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1984 DIGILAW 102 (PAT)

Union Of India v. Additional Collector, Monghyr

1984-03-21

CHAUDHARY SIA SARAN SINHA

body1984
Judgment 1. In this application under Arts.226 and 227 of the Constitution, the Union of India through the General Manager, Eastern Railways and the Divisional Railway Manager, being the petitioners, the prayer is for quashing Annexure-3 which is an order dated 7-12-1981 of the Additional Collector, Monghyr (respondent No. 1). 2. Several persons made encroachment on the railway lands near about Jhajha Railway Station. The Deputy Collector, Land Reforms, Jamui, was moved for the removal of the said encroachment. A proceeding under the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as "the Bihar 1956 Act") was initiated by the Deputy Collector, Land Reforms. Notices were issued, parties were heard and ultimately, the Deputy Collector, Land Reforms ordered removal of the encroachment under S.6(e) of the Bihar 1956 Act with the further orders that if the encroachment is not removed by the date fixed therein, namely, 22-5-1981, action under S.7 of the Bihar 1956 Act will be taken for getting the encroachment removed. The persons aggrieved, who were asked to remove the encroachment, preferred an appeal before the Collector which was heard by the Additional Collector, Monghyr. The Additional Collector took the view that the proceeding initiated under the provisions of the Bihar 1956 Act was without jurisdiction as the appropriate remedy for removal of the encroachment was under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as "the 1971 Act"). The result was that by the impugned Annexure (Annexure-3) dated 7-12-1981, the Additional Collector (respondent No. 1) quashed the order of the Deputy Collector, Land Reforms directing removal of the encroachment. The petitioners have now taken up the matter in this Court in the instant writ application. 3. The submission of Sri Tara Kant Jha, learned counsel for the petitioners was that the view taken by the Additional Collector was wrong inasmuch as the petitioners were within their rights to invoke the provisions of the Bihar 1956 Act. This contention was resisted by Sri Roy, learned counsel for the respondents. His sole submission was that the initiation of the proceeding under the Bihar 1956 Act was barred under sec. 15 of the 1971 Act. In support of his contention, Sri Roy relied on a decision of the Supreme Court reported in 1972 Rent CJ 955 : ( AIR 1972 SC 2205 ) (Hari Singh V/s. The Military Estate Officer). His sole submission was that the initiation of the proceeding under the Bihar 1956 Act was barred under sec. 15 of the 1971 Act. In support of his contention, Sri Roy relied on a decision of the Supreme Court reported in 1972 Rent CJ 955 : ( AIR 1972 SC 2205 ) (Hari Singh V/s. The Military Estate Officer). No other point having been canvassed before this Court, the point to be determined in this application is a short one. 3A. The Bihar Public Land Encroachment Act, 1956 has been enacted by the legislature of the State of Bihar and the 1971 Act has been enacted by the Parliament. The Bihar Act, 1956, as the preamble shows, was enacted to make better provisions for the removal and prevention of encroachment on public lands. S.3 of the Bihar 1956 Act makes provisions not only for removal of encroachment already made but also to issue temporary injunction to stop encroachment. Sub-section (1) of S.3 of this Act provides, inter alia, that : "if it appears to the Collector from an application made by any person or upon information received from any source that any person is likely to make or is making or has made or is responsible for the continuance of any encroachment on 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 specified in the notice which shall not be less than thirty days and more than sixty days from the date of service of the notice." The final orders, that have to be passed after proper notice and hearing, are envisaged in S.6 of the Bihar 1956 Act. 4 The 1971 Act was enacted to provide a speedy machinery for the eviction of persons in unauthorised occupation of public premises and certain incidental matters and sub-section (1) of S.4 of this Act lays down, inter alia, that : "If the estate officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made." While the Bihar Act, 1956 extends to the whole of the State of Bihar, the 1971 Act extends to the whole of India. The proceeding under S.3 of the Bihar 1956 Act can be initiated in respect of public lands which have been defined in S. 2(3) of this Act as meaning, inter alia, any land vested in the Union of India or the State of Bihar, or in any local authority, etc. The proceeding under S. 4 of the 1971 Act can be initiated in respect of unauthorised occupation of any public premises which have been defined in S.2(e)of this Act as meaning inter alia any premises belonging to or taken on lease or requisitioned by, or on behalf of, the Central Government. It is not in dispute that the lands, over which encroachment was alleged by the petitioners, were fully covered both under the definition of public land in S.2(3) of the Bihar 1956 Act as also under the definition of public premises in S.2(e) of the 1971 Act. 5. Question is whether the petitioners can be debarred from taking the advantage of the provisions of the Bihar Act, 1956 merely because another remedy is available to them under the 1971 Act. 5. Question is whether the petitioners can be debarred from taking the advantage of the provisions of the Bihar Act, 1956 merely because another remedy is available to them under the 1971 Act. S.15 of the 1971 Act deals with bar of jurisdiction and it slates as follows :- "No court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises or the recovery of the arrears of rent payable under sub-section (1) of S.7 or the damages payable under sub-section (2) of that section or the costs awarded to the Central Government or the corporate authority under sub-section (5) of S. 9 or any portion of such rent, damages or costs." This section bars the jurisdiction of the Civil Court to entertain any suit or proceeding of any person who is in unauthorised occupation of any public premises, etc. Though the term "Court" has not been defined either in the 1971 Act or in the Bihar 1956 Act, S.15 of the 1971 Act was never intended to apply to a proceeding of the nature initiated under the Bihar 1956 Act. S.15 of the 1971 Act cannot, therefore, stand as a bar to the petitioners availing of the remedy provided under the Bihar 1956 Act, if they are otherwise entitled to invoke. In the case of Hari Singh V/s. The Military Estate Officer, ( AIR 1972 SC 2205 ) (supra), their Lordships of the Supreme Court were considering the impact of the retrospective provisions of the 1971 Act. The question, which is being posed in this case, did not arise for determination before their Lordships of the Supreme Court. In para 12 of the said decision, their Lordships of the Supreme Court observed, inter alia, as follows (at p. 2209) : "It, therefore, follows that under the provisions of the 1971 Act which had retrospective operation from 16th September, 1958, there is only one procedure available for eviction of persons in unauthorised occupation of public premises. That procedure is to be found in the 1971 Act. The other Courts have no jurisdiction in these matters. That procedure is to be found in the 1971 Act. The other Courts have no jurisdiction in these matters. The vice of Article 14 which was found by this Court in the decision of the Northern India Caterers Private Ltd. ( AIR 1967 SC 1581 ) (Supra) no longer appears under the 1971 Act." In such a situation, this decision can be of no avail to the respondents. No other contention having been raised before this Court, it has to be held that the decision of the Additional Collector in Annexure-3 to the application is unsustainable in law, liable to be quashed and is accordingly quashed. 6 It may be mentioned that the respondents have, undisputedly, no title to the lands encroached upon and are in unauthorised occupation thereof. The Bihar 1956 Act makes provisions for appeals as also review and it cannot be said that the proceeding under the Bihar 1956 Act is unfair or in any way oppressive. The respondents are not denied equal protection of law because the Government has option to proceed against them under either of the two Acts abovementioned and an unauthorised occupant has no constitutional right to dictate that the rightful owner should have no choice of the proceedings under either of the two Acts, abovementioned. 7. The application is allowed accordingly. In the facts and circumstances of this case, there shall be no order for costs of the proceeding and the parties shall bear their own costs.