(1.) What is the nature of unconstitutionality attaching to a statute under Article 13 of the Constitution and how can it be cured? The basic question arises in this and the connected writ petitions. The statute concerned is the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 (hereinafter called the "Principal Act".)
(2.) Sections 5 and 7(2) of the Principal Act provided a summary procedure to the Government to recover from the unauthorised occupants of public premises possession and damages for use and occupation respectively. The Government could also take recourse to the Civil Court to seek these reliefs. The Principal Act thus enabled the Government to discriminate between the occupants of public premises arbitrarily by adopting the summary procedure against some while giving to the others the benefit of the regular civil suits. Following the majority decision in Northern India Caterers Private Limited v. State of Pun/ab (1967) 3 SCR 399, therefore sections 5 and 7(2) were held contravene Article 14 of the Constitution and therefore void under Article 13(2) thereof in Rajendra Prasad Singh v. Union of India, AIR 1968 Calcutta 560(2) and in Hukam Chand . S.D v. Arya, Civil Reference No. 1 of 1968 decided on 29.5.1968 by a Division Bench of this Court (I.D. Dua C.J. and V.S. Deshpande J.) respectively. Section 7(1) which provides a similar summary procedure to the Government for the recovery of rent is open pracisely to the same Constitutional objection. As sections 5 and 7 constituted the crucial provisions of the Principal Act, the rest of the provisions of the Act may not be able to survive the invalidity of sections 5 and 7. The whole of the Principal Act may, therefore, be assumed to be void under Article 13(2) for the purpose of these cases.
(3.) The only vice of the Principal Act was that it did not expressly bar the Government from taking recourse to the civil Court for recovery of possession, rent or damages for use and occupation. Parliament stepped in to cure the unconstitutionality of the Principal Act by enacting the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1968 (hereinafter called the "Amending Act"). The main amendment was the addition of section IOE to the Principal Act. Section IOE is as follows:-
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