Pandia Nadar & Ors Vs. The State of
Tamil Nadu & Ors  INSC 110 (30 April 1974)
RAY, A.N. (CJ) KHANNA, HANS RAJ MATHEW,
KUTTYIL KURIEN BHAGWATI, P.N.
CITATION: 1974 AIR 2044 1975 SCR (1) 333 1974
SCC (2) 539
R 1975 SC2299 (606)
Tamil Nadu Land Encroachment Act. 1905, s.
6-Procedure for eviction if violative of Art. 14.
Notices were issued to the petitioners under
s. 6 of the Tamil Nadu Land Encroachment Act, 1905, for evicting the petitioners
and they challenged the constitutional validity of the Act on the basis of the
decision in Northern India Caterers v. Punjab.  3 S.C.R. 399.
Dismissing the petitions,
HELD : Under the Tamil Nadu Act s. 2 defines
'property of government', s. 3 lays down that any person who shall
unauthorisedly occupy any land which is the property of the Government shall be
liable to pay the full assessment on the land, s. 5 provides for further
payment of penalty, and s. 6 provides for eviction of such person and for
forfeiture of any crop or other product raised on the land and any building or
other construction erected on the land. The eviction was to be carried out by
serving a notice as provided under s. 7 after giving him, reasonable time to
vacate. There is a provision for appeal against the order of the Collector or
other officer and there is also a provision for revision by the Government.
Section 14 provides for a right of suit by any person deeming himself aggrieved
by any proceedings under the Act.
This Court in Maganlal Chagganlal Ltd. v.
Municipal Corporation of Greater Bombay  1 S.C.R. I considered the
constitutional validity of Chapter V-A of the Bombay Municipal Corporation Act,
and the Bombay Government Premises (Eviction) Act, 1955, which provide for a
special procedure for eviction of unauthorised occupants of public premises.
The Court observed that the mere availability of two procedures will not
vitiate the special procedure and discussed the principles as to when the
statute will not be hit by Art. 14. The Court then went on to point out that
the procedures laid down by the two Acts were not so harsh or onerous as to
suggest that a discrimination would result if resort was made to the provisions
of these two Acts in some cases and to the ordinary civil court in others; and
this decision would apply on all fours to the facts of the present case.
ORIGINAL JURISDICTION : Writ Petitions Nos.
243 to 246 of 1970.
Petition under Art. 32 of the Constitution.
K. Jayaram and R. Chandrasekhar, for the
S. Govind Swaminathan, A. V. Rangam, N. S.
Sivan and A.
Subhashini, for the respondents.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. The Tamil Nadu Land Encroachment Act, 1905 is impugned in
these petitions as unconstitutional and void.
Notices have been issued to the petitioners
under section 6 of that Act in order to evict them from a certain piece of land
claimed to be Government land. The challenge to the constitutional validity of
the Act is based solely on the decision of this Court in Northern India
334 Punjab (1967 3 SCR 399). In that case the
validity of the Punjab Public Premises and Land (Eviction and Rent Recovery)
Act, 1959 was under consideration. The State had leased its premises to the
appellant therein for running a hotel and when the lease expired called upon
him to hand over vacant possession of the premises. On the appellant failing to
do so the Collector issued a notice under S. 4 of the Punjab Act requiring the
appellant to show cause why an order of eviction should not be passed under s.
5. This Court while holding that "there is an intelligible differentia
between occupiers and that the classification has a reasonable relation to the
object of the Act and does not offend Art.
14" also held that "s. 5 of the Act
confers an additional remedy over and above the remedy by way of suit and
thereby violates Art. 14 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 s. 5." Two of the learned Judges who constituted the
Bench, Hidayatullah and Bachawat, JJ.
however held that "the unauthorised
occupant is not denied equal protection of the laws merely because the
Government has the option of proceeding against him either by way of a suit or
under the Act." The Tamil Nadu Act is entitled "an Act to provide measures
for checking unauthorized occupation of lands which are the property of
Government." Section 2 of the Act defines the property of Government as
"2. (1) All public roads, streets, lanes and paths, the bridges, ditches,
dikes and fences, on or beside the same, the bed of the sea and of harbours and
creeks below high water mark, and of rivers, streams, nalas, lakes and tanks
and all backwaters, canals and water courses, and all standing and flowing
water, and all lands, wherever situated, save in so far as the same are the
property(a)of any zamindar, poligar, mittadar, jagirdar, shrotriemdar or
inamdar or any person claiming through or holding under any of them, or (b)of
any person paying shist, kattubadi, jodi, poruppu or quit-rent to any of the
aforesaid persons, or (c)of any person holding under ryotwari tenure, including
that of a janmi in the Gudalur taluk of the Nilgiri district and in the
transferred territory or in any way subject to the payment of land-revenue
direct to Government, or (d)of any other registered holder of land in
proprietary right, or (e)of any other person holding land under grant from the
Government otherwise than by way of licence, and, as to lands, save also in so
far as they are temple site or owned as house-site or backyard.
3 3 5 are and are hereby declared to be the
property of Government except as may be otherwise provided by any law for the
time being in force, subject always to all rights of way and other public
rights and to the natural and easement rights of other land-owners, and to all
customary rights legally subsisting.
(2)All public roads and streets vested in
any, local authority shall, for the purpose of this Act, be deemed to be the
property of Government." Section 3 lays down that any person who shall
unauthorizedly occupy any land which is the property of Government shall be
liable to pay the full assessment on the land. Section 5 provides for further
payment by such a person of penalty.
Section 6 provides for eviction of such a
person and for forfeiture of any, crop car other product raised on the land and
any building or other construction erected on the land.
Such eviction is to be carried out by serving
a notice as provided under section 7 after giving him a reasonable time to
vacate. If there is any resistance to eviction the Collector or other officer
ordering eviction is to hold a summary inquiry into the question whether the
resistance was without any just cause. There is a provision for appeal against
the order of the Collector or other officer and there is also a provision for
revision by the Government.
Section 14 provides for a right of suit by
any person deeming himself aggrieved by any proceeding under the Act.
Such in short is the scheme of the Act.
In its recent decision in Maganlal
Chhagganlal (P) Ltd. etc.
v. Municipal Corporation of Greater Bombay
& Ors. etc. (1) pronounced on 11 April, 1974, this Court had, occasion to
consider the constitutional validity of Chapter V-A of the Bombay Municipal
Corporation Act and the Bombay Government Premises (Eviction) Act. According to
the provisions of section 105A contained in Chapter V-A there under
consideration, the Commissioner in relation to premises belonging to or vesting
in, or taken on lease by the corporation and the General Manager (also defined
as the Commissioner) of the Bombay Electric Supply and Transport Undertaking in
relation to premises of the corporation which vest in it for the purposes of
that undertaking were granted certain powers of eviction in respect of
unauthorised occupation of any corporation premises. Unauthorised occupation is
defined as occupation by, any person of corporation premises without authority
for such occupation and includes the continuance in occupation by any person of
the premises after the authority under which he was allowed to occupy the
premises has expired, or has been duly determined. Under section 105B the
Commissioner, by notice served on the person in unauthorised occupation, could
ask him to vacate if he had not paid for a period of more than two months the
rent or taxes lawfully due from him in respect of such premises; or sub-let,
contrary to the terms or conditions of his occupation, the whole or any part of
such premises; or committed, or is committing, such acts of waste as are likely
to diminish materially the value, or impair substantially the utility, of the
premises; or otherwise acted in Contravention of any of the terms, express or
implied, under which he is authorised to occupy (1)  1 S.C.R. 1.
336 such premises; or if any person is in
unauthorised occupation of any corporation premises; or any corporation
premises in the occupation of any, person are required by the corporation in
the public interest. Before making such an order the Commissioner should issue
a notice calling upon the person concerned to show cause why an order of
eviction should not be made and specify the grounds on which the order of
eviction is proposed to be made. The person concerned can file a written
statement and produce documents and is entitled to appear before the
Commissioner by advocate, attorney or pleader Persons failing to comply with
the order of eviction as well as any other person who obstructs eviction can be
evicted by force. Under section 105C there is power to recover rent or damages
as arrears of property taxes. A person ordered to vacate on the grounds of
being in arrears of rent or acting in contravention of the terms under which he
is authorised to occupy the premises could be allowed to continue if he
satisfies the Commissioner. The Commissioner has, for the purpose of holding
any, inquiry, the same powers as are vested in a civil court under the Code of
Civil Procedure, when trying a suit, in respect of (a) summoning and enforcing
the presence of any person and examining him on oath, (b) requiring the
discovery and production of documents, and (c) any other matter which may be
prescribed by regulations. An appeal from every order of the Commissioner lies
to the principal Judge of the City Civil Court or such other judicial officer
as the principal Judge may designate. The appeal is to be disposed of as
expeditiously as possible. Subject to the results of the appeal every order of
the Commissioner or the appellate officer is final. The power to make
regulations under the Act includes the power to make regulations in respect of
holding of inquiries and the procedure to be followed in such appeals. The
provisions of the Bombay, Government Premises (Eviction) Act are more or less
similar except that they relate to Government premises and the power to order
eviction is given to the competent authority not lower in rank than that of a
Deputy Collector or an Executive Engineer appointed by the State Government. It
was argued before this Court that as there were two procedures available to the
Corporation and the State Government, one by way of a suit under the ordinary
law and the other under either of the two Acts, which was harsher and more
onerous than the procedure under the ordinary law, the latter is hit by Article
14 of the Constitution in the absence of any guidelines as to which procedure
may be adopted. There also reliance was wholly placed on the decision in the
Northern India Caterers' case. After an exhaustive discussion of all the
relevant decisions this Court came to the conclusion that the principles
deducible from those decisions were as follows Where a statute providing for a
more drastic procedure different from the ordinary procedure covers the whole
field covered by the ordinary procedure, as in Anwar Ali Sarkar's case(1) and
Suraj Mall Mohta's case(2) without any guidelines as to the class of cases in
which either procedure is to be resorted to, the statute will be hit by Art.
14. Even there, (1)  SCR 284.
(2)  1 SCR 448 337 as mentioned in
Suraj Mall Mohta's case, a provision for, appeal may cure the defect.
Further , in such cases if from the preamble
the surrounding circumstances, as well as the provisions of the statute
themselves explained and amplified by affidavits, necessary guidelines could be
inferred as in Saurashtra case(1) and Jyoti Pershad's case(2) the statute will
not be hit by Art. 14. Then again where the statute itself covers only a class
of cases as in Haldar's case(3) and Bajoria' case (4) the statute will not be
The fact that in such cases the executive
will choose which cases are to be tried under the special procedure will not
affect the validity of the statute. Therefore, the contention that the mere
availability of two procedures will vitiate one of them, that is the special
procedure, is not supported by reason or authority." This Court then went
on to apply those principles to the statutes under consideration in the
following words :
"The statute itself in the two classes
of cases before us clearly lays down the purpose behind them, that is that
premises belonging to the Corporation and the Government should be subject to
speedy procedure in the matter of evicting unauthorized persons occupying them.
This is a sufficient guidance for the authorities on whom the power has been
conferred. With such an indication clearly given in the statutes one expects
the officers concerned to avail themselves of the procedures prescribed by the
Acts and not resort to the dilatory procedure of the ordinary Civil Court.
Ever, normally one cannot imagine an officer having the choice of two
procedures, one which enables him to get possession of the property quickly and
the other which would be a prolonged one, to resort to the latter.
Administrative officers, no less than the courts, do not function in a vacuum.
It would be extremely unreal to hold that an administrative officer would in
taking proceedings for eviction of unauthorised occupants of Government
property or Municipal property resort to the procedure prescribed by the two
Acts in one case and to the ordinary Civil Court in the other. The provisions
of these two Acts cannot be struck down on the fanciful theory that power would
be exercised in such an unrealistic fashion.
In considering whether the officers would be
discriminating between one set of persons and another one has got to take into
account normal human behaviour and not behaviour which is abnormal. It is not
every fancied possibility of discrimination but the real risk of discrimination
that we must take into account. This is not one of those cages 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 (1)
 SCR 435 (2)  2 SCR 125 (3)  2 SCR 646 (4)  SCR 30.
338 practice this Court is not powerless.
Furthermore, 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 therefore 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." It then went on to point out that the procedures
laid down by the two Acts under consideration were not so harsh or onerous as
to suggest that a discrimination would result if resort was made to the
provisions of those two Acts in some cases and to the ordinary Civil Court in
other cases in the following words :
"Even though the officers deciding these
questions would be administrative officers there is provision in these Acts for
giving notice to the party affected, to inform him of the grounds on which the
order of eviction is proposed to be made, for the party affected to file a
written statement and produce documents and be represented by lawyers. The
provisions of the Civil Procedure Code regarding summoning and enforcing
attendance of persons and examining them on ,oath, and requiring the discovery
and production of documents are a valuable safeguard for the person affected.
So is the provision for appeal to the
Principal Judge of the City Civil Court in the city of Bombay, or to a District
Judge in the districts who hag got to deal with the matter as expeditiously as possible,
also a sufficient safeguard as was recognised in Suraj Mall Mohta's case. The
main difference between the procedure before an ordinary Civil Court and the
executive authorities under these two Acts is that in ,one case it will be
decided by a judicial officer trained in law ,and it might also be that more
than one appeal is available. As against that there is only one appeal
available in the other but it is also open to the aggrieved party to resort to
the High Court under the provisions of Art.
226 and Art. 227 of the Constitution. This is
no less effective than the provision for a second appeal. On the whole,
considering the object with which these special procedures were enacted by the
legislature we would not be prepared to hold that the difference between the
two procedures is so unconscionable as to attract the vice of discrimination.
After all, Art. 14 does not demand a fanatical approach. We, therefore, hold
that 3 3 9 neither the provisions of Chapter V-A of the Bombay Municipal
Corporation Act nor the provisions of the Bombay Government Premises (Eviction)
Act, 1955 are hit by Art. 14 of the Constitution." This decision would
apply on all fours to the facts of the present case.., In the result the writ
petitions are dismissed.
We must, however, mention that on behalf of
the petitioners it was contended that they were still in possession. On the
other hand, on behalf of the State it was contended that, three of the
petitioners. had been evicted even before this Court passed an order of stay. Whatever
the situation, it is open to any one of the petitioners, or such of them as
choose to do so, to file a suit.
V. P. S. Petition dismissed.