BRIJ BHUKAN KALWAR Vs. S

JUDGEMENT

(1.) These are applications filed under Article 226, Constitution of India, and they all raise questions regarding the construction, interpretation and validity of Bihar Act 31 of 1950, called the Bihar Land Encroachment Act, as amended by Bihar Act 28 of 1951 and Bihar Act 25 of 1952, The principal Act (Act 31 of 1950) received the assent of the Governor on 28-9-1950 but it did not receive the assent of the President. The two amending Acts, however, have been assented to by the President, The preamble to the main Act runs as follows:

(2.) As the Act with its amendments has been, attacked on various grounds, I think I must give in this judgment a brief outline indicating the scheme of the Act. Section 2(ii) explains what is meant by the expression "public property" as used, in this Act. It means (a) land acquired under the provisions of the Land Acquisition Act, (b) land belonging to Government within a cantonment, (c) land recorded or surveyed as belonging to Government or any local authority or a Railway Company which is used for any public purpose, such as a road, canal or embankment, or which is required for repair or maintenance of such road, canal, or embankment, while such land continues to be so used or required, (d) land recorded for the use of the community in the record-of-rights prepared under the various, tenancy laws in force in the State of Bihar, such as gairmazrua-am, gochar, cremation ground, graveyard, tank, pyne, bandh, ahar, road, pathway, (e) land in possession of Government or any local authority or a Railway Company obtained by way of transfer or otherwise. Section 2 (ii) was formerly in these terms: "Subject to the provisions of any law for the time being in force" --as indicated in (a), (b), (c), (d) and (e). But, by the amendment made in the year 1951, the words "subject to the provisions of any law for the time being in force" were deleted, and after (e) another clause, called Clause (f), was inserted. Clause (f) is in these terms: "land over which, the public or the community have got any right of easement." Section 3 of the Act lays down that any person who unauthorisedly occupies any land which is public property shall be liable to pay, for the whole period of occupation a certain amount of compensation, and there are three important provisos attached to this section. The first proviso-says that no assessment shall be made in respect of any period of occupation for more than twelve years before the commencement of the Act; the second proviso says that nothing in this section shall apply to any land which is public property as defined in Clause (ii)(d) of Section 2; and the third proviso says that, notwithstanding anything contained in any law for the time being in force, payment of assessment under this section shall not confer any right of occupancy. The word used in this section is "assessment" and not "compensation", but certainly the intention is to realise a certain amount of compensation for the period of occupation. Section 4 says that any person liable to pay assessment under Section 3 shall be liable at the discretion of the Collector to pay in addition to the assessment, by way of penalty, a sum not exceeding ten times of the assessment. And the proviso attached to this section says that no penalty shall ordinarily be imposed in respect of unauthorised occupation of such land for any period not exceeding one year. Section 5 contains two sub-sections. The first sub-section says that any person who unauthorisedly occupies any land which is public property may be summarily evicted by the Collector and that any crop or other produce raised on the land and any building erected or anything deposited thereon shall be liable to forfeiture. Sub-section (2) says that before eviction under this section, the Collector shall serve a notice, as provided in Section 6, on the person reported to be in occupation or his agent requiring him to vacate the land, and, in the event of non-compliance with the direction contained in the notice, shall remove, or depute a subordinate officer to remove, any person who may refuse to vacate the land. In the event of resistance or obstruction being offered to the removal, the Collector shall hold a summary enquiry into the facts, and if he is satisfied that the resistance or obstruction was not justified, he may issue a warrant for the arrest of the person resisting or obstructing, and, on his appearance, commit him to custody in the civil jail for such period, not exceeding thirty days, as may be necessary to prevent the continuance of such resistance or obstruction. Section 6 is the provision for issuing notice to the person reported to be in unauthorised occupation of public property before taking proceedings under Section 3 or Section 4 or Section 5. Section 7 lays down that the amount of assessment and penalty imposed under Sections 3 and 4 of the Act shall be recoverable as a public demand under the provisions of the Bihar and Orissa Public Demands Recovery Act. Section 8 provides for appeal and revision from an order of the Collector passed under this Act. Section 9 makes an unauthorised occupation of land which is public property as defined in Clause (ii) (d) of Section 2 an offence and provides the penalty for it. According to Section 10, any person unauthorisedly occupying land can also be proceeded against under any other law for the time being in force. Section 11 bars the jurisdiction of the Civil Courts in respect of any proceedings under this Act. Section 12 gives the State Government power "to make rules for carrying out the purposes of this Act. By the amendment of 1952, the expressions "unauthorisedly occupies", "unauthorised occupation" and "unauthorisedly occupying" have been explained and another clause namely, Clause (iv) has been added after Clause (iii) of Section 2. This clause is important, and I should quote it in extenso:

(3.) Most of these cases come within the purview of Clauses (d) and (f) of Section 2, and there are only a few cases which should be placed under Clause (c). In some of the cases final orders had been passed, and in others proceedings are still pending. The learned Counsel appearing for the State have divided these cases under the following categories: (1) those in which the Collector has refused to investigate as to the correctness or otherwise of the claim of right put forward by the petitioners; (2) those in which the proceedings are still pending and there is no reason to interfere; (3) those in which the petitioners have made no valid claim, or their claim of right has been negatived by the Court below; and (4) those in which the materials available are so scanty that this Court will not be able to pass any order.