G.K Misra, C.J:— By Annexure ‘C’ dated 2-4-1969 the Subdivisional Officer, Jagatsingpur, passed an order of eviction and issued notice under section 6(4) of the Orissa Prevention of Land Encroachment Act, 1953 (Orissa Act 15 of 1954) hereinafter to be referred to as the Act) directing the Tahsildar. Jagatsingpur, to execute the eviction order and to do certain other acts. The notice may be extracted in toto:—

“Memo. No. 1444 dated 5-4-1969.

Order of Eviction.

Notice under section 6(4) of the O.P.L.E Act.

Encroachment case no. 142 of 1968 against Brahmananda

Sahu and others

The Tahsildar, Jagatsingpur.

“Whereas after due enquiry the undersigned is satisfied that Shri B.N Sahu, Natabar Sahu, Bhagabat Sahu, Indramon Sahu, Adikanda Sahu, Govinda Sahu and Basanta Sahu, Village Garmal, P.S Jagatsingpur, has unauthorisedly (in) occupation of the land detailed below which is the property of Government and inspite of service of notice under section 6(1) of the O.P.L.E Act, 1966, he does not turn up nor intimates to Court that he has removed the encroachment although the statutory period of 30 days has expired since long. So he is summarily evicted from the land and the properties standing or deposited thereon are forfeited to Government.

You are hereby directed to execute the eviction order, forfeit the properties standing or deposited thereon. Sees (seize) the executed materials under your custody after ensuring its safe custody from the custodian until further orders and submit your report of compliance by 22-4-1969.

SCHEDULE.

Name of plot, village and Thana Plot Description. Extent recorded. Unauthorised occupation. Nature of occupation. Mouza Garuala P.S Jagatsingpur. P. No. 3147. A. 0.44 — Plantains, coconut & other fruit-trees.

Sd/- Illegible.

2-4-1969

Subdivisional Officer,

Jagatsinghpur”.

The description of the disputed land is given in the schedule to the aforesaid notice.

2. The petitioner's case is that the disputed plot no. 3147 is contiguous their homestead plot and is in their possession since the time of their ancesters. Various fruit-bearing trees were planted and still stand on the land. There are about 100 trees including 32 coconut trees, 12 mango trees and 1 tamarind tree. The disputed land was never in possession of the landlord or the Government. It was taken on lease by the ancestors of the petitioner on 30-3-1922, in the name of their family deities. Rent was regularly being paid to their landlords. Names of some of the petitioners have been noted in the parchas during the Settlement of 1930–31. An encroachment case (No. 1 of 1965) was started by the Tahsildar, Jagatsinghpur. The petitioners filed an application (Annexure A) which was enquired into by the Tahsildar who submitted his report (Annexure B). The report folly supports the case of the petitioners. The notice (Annexure ‘C’) was served on the petitioners on 9-3-1969 without any final orders being passed on the report of the Tahsildar. The petitioners challenge section 6 of the Act as unconstitutional, being hit by Article 14 of the Constitution. No counter has been filed by the opposite parties. At the time of hearing learned Standing Counsel stated that no counter was necessary as the question involved is one of law.

3. Before examining the constitutionality of section 6 the Scheme of the Act may be noticed.

4. Section 2 enumerates as to what are the properties of Government. It says that “subject to the provisions of any law for the time being in force, the following classes of lands are hereby declared to be the property of Government for the purposes of this Act”. The various categories of Government property are referred to in clauses (a) to (e). The lands to include both agricultural and non-agricultural lands.

5. Section 2-A defines “objectionable encroachment” thus:

“unauthoritised occupation of any land which is the property of Government and which belongs to any of the categories specified below shall be deemed to be an objectionable encroachment”.

6. Clause (a) to (d) specify such lands. Section 3 deals with levy of assessment on lands unauthorisedly occupied.

7. Section 4 says that the decision of the amount of assessment shall not be challenged in a Civil Court.

8. Section 5 refers to liability of person unauthorisedly occupying lands to penalty.

9. Section 6 deals with summary eviction, forfeiture and fine. This section may be extracted in extenso—

“6(1) Any person unauthorisedly occupying land for which he is liable to pay asssessment under section 3 shall be summarily evicted by the Collector and any crop or other product raised on the land, any encroachments such as a building or other construction or anything deposited thereon shall be laible to forfeiture:

Provided that in the case of said encroachments the Collector shall give reasonable notice to remove the same;

(1-A) Notwithstanding any thing contained in sub-section (1) the Collector may decide not to take action under the said sub-section if the unauthorised occupation—

(a) does not amount to an objectionable encroachment under section 2-A. or.

(b) while amounting to an objectionable encroachment as aforesaid, does not or is not likely to perjudice or adversely affect—

(i) any development scheme, programme or work specified by general or special order made in that behalf by the State Government, or the prescribed authority; or

(ii) the interests of the general public or of the village community.

(2) If such person fails to remove the encroachments within the time specified in the notice the Collector may, in his discretion, in addition to the order of forfeiture, impose a fine which may extend to fifty rupees, and a daily fine of rupees ten until the encroachment has been removed.

(3) Forfeitures under this section shall be adjudged by the Collector and any property so forfeited shall be disposed of as the Collector may direct.

(4) An eviction under this section shall be made in the following manner, namely—

By serving a notice in the manner provided in section 7 on the person reported to be in occupation or his agent, requiring him within such time as the Collector may deem reasonable after receipt of the said notice, to vacate the land and if such notice is not obeyed, by removing or deputing a subordinate officer to remove any person who may refuse to vacate the same.

(5) if the officer removing any such person shall be resisted or obstructed by any person the Collector shall hold a summary enquiry into the facts of the case and if satisfied that the resistance or obstruction was without any just cause, and that such resistance or obstruction still continues, may issue a warrant for the arrest of the said person and on his appearance may send him with a warrant in the form appended to Schedule I for imprisonment in the Civil Jail of the district for a period not exceeding thirty days as may be necessary to prevent the continuance of such resistance or obstruction.”

10. Section 6-A relates to stay of construction on lands unauthorisedly occupied.

11. Section 7 refers to prior notice to person in unauthorised occupation. It say that before taking proceedings under section 6, the Collector, the Deputy Collector or the Sub-Deputy Collector, as the case may be, shall cause to be served on the person reported to be in unauthorised occupation of the property of Government, a notice specifying the lands so occupied and calling upon him to show cause before a certain date as to why he should not be proceeded against under section 5 or section 6. Such notice shall be served in such manner as the State Government may, by rule or orders under section 8, direct.

12. Section 8 confers, power on the State Government to make rules.

13. By section 9 recovery of assessment or penalty is treated as a public demand.

14. Section 10 makes provision for appeal and revision. It runs thus:—

“10(1) An appeal shall lie (a) to the Collector from any decision or order passed by a Subdivisional officer, a Deputy Collector or Sub-Deputy Collector under this act and (b) to the Board of Revenue from any decision or order of the Collector passed otherwise than on appeal. There shall be no appeal against the decision or order passed by the Collector on appeal. The Collector may revise any decision or order passed by a Subdivisional officer, a Deputy Collector or a Sub-Deputy Collector under this Act and the Board of Revenue may revise any decision or order passed by the Collector.

(2) Pending the disposal of any appeal or revision, the Collector or the Board of Revenue as the case may be, may suspend the execution of the decision or order appealed against or sought to be revised.”

15. Section 11 provides limitation for appeal and section 12 for documents to accompany the petition for appeal.

16. Section 13 deals with saving of operation of other laws in force. It runs thus:—

“13. Nothing contained in this Act shall be construed as exempting any person unauthorisedly occupying land from liability to be proceeded against under any law for the time being in force: Provided that if any penalty has been levied from any person under section 5 of this Act, no similar penalty shall be levied from him under any other law for the time being in force in respect of such occupation;

Provided further that any person imprisoned under subsection (5) of section (6) shall not be liable to be prosecuted under section 183, 186 or 188 of the Indian Penal Code in respect of the same facts.

17. Section 14 deals with staying of suits by persons aggrieved by any proceeding under the Act. It runs thus:—

“14. Subject to the provisions of section 4, any person aggrived by any proceedings under this Act may apply to the Civil Court for redress:

Provided that the Civil Court shall not take cognizance of any suit instituted by such person for any such cause of action unless such suit is instituted within six months from the time at which the cause of action arose.

Explanation — The cause of action shall be deemed to have arisen—

(a) in respect of any assessment or penalty on the date on which notice of such assessment or penalty was served on the person;

(b) in respect of eviction or forfeiture, on the date of eviction or forfeiture: Provided further that for the purpose of computing the period of limitation the period spent in appeal or revision shall be excluded.”

18. Section 15 deals with delegation of powers and duties of the Collector, Deputy Collector and Sub-Deputy Collector by the State Government. Action to be taken under the Act is protected by Section 16.

19. Section 17 pertains to repeals and savings. The Acts repealed whether in whole or in part have been mentioned in Schedule II.

20. Section 18 confers power on the State Government in case of doubts and difficulties.

21. Thus, the entire Act is in 18 sections. To determine the constititionality of Section 6, which confers power of summary eviction, a specific reference to Sections 7, 10, 13 and 14 is necessary.

22. By virtue of section 6(1) any person unauthorisedly occupying Government property for which he is liable to pay assessment under Section 3 shall be summarily evicted by the Collector. Any crop or other product raised on the land or any encroachment by permanent construction is liable to forfeiture. The word “shall” was substituted for the word “may” by Act 25 of 1962. The substitution of “shall” for “may” would ordinarily indicate that in case of unauthorised occupation the encroacher shall be evicted under section 6(1). Subsection (1-a), however, gives a discretion to the Collector not to take action under subsection (1) in certain cases enumerated therein. Thus discretion is left to the Collector not to use the machinery of the Act for eviction in certain contingencies.

23. Before the order for eviction is passed prior notice is to be served under Section 7 specifying the lands so occupied and calling upon the encroacher to show case why he should not be evicted against under Section 6. Appeal and revision are provided in the manner provided in Section 10 which has already been quoted above.

24. Discretion is however left with the Collector whether to take action for summary eviction under Section 6, or to file a suit in a civil or revenue Court for the same purpose. This is clear from section 13 which says that nothing contained in the Act shall be construed as exempting any person unauthorisedly occupying land from liability to be proceeded against under any law for the time being in force. The State had thus preserved the inherent right, to evict the encroachers through the Civil Court and in certain cases through the Revenue Court. Such as a right is preserved in unequivocal terms.

25. Section 14 does not restrict the inherent right of the State preserved under Section 13. It merely gives a remedy to the aggrieved person to move the Civil Court in certain circumstances. If the aggrieved person is evicted by the Collector and his appeal and revision prove unsuccessful, he has a right to institute a suit in the Civil Court within six months from the time the cause of action arises. So far as eviction is concerned the cause of action arises on the date of eviction. In other words, before the right of suit is exercised the encroacher must first be evicted.

26. On the aforesaid analysis of the relevant provisions of the Act, conclusion is irresistible that in respect of encroachments on property of Government as defined in the Act, the State Government has two alternative remedies against the enoroaoher. It possesses the inherent right to approach the Civil or Revenue Court, in the alternative, it can resort to the machinery provided under the Act. The remedy provided under the Act is supplemental to the remedy available through Court and is not substitutive.

27. It is accordingly contended that as in respect of persons unauthorisedly in occupation of property belonging to Government, who form a class by themselves, the State Government had two alternative remedies open to them, one by way of regular suit and the other by resorting to the machinery provided under the Act which is more drastic and prejudicial, the provision of the Act which gives such discretion is hit by Article 14 of the Constitution.

28. The contention requires careful examination.

29. There can be no doubt that the procedure prescribed under the Act is more drastic and prejudicial. The Act does not prescribe as to how the question of encroachment would be investigated. Rule 11 of the Orissa Prevention of Land Encroachment Rules, 1963 lays down that.

“If on receipt of notice in Form A such person pleads that he is not liable for being proceeded under the Act the officer conducting the proceeding shall make a summary enquiry and determine the liability of the person for the whole or any part of the encroachment for which notice was issued to him and confirm, modify or drop the proceedings as may be necessary.”

30. Thus, there would be a summary enquiry, with regard to Civil rights, by executive officers. If the eviction is sought by the State through the Civil Court, such civil rights would be fully investigated by judicial officers in the manner provided in the Civil Procedure Code. Again under the Act one appeal lie while If the eviction is sought through the Civil Court, a first appeal lies to the District Judge and a second appeal lie to the High Court. The functionaries under the two procedures are entirely different; in the one case, they are executive officers, in the other they are judicial officers with the ultimate power of dispensation of justice vesting in the High Court.

31. Moreover, if a suit is filed, it would be governed by the limitation period of 30 years under Article 112 of the Limitation Act, 1963 (Act no. 36 of 1963). On the contrary, there is no limitation for starting a proceeding for eviction under the Act. Even if the encroacher is in unauthorised occupation say for over 100 years and has acquired title by adverse possession, by virtue of Article 112 read with Section 27 of the Limitation Act, 1963, he can be evicted in accordance with the procedure under the Act, though a civil suit for the same relief would be barred by limitation. A suit under Section 14 can be filed only after eviction is effected. The encroacher is thus evicted before he approaches the Civil Court for relief. On the contrary, if a civil suit had been filed initially by the State, the encroacher would continue in possession till a decree is passed. It is thus clear that the procedure prescribed under the Act is more drastic and prejudicial to the person in unauthorised occupation.

32. In M.L Caterors v. State of Punjab . A.I.R 1967 S.C 1581., the constitutionality of a similar provision in Section 5 of the Punjab Public Premises and Land (Eviction and Recovery of Rent) Act (31) of 1959 came up for consideration. Their Lordships, by a majority, held that the Section was discriminatory and violative of Article 14. Section 4(1) of the Punjab Act was in the following terms: If the Collector is of opinion that any persons are in unauthorised occupation of public premises, situate within his jurisdiction, and that they should be evicted, the Collector shall in the manner hereinafter provided, issue a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be passed. Section 5(1) of the Punjab Act provided that even after considering the cause, if any, shown by a person in pursuance of the notice under Section 4 and the evidence produced by such person in support of the same, and after giving a reasonable opportunity of being heard, if the Collector is satisfied that the public premises are in unauthorised occupation, the Collector may make an order of eviction giving reasons.

33. In the Punjab Act there was no provision corresponding to Section 13 of the Act, saying that the remedies available to the State under any other civil law were kept alive. While examining whether the aforesaid provision in Section 5 of the Punjab Act was hit by Article 14 of the Constitution, their Lordships laid down the following propositions:—

(1) The classification of occupiers of public property and premises as a separate class from occupants of other property was based on a justifiable reason, and such classification has a rational nexus with the object and policy of the Act (paragraph 9).

(ii) The Punjab Act did not by necessary implication, take away the right of suit in the civil Court for the purpose of eviction of unauthorised occupants and it only provided an additional remedy under the Act (paragraph 6).

(iii) The procedure for eviction of unauthorised occupants under the Punjab Act is more drastic and prejudicial when compared with the procedure under the ordinary law of the land (paragraph 12).

(iv) The Punjab Act leaves it to the unguided discretion of the Collector to pick and choose some of those in occupation of public properties and premises, for the application of the more drastic procedure under Section 5 of that Act (paragraph 12).

34. The identical principles apply to the present case. It entirely lies within the discretion of the State Government to take a proceeding for eviction either under the Act or through Courts. Persons in unauthorised occupation of Government lands consitute a class. There is nothing in the Act to control the Collector's discretion as to why as against some of them eviction through Coarts would be resorted to, while as against some others the drastic procedure prescribed under the Act would be followed. The exercise of this discretion is wholly unguided. There is no rational noxus between the classification sought to be made land the subject of the Act. Section 6 is accordingly violative of Article 14 of the Constitution and is declared void.

35. The aforesaid Supreme Court decision has been followed in Rajendra Prasad v. Union of India . A.I.R 1968 Cal. 560 F.B., wherein Section 5 of the public Premises (Eviction of Unauthorised Occupants) Act (32 of 1958) a Central Act was declared void. In Raja Ram Verma v. State of U.P . A.I.R 1968 All. 369 F.B., a similar provision of the U.P Public Land (Eviction and Recovery of Rent and Damages) Act (13 of 1959) was declared void.

36. In Bharatiya Hotel v. Union of India . A.I.R 1968 Pat. 476., Sections 4, 5, and 9 of the Public Premises (Eviction of Unauthorised Occupants) Act (32 of 1958) were held to be constitutional. For reasons already discussed, we are dearly of opinion that the Patna case has not been correctly decided.

37. If Section 6 is void, then the order of eviction as per Annexure ‘C’ is illegal and is not enforceable in law. It is liable to be quashed.

38. In the result, the writ application succeeds. A writ of certiorari be issued quashing the impugned order. A writ of mandamus be issued directing the opposite parties not to take action for eviction as per the impugned order. In the circumstances, parties to bear their own costs.

S.K Ray, J.:— I agree.

39. Writ application allowed.