TMI Blog1968 (5) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... e U. P. Tenancy Act of 1939. Proceedings for the eviction of the petitioners from the aforesaid plots were started under the provisions of the U. P. Public Land (Eviction and Recovery of Rent and Damages) Act XIII of 1959 (hereinafter referred to as the Act unless described otherwise to avoid confusion). The Public Authority constituted under the Act issued notices to the petitioners under Section 3 of the Act calling upon them to show cause why orders of eviction be not passed against them in respect of the plots in their occupation. The petitioners filed objections contending, inter alia, that the Act was ultra vires the Constitution and that in any case they had acquired rights of hereditary tenants in the plots and were, therefore, not liable to eviction under the provisions of the Act. The objections were, however, rejected by the Public Authority and orders of eviction were passed by him against the petitioners. Appeals against the orders of the Public Authority were then preferred by the petitioners to the District Judge Naini Tal under Section 5 of the Act. After hearing elaborate arguments on behalf of the parties on the objections raised by the petitioners, the learned Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivision Bench of this Court in Bir Pratap Singh v. State of Uttar Pradesh 1960 All LJ 52 . The basis of the decision in the above case was that the necessity for speedier process of eviction from Government land of unauthorized occupants which, according to the preamble, was the reason behind the enactment, could not justify the placing of trespassers of Government land in a separate class to be dealt with differently, when there was nothing in the Act to suggest that Government land was immediately required for any public purpose. In consequence of that decision the legislature enacted the U. P. Public Land (Eviction and Recovery of Rent and Damages) Act XIII of 1959, which repealed the earlier Act of 1953 and expressly stated in its preamble that Government land was immediately required for purposes detailed therein. Later, however, in the light of the pronouncement of the Supreme Court in Manna Lal v. Collector of fhalawar. AIR 1981 SC 828 and Navrattanmal v. State of Rajasthan [1962]2SCR324 , the decision in Bir Pratap Singh's case 1960 All LJ 52 , was reconsidered in Sucha Singh v. Administrative Officer Afzalgarh Colonization Scheme Bijnor AIR1963All528 , by a Full Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical ground, and he urged that the U. P. Public Land (Eviction and Recovery of Rent and Damages) Act of 1959 bears such a close resemblance to the Punjab Act that it must also be condemned as unconstitutional. 5. Obviously, the Act can be said to be discriminatory on the ground urged by the learned counsel only if it allows scope for taking proceedings under the ordinary law against some unauthorized occupants of Government land and proceedings under the Act against others. If, on the other hand, the Act operates as a bar to ordinary legal proceedings in respect of persons falling within its purview and limits the remedy of the State against such persons only to proceedings under the Act, no question of discrimination can arise. The point for determination, therefore, is whether the remedy provided by the Act is an additional remedy which leaves the ordinary remedy of a suit in the civil or the revenue Court intact or whether it is the exclusive remedy--whether, in other words, the Act is supplemental or substitutive, 6. It will be seen that the Act applies to both agricultural and non-agricultural land. Against a person in unauthorized occupation of land of the latte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as having effected an implied repeal of another enactment and enunciated the principles which should act as guides in the determination of the question whether there has been an implied repeal. Delivering the majority judgment of the Court, Shelat, J. observed: The rule of construction is that where a statute provides in express terms that its enactment will repeal an earlier Act by reason of its Inconsistency with such earlier Act, the later may be treated as repealed. Even where the later Act does not contain such express words, if the co-existence of the two sets of provisions is destructive of the object with which the later Act was passed, the Court would treat the earlier provision as impliedly repealed. A later Act which confers a new right would repeal an earlier right if the fact of the two rights coexisting together produces inconvenience, for in such a case it is legitimate to infer that the legislature did not intend such a consequence. If the two Acts are general enactments and the later of the two is couched in negative terms, the inference would be that that the earlier one was impliedly repealed. Even if the later statute is in affirmative terms, it is often ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but only provides a special remedy for the enforcement of a preexisting right. The right of the Government to recover possession of Government land from a person who is in unauthorized occupation thereof is inherent in the right to the land. This right is not derived from the Act but exists independently of it. The entire subject-matter of the law relating to Government land is, therefore, not covered by the Act, and the Act cannot be likened to a code as was suggested by the learned Standing Counsel in the course of his arguments for the State. It is true that if a statute creates a new right or a new obligation and also specifies the particular mode in which the same is to be enforced, the jurisdiction of ordinary Courts is by implication excluded and the enforcement of the right or the obligation has to be done only by recourse to the procedure laid down by that statute. But where a statute is not of that kind and a right or obligation does not owe its existence to the statute, and all that the statute does is that it provides a special procedural machinery for its enforcement, there is no justification for inferring a necessarily implied exclusion of the ordinary, usual, and we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred by the Act. The objectivity of the first and the utter subjectivity of the second condition become pronounced by a reference to Section 4 (1) ,of the Act which reads thus: Where in pursuance of the notice under Section 3 no objection is filed, or if an objection, not being an objection referred to the Civil Judge under Section 7, is filed, then after giving the parties reasonable opportunity of producing evidence, if any, and or being heard, the Public Authority may, on being satisfied that the public land or part thereof is in unauthorized occupation, assess damages for such occupation, having regard to such principles of assessment as may be prescribed and make an order of eviction, for reasons to be recorded in writing, directing that the public land or part thereof, shall be vacated and damages paid . The fact regarding which the Public Authority has to be satisfied before passing an order under the above provision is that of unauthorized occupation and it is, therefore, obvious that the evidence, for producing which opportunity is to be given under Section 4(1), is evidence pertaining to that fact alone. Whether the public land is required for one or more pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence may produce in support of the same and after giving him a reasonable opportunity of being heard the Collector is satisfied that the public premises are in unauthorized occupation, the Collector may make an order of eviction giving reasons. It will thus appear that there was an obligation cast upon the Collector to initiate proceedings and to issue notice under Section 4 (1) if he formed the requisite opinion. But even then the Supreme Court held that the words used in Section 5 showed that the section conferred upon the Collector die discretion to adopt the procedure under Sections 4 and 5 or not. Here, the Act with which we have to deal the word 'may' has been used in relation to the very first step to be taken for starting proceedings under the Act and there can be no justification for regarding the word 'may' as doing anything more than conferring a discretion. And this discretion, it will be seen, is not open to question under the provisions of the Act. Section 5 which provides for an appeal against the order of the Public Authority is limited to an appeal against an order under Section 4 (1), and a refusal to issue notice under Section 3 is patently outs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeding and taken its place. At the stage of forming an opinion as to whether a public land is required for any of the public purposes of the Act and issuing a notice under Section 3 the Public Authority cannot he said to exercise any judicial function and there is nothing to indicate that its approach to the task then before it has to be a judicial approach. The only conclusion deducible from the above mentioned features of Sections 3 and 4(1) of the Act appears to be that the Act provides an additional remedy to the State for a speedier enforcement of its rights but it does not deprive the State of its power to have recourse to the ordinary legal remedy. A suit filed by the State in the civil Court for recovery of possession of non-agricultural Government land or in the revenue court for the recovery of possession of agricultural land against an unauthorized occupant thereof cannot be thrown out on the ground that the land is required for one of the purposes of the Act and the State should, therefore, only approach the Public Authority for action and try to persuade it to form an opinion that the land is required for one or more public purposes of the Act and to further persuade i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file a suit for eviction. As the Reasons and Objects relied on by the High Court show the legislature intended to provide an additional remedy to the Government a remedy which it thought was speedier than the one by way of a suit under the ordinary law of eviction. In our view, there is nothing in the Act to warrant the conclusion that it impliedly takes away the right of suit by Government or that, therefore, it is substitutive and not supplemental. Nor is it possible to say that the co-existence of the two remedies would cause such inconvenience or absurdity that the Court would be compelled to infer that the enactment of the Act resulted in an implied deprivation of the Government's right to sue in the ordinary Courts. These observations apply with equal, if not with greater, force to the Act before us. Obvious-ly, the Act is not negative in terms and a negation of the remedies under other enactments is not even involved in the provisions of the Act. The remedy provided by the Act is not incompatible with the remedies available under other laws and the inconsistency, if any, between the remedy under the Act and those available in the ordinary courts is not so irreconcil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act from this point of view that feature of the Act which stands out most prominently is the absence of a provision prescribing a period of limitation for starting proceedings thereunder. Whatever the duration for which a person has been in unauthorized occupation of Government hind, the Act empowers the Public Authority to issue a notice against him under Section 3 and to make a direction under Section 4(1) for his eviction. Even with regard to damages, there is nothing in Section 4 (1) to prevent the Public Authority from directing payment of damages for the entire period of unauthorized occupation. This complete freedom from the trammels of limitation makes proceedings under the Act far more onerous than the ordinary legal proceedings for the person against whom they are taken. And since from amongst person belonging to the same class some may be chosen for proceedings in the ordinary courts of law and others for proceedings under the Act, this feature of the Act by itself, renders it violative of Article 14 of the Constitution. 13. The second conspicuous feature of the Act in this connection is that the order of the District Judge on appeal against the direction is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht is clearly untenable and intended solely to oust the jurisdiction of the revenue court and it does not, therefore, refer the question of proprietary right to the civil court, the decision is not final and the courts of first and second appeal will examine the correctness of the decision in the appeal against the decree which is ultimately passed. Manifestly, Section 7 of the Act makes a provision of a most prejudicial nature, and, to revert to the question of implied repeal, the Section further emphasises the supplemental character of proceedings under the Act inasmuch as the opinion of the Public Authority on a question of title could never have been intended to be a substitute for a judicial decision. 14. For the reasons discussed above I am of the opinion that the U. P. Public Land (Eviction and Recovery of Rent and Damages) Act XIII of 1959 infringes Article 14 of the Constitution and is ultra vires. The proceedings taken against the petitioners were accordingly invalid. In view of my opinion in regard to the vires of the Act it is not necessary to examine the other contentions raised on behalf of the petitioners. 15. In the result both these writ petitions sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the parties, and in fact the cases were heard by the 'Public Authority' and the appeals by the District Judge on the supposition, that the area in which the land in question in the two petitions lies is not one to which the U.P. Zamindari Abolition and Land Reforms Act, I of 1951, applies. The area is governed by the provisions of the U. P. Tenancy Act, 1939, and it is that Act which provides the law in respect of the same. 19. Clause (e) of Section 2 of the 1959 Act defines 'public land' as under: 'Public land' means land belonging to or owned by, the State Government but does not include land (i) for the time being held by a tenure-holder from the State Government under the U. P. Zamindari Abolition and Land Reforms Act, 1950 or the U. P. Tenancy Act, 1939. (ii) which has vested in the Gaon Samaj in pursuance of the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950. (iii) for the time being occupied by any building constructed before unauthorized occupation of the land . In order, therefore, that this land may be public land it must belong to or owned by e State Government and it must not have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viction and Rent Recovery) Act, 31 of 1959, was challenged and the challenge was even upheld. 23. The challenge to the validity of the provisions of the 1959 Act has been three-Fold: (1) It provides a special procedure for the eviction of trespassers in Government land and is to that extent discriminatory in respect of ejectment of trespassers by the Government on the one hand and by the owners of private property on the other. (2) It provides for a special procedure for the eviction of unauthorized occupiers of land when that land is required by the State for a public purpose whereas unauthorized occupiers of even Government land which is not so required have to be evicted in accordance with the provisions of Section 180 (2) of the U. P. Tenancy Act or according to the general provisions of the law for the ejectment of the trespassers as may be applicable to the facts of the particular case, and to that extent there is discrimination as between the different trespassers in the Government land even. (3) There is discrimination even between unauthorized occupiers in land which is required for a public purpose, inasmuch as the 'public authority has discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the U. P. Tenancy Act or otherwise, and all suits against 'unauthorized occupiers' over the land which is required for a public purpose would be governed by Section 3 aforesaid. It appears, however, that there is no force in this contention. As pointed out by Sutherland in Statutory Construction, Volume I, page 470: The presumption against implied repeals it classically founded upon the doctrine that the legislature is presumed to envision the whole body of the law when it enacts new legislation, and, therefore, if a repeal of the prior law it intended to expressly designate the offending provisions rather than to leave the repeal to arise by necessary implication from the later enactment . Repeal by implication may be inferred only if the provisions of a later enactment are so inconsistent with or repugnant to the provisions of the earlier one, that the two cannot stand together. As pointed out by Smith, J. in Kutner v. Phillips, (1891) 2 QB 267, the test in such case is AIR1963All528 : Now a repeal by implication is only effected when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one that the two cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is a reasonable presumption that the legislature did not intend to keep really contradictory enactments on the Statute Book, or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted unless it be inevitable. A reasonable construction which offers an escape from it is more likely to be in consonance with the real intention , and then observe that the well settled rule of construction is that when the later enactment is worded in the affirmative terms without any negative it does not impliedly repeal the earlier law. Their Lordships also referred to the observations of Dr. Lushington in (1864) 33 LJ PM A 193 . as quoted in Craise on Statute Law, 6th Edition, p, 371: What words will establish a repeal by implication it is impossible to say from authority or decided cases . The prior statute would. 1 conceive, be repealed by implication if its provisions were wholly incompatible with a subsequent one; or if the two statutes together would lead to wholly absurd consequences; or if the entire subject-matter were taken away by the subsequent statute 30. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light that the procedure for the purpose was prescribed under the relevant Acts and when that provision was made, it was inferred that what the Legislature intend ed was to provide how the new rights and obligations were to be enforced to the exclusion of the ordinary law of the land. It is, therefore only in the case of such new rights and obligations that exclusion of the jurisdiction of the ordinary Courts may be inferred, if the legislation by which these rights and obligations were created provides adequate remedy in respect of them. In all other respects the jurisdiction of the ordinary Courts will remain intact even though it may be in the alternative. AIR 1942 All 429 (FB), relates to a question of limitation. A Full Bench of this Court held in that case that since the Provincial Insolvency Act provided a complete Code in the matter of limitation, the general provisions under the Limitation Act will be deemed to have expressly repeal ed. 32. [1965]57ITR643(SC) , relates to levy, assessment, collection and refund of sales tax. The imposition of sales tax was a view obligation created by the Bombay Sales Tax Act, 5 of 1946, and that power was invested in the hierarchy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent from the one in the Punjab Act, the main points of difference pointed out by him being:-- (1) that under the U. P. Act summary proceedings for ejectment are to be taken only if the land in unauthorized occupation is required for any of the purposes mentioned In Clauses (a) to (f) of Sub-section (1) of Section 3; (2) that under the U, P. Act if an objection is raised that the land in question is not 'public land', the objection is referred for decision to the Civil Judge corresponding to which there is no provision in the Punjab Act; and (3) that an appeal is provided against the final order passed by the Public Authority under the U. P. Act to a District Judge whereas under the Punjab Act an appeal lay to the Commissioner. 36. None of these distinguishing features, however, make any material difference in the consideration of the vires of the U. P. Act. It is certainly true that under this Act summary proceedings can be taken only if the land is required, in the opinion of the Public Authority, for any of the purposes mentioned in Clauses (a) to (f) of Sub-section (1) of Section 3 of the Act, but these Clauses (a) to (f) are by themselves so wide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction to hear an appeal in a District Judge under the U. P. Act makes such a material difference that it distinguishes the position under the Punjab Act from the one under the U. P. Act. 40. The point which has to be taken into consideration is the circumstances under which the Punjab Act was held by their Lordships of Supreme Court to be supplemental and not substitutive None of the circumstances aforesaid were taken into consideration by their Lordships in coming to that conclusion. The main consideration which weighed with their Lordships that the Collector had power under Section 5 of the Punjab Act to start proceedings against unauthorized occupiers of Government fend and he could also, if he so considered necessary or desirable, proceed against them by a regular suit 41. It would be worthwhile noting that Section 4 of the Punjab Act which corresponds to Section 3 of the U. P. Act of 1959 uses the word shall in respect of taking of action for ejectment of the person in unauthorized occupation the exact words being: if the Collector is of opinion that any persons are in unauthorized occupation of any public premises situate within his jurisdiction and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as that the Act gives unrestricted power to the State Government to appoint any person as 'Public Authority' irrespective of the qualifications which he might be possessed of for holding such office. 'Public Authority' as defined in Clause (d) of Section 2 of the Act means any person authorised by the State Government to perform the functions of a 'Public Authority' under this Act for such area as may be specified in this behalf. As the definition stands any person may be appointed as 'Public Authority' but that does not of course mean that any persons in the street would be so appointed by the Government. This question was considered by the Supreme Court in Commissioner of Commercial Taxes v. Ram Kishan Sri Kishan Javar [1968]1SCR148 . In that case the question for consideration was about the person who may be authorised by the State Government to exercise powers of search and seizure under the Madras Sales Tax Act. Under Sub-section (2) of Section 4 of the Madras General Sales Tax Act, 1 of 1959, the State Government is given the power to empower any officer to make a search and it was contended on behalf of the respondents in the appeal before the ..... 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