Person In Unauthorised Occupation Of Land Cannot Claim Protection Under Article 19, 21 If Eviction As Per Law: Madras High Court

“Even otherwise, a person in unauthorised occupation cannot claim protection of Article 21 of the Constitution of India. Under Article 21 of the Constitution of India, a person cannot be deprived of his life or personal liberty except according to the procedure established by law…Once it is found that the petitioner was unauthorisedly occupying the government property and if procedure of law is followed, there is no gainsaying that the petitioner would not be entitled to protection under Article 21 of the Constitution of India. The procedure prescribed is reasonable,” the court observed.

The bench of Chief Justice SV Gangapurwala and Justice Bharatha Chakravarthy also observed that the Act did not violate Article 19 of the Constitution as a right to reside and settle in any part of the country would not mean residing unauthorisedly. The court added that a person who unauthorisedly possesses a property could not say that he had a constitutional right to unauthorisedly occupy the land.

“Article 19(1)(e) of the Constitution of India states that all citizens shall have the right to reside and settle in any part of the territory of India. However, the same would not mean to reside and settle in any part of the territory of India unauthorisedly. The law would never come to the aid of the person who, without authority of law, unauthorisedly and illegally squats on the property of the government. A person who unauthorisedly possesses the property cannot be heard to say that he has a constitutional right to unauthorisedly occupy the property,” the court said.

The petition was filed challenging the Tamil Nadu Land Encroachment Act 1905 and to declare that Section 6 of the Act was void and violated Articles 14, 19(1)(e) and 21 of the Constitution.

Section 6 of the Act says that any person unauthorisedly occupying any land for which he is liable to pay assessment may be summarily evicted by the Collector and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall be liable to forfeiture. The Act also provides for the mode in which the eviction proceedings are to be carried out. Section 7 of the Act further says that before initiating proceedings under Section 6, the Collector (or other authority) must serve a notice to the occupier of the Government land.

The petitioner, Gunasekaran argued that right to shelter was a fundamental right undr the Constitution and that the Act takes away the right of residence. It was also contended that the Act, being a pre-constitutional Act and not in conformity with the fundamental rights guaranteed under the Constitution, was deemed to be void. It was also pointed out that the Governor had not granted any approval for the Act after the Constitution came into force.

Gunasekaran also argued that the Act applied only to Government lands and in case of private lands, the parties had to file a civil suit and thus, the Act was discriminatory and violated the right to equality.

The State, however, argued that the Apex Court had already upheld the constitutional validity of the Act in the case of Pandia Nadar and others v The State of Tamil Nadu, and the same could not be re-agitated.

The court agreed with this submission and observed that the constitutionality of a provision once upheld by the Supreme Court would not be open to challenge again on a new ground.

The court also noted that the submissions regarding violation of Article 13 was far fetched as there was nothing to show that the Act was inconsistent with the provision under Part III of the Constitution.

With respect to the contention that the Act was discriminatory, the court observed that there was an intelligible differentia between the occupiers of a public property and a private property and it was in the interest of the public that eviction of unauthorised occupants was made through a speedier procedure in the Act. The court noted that the classification was reasonable.

Thus, the court dismissed the petition.

Counsel for the Petitioner: Mr.M.Elango

Counsel for the Respondent: Mr.P.Muthukumar State Government Pleader

Citation: 2023 LiveLaw (Mad) 367

Case Title: Gunasekaran v The State of Tamil Nadu and Others

Case No: W.P.No.3002 of 2018