PETITIONER:
PANDIA NADAR AND ORS.
Vs.
RESPONDENT:
THE STATE OF TAMIL NADU AND ORS.
DATE OF JUDGMENT30/04/1974
BENCH:
ALAGIRISWAMI, A.
RAY, A.N. (CJ)
KHANNA, HANS RAJ
MATHEW, KUTTYIL KURIEN
BHAGWATI, P.N.
CITATION:
1974 AIR 2044 1975 SCR (1) 333
1974 SCC (2) 539
ACT
Tamil Nadu Land Encroachment Act. 1905, s. 6-Procedure for eviction if violative of Art. 14.
HEADNOTE
Notices were issued to the petitioners under s. 6 of the Tamil Nadu Land Encroachment Act, 1905, for evicting the petitioners and they challenged the constitutional validity of the Act on the basis of the decision in Northern India Caterers v. Punjab. [1967] 3 S.C.R. 399. Dismissing the petitions, HELD : Under the Tamil Nadu Act s. 2 defines ’property of government’, s. 3 lays down that any person who shall unauthorisedly occupy any land which is the property of the Government shall be liable to pay the full assessment on the land, s. 5 provides for further payment of penalty, and s. 6 provides for eviction of such person and for forfeiture of any crop or other product raised on the land and any building or other construction erected on the land. The eviction was to be carried out by serving a notice as provided under s. 7 after giving him, reasonable time to vacate. There is a provision for appeal against the order of the Collector or other officer and there is also a provision for revision by the Government. Section 14 provides for a right of suit by any person deeming himself aggrieved by any proceedings under the Act. This Court in Maganlal Chagganlal Ltd. v. Municipal Corporation of Greater Bombay [1975] 1 S.C.R. I considered the constitutional validity of Chapter V-A of the Bombay Municipal Corporation Act, and the Bombay Government Premises (Eviction) Act, 1955, which provide for a special procedure for eviction of unauthorised occupants of public premises. The Court observed that the mere availability of two procedures will not vitiate the special procedure and discussed the principles as to when the statute will not be hit by Art. 14. The Court then went on to point out that the procedures laid down by the two Acts were not so harsh or onerous as to suggest that a discrimination would result if resort was made to the provisions of these two Acts in some cases and to the ordinary civil court in others; and this decision would apply on all fours to the facts of the present case.
JUDGMENT
ORIGINAL JURISDICTION : Writ Petitions Nos. 243 to 246 of 1970. Petition under Art. 32 of the Constitution. K. Jayaram and R. Chandrasekhar, for the petitioner. S. Govind Swaminathan, A. V. Rangam, N. S. Sivan and A. Subhashini, for the respondents. The Judgment of the Court was delivered by ALAGIRISWAMI, J. The Tamil Nadu Land Encroachment Act, 1905 is impugned in these petitions as unconstitutional and void. Notices have been issued to the petitioners under section 6 of that Act in order to evict them from a certain piece of land claimed to be Government land. The challenge to the constitutional validity of the Act is based solely on the decision of this Court in Northern India Caterers v. 334 Punjab (1967 3 SCR 399). In that case the validity of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959 was under consideration. The State had leased its premises to the appellant therein for running a hotel and when the lease expired called upon him to hand over vacant possession of the premises. On the appellant failing to do so the Collector issued a notice under S. 4 of the Punjab Act requiring the appellant to show cause why an order of eviction should not be passed under s. 5. This Court while holding that "there is an intelligible differentia between occupiers and that the classification has a reasonable relation to the object of the Act and does not offend Art. 14" also held that "s. 5 of the Act confers an additional remedy over and above the remedy by way of suit and thereby violates Art. 14 by providing two alternative remedies to the Government and in leaving it to the unguided discretion of the Collector to resort to one or the other and to pick and choose some of those in occupation of public properties and premises for the application of the more drastic procedure under s. 5." Two of the learned Judges who constituted the Bench, Hidayatullah and Bachawat, JJ. however held that "the unauthorised occupant is not denied equal protection of the laws merely because the Government has the option of proceeding against him either by way of a suit or under the Act." The Tamil Nadu Act is entitled "an Act to provide measures for checking unauthorized occupation of lands which are the property of Government." Section 2 of the Act defines the property of Government as
"2. (1) All public roads, streets, lanes and
paths, the bridges, ditches, dikes and fences,
on or beside the same, the bed of the sea and
of harbours and creeks below high water mark,
and of rivers, streams, nalas, lakes and tanks
and all backwaters, canals and water courses,
and all standing and flowing water, and all
lands, wherever situated, save in so far as
the same are the property-
(a)of any zamindar, poligar, mittadar,
jagirdar, shrotriemdar or inamdar or any
person claiming through or holding under any
of them, or
(b)of any person paying shist, kattubadi,
jodi, poruppu or quit-rent to any of the
aforesaid persons, or
(c)of any person holding under ryotwari
tenure, including that of a janmi in the
Gudalur taluk of the Nilgiri district and in
the transferred territory or in any way
subject to the payment of land-revenue direct
to Government, or
(d)of any other registered holder of land
in proprietary right, or
(e)of any other person holding land under
grant from the Government otherwise than by
way of licence,
and, as to lands, save also in so far as they
are temple site or owned as house-site or
backyard.
3 3 5
are and are hereby declared to be the property
of Government except as may be otherwise
provided by any law for the time being in
force, subject always to all rights of way and
other public rights and to the natural and
easement rights of other land-owners, and to
all customary rights legally subsisting.
(2)All public roads and streets vested in
any, local authority shall, for the purpose of
this Act, be deemed to be the property of
Government." Section 3 lays down that any person who shall unauthorizedly occupy any land which is the property of Government shall be liable to pay the full assessment on the land. Section 5 provides for further payment by such a person of penalty. Section 6 provides for eviction of such a person and for forfeiture of any, crop car other product raised on the land and any building or other construction erected on the land. Such eviction is to be carried out by serving a notice as provided under section 7 after giving him a reasonable time to vacate. If there is any resistance to eviction the Collector or other officer ordering eviction is to hold a summary inquiry into the question whether the resistance was without any just cause. There is a provision for appeal against the order of the Collector or other officer and there is also a provision for revision by the Government. Section 14 provides for a right of suit by any person deeming himself aggrieved by any proceeding under the Act. Such in short is the scheme of the Act. In its recent decision in Maganlal Chhagganlal (P) Ltd. etc. v. Municipal Corporation of Greater Bombay & Ors. etc. (1) pronounced on 11 April, 1974, this Court had, occasion to consider the constitutional validity of Chapter V-A of the Bombay Municipal Corporation Act and the Bombay Government Premises (Eviction) Act. According to the provisions of section 105A contained in Chapter V-A there under consideration, the Commissioner in relation to premises belonging to or vesting in, or taken on lease by the corporation and the General Manager (also defined as the Commissioner) of the Bombay Electric Supply and Transport Undertaking in relation to premises of the corporation which vest in it for the purposes of that undertaking were granted certain powers of eviction in respect of unauthorised occupation of any corporation premises. Unauthorised occupation is defined as occupation by, any person of corporation premises without authority for such occupation and includes the continuance in occupation by any person of the premises after the authority under which he was allowed to occupy the premises has expired, or has been duly determined. Under section 105B the Commissioner, by notice served on the person in unauthorised occupation, could ask him to vacate if he had not paid for a period of more than two months the rent or taxes lawfully due from him in respect of such premises; or sub-let, contrary to the terms or conditions of his occupation, the whole or any part of such premises; or committed, or is committing, such acts of waste as are likely to diminish materially the value, or impair substantially the utility, of the premises; or otherwise acted in Contravention of any of the terms, express or implied, under which he is authorised to occupy (1) [1975] 1 S.C.R. 1. 336 such premises; or if any person is in unauthorised occupation of any corporation premises; or any corporation premises in the occupation of any, person are required by the corporation in the public interest. Before making such an order the Commissioner should issue a notice calling upon the person concerned to show cause why an order of eviction should not be made and specify the grounds on which the order of eviction is proposed to be made. The person concerned can file a written statement and produce documents and is entitled to appear before the Commissioner by advocate, attorney or pleader.Persons failing to comply with the order of eviction as well as any other person who obstructs eviction can be evicted by force. Under section 105C there is power to recover rent or damages as arrears of property taxes. A person ordered to vacate on the grounds of being in arrears of rent or acting in contravention of the terms under which he is authorised to occupy the premises could be allowed to continue if he satisfies the Commissioner. The Commissioner has, for the purpose of holding any, inquiry, the same powers as are vested in a civil court under the Code of Civil Procedure, when trying a suit, in respect of (a) summoning and enforcing the presence of any person and examining him on oath, (b) requiring the discovery and production of documents, and (c) any other matter which may be prescribed by regulations. An appeal from every order of the Commissioner lies to the principal Judge of the City Civil Court or such other judicial officer as the principal Judge may designate. The appeal is to be disposed of as expeditiously as possible. Subject to the results of the appeal every order of the Commissioner or the appellate officer is final. The power to make regulations under the Act includes the power to make regulations in respect of holding of inquiries and the procedure to be followed in such appeals. The provisions of the Bombay, Government Premises (Eviction) Act are more or less similar except that they relate to Govemment premises and the power to order eviction is given to the competent authority not lower in rank than that of a Deputy Collector or an Executive Engineer appointed by the State Government. It was argued before this Court that as there were two procedures available to the Corporation and the State Government, one by way of a suit under the ordinary law and the other under either of the two Acts, which was harsher and more onerous than the procedure under the ordinary law, the latter is hit by Article 14 of the Constitution in the absence of any guidelines as to which procedure may be adopted. There also reliance was wholly placed on the decision in the Northern India Caterers’ case. After an exhaustive discussion of all the relevant decisions this Court came to the conclusion that the principles deducible from those decisions were as follows
Where a statute providing for a more drastic
procedure different from the ordinary
procedure covers the whole field covered by
the ordinary procedure, as in Anwar Ali
Sarkar’s case(1) and Suraj Mall Mohta’s
case(2) without any guidelines as to the class
of cases in which either procedure is to be
resorted to, the statute will be hit by Art.
14. Even there, (1) [1952] SCR 284. (2) [1965] 1 SCR 448 337
as mentioned in Suraj Mall Mohta’s case, a
provision for, appeal may cure the defect.
Further , in such cases if from the preamble
the surrounding circumstances, as well as the
provisions of the statute themselves explained
and amplified by affidavits, necessary
guidelines could be inferred as in Saurashtra
case(1) and Jyoti Pershad’s case(2) the
statute will not be hit by Art. 14. Then
again where the statute itself covers only a
class of cases as in Haldar’s case(3) and
Bajoria’ case (4) the statute will not be bad.
The fact that in such cases the executive will
choose which cases are to be tried under the
special procedure will not affect the validity
of the statute. Therefore, the contention
that the mere availability of two procedures
will vitiate one of them, that is the special
procedure, is not supported by reason or
authority."
This Court then went on to apply those
principles to the statutes under consideration
in the following words :
"The statute itself in the two classes of
cases before us clearly lays down the purpose
behind them, that is that premises belonging
to the Corporation and the Government should
be subject to speedy procedure in the matter
of evicting unauthorized persons occupying
them. This is a sufficient guidance for the
authorities on whom the power has been
conferred. With such an indication clearly
given in the statutes one expects the officers
concerned to avail themselves of the
procedures prescribed by the Acts and not
resort to the dilatory procedure of the
ordinary Civil Court. Ever, normally one
cannot imagine an officer having the choice of
two procedures, one which enables him to get
possession of the property quickly and the
other which would be a prolonged one, to
resort to the latter. Administrative
officers, no less than the courts, do not
function in a vacuum. It would be extremely
unreal to hold that an administrative officer
would in taking proceedings for eviction of
unauthorised occupants of Government property
or Municipal property resort to the procedure
prescribed by the two Acts in one case and to
the ordinary Civil Court in the other. The
provisions of these two Acts cannot be struck
down on the fanciful theory that power would
be exercised in such an unrealistic fashion.
In considering whether the officers would be
discriminating between one set of persons and
another one has got to take into account
normal human behaviour and not behaviour which
is abnormal. It is not every fancied
possibility of discrimination but the real
risk of discrimination that we must take into
account. This is not one of those cages where
discrimination is writ large on the face of
the statute. Discrimination may, be possible
but is very improbable. And if there is
discrimination in actual (1) [1952] SCR 435 (2) [1962] 2 SCR 125 (3) [1960] 2 SCR 646 (4) [1954] SCR 30. 338
practice this Court is not powerless.
Furthermore, the fact that the Legislature
considered that the ordinary procedure is
insufficient or ineffective in evicting
unauthorised occupants of Government and
Corporation property, and provided a special
speedy procedure therefore is a clear guidance
for the authorities charged with the duty of
evicting unauthorised occupants. We,
therefore, find ourselves unable to agree with
the majority in the Northern India Caterers’
case." It then went on to point out that the procedures laid down by the two Acts under consideration were not so harsh or onerous as to suggest that a discrimination would result if resort was made to the provisions of those two Acts in some cases and to the ordinary Civil Court in other cases in the following words :
"Even though the officers deciding these
questions would be administrative officers
there is provision in these Acts for giving
notice to the party affected, to inform him of
the grounds on which the order of eviction is
proposed to be made, for the party affected to
file a written statement and produce documents
and be represented by lawyers. The provisions
of the Civil Procedure Code regarding
summoning and enforcing attendance of persons
and examining them on ,oath, and requiring the
discovery and production of documents are a
valuable safeguard for the person affected.
So is the provision for appeal to the
Principal Judge of the City Civil Court in the
city of Bombay, or to a District Judge in the
districts who hag got to deal with the matter
as expeditiously as possible, also a
sufficient safeguard as was recognised in
Suraj Mall Mohta’s case. The main difference
between the procedure before an ordinary Civil
Court and the executive authorities under
these two Acts is that in ,one case it will be
decided by a judicial officer trained in law
,and it might also be that more than one
appeal is available. As against that there is
only one appeal available in the other but it
is also open to the aggrieved party to resort
to the High Court under the provisions of Art.
226 and Art. 227 of the Constitution. This is
no less effective than the provision for a
second appeal. On the whole, considering the
object with which these special procedures
were enacted by the legislature we would not
be prepared to hold that the difference
between the two procedures is so
unconscionable as to attract the vice of
discrimination. After all, Art. 14 does not
demand a fanatical approach. We, therefore,
hold that
3 3 9
neither the provisions of Chapter V-A of the
Bombay Municipal Corporation Act nor the
provisions of the Bombay Government Premises
(Eviction) Act, 1955 are hit by Art. 14 of the
Constitution." This decision would apply on all fours to the facts of the present case.., In the result the writ petitions are dismissed. We must, however, mention that on behalf of the petitioners it was contended that they were still in possession. On the other hand, on behalf of the State it was contended that, three of the petitioners. had been evicted even before this Court passed an order of stay. Whatever the situation, it is open to any one of the petitioners, or such of them as choose to do so, to file a suit. V. P. S. Petition dismissed. 340