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Madras High Court regarding the issue Person in Unauthorised Occupation Of Land Cannot Claim Protection Under Article 19, 21 If Eviction As Per Law.

Title : Gunasekaran v. State of Tamil Nadu

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

CORAM : THE HON’BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE AND     THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Decided on : 23.11.2023.

Introduction

The petitioner seeks declaration that Section 6 of the Tamil Nadu Land Encroachment Act, 1905 [for brevity, “the Act of 1905”] is void and violates Articles 14, 19(1)(e) and 21 of the Constitution of India.

Fact of the Case

Mr.M.Elango, learned counsel for the petitioner, submits that Section 6 of the Act of 1905 is arbitrary, discriminatory and unreasonable. Right to shelter is a fundamental right under Article 21 of the Constitution of India. The impugned Section 6 of the Act of 1905 takes away the right of residence of the petitioner and other persons. Learned counsel for the petitioner submits that by virtue of the operation of Article 13 of the Constitution of India, the impugned Section 6 of the Act of 1905 is deemed to be void. The Act of 1905 is a pre-constitutional Act and is not in conformity with the fundamental rights guaranteed under Part III of the Constitution of India. The Governor has not granted any approval to the Act of 1905 after the Constitution came into force.

Case Analysis and Judgment

Once the Constitution Bench of the Apex Court has upheld the constitutional validity of the Act of 1905, and more particularly the same provision assailed by the petitioner, it will not be permissible to again consider the challenge to the same. The petitioner could not remotely show a semblance of right over the subject writ property. The procedure has been followed while evicting the petitioner. In the light of the above, the writ petition deserves to be dismissed and is hereby dismissed. There will be no order as to costs. Consequently, W.M.P.No.3670 of 2018 is closed.

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Written  by Nimisha Sunny