Brij - Bhukan - Kalwar - and - Ors - Vs - SDO - Siwan - and - Ors - ADVERSE POSSESSION

MANU/BH/0001/1955
Equivalent Citation: AIR1955Pat1
IN THE HIGH COURT OF PATNA

SPECIAL BENCH
Misc. Judicial Cases Nos. 58, 133 and 394 of 1952 and 37, 99, 123 etc. of 1953
Decided On: 17.08.1954
Appellants:Brij Bhukan Kalwar and Ors.
Vs.
Respondent:S.D.O. Siwan and Ors.
Hon'ble Judges/Coram:
Das, Narayan Roy and Jamuar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: A.B. Saran, Akbar Imam, Amalakanta Choudhury,
Amin Ahmad, Angad Ojha, Ashwini Kumar Sinha, Balbhadra Pd. Singh, Balram Kumar
Sinha, Basudeo Pd., B.K. Sharma, B.N. Sinha, Brahmadeo Narain, Braj Kishore
Prasad, Chandi Pd., Chandra Bhal Bai, Chandra Bhusan Sahay, Chuni Lal, Dineshwar
Prasad, D. Lall, D.L. Nand Keolyar, D.N. Varma, Ganesh Prasad Misra, G.C. Banerji,
Girijanandan Pd., Gokulanandan Pd., Gopi Krishna Sinha, Gorakhnath Singh, G.P.
Mitra, G.P. Shahi, Gupteshwar Pd., Harnarayan Pd., Harinandan Singh, Indra Bhanu
Singh, Ishwar Narain Sinha, Jaleshwar Prasad, Jamuna Pd. Choudhury, Janardan
Sinha, Janeshwar Singh, J.P. Choudhary, Kailash Rai, Kameshwari Nandan Singh,
Kamleshwar Pd. Sinha, K.B.N. Singh, K.D. Chatterji, K.D. De, Kedar Nath Thakur,
Kedar Nath Verma, Keshari Singh, K.P. Sinha, K. Roy, Kumar Singh, Lakshman Saran
Sinha, Madhusudan Singh, Manindra Nath Banerji, M.M. Gajadhar, M. Rahman,
Murtaza Fazl Ali, Nawadwip Ch. Ghosh, N.P. Agarwala, Padmanand Jha, Parmeshwar
Pd. Sinha, Parsuram Pd. Verma, P.R. Das, Dr. Qazi Nazrul Hassan, Raghunath Jha,
Rajendra Narain Singh, Rajeshwar Kumar, Rajeshwar Prasad, Rajeshwari Prasad,
Ramnandan Pd., Ramanand Sinha, Rameshwar Choudhary, Rameshwar Prasad, Ramji
Sharan, R.L. Sinha, R.P. Srivastava, R.S. Sinha, Saiyid Amin Ahmad, Sankat Haran
Singh, S.A. Saghir, Satyanand Kumar, Shambhu Barmeshwar Pd., Shambhu Nath,
Shambhu Pd. Singh, S.C. Sinha, Sheokumar Singh, Shrideo Mishra, S.H. Siddique, S.
Mustafi, S.R. Ghosal, Sridhar Dayal Sinha, Surendra Pd. Sinha, Syed Medhi Imam,
T.P. Sinha, Umesh Ch. Pd. Sinha, Ugrah and U.N. Sinha, Advs.
For Respondents/Defendant: Adv. General, Govt. Advocate, A.B.N. Sinha, A.K. Mitter,
Amin Ahmad, Angad Ojha, Baidyanath Pd., Advs. (No. II), Baidyanath Pd. Samaiyar,
Balram Kumar Sinha, Basudeva Pd., Bindeshwari Pd. Sinha, Advs. (No. II), B.K.
Sharma, Brahmadeo Narain, Baidyanath Jha, Chandra Bhusan Sahay, Dasu Sinha,
Dharmshila Lall, Dineshwar Pd., Gopi Krishna Sinha, Gorakh Nath Singh, G.S. Prasad,
Harians Kumar, Harinandan Singh, H.K. Banerji, Indra Bhanu Singh, Jameshwar
Singh, Janardan Sinha, Kameleshwar Pd. Sinha, Kameshwari Nandan Singh.
Kanhaiyaji, K.B.N. Singh, Keshari Singh, Lakshmi Narayan Sinha, L.M. Sharma, Medini
Pd. Singh, M. Fazl Ali, M. Rahman, Nakuleshwar Pd., Narottam Chatterji, Navadwip
Chandra Ghosh, Purnendu Narayan, Rajeshwar Pd. Srivastava, Raj Kishore Pd.,
Ramanand Sinha, Shiva Nugrah Narain, Ramadeva Sinha, Rameshwar Prasad, Ram
Jatan Singh, Ram Kishore Parsad Sinha, Ramkishun Sinha. Rani Nandan Prasad,
Ravneshwar Pd. Sinha, Revati Raman Pd. Singh, Advs. (No. II), Sachidanand Kishore
Pd. Sinha, Saileshwar De, S. Amim Ahmad, S. Anisur Rahman, Sarat Kumar Ray
Choudhary, Sheo Kumar Singh, Shiv Priya, S.N. Bhartuar, S. Shamsul Hasan, Syed
28-01-2020 (Page 1 of 69) www.manupatra.com CNLU STUDENT

Akbar Husain, Tarkeshwar Nath, T.R. Bajaj, Thakur Pd., Uday Singh, U.N. Sinha and
Umesh Ch. Pd. Sinha, Advs.
JUDGMENT
Narayan Roy, J.
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:
"Whereas it is expedient to make better provisions for removal and
prevention of encroachments on lands which are public property."
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:
" t h e expression 'unauthorisedly occupies', 'unauthorised occupation' or
'unauthorisedly occupying', with its grammatical variations and cognate
expressions, means the act of any person in remaining in unauthorised
occupation of any land which is public property within the meaning of Sub-
clauses (d) and (f) of Clause (ii), not-Withstanding any contract, express or
implied, between him and the landlord or the owner of the land made before
or after the commencement of this Act, and notwithstanding anything
contained in any law, local custom or usage to the contrary."
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.
4 . The above classification made on behalf of the State would show that there are

many cases in which it is conceded by the State that there should be interference by
this Court, and that is because both the learned Advocate-General and the learned
Government Advocate thought that the Act authorises the Collector to make the
necessary investigation into the claim of right put forward by the person aggrieved.
One of the most important points for determination in these cases will be as to
whether under the Act an investigation of the nature sought by the petitioners is at all
permissible.
5. But, before I proceed to determine what orders should be passed in each of these
cases, I have to pronounce upon the validity or otherwise of the Act or that part of
the Act which is impugned.
"An unconstitutional Act is not law, it confers no rights, it imposes no duties,
it affords an protection, it creates no office; it is, in legal contemplation, as
inoperative as though' it had never been passed."--Field J. in -- 'Norton T.
Shelby County' (1885) 118 US 425 .
Willoughby has quoted the following passage from the judgment of the Court of West
Virginia, in -- 'Shephard v. Wheeling' 30 W Va 479 (B) and has observed that the
doctrine that the judicial declaration of the unconstitutionality of a statute has not the
effect of a veto or nullification or abrogation of the statute so as, in effect to strike it
from the statute books, is excellently stated in this judgment:
"(The Court) does not annul or repeal the statute if it finds it in conflict with
the Constitution. It simply refuses to recognize it, and determines the rights
of the parties just as if such statute had no application. The Court may give
its reasons for ignoring o r disregarding the statute, but the decision affects
"the parties only, and there is no judgment against the statute. The opinion
or reasons of the Court may operate as a precedent for the determination of
other similar cases, but it does not strike the statute from the statute book; it
does not repeal......the statute. The parties to that suit are concluded by the
judgment, but no one else is bound. A new litigant may bring a new suit,
based on the very same statute, and the former decision cannot be pleaded
as an estoppel, but can be relied on only as a precedent. This constitutes the
reason and basis of the fundamental rule that a Court will never pass upon
the constitutionality of a statute unless. It is absolutely necessary to do so in
order to decide the case before it."
No particular points have been formulated for determination b y this Special Bench,
and what we have to determine is whether any of these applications is fit to succeed,
and, certainly, if the Applications are to succeed, at least certain portions of the
statute will have to be declared unconstitutional and void. Some of these applications
have been contested not only on behalf of the State but also on behalf of certain
private parties, and, in fact, Mr. Amin Ahmad who has appeared for the opposite
party in Miscellaneous Judicial Case No. 173 of 1953 has defended this Act much
more strongly than the learned Government Advocate.
He was supported to some extent by the learned Advocate-General who gave the final
reply on behalf of the State. We shall, therefore, have to give our judicial
pronouncement against the statute only in so far as it is necessary for the
determination of the rights claimed by the petitioners, and in cases in which there is
contest on behalf of private parties, we will have to give the same amount of
consideration and weight to the submissions made on their behalf which we are
bound to give to the submissions made on behalf of the State.
6. I find it convenient to take up first writ application No. 58 which was the first case

argued before us and in which Mr. Jaleshwar Prasad for the petitioner and the learned
Government Advocate on behalf of the State advanced very concise and able
arguments. The really difficult points would be determined in this case, and while
discussing the points raised in this case I may have to refer to certain submissions
made by learned Counsel appearing for the petitioners in some of the other cases
with a view to avoid repetition. But, even before I take up case No. 58. I should
dispose of the two points raised by Mr. Ahmad which were, unfortunately, overlaid
and in some measure obscured by reference to abstract propositions of law culled
from here and there.
The contention of Mr. Ahmad is that the whole of the Act is valid and constitutional
and that it is an Act for the abatement of public nuisance. Mr. Ahmad would take
away this Act from the purview of Article 31(2), Constitution of India and would put
it under Article 31(1) alone which, according to the submission of Mr. Ahmad, is the
Article where the police powers of the State are indicated. Alternatively, Mr. Ahmad
has suggested that even if Article 31(2) applies, the Act will be saved under Article
31(5). The substance of the argument of Mr. Ahmad is that this is a law enacted in
exercise of the police powers of the State and is meant for the protection of lands
which are public properties. For legislative competence Mr. I Ahmad relies on item 18
of the State List read with items 64 and 65 of the said List.
I say with respect that the argument advanced by Mr. Ahmad suffers from confusion
of thought. There may be legislative competence for enacting a law for the removal
and prevention of encroachments on public lands, and there may be an Act "to make
better provisions for removal and prevention of encroachments on lands which are
public property" (this being the preamble), but still there may be provisions In the
Act indicating that the State legislature has trenched upon I items in the Union List or
the Concurrent List.' The artificial definition o f "public properly" as given in this Act
has been the subject of attack, and if the submissions made on behalf of the
petitioners are sound, the State legislature has encroached upon subjects which are
outside its competence, even though the preamble of the Act apparently shows that it
is an Act covered by item 18 of the State List.
The test of repugnancy was thus explained by Dixon J. in -- 'Victoria v. The
Commonwealth' 58 W LR 618 (C)
"Substantially it amounts to this. When a State law, if valid, would alter,
impair or detract from the operation of the law of the Commonwealth
Parliament, then to that extent it is invalid. Moreover, if it appears from the
terms, nature or the subject-matter of a Federal enactment that it was
intended as a complete statement of the law governing a particular matter or
set of rights or duties, then for a State law to regulate or apply to the same
matter or relation is regarded as a detraction from the full operation of the
Commonwealth law and so is inconsistent."
Mr. Ahmad, therefore, when he sought to stress before us that the Act should be
upheld in its entirety, because it was covered by item 18, was under a complete
misapprehension. A question as to the pith and substance of the Act may be a
relevant consideration, but still we are bound to consider the plea of inconsistency
and repugnancy if the contention is that the Act substantially trenches upon
prohibited ground and comes within the mischief of Article 254, Constitution of India.
One of the most important points for consideration in these cases will be whether
certain provisions of this Act including the definition of "public property" are
inconsistent with or repugnant to the existing law; and if it is found that though the
Preamble is unexceptionable and apparently indicates that the Act is within the

competence of the State legislature, most of the sections of the Act, have been so
drafted that the Act comes into direct conflict with the law of limitation, then certainly
those provisions of the Act will have to be declared void and unconstitutional, and
the petitioners against whom orders have been passed ignoring the provisions of the
Limitation Act will have to be given the necessary relief.
The Constitution of India does recognise that "rights of property", like all other social
and conventional rights, are subject to such reasonable limitations in their enjoyment
as shall prevent them from being injurious, and to such reasonable restraints and
regulations established bylaw as the legislature, under the governing and controlling
power vested in them by the Constitution, may think necessary and expedient"; and
this principle finds place in Arts. 19(5) and 31(5) of our Constitution. This so-called
police power the State "extends to the protection of the lives, limbs, health, comfort
and quiet of all persons and the protection of all property within , the State". If,
however, a statute enacted ostensibly tar removal and prevention of encroachments
on lands which are public property has little or very unsubstantial relation to those
subjects and is a palpable invasion of rights secured by Part III of the Constitution,
the Court will have to declare that portion of the statute which is a palpable invasion
of the fundamental rights as void and unconstitutional and thus give effect to the
Constitution.
Even according to the American Constitution, private property can be seized only
pursuant to a law (that is, a valid law), and Mahajan J. (as he then was) observed as
follows in the well-known Land Reforms Act case from Bihar --'The State of Bihar v.
Sir Kameshwar Singh AIR 1952 SC 252
"It is clear, therefore, that the obligation for payment of just compensation is
a necessary incident of the power of compulsory acquisition of property, both
under the doctrine of the English Common Law as well as under the
continental doctrine of eminent domain, subsequently adopted in America."
I am putting this passage just at present only with a view to Showing that if any of
the petitioners has on account of the efflux of time acquired title by adverse
possession to a property which was at one time a public property (e.g., gairmazrua-
am, gochar, cremation ground), that property cannot be taken by the State even
according to the continental doctrine of eminent domain subsequently adopted in
America, without payment of compensation. As a matter of fact, as was pointed out
by Mukherjea J. of the Supreme Court in -- 'Charanjit Lal v. Union of India'
MANU/SC/0009/1950 : AIR 1951 SC 41 (E), in interpreting the provisions of our
Constitution the Court should go by the plain words used by the Constitution-makers
and the importing of expressions like "police power" which is a term of variable and
indefinite connotation in American law can only make the task of interpretation more
difficult.
The Judges of the Supreme Court were unanimous in their decision in the case of --
'Raghubir Singh v. Court of Wards, Ajmer', MANU/SC/0012/1953 : AIR 1953 SC 373
(F), and the following observation made in that judgment will have a very great
bearing on the question which we have to decide in this case:
"It is still more difficult to regard such a provision as a reasonable restriction
on the fundamental right. When a law deprives a person of possession of his
property for an indefinite period of time merely on the subjective
determination of an executive officer, such a law can on no construction of
the word 'reasonable' be described as coming within that expression,
because it completely negatives the fundamental right by making its

enjoyment depend on the mere pleasure and discretion of the executive, the
citizen affected having no right to have recourse for establishing the contrary
in a civil Court."
If after examination and analysis it is found that the terms of this statute are
repugnant to and inconsistent with the existing law and that the persons affected oy
the statute have been left at the mercy of the executive officers, the Act or some
portions of it will have to be scraped as unconstitutional, because they negative the
fundamental rights by making the enjoyment of the rights dependent on the whim of
the executive. With every respect for the arguments advanced by Mr. Ahmad, I must
point out that the expression "public nuisance" as used by him is most inappropriate
and even if he had to submit that this is an Act covered by items 18, 64 and 65 of
List II the question of public nuisance does not aarise. As a matter of fact, if it is an
enactment with regard to hand, it comes solely within Item 18, and only the penal
portions of the statute can come with item 64. The jurisdiction and the (sic) upon the
Collector may be covered by item 65, but after reading and considering these three
items one cannot say that this is an Act for the alleviation of public nuisance.
Articles 19 and 31 which, according to the submissions made on behalf of the
petitioners, have been infringed, speak of property, and whenever the word
"property" is used, it means all the attributes and indicia which result in the legal
conception of property. If a person, therefore, exercises right of dominion, right of
possession and right of control over a property, he cannot be evicted from it except
by an act pursuant to the law. If a legislature has not validly taken action under
Article 31(1) or 31(2), then the next question which will arise is whether any
restriction can be placed upon the property right under Clause (5) of Article 31. I
have not, therefore, been at all able to appreciate the contention of Mr. Ahmad that
this is an Act for the alleviation of public nuisance.
Probably, because the land with which Mr. Ahmad is concerned is recorded as
gairmazrua-am, he thought that any Act which is promulgated for the retention or for
the restoration of the gairmazrua character of the land should be regarded as an Act
for the alleviation of public nuisance. This argument suffers from the fallacy that no
private individual can take possession of a gairmazrua-am land and can acquire a
perfect title to it by being in adverse possession for more than the statutory period.
The term "nuisance" as used in law is not a term capable of exact definition, and it
has been pointed out in Halsbury's Laws of England that.
"even at the present day there is not entire agreement as to whether certain
acts or omissions shall be classed as nuisances or whether they do not rather
fall under other divisions of the law of tort."
At any rate, trespass is not the same thing as nuisance, and the distinction between
the two is that in trespass the immediate act itself which constitutes the offence
occasions a prejudice or an injury to the sufferer's person or property or amounts to
dispossession, whereas in the case of nuisance the act itself often does not directly
affect the person or property of another, but the consequences of such act become or
are prejudicial to his person or property. There can be a trespass on highways, and
the dedicator of a public way, like the grantor of a private way, may maintain an
action in trespass against any member of the public who acts in excess of his right,
and a person who uses the public ground for purpose other than the purpose for
which it is used by the public is a trespasser against whoever is regarded as the
owner of the soil. Even in cases which have been treated as cases under Section 133
of the Criminal P. C., it has been held that if the Magistrate finds that the claim of the
defendant is a 'bona fide' one to the effect that the right is a private and not a public

right, the Magistrate should stay his hands and refer the parties to the Civil Courts.
The Madras case cited by Mr. Ahmad,--"Thambiran Padayachi v. State of Madras'
MANU/TN/0277/1952 : AIR 1952 Mad 756 (G), can be of no assistance to us in
deciding the point raised. The ratio of that case is that the acquisition of property for
public purpose under Article 31(2) includes whatever results in advantage to the
public and that it might be in favour of individuals provided they are benefited not as
individuals but in furtherance of a scheme of public utility. Certainly, their Lordships,
I say with respect, have rightly pointed out that schemes for construction of houses
for clearing slum areas, relieving congestion and housing poor people are for a public
purpose as they tend to promote social welfare and prosperity. This ruling is
absolutely irrelevant, if the question which arises for our determination is as to
whether private rights can be acquired in public lands, and whether the impugned
Act, as it stands, can be regarded as valid and constitutional, even though it
sanctions the arbitrary eviction of a person from a public land, though that person
has perfected his title to the land by way of adverse possession over a period of
twelve years.
Because Mr. Ahmad could easily appreciate that the problem before us is a problem
entirely different from the one which was before the Madras High Court, he asked us
to overrule all the decisions of this Court which lay down that a private individual can
acquire title to gairmazrua lands by remaining in adverse possession of them for a
period of more than twelve years. But, there can be no question of overruling those
decisions. If Section 28, Limitation Act has not been expressly or by implication
repealed by the impugned Act, then Section 28 will come into operation, and it lays
down that at the determination of the period hereby limited to any person for
instituting a suit for possession of any property, his right to such property shall be
extinguished. For the purpose of encroachment there is no distinction between
private land and public land, and it is therefore that in a series of decisions this Court
has said that the owner's title to the portion encroached upon and built over is
extinguished at the end of twelve years and pro tanto the extinction of the owner's
title operates to give a good title to the wrongdoer. (See --'Akhauri Haliwant Sahay v.
Deo Narain Mali' MANU/BH/0140/1940 : AIR 1941 Pat 181 (H) and -- 'Kuseshwar Jha
T. Uma Kant Jha' MANU/BH/0169/1941 : AIR 1942 Pat 188 (I)).
It is true that as pointed out in several cases, gairmazrua-am land is a class of land
which is not under the control of the landlord and which he has no right to settle with
others. It was so held in a well-known case of this Court, which is called the Rajgir
Kund case, -- 'Muhammad Waliul Haq v. Ludput Upadhya' MANU/BH/0309/1937 : AIR
1937 Pat 388 (J). This decision is to the effect that the entry of gairmazrua-am in the
survey record-of-rights cannot be read as warranting a presumption that the
zamindar has a right of control over such lands, and that the only presumption which
can be drawn from the entry is that the property is not under the control of the
zamindar. Still, it was held that the pool or kund which had been built on the
gairmazrua-am land in the zamindari of certain Muslim landlord was under the
control of the Hindus or the Brahmins. The finding was that the kund had been in the
actual possession of the Brahmin Pandas from ancient times, and the rights claimed
by them with regard to the kund were upheld.
Mr. Ahmad seemed to rely on Section 23, Limitation Act, which says that in the case
of a continuing breach of contract and in the case of a continuing wrong independent
of contract, a fresh period of limitation begins to run at every moment of the time
during which the breach or the wrong, as the case may be, continues. Both Sections
23 and 28 were considered by a Bench of this Court in -- 'Bibhuti Narayan Singh v.
Guni Mahadev Asram Prasad' MANU/BH/0041/1939 : AIR 1940 Pat 449 (K). The clear

answer to the contention based on Section 23 is to be found in the following
observation of Meredith J.:
"Where the wrong amounts to dispossession of the plaintiff, then, although it
may be a continuing wrong, the plaintiff cannot recover possession after
twelve years, because under Section 28, Limitation Act, he himself has got
no right" left which he can enforce."
Section 23 can only apply where the wrong is really a continuing one, and it cannot
be applied to a case where the encroachment is by an overt act & the person
encroaching has ever since the date of encroachment been in possession and has by
now been in possession for a period of twelve years. The decision in --
'MANU/BH/0041/1939 : AIR 1940 Pat 449 (K)' was followed in--
MANU/BH/0169/1941, and their Lordships again pointed out that there is nothing in
Section 23 upon which a distinction can be made between the case o f encroachment
upon private land and upon public land, and that if in the one case limitation may
run, there is no reason why it should not also run in the case of a precisely similar
act committed upon public land. As Meredith J, says, the real question is not whether
the wrong is continuing or not, but whether the wrong amounts to a complete ouster
of the plaintiff, that is, to his dispossession. The true effect of a statute of limitation
is thus stated by Angell:
"The principle on which the statute of limitation is predicated is not that the
party in whose favour it is invoked, has set up an adverse claim for the
period specified, but that such adverse claim is accompanied by such
invasion of the rights of the opposite party as to give him as cause of action,
which having failed to prosecute within the time limited by law, he is
presumed to have extinguished or surrendered. A mere claim of title
unaccompanied by adverse possession, gives no right of action to the person
against whom it is asserted and consequently his rights are unaffected by
statute" (Angel on Limitation, page 398).
The Judicial Committee observed as follows in -- 'Perry v. Clissold' 1907 AC 73 :
"It cannot be disputed that a person in possession of land in the assumed
character of owner and exercising peaceably the ordinary rights of ownership
has a perfectly good title against all the world but the rightful owner. And if
the rightful owner does not come forward and assert his title by process of
law within the period prescribed by the provisions of the Statute of
Limitations applicable to the case, his right is for ever extinguished, and the
possessory owner acquires an absolute title."
In other case also the Judicial Committee has pointed out that it is of the utmost
consequence in India that the security which long possession affords should not be
weakened and that if twelve years' peaceable and uninterrupted possession of lands
alleged to have been enjoyed by encroachment can be proved, the person
encroaching acquires a valid title to the lands after the lapse of the statutory period,
and because on account of his long possession he gets an indefeasible title to the
property, he can transfer the title to a third person. Section 23 was very well
explained, I say with respect, by Vivian Bose J. of the Nagpur High Court (as he then
was) in -- 'Evangelical German Mission, Supt. Leprosy Asylum, Chandkhuri v-
Ramsahaigir Chela Sunsergir Gosawi' AIR 1939 Nag 145 . His Lordship said:
"Of course dispossession is a trespass and in one sense a continuance of
possession thereafter is a continuance of the original wrong, but, that is not
the meaning of Section 23. The Limitation Act must be read as a whole and

due regard paid to its different provisions. It must clearly be construed in
such manner that there is no conflict between Section 23 and Arts. 142 and
144. Complete usurpation of possession and occupation such as appears here
and consequent dispossession of the owner of the land is a wrong which is
complete from the moment of the dispossession. It is not a continuing
trespass of the character contemplated by Section 23. "
Mr. Ahmad referred to certain English decisions in which there was really no case of
encroachment or dispossession. The observation in 'Weld v. Hornby' (1806) 103 ER
75
"And however 20 years acquiescence may bind parties whose private rights
only are affected, yet the public have an interest in the suppression of public
nuisances, though of longer standing. No objection however of this sort can
apply to the present case, where the action was commenced within 20 years
after the complete extension of the stone weir across the river, by which it is
proved that the plaintiff has been injured"
can have no relevance in this case. That was a case in which the enhancing,
straitening or enlarging of an ancient weir, as well as the new erection of one, for the
purpose of stopping fish in their passage up a river, was treated as a public nuisance
under the Magna Charta. In that case, previous to the erection of the complete stone
weir, there had always been an escape for fetie fish through and over the old brush-
wood weir, to which those in the stream above had a right, and therefore it was not
competent for the defendant to debar them of it by making an impervious wall of
stone through which the fish could not insinuate themselves, as it is well-known they
will through a brushwood weir, and over which it was in evidence that the fish could
not pass, except in extraordinary times of flood.
It is also irrelevant to cite cases in which the question arose whether one has a right
to corrupt the air of a particular locality by the exercise of a noxious trade simply
because at the commencement of the nuisance no person was injured by it. Their
Lordship held in this case -- 'Municipal Commissioners of the Suburbs of Calcutta v.
Mohomed Ali' 16 WR Cr 6 that no prescriptive right could be acquired to maintain,
and no length of enjoyment could legalize, a public nuisance involving actual danger
to the health of the community. Such decisions are absolutely irrelevant for our
present purpose, and the contention of Mr. Ahmad that this Act should be upheld on
the ground that it is an Act for the alleviation of public nuisance must be rejected
without the least hesitation. Section 28, Limitation Act must certainly come into play,
unless it is found to be repealed by this Act; and if certain provisions of this Act are
found to be inconsistent with or repugnant to the provisions of the Limitation Act,
those provisions must be treated as void.
7. The second contention of Mr. Amin Ahmad which is based on Article 31(1) of the
Constitution, of India cannot now succeed, though there was at one time the view of
Das J. of the Supreme Court to support him. His Lordship Das J. has certainly pointed
out in -- 'MANU/SC/0009/1950 : AIR 1951 SC 41 (E)' that Clause (1) enunciates the
general principle and that under it a person can be deprived of his ' property by
authority of law. And Mukherjea J. has said that we should go by the plain words
used by the Constitution-makers and should not import expressions which are terms
of variable and indefinite connotation in American law. This controversy has,
however, been now set at rest by the two recent decisions of the Supreme Court
reported in -- 'State of West Bengal v. Subodh Gopal Bose' MANU/SC/0018/1953 :
AIR 1954 SC 92 (O1) and -- 'Dwarkadas Shrinivas v. Sholapur Spinning & Weaving
Co., Ltd.', MANU/SC/0019/1953 : AIR 1954 SC 119 (P). The views of Das J have not

been accepted by the majority, and it can be now taken as definitely laid down by the
Supreme Court that the American doctrine of police power as a distinct and specific
legislative power is not recognised in our Constitution.
Even during the hearing of this case I was humbly of the opinion that it would be
wrong to say that Clause (1) of Article 31 must be read in positive terms and
understood as conferring police power on the legislature in relation to rights to
property. This view of mine has now been completely supported by the Supreme
Court, and because a summary of the reports of the two cases had appeared in the
newspapers, we thought it fit to reserve judgment until the decisions of their
Lordships of the Supreme Court in these two cases were available to us. Now the
settled view of the Supreme Court is that even Clause (1) of Article 31 is designed to
protect the rights to property against deprivation by the State acting through its
executive organ and that Clause (2) imposes two further limitations of the legislature
itself. The legislature is prohibited from making a law authorising expropriation
except for public purposes and on payment of compensation for the injury sustained
by the owner. Clauses (1) and (2) are not mutually exclusive in scope and content
and should be read together and understood to have dealing with the same subject,
namely, the prosecution of the right to property by limitation on the State power.
In the case of -- 'MANU/SC/0019/1953 : AIR 1954 SC 119 (P)', the impugned
Ordinance Was found to authorise a deprivation of the property of the Company
within the meaning of Article 31 without compensation, and because the Ordinance
was not covered by the exception in Clause (5) (b) (ii) of the Article, it was held that
it violated the fundamental right of the Company under Article 31(2). If this present
impugned Act has not validly affected the provisions of the Limitation Act and if on a
proper reading and interpretation of the Act it is found to interfere with perfected
titles, then the Act is certainly void, according to the provisions of Article 31(2),
Constitution of India, and it does not come within any of the exceptions provided in
Article 31(5), Constitution of India. The contention that this is an Act intended for the
alleviation of public nuisance has to be rejected, and therefore the Act cannot be
saved under Clause (5)(b)(ii) of Article 31. It is not meant for the promotion of
public health, nor is it meant for prevention of danger to life and property; on the
other hand, it interferes with fundamental rights, inasmuch as it deprives persons of
their property without compensation.
Their Lordships of the Supreme Court observed in the case of --
'MANU/SC/0019/1953 : AIR 1954 SC 119 (P)', that in all such cases the Court has to
look behind the names, forms and appearances to discover the true character and
nature of the legislation. I am inclined to think that the principal questions for
consideration before their Lordships were almost of the same nature as before us in
this case. There, the State had taken over the management and the administration of
the Company, and the questions which arose were whether the provisions of the
Ordinance for taking over the management and administration of the Company
contravened the provisions of Article 31(2) of the Constitution or whether the
Ordinance as a whole or any of the provisions infringed Arts. 14 and 19 of the
Constitution. His Lordship Mahajan J. (as he then was) observed:
"In order to decide these issues it is necessary to examine with some
strictness the substance of the legislation for the purpose of determining
what it is that the legislature has really done; the Court, when such
questions arise, is not over-persuaded by the mere appearance of the
legislation. In relation to constitutional prohibitions binding a legislature it is
clear that the legislature cannot disobey the prohibitions merely by
employing indirect method of achieving exactly the same result. Therefore, in

all such cases the Court has to look behind the names, forms and
appearances to discover the true character and nature of the legislation."
In this case also we should not go by the mere appearance of the legislation. The
Preamble, as already pointed out, shows that a legislation of this kind was absolutely
within the competence of the State legislature, but if indirectly the legislation has
interfered with fundamental rights, and has deprived persons of property without any
compensation, then the Act or such portions of it as interferes with fundamental
rights cannot be allowed to stand. For the present, I have only to overrule the
contention of Mr. Ahmad that this Act is saved under Article 31(1) or Article 31(5),
and the other points will now be taken up in connection with writ application No. 58.
8. I shall now take up writ application No. 53 which was the first case argued before
us and in which Mr. Jaleshwar Prasad raised some of the most important points which
can arise in a case like this. The facts of this case are that on 27 4-1951 the opposite
parties Nos. 2 to 6 filed an application under Section 133, Criminal P. C., before the
Sub-divisional Magistrate of Siwan complaining that plot No. 1732 which was a
village road had been encroached upon by the petitioners. The petitioners, after they
had been directed to show cause, stated that they had not encroached on any village
road and that their 'nad' and 'kunta' were on their own 'sahan' land and not on a
village road. They further stated that the 'nad' and 'kunta' had been in existence for
over thirty years. The case was transferred to the file of. one Mr. S.S.P. Sinha,
Magistrate 1st Class, Siwan, who started an enquiry as contemplated by Section 139-
A, Criminal P. C.
While the enquiry was proceeding the opposite parties Nos. 2 to 5 filed a petition for
starting a case under the Bihar Land Encroachment Act against the petitioners with
the result that the enquiry under Section 139A, Criminal P. C., was dropped. The
petitioners then submitted before the Subdivisional Magistrate that they would move
this Court, and thereafter they filed this present application challenging, the validity
of the Bihar Land Encroachment Act. If the important provisions of the Act are not
invalid and ultra vires, then the proceeding before the Magistrate cannot be quashed,
but in view of the contention of the petitioners that they have their 'nad' and 'khunta'
on this land for more than thirty years, the question does arise as to whether it is
open to the Magistrate to evict the petitioners. There is also a challenge to the
procedure prescribed by the Act. and it has been contended in several of these cases
that the Collector under the Act cannot determine the points in dispute in a judicial
manner.
9. The contentions of Mr. Jaleshwar Prasad are (1) the Act is not referable to any of
the items in Lists II and III of the Seventh Schedule ' of the Constitution of India; (2)
the Act does not legislate but really adjudicates with regard to the rights of the
parties; (3) the Act violates Articles 13 14 19 and 31, Constitution of India and is
thus unconstitutional; (4) Sections 3, 5, 6 and 9 of the Act are repugnant to Chapter
X of the Criminal P. C., the Limitation Act and the Civil P. C.; and (5) the Act is void,
because it ousts the Jurisdiction of the Civil Court.
1 0 . There does not appear to be any merit in the contention that the Act is not
referable to any of the items in Lists II and III. The Preamble to the Act shows that it
is covered by item 18 of List II. Item 18 is in these terms:
"Land, that is to say, rights in or over land, land tenures including the
relation of landlord and tenant, an d th e collection of rents; transfer and
alienation of agricultural land; land, improvement and agricultural loans;
colonization,"

It is now a well-established principle that none of the items in any of the Lists is to
be read in a narrow or restricted sense. In -- 'United Provinces v. Mt. Atiqa Begum',
MANU/FE/0003/1940 : AIR 1941 FC 16 (Q), their Lordships had to construe items 2
and 21 of List II (Provincial Legislative List of Schedule7, Government of India Act,
1935). Instead of item No. 2 which was described as jurisdiction and powers of all
Courts except the Federal Court, with respect to any of the matters in this List, we
have now item No. 65, which is described as jurisdiction and powers of all Courts,
except the Supreme Court, with respect to any of the matters in this List, and 'item
No. 18 of our present Constitution is practically item No. 21 of the previous
Constitution. Gwyer C. J. observed that none of the items of the Lists is to be read in
a narrow or restricted sense and that each general word should be held to extend to
all ancillary or subsidiary matters which can fairly and reasonably be said to be
comprehended in it. His Lordship further observed that if a Provincial Legislature can
legislate with respect to the collection of rents, it must have power to legislate with
respect to any limitation on the power of a landlord to collect rents, that is to say,
with respect to the remission of rents as well as to their collection.
In -- 'Megh Raj v. Allah Rakhia' AIR 1942 FC 27 it had been conceded before their
Lordships that "land" comprised both corporeal and incorporeal rights and interests,
and their Lordships pointed out that this was clear from the words "rights in or over
land" in the opening portion of the Entry. The Privy Council in an appeal from the
decision of the Federal Court in this case had to consider (-- Megh Raj v. Allah
Rakhia' MANU/PR/0077/1947 : AIR 1947 PC 72 ) the meaning of the item, and their
Lordships have observed that the word "land" is sufficient to include every form of
land, whether agricultural or not, and that the expression "rights over land" would
include easements and other collateral rights, whatever form they might take. I
should like to quote the following observation from the judgment of their Lordships:
"As to item 21, 'Land', the governing word is followed by the rest of the
item, which goes on to say, 'that is to say'. These words introduce the most
general concept--'rights in or over land'. 'Rights in land' must include general
rights like full ownership o r leasehold, o r all such rights. 'Rights over land'
would include easements or other collateral rights, whatever form they might
take."
In -- 'State of Bombay v. Narottamdas Jethabhai' MANU/SC/0011/1950 : AIR 1951 SC
69 (T). their Lordships observed that the legislative power conferred on the Provincial
Legislature by item 1 of List II has been conferred by use of language which is of the
widest amplitude and that the phrase employed would include within its ambit
legislative power in respect to jurisdiction and power of Courts established for the
purpose of administration of justice. And in -- 'State of Bombay v. F.N. Balsara' AIR
1951 SC 318 the principle that none of the items is to be read in a narrow or
restricted sense was reiterated: Undoubtedly, the language employed in items 18 and
65 shows beyond a shadow of doubt that the State Legislature has got ample powers
with regard to the jurisdiction and powers of Courts for dealing with the properties
described in item No. 18. The words of item No. 18 read with the words of item No.
65 are comprehensive enough to include the remedial as well as the procedural
provisions concerned with reliefs in respect of several rights and remedies
enumerated in item No. 18, and item No. 18, as already pointed out, is wide enough
to include rights in land, such as rights like full ownership or leasehold or all such
rights, and rights over land which include casements and other collateral rights of
different nature.
The words "that is to say" which follow the word "land" are really not words of
restriction but words of illustration indicating instances which may furnish guidance

and clue in particular matters.
The first contention of Mr. Jaleshwar Prasad is, therefore, not at all fit to succeed,
and the Act, as it appears from the Preamble and also from the provisions, from
which the necessary intendment becomes obvious, is certainly an Act within the
competence of the State Legislature. It is a different matter altogether, if particular
provisions of the Act are found to be repugnant to or inconsistent with the existing
law or encroaching upon fundamental rights as guaranteed by the Constitution of
India.
11. The Preamble of this Act is perfectly innocuous, and as was observed by the
Supreme Court in -- 'Poppatlal Shah v. State of Madras' MANU/SC/0074/1953 : AIR
1953 SC 274 (V), the title and Preamble, whatever their value might be as aids to the
construction of a statute, undoubtedly throw light on the intent and design of the
legislature and indicate the scope and purpose of the legislation itself. Undoubtedly,
the Preamble to this Act will not be of very much assistance to us when we proceed
to examine the particular provision of the Act, and the Act will be found to encroach
upon prohibited ground. The Supreme Court, however, in -- 'State of West Bengal v.
Aliwar Ali Sarkar' MANU/SC/0033/1952 : AIR 1952 SC 75 (W) rejected the contention
of the learned Attorney-General that the Preamble should be read as a part of a
particular section of the Act, which was being impugned in that case, and the House
of Lords in -- 'Commissioners for Special purposes of the Income Tax v. J.P. Perusel'
1891 AC 531 referred with approval to the observation of Dyer C. J. in -- 'Stowel v.
Lord Zouch' (1569) I Plow 353 that the Preamble was a key to open the minds of the
makers of the Act, and the mischiefs which they were intended to redress.
As some argument was advanced before us with regard to the Preamble, I considered
it necessary to quote these observations, though the intention it the legislature is
quite apparent in this case. The real intention of the legislature was certainly to
prevent encroachments on public lands, and in doing so they also made provisions
(which they called as better provisions) for the removal of the encroachments. The
controversy, however, which arises is as to whether these provisions in any way
violate the fundamental rights guaranteed under the Constitution and whether they
are in any way repugnant to or inconsistent with the existing law.
12. The third contention raised by Mr. Jaleshwar Prasad is the most important, & if it
is found that any provision of the Act violates the fundamental rights guaranteed by
the Constitution, then that provision has to be declared as invalid and ultra vires. Mr.
Prasad is really concerned only with Cls. (d) and ( f ) of Section 2(11) of the Act.
Clauses (d) and (f) are in these terms:
"Clause (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;
Clause (f)-- land over which the public or the community have got any right
of easement."
The learned Advocate-General and the learned Government Advocate could easily
appreciate that the drafting of these two clauses was most inefficient and unskilful,
and they asked us to read the words "land recorded" as "land rightly recorded". They
could also appreciate that title by adverse possession could be acquired even on so-
called public lands, like gairmazrua-am, gochar, ahar, road or pathway and they
could not dispute the proposition which has always been adopted in this country and
which is regarded as embodying a salutary principle that the period of possession

which is sufficient to bar the remedy is also sufficient to transfer the right. How far
we will be able to put a narrow construction on the terms of the clauses will be
discussed by me later, the question to which I am addressing at present being as to
whether the clauses, as they stand, violate fundamental rights or not. The learned
Government Advocate submitted during the course of his argument that the Act does
not interfere with the rights which had already become perfected; in other words, if
does not interfere with the title of those who, on account of their possession over a
so-called public land for more than the statutory period, have now acquired an
indefeasible title to it.
But, it will not be a correct reading of the Act to say that it merely prevents the
acquisition of fresh rights inconsistent with public rights and does not interfere with
titles which have already been perfected. Even on a plain reading of Clause (d), as it
stood before the amendment, it will be clear that the intention was to interfere even
with perfected rights over public lands. By the amendment made in July, 1951, the
opening words "subject to the provisions of any law for the tense being in force"
were deleted, and because these words have now been omitted, the question arises
as to how far the definition of public property as given in the Act conflicts with the
existing law. And the explanation which has been given in Bihar Act 25 of 1952, by
which the second amendment was made, with regard to the expressions
"unauthorisedly occupies", "unauthorised occupation" or "unauthorisedly occupying",
fully establishes that the intention of the legislature is to interfere with perfected
rights as well.
The definition is to be found in Section 2, and under Section 3 a person
unauthorisedly occupying any land which is public property shall be liable to pay for
the whole period of occupation compensation at a certain rate. The first proviso to
Section 3 says that no assessment shall be made in respect of any period of
occupation for more than twelve years before the commencement of this Act, and 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. By the amendment of 1951
this proviso covers also lands which are public property as defined in Clause (ii)(f) of
Section 2. The Act was thus intended to be very stringent with regard to public
properties described in Section 2(ii)(d) and Section 2(ii)(f). Section 4 mentions the
penalty, and according to this section, a person liable to pay assessment shall also be
liable at the discretion of the Collector to pay in addition to the assessment a sum not
exceeding ten times the assessment. There is a proviso, attached to this section
which says that no penalty shall ordinarily be imposed in respect of unauthorised
occupation of the land for any period not exceeding one year.
Sections 5 and 6 lay down the procedure which the Collector has to follow if he finds
a person occupying a public land "unauthorisedly" within the meaning of the
expression as used in this Act. The second amendment says that the expression
"unauthorisedly occupies" means the act of any person in remaining in unauthorised
occupation of any land which is public property within the meaning of Sub-clauses
(d) and (f) of Clause (ii), notwithstanding any contract, express or implied, between
him and the landlord or the owner of the land made before or after the
commencement of this Act, and notwithstanding anything contained in any law, local
custom or usage to the contrary.
The learned Government Advocate characterized this amendment as clumsy and
useless, taut even though it is clumsy, it is not useless, because it enables us to
know with certitude the intention of the legislature, the obvious intention being to
interfere with perfected rights as well as rights which have not been perfected by the
lapse of the statutory period. Not being satisfied with the deletion of the words

"subject to the provision of any law for the time being in force" by the amendment of
1951, the second amendment laid down that anybody who is in occupation of a
public land, no matter if he has been possessing it for more than twelve years, would
come within the mischief of the Act. Whatever doubt could be raised as to the
meaning of the words "any person who unauthorisedly occupies any land which is
public property" in Section 5(1) of the Act was removed by the second amendment. It
is not tautologous, as the learned Government Advocate thinks, but is meant to state
in very clear terms the intention of the legislature. These amendments which are now
a part of the Act, therefore unmistakably go to show that the Act not only prevents
the acquisition of fresh rights inconsistent with public rights but also interferes with
rights over public lands which have become indefeasible by the lapse of the statutory
period. Technically, an amended statute is not a new and independent statute, it
being another point whether a statute which is unconstitutional in its entirety can be
amended. A curious feature of this case is that while the amendments have received
the assent of the President, the main Act has not, and if the amended portion is
considered" separately from the rest of the Act, then the repugnancy with the existing
law will be found to have been resolved, so far as the amended, portion is
concerned, just at present I am discussing the question of interference with
fundamental rights and not the question of repugnancy, and what appears to me to
be absolutely manifest is this that the statute as amended does affect the
fundamental rights as guaranteed by the Constitution of India.
Article 19(1)(f), Constitution of India is in general terms, and it says that all citizens
shall have the right to acquire, hold and dispose of property. Property in its broader
sense is not the physical thing which may be the subject of ownership, but is the
right of dominion, possession, and power of disposition which may be acquired over
it; and the right of property as recognized or preserved by the Constitution is the
right not only to possess and enjoy it, but also to acquire it in any lawful mode, or by
following any lawful pursuit, which the citizen in the exercise of the liberty
guaranteed may choose to adopt. .
"Adverse possession under claim of right, although not supported by the
legal title and not yet ripened into an unimpeachable ownership, creates an
interest which the law recognizes as property."
Possessory title is a sort of title recognized by law, and I have already quoted a
passage from the judgment of the Privy Council in -- 1907 AC 73 . This was a case
arising out of a resumption by the Minister of Public Instruction of certain land in
New South Wales, and it appeared that at the date of the resumption the rightful
owner was unknown and out of possession, but that Clissold had ten years previously
entered into possession thereof as vacant land. Their Lordships held that Clissold was
not a mere trespasser and had possessory title, good at the date of resumption,
against, everyone but the rightful owner, and in course of becoming absolute as
against him, and having been deprived of the land, he had a prima facie case for
compensation.
The following passage in the judgment of their Lordships is also important:
"They do not think that a case for compensation is necessarily excluded by
the circumstance that under the provisions of the Act of 1900 the Minister
acquired not merely the title of the person in possession as owner, but also
the title, whatever it may have been, of the rightful owner out of possession,
who never came forward to claim the land or the compensation payable in
respect of it, and who is, as the Chief Justice says, 'unknown to this day'.
The Act throughout from the very preamble has it apparently in

contemplation that compensation would be payable to every person deprived
of the land resumed for public purposes. It could hardly have been intended
or contemplated that the Act should have the effect of shaking titles which
but for the Act would have been secure, and would in process of time have
become absolute and indisputable, or that the Governor, or responsible
Ministers acting under his instructions, should take advantage of the infirmity
of anybody's title in order to acquire his land for nothing."
Chandrasekhara Aiyar J. of the Supreme Court, who was one of the Judges who
decided the well-known case from Bihar arising out of the Land Reforms Act, --
'MANU/SC/0020/1952 : AIR 1952 SC 252 (D)', quoted with approval a passage from
Story's book on the Constitution, and I should like to reproduce it here.
"The concluding clause is, that private property shall not be taken for public
use without just compensation. This is an affirmance of a great doctrine
established by the common law for the protection of private property. It is
founded in natural equity, and is laid down by jurists as a principle of
universal law. Indeed, in a free Government, almost all other rights would
become utterly worthless, if the Government possessed an uncontrollable
power over the private fortune of every citizen. One of the fundamental
objects of every good government must be the due administration of justice;
and how vain it would be to speak of such an administration, when all
property is subject to the will or caprice of the legislature and the rulers."
Article 19(1)(f) of our Constitution is, as already pointed out, in general terms, and it
protects possessory titles as well as titles made perfect by the lapse of the statutory
period. The relevance of this discussion is that if Clause (d), as it originally stood,
was referable only to titles which had not been made perfect by the lapse of the
statutory, period, the meaning given to the expression "unauthorisedly occupies" in
the amended Act makes it perfectly plain that the Collector can interfere even with a
perfected title. Whether Clause (d) is considered along with the amendment or
separately from the amendment, if does violate fundamental rights as guaranteed by
the Constitution; but as the amendment has received the assent of the President, it
stands on a higher footing than the original Act, and it being now a part of the
original Act, if it is found to be inconsistent with the provisions of Part III of the
Constitution which deals with fundamental rights, it shall, to the extent of such
inconsistency, be held to be void.
13. Article 13(2), Constitution of India contains the inhibition against the making of
a law which takes away or abridges the rights conferred by Part III of the
Constitution, and it says that any law made in contravention of this clause shall, to
the extent of the contravention, be void. Article 14 says that the State shall not deny
to any person equality before the law or the equal protection of the laws within the
territory of India. It is under Article 19(1)(f) that every citizen has the right to
acquire, hold and dispose of property. Acquisition can be made in various ways, one
of them being an acquisition of title by adverse possession. If, therefore, the State
has made any law which takes away or abridges the rights conferred by Article 19(1)
(f), then that law is void to the extent of the contravention. There is thus no
justification for interfering with the rights of those who on the different kinds of
lands specified in Clause (d) have acquired title by adverse possession.
Article 31(2) lays down, inter alia, that no Immovable property shall be taken
possession of or acquired for public purposes under any law authorising the taking of
such possession or acquisition, unless it provides for compensation for the property
taken possession of or acquired. According to this Article, even a person who has not

perfected his title by being in adverse possession for a period of twelve years can
claim compensation. In the case of -- 'MANU/SC/0009/1950 : AIR 1951 SC 41 (E)', it
was pointed out by Mukherjea J, that "acquisition" means and implies the acquiring
of the entire title of the expropriated owner, whatever the nature or extent of that
title may be. The entire bundle of rights which were vested in the original holder
passes on acquisition to the acquirer, with the result that the holder has no interest
left. His Lordship further pointed out that Article 31(2) of the Constitution itself
makes a distinction between acquisition of property and taking possession of it for a
public purpose, as would appear from the language "shall be taken possession of or
acquired for public purposes under any law authorising the taking of such possession
or such acquisition".
From the language of this Article it is clear that it is meant to apply to a case of this
nature. The person in possession is being ousted and that for the purpose of taking
the property for "public purposes", assumed or real. In my opinion, therefore, Article
31(2) hits the taking of possession of even those lands over which the possessor has
not perfected his title by being in adverse possession for a period of twelve years.
The Act provides for summary eviction from such lands and, therefore, Sections 5, 6,
8 and 9 contravene the fundamental rights, inasmuch as they authorise action in
interference against a person who is legitimately in possession of such lands as are
specified in Section 2(ii)(d).
I In this connection, I should like to quote the following passage from the judgment
of Mahajan J. (as he then was) in the case of -- 'MANU/SC/0019/1953 : AIR 1954 SC
119 (P):
"As I read Article 31, it gives complete protection to private property as
against executive action, no matter by what process a person is deprived of
possession of it. In other words, the Constitution declares that no person
shall be deprived of possession of private property without payment of
compensation and that too under the authority of law, provided there was a
public purpose behind that law. It is immaterial to the person who is
deprived of property as to what use the State makes of his property or what
title it acquires in it. The protection is against loss of property to the owner
and there is no protection given to the State by the Article. It has no
fundamental right as against the individual citizen. Article 31 states the
limitations on the power of the State in the field of taking property and those
limitations are in the interests of the person sought to be deprived of his
property. The question whether acquisition has a larger concept than is
conveyed by the expression- 'taking possession' is really of academic interest
in view of the comprehensive phraseology employed by Clause (2) of Article
31. As the matter was argued at some length, I propose to briefly indicate
my opinion on that point."
Article 31A which was inserted in the Constitution by the Constitution (First
Amendment) Act, 1951, cannot be and has not been invoked for the obvious reason
that this being a law made by the legislature of a State has not received the assent of
the President. I have already said that Article 31(5) cannot be invoked for supporting
the Act. Article 19(5) cannot also be invoked, because the restrictions imposed under
the statute can by no means by regarded as reasonable. I have already quoted a
passage from the Judgment of the Supreme Court in -- 'MANU/SC/0012/1953 : AIR
1953 SC 373 (P).' This is certainly a case in which the law deprives a person of
possession of his property on the subjective determination of an executive officer.
The fundamental right is thus put in jeopardy, and it is left to the discretion of the
executive authority to interfere with its enjoyment whenever it pleases the said

authority.
14. Article 14 and what constitutes a reasonable restriction have been considered by
the Supreme Court in several decisions, and on the principles enunciated by the
Supreme Court in their decisions it seems to me to be perfectly obvious that this is
also a case of imposing unreasonable restrictions and making arbitrary distinctions.
The existing law of limitation has been allowed to stand, and under this law any
person who remains in possession of a property acquires perfect title to it provided
the possession is adequate in continuity, in publicity and in extent. The Act binds all,
and by virtue of it title is transferred to the adverse possessor. It is certainly very
unreasonable and very improper if the rights acquired under the law of limitation by
persons over lands of the description mentioned in Clause (d) are abridged by this
statute. Howsoever strong be the presumption in favour of the constitutionality of the
Act, if the Act is found to contain a classification which is absolutely arbitrary and
which is made without any basis, that Act must be declared as unconstitutional.
Fazl Ali J. (as he then was) observed as follows in MANU/SC/0009/1950 : AIR 1951
SC 41 (E) :
"There can be no doubt that Article 14 provides one of the most valuable and
important guarantees in the Constitution which should not be allowed to be
whittled down, and, while accepting the statement of Professor Willis as a
correct exposition of the principles underlying this guarantee, I wish to lay
particular emphasis on the principle enunciated by him that any classification
which is arbitrary and which is made without any basis is no classification
and a proper classification must always rest upon some difference and must
bear a reasonable and just relation to the things in respect of which it is
proposed."
Though the case of -- 'Chintamanrao v. The State of Madhya Pradesh',
MANU/SC/0008/1950 : AIR 1951 SC 118 (Z) was a case under Article 19(1)(g) of the
Constitution, the principles laid down by their Lordships in that case would, in my
opinion, be fully applicable to the facts of this case Mahajan J. who delivered the
judgment of the Court observed as follows:
"The question for decision is whether the statute under the guise of
protecting public interests arbitrarily interferes with private business and
imposes unreasonable and unnecessarily restrictive regulations upon lawful
occupations, in other words, whether the total prohibition of carrying on the
business of manufacture of bidis within the agricultural season amounts to a
reasonable restriction on the fundamental rights mentioned in Article 19(1)
(g) of the Constitution. Unless it is shown that there is a reasonable relation
of the provisions of the Act to the purpose in view, the right of freedom of
occupation and business cannot be curtailed by it.
"The phrase 'reasonable restriction' connotes that the limitation imposed on a
person in enjoyment of the right should not be arbitrary or of an excessive
nature, beyond what is required in the interests of the public. The word
'reasonable' implies intelligent care and deliberation, that is, the choice of a
course which reason dictates. Legislation which arbitrarily or excessively
invades the right cannot be said to contain the quality of reasonableness and
unless it strikes a proper balance between the freedom guaranteed in Article
19(1)(g) and the social control permitted by Clause (6) of Article 19, it must
be held to be wanting in that quality."
In this observation we have to substitute Article 19(1)(f) for Article 19(1)(g) and

Clause (5) in place of Clause (6). Undoubtedly, this is also a statute under which in
the guise of protecting public interests, private rights are being interfered with and
properties of individuals are being arbitrarily seized. In this very case
MANU/SC/0008/1950 : AIR 1951 SC 118 (Z) the Supreme Courtobserved that the
determination by the legislature of what constitutes a reasonable restriction is not
final or conclusive and that it is subject to the supervision by the Supreme Court. In -
- 'Romesh Thappar v. State of Madras', MANU/SC/0006/1950 : AIR 1950 SC 124(Zl)
their Lordships discussed the question of severability and observed as follows:
"Where a law purports to authorise the imposition of restrictions on a
fundamental right in language wide enough to cover restrictions both within
and without the limits of constitutionally permissible legislative action
affecting, such right it is not possible to uphold it even so far as it may be
applied within the constitutional limits, as it is not severable. So long as the
possibility of its being applied for purposes not sanctioned by the
Constitution cannot be ruled out, it must be held to be wholly
unconstitutional and void. In other words, Clause (2) of Article 19 having
allowed the imposition of restrictions-on the freedom of speech and
expression only in cases where danger to public security is involved, an
enactment, which is capable of being applied to cases where no such danger
could arise, cannot be held to be constitutional and valid to any extent."
But, so far as these numerous cases are concerned, we have only to see how far the
clauses-under which actions have been taken against-these petitioners go to infringe
fundamental rights and are to that extent unconstitutional and void. I do not think it
will be necessary for us in this particular case to make any pronouncement with
regard to those provisions or especially, those clauses of Section 2(ii) with which we
are not at all concerned. Article 14 was very thoroughly discussed by their Lordships
of the Supreme Court in MANU/SC/0033/1952 : AIR 1952 SC 75 (W), and, in my
opinion, this decision conclusively establishes that the provisions contained in
Section 2(h)(d) are hit by Article 14. The impugned Act in that case was found to
ignore the principle of classification followed in the Criminal P. C., and it proceeded
to lay down a new procedure without making any attempt to particularize or classify
cases to which it was to apply. Their Lordships pointed out that the necessity of
speedy trial was too vague, uncertain and elusive criterion to form the basis of a
valid and reasonable classification.
Their Lordships made the important observation that it was no classification at all, if
it was not based on any characteristics peculiar to persons or to cases which were
subjected to the special procedure prescribed by the Act and that the mere fact of
classification was not sufficient to relieve a statute from the reach of the equality
clause of Article 14.
"To get out of its reach it must appear that not only a classification has been
made but also that it is one based upon a reasonable ground on some
difference which bears a just and proper relation to the attempted
classification and is not a mere arbitrary selection".
In paragraph 38 of the judgment his Lordship- Mahajan J. made the following
observation which is, in my opinion, very important for our present purpose:
"Even if it be said that the statute on the face of it is not discriminatory, it is
so in its effect and operation inasmuch as it vests in the executive
government unregulated official discretion and, therefore, has to be adjudged
unconstitutional."

This is a most apposite observation for our present purpose. This case is a direct
authority in support of-the proposition that a rule of procedure laid down by law
comes as much within the purview of Article 14 as any rule of substantive law and it
is necessary that all litigants, who are similarly situated, are able to avail themselves
of the same procedural rights for relief and for defence with like protection and,
without discrimination. The efficacy of this observation can be appreciated only if we
try to remember the fact that this statute makes an arbitrary discrimination by
imposing restrictions on the rights of persons who have acquired title, absolute or
possessory, over lands described as public lands in this statute. The law of the land
is that at the determination of the period limited to any person for instituting a suit
for possession of any property, his right to such property shall be extinguished. This
law is operative against the State as well as individuals, though the period for actions
against the State may be different from the period for actions as against individuals.
Absolutely arbitrary distinction has been made by this statute, inasmuch as this law is
being ignored with regard to lands, the nature of which is indicated in Clause (d).
The Supreme Court said in this case (MANU/SC/0033/1952 : AIR 1952 SC 75 (W) )
that if it is established that the person complained of is discriminated against as a
result of legislation and denied equal privileges with others occupying the same
position, it is not incumbent upon him, before he can claim relief on the basis of his
fundamental rights, to assert and prove that in making the law, the legislature was
actuated by a hostile or inimical intention against a particular person or class. It is
not also necessary for the Court to enquire as to what was the dominant intention of
the legislature in enacting the law, and the operation of Article 14 will not be
excluded if it is proved that the legislature had no intention to discriminate, though
discrimination was the necessary consequence of the Act. So far as this statute is
concerned, I should say that discrimination is not only the necessary consequence of
the Act, but that the legislature acted with the intention to discriminate. The ruling,
therefore, appears to me to be a ruling in point, and in view of this decision and also
in view of the clear provisions contained in Articles 13 and 14, I am of opinion that
the statute is bad, because it is in contravention of these two Articles, both in their
letter and their spirit.
In -- 'Kathi Raning Rawat v. State of Saurashtra' MANU/SC/0041/1952 : AIR 1952 SC
123 (Z2) Das J. observed as follows :
"It is now well established that while Article 14 forbids class legislation it
does not forbid reasonable classification for the purpose of legislation. In
order, however, to pass the test of permissible classification, two conditions
must be fulfilled, namely, (1) that the classification must be founded on an
intelligible differentia which distinguishes persons or things that are grouped
together from others left out of the group and (2) that that differentia must
have a rational relation to the object sought to be achieved by the Act. What
is necessary is that there must be a nexus between the basis of classification
and the object of the Act."
The majority of the Supreme Court held in --'Lachmandas Kewalram v . S tate of
Bombay' MANU/SC/0034/1952 : AIR 1952 SC 235(Z3) as well that Article 14
condemns discrimination not only by a substantive law but also by a law of
procedure. It is most important that under this impugned statute a peculiar sort of
procedure is prescribed for dealing with those who are in possession of lands, the
nature of which is indicated in Clause (d). In --'Ram Prasad Narayan Sahi v. State of
Bihar' MANU/SC/0013/1953 : AIR 1953 SC 215 (Z4) Mukherjea J., who delivered the
leading judgment of the Court, observed as follows:
"What this clause aims at is to strike down hostile discrimination or

"What this clause aims at is to strike down hostile discrimination or
oppression of in equality. As the guarantee applies to all persons similarly
situated, it is certainly open to the Legislature to classify persons and things
to achieve particular legislative objects; but such selection or differentiation
must not be arbitrary and should rest upon a rational basis, having regard to
the object which the Legislature has in view."
I am further inclined to think that the following observation of Patanjali Sastri C. J. in
this case is fully applicable to this statute:
"Legislation such as we have now before us is calculated to drain the vitality
from the Rule of Law which our Constitution so unmistakably proclaims, and
it is to be hoped that the democratic process in this country will not function
along these lines."
Probably, we will be able to appreciate much better the significance of the
observation made by their Lordships of the Supreme Court in the case of
MANU/SC/0013/1953 : AIR 1953 SC 215 (Z4) if we peruse the judgment of
Ramaswami J. and Sarjoo Prosad J. in that case (reported in -- 'Ram Prasad v. State
of Bihar', MANU/BH/0070/1952 : AIR 1952 Pat 194 (Z5) ) which was set aside by
their Lordships. Ramaswami J. had said that the guarantee of equal protection under
Article 14 was not absolute and that the clause did not prohibit legislative
classification and did not prohibit the legislature from enacting special laws to
combat special evils. He went to the length of stating that even a legislation relating
to one individual would not violate the equal protection clause, if there was no
discrimination.
I say with all respect to my learned brethren who had delivered the judgment of this
Court in MANU/BH/0070/1952 : AIR 1952 Pat 194 (Z5) that this view was not at all
accepted by their Lordships of the Supreme Court. I am, therefore, inclined to agree
with Mr. Jaleshwar Prasad that Clause (d), as it stands, is hit by Articles 13 14 19 and
31 of the Constitution. So far as this particular clause is concerned, the question of
severability arises only to this extent that it is severable from other clauses in which
public property is defined, but all the same the principle laid down in
MANU/SC/0006/1950 : AIR 1950 SC 124 (Z1) will be applicable so far as the
applicability of this clause is concerned. So long as the possibility of this clause
being applied for the purpose not sanctioned by the Constitution cannot be ruled out,
it must be held to be wholly unconstitutional and void. The clause undoubtedly
purports to authorise the imposition of restrictions on a fundamental right in
language wide enough to cover restrictions both within and without the limits of
constitutionally permissible legislative action affecting such right.
The contention of the learned Government Advocate that a narrow construction
should be put upon the clause will be considered by me now but if the clause cannot
be construed in the narrower sense, then there can be no doubt that it must be held
as invalid as a whole, because it will be impossible to assert with any confidence that
the legislature intended to use the general words which it has used for being
construed only in the narrower sense. The whole scheme of the legislation has to be
taken into account, and the reasonableness of the legislation has to be determined by
applying some objective standard which is said to be the standard of an average
prudent man. It was pointed out by the Calcutta High Court in -- 'West Bengal
Settlement Kanungoe Co-operative Credit Society Ltd. v. Mrs. Bella Banerjee',
MANU/WB/0020/1951 : AIR 1951 Cal 111 (Z6) that any reasonable substantive
provision might be rendered wholly unreasonable by the procedure which an Act
prescribes, and the procedure which is prescribed" in this Act for dealing with lands
of the description mentioned in Clause (d) is extraordinary and arbitrary -- thus

obviously coming within the inhibition laid down by the Constitution.
As the Supreme Court said in MANU/SC/0074/1953 : AIR 1953 SC 274 (V), it is a
settled rule of construction that to ascertain the legislative intent, all the constituent
parts of a statute are to be taken together and each word, phrase or sentence is to be
considered in the light of the general purpose and object of the Act itself. 'My
conclusion, therefore, is that Clause (d) of Section 2(11) is absolutely
unconstitutional and void.
15. This writ application No. 58 has been treated as an application to which Clause
(d) as well as Clause (f) are applicable. Clause (f), as already pointed out, was
inserted by the Amendment Act of 1951, and it is in these terms: "land over which
the public or the community have got any right of easement." It is difficult to
understand what actually is meant by the words used in this clause'. But, while the
construction of this provision is a bit difficult, its broad aim appears to be that any
land over which the public have got a right, like the right of easement, should "be
protected. "The English language", as Denning "L.J. has said, "is not an instrument of
mathematical precision", but the word "easement" has been defined in statutes and
explained in several important treatises on law. The word is defined in the Easements
Act (Act V of 1882), and though this Act has not been extended to the Province or the
State of Bihar, the definition given in Section 4, Easements Act has been adopted by
the Courts of law in India as fairly complete. The definition is as follows:
"An easement is a right which the owner or occupier of certain land
possesses, as such, for the beneficial enjoyment of that land, to do and
continue to do something, or to prevent and continue to prevent something
being done, in or upon, or in respect of, certain other land not his own."
In every easement there is a dominant heritage as well as a servient heritage; the
land for the beneficial enjoyment of which the right exist is called the dominant
heritage, and the land on which the liability is imposed is called the servient heritage.
The word is also defined in Section 2 (5), Limitation Act which applies to this part of
the country, and the definition given there is:
"'easement' includes a right not arising from contract, by which one person is
entitled to remove and appropriate for his own profit any part of the soil
belonging to another or any thing growing in or attached to, or subsisting
upon, the land of another."
The Limitation Act does not contain any comprehensive definition of the term, for
which we should look to Section 4, Easements Act, but Section 2(5) appears to
include profit 'a prendre'. Profit a prendre' means "a right for a man, in respect of his
tenement, to take some profit out of the tenement of another man."
Wharton's Law Lexicon says that except in the case of a copyholder no claim of a
'profit a prendre in alieno solo' can be made by custom,, nor can it be claimed by a
fluctuating body such as the inhabitants of a place. In -- 'Maharaj Bahadur Singh v.
Gandauri Singh' AIR 1917 Pat 640 which is a Bench decision of this Court where the
question was whether the members of a tribe, such as the Sonthals, or a class such
as the Ghatwals, inhabiting the villages on and adjacent to the Paresnath Hill, had a
right to hunt in a certain jungle for one day in the year, the Honorary Manager of the
sect of Sitambari Jains had instituted a suit on their behalf to correct an entry in the
finally published record-of rights that the Sonthals and Ghatwals had a customary
right to hunt on Paresnath Hill on the Purnamasi day in Baisakh and for a declaration
that they possessed no such right. The suit was dismissed by the Court of first
instance as well as by this Court, and Mullick J., who delivered the leading judgment,

observed that the Sonthals who belonged to a tribe and the Ghatwals who belonged
to a class, though they had then acquired the solidarity of a caste, were an
Indeterminate and fluctuating body and incapable of prescribing for the purpose of
the Limitation Act.
He quoted with approval the following passage from the judgment of Lord
Macnaghten in --'Eholanath Nundi v. Midnapore Zamindari Co,' 31 Cal 503
"The case, as presented by the plaintiffs, on the face of it and in substance,
seems simple enough. It appears to their Lordships that on proof of the fact
of enjoyment from time immemorial there could be no difficulty in the way of
the Court finding a legal origin for the right claimed. Unfortunately, however,
both in the Munsifs Court and in the Court of the Subordinate Judge, the
question was overlaid, and in some measure obscured by copious references
to English authorities, and by the applications of principles and doctrines
more or less refined founded on legal conceptions not altogether in harmony
with Eastern notions, The result is, that, although the decrees appear to be
justified by the main facts, which both the lower courts held to be
established, it is impossible to say that the judgments delivered are entirely
satisfactory."
And his Lordship was of the opinion that the law of India did not preclude the Courts
from presuming that a fluctuating body, such as the Sonthals and the Ghatwals, bad
such a right, and so far as the particular case before his Lordship was concerned, he
was inclined to think that the zamindar might have allowed the practice to continue
and to ripen into a local custom with the express intention of benefiting by the
destruction of the wild animals by the Sonthals and the Ghatwals, and his conclusion
was that the Sonthals and the Ghatwals had established either a prescriptive or a
customary right. A sort of grant was, therefore, presumed by their Lordships, and
Jwala Prasad J. pointed out that the important rights to appropriate the profits of
properties belonging to others independent of any dominant heritage recognized by
any Indian Court are the rights to take water from a well situate in another's land, the
right to catch fish in a tidal river by placing stake-nets in certain place, the right of
pasturage over the land of Government or zamindari, and the universal custom of
grazing cattle on the waste land. But, the relevance of this decision for our present
purpose is that their Lordships were not inclined to think that the case before them
was really a case of easement.
Mullick J, referred to the General Clauses Act with a view to pointing out what was
meant by "a person" and definitely expressed his view that an indeterminate and
fluctuating body could not prescribe for the purpose of Limitation Act. In order to be
within the Act an easement must be appertaining to a dominant tenement, and the
public or the community, or a section of the public or a section of the community
cannot have any right of easement. It is one thing to say that twenty years'
enjoyment as of right by some people of a right 'in gross' raises a presumption of
immemorial enjoyment, and it is another thing to say that certain persons have got a
right of easement, thereby assuming that there is a dominant tenement as well as a
servient tenement. Public rights of way which every citizen is entitled to use at his
pleasure are not dependent on the ownership of any estate, and even a public road or
highway is taken to be a dedication to the public of the occupation of the surface of
the land for the purpose of passing and repassing. So far as an ordinary easement is
concerned, the occupation remains with the owner of the servient heritage, subject to
the easement.
It is, therefore, not possible to understand in what sense the word 'easement' has

been used in this clause, and even the learned Government Advocate could not
submit before us that there is any much sense behind the words used in this clause.
None of the lawyers who appeared in these cases could explain to us what could be
the real Intention behind the insertion of this clause toy a subsequent amendment,
and they took this clause as a mere re-duplication of Clause (d). I am perfectly alive
to the necessity of construing an Act with a view to finding out the real intention of
the legislature, and Denning L. J. has said in -- 'Seaford Court Estates v. Asher'
1949-2 KB 481 (Z9)
"A judge should ask himself the question: If the makers of the Act had
themselves come across this ruck in the texture of it, how would they have
straightened it out? He must then do as they would have done. A judge must
not alter the material of which it is woven, but he can and should iron out
the creases."
This is the opinion expressed by an English Judge with regard to statutes passed by
the English people, but in India, and especially in this State, we come across certain
provisions of statutes, the construction of which appears to be extremely difficult,
and this particular statute has been treated even on behalf of the State as a statute
which cannot be defended except by taking recourse to what is called a narrow or a
modified construction. I shall presently take up the question of narrow construction,
but before I do that, I must state that even on the submissions made by the learned
Counsel for the State in this case, Clause (f) does not in substance contain anything
in addition to what is contained in Clause (d), with the result that if Clause (d) has to
be declared: as unconstitutional and void, Clause (f) cannot have a better fate.
16. I shall now take up the question of narrow construction which has to be regarded
as the most important question in this case, inasmuch as the State did not think of
defending this Act before us on any other ground. Most astutely the learned
Government Advocate contended before us, (1) that the Act applies only to those
properties which are public properties at the date of the Act; and (2) that the Act
even after the amendment and in spite of the amendment does not interfere with
rights which have become perfected at the date of the Act. But, even on this narrow
construction Articles 19(1)(f) and 31(2) are clearly infringed. The learned
Government Advocate very fairly conceded that if the Collector cannot under the Act
judicially determine the questions raised by the petitioners, the Act would come
within the principles laid down by the Supreme Court in the case of
MANU/SC/0013/1953 : AIR 1953 SC 215 (Z4). The learned Government Advocate
was also fair enough to concede that the second amendment which gives the
meaning of the expressions "unauthorisedly occupies", "unauthorised occupation"
and "unauthorisedly occupying" clearly prevents the application of the rule of narrow
construction in this case. I need not repeat that the clause which has been added by
the amending Act of the year 1952 is by virtue of the amendment a part of the
original Act, and because in the amending Act the expressions mentioned above are
clearly explained, there is no reason for doubt that the Act interferes with perfected
rights as well as with rights which have not become absolute by the lapse of the
statutory period.
Whatever force could be attached to the contention of the learned Government
Advocate that the Act does not interfere with the rights which had become perfected
at the date of the Act, cannot be attached now after the amendment and after the
insertion of Clause (iv) in Section 2, and the question of severability cannot at all
arise after this clause has been inserted in the Act. The Act discloses a connected
scheme, and there is one single object behind the Act as indicated in the Preamble.
The words as explained in the amending Act are now parts of the Act, and Sections 3,

4, 5, 6 and 9 in which the words "unauthorisedly occupies", "unauthorised
occupation" and "unauthorisedly occupying" have been used have to be read as
sections in which those expressions have been used in the sense as it is indicated in
the amending Act.
We cannot go beyond the natural construction of the statute, and the whole thing is
so interwoven together that there is no escape from the position that the legislature
intended to oust all persons who were in possession of public property as defined in
the Act, even though they thereby interfered with the fundamental rights guaranteed
under the Constitution. The original Act cannot any more be considered
independently of the amendment, because it is inextricably bound up with the
amendment. There is now one single statute with the provisions added by the
amending Acts inserted in it, and the amendments cannot be severed from the parent
Act.
17. The question of narrow construction raised by the learned Government Advocate
will, therefore, be considered with reference to the whole Act and not only with
reference to the parent Act, ignoring the amendments. The learned Government
Advocate would ask us to read the word "rightly" before 'the word "recorded" and
after the word "land" in Clause (d) of Section 2, and he would further ask us to hold
that the Collector has the power of determining as to whether the petitioners are
under the circumstances of the case liable to be evicted. He submitted before us that
if a tribunal has been given the jurisdiction to exercise its powers upon a particular
set of facts, before it exercises its powers it has to satisfy itself that the facts, the
existence of which is the prerequisite for the exercise of its powers, do actually exist
in the case. And according to the view of the learned Government Advocate it is
perfectly open to a Collector to determine as to whether the entry in the record-of-
rights is right or wrong and as to whether a title by adverse possession has been
created in favour of the petitioners.
According to Section 103B, Bihar Tenancy Act, a presumption of correctness attaches
to the entry made in the record-of-rights; and there is a similar provision (S. 84) in
the Chotanagpur Tenancy Act. By virtue of Sections 5 and 6 the Collector can take
action against any man who unauthorisedly occupies any land which is public
property, as defined in the Act. The expressions "unauthorisedly occupies" and
"public property" are to be understood in the sense in which the statute asks us to
understand them, and according to Sections 5 and 6, the Collector can take action
against anybody who is in occupation of a public property, as defined in the Act.
According to Clause (d), lands recorded in the record-of-rights as gairmazrua-am,
Gochar, cremation ground, graveyard, tank, pyne, bandh, ahar, road, pathway are to
be taken as public properties, and the Act does not contemplate that it will be open
to the person in occupation or possession to contend that the entry in the record-of-
rights is wrong. The entry in the record-of-rights has thus to be taken as conclusive
by the Collector, though that is not the existing law of the land.
The learned Counsel for the State could not support this clause except by contending
that the word "rightly" should be read between the words "land" and "recorded", and
the question, therefore, is whether it is open to us to read something in the clause
which is not there. The second question is whether it is at all open to the Collector to
determine the title of the person in occupation and possession in a judicial manner.
Sub-section (1) of Section 5 lays down that a person in occupation can be summarily
evicted by the Collector. Sub-section (2) of Section 5 contains the provision for the
service of notice in the manner provided in Section 6 on the person reported to be in
occupation or on his agent, requiring him within such time, as the Collector may
deem reasonable, after receipt of the notice to vacate the land. If the person in

occupation does not vacate the land, the Collector shall remove him from the land
and thus force him to vacate the land. If during the course of the removal there is
resistance or obstruction by any person, the Collector shall hold a summary enquiry
into the facts of the case, and if he is satisfied that the resistance or the obstruction
was not justified, he may issue a warrant for the arrest of the said person and on his
appearance commit him to custody in the civil jail for a period not exceeding thirty
days.
Section 6 is the only section on the basis of which it can be asserted that a certain
amount of discretion is given to the Collector. This section runs as follows:
"Before taking proceedings under Section 3 or Section 4 or Section 5, the
Collector shall cause to be served on the person reported to be in
unauthorised occupation of public property a notice specifying the land
occupied and calling on him to show cause before a certain date why he
should not be proceeded against under Section 3 or Section 4 or Section 5.
Such, notice shall be served in such manner as may be prescribed."
The section no doubt contains a provision for the issue of notice before action is
taken under Section 3, 4 or 5, but it does not say that after the cause is shown, it will
be open to the Collector to consider the objections raised and to give the petitioner a
relief in case he finds that he has been in possession of the land for a long period or
for more than the statutory period.
Sub-section (1) of Section 5 uses the words "summarily evicted", and even if there is
obstruction, only a summary enquiry has to be held. The use of the word
"summarily" or "summary" in the two sub-sections is very important, and on a plain
reading of Sub-section (2) it becomes quite obvious that it is only when the eviction
is ordered and there is a resistance to it that the Collector will proceed to investigate
how far the resistance was justified. This is a sort of provision equivalent to the
provisions of Rule 97 of Order 21, Civil P. C.; in other words, the stage of enquiry
comes when resistance or obstruction is offered to the removal of the man in
possession, and it is then that the Collector will determine whether the person
resisting has any justification for offering a resistance. The language is too vague and
indefinite and cannot enable us to hold that if the person resisting at that stage
comes forward with the statement that he has been in possession of the land for a
considerable length of time, his objections shall be considered by the Collector, and
it will be open to the Collector to drop the proceeding as against him.
The notice which is issued to the person in possession or occupation only asks him to
show cause, and there is no provision in the Act for making a determination as to
question of title or possession raised by the man in possession. Section 6 which
speaks of notice comes after Section 5, which empowers the Collector to evict the
man summarily, and it says nothing beyond this that a notice for showing cause will
be served on the person in possession. It is impossible to conclude that these two
sections authorise the Collector to hold a, judicial enquiry and to determine, as an
ordinary Court of law would, as to whether the person against whom the proceeding
has been started has acquired any indefeasible right, title or interest in the land
which is the subject of the proceeding. There is no provision for any judicial
determination in any one of the two sections, and it is unsound to submit that though
the statute does not empower the Collector to determine as to whether the entry in
the record-of-rights is right or wrong, the Collector ought to do that. What the statute
requires is that the Collector has to proceed on the basis of the entry in the record-
of-rights, and it follows that the Collector has to assume it to be correct.

Very rightly and very fairly did the learned Government Advocate submit that if the
Collector has no power to decide the questions raised by these petitioners, this Act
would exactly come within the principles laid down by the Supreme Court in the case
of MANU/SC/0013/1953 : AIR 1953 SC 215 (Z4). Section11 of the Act completely
ousts the jurisdiction of the Civil Court, because it says that no suit shall lie in any
Civil Court in respect of any proceedings under this Act. In this connection we should
remember the dicta of Lord Esher M. R., in -- 'The Queen v. Commrs. for Special
Purposes of Income Tax' (1888) 21 QBD 313 which were quoted with approval by the
Supreme Court in -- 'Brij Raj Krishna v. S. K. Shaw and Bros.', MANU/SC/0053/1951
: AIR 1951 SC 115 (Z11):
"When an inferior court or tribunal or body which has to exercise the power
of deciding facts, is first established by Act of Parliament, the legislature has
to consider what powers it will give that tribunal or body. It may in effect say
that, if a certain state of facts exists and is shown to such tribunal or body
before it proceeds to do certain things, it shall have jurisdiction to do such
things, but not otherwise. There it is not for them conclusively to de-side
whether that state of facts exists, and, if they exercise the jurisdiction
without its existence what they do may be questioned, and it will be held
that they have acted without jurisdiction. But there is another state of things
which may exist. The legislature may intrust the tribunal or body with a
jurisdiction, which includes the jurisdiction to determine whether the
preliminary state of facts exists as well as the jurisdiction, on finding that it
does exist, to proceed further or do something more. When the legislature
are establishing such a tribunal or body with limited jurisdiction, they also
have to consider, whatever jurisdiction they give them, whether there shall
be any appeal from their decision, for otherwise there will be none. In the
second of the two cases I have mentioned it is an erroneous application of
the formula to say that the tribunal cannot give themselves jurisdiction by
wrongly deciding certain facts to exist, because the legislature gave them
jurisdiction to determine all the facts including the existence of the
preliminary facts on which the further exercise of their jurisdiction depends;
and if they were given jurisdiction so to decide, without any appeal being
given, there is no appeal from such exercise of the jurisdiction."
The present Act, in my opinion, clearly lays down that as soon as an entry in the
record-of-rights of the nature indicated in Clause (d) is found, the Collector will evict
the person in possession of the lands, the character of which is indicated, in Clause
(d), and what he has to do is that before he evicts the man in possession, he has to
give a notice to the person in possession. The jurisdiction which is given to the
Collector is the jurisdiction to act on the basis of the record-of-rights without
determining the question as to whether the entry in the record-of-rights is correct or
not, and most, certainly the Act does not contemplate that the person in possession
will be able to contend before the Collector that the entry in the record-of-rights is
wrong or that he has acquired an indefeasible title to the property by his long
possession over it. The Collector has to act virtually like a machine, and there is
almost an automatic ejectment of the person in possession.
It is therefore that the learned Government Advocate pressed upon us the principle of
narrow construction, his submission being that as there is a general presumption that
a legislature does not intend to exceed its jurisdiction, there should be a further
presumption that when it is laying: down a rule of law, that rule of law is intended,
to be applicable only in so far as the legislative competence permits. Reliance was
placed on the well-known decision of the Federal, Court, reported in -- 'In the matter
of Hindu Women's Right to Property Act, 1937' AIR 1941 PC 72 and also on --

'Macleod v. Attorney-General for New South Wales' 1891 AC 455 which is a Privy
Council decision, commonly known as the Bigamy case. The facts of the case relating
to the Hindu-Women's Right to Property Act are very simple.
The Act in question was passed by the Legislative Assembly of the Indian Legislature
on 4-2-1937, that is, before Part III of the old Constitution Act came into force and at
a time when the powers of the legislature were plenary, but by the time that the Act
came to be passed by the Council of State, Part III had come into operation and
received the Governor-General's assent, with the result that after 1-4-1937, the
Central Legislature was precluded from dealing-with the subjects enumerated in List
II of Schedule 7, Constitution Act, so far as the Governors' Provinces were concerned.
Laws with respect to the devolution of agricultural land could be enacted only by the
Provincial Legislatures, and "wills, intestacy and succession, save as regards
agricultural land" appeared as entry No. 7 of List III, the Concurrent List. The clear
position was that if the Act affected agricultural land in the Governors' Provinces, it
was beyond the competence of the legislature to enact it; and whether or not it was
within the competence of the legislature depended upon the meaning which was to
be given to the word "property" as used in the Act.
As Gwyer C. J. says,
"if that word necessarily and inevitably comprises all forms of property,
including agricultural land, then clearly the Act went beyond the powers of
the Legislature; but when a Legislature with limited and restricted powers
makes use of a word of such wide and general import the presumption must
surely be that it is using it with reference to that kind of property with
respect to which it is competent to legislate and to no other."
The decision arrived at by their Lordships was that the Court was bound to construe
the word "property" as referring only to those forms of property with respect to
which the legislature which enacted the Act was competent to legislate, that is to say,
property other than agricultural land. In this view of the matter, the question of
severability did not arise. The ratio of this case is very easy to understand. If a
legislature uses the word "property", it must be taken that it had used this word in
relation to that kind of property alone regarding which it is competent to legislate.
This principle is a simple one and cannot be invoked in this case for giving a sanction
to this Act. If this impugned Act or a substantial part of it violates the fundamental
rights granted or guaranteed by the present Constitution of India which was not in
existence on the date that the Federal Court gave the above decision, then the
offending portions of the statute cannot be allowed to stand.
The scheme of the Act has already been stated by me above, and what I have said is
sufficient to establish the ultra vires character of that portion of the Act with which
we are concerned in these applications. The offending provisions are so interwoven
in this scheme that they are not at all severable, and I have already referred to a
Supreme Court decision which lays down that to ascertain the legislative intent, all
the constituent parts of the statute are to be taken together and each word, phrase or
sentence is to be considered in the light of the general purpose and the object of the
Act itself. The conclusion is irresistible that the Act, considering its plain words and
its obvious intendment, seeks to evict persons from properties held by them in
contravention of Articles 19 and 31, Constitution of India. While the general law of
limitation is allowed to stand, an invidious distinction has been made against persons
who have acquired title to the so-called public properties by remaining in , adverse
possession of them for more than twelve years.

If we are asked to alter or rewrite this Act --a duty which is not ours -- how shall we
be able to do it? We cannot read the word "rightly" between the words "Land" and
"recorded", as suggested by the learned Counsel for the State, and if we merely say
that the ordinary gairmazrua-am, gochar, cremation ground, graveyard, tank, pyne,
bandh, ahar, road and pathway lands, over w h i c h nobody has acquired any
possession or property right should be allowed to remain as it stands, that will not be
supporting the Act to any extent. If nobody is in exclusive possession, of such lands
and the lands retain their original character, then there is no question of applying the
Bihar Land Encroachment Act and evicting anybody from such kinds of lands. But, if
the question of eviction arises, then it has to be considered whether any particular
individual is in possession of these lands and, if so, in what right. If the Act does not
provide for any adjudication on this point and if the intention of the legislature in
enacting this Act appears to be that any person in possession of such lands, no
matter if he has completed his title by being in adverse possession for a period of
twelve years, must be ejected according to the procedure laid down in the Act, this
can by no means be regarded as a judicial procedure. It is, therefore, not possible to
hold in this case that the legislature should be deemed to have acted within, its
competence and that the Court should give a narrow construction to the provisions of
this Act.
On the other hand, even the Federal Court in the abovementioned case has indicated
principles which are applicable to a statute of this nature. Their Lordships said that
the question before them was one of the construction of the Act, that is to say, of
ascertaining its true meaning, and that the construction which had commended itself
to them left no room for the application of the principle of non-severability of subject
matter. Then their Lordships made the following important observation which, in my
opinion, governs a statute of the nature of the impugned Act.
"It should not however be thought that the Court has overlooked cases cited
to it in which the same words have been applied in an Act to a number of
purposes some within and some without the power of the Legislature, and
the-whole Act has been held to be bad. If the restriction of the general words
to purposes within the power of the Legislature would be to leave an Act with
nothing or next to nothing in it, or an Act different in kind, and not merely in
degree, from an Act in which the general words were given the wider
meaning, then it is plain that the Act as a whole must be held invalid,
because in such circumstances it is impossible to assert with any confidence
that the Legislature intended the general words which it has used to be
construed only in the narrower sense; -- 'Owners of SS Kalibia v. Wilson'
(1910) 11 CLR 689 --'Vacuum Oil Company Ltd. v. State of Queensland'
(1934) 51 CLR 677 R. v. Commonwealth Court of Conciliation and
Arbitration' (1910) 11 CLR 1 and -- 'British Imperial Oil Co. Ltd. v. Federal
Commr. of Taxation', (1925) 35 CLR 422. If the Act is to be upheld, it must
remain even when a narrower meaning is given to the general words an Act
which is complete intelligible and valid and which can be executed by itself;
Wynes: Legislative and Executive Powers in Australia 51, citing -- 'Presser v.
Illinois' (1886) 116 US 252 .
1 8 . Certainly, if the general words used in Clause (d) are taken to refer only to
purposes within the power of the legislature and if they are held not to apply to lands
which have come in possession of certain individuals for whose ejectment a summary
procedure is provided by this Act, then we will be left with an Act with nothing or
next to nothing in it, and there will be no Act left which can be regarded as complete,
intelligible and executable by itself. In other words, the very purpose of the Act will
be destroyed, and there will be no Act left regarding which these petitioners will have

to bother. This decision is therefore, not helpful to the contention, and I should say
the only contention, which has been seriously pressed before us on behalf of the
State. The 'Bigamy case' 1891 AC 455 was referred to by Gwyer C. J. in this
judgment. The Legislature of New South Wales had enacted a law providing that,
"whosoever being married marries another person during the life of the former
husband or wife, wheresoever such second marriage takes place, shall be liable to
penal servitude for seven years." The appellant who had during the lifetime of his
wife married another woman residing in the United States of America was convicted
of bigamy under the provisions of this law, and the contention raised by him was that
the Court had no jurisdiction to try him for the alleged offence, since the Act under
which he had been tried was limited to offences committed within the jurisdiction of
the local legislature by persons subject, at the time of the offence, to its jurisdiction.
Naturally, the decision of their Lordships was that if it was supposed that the Act was
intended to comprehend cases outside the territorial jurisdiction of the legislature it
would be beyond the jurisdiction of a colony to enact such a law. The jurisdiction
was confined within their own territories, and their Lordships quoted the well-known
maxim, "Extra territorium jus dicenti impune non paretur", and pointed out that every
crime was local. If a wider construction would have been given to the statute, it
would have followed that the statute was ultra vires of the Colonial Legislature to
pass, and their Lordships thought that Legislature of the 'Colony did not mean to give
to themselves so wide a Jurisdiction.'
As their Lordships were of the view that the Legislature of the Colony were only
legislating for those who were actually within the jurisdiction and within the limits of
the Colony, they set aside the conviction. This decision appears to me to be irrelevant
for our present purpose. The question here is really of an entirely different nature,
and it is this as to whether the impugned Act in any way violates the fundamental
rights guaranteed by the Constitution of India and is repugnant to the existing law. I
am tempted to repeat that if on the principle of narrow construction the Act is meant
to legislate only with regard to lands which strictly bear the character indicated in
Clause (d), then to quote the language of Gwyer C. J., we will be left with an Act:
with nothing or next to nothing in it. Moreover, if we accede to the contentions of the
learned Counsel for the State, then we would be practically re-writing the Act which
we have no power to do. As was clearly pointed out by the House of Lords in --
'Magor and St. Mellons Rural District Council v. Newport Corporation' 1952 AC 189
what the legislature has not written, the Court cannot write, and if a gap is disclosed,
the remedy lies in an amending Act. Lord Simonds, who delivered the main judgment
of the House of Lords, said that if the Court is asked to write what the legislature has
not written, that would be "a naked usurpation of the legislative function under the
thin disguise of interpretation."
Lord Morton also said that it was not the function of any judge to fill in what he
conceives to be the gaps in an Act of Parliament, and that if he does so, he is
usurping the function of a legislature. It is no use referring in this case to the well
known dictum laid down by Denning L. J. in 1949-2 KB 481 . The function of a judge
is certainly to interpret and construe the Act and no judge expects that Acts would be
drafted with "divine prescience and perfect clarity". Certainly, nobody has expected
that from the Bihar Legislature, and every time that an Act is impugned, we start with
a presumption that the Act is constitutional and valid, and we "set to work on the
constructive task of finding the intention" of the legislature. But, if, while construing
the Act we find that the draftsman has not only been clumsy and unskilful but has
drafted the Act ignoring altogether the fundamental rights guaranteed by the
Constitution of India and ignoring also the prior statutes, Central and Provincial,
though with no intention of altering or repealing the prior statutes, either expressly
or by implication, then we cannot proceed according to the dictum laid down by

Denning L. J. and the offending provisions of the Act have to be thrown out.
Fortunately in this case the main object and the intention of the statute are clear, and
if what we find is that the provisions by which the object and intention are sought to
be carried out are such as cannot but be regarded as repugnant to the Constitution of
India and the existing law, then the Act or that portion of the Act with which we are
concerned has to be declared as invalid. In 1891 AC 531 the following passage from
the judgment of Tindal C. J. in the --'Sussex Peerage Case' (1844) 11 Clause & 85
was quoted:
"The only rule for the construction of Acts of Parliament is, that they should
be construed according to the intent of the Parliament which passed the Act.
If the words of the statute are in themselves precise and unambiguous, then
no more can be necessary than to expound those words in their natural and
ordinary sense. The words themselves alone do in such case best declare the
intention of the lawgiver. But if any doubt arises from the terms employed by
the legislature, it has always been held a safe means of collecting the
intention, to call in aid the ground and cause of making the statute, and to
have recourse to the Preamble, which according to Dyer C. J.(1569) 1 353 is
a key to open the minds of the makers of the Act, and the mischiefs which
they are intended to redress."
The words of this statute are also precise and unambiguous and it i s only because
they are precise and unambiguous that the astute lawyers appearing on behalf of the
State seriously pressed only one contention before us, and it is this that something
should be added to and something should be subtracted from the Act---a, task which
is not ours, and a duty which we are not called upon to fulfil. I can here refer to a
passage in the judgment of Lord Atkin in the well-known ease -- 'Liversidge v.
Anderson' (1942) AC 206
"I view with apprehension the attitude of Judges who on a mere Question of
construction when face to face with Claims involving the liberty of the
subject show themselves more executive minded than the executive."
The observation would apply to this case, and we have only to substitute the
expression "fundamental rights" for the word "Liberty". The function of the Court is
to give words their natural meaning, and in a case in which the fundamental rights of
the subject guaranteed by the Constitution are concerned, we shall never go beyond
the natural construction of the statute. In --'Assam Railways and Trading Co. Ltd. v.
Commrs. of Inland Revenue' 1935 AC 445 Lord Wright said that the intention of the
legislature must be ascertained from the words of the statute with such extraneous
assistance as is legitimate, and he quoted with approval the observation of Lord
Langdale in the -- 'Gorham v. Exeter (Bishop)', (1864) Moore's Rep. of Cases (1952)
Ed. 462
"We must endeavour to attain for ourselves the true meaning of the language
employed assisted only by the consideration of such external or historical
facts as we may find necessary to enable us to understand the subject matter
to which the instruments relate, and the meaning of the words employed."
S. R. Das J., who delivered the judgment of our Supreme Court in -- 'Nalinakhya
Bysack v. Shyam Sunder Haldar', MANU/SC/0076/1953 : AIR 1953 SC 148 (Z24)
observed as follows:
"It must always be borne in mind, as said by Lord Halsbury in -- 1891 AC
531 that it is not competent to any Court to proceed upon the assumption

that the Legislature has made a mistake. The Court must proceed on the
footing that the Legislature intended what it has said. Even if there is some
defect in the phraseology used by the Legislature the Court cannot, as
pointed out in -- 'Crawford v. Spooner 6 Moo PC 1 aid the Legislature's
defective phrasing of an Act or add and amend or, by construction, make up
deficiencies which are left in the Act. Even where there is casus omissus, it
is, as said by Lord Russell of Killowen in -- 'Hansraj Gupta v. Dehra Dun-
Mussorie Electric Tramway Co. Ltd.', MANU/PR/0062/1932 : AIR 1933 PC 63
(Z26) for others than the Courts to remedy the defect."
It cannot be contended in this case that if we adhere to the literal and primary
meaning of the words, we would miss the real meaning, and we cannot in this case
invoke the principle that a statute must not be reduced to a nullity by a draftsman's
unskilfulness and ignorance of law. The Act, as it stands, no doubt indicates an
ignorance of law on behalf of the draftsman, but that is deliberate. We cannot
condemn the statesmanship which has advised the enactment of such a law, but if by
the slap-dash methods adopted by the draftsman the fundamental rights have been
encroached upon and the existing law rendered inapplicable with regard to certain
persons, the classification being not reasonable then it is impossible to put on this
Act a construction which would modify the meaning of the words and alter the
structure of the sentences and thus bring into existence a law different from the one
which was contemplated or intended. The rule of narrow construction cannot,
therefore, be adopted in this case, and it was extremely fair on the part of the
learned Government Advocate not to press any other contention in support of this
Act.
19. The next question which I will take up is the question as to whether Sections 3,
5 , 6 and 9 of the Act are repugnant to Chapter 10 of the Criminal P. C., to the
Limitation Act and to the Civil P. C. Along with this I will also consider the question
as to whether the Act should be treated as void, because it ousts the jurisdiction of
the Civil Court. The second point has got very little importance, because if the Act is
constitutional and valid and if it cannot be regarded as repugnant to the provisions of
the existing law, then certainly it was open to the legislature to insert the section in
the Act which lays down that no suit shall lie in any Civil Court in respect of any
proceedings under this Act. In the Civil P. C., we have got Section 4(1) which lays
down that in the absence of any specific provision to the contrary, nothing in this
Code shall be deemed to limit or otherwise affect any special or local law now in
force or any special jurisdiction or power conferred, or any special form of procedure
prescribed, by or under any other law for the time being in force. Ultimately, Mr.
Jaleshwar Prasad conceded that the Act cannot be regarded as void because it ousts
the jurisdiction of the Civil Court, and when his attention was drawn to Section 4(1)
of the Code, he at once appreciated that if this is a valid special or local law, its
provisions cannot be said to be repugnant to or inconsistent with the Civil P. C.
In the Criminal P. C. as well there is Section 1(2) which lays down that
"it extends to the whole of British India; but that in the absence of any
specific provision to the contrary, nothing herein contained shall affect any
special or local law now in force, or any special jurisdiction or power
conferred, or any special form of procedure prescribed, by any other law for
the time being in force,"
Mr. Prasad relied on two decisions, one of which is a decision of the Lahore High
Court -- 'Hakam Khudayar v. Emperor' AIR 1940 Lah 129 and the other of the
Allahabad High Court --'Baldeo v. Emperor', MANU/UP/0078/1940 : AIR 1940 All 263

(FB) (Z28), in both of which the point for consideration was whether Section 27,
Evidence Act was pro tanto repealed by Section 162 of the Criminal P. C., and
evidence of information which related to the fact discovered in consequence of such
information was admissible in evidence. These two Courts decided that no portion of
the statement in question was admissible in evidence under Section 27, Evidence Act,
the whole statement being excluded from evidence under Section 162 of the Criminal
P. C. The view taken was that though the Evidence Act was a special Act it was
affected by the provision of Section 162 of the Criminal P. C., as it contains a specific
provision to the contrary, within the meaning of Section 1(2) of the Criminal P. C.
But, a contrary view was taken by a Division Bench of this Court in -- 'Emperor v.
Mayadhar Pothal', MANU/BH/0183/1939 : AIR 1939 Pat 577 (Z29). This Court held
that Section 27, Evidence Act was a special law within the meaning of Section 1(2) of
the Criminal P. C. and was not specifically repealed by Section 162 of the Code. So
far as this particular Act is concerned, it is a special or local law, and it cannot be
said that there is any specific provision in the Criminal P. C. which can affect this
special law. Even assuming that the view taken in the Allahabad case that a specific
provision need not necessarily be an express provision, but that it will be sufficient if
there is something which is plain, certain and direct is correct, it cannot be said that
the Criminal P. C. when it was passed could contemplate or foresee that a special or
local law, like the Bihar Land Encroachment Act, would one day come into existence.
Braund J. of the Allahabad High Court, while discussing the meaning o f the word
"specific" referred to an observation of Lord Hatherley in -- 'Chaloner v. Bolckow'
(1878) 3 A C 933 and to an observation of the Privy Council in -- 'Khaw Sim Tek v.
Chuah Hooi Gnoh Neon' AIR 1922 PC 212 and observed as follows:
"But the word 'specific' denotes, to my mind, something less exacting than
the word 'express'. It means, I think, a provision which 'specifies' that some
'special law' is to be 'affected' by that particular provision. A dictionary
meaning of the verb 'to specify', as given in Murray's New English Dictionary,
is 'to mention, speak of or name (something) definitely or explicitly; to set
down or state categorically or particularly.....' and a meaning of the adjective
'specific' in the same dictionary is 'precise.... definite, explicit..... exactly
named or indicated, or capable of being so; precise, particular'.
What I think the words 'specific provision' really mean, therefore, is that the
particular provision of the Criminal Procedure Code must, in order to 'affect'
the 'special.....law', clearly indicate, 'in itself, and not merely by implication'
to be drawn from the statute generally, that the 'special law' in question is to
be affected, without necessarily referring to that 'special law' or the effect on
it intended to be produced in express terms. Lord Hatherly in -- (1878) 3 AC
9 3 3 has defined the word 'specific' in common parlance of language as
meaning 'distinct from general', In -- AIR 1922 PC 212 the Privy Council
referring to the words 'specific purpose' in a statute used this language: 'A
specific purpose, within the meaning of Section 10, must, in their Lordships'
opinion, be a purpose that is either actually and specifically defined in the
terms of the will or the settlement itself, or a purpose which, front the
specified terms, can be certainly affirmed'.."
What his Lordship has said can, with respect, be taken as correct but still it cannot be
asserted that there is any specific provision in the Criminal P. C., by the force of
which the relevant provisions of the impugned Act can be rendered inefficacious. If
the paramount legislation does, not purport to be exhaustive or unqualified, but itself
permits or recognises other laws restricting or qualifying the general provision made
in it, it cannot be said that any qualification or restriction introduced by a State law is

repugnant to the provision in the paramount law. This was the view taken by the
Federal Court in the well known case of -- AIR 1942 FC 27 . "Repugnant" literally
means "inconsistent with", and in. -- 'Clyde Engineering Co. Ltd. v. Cowburn' 37 CW
LR 466 which is a case generally cited in this connection, one Judge made the
following observation:
"When is a law 'inconsistent' with another law? Etymologically, I presume
that things are inconsistent when they cannot stand together at the same
time; and one law is inconsistent with another law which (where?) the
command or power or other provision in one law conflicts directly with the
command or power or provision in the other. Where two Legislatures operate
over the same territory and come into collision, it is necessary that one
should prevail; but the necessity is confined to actual collision, as when one
Legislature says 'do' and the other says 'don't'."
In the majority judgment, however, of that case we find the following observation:
"Two enactments may be inconsistent although obedience to each of them
may be possible without disobeying the other. Statutes may do more than
impose duties: they may, for instance, confer rights; and one statute is
inconsistent with another when it takes away a right conferred by that other
even though the right be one which might be waived or abandoned without
disobeying the statute which conferred it."
Undoubtedly, in this case it is possible to obey the new local or special law and also
the Criminal P. C., and to my mind it will not be correct to say that this law is
inconsistent with Chapter 10 of the Criminal P. C., and has taken away a right
conferred by the Criminal P. C. Chapter 10 may be used by the Courts and also the
provisions of this new Act, if they are constitutionally valid, and it will not be correct
to urge that this new Act has taken away any right conferred by Chapter 10.
But, the question will be different when we proceed to consider whether this new law
to repugnant to the provisions of the Limitation Act, because it appears to me that it
undoubtedly takes away a right conferred by the Limitation Act. Because of the lapse
of the statutory, period, a public property may cease to be at public property, and if
this Act treats & property as public property, even though it has lost its character on
account of the efflux of time and o n account o f a n individual having b een in
possession of the property for more than, twelve years, then this Act must be taken
to be repugnant to or inconsistent with the existing law of limitation. A State law
cannot be taken to be inconsistent with a Union law if it is possible to obey the State
law without disobeying the Union law, and the question of inconsistency between the
two laws will arise only when one says 'do' and the other says "don't", or when both
impose prohibitions, one of which is found to be more stringent than the other. There
would be" inconsistency even when the State law makes something unlawful which
the Union law says is lawful.
But, if a State law makes an act an 'offence' which is not declared to be an 'offence'
by the Union law, there is no inconsistency. It may also happen that there is no direct
conflict between the State law and the Union law : the Union law on the point may be
so complete and exhaustive that the State law cannot operate side by side. Both the
Codes have made ample allowance for the existence of a local or a special law, and
they are neither complete nor exhaustive. Therefore, though we have got in the
Criminal P. C. a particular chapter, namely, Chapter 10, there does not appear to be
any reason why this local or special law should not be allowed to exist side by side
with Chapter 10, which also deals with public nuisances. If the new law is a valid

law, that is, if it Is in pith and substance a legislation which is within the competence
of the State legislature, then it is to be regarded as valid, even if it incidentally
encroaches upon prohibited field, and therefore some Courts have been inclined to
think that the observation of the Federal Court in -- AIR 1942 PC 27, as to the
question of pith and substance does not arise when objection is taken not under S
100 (of the old Constitution Act), but under Section 107(1).
Harries, C. J. of the Calcutta High Court has said in a Full Bench case, -- 'Jnan
Prosanna Das Gupta v. Province of West Bengal' AIR 1949 Cal 1 that to ascertain
whether provincial legislation is upon an item in the 'Provincial Legislative List, the
doctrine of pith and substance might have to be applied and that it is at least
doubtful whether the observations of the Federal Court in -- AIR 1942 EC 27 can now
be regarded as good law. And his Lordship has referred with approval to the decision
of the Nagpur High Court in --'Om Prakash v. Emperor', MANU/NA/0126/1947 : AIR
1948 Nag 199 (Z34). I do not think it will be correct to say that what their lordships
of the Federal Court have stated is necessarily incorrect. Section 107(1), Government
of India Act, 1935, is almost equivalent to Article 254(1), Constitution of India, and
their Lordships obviously meant to emphasise that the pith and substance doctrine
could not be invoked when it is found that the provision of law made by the
legislature of a State is repugnant to the provision of law made by the Parliament or
to the provision of the existing law enumerated in the Concurrent List.
The Nagpur High Court in -- 'MANU/NA/0126/1947 : AIR 1948 Nag 199 (Z34.T,
referred to the observation of Guyer C. J . i n - - - - 'Subramanyan Chettiar v.
Muthuswami Goundan', MANU/FE/0004/1940 : AIR 1941 FC 47 (Zi35), where he
mentions the rule which has been evolved by the Judicial Committee whereby the
impugned, statute is examined to ascertain its pith and substance or its true nature
and character for the purpose of determining whether it is legislation with respect to
matters in this list or in that. Subjects must overlap, and where they do, the question
arises what in pith and substance is the effect of the enactment against which the
complaint is made. The extent of the invasion by the State into subjects enumerated
in the Union List has to be considered, and an incidental encroachment is always
ignored. Probably, what their Lordships of the Federal Court meant was that if it is a
case covered by Article 254(1), then it will not be necessary to go into the question
of pith and substance, and their Lordship's proposition in the broad form cannot, in
my opinion, be objected to. I think the only proper solution in this case before us is
to hold that both Chapter 10 of the Criminal P. C. and the impugned Act, provided it
is constitutionally valid and is in pith and substance a legislation within the
competence of the State Legislature, can stand side by side.
"Even if a subsequent statute, taken strictly and grammatically, is contrary to
a previous statute, yet if at the same time the intention of the Legislature is
apparent that the previous statute should not be repealed, it has been in
several cases held that the previous statute is to remain unaffected by the
subsequent one." Craies on Statute Law.
Here, it cannot even be said that the subsequent statute taken strictly and
grammatically is contrary to a previous statute, and there can be no question of the
intention of the legislature being to repeal the previous statute or Chapter 10 of the
Criminal P. C.
Maxwell also says that the work of the legislature is treated in the same manner as
that of an author, and the language of every enactment is to be construed as far as
possible in accordance with the terms of every other statute which it does not in
express terms modify or repeal. The law does not allow the alteration of a statute by

construction when the law is capable of operation without it. Of course, if there are
clear and absolute contradictions, and the provisions of a later Act are found to be so
repugnant to the provisions of an earlier Act that the two cannot stand together, then
the earlier Act stands impliedly repealed by the later. The following observation of
Earl of Selborne L. C. in -- 'Mary Seward v. Owner of the "Vera Cruz"'(1885) 10 AC
59 is often quoted in this connection:
"Now if anything be certain it is this, that where there are general words in a
later Act capable of reasonable and sensible application without extending
them, to subjects specially dealt with by earlier legislation, you are not to
hold that earlier and special legislation indirectly repealed, altered, or
derogated from merely by force of such general words, without any
indication of a particular intention to do so."
The obvious position no doubt is that the Central Acts, when competent, do override
but do hot directly repeal Provincial or State Legislation. Of course, if in a particular
instance there is a virtual repeal on account of repugnancy, that is a different
question altogether and has to be determined with reference to the provisions of
Article 254, Constitution of India. The following observation made in -- 'Citizens
Insurance Co. Canada v. Parsons' (1882) 7 AC 96 was quoted with approval by
Jayakar J. of the Federal Court in -- 'In re C. P. & Berar Sales of Motor Spirit and
Lubricants Taxation Act, 1938' MANU/FE/0001/1938 : AIR 1939 FC 1 (Z38):
"It is "the duty of the courts, however difficult it may be, to ascertain in what
degree, and to what extent, authority to deal with matters falling within these
classes of subjects (mentioned in the Central and Provincial Lists) exist in
each Legislature and to define, in the particular case before them, the limits
of their respective powers. It could not have been the intention that a conflict
should exist; and in order to prevent such a result, the two sections must be
read together, and the language of one interpreted, and, where necessary,
modified by that of the other. In this way, it may, in most cases, be found
possible to arrive at a reasonable and practical construction of the language
of the sections so as to reconcile the respective powers they contain and give
effect to all of them. In performing this difficult duty, it will be a wise course
for those on whom it is thrown to decide each case which arises as best they
can, without entering more largely upon an interpretation of the statute than
is necessary for the decision of the particular question in "hand."
My conclusion, therefore, is that neither expressly nor by implication has Chapter 10
of the Criminal P. C. been repealed, altered or modified, and because the impugned
legislation is within the competence of the State Legislature being in pith and
substance a legislation with regard to land, the Land Encroachment Act as well as
Chapter 10 of the Criminal P. C. can operate side by side. I thought it necessary to
express my opinion on this point as well, because this case may be taken to the
highest Court of the land; otherwise my decision on the constitutional point is
conclusive so far as the relevant portions of this statute are concerned.
20. But, though I am clearly of the opinion that the provisions of this Act cannot be
regarded as repugnant to or inconsistent with the Civil P. C. and the Criminal P. C.,
they are certainly repugnant to the provisions of the Limitation Act, inasmuch as they
completely ignore the law of limitation which prevails in this country. Sub-section (2)
of Section 29 cannot save this Act, because in fact this Act does not prescribe a
period of limitation different from the one prescribed by the Limitation Act. As a
matter of fact, an examination of the provisions of this Act clearly go to show that
there was no intention to modify or alter the period of limitation prescribed by the

Limitation Act. Limitation being the result of a statute law, no exemption or deviation
from it can be recognised except what the statute itself provides, and in the
impugned Act no exemption whatsoever is provided. If the title of the public in the
so-called public land has been extinguished by efflux of time, then, that title cannot
be revived when the Act does not expressly lay down that notwithstanding what is
contained in the Indian Law of Limitation, that title stands revised. The repugnancy;
to the Limitation Act is therefore apparent and real, and limitation is to be found in
item No. 131 of List III of the Seventh Schedule.
I have already said that even though the amending Act by which the opening words
"subject to the provisions of any law for the time being in force" in Section 2(ii) were
deleted had received the assent of the President, that is immaterial if the parent Act
in which we find the artificial definition of "public property" and the stringent
provisions of Sections 3, 4, 5, 6 and 9 had not received the President's assent. Article
254(2) will be fully applicable, and it will not be open to the Collector to evict any
man who has perfected his title to the subject matter of the dispute by being in
possession of it for a period! of twelve years.
21. The only contention of Mr. Jaleshwar Prasad which now remains to be considered
is that the Act adjudicates and does not legislate. This argument is somewhat
inconsistent with the other argument that a judicial determination by the Collector is
not within the contemplation of the Act. What we can gather from Sections 3, 5, 6
and 9 appears to be too obvious, and I have already said that the intention of the
legislature appears to be that the Collector should proceed to take action as soon as
he finds an encroachment upon a public land of the nature described in Section 2(ii)
and which has been unauthorisedly occupied within the meaning of the expression as
it is to be found in Clause (iv) which was inserted in Section 2 by the Amendment Act
of 1952, and what action the Collector has to take is laid down in Sections 5 and 6.
He has first to issue a notice on the person reported to be in unauthorised occupation
specifying the land occupied and calling upon him to show cause why he should not
be proceeded against under Section 3 or Section 4 or Section 5.
Section 3 speaks of assessment, but Section 5 says that the person in possession
shall be summarily evicted by the Collector, his crop lying on the land shall be liable
to forfeiture and his building or other construction on the land shall be liable to be
removed. Sub-section (2) of Section 5 says that if such person does not comply with
the direction contained in the notice, the Collector shall order the removal of the
person who may refuse to vacate the land. Section 6 speaks of a notice requiring the
person in possession to show cause why he should not be proceeded against under
any of the three preceding sections. Sub-section (2) of Section 5 also speaks of a
service of notice as contemplated by Section 6 before eviction is ordered. The
language of Sub-section (2) is apparently defective, because while referring to the
notice required to be served under Section 6 it says that the notice shall ask the
person in possession to vacate the land. It is not clear whether one notice is required
or two notices are required, but it is absolutely clear that simply on the basis of the
entry in the record of rights the Collector will order eviction, and if there is any
resistance or obstruction by any person, the Collector shall, after holding a summary
enquiry and after being satisfied that the resistance or obstruction was unjustified,
deal with the person resisting or obstructing in the manner laid down in Sub-section
(2). That as I have already indicated, will have to be done in what can be said to be
the execution stage, but the Collector is not required to make judicial determination;
and merely because there is a provision for issue of notice, which may be a notice to
show cause or a notice to vacate the land, we cannot infer that the Collector has got
the power of deciding whether this is a fit case for ejectment or not. The Collector
has no power of deciding whether the person in possession has acquired title to the

land in his possession by adverse possession or not, and if the Collector cannot
possibly decide any such question, then really there is no decision by him as to the
rights of the parties or as to the rights of the person who is reported to be in
possession.
It is. therefore that I have said that the whole process is automatic and the Collector
has to act like a machine. There is no provision in the Act like Section 139A which is
to be found in Chapter 10 of the Criminal P. C. under Section 139A, if an order is
made under Section 133, the Magistrate shall, on the appearance before him of the
person against whom the order was made, question him as to whether he denies the
existence of any public right in respect of the way, river, channel or place, and, if he
does so, the Magistrate shall, before proceeding under Section 137 or Section 138,
enquire into the matter. If in the enquiry the Magistrate finds that there is any
reliable evidence in support of such denial, he shall stay the proceeding until the
matter of the existence of such right has been decided by a competent Civil Court,
and; if he finds that there is no such evidence, he shall proceed as laid down in
Section 137 or Section 138, as the case may require.
The enquiry contemplated by this section is not an elaborate enquiry with regard to
the rights of the parties, and the Magistrate cannot arrogate to himself the functions
of a Civil Court. But, still there is ample safeguard in this section for the protection of
the rights of the person against whom an order under Section 133 has been made. As
soon as the Magistrate finds that there is some reliable evidence in support of the
statement of the person against the order that has been made, the proceeding will be
stayed until the matter of the existence of such right has been decided by a
competent Civil Court. A provision of this nature is conspicuously absent in the
impugned Act, and there is nothing in this Act empowering the Collector to stay
hands or to refuse ejectment when proceeding is objected to on the ground that there
is no public property in existence, though there might be a record recording the
property as a public property within the meaning of the expression as used in the
Act. The Act proceeds to operate as soon as there is an entry in the record-of-rights
of the nature mentioned in 3. 2, though the property in question might have, by the
operation of the unrepealed laws of the country, become the private property of an
individual.
Thus there is no scope for judicial determination by the Collector, and if the Act is
constitutionally valid and within the legislative competence of the legislature and
devoid of repugnancy, then there being no positive inhibition in our Constitution
preventing the legislature from exercising judicial power, the Act cannot be declared
invalid, simply because, it is, in effect adjudicating with regard to the rights of the
parties. Probably, what the learned Counsel meant was that the Collector having been
given no powers-of judicial determination there is merely an adjudication by the
legislature, and this is what I have described as the Collector working like a machine.
Mr. Jaleshwar Prasad cited paragraph 1058 of Chapter 88 of Willoughby on the
Constitution of United States in which certain distinguished authors have been
quoted, the quotations being with regard to the exercise of the executive, legislative
and judicial powers' by separate and independent organs of Government.
The principle adopted in America no doubt is that
"the accumulation of all powers, legislative, executive, and judicial in the
same hands, whether of one, a few, or many, whether hereditary, self
appointed or elective, may be pronounced the very definition of tyranny"
(Vide Madson, in the Federalist)

but, undoubtedly, even America has now appreciated the impossibility of having a
rigid personal separation of powers and each department exercises some incidental
powers which may be said to be strictly of a different character than its essential
functions. The English system is, however different, and the legislature there may
even annul the judicial decisions and pass declaratory Acts, laying down propositions
which in effect set aside the decisions of the Courts. As under the English system it
will be open to the legislature under our Constitution to override the effect of a
judicial decision by legislation provided the legislation does not violate any of the
Articles of the Constitution and is not in contravention of fundamental rights as
guaranteed by the Constitution.
To this extent, I am inclined to agree with the view of Ramaswami J. as put forward
in --'MANU/BH/0070/1952 : AIR 1952 Pat 194 (Z5)', and I respectfully adopt his
Lordship's observations that
"the Articles of our Constitution do not divide and establish areas of black
and white."
A Bench decision of this Court in -- 'Bankey Singh v. Jhingan', MANU/BH/0067/1952
: AIR 1952 Pat 166 (Z39), does not I say with respect, lay down the correct
proposition of law so far as the theory of separation of powers under the Indian
Constitution is concerned. I may respectfully point out that Lakshmikanta Jha, C. J.
was not correct if he thought (as some of his observations show) that the American
doctrine of separation of powers had been adopted under our Constitution. I do not
think that his proposition that
"although the legislature has power to reopen past controversies and make
laws even retrospectively or repeal a statute or modify it or even to pass a
validating Act, it has no power to reverse the decisions of any court because
such a power, in its nature, is essentially judicial and has not been conferred
on the legislature by the Constitution, either expressly or impliedly"
is a correct statement of the law on the subject.
T h e deci si o n o f Ramaswami J . a n d Sarjoo Prosad J. in the c a s e of --
'MANU/BH/0070/1952 : AIR1952 Pat 194 (Z5)', was reversed by the Supreme Court
on an entirely different ground, that is, on the ground that the impugned Act came
within the mischief of Article 14 of the Constitution of India. Their Lordships
observed that it was impossible to conceive of a worse form of discrimination than
the one which differentiated a particular individual from all fellow subjects and
visited him with a disability which was not imposed upon anybody else. Mukherjee J.
who delivered the leading judgment of the Supreme Court said that it was not
necessary for their present purpose to embark upon a discussion as to how far the
doctrine of 'separation of powers' had been recognised in our Constitution and
whether the legislature could arrogate to itself the powers of the judiciary and
proceed to decide disputes between private parties by making a declaration of the",
rights of one against the other and that it was also not necessary to attempt to
specify, the limits within which any legislation dealing with private rights, was
possible within the purview of our Constitution.
And then his Lordship says that
"on one point our Constitution is clear and explicit, namely, that no law is
valid which takes away or abridges the fundamental rights guaranteed under
Part III of the Constitution"

and that
"there can be no question, therefore, that if the legislation i n the present
case comes within the mischief of Article 14 of the Constitution it has got to
be declared invalid."
Fazl Ali J. in -- 'In re Article 143, Constitution of India and Delhi Laws Act,1912
etc.'; -- AIR 1951 SC 332 quoted a passage from the judgment of Sutherland J. in --
'Springer v. Government of Phillipine Islands' (1927) 277 US 189 which runs as
follows:
"It may be stated then, as a general rule inherent in t h e American
constitutional system, that unless otherwise expressly provided or incidental
to the powers conferred, the legislature cannot exercise either executive or
judicial power; th e Executive cannot exercise either legislative or judicial
power; the Judiciary cannot exercise either executive or legislative power."
And from this rule is to be deduced the rule against delegation of legislative power &
his Lordship quoted Marshall C. J's observation that the Congress "may certainly
delegate to other powers which the Legislature may rightfully exercise , itself." The
two questions cannot be separated, and therefore, his Lordship while discussing the
question of delegation, referred to the rule of law in t h e American Constitution
relating to the separation of powers.
Patanjali Sastri J. (as he then was) in this very case observed as follows;
"On the contrary, by providing that there shall be a Council of Ministers to
aid and advise the President in the exercise of his functions and that the
Council shall be collectively responsible to the House of the People the
Constitution following the British model has effected a fusion o f legislative
and executive powers which spells the negation of any clear cut division of
Governmental power into three branches which is the basic doctrine of the
American Constitutional law. Without such a doctrine being incorporated in
the Constitution and made i ts structural foundation, th e maxim 'delegatus
non potest delegare could have no constitutional status but could only have
the force of a political precept to be acted upon by the legislatures in a
democratic polity consisting of elected representatives of the people in the
discharge of their functions of making laws but cannot be enforced by the
Court as a rule of constitutional law when such function i s shirked or
evaded.....what may be regarded as politically undesirable is constitutionally
competent."
His Lordship also quoted the observation of Lord MSelborne in -- 'The Empress v.
Burah' that all that the Courts has to see in adjudging an enactment constitutional is
"that it violates no express condition or restriction by which the law making
power conferred on the legislature is limited, and that it is not for the Court
to enlarge constructively those conditions and restrictions."
This should exactly be our attitude and, therefore, I think that Mr. Jaleshwar Prasad
was not quite right when he pressed this contention before us in these cases. It is
enough that the. Act or the important portions of it are found to violate certain
fundamental rights guaranteed by the Constitution, and if the provisions which are
being attacked can be declared invalid on that ground, that is conclusive and
decisive. As however, this contention has been pressed before us, I must express my
view with regard to it, and, in my opinion, on the mere ground that the Act is so

drafted that instead of giving any judicial discretion to the Collector, it finally lays
down and indicates the action which has to be taken against the person in possession
of a public property within the meaning of the expression as used in the Act it cannot
be declared ultra vires.
22. The facts as given in the affidavit filed on behalf of the petitioners in this case
(case No. 58) show that they have been in possession of the land for about forty
years, and as this allegation is not controverted, the proceeding which has been
started against the petitioners under the impugned Act must be dropped. This
application, therefore, succeeds.
CASE No. 133 OF 1952.
23. In this case Mr. G. P. Sahi for the petitioners, besides urging the contentions
which have been urged by Mr. Jaleshwar Prasad, further contended that the Act is
unconstitutional also on the ground that it violates Articles 20 and 21, Constitution of
India. But these questions do not at all arise in this case, and, as I said at the very
beginning, we will give our pronouncements only with regard to the points which
actually arise in a particular case. The petitioners in this case have placed before us
no material from which we can gather as to what action has really been taken against
them. It is strange that no facts have been stated in the affidavit of the petition
except this that
"Case No. 55 of 1951/52 is pending in the Court of the Additional Collector,
Patna, in which the above mentioned petitioners are being proceeded against
under the Bihar Land Encroachment Act, 1950."
Probably, because the original prayer was for the transfer of this case to this Court,
the petitioners did not state any relevant fact; unfortunately even after they deleted
the prayer for the transfer of the case under the orders of this Court dated 25-4-
1952, they never by any subsequent petition or affidavit stated as to how they were
affected by the Bihar Land Encroachment Act. The Act can be declared
unconstitutional or invalid only on the contention of a person against whom action
has been taken under the Act and who feels aggrieved by the action taken. In this
affidavit there is nothing except a challenge to the Act, there being no statement
whatsoever indicating as to how the petitioners are affected by the action taken under
this Act. I do not think we will be justined in allowing this application on the scanty
material which we possess, and this application must be dismissed.
CASE No. 394 OF 1952.
2 4 . In this case the petitioners have been ordered to remove the encroachment
though a pleader-commissioner had reported the encroachment to be very old. What
has been called as 'bharawat' by the commissioner is an old one, and that establishes
the long possession of the petitioners. The allegations that are made in the petition
about the encroachment being an old one have not been controverted and, therefore,
the proceeding before the Collector must be quashed. This application must succeed.
CASE No. 37 OF 1953.
25. The petitioner has got a house on plot No. 229, and to the west of the house is a
lane, called plot No. 239. The petitioner's house is very old. and according to his
uncontroverted statement he has made no encroachment on plot No. 239, but a
notice has been issued to him, under the Bihar Land Encroachment Act, ordering him
to show cause as to why he should not be Ordered to remove the encroachment. If
there is an encroachment, it is on account of the construction of the house which is

an old one. The proceeding under the Land Encroachment Act with regard to any
portion of the land covered by the house is not justined and must be quashed. This
application succeeds.
CASE No. 99 OF 1953.
26. The petitioners in this case are said to "have encroached upon a graveyard in
plot No. 390, but the contention of the petitioners is that they are in possession of
this plot by virtue of settlement granted by one Mosammat Hamidan to whom the plot
belonged. The petitioners before the Collector who have been described as opposite
party No. 1 to 4 in this application had produced the survey khatian which indicated
that in the municipal survey of 1933 this plot has been recorded as a 'Kabristan'. The
opposite party had, however, tried to show that this plot which was recorded as plot
No. 147 in the municipal survey of 1901 and 1902 had been assessed in the name of
one Jhulan Sain. In the judgment of the Subdivisional Officer of Sadar Patna, it is
stated that there was an arbitration award in which it was held that Jhulan Sain and
others had no right to the graveyard. The learned Subdivisional Officer had
proceeded on the assumption that the land was recorded as 'Kabristan' in the
Municipal survey and on the basis of the provisions of the Act he has concluded that
the settlement of Mosst. Hamidan with the opposite party and the claim put forward
by the opposite party are "obviously unauthorised", and the alleged encroachment is
liable to be removed under the Bihar Land Encroachment Act.
There was an appeal to the Collector which was dismissed, and the Collector under
Section 9 of the Act imposed a fine of Rs. 10007- on the appellants. Fairly intricate
questions of title had to be decided in this case, but still the Subdivisional Officer, on
the basis of the municipal survey record, treated the claim of the petitioners as
unauthorised. Besides the contentions which have been urged by Mr. Jaleshwar
Prasad, Mr. Brahmadeva Narain who argued this petition on behalf of the petitioners
urged that even right to possession is protected under Article 19(1)(f), Constitution
of India. This contention is sound to this extent that if there is a property which
belongs to nobody and is taken possession of, then certainly Article 19(1) CD will be
applicable. I have already said that the word "property" carries very wide
connotations, and it includes all kinds of property and all that a person may have
dominion over and every possible interest over it. The ideology behind the right to
property recognized by the Constitution of India is that of individualism and private
property, and certainly the Constitution means to lay down that any man is free to
acquire any property either by inheritance, personal earning and other lawful means.
He has the right to hold the property as his own, and to dispose of it, limited only by
the exigencies of public welfare. So far as gairmazrua-am lands are concerned, as
has been held in several decisions in this Court, they cannot be treated as the private
property of an individual, but they lose their character as a public property if any
individual remains in possession of them for a period of twelve years. But, there are
other kinds of properties which cannot be said to belong to the public, and with
regard to such properties even possessory title would be enough and that will be
recognized as "property", according to the Constitution of India. The contention
urged by Mr. Brahmadeva Narain is, therefore, not unsound, though it cannot be
asserted that anybody in possession of a gairmazrua-am land for a period of less
than twelve years can acquire perfect title to it. There may be a graveyard which was
not the property of anybody, until it was taken possession of by somebody, and the
person taking possession of it can claim a possessory right.
27. The next important question urged by the learned Counsel was that the whole of
the Act should be declared to be void, if the important provisions of it are

unconstitutional and, therefore, unenforceable. This question has already been
discussed by me, and undoubtedly the Supreme Court had laid down that the
possibility of the Act being applied in an unauthorised and arbitrary manner is
sufficient to make it unconstitutional. I have said that the offending provisions are
closely interwoven and that the relevant sections to which we are concerned do
violate the Constitution. Of course, we have nothing to do with those provisions of
the Act which, for the purpose of deciding these applications, cannot be taken notice
of, e.g., there are certain clauses in the definition section (Section 2) with which we
have nothing to do, and we will not make any pronouncement with regard to them.
The additional point which has been urged by Mr. Brahmadeva Narain arises out of
the punishment inflicted by the Collector in this case. The Collector, Mr. P. P.
Agarwal, when he disposed of this appeal certainly made use of Section 9 of the Act
and imposed a fine of Rs. 1000/- on the petitioners with the direction that if they do
not pay the fine within a month, they will have to undergo simple imprisonment for a
period of three months. It has been argued that Section 9, besides being inextricably
interwoven with the other offending provisions, offends against Article 20,
Constitution of India which lays down, inter alia, that no person shall be convicted of
any offences except for violation of a law in force at the time of the commission of
the act charged as an offence, nor be subjected to a penalty greater than that which
might have been inflicted under the law in force at the time of the commission of the
offence.
Under the English Constitution, there is no legal bar to the power of Parliament to
enact any law whatsoever, and it is competent to give retrospective effect to any of
its laws. Clause (1) of Article 20 seems to follow the American system, though it
does not use the expression "ex post facto laws". The powers of legislation given to
the Parliament or to the Legislatures of the States are very wide, as indicated in
Article 245 of the Constitution, and it cannot be doubted that a sovereign legislature
has power to enact prospective as well as retrospective laws. Mr. Brahmadeva Narain
did not contend before us that even if the Act is held to be valid, the punishment
inflicted by the Collector cannot be deemed to be a punishment for violation of law in
force at the time of the commission of the act charged as an offence.
What has happened is not that the petitioners are being punished for an offence
which was committed sometime before but what has to be regarded as an offence
under the law which has now been passed. If there is any offence, it will be deemed
to have been committed after the Act came into force & not when the petitioners
took, possession of the land. In this view of the matter, I think that the conviction
which has been recorded by the Collector is not hit by Article 20(1) of the
Constitution. Section 9 is in these terms
"Any person who unauthorisedly occupies any land which i s public property
as defined in Clause (ii) (d) of Section 2 snail, be deemed to have committed
an offence and shall, on conviction, be liable to a fine which may extend to
one thousand rupees and, in default of payment of fine to simple
imprisonment which may extend to six months."
The question is when will these petitioners be deemed to have unauthorisedly
occupied this land? If there was any unauthorised occupation, that was after the Act
had come into force, and, therefore, there can be a conviction as contemplated by
Section 9. After the Act had come into force, the meaning of "unauthorised
occupation" became altogether different, and the possession of the petitioners began
to be treated as unauthorised since then and, therefore, if the Act is valid, a
punishment of the nature contemplated by Section 9 could be awarded. The question

of retrospective effect of a statute does not arise and the Collector could award the
punishment contemplated by Section 9.
Of course, it is a different matter that the peculiar meaning given to the expression
"unauthorised occupation" under the Act cannot be recognized, inasmuch as it
violates the fundamental rights, and it is also another point that a conviction could
not be recorded without a trial. The power of punishment has been given by the Act,
and it is only after the Act has come into force that the petitioners would be deemed
to have committed the offence contemplated by Section 9. If there is legislative
competence and the legislation is not open to any objection, then it is inherent in the
right of legislation to legislate like this, that is to say, to declare that what was not
considered as an offence before would be considered as an offence hereafter. I think
I am supported in this view by the decision in --'Buckman v. Button' 1943-1 KB 405
and the decision of a Single Judge of the Calcutta High Court in -- 'Chuni Lal v.
Corporation of Calcutta', MANU/WB/0098/1933 : AIR 1933 Cal 732 (Z44). I have said
more than once that the scheme of the Act is such that the Collector is not required
to exercise his powers judicially or quasi-judicially.
The power which the Collector has to exercise is, more or less of an administrative
character, and the mere provision for enquiry or notice does not furnish any
conclusive test. The Supreme Court in -- 'Maqbool Hussain v. State of Bombay',
MANU/SC/0062/1953 : AIR 1953 SC 325 (Z45) observed that Article 20 contemplates
proceedings of the nature of criminal proceedings before a Court of law or a Judicial
tribunal, and the prosecution or the conviction in this context means an initiation or
starting of proceedings of a criminal nature before such a Court or tribunal in
accordance with a certain procedure prescribed by the statute under which the
conviction is made. The prohibition against 'ex post facto' law cannot be applied with
regard to an Act, which, if it is valid, makes a certain act an offence which was not an
offence before the Act had been passed. The words used in Section 9 are
"unauthorisedly occupies", and the person in possession would be deemed to have
unauthorisedly occupied on or after the date this Act had come into force, and it was
open to him to give up possession of the land and, thus, to escape the rigour of the
law.
Therefore, I am of opinion that Section 9 in terms is not hit by Article 20(1) of the
Constitution. But, as I have already said, the meaning which is being given to the
expression "unauthorisedly occupies" violates the fundamental rights guaranteed by
the Constitution and, as such this section like the others is also unconstitutional and
invalid. I need not repeat that the possibility of the Act being applied in an
unauthorised and arbitrary manner is sufficient to make it unconstitutional, and
Section 9 cannot be considered independently of the other provisions of the Act and,
especially, of the provision where the expression "unauthorisedly occupies" has been
explained. I am also inclined to hold that the words as used in this section do not
indicate that there can be a punishment inflicted without a formal trial. The words
"shall, on conviction, be liable to a fine" carry with them the import that there should
be a trial.
Even if the dispute had narrowed down to a controversy with regard to the
interpretation or the construction of the relevant provisions of this Act, the Collector
could not impose the fine without giving an opportunity to the petitioners to submit
their legal arguments. The person convicted or punished had the right to place his
case before the Collector, and he had also the right to place facts before the Collector
for the purpose of showing that his act could not come within the purview of Section
9. Trial, to my mind, is contemplated by Section 9, and certainly it is the natural right
of every accused to ask for a trial before he is convicted. I should like to quote the

following passage from the judgment of Fazl Ali J., in the well-known case of -- 'A.
K. Gopalan v. State of Madras' AIR 1950 SO 27 .
"In England, it would shock one to be told that a man can be deprived of his
personal liberty without a fair trial or hearing. Such a case can happen only if
the Parliament expressly takes away the right in question in an emergency as
the British Parliament did during the last two world wars in a limited number
of cases. I will refer here to a few cases which show that the fundamental
principle that a person whose right is affected must be heard has been
observed not only in cases involving personal liberty but also in proceedings
affecting other rights, even though they may have come before
administrative or quasi-judicial tribunals.
'Cooper v. Wandsworth Board of Works' (1863) 14 CB was a case under an
Act which empowered the District Board to alter or demolish a house where
the builder had neglected to give notice of his intention seven days before
proceeding to lay or dig the foundation. Acting upon this power, the Board
directed the demolition of a building without notice to the builder, but this
was held to be illegal. Bylee J. in dealing with the matter observed as
follows:
"I conceive they acted judicially, because they had to determine the
offence, and they had to apportion the punishment as well as the
remedy. That being so, a long course of decisions, beginning with --
'Dr. Bentley's case'; -- 'R. v. University of Cambridge' (1723) 1 Slra
557 and ending with some very recent cases, establish that although
there are no positive words in a statute requiring that the party shall
be heard, yet the justice of the common law will supply the omission
of the legislature. The judgment of Fortescue J. in -- 'Dr. Bentley's
case (Z48)', is somewhat quaint, taut it is very applicable, and has
been the law from that time to the present. He says, 'The objection
for want of notice can never be got over. The laws of God and man
both give the party an opportunity to make his defence, if he has
any,"
In the same case Erle C. J. observed:
"It has been said that the principle that no man shall be deprived of
his property without an opportunity of being heard, is limited to a
judicial proceeding..... I do not quite agree with that;.....the law, I
think, has been applied to many exercises of power which in
common understanding would not be at all more a judicial
proceeding than would be the act of district board in ordering a
house to be pulled down.".....
" 'A similar opinion was expressed by Sir George Jessel in -- 'Fisher v.
Keane' (1878) 11 Ch D 353 -- 'Labourchere v. Earl of Wharncliffe' (1879) 13
Ch D 346 and ---'Russel v. Russell' (1880) 14 Ch D 471
In the last mentioned case, he observed as follows :
"It ('Wood v. Woad' (1874) 9 Ex Ch 190 contains a very valuable
statement by the Lord Chief Baron as to his view of the mode of
administering justice by persons other than Judges who have judicial
functions to perform which I should have been very glad to have had
before me on both those club cases that I recently heard, namely,

the case of -- 11 Ch D 353 and the case of --(1879) 13 Ch D 348.
The passage I mean is this, referring to a committee: 'They are
bound in the exercise of their functions by the rule expressed in the
maxim "Audi alteram partem", that no man should be condemned to
consequences without having the opportunity of making his defence.
This rule is not confined to the conduct of strictly legal tribunals, but
is applicable to every tribunal or body of persons invested with
authority to adjudicate upon matters involving civil consequences to
individuals."
His Lordship was dealing with a case of Preventive Detention and quoted authorities
for showing that the person who is to be detained as a preventive or a precautionary
measure has a right to be heard before an order is passed against him. Section 9
contemplates a regular punishment, and the words "on conviction", to my mind, go
to show that even this Act, badly framed as it is, did contemplate to some extent that
before the punishment a sort of trial was to be held. But, all the same, the Collector,
Mr. P. P. Agarwal, cannot be blamed if he understood the provisions of the Act in the
manner in which he has understood them. The way in which this Act has been
drafted, may certainly lead these officers to think that they have merely to act like a
machine, and Mr. P. P. Agarwal has acted in that fashion. The conviction and the
punishment cannot, therefore, be sustained, and it being obvious that the rights as
claimed by the petitioners had not been determined and could not be determined
under the Act, this application must succeed.
(His Lordship then took up cases 123 of 1953, 144 of 1953, 163 of 1953, 164 of
1953, 355 and 441 of 1953, 169 of 1953, 173 of 1953, 193 of 1953 and held that
applications in these cases must be allowed.)
CASE No. 201 OF 1953.
28. In this case also the Collector has taken the view that the definition of "public
property" under Section 2 is not controlled by any other Act and that the long
possession of anybody over the land cannot change the public property into a private
property. Mr. Shivanugrah Narain, who appeared for the opposite party No. 1, one
Raghunandan Prasad, in this case supported the arguments of Mr. Amin Ahmad in the
other case and further submitted that he was not able to agree with Mr. Amin Ahmad
that the Act contemplated a decision on the point as to whether the entry in the
record-of-rights was correct or not. According to the view of Mr. Shivanugrah Narain
it is not open to anybody to adjudicate about the correctness of the record. This is a
novel argument, and even the Counsel for the State did not contend that the Collector
was bound to take the entry in the record as correct. The Bihar Tenancy Act has not
been repealed or modified, and this impugned Act is not meant to repeal or modify
the different tenancy laws prevailing in this State. The arguments of Mr. Shivanugrah
Narain cannot, therefore, be accepted, and this application must be allowed.
(His Lordship then took up cases Nos. 206, 134, 208, 256, 209, 210, 211 244, 212,
214, 215, 226, 228, 229, 230, and 231 of 1953 and held that applications in these
must also be allowed)
CASE No. 236 OF 1953.
29. The allegations made in this application go to show that this will be a case under
Clause (c) of 6. 2(ii), Bihar Land Encroachment Act. The petitioners have not been
able to show anything else except this that at the time when the road was in the
possession of the District Board they had taken temporary settlement for some time.
This is not enough, and there is no reason to presume that any permanent settlement

has been made with the petitioners and that they have been in possession of any
portion of the road in their own right for more than twelve years. The entry in the
records is not challenged as incorrect, and I do not, therefore, find any ground for
interference in this case. The application must be rejected.
(His Lordship then held: that application in case No. 238 of 1953 must be allowed)
CASE No. 239 OF 1953.
30. From the statements made in this application it appears that the applicants have
already filed a Title Suit which is pending in the Court of the Munsif of Dhanbad. In
that Title Suit they have challenged the orders passed by the Additional Subdivisions!
Officer under the Bihar Land Encroachment Act. As a Title Suit has already been
instituted by the petitioners in which the allegations of both parties will be
thoroughly enquired into, I do not think it will be necessary to grant any relief to the
petitioners in this case. Here also we are concerned with a property which " is said to
be a District Board property, and, therefore, Clause (c) of Section 2(ii) would be
applicable. But because a Title Suit has already been instituted, this application
should be rejected.
(His Lordship then held that applications in cases Nos. 240, 261, 250, 252, 259, 265,
407, 253, 254, 258, 260, 262, 263 and 284 of 1953 must be allowed.)
CASE No. 267 OF 1953.
3 1 . In this case the order of the Subdivisional Officer shows that the petitioners
along with certain other persons had filed petitions stating that they were prepared to
remove the encroachment according to the demarcation to be made by the Amin. But,
in the application which has been filed before this Court the petitioners state that
they had never agreed to remove the encroachments. The land in question is
gairmazrua-am, and the petitioners have not stated that they have been in possession
of the land for twelve years. No definite allegation has been made on behalf of the
petitioners, and from the application as it stands it does not appear what sort of right
they have over the property. Even the number of the plot does not appear to have
been mentioned in the application. This application must be rejected.
(His Lordship then held that applications in cases Nos. 255, 284, 285. 287, 288, 289,
290 and 291 of 1953 must be allowed.)
CASE No. 301 OF 1D53.
32. In this case plot No. 383 is not gairmazrua-am but gairmazrua-khas of the malik,
and according to the allegations of the petitioners, the petitioners Nos. 2 and 3 who
were in possession of the land, settled it with the petitioner No. 1 in 1350 fash. The
other plot was Brahmottar land of one Singheshwar Jha and was sold to the
ancestors of the petitioner No. 3 in 1905. The order in this case is obviously wrong
and unjust, because these plots could not be treated as public property. The
application must succeed.
(Applications in cases Nos. 307 and 312 were then allowed.).
CASE No. 315 OF 1953.
33. We are concerned with two plots in this case, namely plots Nos. 1050 and 383.
With regard to plot No. 1050, the long possession of the petitioners has been
ignored, but with regard to the other plot, there is no specific allegation in the
petition to the effect that the petitioners have acquired any title to it by adverse

possession, for a period of twelve years. It is no doubt stated that the petitioners
have their khalihan, bamboo clumps and a mango tree over this plot, but in absence
of a definite statement to the effect that the public character of the land is lost on
account of the petitioners' possession over it for a period of twelve years, the
property can be treated as a public property, and, as such, the application in so far as
it relates to plot No. 383 is not fit to succeed. This application will, therefore, be
allowed only In part.
(Applications in cases Nos. 316, 317, 318, 322, 323, 324, 329, 331, 332, 423, 380,
& 333 of 1953 were allowed.)
CASE No. 335 OF 1953.
3 4 . The petitioner has got his house over a portion of plot No. 125, and the
argument of the Subdivisional Officer is that if the petitioner's statement to the effect
that his house has been in existence from before the survey is correct, then the house
would have been entered in the survey record. But, a survey entry carries only a
presumption of correctness and cannot be regarded as conclusive. Moreover, the
petitioner might have been, in possession for more than twelve years even after the
final publication of the record-of-rights. It is, therefore, manifest that the plea of
adverse possession has not been seriously considered in this case. Even the Counsel
for the State have agreed that this application should be allowed. The application,
therefore, succeeds.
(Applications in cases Nos. 337, 338, 344, 345, 346, 347, 348, 349, 351 & 352 of
1953 were allowed.)
CASE No. 353 OF 1953.
35. In this case the petitioners are said to have encroached upon plot No. 75 which
was originally an 'ahar' and brought the encroached portion into cultivation. The
Collector, treating this property as a public property, has ordered the eviction of the
petitioners and has also directed that the crops standing on the land be forfeited to
the State. Though the land is recorded as an 'ahar', the petitioners contend that it is
really a gairmazrua malik. There is no counter-affidavit filed in this case, and the
allegations go absolutely uncontroverted.
36. In one of the cases before us, though not in this particular case, it was argued
that an order of forfeiture would be hit by Article 20, Constitution of India. But, this
argument does not appear to me to be sound. Sub-section (1) of Section 5 lays down
that a person who unauthorisedly occupies any land which is public property may be
summarily evicted and that any crop or other produce raised by him on the land shall
be liable to forfeiture. It is another point that the meaning that has been given to the
expression "unauthorisedly occupies" in this Act violates the fundamental rights
guaranteed under the Constitution, but if such an artificial meaning would not have
been given to the expression "unauthorisedly occupies" and the expression would
have been inserted in the Act only with the intention of conveying its ordinary
meaning, then the summary eviction would have been justified, and if the summary
eviction is justified, then the order of forfeiture of the standing crops or produce will
also be justified.
In Wharton's Law Lexicon, the circumstances which may result in forfeiture have
been mentioned, and they are, besides others, (1) treason, (2) conveyance contrary
to law, (3) alienation in mortmain, or to any kind of corporation, (4) disclaimer,
which is a tenant's denial of his landlord's title and (5) alienation without licence.
Though at times a penalty for an offence or an unlawful act is also taken to be a

forfeiture, there can be no doubt that the word can be used in various other senses.
In Stroud's Judicial Dictionary "forfeiture" is said to mean "the loss of all interest in
the property spoken of", and it has been pointed out in this book that the words
"forfeiture" and "breach of condition" are to be read in their largest sense.
If a person is found to be in unlawful possession of a property, he has no right to
enjoy the produce of that property, and the person entitled to evict him is also
entitled to the usufruct. Thus, it follows that the possession of a person over public
property is found to be unauthorised and unjustified, an order of forfeiture will not
be illegal, and the word being a word of wide import, it will not be correct to say that
forfeiture is really a conviction as contemplated by Article 20, Constitution of India. It
is another thing that because of the peculiar meaning given to the words "public
property" and "unauthorised occupation", the relevant provisions have to be declared
unconstitutional and ultra vires.
37. The provision regarding the forfeiture of crop cannot also be deemed to be bad
on the ground that it is to be treated as an 'ex, post facto' legislation. If this Act or
the important portions of it would not have been unconstitutional and void, then
there could not have been any question of 'ex post facto' legislation, because it is
only after the passing of the Act that certain acts would be deemed to be
unauthorised, and therefore there could be no question of punishing a man for
something which he had done in the past. Exception cannot, therefore, in this case be
taken only to the order of forfeiture, but the application must succeed, because, the
allegations made by the petitioners are not controverted and because the survey
entry is challenged as incorrect.
387, 391, 392, 393, 394, 395, 396, 397 and 410 of 1953 were allowed.)
CASE No. 432 OF 1953.
38. Though the order of the Subdivisional Officer shows that three plots, namely,
plots Nos. 480, 440 and 491, were in dispute, in the application which has been filed
in this Court there is no mention of plot No. 491. The petitioners have alleged that
they have been in possession of a portion of plot No. 440 and of the entire plot No.
480 for a considerable length of time. Later on, they took formal settlement of plot
No. 480. Regarding .04 acres of plot No. 440 they have alleged that they have been
in possession of it from before the year 1935. These allegations are not controverted,
and the application will, therefore, be allowed in part.
(Applications in cases Nos. 424, 425, 426. 427, 481, 433 and 445 of 1953 were
allowed.)
CASES NOS. 449 AND 450 OF 1953.
39. There does not appear to be any merit in these applications as the District Board
had granted only temporary leases of the road-side lands. These cases are covered
by Clauses (c) of Section 2(ii) of the impugned Act, and there is no contention in
these cases that Clause (c) is unconstitutional and void. The facts have been clearly
set out in the judgment of the learned Collector and they unmistakably go to show
that only temporary leases had been granted to the petitioners. There is no question
of the acquisition of any permanent right by these petitioners, and the applications
must, therefore, be rejected.
(Applications in cases Nos. 452, 462 and 453 of 1953 were also allowed.)

CASE No. 454 OF 1953.
4 0 . Nobody has appeared in this case on behalf of the petitioners, and the
application has not been pressed. I do not find any plea of long possession in this
case, and the application must, therefore, be rejected.
368, 510, 516, 518, 488, 538, 578, 583, 586, 411, 464 and 465 of 1953 were
allowed.)
CASE No. 466 OF 1953.
41. The plots with which we are concerned in this case are plots Nos. 400 and 262.
At first a notice was issued to these petitioners describing the plot as plot No. 260.
Later on, however, the mistake was corrected and a fresh notice was issued in which
the number of the plot was correctly stated. These two plots are recorded as gair-
mazrua-am-tal in the survey record. The fard-ab-pashi shows that the tenants may
irrigate their lands with the water of this 'tal' or tank with the permission of the
malik. The learned Subdivisional Magistrate's order also shows that the obligation,
for keeping this 'tal' in proper order is on the malik. But the learned Subdivisional
Officer observes that the mere obligation to repair the tank does not confer any legal
right on the malik. There is uncontroverted allegation to the effect that only when the
water recedes, the petitioners who are the landlords grow rabbi crops on this land
which had been allotted to them on partition.
When the fard-ab-pashi shows that the tenants can irrigate their fields with the water
of the 'tal' with the permission of the malik and the malik has to keep the 'tal' in
proper order, it cannot be said that the petitioners as maliks have no concern with
the land. The only question which arises is whether the growing of rabbi crops on the
land after the water recedes, can be regarded as an unauthorised occupation. In my
opinion this cannot be regarded as an unauthorised occupation. The incidents with
regard to the, property are noted in the fard-ab-pashi, & if any crop is grown on the
land, it is only when there is no water in it. The tank or the 'tal' is meant for
irrigation, and the growing of crop in it after the water recedes cannot .be regarded
as an unauthorised occupation. No better title can accrue to the petitioners because
of their growing of crops when the 'tal' dries up.
The petitioners do not claim, any additional right in this land beyond what has been
indicated in the record-of-rights, and they are still prepared to treat the land as
gairmazrua-am. The right' of the public as entered in the survey record, will, remain
unimpaired, and the growing of rabbi crops when the land dries up, does not
interfere with the public right. This cannot be regarded as a case of unauthorised
occupation, & the application will therefore be allowed. The order forfeiting the crops
standing on this land will stand vacated, though, as I have already stated, an order of
forfeiture of the standing props when the occupation is found to be unauthorised will
not be illegal and void.
(The application in case No. 469 of 1953 was allowed.)
42. My conclusion, therefore, is that though the entire Act cannot be regarded as
invalid and though a legislation to make better provisions for removal and prevention
of encroachments on lands which are public property is perfectly within the
competence of the State Legislature, certain provisions of this Act violate the
fundamental rights guaranteed under the Constitution of India and are also repugnant
to the existing law. Clauses (d) and (f) of Section 2 violate the fundamental rights
and are repugnant to the existing law, and so is the case with Sections 5 and 6 in

which the expressions "unauthorisedly occupies" and "unauthorised occupation" have
been used. I need not repeat that
" where a law purports to authorise the imposition of restrictions on a
fundamental right in language, wide enough to cover restrictions both within
and without the limits of constitutionally permissible legislative action
affecting such right it is not possible to uphold it even so far as it may be
applied within the constitutional limits, as it is not severable".
It is now very well settled that when there is a clear possibility of a particular
provision being applied for the purposes not sanctioned by the Constitution, that
provision must be held to be wholly unconstitutional and void. But, it is also well-
settled that a judicial declaration of the unconstitutionality of a statute neither annuls
nor repeals the statute and has the effect of ignoring or disregarding it only so far as
the determination of the rights of parties is concerned.
While deciding these cases I have taken care to grant relief only to those petitioners
who have claimed some right to and interest in the property in question and are thus
entitled to a declaration that the Act or the provisions mentioned above do not affect
their rights, as they are unconstitutional or repugnant to the existing law. With regard
to Section 9, I have overruled the contention that it should be regarded as an 'ex post
facto' legislation, and my view is that a person who is really in unauthorised
occupation of a public property (understanding the expressions "unauthorised
occupation" and "public property" in their natural sense) can be convicted and
punished according to the provisions of this section. But, even this section is to be
regarded as unconstitutional and void, if the expression "unauthorisedly occupies" in
the section is to be given the wide meaning which it has been given, in the Bihar
Land Encroachment (Amendment) Act (Act 25 of 1952).
In my opinion, those petitioners only had the right to move this court for issue of
writs against whom the offending provisions of the law have been definitely used and
who have suffered injury on account of the use against them of the offending
provisions. And because in a few cases I find that the offending provisions cannot be
said to have been used against the petitioners, I have rejected their applications. It is
here that my learned brethren differ from me, they being of the opinion that all
applications which are covered by Clauses (d) and (f) should be allowed, irrespective
of the question as to whether the petitioners have sustained any injury or not. It is
settled beyond all dispute that gairmazrua-am lands are property of the public and no
individual can claim such lands as his separate property unless and until the public
character of the lands is altered by his acquiring an absolute title to them on account
of adverse possession. This court has consistently taken this view in several
decisions, and probably there is no scope for two opinions on this point.
The question, therefore, arises whether a person who has not acquired title to
gairmazrua-am lands fey being in adverse possession for a period of twelve years can
claim property right in such lands. Certainly, when the word "property" is used, it
means all the attributes and indicia which result in the legal conception of property,
and, property in its broader sense is not the physical thing which is the subject of
ownership, but is the right of dominion, possession, and power of disposition which
may be acquired over it. Under our Constitution all citizens have the right to acquire,
hold and dispose of property, and a mere trespasser cannot hold and dispose of
property.
As Bentham.' says, property is entirely the creature of law.
"It is the law alone which makes it possible for me to forget the insecurity of

my natural condition, and emboldens me, with reasonable hope of a harvest
as yet far distant, to enclose a plot of land and give myself up to the toll of
cultivation." -- Bentham"
When the law withdraws its recognition a thing ceases to have the attribute of
property, and the State has the right to define the kinds of property and the character
of the interests therein to which it will give legal recognition. Nothing, thus, can be
the subject of property which is not recognised by law as such, and so far as
gairmazrua-am lands are concerned the right, title and interest of the public continue
with regard to them, unless and until an individual by his adverse possession over
them for a period of twelve years puts an end to the title which the public had in
them.
It is true that if a property is 'res nullius,' possession over that property, even for a
short period, will create property right therein for the possessor. But this principle
cannot be applied in the case of a gairmazrua-am plot, and an individual by merely
encroaching on a gairmazrua-am property cannot claim any right to it.
4 3 . The next question which, therefore, arises is whether a person who has
encroached upon a gairmazrua-am land and has not acquired title to it by adverse
possession for a period of twelve years can ask for a writ under Article 226,
Constitution of India. A writ of mandamus has been described in Halsbury's Laws of
England as
"a high prerogative writ of a most extensive remedial nature, and is, in form,
a command issuing from the High Court of Justice, directed to any person,
corporation, or inferior court, requiring him or them to do some particular
thing therein specified which appertains to his or their office and is in the
nature of a public duty".
It is further pointed out that the grant of writ OH mandamus is, as a general rule, a
matter for the discretion of the court and is not issued as a matter of course.
In -- 'Commonwealth o f Massachusetts v. Mellon.' (1922) 67 L Ed. 1078 it was
pointed out that there was no power per se to review and annul acts of Congress on
the ground that they were unconstitutional, and that the party who invokes the power
must be able to show not only that the statute is invalid, but that he has sustained or
is immediately in danger of sustaining some direct injury as the result of its
enforcement, and not merely that he suffers in some indefinite way in common with
people generally. A Full Bench of the Allahabad High Court followed this decision in -
- 'Indian Sugar Mills Association v. Secy. to Govt. U. P. Labour Dept.',
MANU/UP/0285/1950 : AIR 1951 All 1 (FB) (Z54) and observed as follows:
"We feel that the time has come when we may point out that Article 226 of
the Constitution was not intended to provide an alternative method of redress
to the normal process of a decision in an action brought in the usual courts
established by law. The powers under this article should be sparingly used
and only in those clear cases where the rights of a person have been
seriously infringed and he has no other adequate and specific remedy
available to him."
A trespasser on a gairmazrua-am land cannot complain that his rights have been at
all infringed, and, even the remedy of a suit is not open to him. A court of justice in
its ordinary jurisdiction will at once throw out a suit for possession instituted by a
pure trespasser upon gairmazrua-am lands, and I am not at all able to appreciate that
though trespasser over a gairmazrua-am land is not able to maintain a suit for

possession over such land, he can invoke the extraordinary jurisdiction of this Court
by asking for a writ of mandamus, be it directed against another individual or against
the State. One who is himself Without a title cannot sue to eject another, though
equally without title, and if a gairmazrua-am land is public property, that is, property
belonging to the entire public, a mere trespasser over it cannot sue for possession or
any declaration with regard to the property. In several English cases it has been held
that before a writ of mandamus can be issued the person asking for such a writ
should show a legal right in himself.
The question to be determined is--what were the rights of the applicant or the
plaintiff before he commenced the action. The law suit or the application for the writ
does not create the right; it determines authoritatively that there was, before it
began, a right, and it determines what that right was and is.
"What is called a 'right of action' is not the power of bringing an action. Any
body can bring an action though he has no right at all. The meaning of the
phrase is. that the person has a right or claim before the action which is
determined by the action to be a valid right or claim. The action or suit does
not confer a right which did not exist before it; it only declares that a right
did exist before it. An action or suit is therefore mere procedure." (Lord
Esher M. R. in Attorney-General v. Lord Sudeley 1896 QB 354
In the well-known case of MANU/SC/0009/1950Fazl Ali, J. observed as follows :
"It has been held in a number of cases in the. United States of America that
no one except those whose rights are directly affected by a law can raise the
question of the constitutionality of that law. This principle has been very
clearly stated by Hughes J. in McCabe v. Atchison (1914) 235 U. S. 151 in
these words : 'It is an elementary principle that in order to justify the
granting of this extra-ordinary relief, the complainant's need of it and the
absence of an adequate remedy at law must clearly appear. The complainant
cannot succeed because someone else may be hurt. Nor does it make any
difference that other persons who may be injured are persons of the same
race or occupation. It is the fact, clearly established, of injury to the
complainant -- not to others -- which justifies Judicial interference."
With this statement of the law his Lordship fully agreed. Mukherjea J., while
considering Article 32 in this very case, observed as follows :
"The application before us under Article 32 of the Constitution is on behalf of
an individual shareholder of the Company. Article 32, as its provisions show,
is not directly concerned with the determination of Constitutional validity of
particular legislative enactments. What it aims at, is the enforcing of
fundamental rights guaranteed by the Constitution, no matter whether the
necessity for such enforcement arises out of an action of the executive or of
the Legislature. To make out a case under this Article, it is incumbent upon
the petitioner to establish not merely that the law complained of is beyond
the competence of the particular Legislature as not being covered by any of
the items in the legislative lists, but that it affects or invades his fundamental
rights guaranteed by the Constitution, of which he could seek enforcement by
an appropriate writ or order.
The rights that could be enforced under Art, 32 must ordinarily be the rights
of the petitioner himself who complains of infraction of such rights and
approaches the Court for relief. This being the position, the proper subject of
our investigation would be what rights, if any, of the petitioner as a

shareholder of the Company have been violated by the impugned legislation
.....A proceeding under this Article cannot really have any affinity to what is
known as a declaratory suit."
Though in Article 226 the words "and for any other, purpose" have been used, such
words being absent from Article 32(2), the position in law is practically the same
under both the Articles. A Full Bench of this Court in -- 'Bagaram Tuloule v. State of
Bihar', MANU/BH/0106/1950 : AIR 1950 Pat 387 (Z57) has held that the words "for
any other purpose" must be read 'ejusdem generis' which is the ordinary principle of
construction. I should like to quote the following passage from the judgment of
Meredith C. J. in this case with which Shearer J. and my learned brother Das J. had
agreed :
"It is quite clear that these words have been added advisedly and must mean
something in addition to the enforcement of the rights conferred by Part III,
and this is so whether they be read 'ejusdem generis' or otherwise. It is clear
because Article 32, which is the corresponding provision for the Supreme
Court, does not contain these words, but speaks merely of the enforcement
of 'any of the rights conferred by this part, and that is obviously because the
original jurisdiction of the Supreme Court extends only to the enforcement of
the fundamental rights. And this view receives confirmation from the terms
of Article 139 which says: "The Parliament may by law confer on the
Supreme Court power to issue directions, orders or writs, including writs in
the nature of 'habeas corpus', 'mandamus', 'prohibition', 'quo warranto' and
'certiorari', or any of them for any purposes other than those mentioned in
Clause (2) of Article 32'. Undoubtedly, therefore, Art, 226 contemplates the
issue of writs and directions for purposes other than the enforcement of the
fundamental rights. At the same time, the words can hardly mean that the
High Court can issue writs for any purpose it pleases. I think the correct
interpretation is that the words mean for the enforcement of any legal right
and the performance of any legal duty."
And therefore these applicants have to show, that they possess a legal right before
they can ask for any command against the opposite party. I The proper subject for
investigation by the Court is what rights, if any, of these petitioners have been
violated by the impugned legislation. If no rights of theirs have been violated by the
impugned Legislation no writs can be issued on applications filed by them. An
exception to this proposition is admitted in the case of 'habeas corpus;' but even in
the case of 'habeas corpus' application, the applicant should not be an absolute
stranger. At any rate, the principles that are applicable in, the case of a 'habeas
corpus' application cannot be invoked while seeking a writ in the nature of
mandamus or prohibition. In this view of the matter I am of opinion that the
applications filed by those petitioners who have not claimed any right in the
gairmazrua-am land which can be recognised under the law must be rejected.
44. In the result, therefore, I would allow all these applications, except those which
have been registered as cases Nos. 236, 239, 449, 450, 315, 396, 422, 133, 267 &
454. Applications registered as cases Nos. 236, 239, 449, 450, 133, 267 and 454 are
rejected, and applications registered as cases Nos. 315, 396 and 422 are allowed, in
parts as indicated above.
45. There will be no order for costs in any of these cases.
Das, J.
46. The arguments in these 144 cases have ranged over a very wide area, and the

submissions made by learned Counsel have meandered over many topics--some
closely related to the main question at issue and some somewhat distantly or
indirectly related to it. My learned brother Narayan, J. has dealt with all the
arguments in detail in his judgment--a judgment which I have had the advantage and
privilege of reading before delivery. I am happy to be able to say that I am in
agreement with my learned brother as respects his main conclusion, namely, that
Sub-clauses (d) and (f) of Clause (ii) of Section 2, Bihar Land Encroachment Act,
1950, are unconstitutional, while Sub-clause (c) of Clause (ii) of the said section is
constitutional. It would be mere repetition if I were to deal with all the arguments
afresh. I propose, therefore, to record as succinctly as possible my views and finding
on the main question argued in these cases, avoiding as far as practicable any
elaborate reference to the plethora of case law cited at the Bar. I shall also make an
attempt not to repeat what my learned brother has already said in respect of those of
his conclusions with which I am in agreement. I do not think that any useful purpose
would be served by giving different reasons for the same conclusions, or expressing
the Same reasons somewhat differently and thereby adding to the length of the
judgment.
Unfortunately, however, I do not agree with my learned brother as to the final orders
which should be passed in a few of the cases, by reason of our main conclusion that
Sub-clauses (d) and (f) of Clause (ii) of Section 2, Bihar Land Encroachment Act,
1950, are unconstitutional. These few cases in which I differ from my learned brother
I shall deal with in some detail.
4 7 . The principal point for consideration in these cases is the constitutionality of
some of the provisions of what is known as the Bihar Land Encroachment Act, 1950,
as amended in 1951 and 1952. The provisions which have been particularly called in
question centre round Sub-clauses (d) and (f) of Clause (ii) of Section 2 read with
Sections 5, 6, 8, 9 and 11 of the Act. A few of the cases relate also to Sub-clause (c)
of Clause (ii) of Section 2 but I shall refer to those cases separately. The large
majority of cases relate to Sub-clauses (d) and (f), and I confine my present
observations to these cases.
4 8 . The constitutionality of the impugned provisions may be considered from the
following stand-points: (a) Legislative competence (Articles 245 and 246, read with
the three legislative lists in the Seventh Schedule of the Constitution); (b)
inconsistency or repugnancy between the impugned provisions and any existing law
with respect to any of the matters enumerated in the concurrent list Art. 254 of the
Constitution); and (c) contravention of any of the fundamental rights guaranteed in
Part III of the Constitution ; (see Article 13 of the Constitution). The stand points
referred to above are not the same, and raise somewhat different questions. I shall
confine myself, first and foremost, to the questions coming under (c) above,
assuming that the State Legislature of Bihar was competent to enact a law with
regard to encroachment on public land under item 18 of the State list.
49. The argument is that the impugned provisions in Sub-clauses (d) and (f) which
define 'public property' for the purposes of the Act contravene the fundamental rights
guaranteed under Articles 14, 19(1)(f) and 31(2) of the Constitution and are void to
the extent of the contravention.
50. In my view, this argument Is correct and should be accepted. Let us start with
the definition given in Sub-clauses (d) and (f) of Clause (ii) of Section 2 of the Act
and see what they say. These two sub-clauses have been quoted by my learned
brother, and I need not quote them again. Under Sub-clause (d), all land which is
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 becomes, by the force of the
definition, "Public property" within the meaning of the Land Encroachment Act.
Therefore, this definition clause converts what is a mere rebuttable presumption
under the tenancy laws (except in some special cases which are immaterial for our
present purpose) into conclusive proof that a particular piece of land is public land,
irrespective of whether the entry in the record-of-rights is correct or not or whether
any person has ousted the public from such land and been in exclusive and adverse
possession for more than twelve years.
It proceeds on the footing as though an entry in the record-of-rights is a conclusive
and indefeasible document of title. The definition is both artificial and compulsory,
artificial in the sense that it calls some land as public land without any reference to
the rights acquired therein, and compulsory in the sense that there is no scope for
any investigation into the claims of the parties. The definition has this effect in
substance; by the definition a land which is merely recorded in the record-of-rights
for the use of the community is public land, and the Collector is at once empowered
to take possession of such land by dispossessing even the rightful owner; in other
words, the definition says something like this: "I call this land as public land, and
you will not be heard to say to the contrary; the State will now take possession of
the , land." If this is the effect of Sub-clause (d), then it undoubtedly contravenes the
fundamental rights guaranteed under Articles 19(1)(f) and 31(2), Constitution of
India.
Under Article 19(1)(f) all citizens have the right to acquire, hold and dispose of
property. Under Article 31(2) no property shall be taken possession, of or acquired
for public purposes under any law authorising the taking of such possession or such
acquisition, unless the law provides for compensation for the property etc. Under the
impugned provisions, the State through the Collector takes possession of property
which may not be public property at all but is the private property of a citizen of
India. Such law, if permissible, will make nonsense of the fundamental rights
guaranteed under Articles 19(1)(f) and 31(2) of the Constitution.
51. An attempt has been made to support the impugned provisions under Clause (5)
of Article 19 and Clause (5) of Article 31 of the Constitution. None of those clauses,
in my opinion, support the impugned provisions. If the land is not public land at all
but is private property of a citizen of India, it cannot be said that a law which permits
the taking of such land by the State without payment of compensation is a reasonable
restriction on the exercise of the right to hold property in the interest of the general
public. Clause (5) of Article 19 cannot be invoked in aid of such a law. Nor do the
impugned provisions come within any of the relevant items of Clause 5 of Article 31.
The impugned provisions are not for the purpose of imposing or levying any tax or
penalty or for the promotion of public health or the prevention of danger to life or
property.
5 2 . Clause (5) of Article 31 does not, in my opinion, support the impugned
provisions.
53. Two other arguments have been addressed to us in support of the impugned
provisions; one was advanced by Mr. Amin Ahmad and the other by the learned
Government Advocate. It is necessary that I should notice these arguments and
record my views thereon as briefly as possible. Mr. Amin Ahmad's argument, so far
as I have been able to understand it, is of the following nature. He has submitted that
Article 19(1) has no application where a person is deprived of his property by
authority of law; he contends that Article 19(1) relates to property in the abstract,
and does not protect such property as is validly acquired by law; as to Article 31, Mr.

Amin Ahmad's contention is that the impugned provisions come under Clause (1) of
the said Article which embodies the 'police powers' of the State and are not,
therefore, hit by the succeeding clauses; alternatively, if the impugned provisions are
hit by Clause (2) of Article 31, they are taken out of that clause by the provisions in
Clause (5) of the said Article. As to Clause (5) of Article 31, I have already made my
observations.
As to Clause (1) of Article 31, some support of the argument of Mr. Amin Ahmad can
be had from the observations made by his Lordship Das J. in --
'MANU/SC/0009/1950 : AIR 1951 SC 41 (E)' and some Bombay decisions which
accepted and followed those observations. In view; however, of the two recent
decisions of the Supreme Court in -- 'MANU/SC/0018/1953 : AIR 1954 SC 92 (O1)'
and -- 'MANU/SC/0019/1953 : AIR 1954 SC 119 (P)', this argument of Mr. Amin
Ahmad cannot be accept ed.
It is true that there are some observations in the judgment of his Lordship Patanjali
Sastri C. J. in -- 'MANU/SC/0018/1953 : AIR 1954 SC 92 at p. 95 (Ol)', Which
support the view that Clause (f) of Article 19(1) of the Constitution deals with the
natural right or capacity of a citizen "to acquire, hold and dispose of property" as
distinguished from concrete rights in property while rights of private property are
separately dealt with and their protection provided for in Article 31; yet the majority
decision of the Supreme Court clearly lays down that the American doctrine of police
power as a distinct and specific legislative power is not recognised in our
Constitution and it is, therefore, contrary to the Scheme of the Constitution to say
that Clause (1) of Article 31 must be read in positive terms and understood as
conferring Police power on the Legislature in relation to rights of property. It is
further decided that Clause (1), of Article 31 of the Constitution is designed to
protect the rights to property against deprivation by the State through its executive
organ, and CL (2) imposes two further limitations on the Legislature itself; the
Legislature is prohibited from making a law authorising expropriation except for
public purposes and on payment of compensation for the injury sustained by the
owner.
It is stated that these important limitations on the power of the State, acting through
the executive and legislative organs, to take away private property are designed to
protect the owner against arbitrary deprivation of the property; therefore, Clauses (1)
and (2) of Article 31 are not mutually exclusive in scope and content but should be
read together and understood as dealing with the same subject, namely, the
protection of the right to property by means of the limitations on the State power
referred to above. These latest decisions of the Supreme Court on the subject knock
the bottom out of argument of Mr. Amin Ahmad that the impugned provisions can be
justified under Clause (1) of Article 31 of the Constitution, as legislation relating to
abatement of nuisance on public land.
54. The learned Government Advocate, who was followed by the learned Advocate-
General, strongly, pressed for a narrower interpretation of the impugned Sub-clause
(d) of Clause (ii) of Section 2, Bihar Land Encroachment Act, 1950. He argued that
where the sub-clause stated "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", we should read "land 'rightly' (or 'correctly') recorded for the use of the
community in the record-of-rights etc." He further argued that Sub-clause (d) should
be confined to such land only as is correctly recorded for the use of the community in
the record of rights 'and in which no private person has acquired a right or title by
adverse possession' before the commencement of the Act.

The learned Government Advocate has stated that the Act does not apply to land in
which title had been acquired, (e.g., by adverse possession) before the
commencement of the Act because such land was not public land on the date of the
Act, and the Act merely seeks to prevent acquisition of private rights, after the
passing of the Act, on land which is recorded as public land either by law, custom or
contract inconsistent with the right of the public therein. In other words, the learned
Government Advocate wishes to incorporate two qualifications in Sub-clause (d): one
qualification is that the land must be correctly recorded in the record-of-rights as
being for the use of the community; and the second qualification is that the sub-
clause should not apply to such land in which a private person had perfected his right
by adverse possession and ouster before the commencement of the Act. My learned
brother has dealt with this argument of the learned Government Advocate. In detail
and has given reasons why the narrower interpretation or modified construction
canvassed for by the learned Government Advocate cannot be accepted. I entirely
agree with my learned brother.
It is to be remembered that Sub-clause (d) is a definition sub-clause, and the
definition cannot be cut down by reading into it words which do not occur there.
Moreover, it appears to me that the intention of the Legislature was to treat as public
land all such land as is 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, irrespective of
whether the record is correct or if any person had acquired any private rights therein.
This intention is clear from the following circumstances. Clause (ii) of Section 2,
Bihar Land Encroachment Act, 1950, as it originally stood, opened with the words,
"Subject to the provisions of any law for the time being in force." Those opening
words meant that the definition Sub-clause (d) would be subject to the provisions of
the Limitation Act.
By the amendment made in 1951 (Bihar Act 28 of 1951) those opening words were
repealed. Obviously, the intention was to give the definition such amplitude of
meaning and unlimited effect as the words used therein grammatically conveyed.
Then came the amendment of 1952 (Bihar Act 25 of 1952). By this amendment a
view clause, Clause (iv), was incorporated in Section 2. This clause tried to explain
the expression "unauthorised occupation". The clause is couched in language which
is somewhat difficult to understand. It says in effect that "unauthorised occupation"
means the act of any person in "remaining in unauthorised occupation" of any laud
which is public property within the meaning of Sub-clauses (d) and (f) of Clause (ii)
; then it adds the significant words, "notwithstanding any contract, express or
implied, between him and the landlord or the owner of the land made before or after
the commencement of this Act, and notwithstanding anything contained in any law,
local custom or usage to the contrary."
This non-obstante clause can only have been intended to make the definition
completely watertight so that nobody can claim any right by law or custom in land
which by the artificial and compulsory definition is to be treated as public property. It
seems clear to me that the amendment made in 1952 militates against the view which
the learned Government Advocate has pressed for our acceptance. The principle laid
down in -- 'The Bigamy case (Z13)' on which the learned Government Advocate
strongly relied (my learned brother has referred to that decision in his judgment)
has, in my opinion, no application in the present case. Their Lordships were not
reading new words or new qualifications into the statute in that case; they were
interpreting the statutes as it stood on the principle that the Legislature was
legislating for its own territorial jurisdiction. In the case before us, the definition
sub-clause is not sought to be cut down on any such principle.
5 5 . It is worthy of note that though the rule of modified construction has been

5 5 . It is worthy of note that though the rule of modified construction has been
applied in cases where legislation which is otherwise competent will be rendered
incompetent if the words used therein are given a very wide meaning, there is no
decision brought to our notice in which the rule of modified construction has been
applied in a case where there is a flagrant and unambiguous abridgement of
fundamental rights. It is relevant at this stage to quote the observations of Patanjali
Sastri, J. (as he then was) in -- 'MANU/SC/0006/1950 : AIR 1950 SC 124 (Z1)'. The
question under consideration in that case was the validity of Section 9(1-A), Madras
Maintenance of Public Order Act. The section purported to authorise the State
Government.
"for the purpose of securing public safety or the maintenance of public order,
to prohibit or regulate the entry into or the circulation, sale or distribution in
the Province of Madras or any part thereof of any document or class of
documents.'"
It was held that the section which authorised imposition of restrictions for the wider
purpose of securing public safety or the maintenance of public order fell outside the
scope of authorised restrictions under Clause (2) of Article 19 and, therefore, was
void and unconstitutional. It was, however, urged that Section 9(1-A) could not be
considered wholly void, as under Article 13(1) an existing law inconsistent with a
fundamental right was void only to the extent of the inconsistency and no more. The
argument was that in so far as the securing of the public safety or the maintenance of
public order would include the security of the State, the impugned provision was
covered by Clause (2) of Article 19 and must be held to be valid.
This argument was repelled in the following Observations (see page 129 of the
Report) :
"We are unable to accede to this contention. Where a law purports to
authorise the imposition of restrictions on a fundamental right in language
wide enough to cover restrictions both within and without the limits of
constitutionally permissible legislative action affecting such right it is not
possible to uphold it even so far as it may be applied within the
constitutional limits, as it is not severable. So long as the possibility of its
being applied for purpose not sanctioned by the Constitution cannot be ruled
out, it must be held to be wholly unconstitutional and void."
I must say that I do not understand the aforesaid observations as laying down any
rule of law that the true test is whether a particular piece of legislation is liable to
abuse; that in my opinion is not the true test. The true test is what do the words
used in the legislation mean and include.
5 6 . Patanjali Sastri C. J. himself explained the aforesaid observations in a
subsequent decision, -- 'MANU/SC/0033/1952 : AIR 1952 SC 75 at p. 81 (W)'.His
Lordship observed:
"But it was said that the possibility of the Act being applied in an
unauthorised and arbitrary manner was sufficient to make it unconstitutional
according to the decisions of this Court in -- 'MANU/SC/0006/1950 : AIR
1950 SC 124 (Zl)' and -- 'MANU/SC/0008/1950 : AIR 1951 SC 118 (Z)'.....
The passage, which was relied on by the learned Chief Justice, lends no
support to the view that the mere possibility of an Act being used in a
manner not contemplated by the legislature, though such use may not be
subject to judicial review on that ground, or, in other words, the mere

possibility of its abuse in practice, would justify its condemnation as
unconstitutional. The important distinction is that in -- 'Romesh Thappar's
case (Z1)', the impugned enactment, having been passed before the
commencement of the Constitution, did contemplate the use to which it was
actually put, but such use was outside the permissible constitutional
restrictions on the freedom of speech, that is to say, the Act was not
condemned on the ground of the possibility of its being abused but on the
ground that even the contemplated and authorised use was outside the limits
of constitutionally permissible restrictions."
His Lordship explained that the impugned Act in -- 'Romesh Thappar's case (Z1)' was
not condemned on the ground of the possibility of its being abused but on the
ground that even the contemplated and authorised use was outside the limits of
constitutionally permissible restrictions. In -- 'MANU/SC/0008/1950 : AIR 1951 SC
118 CZ)', Mahajan, J. (as he then was) made similar observations with regard to a
statute which was expressed in such wide terms as to impose restrictions which could
not be held to be reasonable restrictions. His Lordship observed :
"The law even to the extent that it could be said to authorise the imposition
of restrictions in regard to agricultural labour cannot be held valid because
the language employed is wide enough to cover restrictions both within and
without the limits of constitutionally permissible legislative action affecting
the right. So long as the possibility of its being applied for purposes not
sanctioned by the Constitution cannot be ruled out, it must be held to be
wholly void."
These observations also have to be appreciated in the light of the observations made
in the later decision of -- 'MANU/SC/0033/1952 : AIR 1952 SC 75 (W)'. There is a
third decision to which our attention has been drawn -- 'State of Bombay v. United
Motors (India) Ltd.', MANU/SC/0095/1953 : AIR 1953 SC 252 (Z58) in which the
principle of "severability in enforcement" was applied. That was a case which dealt
with a taxing statute which imposed a tax on subjects divisible in their nature but did
not exclude in express terms subjects exempted by the Constitution. It was held that
for that reason the statute should not be declared wholly ultra vires and void; for, in
such cases, it was always feasible to separate taxes levied on authorised subjects
from those levied on exempted subjects and to exclude the latter in the assessment
of the tax. It was held that in such cases the statute itself should be allowed to stand,
the taxing authority being prevented by injunction from imposing the tax on subjects
exempted by the Constitution. The principle applied was the principle of "severability
in enforcement" (see -- 'Bowman v. Continental Oil Co.' (1920) 256 US 642 .
One of the points which has been argued before us is if we can apply the same
principle of "severability in enforcement" while dealing with Sub-clause (d) of Clause
(ii) of Section 2, Bihar Land Encroachment Act, 1950. In my opinion the answer is in
the negative. In the cases under our consideration Sub-clause (d) treats as public
land all such land as is recorded in the record-of-rights prepared under the various
tenancy laws in force in the State of Bihar for the use of the community as public
land, irrespective of whether the record is correct or any person has acquired rights
therein in denial of the public right. The definition cannot be dissected; nor can it be
said that it is valid in part only. It has been contended before us that the definition
can be held to be good in those cases where the persons proceeded against have
either failed to prove that the record is incorrect or that they have acquired a right by
adverse possession. In my opinion, such a dissection of the definition is not possible,
I shall presently show that Sections 5 and 6, Bihar Land Encroachment Act, 1950, do

not contemplate an enquiry into the merits. In several of the cases before us the
Collector or the appellate authority proceeded on the footing that it was not open to
them to consider whether the entry in the record-of-rights was correct or whether the
persons proceeded against had acquired any rights in the land in question.
They took the view, rightly in my opinion, that the whole scheme of the Act, so far as
Sub-clauses (d) and (f) were concerned, was to treat some land as public land
irrespective of any other law, local custom or contract to the contrary and no enquiry
into the merits of any claim of right was permissible. That being the position, I do
not . think that the test of severability in enforcement can be applied in respect of a
definition sub-clause which is not only wide but rigorously treats all land as public
land merely because it is recorded as such in the record-of-rights prepared under the
various tenancy laws in. force in the State of Bihar. The principle which would apply
in such a case is the principle laid down by the Privy Council in -- 'Punjab Province v.
Daulat Singh', MANU/PR/0001/1946 : AIR 1946 PC 66 (Z60).
The principle was explained in the following observations of their Lordships:
"The majority of the Federal Court appear to have contemplated another
form, of severability, namely, b y a classification o f the particular cases on
which the impugned Act may happen to operate, involving an inquiry into the
circumstances of each individual case. There are no words in the Act capable
of being so construed, and such a course would in effect involve an
amendment of the Act by the Court, a course which is beyond the
competency of the Court, as has long been well established".
If I may say so with respect, these observations? apply with equal force to the
definition sub-clauses (d) and (f) of Clause (ii) of Section 2, Bihar Land
Encroachment Act, 1950. There are no words in those two sub-clauses o r i n other
sections by which a classification of the particular cases on which the two sub-
clauses will operate can be made. Such a classification will involve an inquiry into
the circumstances of each individual case. Such an inquiry is beyond the scope of the
Bihar Land Encroachment Act, 1950. It is "obvious, therefore, that there is no other
option but to hold that the two sub-clauses are wholly unconstitutional and void.
57. It is not necessary for me to consider Section 3 which, by the second proviso to
it, does not apply to any land coming within the definition of Sub-Clauses (d) and (f)
of Clause (ii) of Section 2. Section 4 relates to Section 3 and need not be considered.
Sections 5 and 6 are consequential provisions; Section 8 gives a right of appeal and
revision, Section 9 provides a penalty, and Section 11 ousts the jurisdiction of the
Civil Courts. Sections 5 and 6 are relevant for our purpose. The contention of the
learned Government Advocate has been that Sections 5 and 6 prescribe the necessity
of an inquiry by the Collector before he takes possession; he refers particularly to
Section 6 which says, 'inter alia', that before taking proceedings under Section 5, the
Collector shall cause to be served on the person reported to be in unauthorised
occupation of public property a notice specifying the land occupied and calling on
him to show cause before a certain date why he should not be proceeded against
under Section 5.
This section, according to the learned Government Advocate, shows that a person
noticed by the Collector may raise an objection, and the objection may be to the
effect that the land has been wrongly recorded in the record-of-rights as being for
the use of community; or he may show that he has already perfected a good title to
the land. I do not think that Sections 5 and 6 read together have that effect. First of
all, the Collector is bound by the definition given in the Act, and it is not open to him

to go behind the definition. Secondly, Sub-section (1) of Section 5 seems to indicate
that the Collector has the power to summarily evict any person who unauthorisedly
occupies any land which is public property by the definition given in the Act, and the
notice which the Collector is required to give under Section 6 relates to the vacating
of the land within a certain time. The summary enquiry which the Collector is
enjoined to hold relates to resistance or obstruction only.
58. For the reasons given above, I would hold that the impugned Sub-clause (d)
takes away or abridges the right to private property conferred by Article 31 of the
Constitution & is accordingly void. It also violates the equality or equal protection
Article, namely, Article 14 of the Constitution inasmuch as it picks out certain
persons, takes away their right to property and prevents them by Section 11 of the
Act to take any proceedings in the civil court to establish or vindicate their right.
Such discrimination is based on an arbitrary selection, and not on any reasonable
classification.
59. The other impugned sub-clause, namely, Sub-clause (f), does not stand on any
better footing. My learned brother has referred to the difficulty in interpreting the
expression "right t o easement" occurring in this sub-clause. Presumably, the word
"easement" has not been used in the sense in which the word is defined in Section 4,
Easements Act (Act 5 of 1882). In the context in which the word has been used in the
sub-clause, it is likely that it has a meaning similar to the meaning given to the word
"easement" in the Limitation Act and perhaps even includes customary right such as
may be acquired by the public or a section of the public.
If Sub-clause (d) refers to land which is 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, Sub-clause (f), so far as I can make out, refers to land which is not in itself
recorded for the use of the community ' but over which the public or the community
have some right like the right of grazing, the right of taking earth, the right of
burying the dead, the right of holding a religious festival on a particular day, the
right of holding a fair etc.' It appears to me that these are the rights which are
probably in contemplation, even though the word "easement" has been used in the
sub-clause.
60. Here again, the sub-clause is expressed in such wide terms that it will inevitably
lead to deprivation of the right of private property without the payment of any
compensation. A simple example will, I think, make the position clear. Take a case
where a section of the public or the community have the right to hold a fair or a
religious festival for two days in the year. The land may belong to the landlord or a
private proprietor, and the only right which the public or the community have is to
hold a fair or religious festival on two days in the year; yet by the rigour of the
definition in the sub-clause the ' land is treated as public property and the Collector
can evict the landlord or the private proprietor from the land by a summary order
under Section 5 of the Act.
Clause (iv) of Section 2 is so wide in scope that it will be of no avail to the landlord
or the proprietor to say that there is no inconsistency between his possession of the
land and the exercise of the right by the public or community. From this point of
view, Sub-clause (f) is also open to the same objection as Sub-clause (d). It will
result in expropriation and deprivation of the right to private property without the
payment of any compensation.
61. It seems to me that in their zeal to remove encroachments on what may be really
public land, the State Legislature have enacted the , Bihar Land Encroachment Act,

1950 in such wide terms in Sub-clauses (d) and (f) that they have included land
which is not really public land and in so doing, have violated some of the
fundamental rights guaranteed under the Constitution of India. That seems to me to
be the essential and fatal vice of this legislation with regard to the impugned
provisions. I am content to rest my decision on this ground only, and it is
unnecessary to consider the further question if the impugned provisions are in
conflict with certain provisions of the Civil P. C., the Criminal P. C. and the Limitation
Act. Such conflict may taring into operation Article 254 of the Constitution.
The Bihar Land Encroachment Act, 1950 was not reserved for the consideration of the
President nor did it receive his assent, though the two amendments made in 1951
and 1952 received his assent. If it be necessary to consider and decide the question
of inconsistency or repugnancy under Article 254, Constitution of India, I need only
say that I agree with my learned brother that the impugned provisions are in conflict
with the provisions of the Limitation Act, and the parent Act not having been reserved
for the consideration of the President nor having received his assent, the impugned
provisions must yield to the provisions of the Limitation Act and will be void to the
extent of the repugnancy.
62. For the reasons given above, I would hold that Sub-clauses (d) and (f) of Clause
(ii) of Section 2 are unconstitutional and void, and all proceedings taken under
Sections 5, 6, 8 and 9 with regard to land referred to in those sub-clauses, and all
orders passed therein, must be quashed. In one of the cases (Case No. 99 of 1953),
the Collector has imposed a fine of Rs. 1,000/- under Section 9 of the Act. This order
of the Collector is bad on the further ground that there is no authority under Section
9 to impose a fine unless the offender has been tried and convicted. The section itself
makes it clear that a fine can be imposed only "on conviction"; the expression "on
conviction" necessarily implies that there is a trial which has resulted in conviction.
The summary imposition of a fine by the Collector is clearly without jurisdiction.
63. I now turn to Sub-clause (c) of Clause (ii) of Section 2. There are four cases
with regard to this sub-clause. They are case No. .236 of 1953, Case No. 239 of 1953
and Case Nos. 449 and 450 of 1953. With regard to Case No. 239 of 1953, it appears
that a title suit has also been instituted by the petitioners which is still pending. I do
not think that Sub-clause (c) of Clause (ii) of Section 2, Bihar Land Encroachment
Act, 1950, is open to the objections to which Sub-clauses (d) and (f) are open. It is
true that Sub-clause (c) is also not very happily-worded. It says:
"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."
The sub-clause does not say clearly where the land must be recorded as belonging to
Government or any local authority etc. Does it mean recorded in the record-of-rights,
or does it mean / recorded in any private record? The same difficulty arises with
regard to the word "surveyed". In spite of these difficulties, however, it does not
appear to me that this sub-clause is unworkable or is so vague that it cannot be
given effect to. It obviously relates to land which belongs to Government or any local
authority etc., and is used for a public purpose such as a road, canal or embankment,
or is required for repair or maintenance of such road, canal or embankment, while
such land continues to be so used or required.
It appears to me that this sub-clause can be divided into four parts: first, the land

must be recorded or surveyed as belonging to Government or any local authority etc.,
secondly, it must be used for any public purpose, such as road, canal or
embankment; thirdly (which is an alternative to the second part), it is required for
repair or maintenance of such road, canal or embankment; fourthly, the land must
continue to be used for la public purpose or required for repair or maintenance of a
road etc. Taken as a whole, the meaning, of this sub-clause is clear enough, and it
does not lead to any expropriation or deprivation of the right to private property. I
can see no val i d constitutional objection t o t h i s sub-clause. The Bihar Land
Encroachment Act, 1950 provides for an appeal and revision under Section 8 of the
Act. Obviously, the Collector and/or the appellate authority must give a finding as to
the four requirements mentioned above, before taking any action in respect of land
under Sub-clause (c).
Any person aggrieved by an order of the Collector with regard to land coming under
Sub-clause (c) can file an appeal and move by way of revision against the order. The
cases which come under Sub-clause (c) of Clause (ii) of Section 2, Bihar Land
Encroachment Act, 1950, must, in my opinion, be dismissed.
64. As to the orders to be passed in these cases, my view is that all the applications
which relate to land covered by Sub-clauses (d) and (f) should be allowed. These
sub-clauses are unconstitutional and no proceeding can be taken under them. The
proceeding taken under them and all orders passed therein, whether preliminary,
final, appellate or revisional in nature, must be quashed. It is needless to say that
any fine imposed or order of forfeiture passed in such a proceeding must also fall
with the proceeding. It is immaterial to consider whether the petitioners have or have
not made out their claim as to adverse possession. The sub-clauses being
unconstitutional are void under Article 13 of the Constitution, and no proceedings can
be taken under them.
65. The case under Sub-clause (c) must, however, be dismissed, as that sub-clause
is not open to any constitutional objection.
66. Now arises the question as to what final orders should be passed in these 144
cases. My learned brother Narayan J. has taken the view that in some of the cases the
applications should be rejected, as the petitioners of those applications have not
made out any prima facie case for, the issue of writ. I agree with my learned brother
that in Cases Nos. 236, 239, 449 and 450 the applications should be rejected. These
four cases re late to land which comes under Sub-clause (c), which sub-clause we
have held to be constitutional. In Case No. 365 of 1953 the petitioner has stated that
there is a temple situated on Museum Road under khata No. 77, plot No. 247 of the
Cadastral Survey and No. 1274 of Municipal Survey. The order of the learned
Magistrate directing the petitioner to remove the encroachment does not state
whether he has treated the land as coming under Sub-clause (d) or Sub-clause (c).
As the land was recorded in the cadastral survey, presumably it has been treated as
coming under Sub-clause (d). X agree with my learned brother that this application
should be allowed.
I also agree to the final orders proposed by my learned brother in all the other cases
in which he has allowed the applications. I must, however, mention one case, Case
No. 466, in which my learned brother has allowed the application and has stated that
the order forfeiting the crops standing on the land will stand vacated, as the
occupation of the petitioners was not an unauthorised occupation. This is really a
case under Sub-clause (f), which we have found to be wholly unconstitutional.
Having held that Sub-clause (f) is unconstitutional, the proceeding which the learned
Subdivisional Magistrate at Bhabua started and the forfeiture order passed by him are

both bad and must be quashed. The petitioner, in my opinion, would be entitled to
the sale proceeds of the crops which are sold by public auction.
67. Now I must refer to those cases which according to my learned brother Narayan
J. should be dismissed or allowed only in part. These cases are Case No. 133 of
1952, Case No. 267 of 1953, Case No. 454 of 1953, Case No. 315 of 1953, Case No.
396 of 1953 and Case No. 422 of 1953. All these cases relate to Sub-clause (d) and
my learned brother proposed to dismiss the applications in three of the cases and
allow them in part in three other cases. In my opinion, the application should be
allowed in full in all these cases.
68. In Case No. 133 of 1952, the application was originally filed as an application for
transfer. By an order of the Bench the prayer portion was allowed to be amended and
in view of the statement made in the petition it is clear that the contention of the
petitioners is that the Bihar Land Encroachment Act, 1950 in so far as it relates to
Sub-clauses (d) and (f) is unconstitutional. Having held that these sub-clauses are
unconstitutional, I do not see any reason why the application should not be allowed.
In Case No. 267 of 1953, the petitioners say that though some of the persons
proceeded against agreed to remove the encroachments according to the demarcation
made by the Amin, the petitioners did not enter into any such agreement.
There is a further statement that the land was recorded as gairmazrua-am. Obviously,
the case comes under Sub-clause (d), and having held that that sub-clause is
unconstitutional, we must allow the application. In Case No. 454 of 1953, the
position is the same. The case relates to Sub-clause (d), and having held that sub-
clause to be unconstitutional, we must allow the application. The petitioners urge in
their petition that they have not encroached on any public land. They further allege
that the Bihar Land Encroachment Act, so far as it relates to their case, is
unconstitutional. In the three cases Nos. 315, 396 and 422 of 1953, in which my
learned brother has allowed the applications in part, I am of the opinion that the
proper order which we should issue is to quash the proceedings, because no
proceedings can be had on unconstitutional provisions. There can, therefore, be no
question of allowing the applications in part only.
69. It is, I think, well settled as my learned brother has himself observed, that an
unconstitutional provision is not law; it confers no rights, it imposes no duties, it
affords no protection and it creates no office. In legal contemplation it is inoperative
as though it had never been passed. If that be the correct position, I fail to
appreciate how there can be any valid proceeding on the basis of Sub-clause (d) or
Sub-clause (f) which we have held to be wholly unconstitutional and void. Our main
conclusion is that those two sub-clauses take away, and abridge fundamental rights
and are, therefore, wholly void.
It is a little difficult to understand how them can be any proceeding on a sub-clause
which is wholly unconstitutional and void. To reject some of the applications which
arise out of proceedings based on Sub-clause (d) or Sub-clause (f) will, in my
opinion, lead to an inconsistency with our main, conclusion. The position would have
been otherwise if we had held, by accepting the modified construction of the learned
Government Advocate, that Sub-clauses (d) and (f) were partly valid, or can. be
partly enforced. We have not, however, accepted that contention. Therefore,
consistently with our main conclusion, we must quash all proceedings which were
started, and in which orders-were passed, on unconstitutional provisions.
70. Under Article 226 of the Constitution it is our duty to enforce the fundamental
rights and to issue such writs as are necessary for enforcing such rights. When some

of the provisions of the Bihar Land Encroachment Act, 1950 are held to be
unconstitutional, it is our duty to quash and strike down proceedings and all orders
passed therein, including orders of forfeiture and conviction, as unconstitutional on
the ground that no proceedings can be had on provisions, which, in legal
contemplation do not exist at all.
71. To hold otherwise will be to put the parties and the officers dealing with the
cases against them, in a very embarrassing position. We have held that Sub-clauses
(d) and (f) are unconstitutional. If we now reject some of the applications or allow
some of them in part, what will happen to the proceedings? The officers concerned
will have to conclude the proceedings, even though there can be no proceedings on
unconstitutional provisions. I do not think that we should pass such orders as would
lead to an embarrassing or conflicting situation.
7 2 . My learned brother has referred to certain decisions, including a decision of
mine, which deal with the circumstances or conditions on which writs, particularly
writs of mandamus, should issue. I say this with great respect, but in my opinion
those decisions are not really relevant. Where fundamental rights are infringed, the
High Court undoubtedly has the power to issue any appropriate writ. It is worthy of
note that the circumstances and conditions for the issue of the various directions,
orders or writs mentioned in Article 226 are not the same for all of them; for
example, the conditions precedent for the issue of a writ of mandamus are not the
same as the conditions precedent for the issue of a writ of certiorari or a writ of
prohibition. Mandamus has been broadly defined as a writ issuing from a court of
competent jurisdiction directed to a person, officer, corporation or inferior court
commanding the performance of a particular duty which results from the official
station of the one to whom it is directed or from operation of law, or is a writ
commanding the performance of an act which the law specially enjoins as a duty
resulting from an office, trust or station.
It is a proceeding to compel some one to perform some duty which the law imposes
on him and the writ may prohibit the doing of a thing as well as command it to be
done. Speaking generally, it is a writ against official inaction. As a general rule,
mandamus is not a writ of right, and its issuance or refusal is a matter of discretion
with the court before whom the application for writ is heard. The court's direction
with respect to the issuance of mandamus is not an arbitrary discretion, but a judicial
or legal one to be exercised on equitable principles and in accordance with well
settled rules of law. It is also well recognised that as a general rule, mandamus does
not He where there is another plain, speedy and adequate remedy available.
73. In the cases before us the appropriate writ or order is not so much a writ or
order of mandamus as a writ or order quashing proceedings and all orders passed
therein, which were based on certain unconstitutional provisions, unconstitutional in
the sense that the provisions infringed fundamental rights. The proceedings had no
legal existence and the question of a speedy alternative remedy hardly arises in such
cases. In my opinion, it is immaterial to consider whether in some of these cases the
petitioners have established the right which they claim. The proceedings themselves
being unconstitutional must, in my opinion, be quashed and along with the
proceedings will fall all orders passed therein.
74. With regard to the writ of prohibition, which in England is a prerogative writ
issuing out of the High Court of Justice and directed to an ecclesiastical or inferior
temporal court forbidding such Court to continue proceedings therein in excess of its
jurisdiction or in contravention of the laws of the land, it is stated in Halsbury's Laws
of England, Vol. 9, Hailsham Edition, paragraph 1402, page 826:

"Where the objection to the jurisdiction of an inferior court appears on the
face of the proceedings, prohibition lies at any time, even after judgment or
sentence, in spite of the latches or acquiescence of the applicant."
As soon as absolute absence of jurisdiction is apparent on the record of the
proceedings, the writ of prohibition will issue as of right and no question of an
alternative remedy can arise. The position is the same with regard to the writ of
certiorari. Where there is absence of jurisdiction from the very nature of the subject
matter so that the inferior court had no authority to enter on the enquiry, a writ will
issue to quash the proceedings. It is not necessary to consider in these cases whether
the Collector purporting to act under the provisions of the Bihar Land Encroachment
Act, 1950 is or is not an inferior court and whether the orders passed by him are
quasi-judicial orders. Article 226, Constitution of India, enables the High Court to
issue directions, orders or writs, including writs in the nature of prohibition and
certiorari, for the enforcement of any of the rights conferred by Part III of the
Constitution. We can mould the direction, order or writ to the circumstances of the
case so that the appropriate direction, order or writ may issue. In my opinion, the
proper order should be to quash all the proceedings which relate to Sub-clauses (d)
and (f) of Clause (ii) of Section 2, Bihar Land Encroachment Act, 1950.
75. In the result, I would allow all the applications except in the four cases, Cases
Nos. 236, 239, 449 and 450 of 1953 which relate to Sub-clause (c) and in these
cases the applications will be dismissed. The appropriate orders which should issue
in the cases in which the applications are allowed are that the proceedings, pending
or otherwise, are quashed and all orders passed therein, including preliminary or
final orders, orders of conviction and orders of forfeiture, are similarly quashed and
the officers concerned are prohibited from instituting any proceedings against the
petitioners under unconstitutional Sub-clauses (d) and (f) of Clause (ii) of Section 2,
Bihar Land Encroachment Act, 1950. In the circumstances of these cases, there will
be no order for costs, and the parties must bear their own costs.
Jamuar, J.
76. My.learned brethren Das and Narayan JJ. gave me the privilege of reading the
judgments prepared by them, and I also had the advantage of expressing my own
views to them prior to their finalising their judgments. I do not wish to add to the
very detailed considerations given by them of the argument advanced in those cases;
to say more would be only burdening the judgment with further support for the
reasons already given without advantage. Having regard, however, to the fact that my
learned brethren have differed regarding the final orders which should be passed in
some of the cases, it becomes necessary for me to express, as briefly as I can, my
own opinion regarding them.
77. I am in complete agreement with my two brethren that Sub-clause (c) of Clause
(ii) of Section 2, Bihar Land Encroachment Act, 1950, is not open to any of the
objections raised in support of the argument that it is unconstitutional, and I would
hold this sub-clause to be constitutional, and four of the applications filed, namely,
(1) Case No. 236 of 1953, (2) Case No. 239 of 1953, (3) Case No. 449 of 1953 and
(4) Case No. 450 of 1953, in connection with cases arising under this sub-clause
must, consequently, be dismissed.
78. I also agree (and that is also the opinion of both my brethren) that Sub-clauses
(d) and (f): of Clause (ii) of Section 2 of the said Act are unconstitutional. These
sub-clauses have been enacted in such wide terms that land which may not be, in
fact, public land is included therein, and thus there has occurred violation of some of

the fundamental rights guaranteed under the Constitution, and, in my view, this is a
defect which the Courts cannot remedy and is an unsurmountable factor against the
upholding of these sub-clauses. as constitutional. 'Prima facie', therefore, all
proceedings taken and all orders passed in the cases coming under these sub-clauses
must be quashed, and the applications ought to be allowed.
79. Case No. 466 of 1953 is one under Sub-clause' (f) of Clause (ii) of Section 2 of
the Act. I agree that the application arising out of this case ought to be allowed, and
the order forfeiting the crops standing on the land ought to be quashed. Since the
application is being allowed on the ground that the sub-clause is unconstitutional,
the entire order passed by the Court below in connection with that case must be set
aside. I agree, therefore, that this order also must be set aside, and the petitioner is '
entitled to the sale proceeds of the crops which have been sold.
80. There are then six applications arising out of cases coming under Sub-clause (d).
These applications are: (1) Case No. 133 of 1952, (2) Case No. 267 of 1953, (3)
Case No. 454 of 1953. (4) Case No. 315 of 1953, (5) Case No. 396 of 1953 and (6)
Case No. 422 of 1953. My brother Narayan J. is of the opinion that three of the
applications arising out of three of these cases ought to be dismissed, and the
remaining three ought to be allowed in part. My brother Das J. would allow ell these
six applications, and quash the proceedings in these cases. We have found Sub-
clause (d) of Clause (ii) of Section 2 of the Act to be unconstitutional. Any
proceeding commenced under that sub-clause and any order passed upon such a
proceeding would be invalid, as it will b e taking action under a provision of law
which is unconstitutional, and must be, on that account, quashed.
My brother Narayan J. seems to be of the view that, unless the petitioners make out a
'prima facie' case for the issue of a writ by showing that they have some legal right
to the land, they cannot be entitled to the writ. But I do not think that this Court can
allow a proceeding to continue and orders to be passed thereupon when it has held
that the proceeding was commenced under a piece of legislation which is wholly void
in the sense of its being unconstitutional. I agree, therefore, that the applications
arising out of all these cases should be allowed and the proceedings quashed.
81. I would pass no order for costs. The parties will bear their own costs.
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MANU/BH/0001/1955

Equivalent Citation: AIR1955Pat1

IN THE HIGH COURT OF PATNA

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