1. The broad question raised in these Writ Petition concerns the Vires of Sections 6 and 7 of the Andhra Pradesh Land Encroachment Act.
2. The Petitioners contend that sections 6 and 7 of the Act provide the Collector and Tahsildar with a remedy to evict persons in unauthorised occupation of land Which is the property of Government, that this remedy is in addition to the remedy available under the ordinary law of the land, that the remedy under the Act is a drastic remedy much to the prejudice of the persons in unauthorised occupation, that sections 6 and 7 give an absolute and unfettered discretion to the Collector and the Tahsildar to purse one remedy or the other and thus to discriminate between such unauthorised occupants inter se and that therefore Sections 6 and 7 offend Article 14 of the Constitution and ultra vires.
3. It was laid down by their Lordships of the Supreme Court in Jyoti Prasad v. Union Territory A.I.R 1961 S.C 1602.that guidance in the matter of exercise of discretion conferred on an authority by an enactment may be “obtained for or afforded by (a) the preamble read in the light of the surrounding circumstances which necessitated the legislation, taken in conjunction with well known facts of which tie Court might take judicial notice or of which it is appraised by evidence before it in the form of affidavits,……………………. (b) or even from the policy and purpose of enactment which may be gathered from other operative provisions applicable to analogous or comparable situations or generally from the object sought to be achieved by the enactment.”
4. It will, therefore, be useful to refer first to the circumstances which led to the passing of the Act. Prior to 1905 the Government was levying what was known as ‘penal or prohibitory assessment or charge’ on unauthorised occupants of the land and collecting it as an arrear of land revenue under the provisions of the Revenue Recovery Act. It was thought at that time that imposition of a penal assessment was an effective mode of checking encroachments on Government and communal lands. But, a Full Bench of the Madras High Court in Madathapu Ramayya v. Secretary of State2. held that the imposition was not land revenue and could not be recovered as an arrear of land Page: 90revenue, it was this decision that led to the enactment of the Land Encroachment Act of 1905. In the Judgment of Bhashyam Aiyangar J., in Madathapu Ramayya v. Secretary of State1, the learned Judge referring to the argument Strenuously advanced on behalf of the Government that the imposition of a penal assessment was necessary and justifiable in the interests of the State and of the public as an effective method of checking encroachments on Government and communal lands said that such considerations pro and con carried, no weight in deciding the legality of the prohibitory assessment, suggested “if the existing provisions of law contained in the Municipal and Local Boards Act, the Code of Criminal Procedure and other enactments, if any, are found inadequate to check the evil complained of, recourse must be had to special legislation for effectively checking encroachments and obstructions on or wrongful use or alienation of Crown lands and proramboke lands set apart for public or communal purposes………………………………………any such legislation, if deemed necessary, will of course proceed on lines consistent with the just and constitutional principles of British legislation.” The advice given by Bhashyam Aiyangar J., was accepted and the result was the Land Encroachment Act of 1905.
5. Let me now refer to the relevant provisions of the Act in order to consider the validity of the petitioners' contentions. To begin with the Act is stated to be ‘An Act to provide measures for checking unauthorised occupation of lands which are the property of Government’. The object of the Act is thus to preserve the property of Government by preventing unauthorised occupation. S. 2. declares what is Government property. Section 3. provides for the compulsory levy of assessment on lands unauthorisedly occupied. Section 5. empowers the Collector, Tahsildar and Deputy Tahsildar, at their discretion, to impose a penalty in addition to the assessment levied under Section 3. Section 6(1), empowers the Tahsildar or Collector to summarily evict a person in unauthorised occupation while Section 6(2) prescribes the mode of eviction. Section 7 provides that before proceedings under Section 5 or Section 6 are taken, the person in unauthorised occupation shall be served with a notice calling on him to show cause why he should not be proceeded against under Section 5 or Section 6. Section 10 makes provision for a single appeal from an original decision or order of the Tahsildar, the Collector or the District Collector as the case may be to the Collector, District Collector or the Board of Revenue respectively. There is no provision for a second Appeal but the District Collector is empowered to revise the orders of the Tahsildar and Collector and the Board is empowered to revise the order of any officer under the Act. Section 11 prescribes the period of limitation for appeals and Section 12 insists that every petition of appeal must be accompanied by a copy of the order appealed against. Section 12-A invests the Government with supervisory and revisional powers and enables if to call for the records of any decision or order or proceeding of a subordinate Page: 91authority and to pass such orders as it thinks fit. Section 13 preserves, the right of the Government to take action under other laws against persons in unauthorised occupation. Section 14 preserves to all persons aggrieved by proceedings under the Act the right to seek redress in Civil Courts provided they do so within six months from the date of cause of action which is the case of eviction is stated to be the date of eviction. It is of great importance--to, notice here that the summary eviction contemplated by the Land Encroachment Act is indeed not very summary because action is taken against an unauthorised occupant only after enquiry at several administrative levels. To begin with there is provision for the issue of a notice to the unauthorised occupant to show cause why action should not be taken against him and the issue of such a notice, which is obligatory, necessarily implies that the cause shown against the proposed action will be taken into consideration before a, decision is arrived at whether to take further action under the Land Encroachment Act or not. There is then a provision for an appeal and a further provision for a revision which show that all orders made under the Land Encroachment Act must be reasoned orders which can be tested in appeal and revision. The provision for the issue of a notice to show cause why action should not be taken and the further provision for appeal and revision clearly show that the Legislature was literally complying with the advice of Bhasyam Aiyangar J., that any special legislation for rejecting unauthorised occupants should be consistent with the just and constitutional principles of British Legislation. It is only after the completion of this elaborate administrative process in which the unauthorised occupant takes part that a final decision is arrived at whether further action should be taken under the Act. It must be further noticed here that notwithstanding the elaborate process gene through before the are arrived at, no finality is attached to them under the Land Encroachment Act. The right of the Government as well as the right of the occupant of the land to seek redress in a Civil Court are preserved. If the elaborate administrative process results in the eviction of the occupant of the land, he can seek to recover possession in a Civil Court within six months of eviction as provided by S. 14 of the Act. On the other hand if it results in action under the Land Encroachment Act being dropped it is open to the Government to recover possession by filing a,. suit. The jurisdiction of the Civil Court is thus not ousted and subject to the period of limitation prescribed by section 14 recourse can always be had to the Civil Court.
6. The learned Counsel for the petitioners did not contend that there was no intelligible differentia between persons in occupation of Government and communal lands and persons in occupation of lands belonging to private individuals. They contended that Sections 6 and 7 of the A.P Encroachment Act provided the Collector and the Tahsildar with a remedy to summarily evict persons in unauthorised occupation in addition to the remedy available under the ordinary law of the land by recourse to a Civil Court, that the Page: 92remedy provided by the Act was a drastic remedy, that Sections 6 and 7 gave an unguided and unfettered discretion to the Collector and the Tahsildar to pursues one remedy in the case of one occupant and another remedy in the case of another occupant and this discriminates between unauthorised occupants inter se. They, therefore, contended that Sections 6 and 7 of the Land Encroachment Act, offended Article 14 of the Constitution, and were ultra vires. They relied on a judgment of their Lordships of the Supreme Court in N.J Caterers Ltd. v. State of Punjab A.I.R 1967 S.C 1581. In that case the Supreme Court was concerned with the vires of Sec. 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act Section 4 of that Act provided that if the Collector was of opinion that any person was in unauthorised occupation of public premises and that he should be evicted, he should issue a notice in writing calling upon such person to show cause why an order of eviction should not be passed. The notice was to specify the ground on which the order of eviction was proposed to be made and to require the person to show cause within fifteen days. Section 5 provided that after considering the cause and evidence produced by such person and after giving him a reasonable opportunity of being heard, if the Collector was satisfied that the public premises were in unauthorised occupation he may make an order of eviction. Section 9 provided for an appeal against the order of the Collector or the Commissioner. Section 10 conferred finality on the order made by the Collector or the Commissioner and prescribed that such an order could not be called in question in any suit, application or execution proceedings. Their Lordships held that the remedy provided by Section 5 of the Act was in addition to the remedy available under the ordinary law and that it was possible to justify the classification of tenants of public properties and premises from the tenants of private property as having a rational nexus with the object and policy of the Act. Assuming so their Lordships held that Section 5 conferred unguided and absolute discretion on the Collector to discriminate between different occupants of public premises by pursuing the remedy available under the ordinary law in the case of one occupant and the more drastic remedy under the Act in the case of another occupant. They, therefore, struck down Section 5 as ultra vires, After referring to the previous decisions of the Supreme Court in the State of West Bengal v. Anwar Ali A.I.R 1952. S.C 75 Suraj Mall Mahta and Co. v. A.V Viswanatha Sastri A.I.R 1954 S.C 545 Shree Meenakshi Mills Ltd Madurai v. Commissioner of Income tax Madras A.I.R 1957 S.C 49 and Banarsi Das v. Cane Commissioner, Uttar Pradesh A.I.R 1963 S.C 1417 their Lordships observed:—
“The principle which emerges from these decisions is that discriminations would result if there are two available procedures one more drastic or prejudicial to the party concerned than the other and which can be applied at the arbitrary will of the authority.
Assuming that persons in occupation of Government properties and premises Page: 93form a class by themselves as against tenants and occupiers of private owned properties and that such classification is justified on the ground that they require a differential treatment in public interest, those who fall under that classification are entitled to equal treatment among themselves. If the ordinary law of the land and the special law provide two different and alternative procedures, one more prejudicial than the other discrimination must result if it is left to the will of the authority to exercise the more prejudicial against some and not against the rest. A person who is proceeded against under the more drastic procedure is bound to complain as to why the drastic procedure is exercised against him and not against the others, even though those others are similarly circumstanced. The procedure under S. 5, is obviously more drastic and prejudicial than the one under the Civil Procedure Code where the litigant can get the benefit of a trial by an ordinary Court dealing with the ordinary law of the land with the right of appeal, revision, etc. as against the person who is proceeded against under S. 5 of the Act as his case would be disposed of by an executive officer of the Government, whose decision rests on his mere satisfaction, subject no doubt to an appeal but before another executive officer, viz., the Commissioner. There can be no doubt that S. 5 confers an additional remedy over and above the remedy by way of suit and that by providing two alternative remedies to the Government and in leaving it to the unguided discretion of the Collector to resort to one of 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 that section has lent itself open to the charge of discrimination and as being violative of Art. 14. In this view S. 5 must be declared to be void.”
7. It is clear from this decision that before a provisions creating a new remedy and prescribing a new procedure, different from the remedy and procedure prescribed by ordinary law, is struck down as unconstitutional it must be established that the new procedure is drastic and to the prejudice of the subject and that there is no guidance from the statute as to when resort may be had to the new procedure and new remedy and the procedure under the ordinary law may be pursued. As I understand the decision of their Lordships, in the case before them, the sting of prejudice lay in the fact that while under the Punjab Act the case would be disposed of by an executive officer of the Government under the Civil Procedure Code the Litigant would have the benefit of trial by a Civil Court dealing with the ordinary law of the Land. When their Lordships stated that under Sec. 5 the case would be disposed of by an executive officer of the Government they naturally and certainly meant that the case would be ‘finally disposed of’ by an executive officer of the Government because the finality was attached to orders under S. 5. 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 Page: 94jurisdiction of Civil Courts. There was a complete substitution of Civil Court by executive officials of the Government. The position under the present Act, however, is altogether different. The jurisdiction of the Civil Court is not ousted and there is no substitution of the ordinary Civil Courts by executive officers of the Government. All that the Act provides for is a preliminary enquiry by executive officers of the Government, provisional findings by them on the questions involved and a tentative taking of possession. The decision of the executive officers, their findings and the taking of possession are all liable to be questioned in a Civil Court. The position is the same, as, for instance, in a proceeding under Sec. 145 of the Criminal Procedure Code where a Criminal Court may declare the possession of a party or deliver possession to that party who had been disturbed from possession within two months before the date of the preliminary order. The declaration of possession or the restoration of possession is not conclusive. Any aggrieved party may file a suit in a Civil Court. The enquiry under the Land Encroachment Act may thus be compared with the summary enquiry by a Criminal Court under Sec. 145 of the Criminal Procedure Code. Next the executive officers acting under the Land Encroachment Act may also be expected to discharge their functions in a just and bonafide manner. There is no reason to presume that they would not act in accordance with the well established principles of justice. If they err, the aggrieved party has always the right of a suit. A preliminary enquiry of the nature contemplated by the Act is useful to both parties. As a result of the facts revealed at the preliminary enquiry the Government may decide to drop action altogether or may decide to go to a Civil Court to agitate the matter before it. On the other hand the person proceeded against may also decide to surrender possession if he is satisfied that his possession is not based on any right. The preliminary enquiry will thus serve a useful purpose and save the time and money of all the parties concerned. Merely because the special law provides for the taking of possession in pursuance of a preliminary enquiry, it cannot be said that the procedure prescribed by the special law is drastic or to the prejudice of the person proceeded against when the right to seek redress in a Civil Court is preserved. The learned counsel for the petitioners urged that if the occupant is to institute a suit in Civil Court the initial burden of proof will be on him. But, then, the initial burden is on him only because of the result of the preliminary enquiry where he failed to prove his prima facie right to possession. Further, burden of proof is never static during the course of the trial; it moves from one shoulder to the other and the mere fact that a statute places it on one party to begin with is not sufficient to hold the procedure onerous or the statute vicious. For the several reasons mentioned above I am of the view that the procedure prescribed by the Land Encroachment Act is not drastic or to the prejudice of the person in occupation of the land. The position may be different if the Land Encroachment Act made no provision for giving an opportunity to the occupant of the land to show cause against the proposed action and if it made no provision for appeal an revision but permitted the Collector or Tahsildar to Page: 95straight away evict persons thought to be in unauthorised occupation, of the Government land. We are not concerned with such a situation under the Land Encroachment Act.
8. The learned counsel also relied on he decision in State of West Bengal v. Anware Ali, Suraj Mall Mahta and Co. v. C.I.T, Madras Sastri Shree Meenakshi Mills Ltd Madurai v. A.V Viswanatha Sastri and State of Orissa v. Dhirendranad Das A.I.R 1852 S.C 75. They are all cases where the parallel procedure prescribed by the special law led to an inevitable finality, must to the prejudice of the person affected, As 1 pointed out that is not the position here.
9. I may consider the question whether there is any principle discernible from the preamble and the provisions of the Act to guide the exercise of the discretion of the Collector and the Tahsildar whether to proceed under the Land Encroachment Act or under the ordinary law. As pointed out by Patanjali Sastri C.J, in the case of Kedar Nath Bajoria v. State of West Bengal A.I.R 1954 S.C 545 whether an enactment providing for special procedure is or is not discriminator and violative of Article 14 must be determined in each case as it arises on a practical assessment of the operation of the law in the particular circumstances. In the case of N.I Caterers Ltd. v. State of Punjab3 their Lordships of the Supreme Court were unable to discover any principle which would guide the exercise of discretion by the Collector under Section. 5 of the Punjab Act. The position under the Andhra Pradesh Land Encroachment Act is not, however, the same and the Collector and the Tahsildar acting under sections 6 and 7 of the Act are not left helpless and without guidance. Earlier I have referred to the circumstances which necessitated the passing of the Act and to the object of the Act which was to provide measures for checking unauthorised occupation of lands which are the property of the Government. To check means to curb, to restrain, to slop or to impede. The object of the Act was therefore to protect the property of the Government and to curb or restrain unauthorised occupation of land by the imposition of penal assessment or by subjecting unauthorised occupants to summary eviction. Since checking of unauthorised occupation was the object of the Act the provision for summary eviction must be understood and utilised in that context, that is to say, the provisions relating to summary eviction must be resorted to in cases where the unauthorised occupation is admitted or where it is so recent in point of time that summary eviction can for all practical purposes be considered as a measure aimed at preventing unauthorised occupation. Section 6 also gives an indication to that effect. It says that a person unauthorisedly occupying any land for which he is liable to pay assessment under S. 3 may be summarily evicted by the Collector or by the Tahsildar. Now since all land including land unauthorisedly occupied is subject to the levy of assessment every year one may presume that whenever Government land is found to be in unauthorised occupation the assessment directed to be levied on the land by section 3 Page: 96of the Act will be imposed on the unauthorised occupant at the earliest opportunity for levying such an assessment. At that stage the question whether the occupation is objectionable and whether action should not be immediately taken under the Land Encroachment Act. In addition to the assessment levied under Section 3 the person in unauthorised occupation is also liable to pay penalty under S. 5 of the Act. Before penalty is levied under S. 5 such person must be served with a notice asking him to show cause why penalty should not be levied. If the occupant shows no cause and thereby accepts the position that he is an unauthorised occupant of the land the Collector will thereafter be at liberty to take further action under the provisions of the Land Encroachment Act for evicting him. On the other hand if the occupant shows cause, but the Collector or the Tahsildar is not satisfied with the cause shown them too, subject to the right of appeal and revision the Collector will be at liberty to take further action. Therefore, it appears to my mind that the statute enables the Collector or the Tahsildar to take action under thy Act only in cases where the occupation is recent or where the occupant be some action of his indicated that he admits his occupation to be unauthorised. This is thus not a case where absolute and unguided power of selection is given under the statute, but where, in the words of Patanjali Sastri C.J, in Kedar Nath Bajoria v. State of West Bengal A.I.R 1967 S.C 1501 the Legislature having laid down the law to be applied to the persons or things answering to given description or exhibiting certain common characteristics, but being unable to make a precise and complete classification, leaves it to an administrative authority to make a selective application of the law to persons or things within the defined group while laying the underlying policy and purpose, in accordance with, and in fulfilment of, which the administrative authority is expected to select the persons or things to be brought under the operation of the law. In that case the Supreme Court was considering the vires of S. 4 of the West Bengal Criminal Law Amendment Act. The Act was an Act to provide for the) more speedy trial and for the more effective punishment of certain offences set out in the Schedule annexed to the Act. S. 4 empowered the State Government to allot cases for trial to a Special Judge Patanjali Sastri C.J after making, the observations mentioned above said “It is not, therefore, correct to say that section 4 of the Act offends against Article 14 of the Constitution merely because the Government is not compellable to allot all cases of offences set out in the schedule to Special Judges but is vested with a description in the matter. I therefore hold that section 6 and 7 are not violative of Article 14 of the Constitution.
10. In W.P No. 3303/1967 the only question raised is about the vires of Sections 6 and 7 of the Land Encroachment Act. The Writ Petition has therefore to be dismissed. The petitioners have already filed a suit in the Civil Court and the matter is now stated to be pending in appeal.
11. In W.P No. 3216/1967 certain tribesmen were assigned lands on condition that they would not alienate the lands and that if they alienated the lands the assignment would be cancelled. Such a condition is generally imposed in the case of assignment of land to the members of the scheduled castes and tribes to prevent their exploitation by other persons. Inspite of the condition the assignees alienated the lands to the petitioners where upon the Collector cancelled the assignment and proceedings under Land Encroachment Act were started against the occupants of the land. Questioning the vires of Section 6 and 7 of the Land Encroachment Act the petitioners have filed this application for the issue of a Writ. This Writ Petition also must, therefore be dismissed.
12. In W.P No. 3507/1967 the petitioners have invoked the jurisdiction of the Court to prevent action for eviction being taken against them in respect of certain lands in their possession. The contention based on the vires of the Land Encroachment Act must fail in view of what I have stated above. Sri Venkata Subba Rao, learned counsel for the petitioner further submits that the lands are alleged by the respondents to be communal lands and that therefore the Gram Panchayat alone and not the Revenue Authorities are competent to take action for evicting the petitioners. There is no force in this submission because the definition of property of the Government in Sec. 2 of the Land Encroachment Act is wide enough to cover communal lands though such lands may for the time being vest in the Gram Panchayat under the provisions of the Gram Panchayats Act. This Writ Petition also is, therefore, viable to be dismissed.
13. Before parting with the case I must express my grateful appreciation of the invaluable assistance given to me by Sri C Seetharamiah, learned Counsel who appeared for the Government Pleader in some of the Writ Petitions. In the result all the Writ Petitions are dismissed with costs. Advocate's fee Rs. 100/- in each.
14. Writ petition dismissed.