Bandhana Goala vs Assam Board of Revenue and Others

P.K. Goswami, C.J.—This application under Article 226 of the Constitution of India is directed against an order in appeal of the Assam Board of Revenue whereby it affirmed the order of eviction of 19th November. 1965 passed by the Additional Deputy Commissioner Tezpur, under Rule 18(3) of the Settlement Rules made u/s 12 of the Assam Land and Revenue Regulation 1886, hereinafter called the Regulation.

The Petitioner has been in possession of 12 bighas of land held originally by Buroi Tea Company under thirty years N.L.R. grant. The said company relinquished about 1690 bighas of land including the Petitioner''s land in 1959 and the land vested in the State Government. The Petitioner along with other occupants numbering about 225 persons applied to the Deputy Commissioner for settlement of the land in their favour in terms of their occupation. The Petitioner applied for settlement of the 12 bighas of land in his occupation. While the application for settlement was pending, the Additional Deputy Commissioner started an Eviction Case No. 253 of 1965-66 and passed an order on 19th November 1965 for eviction of the Petitioner as well as other occupants of the relinquished grant land. The Petitioner moved the Deputy Commissioner for staying eviction which was at first granted to be thereafter vacated on 28th December 1965. The Petitioner appealed to the Assam Board of Revenue without success and hence this writ application.

The Petitioner submits that Rule 18 of the Settlement Rules is ultra vires Article 14 of the Constitution of India as it contains the germ of discrimination amongst trespassers inter se. Since the vires of the rule was challenged, we issued notice to the learned Advocate General, Assam, who has made his submission contesting the plea.

It is not contended that Rule 18 is ultra vires Section 12 of the Regulation which empowers the State Government to make rules to provide for the ejectment of any person who has entered into unauthorised occupation of land over which no person has the rights of a proprietor, land-holder or settlement-holder under the Regulation. It is only contended that the rule is violative of Article 14 violating the principle of equality before the law or the equal protection of the law. This submission is sought to be established by relying upon the decision of the Supreme Court in Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, Northern India Caterers (Private) Ltd. v. State of Punjab wherein by a majority decision (Hidayatullah, J. as he then was, and Bachawat J. contra) the Court struck down Section 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959, as the same was held to be discriminatory and violative of Article 14 of the Constitution.

Before we deal with the submission, we may read Rule 18:

(1) Subject as hereinafter provided, the Deputy Commissioner may eject any person from land over which no person has acquired the rights of a proprietor, land-holder or settlement holder.

(2) When such person has entered into possession of land that has previously been reserved for roads or road-side lands or for the grazing of village cattle or for other public purposes, or has entered into possession of land from which he has been excluded by general or special orders and when further, there is no bona fide claim of right involved, he may be ejected or ordered to vacate the land forthwith, and the Deputy Commissioner may sell, confiscate or destroy any crop raised, or any building or other construction erected, without authority on the land.

3(a) In all other cases ejectment shall be preceded by publication of a notice in the manner prescribed below requiring the occupant generally to vacate the land specified in the notice within 15 days of the date of publication of the notice on the land concerned or in a prominent place in the vicinity thereof, and to remove any buildings, houses, fences or crops etc., which may have been raised on such land, provided that the Deputy Commissioner may give time to any particular occupant to harvest the crops, if any, growing on such land. Any buildings, houses, fences, crops, etc., which have not been removed in accordance with such notice shall be confiscated to the Government.

3(b) The notice referred to in Clause (a) Sub-rule (3) above shall be published by affixing a copy thereof in the Notice Board of the office of the Deputy Commissioner or the Sub-divisional Officer, as the case may be, and also in the Notice Board of the office of the Sub-Deputy Collector within whose jurisdiction the land is situated. A notice shall also be published by affixing a copy thereof on the land concerned or in a prominent place in the vicinity thereof.

(4) Any person or persons required by notice to vacate under the last preceding sub-rule the land which the person or persons occupy, shall comply with the requisition within the time prescribed in the notice, running from the date of its service.

(5) Any person or person''s intentionally disobeying an order or requisition to vacate under Sub-rule (2) or (3) shall be liable to a penalty which may extend to two hundred rupees, and, in case such disobedience is continued to a further penalty which may extend to fifty rupees for each day during which such breach continues.

5(a) Any person who having been once evicted under Sub-rule (2) or Sub-rule (3) from any land encroaches on any land over which no person has acquired the right of a proprietor, land-holder, or settlement-holder, shall on conviction before a Magistrate, be liable to imprisonment which may extend to six months or fine which may extend to one thousand rupees or both.

(6) xx x x.

This rule deals with eviction of encroachers on Government land in a summary manner. The Government''s right to evict trespassers by recourse to civil court is not barred under the rule, nor under any other provisions in the Regulation. That being the position, there are two alternative remedies open and available to the Government to deal with trespassers, the first one under Rule 18, and secondly, when Government so chooses to do, by filing a suit in the Civil Court. There is no guidance in the rule nor under the provisions of the Regulation as to under what circumstances the first remedy will be invoked and the second remedy will not be. That being the position, two remedies are open to the Government and the Government may pick and choose either without any fetter under the law. The provision of eviction under Rule 18 is therefore clearly discriminatory as falling under the same class of encroachers upon Government land, some may be evicted summarily while others may be evicted by following the ordinary course of law in the civil court where the Defendants will have ample opportunity to defend their claims whatever they may be.

In the Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, the Supreme Court was required to consider an identical provision of evicting unauthorised occupants from public premises, and the Supreme Court held as follows:

Assuming that persons in occupation of Government properties and premises form 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 u/s 5 is obviously more drastic and prejudicial than the one under the CPC 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 u/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 Section 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 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 u/s 5, that Section has lent, itself open to the charge of discrimination and as being violative of Article 14. In this view Section 5, must be declared to be void.

It appears that in the Supreme Court, an argument was advanced to the effect that the Government in practice is not likely to institute a suit in a case where it can seek quick relief under the Act. This argument prevailed with the minority but was not accepted by the majority. Bachawat, J. speaking for the minority observed:

The argument based upon the option of the Government to file a suit is unreal, because in practice the Government is not likely to institute a suit in a case where it can seek relief under the Act.

The Supreme Court held that since there is no express bar under the law for the Government to institute suit for eviction in the civil court, the provision was discriminatory. The ratio decidendi of the above decision governs the present case. While no express bar under the law could be pointed out by the learned Advocate General prohibiting the Government from filing a suit for eviction of encroachers, we drew his attention to Sections 165 and 167 of the Regulation under Chapter X thereof. By Section 165(1) in the case of unsettled land any person who without valid authority has encroached upon or occupied it shall be liable to ejectment forthwith and by Section 167. no civil court shall exercise jurisdiction in any of the matters covered by this Chapter. It is admitted by the learned Advocate General that this chapter deals with backward classes of people and the areas notified by the State Government under Sections 160(2) and 161 of the Regulation respectively. The bar u/s 167, therefore, it is rightly conceded, is not a general bar.

From the above provision, introducing a bar to the civil court exercising jurisdiction in an eviction matter under this chapter. Government is expressly debarred from invoking the remedy of instituting a civil suit for eviction in such a case covered by the Chapter. The Legislature, therefore, takes note of the availability of the two remedies to the Government in effecting eviction of encroachers. That being the legal position, we have an additional reason to hold that Rule 18 is discriminatory and void as the Legislature has not a put any bar in the way of the Government in the case of general eviction of encroachers under Rule 18 to take recourse to ordinary civil court for eviction. The evil element of picking and choosing remains with the Government in absence of a clear bar.

The learned Advocate General strenuously contended that Government has no twin remedies in this case. The Deputy Commissioner has the sole power to evict under Rule 18 and Government cannot interfere with the power of the Deputy Commissioner. Besides the Government has only one remedy to seek eviction by suit. The Deputy Commissioner has no such remedy. It is thus contended that each authority, the Deputy Commissioner or the Government, has only one remedy at a time and therefore no question of picking and choosing arises to attract Article 14 of the Constitution. It is difficult to appreciate the argument since the Deputy Commissioner is an agent of the Government and in no case the Deputy Commissioner could file a suit in his own name. The suit has to be instituted in the name of the State. Besides, Rule 1(1) of the Settlement Rules goes counter to the argument as that rule, inserted on 18th May 1967, reads:

All powers of the Deputy Commissioner under these rules shall be exercised subject to any general or special orders issued from time to time by the State Government.

Rule 1 occurs in the same section relating to "General Provisions" under Chapter I of Settlement Rules, where Rule 18 also appears. Even in the Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, supra dealing with an identical provision, the Supreme Court was taking note of the two alternative remedies to Government, although the discretion was given to the Collector to take action u/s 5 of the Punjab Act. Even the minority judgment did accept the position that the Government had the option of proceeding against the unauthorised occupier either by a suit or under the Act (Paragraph. 27). The argument of the learned Advocate General is, therefore, without substance.

No other argument was advanced by the learned Advocate General.

An identical question was raised before a Special Bench of this Court in Civil Ref. Nos. 11(M) to 27(M) of 1968 disposed of on 21-9-1970 (Assam and Nagaland). Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 (Central Act XXXII of 1958) was challenged before the Special Bench as being violative of Article 14 of the Constitution. The provisions of Sections 4 and 5 of the Punjab Act are substantially similar to those of Sections 4 and 5 of Central Act except for the fact that ''Collector'' in the Punjab Act was substituted by the ''Estate Officer'' and an appeal in the Act lies to a judicial officer whereas under the Punjab Act it lay to the Commissioner of Division, an executive officer. The Special Bench following the decision of the Supreme Court in Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, supra, held that Section 5 of the Central Act is discriminatory and violative of Article 14 of the Constitution.

We should however observe that after the decision of the Supreme Court in N.I. Caterers'' case AIR 1987 SC 1581 a new Section 10E was inserted in the Central Act whereby the civil court''s jurisdiction to entertain suit or proceeding in respect of eviction of any person, who is in unauthorised occupation of public premises, was expressly barred.

In the result, the application is allowed with costs. Advocate''s Fee, Rs. 100/ -. The impugned orders are quashed. We hold that Rule 18 of the Settlement Rules is discriminatory and void being violative of Article 14 of the Constitution. A mandamus shall issue to the Deputy Commissioner not to enforce the provisions of Rule 18 of the Settlement Rules for evicting the Petitioner.

M.C. Pathak, J.

I agree.