Madras High Court
Gunasekaran vs The State Of Tamil Nadu on 23 November, 2023
Author: D.Bharatha Chakravarthy
Bench: Sanjay V.Gangapurwala, D.Bharatha Chakravarthy
W.P.No.3002 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.11.2023
CORAM :
THE HON'BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.3002 of 2018
Gunasekaran .. Petitioner
Vs
1 The State of Tamil Nadu
Rep by its Secretary to Government
Revenue Department
Fort St. George
Chennai – 600 009.
2 The Secretary to Government
Law (OP-V) Department
Secretariat
Chennai – 600 009.
3 The District Collector
Salem, Salem District.
4 The Tahsildar
Taluk Office
Omalur Taluk
Salem District. .. Respondents
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W.P.No.3002 of 2018
Prayer: Petition filed under Article 226 of the Constitution of India
seeking issuance of a writ of declaration declaring Section 6 of the
Land Encroachment Act 1905 and notice dated 13.4.2017 issued by
the 4th respondent under Section 6 of the Act as null and void.
For the Petitioner : Mr.M.Elango
For the Respondents : Mr.P.Muthukumar
State Government Pleader
ORDER
(Order of the court was made by the Hon'ble Chief Justice)
The petitioner seeks declaration that Section 6 of the Tamil
Nadu Land Encroachment Act, 1905 [for brevity, “the Act of
1905”] is void and violates Articles 14, 19(1)(e) and 21 of the
Constitution of India.
2.1. Mr.M.Elango, learned counsel for the petitioner,
submits that Section 6 of the Act of 1905 is arbitrary,
discriminatory and unreasonable. Right to shelter is a
fundamental right under Article 21 of the Constitution of India.
The impugned Section 6 of the Act of 1905 takes away the right
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of residence of the petitioner and other persons.
2.2. Learned counsel for the petitioner submits that by
virtue of the operation of Article 13 of the Constitution of India,
the impugned Section 6 of the Act of 1905 is deemed to be void.
The Act of 1905 is a pre-constitutional Act and is not in
conformity with the fundamental rights guaranteed under Part III
of the Constitution of India. The Governor has not granted any
approval to the Act of 1905 after the Constitution came into
force.
2.3. It is also submitted by learned counsel for the
petitioner that Section 6 of the Act of 1905 is discriminatory, as it
applies only to the government lands, whereas in case of private
lands the parties have to file a civil suit. In a summary manner,
eviction takes place under Section 6 of the Act of 1905. Under
Section 6 of the Act of 1905, the Revenue Officer can evict a
person. The government cannot be treated differently. The
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Limitation Act, 1963 applies to the government also. The right to
equality is violated. With the passage of time, the provision has
become unreasonable.
2.4. Reliance is placed on the judgment of the Apex Court in
the case of Joseph Shine v. Union of India, (2019) 3 SCC 39, to
submit that a statutory law is required to be struck down if found
unreasonable and that there is no presumption of
constitutionality of a pre-constitutional law. The provisions would
have to be tested on the anvil of Part III of the Constitution of
India.
2.5. Relying upon the judgment of the Apex Court in the
case of Satyawati Sharma v. Union of India, (2008) 5 SCC 287, it
is contended that a legislation, which may be reasonable at the
time of its enactment, may, with the lapse of time and/or due to
change of circumstances, become arbitrary, unreasonable and
violative of the doctrine of equality. The court can strike down
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the same even if the same was upheld earlier.
2.6. Reliance is also placed on the judgments of the Apex
Court in the cases of Maganlal Chhagganlal (P) Ltd v. Municipal
Corporation of Greater Bombay and others, (1974) 2 SCC 402;
and Krishena Kumar and another v. Union of India and others,
(1990) 4 SCC 207, and submitted that the ratio decidendi in the
previous case is only applicable.
2.7. To substantiate his submission that the earlier
judgment of the Apex Court in the case of Pandia Nadar and
others v. The State of Tamil Nadu and others, (1974) 2 SCC 539,
would not apply, learned counsel for the petitioner relies on the
judgment of the Apex Court in the case of Dr.Shah Faesal and
others v. Union of India and another, (2020) 4 SCC 1, and
submits that if the relevant provisions were not considered, the
same can be considered in a subsequent case.
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3. Mr.P.Muthukumar, learned State Government Pleader
appearing on behalf of the respondents, relies upon the judgment
of the Apex Court in the case of Pandia Nadar (supra) and
submits that the constitutional validity of the Act of 1905 has
been upheld by the Apex Court and it is not open for the
petitioner to re-agitate the same.
4. We have given our thoughtful consideration to the
submissions canvassed by learned counsel for the petitioner and
learned State Government Pleader.
5. The Act of 1905 and, more particularly, Section 6 of the
said Act, is the subject-matter of challenge in the present
petition.
6. The constitutional validity of the Act of 1905 was the
subject-matter of consideration before the Constitution Bench of
the Supreme Court in the case of Pandia Nadar (supra). The Act
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of 1905 was upheld by the Apex Court in its entirety. While
upholding the Act of 1905, the Constitution Bench of the Apex
Court navigated through the various provisions of the Act of 1905
and held it to be valid and intra vires.
7. The contention of learned counsel for the petitioner is
that the grounds raised by him in the present petition were not
raised in the case of Pandia Nadar (supra). The constitutionality
of a provision once upheld by the Supreme Court, would not be
open to challenge again on a new ground.
8. In the case of Delhi Cloth and General Mills Ltd v.
Shambhu Nath Mukherji and others, (1977) 4 SCC 415, the Apex
Court observed as under:
“11. ... If this Court held Section 10 as intra vires
and repelled the objection under Article 14 of the
Constitution it would not be permissible to raise
the question again by submitting that a new
ground could be raised to sustain the objection. It
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is certainly easy to discover fresh grounds of
attack to sustain the same objection, but that
cannot be permitted once the law has been laid
down by this Court holding that Section 10 of the
Act does not violate Article 14 of the Constitution.”
9. Even otherwise, a person in unauthorised occupation
cannot claim protection of Article 21 of the Constitution of India.
Under Article 21 of the Constitution of India, a person cannot be
deprived of his life or personal liberty except according to the
procedure established by law. Before proceeding under Section 6
of the Act of 1905, a notice has to be given to the party under
Section 7 of the Act of 1905. A reply is solicited. An opportunity
is given to the party to put forth his case pursuant to the notice
under Section 7 of the Act of 1905. The reply is required to be
considered by the authority before passing an order under
Section 6 of the Act of 1905. Thereafter, an appeal is provided
under Section 10 of the Act. Once it is found that the petitioner
was unauthorisedly occupying the government property and if
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procedure of law is followed, there is no gainsaying that the
petitioner would not be entitled to protection under Article 21 of
the Constitution of India. The procedure prescribed is
reasonable.
10. The reliance on Article 13 of the Constitution of India is
misplaced. Article 13(1) of the Constitution of India provides
that all laws in force in the territory of India immediately before
the commencement of the Constitution, insofar as they are
inconsistent with the provisions of Part-III of the Constitution of
India, shall, to the extent of such inconsistency, be void. To
attract Article 13(1) of the Constitution of India, the petitioner
will have to demonstrate that the Act of 1905 is inconsistent with
the provisions of Part III of the Constitution of India. As
discussed above, Article 21 of the Constitution of India would not
be violated.
11. For evicting the unauthorised occupants of the
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government lands, a special speedy procedure is prescribed
under the Act of 1905. The said classification would be
reasonable. The legislature in its wisdom has considered the
same.
12. Reliance placed by learned counsel for the petitioner on
Article 19(1)(e) of the Constitution of India is too far-fetched.
Article 19(1)(e) of the Constitution of India states that all citizens
shall have the right to reside and settle in any part of the
territory of India. However, the same would not mean to reside
and settle in any part of the territory of India unauthorisedly.
The law would never come to the aid of the person who, without
authority of law, unauthorisedly and illegally squats on the
property of the government. A person who unauthorisedly
possesses the property cannot be heard to say that he has a
constitutional right to unauthorisedly occupy the property.
13. Apropos the contention of learned counsel for the
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petitioner that Section 6 of the Act of 1905 is discriminatory,
inasmuch as it applies only to the government lands, whereas in
case of private lands the parties have to file a civil suit, it needs
to be accentuated that an intelligible differentia exists between
the occupiers of a public property and the occupiers of a private
property. It is in the interest of the public that eviction of
unauthorised occupants is made possible through a speedier
procedure. The government property can be used for public
purpose and an individual cannot be allowed to occupy the same.
14. Once the Constitution Bench of the Apex Court has
upheld the constitutional validity of the Act of 1905, and more
particularly the same provision assailed by the petitioner, it will
not be permissible to again consider the challenge to the same.
The petitioner could not remotely show a semblance of right over
the subject writ property. The procedure has been followed while
evicting the petitioner.
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In the light of the above, the writ petition deserves to be
dismissed and is hereby dismissed. There will be no order as to
costs. Consequently, W.M.P.No.3670 of 2018 is closed.
(S.V.G., CJ.) (D.B.C., J.)
23.11.2023
Index : Yes
Neutral Citation : Yes
sasi
To:
1 The Secretary to Government
State of Tamil Nadu
Revenue Department
Fort St. George
Chennai – 600 009.
2 The Secretary to Government
Law (OP-V) Department
Secretariat
Chennai – 600 009.
3 The District Collector
Salem, Salem District.
4 The Tahsildar
Taluk Office
Omalur Taluk
Salem District.
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THE HON'BLE CHIEF JUSTICE
AND
D.BHARATHA CHAKRAVARTHY,J.
(sasi)
23.11.2023
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