Decided on August 21,1969

Meharunnissa Begum Appellant


Chinnappa Reddy, J. - (1.)The broad question raised in these Writ Petition concerns the vires of Sections 6 and 7 of the Andhra Pradesh Land Encroachment Act. The Petitioners contend that sections 6 and 7 of the Act provide the Collector and Tahsildar with a remedy to evict persons in unauthorised occupation of land which is the property of Government, that this remedy is in addition to the remedy available under the ordinary law of the land, that the remedy under the Act is a drastic remedy much to the prejudice of the persons in unauthorised occupation, that sections 6 and 7 give an absolute and unfettered discretion to the Collector and the Tahsildar to purse one remedy or the other and thus to discriminate between such unauthorised occupants inter se and that therefore Sections 6 and 7 offend Art. 14 of the Constitution and ultra vires.
(2.)It was laid down by their Lordships of the Supreme Court in Jyoti Prasad Vs. Union Territory AIR 1961 SC 1602 , that guidance in the matter of exercise ox discretion conferred on an authority by an enactment may be "obtained for or afforded by (a) the preamble read in the light of the surrounding circumstances which necessitated the legislation, taken in conjunction with well known facts of which the Court might take judicial notice or of which it is appraised by evidence before it in the form of affidavits, .........(b) or even from the policy and purpose of enactment which may Joe gathered from other operative provisions applicable to analogous or comparable situations or generally from the object sought to be achieved by the enactment."
(3.)It will, therefore, be useful to refer first to the circumstances which led to the passing of the Act. Prior to 1905 the Government was levying what was known as'penal or prohibitory assessment or charge' on unauthorised occupants of the land and collecting it as an arrear of land revenue under the provisions of the Revenue Recovery Act. It was thought at that time that imposition of a penal assessment was an effective mode of checking encroachments on Government and communal lands. But, a Full Bench of the Madras High Court in Madathapu Ramayya Vs. Secretary of State ILR 27 Mad 386 held that the imposition was not land revenue and could not be recovered as an arrear of land revenue. It was this decision that led to the enactment of the Land Encroachment Act of 1905. In the Judgment of Bhashyam Aiyangar J., in Madathapu Ramayya Vs. Secretary of State ILR 27 Mad. 386 , the learned Judge referring to the argument strenuously advanced on behalf of the Government that the imposition of a penal assessment was necessary and justifiable in the interests of the State and of the public as an effective method of checking encroachments on Government and communal lands said that such considerations pro and con carried no weight in deciding the legality of the prohibitory assessment, suggested "if the existing provisions of law contained in the Municipal and Local Boards Act, the Code of Criminal Procedure and other enactments, if any, are found inadequate to check the evil complained of, recourse must be had to special legislation for effectively checking encroachments and obstructions on or wrongful use or alienation of Crown lands and proramboke lands set apart for public or communal purposes.................... any such legislation, if deemed necessary, will of course proceed on lines consistent with the just and constitutional principles of British legislation." The advice given by Bhashyam Aiyangar J., was accepted and the result was the Land Encroachment Act of 1905.

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