ABDUL RASHID SAHIB Vs. ASSISTANT ENGINEER HIGHWAYS KALLAKURICHI
LAWS(MAD)-1970-1-15
HIGH COURT OF MADRAS
Decided on January 08,1970

ABDUL RASHID SAHIB Appellant
VERSUS
ASSISTANT ENGINEER (HIGHWAYS) KALLAKURICHI Respondents

JUDGEMENT

- (1.) THE validity of the Madras Land Encroachment Act, 1905 Is impeached In this petition, which prays for a direction forbidding the respondents, the Assistant engineer (Highways ). Kallaburichi, and the District Revenue Officer, South Arcot district at Cuddalore, from evicting the petitioner from a portion of his building in kallakurichi town. The petitioner has two buildings, both abutting the Salem main road. The petitioner maintains that the building in Survey Number 305 with the site on which it stands, has been in the occupation of his family from the time of his grandfather, and for over 60 years, that his father made considerable improvements to the house, and that he made it a storeyed building. In the groundfloor there are 4 shops. By notice dated August 22, 1968, the Assistant Engineer (Highways) purporting to act under Section 6 of the Act, called upon the petitioner to remove the tiled top with the brick walls within a week,, on the ground that this portion was an encroachment on the highways road poromboke. The other building which is adjacent to it is said to be a pucca storeyed building, and this too is claimed by the petitioner to be in his possession for over a long period. By another notice, the same Assistant Engineer, about the same time, directed the petitioner to demolish that portion of the building which he considered to be an encroachment on the road poromboke. An appeal to the District Revenue Officer, from the petitioner, having failed in the middle of September, 1968, he was informed in the first week of October to demolish the offending portions of the building and deliver vacant possession of the site, and that if he failed to do so, the Section Officer had orders to take possession on the 12th October. The allegation that the petitioner and his family were in occupation of the building for the past 60 years has not been specifically denied by the respondents. They say that the encroachments were covered by B. Memoranda and penalties sent and levied in those years, and that, therefore, the claim of private ownership cannot be upheld. In the appeal before the District Revenue Officer, the petitioner had urged that the front of the shop was not in any way a hindrance to the public, and that his father was in possession of this portion at least from 1915, and that in respect of the other portion, he seems to have urged that as it was not In the road proper, and that also as it was in a low level, there was no need In any case, for evicting him from that portion. The District Revenue Officer, In his order dismissing the appeal, referred to the assistant Engineer's report. He stated that both the encroachments were in mile no. 58/8 and 58/9 on the right side of Ulundurpet-Salem Road, that this being an important busy Highway road connecting the District Headquarters of South Arcot and Salem and other important places, the vehicular traffic was very heavy, that the first encroachment viz. , the front portion of the shop was situate 3ust opposite to a Cinema Theatre, and so the widening of the road on that point was quite essential so that it would be used by the pedestrians, and that the second encroachment was by way of brick walls and tiled roof over them. The Assistant engineer had also added that there was a proposal to widen the road. We find that the District Revenue Officer had also inspected the two portions said to be encroachments, and he was of opinion that the claim of private ownership could not be upheld,. He also considered that though the first encroachment was in alignment with the other buildings on either side of the shop, the widening of the road was necessary, and the encroachment should, therefore, be removed, and that as to the second encroachment, the front verandah with Mangalore tile roof, though beyond the road margin, had affected the course of drainage, and the encroachment was objectionable.
(2.) THE petitioner's contention is twofold:- (1) The Act is violative of Article 14 of the Constitution; and (2) On the particular facts, summary eviction proceeding under the provisions of the Act is unjustified. The first ground is mainly rested on n. I. Caterers Ltd. v. State of Punjab, Prior to 1869, unauthorised occupation of Government land was prosecuted as an offence. But in that year, this Court held that it could not be regarded as an offence, and that the right course for the Government in such a case was to apply to Civil Courts for eviction. The Government, however, did not pursue this course, but instead would appear to have authorised the Collectors to impose prohibitory assessments designed to make the encroacher quit The machinery of the Revenue recovery Act was resorted to for enforcing collection of such penal levies. Madathapu Ramaya v. The Secretary of State for India, ILR 27 Mad 386 = 14 Mad lj 37, ruled against the legality of this procedure on the view that the prohibitory assessment was not an arrear of land revenue. This evidently led to the passing of the Madras Land Encroachment Act, 1905 which had the assent of the Governor-General in June of that year.
(3.) THE Act by its preamble stated that It was a measure for checking unauthorised occupation of lands "which are property of Government. " Section 2 declares certain specified properties, including public roads, and streets, subject to a saving in favour of certain persons holding under certain tenures, as the property of government. All public roads and streets, vested in any local authority should, for the purpose of this Act, be deemed to be the property of Government. Sections 3 to 5-B provide for levy and assessment and penalty on Government lands in unauthorised occupation, conclusiveness of the amount assessed, and the procedure for levy of penalty. Section 6 empowering summary eviction from unauthorised occupation reads: (1) "any person unauthorisedly occupying any land for which he is liable to pay assessment under Section 3 (or Section 3-A) may be summarily evicted by the Collector (or subject to his control, by the Tahsildar or deputy Tahsildar, or any other officer authorised by the State government in this behalf (hereinafter referred to as the 'authorised officer1) and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by him after such written notice as the Collector (or subject to his control, the Tahsildar, or Deputy tahsildar or authorised officer) may deem reasonable, be liable to forfeiture. Forfeitures under this Section shall be adjudged by the collector (or subject to his control by the Tahsildar, or Deputy Tahsildar, or authorised officer) and any property so forfeited shall be disposed of as the Collector (or subject to his control, the Tahsildar or Deputy tahsildar or authorised officer) may direct. (2) An eviction under this section shall be made in the following manner, namely: by serving a notice in the manner provided in Section 7 on the person reputed to be in occupation or his agent requiring him within such time as the Collector (or the Tahsildar or Deputy tahsildar or authorised officer) may deem reasonable after receipt of the said notice to vacate the land, and, if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and if the officer removing any such person shall be resisted or obstructed by any person, the Collector (or the Tahsildar, or deputy Tahsildar or authorised officer) shall hold a summary inquiry into the facts of the case, and if satisfied that the resistance or obstruction was without any just cause and that such resistance or obstruction still continues, may issue a warrant for the arrest of the said person and on his appearance commit him to close custody in the office of the collector (or any Tahsildar or Deputy Tahsildar or authorised officer) for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance or may send him with a warrant in the form of the schedule for imprisonment in the Civil Jail of the District for the like period. " the proviso to Sub-sections (1) and (2) Is immaterial for the present purpose. The notice under Section 7 intended to be served in the prescribed manner on the person reputed to be in unauthorised occupation of land being the property of Government is required to specify that property and ask for cause why summary eviction should not be proceeded with. Assessment and penalty can be recovered as arrears of land revenue. Appeals and Revisions are also provided for, against any order of the lower officer under the Act The provisions for stay pending disposal of appeals and revisions, or limitation for appeal, and revision and the procedure for disposing of appeals need not detain us. Section 14 says that nothing contained in this Act shall be held to prevent persons deeming themselves aggrieved by any proceedings thereunder, except as therein limited from applying to civil courts for redress, provided a suit is brought within the specified time,;


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