PANDIA NADAR AND ORS. versus THE STATE OF TAMIL NADU AND ORS.

PANDIA NADAR AND ORS.

THE STATE OF TAMIL NADU AND ORS. April 30, 197 4

[A. N. RAY, C.J., H. R. KHANNA, K. K. MATHEW, A. ALAGIRISWAMI AND P. N. BHAGWATI, JJ.]

Taniil Nadu Land Encroachnu:nt Act, 1905, s. 6-Procr!dure for eviction if riolative of Art. 14.

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 lndia Caterers v. Puniab. [19671 3 S.C.R. 399.

Dismissing the petitions,

HELD: Under the Tamil Nadn Act s. 2 defines 'property of government', s. 3 Javs down that any 'person who shall unauthorisedly occupy any land which is th.e 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 1:arried out by serving notice as provided under s. 7 after giving him. reasonable time to vacate. There is provision for appeal against the order of the Collector or other officer and there is also provision for revision by the Government. Section 14 provides for right of suit by any person deeming himself aggrieved by- any proceedings under the Act.

This Court in Magan/al Chagganlal Ltd. v. Municipal Corporation of Greater Bo1nbay [19751 J S.C.R. 1 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 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 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.

ORIGINAL JURISDICTION : Writ Petitions Nos. 243 to 246 of 1970.

Petition under Art. 32 o~ 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 c~ the Court was delivered by

ALAGIRISWAMI, J. The Tamil Nadu Land Encroachment Act 1905 is impugned in these petitions as uncolllltitutional and void. Notices have been issued to the petitioners under section 6 of that Act in order to evict them from certain piece of land claimed to be Government land. The challenge to the ccinstitutional validity of the Act is based solely on the decision of this Court in Northern India Caterers v.

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 hotel and when the lease expired called upon him to hand civer vacant possession of the premises. On the appellant failing to do so the Collector issued notice under s. 4 o! the Punjab Act requiring the appellant to show cause why an order of eviction should not be passed under s. 5. This Court while hc~ding that "there is an intelligible differentia between occupiers and that the classification has reasonable relation to the object of the Act and does not offend Art. 14" also held that "s. 5 of the Act cqnfers an additional remedy over and above the remedy by way of suit and there-by violates Art. 14 by providing two alternative remedies to the Gov-ernment and in leaving it to the unguided discretion of the Cqllector to resort to one or the other and to pick and choose some of those in occupation cjf 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 qption of proceeding against him either by way of suit or under the Act."

The Tamil N adu 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 Gc1vern-ment as :

"2. ( 1) All public roads, streets, Janes and paths, the bridges, ditches, dikes and fences, oµ 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 sitnated, save in so far as the same are the property-

( a) of any zamindar, poligar, mittadar, jagirdar, shrot-riemdar or inamdar or any person claiming through or hold-ing under any of them, or

(b) of any person paying shist, kattubadi, jodi, poruppu or quit-rent to any of the aforesaid persons, cir

( c) of any person holding under ryotwari tenure, includ-ing that of janmi in the Gudalur taluk of the Nilgiri dis-trict 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.

are and are hereby declared to be the property of Gov-ernment 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 natnral and easement rights of other land-owners, and to all customary rights legally sub-sisting.

(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 pay· ment by such person of penalty. Section 6 provides for eviction of such person and for forefeiture of any crop c~ 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 notice as provided under section 7 after giving him reasc1:iable time to vacate. If there is any resistance to eviction the Collector or other officer ordering eviction is to hold summary inquiry into the question whether the resistance was without any just cause. There is provision fqr appeal against the order of the Collector or other officer and there is also provision for revision by the Government. Section 14 prcivides for right of suit by any person deeming himself aggrieved by any proceedings under the Act. Such in short is the scheme of the Act.

In its rcc·ont decision in Magc.nlal Clzhagganlal (P) Ltd. etc. v. Municipal Corporation of Greater Bombay & Ors. etc. ([1 ]) pronounced on 11 April, 1974, this Court had occasion to consider the constitu-tional validity of Chapter V-A of the Bombay Municipal Corporation Act and the Bombay Government Premises (Eviction) Act. According to the provisions of section!OSA contained in Chapter V-A there under consideraticn:i, 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 cor-poration which vest in it for the purposes of that undertaking were granted certain powers of eviction in respect of nnauthctised occupa-tion of any corporation premises. Unauthorised occupation is defined as occupation by any person of ccicporation premises without authority for such occupation and includes the continuance in occupation by any person c& 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 perscin in unauthorised occupation, could ask him to vacate if he had not paid for period c& more than two months the rent or taxes law.'ully due from him in respect of such premises; or sub-let, contrary to the terms. or conditions of his occupation, the whcile or any part of such premises; or committed, or is committing, such acts of waste as are li~ely to diminish ".1aterially the value, or impair substantially the ul!hty, of the premises; or otherwise acted in contravention of anv of the terms, express or implied, under which he is authorised to occupy

(I) [1975] I S.C'.ll. !.

such premises; or if any person is in unauthorised occupation of any corporation premises; cir 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 notice calling upon the person concerned to show cause why an order of eviction should not be made and specify the grqunds on which the order of eviction is proposed to be made. The person concerned can file written statement and produce documents and is entitled to appear before the Commissioner by advocate, attorney or pleader. Perscins failing to comply with the order of eviction as well as any other person who obstructs eviction can be evicted by force. Under section l05C there is power to recover rent or damages as arrears of property taxes. person ordered to vacate qn the grounds of being in arrears of rent or acting in contravention of the terms under which he is aut!J.orised to occupy the premises could be allowed to continue if he satisfies the Cc1tnmissioner. The Commissioner has, for the purpose of holding any inquiry, the same powers as are vested in civil court under the Code of Civil Procedure, when trying suit, in respect of (a) summoning and enforcing the presence of any person and examin-ing him on oath, (b) requiring the discovery and productic1t1 of docu-ments, and ( c) any other matter which may be prescribed by regula-tions. An appeal from every order of the Commissioner lies to the principal Judge of the City Civil Court or such cf.her 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 qfficer is final. The power to make regulations under the Act includes the power to make regu-lations in respect of holding of inquiries and the procedure to be fctllowed in such appeals. The provisions of the Bombay Government Premises (Eviction) Act are more or less similar except that they relate to Government premises and the power to order eviction is given !Ci the competent authority not lower in rank than that of Deputy Collector or an Executive Engineer appointed by the State Govern-ment. It was argued before this Court that as there were two proce-dures available to the Corporation and the State Government, one by way of 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 Constitu-tion 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 prin-ciples deducible from those decisions were as follciws :

"Where statute providing for more drastic procedure different from the ordinary procedure covers the whole field covered by the ordinary prq:edure, as in Anwar Ali Sarkar's case(!) and Sura; Mall Mohta's case([2 ]) without any guide-lines 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,

(2) [1965] I SCR 448

(l) [1952] SCR 284.

as mentioned in Suraj Mall Mohtds case, provision for appeal· may cilre the defect. Further, jn such cases if frcm 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('> and Jyoti Pershad's case(') the statute will not be hit by Art. 14 .. The~ again where the statute itself covers only .a class of cases as in Ha!dar'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 pm::edure will not affect the validity . of the statute. Therefore, the contention that the mere avail-. ability 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 ·principl~s 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 pre-mises belonging to the Corporation and. the Gcwernment should. be ·subject to speedy pr0cedure in the matter of evict-ing unauthorized persons occupying them. This is suffi-cient guiaanee for the authorities on whcan 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. Even 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 either which would be pro-longed 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 hcdd that an administrative cfficer would in taking proceedings for eviction of unautho-rised occupants of Govetnment property .or Municipal pro-perty rescirt to the procedure prescribed by ~he two Acts in one case and to.the ordinary CiviJ·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 fashici!l. In considering whether th·e officers wculd be discriminating· between one set o~ persons and an-other, one has got to take into account normal human be--, haviour and not behaviour which · is abnormal. It is nc1t every fancied possibility of discrimination but the real i:isk · cf discrimination that we must take into account. This is not one of those cases where discriminatici!l is writ large on the face of the statute. Discrimination may be possible but is very improbable.· And if there. is discrimination in actual

(2) (1962] 2 SCR 125 (4) (1954.J SCR JO ..

(I) (19521 SCR 435

(3l (1960] 2 SCR 646

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 special speedy procedure therefor is clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We, therefore, find c1Uiselves .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 c~ onerous as to suggest that discrimination would result if resort was made to the provis10ns of those two Acts in some cases and to the qrdinary Civil Court in other cases in the following words :

"Even though the officers deciding these questions would be administrative officers there is provisiclll 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 written statement and produce documents and be represented by lawyers. The pro· visions of the Civil Procedure Code regarding summoning and enforcing attendance of persons and examining them on oath, and requiring the discovery and productic1n of docu· inents are 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 tc1 District Judge in the districts who has got to deal with the matter as expeditiously as possible, also sufficient safeguard as was recognised in Suraj Mall Mohta's case. The main diffe-rence between the procedure before an ordinary Civil Cc1Urt and the executive authorities under these two Acts is th'lt in one case it will be decided by 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 tq 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 second appeal. On the whole, cc111sidering the object with which these special procedures were enacted by the legislature we would not be prepared to hold that the diffe-rence between the two procedures is so unconscionable as to attract the vice of discriminaticia. After all, Art. 14 does not demand fanatical approach. We, therefore, hold that

neither the provisions of Chapter V-A of the Bombay Muni-. cipal Corporation Act nor the . provisions c[ the Bombay Government Premises (Eviction) Act, 1955 are hit by Art. 14 of the Constitution."

This decision would apply on all fours tq 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 er! the State it was contended that three of the petitioners. had been evicted even befc~e this Court passed an order of stay. What• ever the situation, it is open to any one of the petitioners, or such of them as choose to do so, to f!le suit.

Petitions dismisJed •.