RAJENDRA PRASAD SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) This application and a number of applications have been heard together as they involve a common question of law, namely, the vires of a Central Act, namely the Public Premises (Eviction of Unauthorized Occupants) Act, (XXXII of 1958) (hereinafter referred to as the 'said Act'). In this particular case, the facts are as follows: The petitioner holds a plot of land at Garden Reach belonging to the South Eastern Railway. This plot was used by him for stacking and unloading coal, charcoal, fire-wood etc. On or about November 19, 1962, the Respondent No.2, the Deputy Director, Rail Movements, Railway Board, Calcutta, for and on behalf of the President of India served a notice to quit on the petitioner, asking him to quit and vacate plot No. 27 at Garden Reach, occupied by the petitioner, an area measuring more or less 1250 sq. ft. and deliver up vacant possession thereof by December 31, 1962. The petitioner, instead of complying with the said notice, made an application before this Court on December 10, 1962, under Article 226 of the Constitution and a Rule nisi was issued. The said Rule came up for final hearing on September 10, 1963, but was discharged on the ground that no steps had yet been taken under the said Act or under any other provision of law. On or about October 11, 1963, the Respondent No.3, the Estate Officer, South Eastern Railway, Garden Reach, purporting to act under the said Act issued notice to show cause upon the petitioner under sub-section (1) of Section 4 thereof. A copy of the notice is set out below: Whereas I, the undersigned, am of opinion, on the grounds specified below, that you are in unauthorized occupation of the public premises mentioned in the schedule below and that you should be evicted from the premises. GROUNDS After termination of the temporary licence granted to you in respect of plot No. 27 at Firewood Siding, Garden Reach, Calcutta-43, your occupation of the said plot has become unauthorized with effect from 1.1.63. Now, therefore, in pursuance of sub-section (1) of Section 4 of the Act, I hereby call upon you to show cause on or before the 2.11.63 at 11 a.m. why such and order of eviction should not be made.

(2.) Thereupon the petitioner made an application to this Court under Article 226 of the Constitution and a Rule was issued on November 20, 1963, upon the opposite parties to show cause why a writ in the nature of mandamus should not be issued directing the opposite parties to cancel and/or forbear from giving effect to the notice complained of in the petition and for other reliefs. The main ground taken in the petition is that the provisions of the said Act are ultra vires the Constitution of India. It may be mentioned here that a number of applications had been made involving this very point of law and they were all referred for being heard by a larger Bench. One of these matters, (1) Standard Literature Company (P) Ltd. & Ors. v. Union of India, AIR 1968 Cal 1 (S B.) and a number of other matters were disposed of by us by our judgment dated April 6, 1967 of (1), which shows the particulars of the matters which were disposed of by our common judgment. In the said application, the following constitutional grounds were urged before us: (1) Under Section 4(1) of the said Act the condition precedent is that the Estate Officer should be of the opinion that persons are in unauthorized occupation of any public premises and that they should be evicted. It was argued that the prescribed qualifications for being appointed as an Estate Officer under clause (a) of sub-section (1) of Section 2 of the said Act, does not remedy the objections that were put forward against the 1950 Act. A 'gazetted officer' may even be a humble person like the personal assistant of a Minister. To make property rights dependent on the subjective satisfaction of such a person was an unreasonable restriction on the fundamental rights of a citizen to hold property under Article 19(1)(f). (2) The Estate Officer who forms a subjective opinion on the question of the eviction of a citizen, is himself the person who is to adjudicate upon the objection of the citizen. This was in violation of the rules of natural justice and it was unreasonable restriction on the fundamental rights of a citizen to hold property under Article 19(1)(f). (3) That the Article violative of the provisions of Article 14, of the Constitution because: (a) The provisions of the said Act are more onerous, drastic and prejudicial to the citizen then the provisions contained in the Transfer of Property Act, 1882, and the West Bengal Premises Tenancy Act, 1956, and as such are discriminatory and ultra vires of the Constitution. (b) There is discrimination violative of Article 14, in making a distinction between persons in occupation of Government property and persons in occupation of Government property and persons in occupation of private property, which distinction has no relation to the object of the Act, nor establishes any intelligible differentia. We decided all the above-mentioned points against the petitioner in that application and upheld the vires of the said Act. In course of my judgment, I referred to a Full Bench decision of the Punjab High Court, (2) The Northern India Caterers Private Ltd. v. The State of Punjab, AIR 1963 Punjab 290 (FB) which was cited before us and relied upon it as it up held the vires of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act (XXXI of 1959), which appeared to be similarly worded as the said Act. This Full Bench decision of the Punjab High Court has now been set aside by a decision of the Supreme Court (3) The Northern India Caterers Private Ltd. v. State of Punjab, AIR 1967 SC 1581. The decision seems to have been delivered on April 4, 1967, but we were unaware of the decision as were the parties appearing before us. By this decision, Section 5 of the Punjab Act mentioned above was held to be discriminatory and violative of Article 14 of the Constitution and was declared to be void. In the result, the appeal was allowed and the order of the Punjab High Court was set aside and the Rule issued in the writ petition was made absolute with costs. I might mention here that this is the majority verdict of three Judges. Hidayatullah, J. and Bachawat, J. held to the contrary. To start with, it must be noted that the provisions of the Punjab Act, which have been set out in the report of the Full Bench decision of the Punjab High Court (2), appear to be more or less similar to the provisions of the said Act. In the Punjab Act, Section 3 defines 'unauthorized occupation', which is similar to the definition contained in Section 2(e) of the said Act. Section 4 of the Punjab Act deals with the issue of notice. Except for the fact that under the Punjab Act, the notice has to be issued by the Collector and under the said Act by the Estate Officer, the provisions are similar. In both cases, it is stated that if the person issuing notice was of the opinion that any person was in unauthorized occupation of any public premises and that he should be evicted, he shall issue a notice in writing calling upon all the persons concerned to show cause why an order of eviction should not be made. Such a notice is to specify the ground on which order of eviction was proposed to be made and required all persons concerned to show cause against the proposed order on or before a date specified in the notice, not being earlier than 10 days from the date of issue thereof. Section 5 of the Punjab Act is similar to Section 5 of the said Act and provides that after considering the cause shown by any person in pursuance of a notice under Section 4 and hearing any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, if the person issuing notice was satisfied that the public premises are in unauthorized occupation, an order of eviction may be made for reasons to be stated in the said order. Section 9 of both the Acts provide for an appeal. In the Punjab Act an appeal lies to the Commissioner and in the said Act the appeal lies to the Appellate Officer who shall be the District Judge of the district in which the public premises are situate or such other judicial officer in that district of not less that ten years' standing as the District Judge may designate in this behalf. In the Full Bench decision of the Punjab High Court (2), it was held that the Punjab Act covered the whole subject matter of the law relating to the eviction of tenants from public premises. It was stated that it could not have been the intention of the Legislature that the general law regarding eviction of tenants holding over and the special law (Punjab Act XXXI of 1959) to co-exist. It was held that as it was not possible to harmonise the two, both could not be extant simultaneously. From the fact that the latter statute covered the whole subject-matter of eviction from public premises of persons in unauthorized occupation, it was legitimate to conclude that the former law was not intended to subsist side by side with the latter. Accordingly, it was held that the contention that the contention that the Punjab Act made discrimination between the occupiers of public premises inter se and, therefore, was violative of Art. 14 as it enabled the Government to pick and choose in singling out a particular tenant being proceeded against under the Punjab Act and others under the ordinary law, was without foundation. The Supreme Court differed with the High Court on this point. The majority decision held as follows: It held that the Punjab Act did not repeal the earlier enactment, namely, the provisions of the Transfer of Property Act which permitted a suit to be filed for eviction, as it was not found possible to say that the co-existence of the two sets of provisions relating to eviction lead either to inconvenience or absurdity. Relying on the objects and reasons in promulgating the Punjab Act, it was held that the Legislature intended to provide for an additional remedy to the Government, a remedy which it thought was speedier than the one by way of a suit, under the ordinary law of eviction. There was nothing in the Punjab Act to warrant the conclusion that it impliedly took away the right of suit by Government or that it was substitute and not supplemental. It was held that the Punjab High Court was in error in holding that there was as implied repeal. Next, it was pointed out that in Section 5 of the Punjab Act which corresponds to Section 5 of the said Act, it is provided that after considering the cause shown by any person in pursuance of a notice under Section 4, if the person issuing the notice was satisfied that the public premises was in unauthorized occupation, he 'may' direct that the public premises shall be vacated. Shelat, J. who delivered the majority judgment said as follows: Under Section 5, if the Collector is satisfied that the public premises are in unauthorized occupation he has the power to make an order of eviction giving reasons therefor. The contention is that the Government thus has two remedies open to it, one under the ordinary law and the other a drastic and more prejudicial remedy under the present Act. The words 'the Collector may make an order of eviction' in Section 5 show that the Section confers discretion to adopt the procedure under Sections 4 and 5 or not. Section 5 has left it to the discretion of the Collector to make such an order in the case of some of the tenants and not to make such an order against others. Section 5 thus enables the Collector to discriminate against some by exercising his power under Section 5 and take proceeding by way of a suit against others, both the remedies being simultaneously available to the Government. What was held by the majority judgment was that persons in unauthorized occupation of public premises constitute a class, and inasmuch as Section 5 of the Punjab Act was more drastic remedy, it followed that there were two remedies open to the Government for eviction of persons in unauthorized occupation of public premises, one being the normal procedure by way of a suit and the other is by the more drastic procedure contemplated under the said Act. It was held that Section 5 of the Punjab Act did not lay down any guiding principle or policy by which the Collector could decide as to in which cases he should follow the one or the other procedure and, therefore, the choice was entirely left to his arbitrary will. Consequently, Section 5 by conferring such unguided and absolute discretion violated the right of equality guaranteed by Article 14, as it is provided for differential treatment for persons situated in similar circumstances and thereby violated the equality clause of Article 14. It would be pertinent to mention here that Hidyatullah, J. and Bachawat, J. did not agree with this finding. It was held by them that an unauthorized occupant had no constitutional right to dictate that the Government should not have a choice of proceedings and Article 14 does not require a financial approach to the problem of equality before the law. It permits a free choice of remedies for the redress of grievances. The impugned Act did not make any unjust discrimination. The proceedings were not unfair or oppressive. The unauthorized occupant has full opportunity of being heard and the legislation was one which promoted public welfare and was a beneficent measure of legislation. If the Act was struck down, it would give a free charter to unauthorized occupants and to officers squatting on public premises after they had vacated their offices, to continue in occupation for an indefinite time until they are evicted by the dilatory procedure of a title suit. According to the minority decision, the Act was intra vires and should be upheld.

(3.) Before us, the point was not raised in the exact form in which it was raised in the case before the Supreme Court. Be that as it may, since the Supreme Court has held that the Punjab Act was ultra vires, it will have to be seen whether any substantial distinction can be established between the Punjab Act and the said Act, the provisions of each are almost identical. Mr. Roy, appearing on behalf of the respondent, has tried to make a distinction in the following manner.