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Madras High Court
K. VEERASWAMI,GOKULAKRISHNAN
Abdul Rashid Sahib - Appellant
Versus
Assistant Engineer (Highways) Kallakurichi - Respondent
Decided On : 01/08/1970
MADRAS LAND ENCROACHMENT ACT, 1905 - VALIDITY - SUMMARY EVICTION - JUST CAUSE - OWNERSHIP DISPUTE - CIVIL SUIT - [SECTION 6, 7, 14] - THE MADRAS LAND ENCROACHMENT ACT, 1905 IS CONSTITUTIONALLY VALID. HOWEVER, SUMMARY EVICTION UNDER THE ACT IS NOT JUSTIFIED WHERE THE OCCUPANT HAS BEEN IN LONG POSSESSION AND CLAIMS OWNERSHIP. THE OCCUPANT SHOULD BE ALLOWED TO FILE A CIVIL SUIT TO ESTABLISH HIS CLAIM.
Fact of the Case:
THE PETITIONER CHALLENGED THE VALIDITY OF THE MADRAS LAND ENCROACHMENT ACT, 1905, WHICH AUTHORIZED SUMMARY EVICTION OF UNAUTHORIZED OCCUPANTS OF GOVERNMENT LAND. THE PETITIONER CLAIMED THAT HE AND HIS FAMILY HAD BEEN IN POSSESSION OF THE LAND FOR OVER 60 YEARS AND HAD MADE IMPROVEMENTS TO THE BUILDING ON THE LAND. THE AUTHORITIES HAD ISSUED NOTICES TO THE PETITIONER TO DEMOLISH THE ENCROACHMENTS, AND THE PETITIONER HAD APPEALED TO THE DISTRICT REVENUE OFFICER, WHO DISMISSED THE APPEAL.
Finding of the Court:
THE COURT HELD THAT THE MADRAS LAND ENCROACHMENT ACT, 1905 WAS CONSTITUTIONALLY VALID. THE COURT DISTINGUISHED THE ACT FROM THE PUNJAB PUBLIC PREMISES AND LAND (EVICTION AND RENT RECOVERY) ACT, WHICH HAD BEEN DECLARED UNCONSTITUTIONAL BY THE SUPREME COURT IN AIR 1967 SC 1581. THE COURT HELD THAT THE MADRAS ACT DID NOT GIVE THE COLLECTOR UNGUIDED DISCRETION TO ORDER SUMMARY EVICTION AND THAT THE COLLECTOR COULD ONLY REMOVE RESISTANCE OR OBSTRUCTION TO EVICTION IF HE WAS SATISFIED THAT THERE WAS NO JUST CAUSE FOR IT. THE COURT ALSO NOTED THAT THE ACT EXPRESSLY PRESERVED THE RIGHT OF AGGRIEVED PERSONS TO SEEK REDRESS IN CIVIL COURTS.
Issues: 1. WHETHER THE MADRAS LAND ENCROACHMENT ACT, 1905 IS CONSTITUTIONALLY VALID? 2. WHETHER SUMMARY EVICTION UNDER THE ACT IS JUSTIFIED WHERE THE OCCUPANT HAS BEEN IN LONG POSSESSION AND CLAIMS OWNERSHIP?
Ratio Decidendi: 1. THE COURT HELD THAT THE MADRAS LAND ENCROACHMENT ACT, 1905 WAS CONSTITUTIONALLY VALID BECAUSE IT DID NOT GIVE THE COLLECTOR UNGUIDED DISCRETION TO ORDER SUMMARY EVICTION AND BECAUSE IT EXPRESSLY PRESERVED THE RIGHT OF AGGRIEVED PERSONS TO SEEK REDRESS IN CIVIL COURTS. 2. THE COURT HELD THAT SUMMARY EVICTION UNDER THE ACT IS NOT JUSTIFIED WHERE THE OCCUPANT HAS BEEN IN LONG POSSESSION AND CLAIMS OWNERSHIP BECAUSE SUCH A CLAIM SHOULD BE INVESTIGATED IN A PROPERLY INSTITUTED SUIT.
Final Decision: THE COURT PARTIALLY ALLOWED THE PETITION AND FORBADE THE RESPONDENTS FROM EVICTING THE PETITIONER UNDER THE PROVISIONS OF THE MADRAS LAND ENCROACHMENT ACT FOR A PERIOD OF ONE YEAR FROM THE DATE OF THE ORDER. THIS LIMITED RESTRICTIVE DIRECTION WAS SUBJECT TO THE CONDITION THAT THE PETITIONER INSTITUTES A SUIT WITHIN ONE YEAR AS AFORESAID IN RESPECT OF HIS CLAIM. IN SUCH A SUIT, NO LIMITATION WILL BE RAISED.
ORDER :- 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), Kallakurichi, 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 just 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 A
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