Patna High Court
Ramzan Mian And Ors. vs Executive Engineer, P.W.D. And Ors. on 1 April, 1969
Equivalent citations: 1969(17)BLJR1010
JUDGMENT S.N.P. Singh, J.
1. These three writ applications have been heard together as a common question of law is involved in them, namely, the vires of the Bihar Public Land Encroachment Act (Act XV of 1956), hereinafter to be called "the Act".
2. The facts of C.W.J.C. Nos. 1121 and 1122 of 1968 are more or less similar. The eighteen petitioners of C. W. J. C. No. 1121 of 1968 have their shops oh the flanks of the Station Road and the Grand Trunk Road (Old) in the vicinity of Dehri-on-Sone in the district of Shahabad. According to the petitioners, the lands over which their shops stand were settlled with them by the Khasmahal. Department of the State of Bihar in the year 1948 in pursuance of the declaration made by the Government in the same year that refugees and other uprooted persons should be accommodated on public lands including the flanks of National Highways for establishing their small scale business. The petitioners allege in the application that ex parte orders under the provisions of the Act were obtained against them in the year 1965 by the Public Works Department of the Government of Bihar, which made a false claim that the lands over which the shops of the petitioners stood had been transferred to them. About a week before the petitioners filed the writ application in this Court, they were informed by the Executive Engineer, Public Works Department, Dehri-on-Sone, Shahabad (respondent no. 1) that such orders had been passed against them and he threatened the petitioners that their shops would be demolished. These petitioners rely on Order No. 21 dated the 5th of April, 1956, passed by the Minister of the Public Works Department of the Government of Bihar to the effect that the settlements of the lands with the petitioners would continue till an alternative accommodation for their shops was made to them.
3. All the forty petitioners of C. W. J. C. No. 4122 of 1968 have their shops on the flanks of the Station Road in the vicinity of Dehri-on-Sone in the district of Shahabad. According to the petitioners, the lands over which they have their shops were settled with them by the District Board in between the year 1952 and the year 1954 in pursuance of the Government's declaration, referred to above. The petitioners allege that in the year 1956 the Public Works Department of the Government of Bihar on the basis of a false claim that the lands over which the shops of the petitioners stood were transferred to them obtained orders for the eviction of the petitioners under the provisions of the Act. The Minister of the Public Works Department of the Government of Bihar by his Order No. 21 dated the 5th of April, 1956, directed that the petitioners' settlement of the lands in question would stand till some alternative accomodation for their shops was given to them. The petitioners thereafter carried on their business without any hindrance in their shops which stand on the lands in question till a week before the filing of the writ application when they were threatened by the Executive Engineer (respondent no. 1) that their shops would be demolished.
4. The Sectional Officer, Public Works Department, Dehri-on-Sone, district Shahabad, has sworn counter-affidavit in both the cases. It is stated that the lands in question in C. W. J. C. No. 1121 of 1968 were transferred to the Public Works Department by the Revenue Department of the Government of Bihar by their Memo 15R/No. 1-G-1GO/40, dated the 17th of April, 1940, for use of Police De-partment (vide Annexure 'A'). As. regards the lands involved in C. W. J. C. No. 1122 of 1968, the Sectional Officer has stated in the counter-affidavit that the lands in question were transferred by the District Board, Shahabad, to the Public Works Department of the Government of Bihar on the 19th of December, 1954. Regarding Order No. 21 dated the 5th of April, 1956, of the Minister of Public Works Department, it has been stated that the Government of Bihar, in the Public Works Department by their Memo No. 2565C dated the 2nd of July, 1956, cancelled the said order. The Sectional Officer has denied the fact that ex parte orders under the provisions of the Act were passed against the petitioners in C. W. J. C. No. 1121 of. 1968, and has asserted that the orders were passed after notice to the persons concerned.
5. Mr. Mojibul Haque, learned Counsel appearing for the petitioners in these two writ applications, raised only one contention, namely, that the Act discriminated between the occupants of public lands inter se and as such it infringed Article 14 of the Constitution.
6. The petitioner of C. W. J. C. No. 1138 of. 1968 has challenged the revisional order dated the 17th of September, 1968, passed by the Commissioner, Patna Division, in Case No. 50 of 1968 (Annexure 1), the appellate order passed by the Additional Collector, Shahabad, dated the 13th of January, 1968, in Land Encroachment Appeal No. 1 of 65-66 (Annexure 4) and the original order dated the 13th of March, 1965, passed by the Deputy Collector in-charge Land Reforms, Mohania, in Land Encroachment Case No. 155 of 1963-64 (Annexure 5). In the application the petitioner alleges that he is one of the ex-intermediaries of village Mathani and he was in possession of his bakasht lands including plot no. 490 appertaining to Khata No. 2 in Touzi No. 2134/4. After his estate vested in the State of Bihar, the bakasht lands including the land" of plot no. 490 became his occupancy lands within the meaning of Section 6 of the Bihar Land Reforms Act. According to the petitioners, in June 1958 the State Govt. acquired about 24 acres of land of one Tarkeshwar Tiwari and in January 1963 the local authorities of the State Government fenced the acquired land by making encroachment over plot no. 489, which is a Gair-mazrua-Am land. They began to pass through the land of the petitioner and stopped the free flow of water through plot no. 471, which is a Nala. Thereupon Title Suit No. 133 of 1963 was filed in the Civil Court at Sasaram and the same is still pending. In the application the petitioner has further alleged that he was greatly harassed by the officers of the Anchal Office, Mohania arid a proceeding under Section 107 of the Code of Criminal Procedure cropped up between the parties and ultimately the matter came up to the High Court. By the order of the High Court, the proceeding under Section 107 of the Code of Criminal Procedure was re-started against the Anchal Adhikari, the Project Officer and others. The petitioner alleges that the Anchal Adhi-kari-cum-Block Development Officer, Mohania, and the Project Officer in retaliation submitted a false report on the 17th of December, 1963, to the Deputy Collector in-charge Land Reforms, Bhabua, alleging that the petitioner has encroached upon plot no. 489 to the extent of 0.37 acre and persuaded the Deputy Collector in-charge Land Reforms to initiate a proceeding under the provisions of the Act. Accordingly Land Acquisition Case No. 155 of 1963-64 was initiated against the. petitioner on the 17th of December, 1963.
7. The petitioner has further alleged that although the advocate commissioner measured the land twice in presence of the Government Engineer and the Amin and found no encroachment, the Anchal Adhikari and others got a collusive report submitted by the Government Amin to the effect that the petitioner made an encroachment over an area of 0.37 acre of plot no. 489. It appears that in the proceeding evidence was adduced on behalf of both the parties "and the Deputy Collector in-charge Land Reforms by the impugned order (Annexure 5) found the -encroachment to the extent of 0.37 acre and directed the petitioner to. vacate the encroached portion of the land. The petitioner then preferred an appeal which was dismissed by the order of the Additional Collector, Shahabad, dated the 13th of January, 1968 (Annexure 4), The petitioner then filed an application in revision before the Commissioner, Patna Division, which was rejected by the learned Commissioner by his order dated the 17th of September, 1968 (Annexure 1).
8. Learned Counsel appearing for the petitioner challenged the constitutionality of the Act and also raised the following contentions, namely, (1) that the order of eviction of the petitioner is bad in law because there is no finding as to when the petitioner made the encroachment; (2) that as Title suit no. 133 of 1965 is still pending, the proceeding under the Act should not have been initiated; (3) that in view of the report of the pleader commissioner that there was no encroachment, the finding that the petitioner has made the encroachment is perverse and (4) that the Deputy Collector in-charge Land Reforms had no power to initiate and decide the proceeding under the provisions of the Act.
9. There does not appear to be any substance in any of the four contention raised by learned Counsel appearing for the petitioner. It appears from the appellate order of the Additional Collector, Shahabad, that the Circle Inspector Mohania, the Amin of Mohania Anchal and the Anchal Adhikari, Mohania, all: gave evidence to the effect that open encroachment was made by the petitioner on the plot in question in the month of December, 1963, which was accepted by the Deputy Collector in-charge Land Reforms and the Additional Collector, Shahabad. Thus, there is a finding to the effect that the petitioner made the encroachment in the year 1963. In Title suit No. 133 of 1963 filed by the petitioner and others the question whether the petitioner has made any encroachment over plot no. 489 is not involved and as such the filing of the title suit was not a bar to the initiation of the proceeding under the provisions of the Act in respect of the alleged encroachment made by the petitioner. It was for the Deputy Collector in-charge Land Reforms to consider whether the report of the pleader commissioner or that of the Government Amin was reliable. The order of the Deputy Collector in-charge Land Reforms cannot be held to be bad in law simply because he has relied upon the respect , of the Government Amin and rejected that of the pleader commissioner. It appears that before the Commissioner also the point that the Deputy Collector in-charge Land Reforms had no jurisdiction to initiate and decide the proceeding under the Act was taken. The learned Commissioner in paragraph 8 of his order has stated that the Deputy Collector in-charge Land Reforms were empowered on the 18th of July, 1959, to deal with the cases under the Act. In the application the petitioner has not alleged that what the Commissioner has stated in his order is not correct. He has simply referred to a notification of the year 1957 to show that the Deputy Collector in-charge Land Reforms has not been empowered to initiate a proceeding under the provisions of the Act. It is, therefore, not possible to hold that the Deputy Collector in-charge Land Reforms, Bhabua, had no jurisdiction initiate and decide the proceeding against the petitioner under the Act. For the reasons stated above, all the four contentions raised on behalf of the petitioner fail.
10. In order to appreciate the main contention, which has been raised in the three writ applications, it is necessary to refer to the relevant provisions of the Act. The Act was passed in the year 1956 and the assent of the Governor was published in the Bihar Gazette of the 1st August 1956. The word "collector" is defined in Section 2(1) to mean the Collector of the district and includes any officer empowered by the State Government to discharge all or any of the functions of a Collector under the Act. "Public land", as defined in Section 2(3), "means any land vested in the Union of India or the State of Bihar, or in any local authority, Public under-taking, educational institution recognised by the Government or by any University established under any law for the time being in force, railway company or Gram Panchayat established under Section 3 of the Bihar Panchayat Raj Act, 1947 (Bihar Act VII of 1948), and includes any land over which the public or the community has got a right of user such as right of way, burials, cremation, pasturage or irrigation." The expression "public undertaking" has been explained to mean "(1) any industrial undertaking owned by a corporation constituted under any law for the time being in force; or (ii) any industrial undertaking in which the Government owns more than fifty per centum of the share capital thereof; or (iii) any other industrial undertaking which is declared to be a public undertaking by the State Government, by notification in the official Gazette.
11. Section 3 of the Act is an important section in as much as it empowers the Collector to initiate proceedings under the Act and to issue notice to show cause against the order for removal of encroachment, Section 3 reads as follows:
3. Initiation of proceedings- (1) If it appears to the Collector from an application made by any person or upon information received from any source that any person has made, or is responsible for the continuance of, any encroachment upon any public land, the Collector may cause to be served upon such person a notice in the prescribed form requiring him to appear and show cause on a date to be specified in the notice why such encroachment shall not be removed:
Provided that such date, shall not be less than thirty days--from the date of the service of the notice. (2) The notice shall be served by registered post with acknowledgment due and in such other manner as may be prescribed:
Provided that, if the person who made, or is responsible for the continuance of, the encroachment is not known or cannot be found, the Collector may cause the notice to be affixed in the neighbourhood of the alleged encroachment requiring any person interested in the same to show cause by the date specified in the notice why the encroachment shall not be removed, and it shall not be necessary to name any person to such notice.
12. As provided under Section 4, "person on whom notice is served under Section 3 or any person interested in the encroachment may appear before the Collector and raise any defence which he could have raised if he were a defendant in a properly framed suit for the removal of the encroachment".
13. Section 4 provides, inter alia, that the Collector shall hear the person on whom the notice under Section 3 has been served or any other person who may be interested either in the encroachment or in the removal thereof and take such other evidence as may be adduced in that behalf.
14. Section 6(1) empowers the Collector to pass the appropriate order after hearing the person concerned and taking other evidence, if any, under Section 5 and after making such further enquiry as he deems necessary. As provided under Section 6(1), the Collector may, as the circumstances of the case requires, -
(a) either drop the proceedings; or
(b) order that the person found to have made, or to have been responsible for the continuance of, the encroachment shall be liable to pay damages for the use and occupation, for the whole period of occupation, and rent for future occupation of the areas occupied, such damages and rent being calculated on the basis of the average rate of rent payable for land of a similar description and similar advantages in the vicinity, or, where there is no rent payable for such land, on the basis of rent as the Collector deem fair and equitable in the circumstances of the case:
Provided that no damages shall be payable in respect of any period of occupation for more than twelve years before the encroachment of this Act; or
(c) direct the removal of the encroachment and make such order as to forfeiture to or disposal or crops, or other things standing on the public land encroached upon, as the justice of the case may require:
Provided that no action shall be taken under this clause if the encroachment has been made before the I0th October, 1955, by a landless person who had no homestead on the date of such encroachment and the encroachment does not exceed an area of one-eighth of an acre.
* * Sub-section (2) of Section 6 provides that "where an order has been passed under Clause (c) of Sub-section (1) for removal of the encroachment the Collector shall give notice of the same to the person against whom such order is made and shall further require him to perform the act directed by the order within a period specified in the notice and inform that, in case of disobedience, he shall be liable to the penally provided by Section 188 of the Indian Penal Code.
15. Section 7 empowers the Collector to get the encroachment removed if the person fails to comply with his order under Clause (c) of Sub-section (1) of Section 6 by the date fixed under Sub-section (2) of that section or within such further time as the Collector may allow and to recover costs of the removal of such encroachment from such person. As provided under Section 8, all proceedings under the Act are to be heard and disposed of in a summary manner. Section 10 empowers the Collector to issue commission, to hold local inspection, to summon and enforce the attendance of witnesses and to compel the production of documents as a Civil Court under the Code of Civil Procedure. Section 11 relates to appeal from the order of the Collector passed under Section 6, 7 or 8 of the Act. The power of revision has been conferred on the Commissioner and the Board of Revenue under Section 12. There is also a provision for the review of the order under Section 13 by the Officer who made the order or by his successor-in-office on the ground of any mistake or error in the course of the proceedings. Section 16 confers finality to the order passed under the Act and it bars a suit or other legal proceedings in any Court in respect of any order passed under the Act. Section 19 is an important section and it reads as follows:
19. Application of other laws not barred.-The provisions of this Act for the removal of any encroachment on a public land shall be in addition to, and not in derogation of, any remedy available under any other law for the time being in force for the removal of such encroachment.
Section 19 of the Act, which has been quoted above, makes it abundantly clear that the provisions in the Act for the removal of an encroachment on a public land are not substitutive but supplemental. The Government can institute a suit as well for removal of all encroachment on a "public land", as defined in Section 2(3) of the Act.
16. It was contended on behalf of the petitioners of the three writ applications that the Act confers an arbitrary power on the Collector to discriminate between the persons of the same class inter se by providing two alternative remedies and giving unguided discretion to the Collector to resort to one or the other. In support of the above contention reliance was placed on the decision of the Supreme Court in the case of Northern India Caterars (Private) Ltd. and Anr. v. State of Punjab and Anr. . In that case the validity of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act (31 of 1959) was challenged. It was held by the majority judgment that persons in unauthorised occupation of public premises constitute a class and there were two remedies open to the Government for eviction of persons in unauthorised occupation of public premises, one being the normal procedure by way of a suit and the other by the more drastic procedure under Section 5 of the Punjab Act. It was further held that Section 5 of the Punjab Act, did not lay down any guiding principle or policy by which the Collector could decide as to in which cases he should follow the one or the other procedure and consequently Section 5 violated the right of equality guaranteed under Article 14 of the Constitution. Shelat, J., who delivered the majority judgment, observed as follows:
Assuming that persons in occupation of Govrenment 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 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 procedure, 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 preceeded 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 Section 5 is obviously more drastic and prejudicial than the one under the code of Civil Procedure 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 Section 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 under Section 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.
I may state here that two of the learned Judges of the Supreme Court differed with the majority view as expressed by Shelat, J. in the observation quoted above and held that an unauthorised occupant has no constitutional right to. dictate that the Government should not have a choice of proceedings. Bachawat, J., who gave the minority judgment, further observed as follows:
Art. 14 does not require a fanatical approach to the problem of equality before the law. It permits a free choice of remedies for the redress of grievances. The impugned Act makes no subject discrimination. It promotes public welfare and is a beneficient measure of legislation. If we strike down the Act, we shall be giving a free charter to unauthorised occupants and to officers squatting on public premises after they have vacated their offices to continue in occupation for an indefinite time until they are evicted by dilatory procedure of a title suit. The Act does not suffer from any blemish and we uphold it.
17. The learned Advocate General appearing for the State of Bihar contended that the provisions of the Bihar Act are not as drastic as the provisions of the Punjab Act and the Act provided a guide line as to in what class of cases the Collector will resort to the speedy remedy with regard to the removal of encroachment under the provisions of the Act. On these two grounds he sought to distinguish the Supreme Court case, referred to above. According to the learned Advocate General, there is no substantial prejudice to the person concerned by the adoption of the special remedy as provided under the Act because under Section 4 of the Act the person concerned may raise any defence which he could have raised if he were a defendant in a properly framed suit for the removal of the encroachment and under Section 5 of the Act he can adduce any evidence in that behalf. As regards the guiding principle the learned Advocate General submitted that the provisions of the Act are intended to be applied to such cases only where speedy removal of the encroachment is called for.
18. As the Punjab Act was not made available to us at the time of hearing of these applications, I am not in a position to hold affirmatively that the provisions of the Bihar Act are not as drastic as the provisions of the Punjab Act. Assuming that the provisions of the Bihar Act are less drastic than the provisions of the Punjab Act inasmuch as the scope of the defence which the person concerned may take under Section 4 of the Act is co-extensive with the defence which he could have taken in a civil suit it is difficult to hold that the procedure under the Act is not drastic and prejudicial as compared to the procedure under the Code of Civil Procedure where the person concerned gets the benefit of a trial by an ordinary Civil Court presided by a Judicial Officer. Provisions for appeal and revision by the aggrieved person have no doubt been made to the Act but such appeal or revision is to be heard by other Executive Officers. A person aggrieved by the decision in a suit filed in a Civil Court has the right of appeal and revision before higher Judicial Officers and if he prefers such an appeal or revision he expects full justice from the Court. A decision passed by the Executive Officer, either original, appellate or revisional, cannot be equated with the decision given by an ordinary Court either original, appellate or revisional. The procedure, therefore, under the Act must be held to be more drastic and prejudicial than the one under the Code of Civil Procedure. For the foregoing reasons it is not possible to distinguish the Supreme Court case on the first ground urged by the learned Advocate General.
19. The preamble of the impugned Act shows that it was passed in order to make better provision for removal and prevention of encroachment on public land. There is no indication in the preamble that the provisions of the Act are intended to be applied to such cases only where speedy removal of the encroachment on public land is called for, Section 3 of the Act, which empowers the Collector to initiate proceedings under the Act, and Section 6 of the Act, which empowers the Collector to pass orders for the removal of encroachment on public land, give no guidance to him as to in what class of cases he would resort to the proceedings under the Act. The second ground on which the learned Advocate General sought to distinguish the Supreme Court case, therefore, appears to be without substance.
20. In the case of Jagdeo Gope v. The State of Bihar 1965 B.L.J.R. 744 a Division Bench of this Court held that the words "in respect of any order passed under this Act" occurring in Section 16 of the Act refer to valid orders passed under the Act. The jurisdiction of revenue authorities, therefore, to proceed under the Act arises only if a land in question is a public land as defined in Section 2(3) of the Act. It was further held in that case that if the aggrieved party can satisfy the Civil Court that it is not public land but is private property, the jurisdiction of the revenue authorities to continue the proceedings under the Act disappears and any order passed would be null and void. Such an order will not be an order passed under the Act within the meaning of Section 16 and the bar to the jurisdiction of. the civil court will not apply. The learned Advocate General relying on this decision submitted that there is no prejudice to the person concerned because he can challenge the order passed under the Act in a civil court on the ground that the land in question is not a public land as defined in Section 2(3) of the Act but a private property. As it appears from the judgment of the Supreme Court and that of the Punjab High Court in the case of The Northern India Caterers Private Ltd. v. The Slate of Punjab and Anr. A.I.R. 1963 Punjab 290, there is an analogous provision in Section 10 of the Punjab Act and it conferred finality to every order made by the Collector under that Act and such an order was not liable to be called in question in any original suit, application or execution proceedings. In the majority judgment of the Supreme Court the provision of Section 10 of the Punjab Act has been noticed but it has not been held that there is -no substantial prejudice to the aggrieved party because he can challenge the order passed under that Act in a civil court on the ground that the land in question is not a public premises within the meaning of Section 3 of that Act but a private property. It is, therefore, not possible to accept the above contention of the learned Advocate General.
21. In the case of Bhartiya Hotel and Ors. v. Union of India and Anr. , the vires of the Public Premises (Eviction of Unauthorised Occupants) Act (32 of 1958) was challenged. A Division Bench of this Court distinguished the Supreme Court case, referred to above, namely on the ground that there is a provision for appeal before the District Judge under Section 9 of that Act against the order passed by the Estate Officer and held that the provisions of the Act are not violative of Article 14 of the Constitution. In that case it was observed as follows:
Though the rules confer power on the Estate Officer to record a mere summary of the evidence, it is always open to the party to require him to record evidence verbatim in special circumstances. Even if the Estate Officer rejects such a prayer, the District Judge, as appellate authority, can cure the defect. Thus, by requiring a speedy hearing of the dispute by the Estate Officer and providing an appeal to a senior judicial officer like a District Judge and making adequate provisions for fair hearing for all parties, the Act confers a distinct benefit, and cannot be said to be prejudicial to the occupants.
As there is no provision for appeal before the District Judge against the order of the Collector passed under Section 6 of the Act, it is not possible to distinguish the Supreme Court case on the basis of the decision in Bhartiya Hotel's case referred to above.
22. In course of his argument, the learned Advocate General referred to the cases of Suraj Mall Mohta & Co. v. A.V. Vishvanath Sastri and Anr. , Purshotlam Govindji Halm v. Shri B.M. Dassi and Ors. , Collector of Malabar and Anr. v. Erimmal Ebrahim Hajee , Manna Lal and Anr. v. Collector of Jhalawar and Ors. , Nav Rattanmal and Ors. v. State of Rajasthan and Lachhman Dass v. State of Punjab . All the aforesaid cases have been noticed in the minority judgment of the Supreme Court. It was held in the cases other than the ease reported in5 that the Revenue Recovery Acts and other Acts creating special tribunals and procedure for the expeditious recovery of revenue and State sues are in the public interest and they do not violate Article 14 of the Constitution. The case of Suraj Mall Mohta & Co. v. A.V. Visvanath Sastri and Anr. was considered both in the majority judgment as well as in the minority judgment. As the decisions referred to by the learned Advocate General have been considered by the Supreme Court and as those decisions are not directly on the point. I am of the view that on the basis of those decisions it is not possible to distinguish the Supreme Court case by which Section 5 of the Punjab Act has been declared to be void on the ground that it violated Article 14 of the Constitution.
23. Having considered all the contentions raised on behalf of the State by the learned Advocate General, I am of the opinion that it is not possible to distinguish the Supreme Court case. In view of the majority decision of the Supreme Court case, therefore, which is binding on us. I hold that Section 6 of the Act, which empowers the Collector to pass an order for the removal of encroachment on the public land as defined in Section 2(3) of the Act, is violative of the provisions of Article 14 of the Constitution and, therefore, it is void. Consequently the three applications must succeed and they are accordingly allowed.
24. In C.W.J.C. Nos. 1121 and 1122 of 1968 I direct that a writ of mandamus should issue against the respondents directing them not to interfere with the possession of the petitioners in respect of the land on which their shops stand. In C.W.J.C. No. 1138 I quash Annexures 1, 4 and 5 by a writ of certiorari. There will be no order as regards costs in any of the applications.
Shambhu Prasad Singh, J.
25. I agree that Section 6 of the Act is violative of the provisions of Article 14 of the Constitution and, therefore, void and that the applications be allowed without costs and writs, as directed in paragraph 14 of the judgment of my learned brother S.N.P. Singh, J., be issued. However, J would like to add a few observations of my own. There is no merit in the contention of the learned Advocate General that the Act provides a guide line that action under Section 6 of the Act should be taken by the Collector only in cases where speedy removal of the encroachment is called for is evident from the provisions of Section 6(1)(b) itself. Section 6(1)(b) empowers the Collector to allow a person responsible for encroachment to continue in possession of the encroachment made by him on the payment of damage and rent. This undoubtedly shows that the speedy removal of the encroachment was not the sole purpose behind the enactment of the Act. Therefore, it cannot be held, as contended by the learned Advocate General, that the provisions of the Act are intended to be applied to such cases only where speedy removal of the encroachment is called for in view of the fact that C. W. J. C. No. 1138 of 1968 also succeeds on the ground that Section 6 of the Act is ultra vires, I do not consider it necessary to express any opinion on the question raised in that case whether the Deputy Collector in-charge Land Reforms, had jurisdiction to initiate and decide the proceeding under the Act. At the time of the hearing of the case, we called upon learned Counsel for the State to produce the necessary notification before us dated the 18th July, 1959, on which date, according to the Commissioner, Deputy Collectors in-charge Land Reforms were empowered. He was not able to produce any such notification and in absence of the notification I am not inclined to hold categorically that the Deputy Collector in-charge Land Reforms had the power to initiate and decide the proceeding under the Act merely because of a statement to that effect in the order of the Commissioner.