Patna High Court
Surya Narain Choudhary vs Darbhanga District Board on 1 July, 1977
Equivalent citations: 1977(25)BLJR335
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1. This is an appeal on behalf of the defendant. The plaintiff-respondent instituted Title Suit No. 213 of 1965 in the Court of First Munsif, Samastipur, for declaration of its title over the subject-matter in dispute and for a decree for removal of encroachment alleged to have been made by the appellant over the public land.
2. The case of the plaintiff-respondent was that in village Bailipur, prasuram, in the district of Darbhanga, a District Board road runs from east to west over survey plot Nos. 1602 and 1677. Even in the survey Khaitan, the aforesaid plots have been recorded as Gair Mazrua Aam Rasta. According to the plaintiff, the defendant-appellant, in the month of July, 1957, illegally encroached upon a portion of the said road from north by constructing a house. The total land which was encroached upon is alleged to be 1 katha 17 dhoors details whereof have been given at the foot of the plaint. In the plaint, It was further stated that, in the year I960, a proceeding under the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as 'the Act') was instituted in respect of the said encroachment giving rise to Land Encroachment case No. 46 of 1960-61. The said proceeding, however, was drooped by the Land Reforms Deputy Collector, Satnastipur on 22.1.1963, saying that the encroachment was an old one. Thereafter, on 16.12.1965, the aforesaid title suit was filed by the plaintiff for the reliefs mentioned above.
3. The appellant filed his written statement and one of the objections taken on his behalf was that the suit was not maintainable in view of Section 16 of the Act which places a bar on the jurisdiction of the Civil Court to question the legality or otherwise of the orders passed by the authorities concerned under the provisions of the Act.
4. The learned Munsif heard the parties on the preliminary issue regarding the maintainability of the suit. By his judgment dated 7.5.1968, the learned Munsif came to the conclusion that the suit was not maintainable in view of Section 16 of the Land Encroachment Act, and, on that finding, he dismissed the suit, Being aggrieved by the said judgment and decree, the plaintiff filed an appeal which was numbered as Title Appeal No. 37 of 1968 and heard by the Additional subordinate Judge, Samastipur, who by his judgment dated 22.12.1970, allowed the appeal, set aside the judgment of the learned Munsif and directed him to dispose of the suit on merit. The learned Subordinate Judge allowed the appeal taking the view that Section 6 of the Act has been held to be ultra vires and any order passed under the provisions of the Act will be deemed to be void and Section 6 cannot bar the jurisdiction of the Civil Court to question such illegal and void orders. The present appeal, which has been filed on behalf of the defendant is directed against this judgment of the learned Additional Subordinate judge.
5. Learned Counsel appearing for the appellant has submitted that the judgment of the learned Additional Subordinate Judge is primarily based on the view that Section 6 of the Land Encroachment Act has been held to be ultra vires by this Court in the case of Ramzan Mian v. Executive Engineer P.W.D. 1969 Pat, L.J.R. 241. But that Bench decision of this Court itself is no more a good' law in view of a later pronouncement of the Supreme Court in the case of M. Chhaganlal v. Greater Bombay Municipality A.I.R. S.C. 2009.
6. In order to appreciate the contentions raised on behalf of the appellant, certain provisions of the Act and their legislative history have to be referred to, Section 6(1) of the Act empowers the Collector to pass the appropriate order after hearing the person concerned and taking other evidence if any, under Section 5 of the Act. The Collector may, as the circumstances of the case require.
(a) either drop the proceeding; 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 advantage in the vicinity, or, Where there is no rent payable for such land, on the basis of such rent as the Collector deem fit 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 commencement of this Act: or
(c) direct the removal of the encroachment and make such order as to forfeiture or disposal of 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 10th 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 him that, in case of disobedience he shall be liable to the penalty provided by Section 188 of the Indian Penal Code".
Section 19, as it originally stood was as follows:
19. Application of other laws not barred. The provisions of this Act for the removal of any encroachment on 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.
In view of Section 19 of the Act, a question arose as to whether proceeding for removal of encroachment could be taken under the provisions of the Act as well as under the general law by instituting suit for the said relief. In this connection a grievance was made that the aforesaid Section 19 gave a wide discretion to the authorities concerned either to proceed under the provisions of the Act or to file a suit under the general law for the removal of the encroachment. This, in the very nature of things, was discriminatory, Several writ applications were filed before this Court. Some of such writ applications were heard by a Bench of this Court and in the case of Ramzan Mian v. Executive Engineer P.W.D. (supra), it was held that the provision of Section 6 of the Act was hit by Article 14 of the Constitution, because the procedure under the Act was drastic and prejudicial as compared to the procedure under the Code of Civil Procedure. It was also observed that Section 19 of the Act made it abundantly clear that the provisions of the Act for removal of an encroachment on public land were not substantive but supplemental, the Government could institute a suit as well and take steps for removal of an encroachment under the provisions of the Act. While arriving at this conclusion, reliance was placed on the judgment of the Supreme Court in the case of N.I. Cateres Ltd. v. State of Punjab . In the aforesaid case, the Supreme Court had to examine the validity of certain provisions of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act. Section 5 of that Punjab Act was held to be discriminatory, because it gave scope for differential treatment to persons similarly situated. The Supreme Court was of the view that whenever 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 because it is left to the will of the authority to exercise the more prejudicial against same and not against the rest.
7. In view of the aforesaid judgment of the Supreme Court, this Court in Ramzan Mian's Case (supra) held that Section 6 of the Act was violative of the provisions of Article 14 of the Constitution and, therefore, it was void. I have already pointed out that the Court of appeal below basing reliance on the aforesaid judgment of this Court has held the suit to be maintainable. If the position had remained at that, there was no occasion to interfere with the judgment of the Court of appeal below. But the difficulty arises because later, the pronouncement of the Supreme Court in the case of N.I. Catere Ltd. v. State of Pujab (supra) was examined by a Larger Berch of the Supreme Court in the case of M. Chhagganlal v. Greater Bombay Municipality (supra). From majority judgment, it appears that the decision (supra) was not accepted. In that case, it was observed:
It is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account. That is not one of those cases where discrimination is writ large on the face of the statute. Discrimination may be possible but is very improbable. And if there is discrimination in actual practice this Court is not powerless. Further-more, the fact that the Legislature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorised occupants of Government and Corporation property and provided a special speedy procedure therefor is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We, therefore, find ourselves unable to agree, with the majority in the Northern India Caterers' case (1957) 3 S.C.R. 399 : A.I.R. 1957 S.C. 1591. The result is that now it is not possible to bold that Section 6 of the Act is ultra vires. Apart from that, by Bihar Act 3 of 1972, Section 19 of the Act which said that the provisions of the Act for removal of an encroachment on public land, where not substantive but supplemental to any other law, for the time being in force, has also been deleted. Now, Section 19 reads as follows:
19. No suit shall lie in respect of any encroachment upon public land.
In view of this position, in my opinion, Section 16 of the Act, which prescribes that no suit or legal proceeding shall lie in any Court in respect of any order passed under that Act, will have now full play. The same has been reiterated under new Section 19 of the Act saying that no suit shall lie in respect of any encroachment upon public land. The result will be that the plaintiff-respondent could not have challenged the validity of the order passed on 22.1.1963 in the land encroachment case before the Civil Court in the aforesaid title suit. The learned Munsif had rightly held that the suit was not maintainable.
8. For the reasons stated above. I have to hold that the judgment of the learned Additional Subordinate Judge, Samastipur cannot be upheld. Accordingly, the appeal is allowed and the judgment and decree passed by the learned Additional Subordinate Judge are set aside.
9. Learned Counsel appearing for the plaintiff-respondent, however, urged that in view of conflcting decisions of different Courts, the remedy provided under the Act by way of filing appeal could not be availed of, as then a suit in the Civil Court was permissible. He has submitted that taking all the circumstances into account, the plaintiff-District Board should be allowed to file an appeal before the appellate authority against the decision of the Land Reforms Deputy Collector, dated 22.1.1963 along with an application under Section 5 of the Limitation Act. It will be open to the respondent District Board to file any such appeal, if it is so advised, which shall be decided in accordance with law.