JUDGMENT
1. The short question arising in this petition under Art. 226 of the Constitution is the refundability of the money paid in pursuance of the order at Exh. A and
the legality of Exh. B being a notice of demand threatening recovery by recourse to coercive measures permissible under the Maharashtra Land Revenue Code, 1966, (MLR Code).
2. Land measuring 1589.7 sq. metres forming part of C.T.S. No. 425/1 to 44 at Vile Parle, Taluka Andheri, Bombay Suburban District belongs to a Public Trust known as St. Francis Xavier Church situate at Vile Parle, Bombay. Petitioner is the sole Trustee of the said Trust. The impugned order at Exh. A alleges that the Trust has converted the land which is agricultural to non-agricultural purposes without obtaining the previous permission of the Competent Authority under the MLR Code. This is said to have rendered the occupant liable to the penalties mentioned in S. 45 of the Code together with the Rules framed thereunder. The order calls upon the Trust to pay a total sum of Rs. 9,540/- representing the N.A. Assessment for the period 1-8-1962 to 31-7-1984. Para 8 of the order recites that the N.A. assessment shall be continued to be levied “till the unauthorised construction is demolished by the BMC or by the demolition squad of the Encroachment Department”. The order was passed on 10th May 1984 and within two years came Exh. B dated 10th March. 1986 calling upon the petitioner to pay the aforementioned amount along with the penalty amounting to Rs. 963.20 ps. making a grand total of Rs. 10,303.20 ps. and this sum to be paid along with the notice cost of Rs. 3.50 ps. The petitioner made a representation against the same which representation is at Exh. C. It was pointed out that the petitioner was called upon to pay N.A. assessment whereas the benefit had been taken by the squatters who had trespassed into the land and unauthorisedly put up structures thereon. The squatters were controlled and guided by slumlords operating in the area. Petitioner’s predecessors had repeatedly requested the Collector, the Municipal Corporation and the Police to take necessary action for the demolition of the structures but to no avail. It was therefore unreasonable to penalise the petitioner. They could very well proceed against the slumlords/occupants responsible for the unauthorised construction of the structures on the land. The representation appears to have had
no effect and for that reason, the petitioner has moved this Court.
3. In the petition exception is taken to Exhibits ‘A’ and ‘B’ on various grounds. First it is contended that S. 45 is a denial of the equal protection of laws guaranteed by Art. 14 of the Constitution, in that it penalises the holder of the land for benefits enjoyed contrary to his wishes by encroachers against whom no action has been taken by the State and the Municipal authorities despite repeated complaints. Next, S. 45 of the MLR Code discriminates against holders of land situated in areas outside the city of Bombay which is in marked contrast to the position enjoyed by the holders of land in the city of Bombay u/S. 267 of the Code. Under the first section only the holders of the land can be proceeded against whereas the latter permits the Revenue Authorities to proceed also against the person actually in possession. S. 45 is an unreasonable restriction upon the right to carry on an occupation or business guaranteed by Art. 19(1)(g) of the Constitution. The sum of Rs.9540/- has been paid under protest and the same should be directed to be refunded. Respondents be prohibited from recovering any assessment and fine in future. A return is filed by the Additional Tahasildar on behalf of the respondents. The first contention is that the petitioner had no right to come to this Court without exhausting the remedies provided by the MLR Code and an appeal should have been filed against the order at Exh. A and as that had not been done, the petitioner deserved to be dismissed in limine. There was no provision in the MLR Code making the Corporation or the State Govt. liable for the removal of an encroachment upon lands belonging to the private persons. The land figuring in this petition was alienated land and it was for the owner to take care to protect his land from encroachment or evict the encroachers. It was not open to such an owner to plead immunity from payment of N.A. assessment or penalty on the ground that the benefits were being enjoyed by the trespassers. S. 45 was a valid piece of legislation and there was no substance in the allegation of discrimination violative of Art. 14 or the denial of fundamental rights under Art. 19(1)(g) of the Constitution.
4. The first contention to be appraised
will be whether the petitioner was under a compulsion to take recourse to the statutory remedies before invoking Art. 226 of the Constitution for approaching this Court. In the petition, the constitutional validity of S. 45 of the MLR Code has been questioned. The determination of this question was not possible by the authorities constituted under the Code. That apart, the existence of an alternative or statutory remedies is not always a bar to access to this Court’s jurisdiction under Art. 226 of the Constitution. Where the statutory remedy is a time consuming factor, it would be futile to expect the aggrieved citizen to waste time and money for the pursuit of such remedies. The MLR Code provides remedies in the nature of an appeal and revision etc. and those conversant with the working of the revenue authorities knew that these authorities take their own sweet time to decide even the most trifling of disputes. Had the petitioner gone by the Code to assail the order at Exh. A, he would have possibly not even reached the first remedy, viz. that of an appeal. Lastly, this petition was filed in the year 1986 and the petition itself is overdue for a hearing. On this issue, to sustain the defence plea would be to compel the petitioner to go back to statutory authorities. The expense and wait for these many years incurred on this petition would have all been in vain. This circumstance militates against the upholding of the plea that the Court should decline assistance to the petitioner because of his failure to have exhausted the statutory remedy.
5. As to the merits, there is little substance in the ground that S. 45 discriminates and that the said discrimination is hostile discrimination impermissible under Art. 14 of the Constitution. S.45 of the MLR Code empowers the authorities to proceed against the holder of land for various contraventions. The holder upon proof of the contraventions can be subjected to the following penalties :–
(i) Payment of non-agricultural assessment;
(ii) payment of fine in addition to non-agricultural assessment; and
(iii) a direction to restore the land to its
original use.
Upon failure to comply with the 3rd penalty,
viz. a direction to restore the land to its original use, the Collector is entitled to impose a penalty not exceeding Rs. 300/- and a further penalty at the rate of Rs. 30/- per day for the period during which the contravention is persisted in. The collector is also entitled to take steps to get the land use restored to its original purpose and recover costs in so doing from the holder of the land as if it were an arrears of land revenue. This S, 45 is not applicable to the city of Bombay, though it does govern the holders of land in Greater Bombay. So far as the city of Bombay is concerned, there are special provisions and these are to be found in Chapter XIV of the MLR Code. S. 267 permits the authorities to proceed not only against the superior holder but also the person in possession. But this is an option given to the authorities and the legislative intent seems to be that the authorities are to proceed first against the superior holder and only in his absence the person in khas possession. This seems to be the effect of a plain reading of Ss. 264 and 267 of the Code. Seen thus it cannot be said that there is any real discrimination against the holders of land in Greater Bombay vis-a-vis those holding land in the City of Bombay.
6. Petitioner is on solid ground when he assails the unreasonableness of the action taken against him for the imposition of N.A. assessment and fine for acts not attributable to him and in fact which have occurred despite attempts made by him to get State assistance for freeing his land from trespassers. The petition as also Exh. C make a reference to the petitioner’s predecessors having repeatedly called upon the Collector, the concerned Municipal department and the Police to take action for the demolition of unauthorised and illegal structures which had come up on his land. No action was taken by these authorities and yet the respondents justify the impugned order on the ground that it was the responsibility of the holder who had allowed convertion of the land and permitted its conversion knowing that this was a violation of the MLR Code. Mr. Bora contends that there is no evidence to show that any representations were in fact made to different authorities mentioned in Exh. C by the petitioner’s predecessors. It is unthinkable that person whose land has been encroached upon, which land is situated in Greater Bombay, would keep quiet and not seek the
assistance of the public authorities to get rid of squatters. It will have to be presumed that the petitioner’s predecessor’s had done so and an indirect confirmation of this comes from the portion excerpted from the order at Exh. A. The same speaks of demolition by the B.M.C. or the demolition squad of the Encroachment department of the Revenue. This demolition of the unauthorised structure is to be undertaken by the B.M.C. and the Revenue authorities and that it is they alone who can deal with the squatters. Slum colonies in Bombay had their origin in acts of trespass and the private citizens suffering could do little to get even with the wrong doers. For this reason, demolition of unauthorised structures is the responsibility of the Corporation or the demolition squad of the Revenue authorities. Judicial notice can be taken of the fact that the squatters are the creations of either slumlords or they themselves and that where the lands encroached upon are of private parties; the latter having no remedy against the wrong doers. Mr. Bora says that the petitioner or his predecessors could have filed a complaint or a suit in a Court of law against the trespassers. It is well known that the complaints and suits take decades to reach a decision in the City of Bombay and that even where relief is granted, it is merely on paper. To execute decrees and secure the eviction of trespassers through the process of a Criminal Court is virtually impossible, and, in this situation, to impose upon the owner the burden of N.A. assessment or fine or penalty is to add insult to injury. The owners whose property has been occupied and perhaps lost for ever, are further burdened with the liability to pay for the benefits originating in the acts of trespass and enjoyed by the trespassers or their successors-in-interest. Therefore, it is the operation of section 45 in the facts and circumstances of the case which attracts, the charge of arbitrariness is impermissible under Article 14 of the Constitution. The challenge to Exhibits A & B on the basis of Article 19(1)(g) need not be gone into. The result of the foregoing discussion is that Exhibits A & B have to be and are hereby quashed. Money, if paid by the petitioner in pursuance to Exhibit B, be refunded unto him within 8 weeks as from the passing of this verdict. Rule in these terms is made absolute, with parties being left to bear their own costs.
Order accordingly.