided in the Act, where a child having been arrested is not released on bail under section 23, the officer-in-charge of the police station shall cause him to be detained ic a place of safety until he can he brought before a court and rule I 5 says that except as provided in the Act, where a child is not released on bail, the court shall on remanding or committing a child for trial order him to be detained in a place of safety pending the disposal of the proceeding. What is a "place of safety" is defined in section 2, sub-section (9) of the Act to mean, "any observation home or any orphanage, hospital, or any other ; suitable place or institution, the occupier or manager of which is williug temporarily to receive a child, or where such observation home, orphanage, hospital or other suitable place of institution is not available in the case of a male child only, a police station in which_ arrangements are available or can be made for the safe keeping of a child separately from adult offenders." It is therefore clear that when a child is arrested for an offence and is not released on bail, be cannot be sent to jail but be must be detained in a place of safety as defined in section 2 sub-section (9) of the Act.

The inhibition 1111ainst sending a ~!!!Id to jail docs not depend upon any proof that

SUPRE MB COURT REPORTS (1982] 3 s.c.R.

he is a child under the age of 16 years hut as soon as it appears that a person arrested is apparently _under the age of 16 years this inhibition is attracted.

The reaaon for this inhibition lies in the court solitude which the]law entertains for juveniles below the age of 16 years. The law ii very much oncerned to see that juvenile do not come into contact with hardened criminals and their chances of reformation are not blighted by contact with criminal offenders.

The law throws a clock of protection round juveniles and seeks to isolate them from criminal offenders, because the emphasis placed by the law is not on incarceration but on reformation.

How anxious is the law to protect young children from contamination with hardened criminals is also apparent from section 27 of the Act which provides, subject only to a few limited and exceptional cases referred to in the proviso, that notwithstanding anything contained to the contrary, no court can sentence a child to death or transportation or imprisonment for any term or commit him to prison in default of payment of fine.

It would thus be seen that even where a child is convicted of an offence, he it not to be sent to a prison but he may be committed to an approved school under section 29 or either discharged or committed to suitable custody under section 30.

Even where a child is found to have committed an offence of so serious a nature that the court is of opinion that no punishment which under the provisions of the Act it is authorised to inflict is sufficient, section 32 provides that the offender shall not be sent to jail but shall be kept in safe custody in such place or manner as it thinks fit and shall report the case for the orders of the State Government.

Section 33, sets out various methods of dealing with . ' children charged with offences. But in no case except the exceptional ones mentioned in the Act, a child can be sent to jail. It is therefore very surprising that the seven children whose names are mentioned in Annexure B to the Report of the Sessions Judge were sent by the concerned Magistrate to jail instead of being sent to Children's Home which we believe was a place of safety in Kanpur within the meaning of section 2 sub-section (9) of the Act.

We would strongly impress upon the magistrates in the State of Uttar Pradesh-and what we say here must apply mutatis mutandis to the magistrates in the other parts of the country where the Children Acts are in force, that they must be extremely careful to see that no person apparently under the age of 16 years is sent to jail but he must be detained in a Children's Home or other place of safety. It is absolutely essential in order to implement the provisions of the Uttar Pradesh Children Act, 1951 that children's Home or other

suitable places of safety are set up by the government for the purpose of providing a place of detention for children under the age of 16 years. No words we can use would be strong enough to convey our feelings in this respect. A nation which is not concerned with the welfare of its children cannot look forward to a bright future.

With these observations, we adjourn the hearing of these three writ petitions' to 29th January, 1982.

N.V.K.

MtJNNA & OTHERS ETC

STATE OF U.P. AND OTHERS ETC

January 19, 1982

R.S. PATHAK, JJ.

Constitution of India

Article 32

Uttar Pradesh Childrtn Act 1951

ss. 2(9), 29, 30, 32 and 33

Madhu Mehta

Kanpur Central Jail

Kanpur

State of Uttar Pradesh

High Court of Allahabad

Sessions Judge of Kanpur

21st December, 1981

22nd December, 1981

Des Raj

19th December, 1981

7th and 16th December, 1981

18th December, 1981

Uttar Pradesh Legislature

section 2

section 23

section 27

section 29

section 30

section 32

Section 33

Uttar Pradesh

7th March, 1981

19th December; 1981

State of Uttar Pritdesh

O.P. Garg

Uttar Pradesh State Board

article 32

Constitution of India

Krishan Mahajan

Lily Thomas

K. Hingorani

R.K. Bhatt

BHAGWATI

State of U ttar Pradesh

Munna

Deshraj

's Home Kanpur

Allahabad High Court

2nd December, 1981

Lily Thomas

3rd December, 1981

Deshraj

7th March, 198.1

Children's Home Kanpur

Children Act, 1951

5th January, \982

Madbu Mehta

Madho Mehta

Uttar Pradesh Children Act, 1951

Q.P, Gar~

27th January, 1982

U.P. State Board

Desbraj

Uttar Pradesh Children Act, 1951

Chapter IV of the Act

Section 23

Section 24

section 23

section 25

section 88

Uttar Pradesh Children Act, 1951

section 23

section 2

section 2

section 27

section 29

section 30

section 32

Section 33

section 2

29th January, 1982

N.V.K.


A 482

STATE OF ANDHRA PRADESH

MOHD. ASHRAFUDDIN

Marrh 5, 1982 • [A.D. KOlHAL, V. BALAKRISHNA ERADI AND

R.B. MISRA, JJ.J

Andhra Pradesh Land Reforms (Ceiling on. Agricultural-Holdings) Act 1913- Section 3(i), Ia and 12-Scope of-" Holding" and 'held'-Meaninlf of.

Out of the total holding of hisland the respondent transferred land to two persons under two unregistered. sale deeds and gifted away some land to his son.

Jn the return submitted by him the respondent did not include in his holding the area transferred under the unregistered sale deeds. The Land Reforms Tribunal, ignoring the two transfers, computed his holding at 1.7692 standard holding and calJed upon him to surrender land equivalent to 0.7692 standard holding.

On appeal the Land Reforms Appellate Tribunal upheld the order of the Land Reforms Tribunal.

In revision the High CQurt held that the land transferred under the two sale deeds could not be included in the holding of the respondent for ascertaining the ceiling area. In coming to this conclusion the High Court gave the benefit of section 53A of Property Act to the person in possession of the plots pursuant to the contract for sale and treated the land as a part of his holdjng. It was contended on behalf of the resrondent that the definition of 'holding' contemplates ownership with possession and if so the transferee in possession will be taken to be the holder of tbe land transferred and not the respondent who was the transferor or who was not in possession.

Allowing the appeal,

HELD : The respondent satisfies the conditions contemplated by the deft~ nition of the term 'holding' and the land transferred by him under-a defective tit1e deed will form p8rt of his holding. The High Court was in error in holding that the land in possession of the transferee cannot be taken to be a part of the holding .of the respondent. [486 H; 487 A]

The expression 'held' connotes both ownership as well as possession. In H the context of the definition it is not possible to interpret term 'held' only in the sense of possession. Tbe explanation to the definition of 'holding' clearly contempates that the same land can be the holding of two different persons holding

-. •

' .J

-->

the land in two different capacities. The respondent in the instant case is holding the land as owner although he was not in possession. [486 C-EJ

It is well settled that a person in possession, pursuant to a contract for sale. docs not get title to the 1and unless there is a valid document of title in his favour. In the instant case the transferee came into possession in pursuance of an agreement for sale but no valid deed of title was executed in his favour. There• fore, the ownership remained with the transferor. But even in the absence of a valid deed of title the possession pursuant to an agreement of transfer cannot be said to be illegal and the transferee is entitled to remain in possession. If per chance he is dispossessed by the transferor he can recover possession. The transferor cannot file any suit for get ting back possession but an the same he will continue to be the owner of the land agreed to be transferred. [486 F-H]

There may conceivably be cases where the same land is included in holding of two persons in different capacities and serious prejudice might be t11used to one or both of them if they were asked to surrender the excess area. To safeguard the interest of the owners in such a cast the legislature has made 8 provi .. sion in section 12(4) and (5) of the Act. Even so there might be cases where some prejudice might be caused to some tenure holders. [439 C-E; G] .

But if the definition of the term 'holding' is couched in clear and unambi .. guous language the Court bas to accept it as it stands. So construed th~ same

land can be a part of the holding of various persons holding it in different capa .. cities. When the terms of the definition are c1ear and unambiguous there is no qliestion of taking extraneous aid for construing it. (489 H. 490 A]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1346 E of 1976.

Appeal by special leave from the judgment and order dated the 17th September, 1976 of the Andhra Pradesh High Court in Civil Revision Petition No. 743 of 1976.

L.N. Sinha, Attorney General, P.P. Rao and B. Parathasarthy, for the Appellant

_ P. Govindan Nair, S.K. Mehta, P.N. Puri and MK. Dua, for the Respondent.

A. V. Rangam for the applicant/interveners.

The Judgment of the Court was delivered by

MISRA J, The present appeal by special leave is directed against the judgment .and order of the High Court of Andhra

radesh dated the 17th of September, 1976 allowing a civil revision arising out of proceedings under the Andhra Pradesh Land Reforms

(Ceiling on Agricultural Holdings) Act, 1973, hereinarter referred to as 'the Act'.

The holding of the respondent consisted of survey Nos. 36, 37, 41, 42 and 92, all dry, admeasuring acres 88.46 cents in village Ghotkuri in district Adilabad. It appears that he had transferred 17 acres from survey Nos. 36 and 11 acres and 48 cents from survey No. 41 to another person under unregistered sale deeds pursuant to an agreement for sale and had gifted away survey Nos. 37, 42 and 92 to his own son Naimuddin by a document written on a plain paper.

Pursuant to a notice section 8 of the Act the respondent filed a declaration in respect of his holding. In his declaration, however, he did not include in his holding the area transferred by hini under two unregistered sale deeds and the aroresaid gift deed.

The Land Reforms Tribunal ignoring the aroresaid transfers computed his holqing at 1.7692 standard holding. Under the Act be was entitled to possess one standard holding only. He was, therefore, asked to surrender land equivalent to 0. 7692 standard holding.

The respondent feeling aggrteved took up the matter in appeal to the Land Reforms Appllate Tribunal. He, however, confined his appeal to the land covered by the two sale deeds in respect of survey Nos. 36 and 41 and submitted to the finding of the Land Reforms Tribunal regarding the gift or survey Nos. 37, 42 and 92. The Appel-· late Tribunal confirmed the order of the Land Reforms Tribunal and ignored the sale deeds executed by the respondent in respect of survey Nos. 36 and 41. The respondent challenged the order of the Appellate Tribunal by preferring a revision to the High Court.

The High Court in its turn allowed the revision holding that the land transferred under the two sale deeds could not he included. in the holding of the respondent for ascertaining the ceiling area.

The High Court has given the ben.efit of section 53A of the Transfer of Property Act to the person in possession of the plots pursuant to the contract for sale and treated the land as. a part of his holding.

The State of Andhra Pradesh has come up in appeal to this Court.

lir

~ '

- t

OM PRAKASH v. DIOVIJENDRAPAL (Misra, J.) . 485

The Attorney General appearing for the State has raised only one contention. According to him, on a correct interpretation of the definition of 'holding' as given in clause (i) of section 3 of the Act, the land transferred by the respondent will still continue to Ile a part of bis holding. In order to appreciate the contention we have to read the definition of 'holding' along with the explanation attached to it :

"3 (i) 'holding' means the entire I.and held by a person-

(i) as an owner ;

(ii) as a limited owner ;

(iii) as an usufructuary mortgage ;

(iv) as a tenant ;

(v) who is in possession by virtue of a mortgage by condi- D tional sale or through part performance of a contract for the sale of land or otherwise, or in one or more of such capacities ;

and the expression 'to bold land' shall be construed E accordingly.

Explanation :-Where the same land is held by one person in one capacity and by another person in any other capacity, such land shall be included in the holding of both such persons."

The term 'holding' takes in its fold land held by various persons in various capacities viz., as an owner ,.as a limi led owner, as an usufructuary mortgagee, as a tenant or as a person in possession by virtue of a mortgage by conditional sale or through part performance of a contract for the sale of land or othcwise, or in one or more of such capacities. The Explanation appended to the definition clearly contmplatcs that if the same land is held by one person in one capacity and by another person in another capacity such land shall be included in the holding of both such persons.

Obviously, therefore, the same land can be taken to be a Jlllrt of the holding of more persons than one provided they hold it in different capacities.

- -

Shri P. Govindan Nair appearing for the respondent on the other hand has contended that the expression 'held' in the definition of 'holding' contemplates ownership with po.•session and that if this be so the transferee who is in possession will be taken to be the holder of the land transferred, and not the respondent who was the transferor and who was not in possession. He has also contended that the interpretation sought to be put by the Attorney General on the definition would create an anomalous situation.

The word 'held' is not defined in the Act. We have, therefore, to go by the dictionary meaning of the term. According to Oxford Dictionary 'held' means : to possession to be the owner or holder or tenant of ; keep possession of; occupy. Thus, 'held' connotes both ownership as well as possession. And in the context of the definition it is not possible to interpret the term 'held' only in the sense of possession.

For example, if a land is held by an owner and also by a tenant or by a person in possession pursuant to a contract for sale, the holding will be taken to be the holding of all such persons. It obviously means that an owner who is not in actual possession will also be taken to be a holder of the land. If there was any doubt in this behalf, the same has been dispelled by the explanation attached to the definition of the term 'holding'.

The explanation clearly contemplates that the same land can be the holding of two different persons holding the land in two different capacities. The respondent in view of the definition certainly is holding as an owner, alt bough he is not in possession.

It is by now well settled that a person in possession pursuant to a contract for sale do es not get title to the land unless there is a valid document of title in his favour.

In the instant case it has already been pointed out that the transferee came into possession in pursuance of an agreement for sale but no valid deed of title was executed in. hisf avour. Therefore, the ownership remained with the respondent-transferor.

But even in the absence of a valid deed of title the possession pursuant to an agreement of transfer cannot be said to be illegal and the transferee is entitled to remain in possession.

If per chance.be is dispossessed by the transferor, be can recover possession.

The transferor cannot file any suit for getting back possession but all the same he will continue to be the owner of the land agreed to be transferred. The respondent, in our considered opinion, satisfies the conditions contemplated by the definition of the term 'holding' and the land transferred by him under a defective

title deed will form part of his holding. The High Court, therefore, erred in holding that the land in i possession of the transferee cannot be 1aken to be a part of tbe holding of the transferorresponden t.

This takes y_s to the other contention raised by Shri P.

Govindan Nair that the interpretation sought to be put by the Attorney General on the definition would create an anomalous position in as much as the same land according to the definition may form part of the holding of the transferor as well as of the transferee or of the owner as well as of the tenant.

, At the tint flush it may appear to be paradoxical to say that c

te same land could form part of the holding cf various persons en\!.£. rated in the definition of 'holding' but on a closer scrutiny oft. e relevant provisions of the Act the proposition presents no diffic 1ty. .

D ! '

1A reference may be made to sections 10 and 12 of the Act.

In so far as they are material for the purpose of this case they read :i

1 "10 (I) If the extent of the holding of a person is in j!xcess of !the ceiling area, the person shall be liable to ; surrender the land held in excess.

(2) The Tribunal shall serve on every person, who is liable to surrender the land held in excess of the ceiling ' area under sub-section (!), a notiee specifying therein the

eittent of land which such persori has to surrender and requiring him to file a statement within such period not being less than fifteen days, as it may fix, indicating therein full particulars of the lands which such person proposes to surrender.

(3) (4) .......................... .

(5) (a) Noth withstanding anything in this section it shall be open to the Tribunal to refuse to accept the surrender of any land-

SUPRBMF COURT REPORTS [1982] 3 s.c.11..

(i) which has been converted into non•agricultura\ land and has been rendered incapable of being used for purposes of agriculture;

(ii) the surrender of which is not acceptable on account of a dispute as to the title to the land or an encumbrance on the land or on account of the land being in the possession of any person mentioned in item (ii) or item (v) of clause (i) of . section 3 or on account of the land proposed to be surrendered becoming in accessible by reason of its severence from the remaining part of the holding; and

the Tribunal shall, in every such case, serve a notice on the person concerned requiring him to surrender any other land in lieu thereof; and thereupon th provisions of subsections (3) and (4) shall, mutati • mutandis apply to such surrender : }

Provided that where land proposed to be surrenderd under this section is burdened with a mortgage, t!he Tribunal may, on an application made by the mo!rt gagor with the consent of the mortgagee, by ordler, ' transfer such mortgage from the land so proposed 1to be surrendered to the residuary holding of the mortf48

gor or to any part thereof. ;

(b) Where the I and so surrendered under clause (a)

is also not 'acceptable to the Tribunal, the Tribunal shall, after giving an opportunity to the person concerned of being heard, select any other land ' in lieu thereof, and thereupon, the said land shall be deemed to have been surrenllered by such person."

"12(1) Where any land is surrendered! or is deemed to have been surrendered under this Act b~ any usufructuary mortgagee or tenant, the possession of such land shall subject to such rules as may be prescribed revert to the owner.

(2) (3) ................. .

(4) Where any land is surrendered or is deemed to have been surrendered under this Act by any limited owner or by any person in possession by virtue of a mortgage by conditional sale or through a part performance of contract for sale or otherwise, the possession of such land shall, subject to such rules as may be prescribed, revert to the owner."

It may be argued on the strength of section IO that if the same land is included in the holding of two persons in different capacities both of them may be asked to surrender the excess area and in that case serious prejudice might be caused to one or to both of them.

For example, A is the owner of certain plots and he delivers possession of a part of his land to B pursuant to an agreement for sale.

According to the definition of 'holding' the land in possession . of B will be taken to be a part of the holding of A and B both. If the land forming part of the holding of A and B is in excess of the ceiling area, both may be obliged to surrender the excess area. The legislature, however, has ma.de a provision to safeguard the interest of the owner in such a case.

Section 12 (4) provides ; "Where any land is surrendered or is deemed to have been surrendered under this Act by any limited owner or by any perscrn in possession by virtue of a mortgage by conditional sale or through a part performance of contract for sale or otherwise, the possession of such land shall, subject to such rules as may be prescribed, revert to the owner.

Sub-section (5) also safeguards the interest of the mortgagee in possession or a person in possession in pursuance of a contract for sale and provides : "the owner to whom the possession of the land reverts under sub section (4) shall be liable to discharge the claim enforceable against the land by the limited owner or person in possession; and the land surrendered shall, if held as a security, continue to be the security."

 Even so, there may be cases in which some prejudice might be caused to some tenure holders but that cannot be helped. If the definition of the term 'holding' is couched in clear and unambigllous language the court has to accept it as it stands, and if it is so construed, there is not the slightest doubt that the same land can be a part of the holding of various persons holding it in different capacities. When the terms of the . definition are clear and unambi-

490 SUPREME COURT IU!POl.TS

(1982) 3 s.c.11.

A guous there is no question of taking extraneous aid for construing it.

Lastly, Sbri P. Govindan Nair referred to Form No. I in the rules framed under the Act. He relies on item 8 of that form in support of bis contention. It reads :

"8. Have all details of all lands owned by others but held by the declarant and where the declaration is by a family unit, by all members of : the family unit as limited owner, usufructuary mortgagee, tenant, or in possession by virtue of a mortgage by conditional sale or through part performance of a contract for the sale of land or otherwise on the specified date, been furnished in Enclosure or I , . . .

We are afraid, item No. 8 of Form l of the rules does not help ithe respondent at all. Rather it goes counter to .his content. It env1tge1 that the same land can be part of the holding or various perso s in different capacities.

For the foregoing discussion the appeal must succeed'. We, accordingly allow the same and set aside the order of the High; Court .and restore that of the Land Reforms Tribunal. In the circumtances

of the case, there will be no order as to casts.

P.B.R.

Appeal aliowed.

-r..:- . 't l

482

STATE OF ANDHRA PRADESH

MOHD. ASHRAFUDDIN

V. BALAKRISHNA ERADI

R.B. MISRA, JJ

Section 3(i)

section 53A

section 12(4)

CIVIL APPELLATE JURISDICTION

Andhra Pradesh High Court

P.P. Rao

B. Parathasarthy

P. Govindan Nair

S.K. Mehta

P.N. Puri

MK. Dua

A. V. Rangam

MISRA J

High Court of Andhra

radesh

Ghotkuri

Adilabad

Naimuddin

section 8

Land Reforms Appllate Tribunal

section 53A

Transfer of Property Act

State of Andhra Pradesh

section 3

P. Govindan Nair

P.

Govindan Nair

sections 10 and 12

section 3

Section 12

Sbri P. Govindan Nair


491 A

OM PRAKASH GUPTA ETC.

DIG VIJENDRAPAL GUPTA ETC.

ii~ March 5, 1982

[A.D. KosHAL, V. BA.LAKRISHNA BRAD! AND

R.B. MISRA, JJ.J

U.P. Urban Building• (&gu/ation of Letting, &nt and Eviction) Act 1972.

S.2 (1) and Expln.1 ands. 39.

Applicability of th• Act-Act not to apply to building for a period of t411

~ ytars from 'date of completion of construction'.

Date of completion of construction--What is-' Date of first assessmen1• if asussed-'Date of occupation' when no record of completion of construction or of D asstssnunt. ·

Interpretation of Statutes-Intention of legislature-To ht ascertain"/ primarily Jrom words 11std by legislative-Question of interpretation .arises whtlt

language ambiguous.

Tho U.P. Urban Buildings (Regulation of Lotting, Rent and (Eviction) Act, 1972 provided by subsection (2) of section 2 that except as provided in the Act, the Act was not to apply to a building during a period of 10 years from the date on which its construction was completed. Explanation I to the sub-section provided that the building shaU be deemed t<;> have been completed on the date on which completion thereof is reported or otherwise recorded by the local authorities having jurisdiction, and in case of a building subject to assessment. the date on which the first. assessment thereof comes into effect, and where the said dates are different,_ the earliest of the said date, and in the absence of any such report, record or assessment, the date on which it is actually occupied for the first time.

The appellant-tenant was in occupation of a shop from the 16th June, 1967 and prior to his occupation the shop was in occupation of another tenant for about a month and a half. The first a8'essment of tho shop took place on !st of April, 1968. The respondent-landlord filed a suit for the eviction of the tenant on the ground that the Act did not apply to the shop and the tenant was liable to eviction.

The Trial Judge finding that the construction of the shop was completed H in the year 1967 and that 10 years having not elapsed since then, held that tho provisions of tho Act did not apply and decreed tho suit. The appellant's

SUPRBMB COURT REPORTS [1982] 3 s.c.R.

petition under section 25 of the Provincial Small Causes Courts Act was dis .. missed. In bis revision petition to the-High Court under section llS of the Civil Procedure Code the appellant contended that the date of occupation should be taken to be the date of completion of the construction of the shop and not the date of first assessment. The High Court overruled the contention and held that the constru:tion of the shop would be deemed to have been completed on 1st of April, 1968 the date of the first assessment and ten years not having elapsed, the Act would not be applicable to the building and dismissed the revision petition.

In the appeal to this Court it was contended on behalf of the appellant:

(1) that by Virtue of sub-sction (2) of s'!ction 2, the Act would be applicable to the shop in question and that the e.:ttemption created by the sub-section did not embrace bui1diogs constructed prior to the commencement of the Act and (2) that the building should be deemed to have been constructed on the date of occupation on 16th June, 1967 and not on the date or the first assessment. and that the appellant wa~ entitled to the benefit of section 39 of the Act.

Dismissing the appeal,

D HELD: l(i) The suit was rightly decreed by the Courts below. The Act had no application and the appellant could not be given the benefit of section

39. [498 G-H]

(ii) Primarily, the language employed is the determining factor of the intention of the legislature. The first and primary rule of construction is'that the

intentin of the legislature must be _found in the words used by the legislature E itself. The question of interpretation arises only when the language is ambigUoua

and, therefore capable of two interpretations. [497 F)

(iii) The language of sub-section (2) of section Z of the Act is explict and unambiguous and is not capable of two interpretations. [497 Gl

In 'the absence of ally ambiguity there is no question of taking any external aid for the interpretation of the sub-section.

The sub-section contemplates that the Act shall not apply to a building during a period of 10 yesrs from the date on which its construction is completed. It no where says that the building should have been constructed after the enforcement of the Act and to inter pret it in such a way would be to add words to the sub-section. which is not permissible. [ 497 D-F)

2 (i) Explanation I makes it abundantly clear that the date of occupation wollld be taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment thereof. If there is an assessment, as in the instant case it will be the date of the first assessment which will be deemed to be the date of completion of the construction. The building had not therefore become more than ten years' old on the date when the revision came to be decided by the High Court and consequently there was no question of giving the benefit of section 39 of the Act to the appellant.

[498 D-F]

' - '

.J, ..

'-.,.-

OM PRAKASH v. DIGVUENDRAPAL (Mi8ra, J.) 493

(ii) In order to attract section 39 the suit must be pending on the date of the commencement of the Act which was 15th of July, 1972. (498 F]

In the instant case the suit was filed ou 23rd of March 1974 long after the

commencement of the Act. (498 F]

(iii) In view of sub-section (2) of section 2, the Act is not applicable to a building which has not a standing of ten years. If the Act itself was riot appli-

. B cable, it would be &bsurd to say that section 39 thereof would be applicable.

[498 O] .

Rattan Lal Shlnghal v. Smt. Murti Devi (1980) 4 S.C.C. 258 andRam Saroop Rai v. Lilavati (1980) 3 S.C.C. 452, over-ruled.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1314 of 1978.

Appeal by special leave from the judgment and order dated

the 23rd March, 1978 of the Allahabad High Court in Civil Revision D

No. 1906 for 1976.

WITH

CIVIL APPEAL No. 2436 OF 1981

Appeal by special leave from the judgment and order dated the 20th August, 1981 of the Allahabad High Court in Civil Writ Petition No. 6909 of 1979.

AND

CIVIL APPEAL. No. 1710 OF 1981

From the judgment and Decree dated the 13th March, 1981 of the Allahabad High Court in Writ Petition No. 6167 of 1979.

AND

SPECIAL LEAVE PETITION (CIVIL) NO. 3573 OF 1979

SUPREME COURT REPORTS [1982] 3 S.C.Jl.

From the judgment and order dated the 3rd January, 1979 of the Allahabad High Court in Civil Revision No. 3714 of 1978.

G.L. Sangh!, Mrs. A. Verma and D.N. Mishra for the Appellant in CA. No. 1314 of 1978.

B , J.P. Goyal, S. Markandeya and C.K. Ratnaparkhi for the Respondent in CA. 1314 of 1978. -<.-

A.K. Srivastava for the Appellant in CA. 1710/80.

R.B. Mehrotra for Respondent in CA. 1710/80.

Pramod Swarup and Mrs. S. Markandeya for the appellant in CA. 2436 of 198J.

S.N. Kacktr and K.K. Gupta for the Respondent in CA. 2436

 D of 1980.

P.R. Mridul, Praveen Jain and K.B. Rohatgl for the Petitioner in SLP (Civil) No. 3573 of 1979

R.H. Dhebar for the Respondent.

The Judgment of the Court was delivered by

MISRA J. The first two appeals by special leave and the third by certificate and the special leave petition raise a common question of law and, therefore, we propose to dispose of them by a common judgment.

The pattern of facts in all these cases is similar. We, therefore set out the facts of Civil Appeal No. 1314 of 1978 to bring out the point for consideration in these matters.

The appellant Om Prakash Gupta is a tenant of a shop on a monthly rent of Rs. 150/-. The respondent-landlord filed a suit for the eviction of the tenant on the ground that the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act 13 of I 972 and hereinafter referred to as 'the Act') did not apply to the shop and the tenant was liable to eviction.

The Judge, Small Causes Court, Mainpuri decreed the suit on the finding inter a/ia that the construction of the shop in suit was completed in the year I 967 and

~ '

,,.J,

" -

~··

• .. (

OM PRAl:ASH. V. DIGVJJENDRAPAL (Mista, J.) 495

that ten years having not elapsed since then, the provisions of the Act did not apply to the case. The defendant went op in revision under section 25 of the Provincial. Small Causes Courts Act against the judgment and decre' of the trial Court but the same was

substantially dismissed.. The defendant thereupon filed a revision ander section 115 of the Civil Procedure Code in the High Court which came up for hearing before a learned Single Jupge who remitted the following issue to the trial court :

"On what date was the construction of the building in dispute completed within the meaning of section 2 (2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, and deemed to have been completed as contemplated by Explanation I (a) thereto."

The Judge Small Causes Court by his order dated 26th of November 1977 returned the following finding :

"The construction of the disputed shop will be deemed to have been completed op the date of the first assessment i.e., 1.4.68 within the meanini: or section 2 (2) of the U.P.

Urban Buildings Act, 1972."

The finding returned by the trial court was sought to be challenged on behalf or the tenant on the ground that the date of occupation should be taken to be the date of completion of the cqnstruion of the shop and not the date of the first assessment.

In Tilak Raj v.

Sardar Derendra Singh,(') a learned Single Judge of the same High Court had the occasion to consider section 2 (2) of the Act. He held : -·

"It is apparent from tJ; iis provision that for purposes of this Act, a building is to be deemed to be constructed, if it is subject to assessment, on the date with effect from which the first assessment is made. It is immaterial whether the building was constructed actually prior to that date or it had come into occupation prior to that date. The law recognised for the purposes of this Act, the date of assessment as the date of the completion of the building. There is thus no error in the judgment of the court below."

(1) 1976 (2) ALR 721 ...

The learned Single Judge before whom the revision in the instant case came up for hearing doubted the correctness of the above decision. He, therefore, referred the case to a Division Bench.

The~ is no dispute that the first assessment of the shop took place on 1st of April, 1968.

It is also not in dispute that the shop in question was occupied by the defendent on 16th of June, 1967, and prior to his occupation the shop was in occupation of another tenant for about a month and a half.

The appellant sought the benefit of section 39 of the Act on the ground that if the date of occupation was taken to be the date of the completion of the construction of the shop, then ten years having elapsed during the pendency of the revision before the High Court, the Act would be applicable. The Division Bench, however, over-ruled the contention of the appellant and held that the _construction of the shop in question would be deemed to have been completed on !st of April 1968 and, therefore, the Act would not be applicable to the building till the date of the decision of the revision on March 23, 1968. The defendant undaunted by the failure came to this Court to challenge the judgment of the High Court.

Mr. G.L. Sanghi, senior counsel; appearing for the appellant strongly contended that on a correct interpretation of sub-section (2) E of section 2, the Act would be applicable to the shop in question.

It wonld be appropriate at . this stage to extract subsection (2) of section 2 of the Act insofar as it is material for the purposes of the case :

"Except as provided in sub-section (5) of section 12, sub-section (1-A) of section 21, sub-section (2) of section 24, sections 24A, 24B, 24C or sub-section (3) of section 29, nothing in this Act shall apply to a building during a period of ten years from th~ date on which its construction is completed :

Explanation I. For the purposes of this sub-section:

(a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction and in the cae of a building subject to_ assessment the date on which the first assessment thereof

--~

. '

> ,),

.. .

OM PRAKASH v. DIGVIJENDRAPAL (Misra, J.) 497

comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time : . "

The precise contention on behalf of the appellant is that the exemp tion created by this sub-section does not embrace buildings constructed prior to the enforcement of the Act. In support of his contention, Mr. Sanghi, relied upon Rattan Lal Shinghal v. Smt. Murti Devi.(1) The same contention was raised by him in that case also and a Division Bench of this Court accepted the contention and held that Act 13 of 1972 was prospective and applied only to build ings brought into being de nova after the Act came into force.

In that case there is no discussion except this bald observation.

This Court in a subsequent case Ram Saroop Rai v. Li/avati(2) held to the contrary. It is on this account that the present appeals were referred to a larger Bench.

There no ambiguity in the language of sub section (2) of section 2 and in the absence of any ambiguity there is no question of taking any external aid for the interpretation of the sub-section. In plain words the sub.section contemplates that the .

Act shall not apply to a building during a period of ten years from the date on which its construction is completed. It nowhere says that the buildieg should have been constructed after the enforce ment of the Act and to interpret it in the way the learned counsel for the appellant seeks to interpret it, we would be adding words to the sub-section, which is not permissible.

Primarily the language employed is the determining factor of the intention of the legislature.

The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself.

The question of interpretation arises only when the language is ambiguous and, therefore, capable of two interpretations. In the present case the language of sub-section (2) of section 2 of the Act is explicit and unambiguous and it is not capable of two interpretations.

(I) [1980] 4 s.c.c. 258.

(2) [1980] 3 s.c.c. 452.

As a second limb to the first argument, it is contended that the building will be deemed to have been constructed on the date of occupation on 16th of June, 1967 and not on the date of the first assessment, and that if this he so, the appellant would be entitled to the benefit of section 39 of the Act on the date when the revision came to be decided by the High Court on 23rd of March, 1978. In order to appreciate this argument it will be expedient to refer to Explanation I to sub-section (2) of section 2 which has already been extracted. Explanation I provides that the building shall be deemed to have been completed on the date on which completion thereof is reported to or otherwise recorded by the local authorities I:taving jurisdiction, and in case of a buildlng subject to assessment the date on which the first assessment thereof comes into effect and where the said dates are-different, the earliest of the said dates, and in the absence of anv such report, record or assessment, the date on which it is actually occupied .for the first time.

A perusal of Explanation I makes it abundantly clear that the date of occupation wonld be taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment, thereof. If there is an assessment, as in tbe present case it is, it will be the date of tbe first assessment which will be deemed to be the date of completion of tbe construction and in that view of the matter the building had not become more than ten years' old on the date when the revision came to be decided by the High Court, and therefore there was no question of giving the benefit of section 39 of tl1e Act to the appellant.

Further, in order to attract section 39 the suit must be pending on the date of commencement of the Act which is 15th of July, 1972 but the suit giving rise to the present appeal was filed on 23rd of March, 1974 long after the commencement of the Act. There is yet another reason why section 39 wilt have no application to the present case. In view of sub-section (2) of section 2 of the Act the Act is not applicable to a building which bas not a standing of ten years and if the Act itself was not applicable, it would be absurd to say that section 39 thereof would be applicable. Considered from any angle the Act bas no application to the present case and the appellant could not be given the benefit of section 39. The suit bas, therefore, been rightly decreed by the courts below.

We find no force in either of the contentions raised by Mr.

Sanghi. The counsel for the appellants in the other appeals and

OM PRAKASH v. DIOVIJENDRAPAL (Misra, J.) 499

the petitioner in the special leave petition, adopted the arguments of Mr. Sanghi.

For the foregoing discussion the appeals and the special leave petition are dismissed. There shall, however, be no order as to costs. '

We, however, direct that the order of eviction in each case shall not be executed before 30th of June, 1982 on condition that each of the appellants in the appeals and the petitioner in the special leave petition files an undertaking in this Court within four weeks from today to the following effect :

I. that he will hand over vacant and peaceful possession of the suit premises to the landlord-respondent on or before 30th of June, J 982;

2. that he will pay to the respondent arrears of rent, if any, within a month from today;

3. that he will pay to the respondent future compensation for use and occupation of the suit premises for each calendar month by the l 0th of the succeeding month; and

4. that he will not induct any other person in the suit premises as a sub-tenant or licensee or in any other capacity whatsoever.

We further direct that in default of compliance with any one or more of the conditions of the undertaking or if the undertaking is not filed within the stipulated time, the decree of eviction shall become executable forthwith .

N.V.K.

Appeal dismissed.

A

OM PRAKASH GUPTA ETC

DIG VIJENDRAPAL GUPTA ETC

A.D. KosHAL

R.B. MISRA, JJ

section 2

16th June, 1967

st of April, 1968

SUPRBMB COURT REPORTS [1982] 3 s.c

section 25

1st of April, 1968

section 39

section

39

section 39

section 39

section 2

section 39

G.L. Sangh

A. Verma

D.N. Mishra

B , J.P. Goyal

S. Markandeya

C.K. Ratnaparkhi

A.K. Srivastava

R.B. Mehrotra

Pramod Swarup

S.N. Kacktr

K.K. Gupta

P.R. Mridul

Praveen Jain

K.B. Rohatgl

R.H. Dhebar

MISRA

Om Prakash Gupta

Small Causes Court, Mainpuri

V. DIGVJJENDRAPAL

section 25

Small Causes Courts Act

section 115

section 2

26th of November 1977

section 2

Urban Buildings Act, 1972

section 2

16th of June, 1967

section 39

March 23, 1968

G.L. Sanghi

section 2

section 2

section 12

section 21

section 24

sections 24A, 24B, 24C

section 29

Sanghi

section 2

section 2

section 39

23rd of March, 1978

section 2

section 39

section 39

15th of July, 1972

23rd of March, 1974

section 39

section 2

section 39

section 39

Sanghi

30th of June, J 982

N.V.K.


GOVERNMENT OF ANDHRA PRADESH

THUMMALA KRISHNA RAO & ANR.

March 16, 1982

[ Y.V. CHANDRACHUD, C.J., A. VARADARAJAN AND

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?

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 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 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 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.itiated 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 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 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 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.

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 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 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 operation 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 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 DH)

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 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 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 bona fide dispute of title between the Government and th• occupant must be adjudicated 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

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 Government 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 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

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.

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-

...

ficate granted by the High Court. The' question which these appeals involve is whether the appellant, the Government of Andhra Pradesh, bas 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, 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 correpond 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.

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 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 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

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 tbe lands and on December 15, 1964 the Tahsildar passed an 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 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.

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 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

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 tho 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 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 unauthorised occupation of lands which are the property of the Government "by the imposition of penal or prohibitory assessment 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. Section 2 (I) 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

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 5 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 (I) and 7, which are relevant for our purpose, read thus:

"Sec. 6 (1) Any person unauthori sedly occupying any land 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 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 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

proceded against under section 5 or section 6."

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 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 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 person is in unauthorised occupation of a land "for which he is liable to pay assessment under section 3". Section 3, in turn,

refersto 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 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 Naab Habibuddin was found 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 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.

•UPREME COURT REPORTS

[1982) 3 S.C.R.

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 himself in another case which is reported in Meherunnissa Begum v.

State of A.P.(') which was affirmed by a Division Bench.(') 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. Facti

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 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 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 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 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.

(I) (1970)) ALT 88.

!2) (1971) I A.L.T. 292; AIR 1971 A.P. 382.

, J..--

,. .~ .

We do not propose to pass any orders on CivU Misc. Petitions 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 appeals.

H.L.C.

Appeals dismissed.

GOVERNMENT OF ANDHRA PRADESH

THUMMALA KRISHNA RAO & ANR

March 16, 1982

Y.V. CHANDRACHUD, C.J.

A. VARADARAJAN

AMARBNDRA NATH SEN, JJ.

S. 6

s. 2

s. 3

Section 5

s. 6(1)

s. 3

s. 1

Government of Nizam of Hyderabad

s. 6(1)

December 15, 1964

Art. 226

Article 226

s. 6

s 6

Hyderabad

s. 6

s. 6

E Ramachandra Reddy

B. Parthasartm

P. Rama Reddy

A. V.V. Nair

A. Subba Rao

A.K. Sen

K. Rajendra Choudhury

G.R. Subbaryan

I. Kott Reddy

Mahabir Singh

B. Kanta Rao

CHANDRACHUD

Government of Andhra Pradesh

Habsiguda

Taluk

Aodhra Pradesh

Nawab

Zainuddin

Nawab Habibuddin

Government of the Nizam of Hyderabad

Land Acquisition Act, 1894

Osmania University

Nizam

February 13, 1956

Nawab Habibuddin

Habibuddin

January 24, 1964

May 8, 1964

December 8, 1964

section 7

Land Encroachment Act, 1905

November 26, 1973

March 19, 1974

High Court of Andhra Pradesh

article 226

section 7

Section 2

Section 2

section 3

Section 5

section 3

Sections 6

Sec. 6

section 3

Sec. 7

section 5

section 6

section 5

section 6

section 6

section 2

section 6

section 2

section 6

section 3

Section 3

section 6

Osmania

University

Naab Habibuddin

section 6

section 6

Meherunnissa

sections 6 and 7

Entashamuddin alias Anwar Siddiqui