Pathak, Ag. C.J.

1. Civil Rule No. 237/70 arises out of a petition filed by one Ngurohie.zao Angami on behalf of himself and the villagers of Teny-iphe Village District Kohima, Nagaland. The case is that he is a resident of village Tenyiphe in the District la in the State of Nagaland. He to belongs to Angami Scheduled Tribe and Chairman of Tenyiphe village Council constituted in accordance with and practice followed from time immemorial amongst the Angami tribe residing in Nagaland.. The area in occupation of the members of the Angami tribe since the time immemorial is the entire area within the following boundaries: On the North up to Dimapur, on the South--starting from Mao, on the West-from Dzulake and on the East -up to Saiduma. According to customs prevalent amongst the Angami tribe, the members thereof are entitled to occupy, use and enjoy lands within the above area for their own cultivation and residence by forming; villages under different Village Councils. In 1951 Angami villagers residing in the villages Zakhama Viswema, Khuzema, Kohima. Jotsoma, Khonoma, Miazuma, Merema, Pfuchama, Tophema, Chiechema, Kigwema, Puesama and other villages in the Naga Hills decided to shift to other Angami areas due to over-population and scarcity of cultivable land in their villages, and the land situated by the side of Imphal-Dimapur Road in between six and seven mile-stones being found to be covered by jungles and not inhabited by others, the villagers of the aforesaid villages shifted to the aforesaid lands and constructed a village known as Tenyiphe village. The villagers reclaimed the land after hard toil and made it fit for cultivation and residence.

The Petitioner further states that the members of the Angami tribe have the right to occupy and enjoy the said lands by virtue of. Customary law prevalent in Nagaland followed from time immemorial. In the said Tenyiphe village about 915 villagers with members of their families are permanently settled and started cultivation of land in their respective areas under the supervision and guidance of the Village Council constituted by the villagers. The villagers informed the authorities through the Petitioner about the constitution of the village and they also performed all customary rites including the rite known as "Cena". That the villagers of Tenyiphe village have spent more than 8 lakhs of rupees in reclaiming-the land and raising cultivation thereon. They are raising paddy, mustard seed and other staple food on the land. The villagers informed the authorities from time to time about the constitution of the new village and even on 17-2-68 the Petitioner on behalf of the villagers informed the Deputy Commissioner, Kohima about the permanent settlement of the villagers in the village with the request not to allow the members of other tribes to occupy lands within Angami area. No objection was raised by the authorities of the State Government at any earlier stage to the constitution of the new village and the use and occupation of the lands in question by the villagers settled In that village permanently. That in first part of February, 1970 notices dated 29-1-70 issued by the Sub-Divisional Officer (Civil), Dimapur were received by some villagers of Tenyiphe village requiring them to dismantle their houses or to show cause within seven days from the date of issue of the said notice as to why the Kheti huts constructed by the villagers should not be demolished, failing which why they should not be evicted there from forthwith without any further reference.

After the service of the notices the Petitioner along with some other villagers represented to the Extra Assistant Commissioner of Dimapur, Respondent No. 3 personally to grant further time to show cause against the action proposed in the notices. Respondent No. 3, however, observed that the lands being Government lands there was no necessity of giving notice and they would be evicted from the land by use of force. Thereafter the houses of a number of villagers were demolished and their cultivation was destroyed by police force and armed force with the assistance of elephants during the period from 18th February to 21st February, 1970. That the villagers whose houses were demolished and cultivation destroyed not having any other land for their residence and cultivation, are still in occupation of the lands in the village by constructing temporary sheds in places of their permanent Ones. The villagers whose houses were not demolished during the period from 18th February to 21st February, 1970, are still residing in the village with members of their families having their houses and standing cultivation on the land. Thereafter the Petitioner submitted a person dated 28-2-70 before the Sub-Divisional Officer, Dimapur, Respondent No. 1 objecting to the action of the authorities in the matter of attempted eviction of the villagers and prayed for giving them hearing before the disposal of the objection. The Respondent No. 1 without giving any, hearing to the Petitioner and others and without considering the various facts and points raised in the petition dated 28-2-70 passed an order on 2-3-70 rejecting the said objection.

2. By this writ petition the Petitioner has challenged the aforesaid notice dated 29-1-7Q and the order dated 2-3-70 passed by the Sub Divisional Officer, Dimapur.

3. Annexure I to the petition is the impugned notice and Annexure III to the petition is the impugned order.

4. Mr. B.C. Barua, the learned Counsel appearing for the Petitioner submits that the lands in question are in possession of the Petitioner and his co-villagers and they have got their houses thereon and they have not been dispossessed as yet. The learned Counsel submits that there Is no law authorising the Government to evict these persons and that the impugned notice and order were issued and passed without any authority of law and as such these are wholly without jurisdiction and liable to be quashed.

5. Mr. S.K. Ghose the learned Advocate General for Nagaland, at the outset, raises a preliminary objection that the petition on behalf of several persons is not maintainable.

6. From the record it is found that the notice Annexure I is in the same terms though addressed to different villagers. The Petitioner claims that he is one of the affected persons and he represented other villagers before the Sub-Divisional Officer also and he as the Chairman of the Village Council submitted the petition dated 28-2-70 before the Sub-Divisional Officer on behalf of all the villagers of the village and this petition has been disposed of by the learned Sub-Divisional Magistrate by his order dated 2-3-70. In view of the facts and circumstances of the case I hold that the preliminary objection has no substance and the petition is maintainable.

7. The learned Advocate General then submits that the land in question is Government land and the Petitioner and his co-villagers are mere encroachers who are liable to be evicted even without notice. He further submits that the Petitioner has no legal right to the land and therefore no mandamus can be issued in the instant case.

8. In their affidavits-in-opposition the Respondents have denied the facts alleged by the Petitioner. The case of the Respondents is that the lands in question are Government lands and the Petitioner and the other villagers were mere encroachers on Government land and therefore they were not entitled to any notice of eviction. That some of the encroachers approached Respondent No. 3 after specific period mentioned in the notice to show cause had expired and therefore their objection was rejected. It has been stated in paragraph 13 of the affidavit filed on behalf of Respondents Nos. 4, 5 and 6 that after the eviction was over, some encroachers including the Petitioner re-entered the land after obtaining the order for maintaining status quo from this Court- From Annexure B to the affidavit in opposition filed by the Sub-Divisional Officer (Civil), Respondent No. 1, it is found that Government permanent porters and elephant were used for eviction works, about 322 kheti huts were demolished during the course of eviction, the church and granary huts belonging to the church were not touched, care was taken through the evicting period, no standing crops and household articles were damaged and encroachers were also given time limit and allowed to harvest the standing crops In the encroached fields on humanitarian grounds.

9. On a consideration of the facts alleged and admitted in the case it is quite clear that the Petitioner and other villagers were in possession of the lands in question by constructing huts for residence and by growing crops thereon. Even if it be assumed that the Petitioner and the other villagers were encroachers on Government land, they used to reside there, they have or had their houses and they have got their cultivation on the land; the church, the granary huts and the cultivation of the Petitioner and the villagers are admittedly there on the land.

10. The points that arise for consideration are whether the impugned notice and order were issued and passed under any authority of law; if not whether Government can evict the Petitioner and others by using force without having recourse to any law.

11. The learned Counsel for the Petitioner submits that the action of eviction or attempted eviction of the Petitioner and the other villagers were not authorised by any law; That neither Rule 18 of the Settlement Rules under the Assam Land and Revenue Regulation nor any provision of the Forest Regulation of Nagaland is applicable to the impugned notice and order of eviction. We asked the learned Advocate General to show us under what provision of law the eviction notice and the order were issued and passed but no legal provision has been pointed out to us under which the notice of eviction was issued or the order of eviction was passed. The learned Advocate General submits that since the Petitioner and the other villagers are trespassers on Government land, the Government have the authority to evict them by using reasonable force.

12. Thus we are led to consider the question whether Government may evict without any authority of law by using force, persons who are in occupation of Government land as trespassers or encroachers. On this point the learn-ed Advocate General of Nagaland referred to the decision in the; case of State of West Bengal v. Birendra Nath Basu-nia. : AIR 1955 Cal 601 . The: Calcutta High Court in that case held as follows:

The principles laid down by the Court of Appeal are simple and I do not see why they should not apply In India. On the termination of a lease, the full rights in the leasehold property, including the right to possession, revert to the lessor. He then becomes entitled to enter his own land and take with It what order he likes. If the lessee continues to remain on the; land with no longer any right to be there and refuses to vacate, the lessor has every right to deal with him as a trespasser and use reasonable force against him for his eviction in defence of his right to property and in assertion of his right to possession which right to property embraces.

If the lessor in making a forcible entry infringes the criminal law, he will make himself liable to be punished under a prosecution, but he will infringe no right of the lessee. If he uses more than necessary, he may even expose himself to a civil liability to pay damages for the excess force used, but there can be no doubt of his right as against the lessee to enter upon the land upon the expiration of the term and the accrual of the right of entry, by force if necessary. For forcible entry, the lessee himself. If he has become a trespasser, has no cause of action against the lessor merely on the ground that it was forcible.

It would thus appear that if in making a forcible entry against the lessee who is squatting on the land without any right to be there, the lessor takes the law into his own hands, he does so only in the sense of acting on his own responsibility in accordance with the law and if peace is broken, it is only because the recalcitrant lessee offers resistance adversely to the law.

The above decision of the Calcutta High Court was overruled by the Supreme Court in the case of Lallu Yeshwant Singh (dead) by his legal representative v. Rao Jagdish Singh AIR 1968 SC 620 wherein the following observations of the Supreme Court are relevant for the purpose of deciding the point before us:

Some stress was laid on the words In the case of proof of trespass in Section 326 by the learned Counsel for the Respondent. According to him, a landlord does not commit trespass when he forcibly enters, on land in the possession of a tenant whose tenancy has expired. In our view in the context, the word trespass here would include forcible entry and dispossession by the landlord.

Reference was made to a number of English authorities in this behalf but it is not necessary to deal with them because the law in India on this subject is different. under Section 9 of the Specific Relief Act it is well settled that question of title is irrelevant in a suit under that Section. As the structure of Section 326 of Qanoon Mai, read with Section 163 of Qanoon Ryotwari is similar to Section 9 of the Specific Relief Act, there is no reason why Section 326 should be interpreted differently.

In Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy 51 Ind App 293 at p. 299 - (: AIR 1924 PC 144 at p. 147), the Privy Council observed:

In India persons are not permitted to take forcible possession: they must obtain such possession as they are entitled to through a Court/

In K.K. Verma v. Naraindas C. Malkani : ILR (1954) Bom 950 at p. 957 : : AIR 1954 Bom 358 at p. 360, Chagla, C. J. stated that the law in India was essentially different from the law in England. He observed:

Under the Indian law the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy his possession is juridical and that possession is protected by statute under Section 9 of the Specific Relief Act a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession cannot Ro to the Court under Section 9 and claim possession against the true owner.

Our attention was invited to the decision of the Calcutta High Court in : AIR 1955 Cal 601 . In that case the High Court refused to issue an order under Article 226 of the Constitution prohibiting the Government from forcibly taking possession of lands which had been validly resumed by Government. We are not concerned with that question here. But we do not agree with the conclusion of the High Court that a lessor is entitled in India to use force to throw out his lessee.

13. In view of the law laid down by the Supreme Court on the point It is clear that a lessor in India is not entitled to use force to throw out his lessee even though the term of the lease might have expired. The landlord may evict the tenant even after expiration of the lease only by having recourse to law.

14. In the instant case the Petitioner and the other villagers claim that they are in possession of the lands in question by establishing a village according to the custom of their tribe and they also informed the authority about the establishment of the village. Without expressing any opinion on the facts alleged one thing is t clear that the Petitioner and the other villagers were in possession of the lands in question. They had their houses, cultivation and the village church. Though it is alleged that they have been evicted, but as observed earlier, the eviction was only partial and the Petitioner and the other villagers are on the land with some of their houses, their cultivation and their church. The question that arises for consideration is whether on the above facts the Government may evict the Petitioner and other villagers by using force without anyauthority of law.

15. Article 21 of the Constitution lays down, that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Article 31 of the Constitution lies down that no person shall be deprived of his property saves by authority of law. The Petitioner and the other villagers claim that they possess the lands in question by constituting a village according to customary law. The admitted position is that they were in actual possession for some years. They had their houses, cultivation and their village church. Thus it is quite clear that they have acquired some possessor interest in the lands in question. Though at the initial stage they might have been trespassers or encroachers on Government land, in view of the decision of the Supreme Court in the case of AIR 1968 SC 620 (supra) the Petitioner and other villagers may not be evicted by force without any authority of law. It is now settled law that a tenant in India is not evitable by the landlord by using force even though the tenant remains on the tenancy land as trespasser after the expiry of the lease, and he may be evicted only by having recourse to law. Thus in my judgment, in view of the provisions of Articles 21 and 31 of the Constitution, and the Rule of Law which is the guiding principle in a welfare state like ours, the Government may not evict persons in possession of Government land either as tenants or as trespassers by using force except by authority of law.

16. Mr. Barua, the learned Counsel also submits that the Petitioner prays not for restoration of possession but for permission to continue in possession till evicted according to procedure established by law. In my judgment Government have no right to evict persons in possession of Government land by using force if the- Government action cannot be supported, by any,, authority of law. In the instant case as observed earlier, no law has been pointed out to us by the learned Advocate General under which the impugned notice and order of eviction were issued and passed. In the circumstances I hold that the impugned notice and order are without jurisdiction and cannot be sustained and hence those are quashed. The Respondents are directed not to give effect to the impugned notice and order of eviction. The petition is thus allowed. The rule is made absolute. In view of the facts and circumstances of the case I make no order as to costs.

17. Civil Rule No. 238/70 arises out of petition filed by Sri Khuu one of the residents of Tenyiphe village against the notice of eviction dated 29-1-70 and the order of eviction dated 2-3-70, which I have dealt with in Civil Rule No. 237/ 70. The facts and questions of law that arise in this case are the same as those in Civil Rule No. 237/70. In the circumstances the decision in Civil Rule No. 237/70 will govern the decision of the present case. This petition therefore is also allowed and the rule is made absolute, but there will be no order as to costs.

D.M. Sen, J.

18. I agree.