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1973 DIGILAW 252 (KAR)

MOVVAR SUBRAMANYA BHAT v. STATE OF MYSORE

1973-09-11

K.VENKATASWAMI

body1973
( 1 ) BY this petition under Arts. 226 and 227 of the Constitution of India, the constitutional validity of the provisions of S. 94 (3) of the Mysore Land revenue Act, 1964, (hereinafter referred to as Revenue Act), has been challenged on the ground that it is violative of Art. 14 of the Constitution in that it confers unguided discretion on the authority competent to act thereunder to pick and choose one of the two proceedures to evict unauthorised occupants from public premises, available under the Revenue Act and the Mysore Public Premises (Eviction of unauthoried occupants) Act, 1961. (hereinafter referred to as Pub. Premises Act ). An incidental question has also been raised that the order of the Mysore Revenue Appellate Tribunal, (MRAT) which is also impugned herein, suffers from vagueness and therefore, incapable of implementation. It must therefore, be set aside or quashed. ( 2 ) THE material facts are few and as follows: The land bearing S. No. 142 3b of Guthigar village has been classed as 'poramboke kola' (i. e. a tank ). The petitioner is alleged to have encroached upon an extent of 5 (five) cents therein. On being served with a notice by the concerned revenue authorities to show ca,use against eviction from such encroached portion, he is alleged to have made a statement that the boundary between his land and the said tank being uncertain, until the same had been duly fixed, he would not be liable for any action to be taken against him as an unauthorised occupant. Hence proceedings for eviction were initiated under s. 94 of the Revenue Act. Although served with a notice of an enquiry under the said provision, the petitioner did not appear before the revenue authority holding the same. Consequently, by two orders made on 28-5-69, the authority levied penal assessment and penalty and directed eviction of the petitioner from the portion unauthorisedly occupied by him, pursuant to S. 94 of the Revenue Act. Against the order, the petitioner unsuccessfully appealed to the MRAT in accordance with S. 49 of the said Act. Hence this petition. Consequently, by two orders made on 28-5-69, the authority levied penal assessment and penalty and directed eviction of the petitioner from the portion unauthorisedly occupied by him, pursuant to S. 94 of the Revenue Act. Against the order, the petitioner unsuccessfully appealed to the MRAT in accordance with S. 49 of the said Act. Hence this petition. ( 3 ) THE principal contention, as outlined already, urged on behalf of the petitioner may be set out thus: There are two alternative procedures open to the Government to be followed in cases of eviction of unauthorised occupants of public premises such as the present petitioner and in the absence of any guidance as to the exercise of discretion by the authority competent to act as to which of such procedures shall be followed in a given case, the provision would be patently discriminatory and particularly so when one of such procedures is more onerous than the other. In other words, there is no valid classification of persons for the purpose of proceeding against them under one or the other of such procedures. The specific argument is that the provisions of the Pub. Premises Act could also be resorted to evict the petitioner and such provisions were less onerous than those provided under S. 94 of the Revenue Act. They would be so because in the former Act, there are provisions for determination of damages and preferring of appeals to a District Judge, whereas the provisions of S. 94 of the Revenue Act, under challenge herein, have provided for penalties and for an appeal under S. 49 of that Act only to a Special tribunal constituted under that Act. In support of such a submission, reliance was placed on the decision of the Supreme Court in Northern India caterers Ltd. v. State of Punjab, AIR 1967 SC 1581 . In support of such a submission, reliance was placed on the decision of the Supreme Court in Northern India caterers Ltd. v. State of Punjab, AIR 1967 SC 1581 . ( 4 ) ON behalf of the respondent, the learned Advocate General, contended that Northern India Caterer's case (1) was clearly distinguishable as the vice noticed therein regarding the availability of two remedies, one by way of a suit under the ordinary law and another under the special statute, the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959, was not present in the present P. P. Act, and the clause relating to the alternative remedy of right of suit under the ordinary law in the P. P. Act, has since been deleted. He also contended that the absence of a proper right of appeal under one of the procedures would not per se lead to an inference of infringement of Art. 14 of the Constitution. It was further contended that the authorities competent to act under the two statutes were different and the Revenue Act almost exclusively dealt with the lands, the assessment and recovery of land revenue and land revenue administration and such other matters. Even on the assumption that the P. P. Act would be applicable to the case on hand, the procedure provided thereunder was not at all less onerous as contended. In his submission, the two statutes concerned herewith dealt with two different topics and, therefore, cannot be compared for the purpose of resolving any question relating to an infringement of Art. 14 of the constitution. According to him, that this is so would be apparent from the objects with which these statutes have been enacted by the legislature. Attention was invited to certain enunciations of the Supreme Court in the following decisions: State of orissa v. Bidya Bhushan, AIR 1963 SC 779 . Sri Hamtanu Co-operative Housing Society v. State of Maharashtra, AIR 1970 SC 1771 . and Hari Singh v. The Military Estate Officer, AIR 1972 SC 2205 . ( 5 ) BEFORE adverting to the contentions, it is necesary to set out the portions relevant for the present purpose, in S. 94 of the Revenue Act. " 94. Sri Hamtanu Co-operative Housing Society v. State of Maharashtra, AIR 1970 SC 1771 . and Hari Singh v. The Military Estate Officer, AIR 1972 SC 2205 . ( 5 ) BEFORE adverting to the contentions, it is necesary to set out the portions relevant for the present purpose, in S. 94 of the Revenue Act. " 94. Penalties for unauthorised occupation of land.- (1) Any person who shall unauthorisedly enter upon the occupation of any land set apart for any special purpose or any unoccupied land which has not been alienated and any person, who uses or occupies any such land to the use or occupation of which he is not entitled or has ceased to be entitled, shall pay twice such amount of assessment for every year of his unauthorised occupation, as would be leviable in the same village on the same extent of similar land used for the same purpose; and shall also be liable, at the discretion of the Deputy Commissioner, for every year of his unauthoised occupation, to a fine not exceeding five hundred rupees per acre, if such occupation has been for the purpose of cultivation and not exceeding one thousand rupees per acre, if such occupation has been for anv non-agricultural purpose. (2 ). . . . . . . . . . . . . (3) Notwitsrtanding anything contained in the Mysore Public premises (Eviction of Unauthorised Occupants) Act, 1961 (Mysore Act 3 of 1962), the person unauthorisedly occupying any such land shall also be summarily evicted by the Deputy Commissioner and any crop including trees, raised in the land shall be liable to forfeiture, and any building or other construction erected thereon shall also, if not removed by him after such written notice as the Deputy Commissioner may deem reasonable, be liable to forfeiture or to summary removal,. " ( 6 ) ON behalf of the petitioner, the enunciation of the Supreme Court relied on, occurring at paragraph 12 of the Northern India Caterer's case (1), reads thus :"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 or the other and to pick and choose some of those in occupation of public properties and promises 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. "it is clear from the above enunciation that in case of two alternative legal remedies there will be no question of infringement of Art. 14 of the constitution, unless one of them is more onerous than the other. It also seems, by implication, that in such an event the more onerous of these remedies must be struck down leaving only one procedure to be followed applicable to all persons similarly situated. ( 7 ) IT is relevant, in this context, to refer to another enunciation of the supreme Court in State of orissa v. Bidya Bhushan to the effect that a mere adoption of one of two procedures both being permissible, will not justify a plea of unlawful discrimination for the purpose of Art. 14 of the constitution. Referring to the case of Kapur Singh v. Union of India, AIR 1960 SC 493 . it is observed by Shah, J. in paragraph 7 of the aforesaid report thus :"it was observed in that case that in the absence of proof of any prejudice to the public servant concerned, mere adoption of one procedure in preference to another permissible procedure will not justify an inference of unlawful discrimination. " ( 8 ) IT is relevant to observe that the question of applicability or otherwise of the provisions of the P. P. Act to the case of eviction of an unauthorised occupant from agricultural land has not been seriously challenged, apparently because of the definitions of the words 'premises' and 'public premises' occurring in the P. P. Act and the non-obstante clause occurring in ss. 94 (3) and 104 of the Revenue Act, which imply that similar action to evict could be taken even under the provisions of the P. P. Act. At this stage, it may be relevant to notice an argument of the Counsel for the petitioner that the use of the word 'also' in sub-sec. (3) of S. 94 of the revenue Act was plain enough to indicate that the legislature was aware that both the Acts would be applicable to a case of the present nature. On a careful analysis of S. 94, with all its sub-sections, I do not feel inclined to accept such a construction. The said word has relevance to the penalties imposable on an unauthorised occupant and not to eviction under the two different Acts concerned therein. It merely means that an unauthorised occupant besides being liable for penalties specified in sub-sec. (1) thereof, would 'also' be liable to be evicted. ( 9 ) I shall now proceed to consider the contentions urged on behalf of the parties. On a careful examination of the relevant provisions of the statutes referred to, I am inclined to hold: (1) that the provisions of the Revenue act are intended to deal with a special topic relating to administration of land and land revenue, and, therefore, not comparable with the P. P. Act for the purpose of determining whether or not the provisions of S. 94 (3) of the Revenue Act offend Art. 14 of the Constitution; and (2) that on a comparison of the remedies available to Government in the matter of evicting unauthorised occupants, in either of the aforementioned statutes, it would not be possible to hold that S. 94 (3) of the Revenue Act would be more onerous to the persons sought to be proceeded against under it. Therefore, in the absence of prejudice, the order impugned herein cannot be attacked on the ground of unlawful discrimination in the light of the enunciation of the Supreme Court reproduced earlier. The reason for the above conclusions are as follows : on the first question, it will be seen from the preamble to the Revenue Act that the primary object of this Act is "to consolidate and amend the law relating to land, the assessment and recovery of land, revenue, and the land revenue administration". The reason for the above conclusions are as follows : on the first question, it will be seen from the preamble to the Revenue Act that the primary object of this Act is "to consolidate and amend the law relating to land, the assessment and recovery of land, revenue, and the land revenue administration". From the definition hi Sec. 2 thereof various classes of land such as dry, wet, garden, dry garden and plantation lands have been dealt with. All such lands can broadly be brought under one head as agricultural lands. It is, therefore, reasonable to hold that this Act is principally concerned only with such lands and their administration by government. Whereas the P. P. Act is concerned exclusively with the eviction of unauthorised occupants from 'public premises' which has been denned so as to include land also. In these circumstances, it cannot be predicated with certainty that both the statutes have similar objectives. In such a situation if any of the remedies available in these statutes, one of which is of an incidental nature, overlap in a manner of speaking, it would not necessarily give rise to a charge of unlawful discrimination, especially when the remedy of an incidental nature is clearly necessary to effectively achieve the object intended by the enactment of such a statute. The statutory provision of S. 94 of the Revenue Act clearly, in my opinion, belongs to the latter category. I have, therefore, to conclude that the purpose of the two Acts are clearly not identical and are not therefore, comparable for the purpose of Art. 14 of the Constitution. ( 10 ) IN this connection, a decision of the Supreme Court in ramatanu Cooperative Housing Societies case (3) was relied on behalf of the respondents. In that case it was held that there was no procedural discrimination between Maharashtra Industrial Development Act and the Land Acquisition act, although both dealt with acquisition of lands for a public purpose. It was also observed that the former Act was a special, one, in that it had been enacted for the specific and special purpose of growth, development and organisation of industries in the State of Maharashtra. It was further mentioned that the Land Acquisition Act was a general statute. These among some others, were the reasons which impelled the Court to hold that those two Acts were dissimilar in situations and circumstances. It was further mentioned that the Land Acquisition Act was a general statute. These among some others, were the reasons which impelled the Court to hold that those two Acts were dissimilar in situations and circumstances. It seems to me that the above tests would be equally applicable to the acts under consideration, and same are satisfied. It must therefore be held that these Acts are dissimilar in situations and circumstances and therefore s. 94 (3) cannot be said to be violative of Art. 14 of the Constitution as contended. The above discussion would be sufficient to dispose of the contention relating to the principal question bearing on the constitutionality of Section 94 (3) of the Revenue Act. However, I shall briefly proceed to examine the contentions urged on behalf of the petitioner. ( 11 ) THE contention is that the provisions of Sec. 94 (3) are more onerous than the corresponding provisions in the Public Premises Act. In support of such a contention, on behalf of the petitioner, reliance principally was placed on two circumstances. The first is relative to an appeal to a district Judge under S. 10 of the Public Premises Act, whereas the appeals under the Revenue Act lie to the authorities named in S. 49 thereof which include the MRAT. The specific argument is that an appeal to a District judge would be more desirable and valuable than the right of appeal to the Authorities including the MRAT, named in S. 49 of the Revenue Act; (2) The provision for damages in the Public Premises Act is less onerous than the provision for penal assessment and penalty in Sec. 94 (1) of the revenue Act. The entire argument was based on these two circumstances. I shall, therefore, proceed to examine only these. ( 12 ) REGARDING the right of appeal, it is true that under S. 10 of the Public premises Act, the appeal from an order of eviction lies to a District Judge. But such District Judge in the context of the provisions of that statute, functions only as a persona designate. I shall, therefore, proceed to examine only these. ( 12 ) REGARDING the right of appeal, it is true that under S. 10 of the Public premises Act, the appeal from an order of eviction lies to a District Judge. But such District Judge in the context of the provisions of that statute, functions only as a persona designate. In this view, I fail to see how the tribunals constituted under the Revenue Act could be said to be less suitable for considering an appeal, as implied in this contention, particularly in the context of the simple nature of the functions they have been called upon to exercise under the Revenue Act. Moreover, in the context of the revenue laws, the authorities under that Act, who are generally credited with some experience of them, would perhaps be in a better position to appreciate the points in controversy, than any other person or authority. I am not, therefore, inclined to accept this contention. ( 13 ) IN this connection and in the context of Art. 14, an enunciation of the supreme Court appears to me to be apposite. It occurs in the case of State of Orissa v. Biaya Bhushan, which was cited on behalf of the respondents. It reads thus :"the plea that there was discrimination because there was a right of appeal against an order imposing penalty under one set of rules, and no such right under the other, was rejected in AIR 1961 sc 1245 . It must therefore be held that the existence of a, right of appeal against the order of an administrative head imposing penalty and absence of such a right of appeal against the order of the Governor under the Tribunal Rules, does not result in discrimination contrary to Article 14 of the Constitution. " ( 14 ) THE next contention relates to provision for determination of damages in S. 7 (2) of the Public Premises Act. It is seen from this provision that the competent officer would be entitled to determine damages which, in conceivable cases, could far exceed the limits imposed in regard to penalty and penal assessment under S. 94 (1) of the Revenue Act. Under s. 94 (1) provision has been made for levy of penal assessment and fine, the ceiling in regard to which has been fixed by its terms. Under s. 94 (1) provision has been made for levy of penal assessment and fine, the ceiling in regard to which has been fixed by its terms. In this view, it cannot be inferred that the provisions of S. 94 (1) of the Revenue Act were more onerous than S. 7 (2) of the Public Premises Act. But the question can, in my view, be examined from another angle. It is seen from a comparison of the provisions of S. 94 (1) of the Revenue act and S,7 (2) of the Public Premises Act, that under the former Act, the liability to pay twice the assessment has been fixed by the statute and no special determination of such liability by the authority is called for, under the first part of that sub-section. Even the second part thereof deals with the liability to pay a fine upto a specified limit with discretion vested in the authority to impose a lesser sum. The position is not the same under S. 7 (2) of the Public Premises Act. The question of damages had been made one of fact to be determined by the authority under that act. These two aspects are distinct and separate from each other. The clear inference in these circumstances is that there is no parity between, these provisions and, therefore, they cannot be made the basis for a contention in the context of the application of Art. 14 of the Constitution indeed, they would also indicate that the provision of S. 94 (1) could not be said to be more onerous than that of the Public Premises Act bearing on this point. For all these reasons, this contention has to be rejected. It must, therefore, be held that S. 94 of the Mysore Land Revenue Act 1964 does not violate Article 14 of the Constitution. ( 15 ) THE next contention has reference to the alleged vagueness of the order for eviction. This contention has no force. The argument is that the encroached area of 5 cents ought first to have been delimited by measurements and boundaries. In the absence of such delimitation it would be possible for the authorities to take a portion of his own land, which really does not form part of the 'poramboke tank'. There is no warrant for such a supposition. The argument is that the encroached area of 5 cents ought first to have been delimited by measurements and boundaries. In the absence of such delimitation it would be possible for the authorities to take a portion of his own land, which really does not form part of the 'poramboke tank'. There is no warrant for such a supposition. The order of eviction clearly relates to 5 cents of land forming part of S. No. 142/3b and the authorities perforce have to measure only that piece of land for the purpose of taking possession of the encroached portion. They would not be required to measure the petitioner's land for that purpose. Hence, I reject this contention also. In the result, this petition is dismissed, but without costs. --- *** --- .