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Mehrunnisswa Begum and anr. Vs. Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 486 of 1969 and Writ Petn. Nos. 797 of 1966, 2635, 4876 of 1968, 1127, 1231, 1664, 2
Judge
Reported inAIR1971AP382
ActsConstitution of India - Article 14; ;Madras Land Encroachment Act, 1905 - Sections 6 and 7
AppellantMehrunnisswa Begum and anr.
RespondentGovernment of Andhra Pradesh and ors.
Excerpt:
constitution - equality clause - article 14 of constitution of india and sections 6 and 7 of madras land encroachment act, 1905 - sections 6 and 7 called in question as being violative of article 14 - ground taken that remedy provided under sections 6 and 7 more drastic than common law process in court of law - party against whom sections 6 and 7 applied occupies same position vis-a-vis government as he would have occupied if ordinary process of law had been applied - sections 6 and 7 do not lead to drastic result - act gives sufficient guidance in exercise of discretion under sections 6 and 7 - held, sections 6 and 7 not violative of article 14. - - 4. the counsel appearing for the petitioners or appellants placed strong reliance on the decision of the supreme court in n. ' the.....parthasarathi, j. 1. because of a common ground urged by all the parties for impeaching the provisions of the madras land encroachment act. 1905 all the writ petitions and writ appeal have been set done together for hearing. the statute and more particularly section 6 and 7 are called in question as being violate of concept of equality underlying article 14 of the constitution.2. it is not necessary to set out the facts that have given rise to the several writ petitions because the argument has been confined to the preliminary question of the constitutional validity of the act.3. stated in bare outline, the contention is that the madras land encroachment act (the provisions of which are made applicable to the telangana region too) provides a remedy of government within the meaning of the.....
Judgment:

Parthasarathi, J.

1. Because of a common ground urged by all the parties for impeaching the provisions of the Madras Land Encroachment Act. 1905 all the writ petitions and Writ Appeal have been set done together for hearing. The statute and more particularly Section 6 and 7 are called in question as being violate of concept of equality underlying Article 14 of the Constitution.

2. It is not necessary to set out the facts that have given rise to the several writ petitions because the argument has been confined to the preliminary question of the constitutional validity of the Act.

3. Stated in bare outline, the contention is that the Madras Land Encroachment Act (the provisions of which are made applicable to the Telangana region too) provides a remedy of Government within the meaning of the Act and that within the meaning of the Act, and that this remedy is more drastic and prejudicial to the party concerned than the common law process in a court of law and that the choice of the remedies is left to the arbitrary and unguided discretion of the Collector or Tahsildar. The provisions of the Act leave it to the sweet will or pleasure of the officers concerned to use or not to use the harsh and drastic process under the impugned Act by picking out some persons or properties accorded that discrimination inevitably arises inasmuch as there are two available procedures, one more drastic or prejudicial to the party concerned than the other and there is no guiding principles enacted by the law which enables discriminatory selection among persons similarly situated; the choice of remedy is dependent t solely on the arbitrary will of the authority.

4. The counsel appearing for the petitioners or appellants placed strong reliance on the decision of the Supreme Court in N. I. Caterers (P) Ltd. v. State of Punjab. : [1967]3SCR399 where the question incontroversy was in regard to the validity of the Punjab Public premises and Land (eviction and Rent Recovery) Act, 1959. The decision of the majority of the bench upheld the contention that Section 5 of the Punjab Act refereed t above was unconstitutional. By applying the harsher and more drastic provisions of the Act in preference to the common law remedy of a suit, the Collector could evict a person found to be in unauthorised occupation of public premises.

5. Shelat,. J. who delivered the opinion of the majority of the Court said;

'The procedure under Section 5 is obviously more drastic and prejudicial than the one under the Civil Procedure Code where the litigants can get the benefit of a trial by as ordinary Court dealing with the ordinary law of the land with the right of appeal recession etc. ass against the person who is proceeded against under S. 5 of the Act as his case would be disposed of bean executive officer of the Government. whose decision rests on his mere satisfaction subject no doubt to any appeal but before another executive officer, viz., the Commissioner.'

It was held Section 5 of that Act confers an additional remedy and provided two alternative remedies to the Government . The majority of the Bench observed.'

'In leaving it to the discretion of the Collector to resort to one of them and to pick and choose some of those inoculation of public properties and premises for the application of the more drastic procedure under Section 5 that section lent itself open to the charge of discrimination and as being violate of Article 14.'

Accordingly Section 5 was declared to be void.

6. The pronouncement in the Supreme Court in the above case : [1967]3SCR399 has been strongly relied upon by Shri P. Babul Reddy and Shri. P.A. Chowdhary. The Principal Government Pleader, on the other hand, submitted that the several provisions of the Punjab Act when juxtaposed with the provisions of the impugned Act, reveal striking features or dissimilarity and that there is a fundamental divergence in as much as the Punjab Act invests the executive decisions made under the special enactment with a finality making them immune from review by a civil Court, whereas the impugned Act expressly provides resort to a civil Court by any party aggrieved by the action taken under the Special enactment. It is urged that the rationale of the decision of the Supreme Court is founded on the drastic effect of the Punjab Act which precludes a challenge of the merits of the executive action and decision by resort to a civil Court.

In contrast to this the impugned Act expressly allows a review of the Collector's action by a civil Court. The learned Government Pleader. Mr. Venkatarama Sastry, laid considerable emphasis on this disparity. He dilated on the distinction that the Punjab Act erects an impenetrable barrier to a scrutiny by the civil Court of the merits of the executive action or of the conflicting claims to the right of possession. whereas the position here is that the aggrieved party can have an adjudication on the merits of his right to remain in possession of the disputed property. He argued that the impugned Act is thus free from the infirmity from which the Punjab Act was not immune.

7. He also empahsied on the object of the impugned Act which is 'to provide measures for checking unauthorised occupation of lands which are the property of Government.' The legislative intendment clearly formulated in the preamble furnishes sufficient guidance for the exercise of the power conferred by the statute.

8. He anaysed the several provisions of the impugned Act to reinforce his broad thesis that the two enactment though analogous to some extent are not comparable content and do not have provisions equally drastic in their effect nor productive of the same degree of prejudice to the occupants of Government property. Finally, he rested his submission on two decisions one of the Madras High Court which upheld the constitutionality of the very Act here question and the other, a decision of the Patna High court which related to a similar enactment. He has pointed out that the two decisions were rendered subsequent to the pronouncement of the Supreme Court which struck down the Punjab Act his endeavor has been to impress on us that the distinction adopted by the two subsequent decisions of the Madras and Patna High courts is equally valid in the present case. the Madras decision affording a more persuasive precedent.

9. It is necessary to examine the provisions of the impugned act has also the Punjab Act in order to appreciate the contentions of the learned counsel on both sides. The impugned Act. Madras Act III of 1905, was sequel to the decision of the Madras High Court in Madathapu Ramaya, v Secy. of State (1904) ILR 27 Mad 386. Before the decision in that case was pronounced the Government used to levy on unauthorised occupants of Governments lands a levy which was described as penal or prohibitory assessment or charge an was resorting to the processes prescribed by the Revenue Recovery Act for realisation of the prohibitory assessment as though it was an arrear of land revenue. In (1904) ILR 27 Mad 386. it was held that it was not competent for the Government to treat the penal or prohibit assessment as venue Act. Land Revenue is payable by a person who has title to and has an interest in the whereas the essence of the penal and prohibitory assessment as land revenue recoverable under the Revenue Act. Land Revenue is payable by a person who has title to and has an interest in the land whereas the essence of the penal and prohibitory assessment was that the person charged with liability has no title took interest in the land occupied by him. The Madras High Court therefore held the process under the Revenue recovery Act inapplicable for the realisation of the penal assessment or charge inrespect of the unauthorised occupation.

10. It was to meet the situation arising out of the decision in (1904) ILR 27 Mad 386 (supra) that the impugned Act was enacted. The main object of the legislation was to enable the Government to levy an assessment in respect of Government land in unauthorised occupation. While designing a statutory machinery for the realisation of the panel assessment it was considered expedient to provide also for the eviction of persons unauthorisedly occupying the land belonging to Government.

11. Leave of penal assessment and the recovery thereof were conceived of as the primary measures for the checking of unauthorised occupation of lands. The eviction of unauthorised occupations was also provided for presumably as an auxiliary measure. The history of the legislation clearly bears out that the enactment was primarily intended to clother the executive authorities with powers to realise the penal assessment as if the assessments or penalty were arrears of land revenue.

12. Section 2 decrees property of Government to include all public roads, streets, bed of the sea sand all harbors,. rivers, streams, tanks, canals etc., and all lands, wherever situated, subject to the exceptions enumerated in clauses (a) to (e) of the section. These clauses relate to the property held zeamindars or inamdars etc., or of any person claiming through or holding under them and also of any other registered holder of land in proprietary rights, or of any person holding under ryotwari tenure. The main intention 2 is to preserve inviolate and free from trespass public roads, streets, beds or rivers challis etc. It is evident that the enumeration of the several types of the property catalogued in Section 2 is to ensure that the several species of property essential for the welfare and normal life of the community should not be allowed to be trespassed upon.

It is necessary to stress on the fact that Government property as understood and defined by Sec. 2 is primarily such property as is material for the common weal of the community at large. The section relates only to lands. beds of rivers, channels,. etc., and not to buildings. It is also noteworthy that the provisions of Section 2 clearly and in specific terms exclude all property held under any reconnected system of tenure or under a grant from the Government otherwise than by license. It follows from this that the remedial measures designed by the Act including the levy and assessments or the eviction of unauthorised occupants can be invoked only in cases where there is no vestige of title associated with the occupation of property.

13. Section 13 of the Act enables the levy of the assessments on Government property in the unauthorised occupation of the person and Section 4 makes non-justifiable the rate or amount of assessment imposed under Section 3. Under Section 5 a person liable to pay assessment under Section 3 may also be subjected to penalty levied at the discretion of the Collector or other officials authorised in that behalf. Then follow the sections relating to eviction. It is provided in Section 6 that any person unauthorisedly occupying any land for which he is liable to pay assessment under Section 3 may be summarily evicted by the Collector or the Tahsildar. The mode of eviction is specified in sub-section (2) of Section 6. A notice under Section (2) of condition precedent for action resulting in eviction. Notice is to be served on the person reputed to be in unauthorised occupation calling upon him to show cause why he should not be proceeded against under Section not be proceeded against under Section 6. If such notice is not obeyed and the person in unauthorised occupation does not vacate the land the power to remove him may be exercised by the Collector or the Tahsildar. If there is resistance by the person in occupation, an obligation is imposed on the Collector to hold an enquiry into the facts of the case.

The resistance or obstruction can be overcome only if the Collector after the enquiry is satisfied that there is no just cause for such obstruction. The Act provides for an appeal against the order or the Tahsildar or the Collector as the case may be. There is also a remedy by way of a revision to the State Government. The State Government may call for the records at any time either suo motu or on an application made by any party and examine the records relating to any decision or order passed by any subordinate authority to satisfy themselves as to the legality or property of the decision or order and the regularity of the proceedings. Section 14 enacts that nothing contained in the Act shall be held to prevent persons deeming themselves aggrieved by any proceedings under the Act from applying to a civil court for redress within the period of six months from the date at which the cause of action has arisen. In other words, the decision of the dispute by the civil court is made expressly a part of the scheme of the Act.

14. The essential feature of the Punjab Premises and Land (Eviction and Rent Recovery) Act. 1959 is that it was enacted expressly for the purpose of the eviction of unauthorised occupants from public premises whereas impugned Act was conceived of a as a preventative or regulatory measure for checking unauthorised occupation of lands. The Punjab Act was designed solely for the purpose of securing eviction of unauthorised occupants by summary process. The definition of 'public premises' in Section 2 of the Punjab Act provides a contract to the provisions of Section 2 of the impugned Act. Though the purview worth Punjab Act includes land whether used for agricultural or non-agricultural purposes. the essential purposes of the Act appears to be to provide machinery for eviction of unauthorised occupants of premises allotted or leased or granted to such persons.

In other words, the Act was mainly intended to secure speedy recovery of possession of Government buildings in the possession of third parties. Under Section 4, the Collector, if he is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted is to issue a notice in the manner to show cause why an order of eviction should not be made. After considering the cause, if any shown by the person and on consideration of the evidence that might be produced the Collector may, if he is satisfied, that the public premises are in unauthorised occupation, make an order of eviction. He may direct that the public premises shall be vacated by the persons in unauthorised occupation. If the order is not complied within thirty days possession of the premises may be taken by use of force. if necessary. the Act provides for an appeal to the Commissioner. Section 10 of the Act is important because it attaches finality to orders made under the Act. It reads:

'Save as otherwise expressly provided in this Act, every order made by the Collector or Commissioner under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding'.

15. The decision of the majority of the Judges in : [1967]3SCR399 rests on two essential features of the Punjab Act. It was held that Section 5 confers ans additional remedy over and above the remedy by way of suit and that the provision of two alternative remedies to the Government and leaving it to the unguided discretion of the Collector to resort to one or other and to pick and choose some of the persons in occupation of the properties for the application of the more drastic procedure lent itself opens to the charge of discrimination. The rationable of shies decision is therefore two fold. The Act provided a more drastic alternative than the ordinary process in the court of law. The second feature of that Act stressed in that decision is that the resort to the more drastic alternative is left to the unguided discretion of the executive authority. The question for consideration is whether on the application of these two criteria, the impugned Act has lent itself to the charge of discrimination and is violate of Article 14 of the Constitution.

16. Before applying these tests, to the provisions of the impugned Act it is necessary to bear in mind that the legislature has power of making special laws to attain particular objectives and for that purpose it has the competence of selection or classification of persons and things upon which such laws are to operate. The classification will be legitimate and valid if it is based on a real and intelligible, distinction bearing a just and reasonable relation to the object of the enactment. So long as the legislature adheres to the fundamental principles underlying the doctrine of equality it has a power of wide range and flexibility.

16A. The argument before us has proceeded on the undisputed premises that there is a valid classification of occupiers of public or government property as a separate class distinct from occupants of other types of property. It is accepted by learned counsel for the petitioners and appellant that the classification of unlawful occupation of go ornament properties as a peculiar one justifying differential treatment has a rational nexus with the objectives and the policy of the Act. The controversy thus resolved itself to the limited problem whether among the class of unlawful occupants of government properties there is a discrimination violate of Article 14 of the Constitution.

17. The impugned Act itself does not contain any provisions which by its own terms brings about a hostile discriminations derogatory to the constitutional guarantee of equality. The argument of counsel therefore stressed on the possible use of statutory remedy in a manner violate of the terms of Art. 14. It is clear that to maintain a challenge on grounds of discrimination there is no need to establish that the legislature has done 'with an evil eye or an unequal hand'. The distinction must be borne in mind between the law and the administration of the law. Chagla. C. J. said: (See Dhanraj Mills Ltd. v B. K. Kocher, : AIR1951Bom132

'If the law itself permits discriminations even though the law may appear fair and undiscriminatory the court may interfere'.

18. Mr. P. A. Chowdary pursued the line indicated in the above mentioned case by Chagla, C. J. He laid considerable emphasis on the decision of the United States Supreme Court in Yick Wo v. Peter Hopkins, (1886) 1198 US 356 = 30 Law Ed 220.

'Though a law be fair on its face and impartial in its appearance. vet if it is administered by public authorities with an evil eve and an unequal hand so as practically to make illegal discriminations between persons in similar circumstances. material to their rights the denial of equal justice is still within the prohibition of the Constitution.

19. Quite apart from the caution enjoined on courts in the application rules derived from American decisions, there are other reasons above cannot be applied to the present case in their literal sense.

20. In the State of West Bengal v. Anwar Ali Sarkar, : 1952CriLJ510 Fazli Ali, J., adverted to the American decisions that applied the rule involved in executive action done 'with an evil eye and an unequal hand' said his Lordship

'I suggest most respectfully that it will be extremely unsafe to lay down that unless there was evidence that discrimination was 'purposeful or intentional' the equality clause would not be infringed. In my opinion, the true position is as follows: As a general rule, if the Act is fair and good the public authority who has to administer it will be protected.................The basic question however still remains whether the Act itself is fair and good. which must be decided mainly with reference to the specific provisions of the Act'.

In the same case, at page 325 (of SCR) = (at p. 90 of AIR) Mukherjea. J., said:

'I agree with the Attorney -General that if the differences are not material there may not be any discrimination in the proper sense of the word and minor deviations from the general standard might not amount to denial of equal rights'.

21. It is pertinent to notice that in (1886) 118 US 356 the discrimination was systematic and that it was directed against a class of persons the Chinese. It was held in that case that there was habitual refusal of as administrative Board to issue laundry licences to Chinese persons and there was violation of the 14th amendment. In subsequent cases. on the other hand, the rule laid down was that where the unjustifiable denial of a license was not habitual and was directed against an individual rather than a class. it does not offend the 14th amendment. (See the critical note at page 1020 of 26 Harvard Law Review). An ordinance conferring upon the board of health unlimited discretion to grant or withhold licences for the selling of mil, has been held valid. (See New York Ex. rel Libeberman v. Van De Carr. (1905) 199 US 552 = 50 Law Ed 305). It was observed:

'These cases leave in no doubt the propositions that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the state is not violate of rights secured by the 14th amendment. There is no presumptions that the power will be arbitrarily exercised, and when it is shown to be thus exercised against the individual, under sanction of State authority this court has not hesitated to interfere for his protection, when the case has come before it in such manner as to authorise the interference of a Federal Court. (1886) 118 US 356 = 30 Law Ed 220';

The decision in (1886) 118 US 356 (358) = 30 Law Ed 220 (relied on by Mr. Chowdary) was deemed to be an instance of correction by the court of an unreasonable use of power by the executive. The question about the vires of the Act has to be determined in the light of the precedents of courts in our country rather tan by the application of the ratio of the American decisions.

22. It is useful at this stage to turn our attention to some decisions of the Supreme Court although they were not referred to in the argument In Kathi Raning Rawat v. State of Saurashtra. : 1952CriLJ805 the question determined was whether the constitution of special Courts and investing them with powers to try certain specific offences or cases as the Government may be general or special order direct was discriminatory and invalid. An ordinance was passed providing for the establishment of such Courts and trial of some offences in cases that might be directed to be so tried. The ordinance was held to be valid by a majority of the court. Some dicta of the learned Judges are apposite in the present context. Pataniali Sastri. C. J observed that 'any variation of procedure which operates materially to the disadvantage of the accused' cannot necessarily be said to be violate of Article 14.

Fazl Ali, J. was of opinion that the recital of a definite objective ins the earlier ordinance and the impugned ordinance furnished a tangible and rational basis of classification. Mukherjea, J., alluded to the preamble as also to the surrounding circumstances as indicative of a definite legislative police and object e. On a consideration f the legislative policy and subjective, he held that merely because the legislation vested in the Government the authority to constitute Special Courts and the power to specify the classes of offences triable by such courts. the provisions cannot be said to be unconstitutional. The notification issued by the Government was also held to be not void as it did not proceed on any unreasonable or arbitrary basis. The learned Judge further observed:

'Though it is a sound and reasonable proposition that when the nature of two offences is intrinsically the same and they are punishable in the same manner. a person accused of one should not be treated differently from a person accused of the other, yet in determining the reach and scope of a particular legislation it is not necessary for the legislature to provide abstract symmetry. A too rigid insistence on anything like scientific classification is neither practicable nor desirable'.

Das, J., negative the contentions that the Act conferred uncontrolled and unguided power on the State Government. In repelling the contention the learned Judge said at p. 474 (of SCR) = (at p. 137 of AIR) thus:

'.............this power is controlled by the necessity for making as proper classification which is to be guided by the preamble in the sense that the classification must have a rational relation to the object of the Act as recited bins the preamble. It is, therefore, not an arbitrary power. The Legislature has left it to the State Government to classify offences or classes of offences or classes of cases for the purpose of the ordinance'.

The learned Judge proceeded to add that

'If at any time, however the state Government classifies offences arbitrarily and not on any reasonable basis having a relation t the object of the Act, its action will be either an abuse of its power if it is purposeful, or in excess of its powers even if it is done in good faith. and in either case the resulting discrimination will encounter the challenge of the Constitution and the Court will strike down, not the law which is good, but the abuse or misuse or the unconstitutional administration of the law creating or resulting in constitution also discrimination'.

23. In the earlier decision of the Supreme Court already referred to (Anwar Ali Sarkar's case). : 1952CriLJ510 which also dealt with a similar legislation under the West Bengal Special Courts Act. Das J., expressed the opinion that the power conferred on the State Government t direct offences or classes of offences or classes of cases to be tried by a special court contemplates by necessary implication a proper classification to be made by the Government charged with the use of that power.

24. In Ram Krishna Dalmia v. Justice S. R. Tendolkar, : [1959]1SCR279 (Dalmia's case) it was laid down that a statute may leave it to the discretion of the Government to select and classify persons or things to whom its provisions should apply.

25. The decisions of the Supreme Court adverted to above lead to the result that although the legislation itself has not classified the special classes of cases to which a different pattern of trial is applied and left it to the discretion of the State Government the power thus conferred does not come within the constitutional prohibition of Article 14. It is true that in the relevant Act or Ordinance dealt with in the twos cases in : 1952CriLJ510 the legislation contemplated the classification of a group of offences or classes of cases and not the reference of a single case or a few cases to the Special Courts. We do not, however, think the distinction to be material for, even a single case could, in conformity with slaw, be referred to the special tribunal. There is clear authority to support this view. The choice of the particular offences or classes of cases for trial by the Special Courts was upheld on the basis that the preamble or the objects of the legislation by necessary implication made it incumbent on the States Government to make a classification in tune with the policy and intendment of the legislation.

This was held to be sufficient guidance for the exercise of the power. The provision seemingly conferring uncharted or arbitrary power. was tested with a reference to the legislative objectives and policy, surrounding circumstances, and other matters of common knowledge and repute. If these factors condition or control the exercise of the power the prohibition under Section 14 cannot be said to have been violated. This principle emerging from the above mentioned pronouncements of the Supreme Court governs the case on hand because the power conferred on the Collector or Tahsildar by the impugned Act furnishes a close parallel to those cases.

26. We may now turn our attention to some cases which throw light on the question whether a more drastic provision is made by the impugned Act. In Suraj Mall Mehta and Co. v. A. V. Visvanatha Sastri, : [1954]26ITR1(SC) sub-section (4) of Section 5 of the Taxation on Income (Investigation Commission) Act. 1947 was struck down as a piece of discriminatory legislation because the procedure prescribed by the Act was substantially more prejudicial and more drastic to the assess than the procedure under the Income-tax Act (XI of 1922). In reaching the conclusion that the special enactment was substantially more prejudicial or drastic the Supreme Court was influenced by the fact that.

'the constitution of the commission by itself cannot be held to be a sufficient safeguard and a good substitute for the rights of appeal and second appeal and revision given by the Indian Income-tax Act'.

It was held that the procedure prescribed by that Act deprives a person who was dealt with thereunder of the valuable rights of appeal, second appeal and revision to challenge question of fact decided by the Judge of the first instance. The special legislation impinged on the right of the aggrieved party to call in question by way of appeal. findings of fact made in the first instance. It also deprived him of the right to have a further appeal and resort to a proceedings in revision.

27. It is clear that when the validity of a legislation is attacked on the ground that the vice of discrimination is rooted in the relatively more drastic or harsh provisions contained in it in contrast to the general alternative. the test to be applied is whether the aggrieved party has the right to resort to appellate tribunals or to a civil court is substantially the same degree or form under the impugned legislation. One of the criteria and a material one at that is, whether, the aggrieved party who is, under the less onerous procedure. allowed on appeal, the opportunity to impeach findings of fact of the authority deciding the matter in the first intense, has in substance the same remedies under the more drastic procedure. A material difference arises when a finding of fact made in the first instance is rendered unchangeable by the impugned legislation.

28. This is clearly indicated in the dicta of the Supreme Court at page 464 of 1955-1 SCR Mahajan, C. J. observed:

'...................there can thus be nos doubt that the procedure prescribed by the impugned Act deprives a person ..........of these valuable rights of appeal, second appeal and revision to challenge questions of fact decided by the Judge of first instance. There is thus a material and substantial difference...................'

29. We shall now examine the cases considered the effect of the decision of the Supreme Court in : [1967]3SCR399 . The Madras High Court considered the identical enactment now in question before us and upheld the validity of Section 6 of the Land Encroachment Act in Abdul Rashid v. Assistant Engineer (Highways). : AIR1970Mad387 . The judgment of the Division Bench delivered by Veeraswami C. J. expressed the opinion that the Land Encsroachment Act does not suffer from the vice 'which Section 5 of the Punjab Act suffered from as held by : [1967]3SCR399 '. The learned Judges also expressed the opinion that it is not possible to say that under the Madras Act, the Collector has been given the choice without any guidance . Contrasting the provisions of the Madras Act with analogous provisions in the Punjab Act, the learned Judges pointed out that Section 14 of the Madras Land Encroachment Act preserves the reedy of resort to civil court for redress. The Punjab Act on the contrary invested the decisions of the Collector or on appeal, of the Commissioner with finality and enacted that they were not liable to be questioned in a court of law. Veeraswamiss C. J. also observed:

'Though the Collector under the Madras Act may choose the remedy under its provisions viz., Summary eviction, it cannot be described as drastic because as we said, the Collector is not vested with power to adjudicate a dispute as to the ownership of the land, and that in any case he can remove resistance or obstruction to summary eviction only if he is satisfied that there is no just cause for it - a question which is open to review and correction in proceedings under Article 226 of the Constitution'.

With respect, we are unable to subscribe to the proposition so enunciated. When the Collector on considering the objections of the obstructer is empowered to overrule the objections and take possession of the property, how can it e said that it is not tantamount to an adjudication of the dispute? It is true that there may be no formal pattern of adjudication on the question of ownership but the essence of the procedure is that the Collector overrules the resistance and evicts an occupant. Nor are we satisfied that the resort to a proceeding under Article 226 of the Constitution is a remedy particularly applicable to an action taken under the Madras Act. In our opinion, a proceeding under Article 226 was equally open to a person proceeded against under the Punjab Act. It is well known that the constitutional remedy under Art. 226 cannot be taken away or abridged by legislation ins the nature of the Punjab Act.

It is therefore not easy to grasp the relevancy of the observation implying that the resort to a proceeding under Article 226 of the Constitution is a distinguishing or a peculiar feature of the Madras Act. We, however, respectfully agree with the view expressed by the learned Chief Justice that the express provision enabling an aggrieved person to resort to a civil court is in sharp contract to the provisions of Section 10 of the Punjab Act which barred to the aggrieved person access to a civil court for redress. There is thus a clear distinction the effect of which is that the harsher and more drastic feature in the Punjab Act is not present in the Madras Land Encroachment Act.

30. the learned Judges also came to the conclusion that the power given to the Collector cannot be said to subs. unsuidced or uncontrolled. We are however not able to gather from the judgment the reasons that prompted them to reach that conclusion. We have come to the conclusion that on a consideration of the legislative history. the objects of the legislation and the other circumstances. there is sufficient guidance afforded by the Act to canalise or direct the discretion of the Collector or the Tahsildar in conformity with the intendment of the legislation.

31. In M/s. Bhartiya Hotel v. Union of India. : AIR1968Pat476 where the Court was concerned with the validity of a similar legislation, the Court came to the conclusion that the provisions of the local Act were not so drastic as the provisions of the Punjab Act. In coming to that conclusion, the learned Judges relied upon the fact that whereas the Punjab Act provided for an appeal forms the executive authority to another executive officer. the Bihar Act, on the contrary, provided for an appeal to the District Judge. This in the opinion of the learned judges was a vital distinction, and, on this they sustained their view that the procedure under the special enactment was not so drastic as to constitute a material departure from the ordinary process of law in a civil Court. The validity of the Bihar Act which contains provisions analogous to the provisions of the Punjab Act was upheld by the Patna High Court which on an examinations of the provisions of the statute came to the conclusion that the special procedure was in no way more prejudicial to the party concerned than the procedure under the ordinary law. The ratio of the decision of the Supreme Court was held to be distinguishable because the main basis for the decision of the Supreme Court was that the special enactment prescribed a mode of procedure which was more drastic or prejudicial.

32. In Meharunnissa Begum v. State of Andhra Pradesh, 1970-1 Andh LT 88 = W. P. No. 3303 of 1967. which has given rise to Writ Appeal No. 486 of 1969 (Andh Pra) Chinnappa Reddy J.s formulated a two fold distinction. Our learned brother observed that under the impugned Act, the Collector and the Tahsildar are not left without guidance ins the exercise of their discretion. He has also reached the conclusion that the modus operandi of the executive actions and also the remedies open to the aggrieved party under the impugned Act constitute a material departure from the provisions of the Punjab Act. the provision of redress in a civil court is an essential features of distinction and the right to resort to a court of law for redress assimilates the position of an aggrieved party under the impugned enactment to the position obtaining under the ordinary law of the country. In summing ups the effect of the Punjab Act Chinnappa Reddy, J. observed:

'The effect of the Act was to vest in executive officers of the Government certain ordinary powers exercised by the Civil Court and to set them up as parallel Tribunals as it were, giving finality to their orders and totally excluding the jurisdiction of Civil Courts. There was a complete substitution of Civil Court by executive officials of the Government. The supposition under the present Act, however, is altogether different'.

We are in agreement with the position so stated . although certain other dicta of the learned Judge may not be subscribed to. It was observed that the enquiry under the Land Encroachment Act is comparable with the summary enquiry by a criminal court under Section 145 of the Criminal Procedure Code. With respect, it must be stated that this analogy is misplaced. The tentative decision rendered by a criminal court under Section 145 of the Criminal Procedure Code. With respect, it must be stated that this analogy is misplaced. The tentative decision rendered by a criminal court under Section 145 of the Criminal Procedure Code is made by a judicial authority whereas under the impugned Act, the executive authority interested in regaining the possession of land is the authority that gives the decision resulting in the eviction.

33. The learned Judge considered it relevant to draw the presumption that 'the executive officers acting under the Land Encroachment Act may also be expected to discharge their functions in a just and bona fide manner'. With respect, we consider that the test adopted by the learned Judge on the strength of the presumed validity of the executive action does not indicate a correct approach. The question is not whether the executive officers may not be expected to discharge their functions in a just and bona fide manner. If this is the test. the conferment of unguided power cannot be struck down as invalid. The question is whether unguided power or discretion has been entrusted to them and the is an inherent possibility or inevitability of discrimination. It is in this context that the objection. It is in this context that the objectives of the legislation's and the circumstances under which the discretion is to be exercised are relevant as laid down by the Supreme Court in the cases already adverted to by us.

34. Our learned brother referred to the principle discernible from the preamble and the provisions o the Act to ascertain whether they furnish any guide to such exercise of the discretion by the Collector or the Tahsildar. The legislative history of entire enactment and the object of the Act have been considered by our learned brother and we are in agreement with the observations made by him in the last paragraph at page 95. We have also indicated earlier that the dominant object of the legislation is to curb or restrain unauhorised occupation of land by the imposition of a penal assessment. Process of summary eviction is conceived of by the statute as a means of checking unlawful occupation of Government land. We have also laid stress on the provisions of Section 2 which furnish an indubitable indication that the entire machinery under the Act is devised primarily for the purpose of keeping inviolate such species of Government lands as are indispensable for the welfare and normal life of the community. It is not superfluous to reiterate that the categories of Government property referred to in Section 2 comprised public roads. streets, abridges, the bed of the sea, canals and water-courses and rivers, lakes and tanks etc.

It is obvious that all these types or property have to be kept free from trespass in public interest. the nature of the property catalogued in Section 2 gives the clue to the legislative is intention that the power of eviction is to be exercised primarily keeping in view the surgent need for eviction as also the indispensable nature of the property for the common weal. the preamble and the object of the legislation leave none in doubt that the main purpose of the enactment is to enable the recovery of deterrent levied of penalties as if they are arrears of land revenue. Taking into consideration the object of the Act, its preamble and the provisions of Sections 2 and 3. we have no doubt that they collectively furnished sufficient guidelines to controls or canalise the exercise of discretion in taking action under Section 6,

35. From what has been stated above, it is clear that the provisions of the impugned Act do not place the persons against whom the provisions are applied in a position materially different from other against whom the ordinary process of law is applied. It is no doubt true that a person can be summarily evicted under Section 6l and the deprivation of possession inflicts an immediate injury on the persons in possession whereas a person against whom the ordinary process of law is applied is left in undisturbed possession. Although t this extent there is a dissimilarity, this by itself is not sufficient to hold that the spruces under the impugned act involves such an element of prejudice as was apparent in the case of the Punjab Act.

36. In testing the validity of the legislation on the ground that it provides a more drastic or harsher remedy than the ordinary process, it is not permissible to determine the question by the comparative assessment of a tentative result or situation. We have to take into account the entire or overall picture as it emerges forms the impugned legislation. Judged forms this angle. we are of opinion that a party against whom the provisions of the impugned Act are applied occupies very much the same position vis-a-vis the Government as he would have occupied if the ordinary process of law had been applied. We say this because Section 14 places no limitation on the role of the ordinary courts in scrutinizing the executive action taken under the impugned Act.

37. The clause in the Punjab Act precluding the Civil Court's review places the persons subject to the specials process under an obvious disadvantage or handicap. Under Section 14 of the impugned Act, no limitation is placed on the Court's jurisdiction. It is true that notwithstanding the preclusive provisions in statutes civil courts may entertain suits to examine whether the special tribunals have acted in conformity with the provisions of the relevant statute. In that sense, access to the Civil Court might have been possible even under the Punjab Act but then the Court's power of review in such cases is very limited.

38. The position under the impugned Act is that the entire merits of the controversy under the Act are capable of being adjudicated upon by the civil by reason of an outer of civil court's jurisdiction.

39.For the reason set out above. we are of opinion that the provisions of the impugned Act do not lead to the result that a harsher and a more drastic remedy has been applied against parties subject to the provisions of the Act. We are also of opinion that the Act gives sufficient guidance in the exercise of the discretion by the Collector or Tahsildar under Sections 6 and 7.

40. The result is that the ground urged by the petitioners and the appellants for impeaching the validity of Sections 6 and 7 fails. The objection regarding the vires of the legislation is therefore overruled.

41. As the only question in this appeal relates to the vires of Sections 6 and 7 of the Act, the Writ Appeal fails and is dismissed with costs. Advocate's fee Rs. 100/-.

42. Learned counsel has represented to us that the Writ petitioners would seek redress in a civil court as contemplated under Section 14 of the Act and that time may be givens for institution of a Civil Suit. Learned Government Pleader has no objection to this course being pursued by the writ petitioners and he also represented that a notices was give to the government on 31-7-1969. The writ petitioners are therefore given time of four months for applying to the civil court for redress and till the expiry of that time they will not be evicted under the provisions of the Land Encroachment Acts (Act NO. III of 1905). With this directions the writ petition fails and is dismissed with costs. Advocate's fee Rs. 10/- Writ Petitions Nos. 2010/70, 1127/69, 1231/69, 2692/69, 797 of 1966 2567/69, 3128/69 3434/69, 4876/68, 3378/69, 1664/69, 337/70, 1207/69, 2635/68.

43. Learned counsel for the petitioners in these Writ Petitions have represented to us that the writ petitioners would seek redress in a civil court as contemplated under Section 14 of the Act and that time Mays be givens for institution of a civil suit. Learned Government Pleader has no objection to this courses being pursued by the writ petitioners. The writ petitioners are therefore givens time of four months for applying to the civil court for redress and till the expiry of that time they will not be evicted under the provisions of the Land Encroachment Act (Act No. III of 1905). With this direction, the writ petitions are dismissed with costs. Advocate's fee Rs. 2766 of 1968s in W. P. No. 2916 of 1970 is dismissed.

44. In addition to the argument regarding the validity of the Act, the only ground on which the evictions proceedings under the Act are impugned is that the notice which is mandatory under Section 7 of the Act was not issued. This allegation is denied in the counter; at the hearing of the petition, the learned counsel for the petitioner has perused the relevant record produced by the learned Government Pleader where a notice prescribed under Section 7 of the Act was issued and served in the manner specified under the Act. The writ petition therefore fails and is dismissed with costs. Advocate's fee Rs. 100/-.

45. Order accordingly.


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