Northern India Caterers Private Ltd.
& ANR Vs. State of Punjab & ANR [1967] INSC 88 (4 April 1967)
04/04/1967 SHELAT, J.M.
SHELAT, J.M.
RAO, K. SUBBA (CJ) HIDAYATULLAH, M.
BACHAWAT, R.S.
VAIDYIALINGAM, C.A.
CITATION: 1967 AIR 1581 1967 SCR (3) 399
CITATOR INFO :
RF 1972 SC2205 (6,11,12,24,28,29) RF 1973 SC
66 (5) RF 1973 SC1425 (14) RF 1973 SC2246 (12) O 1974 SC2009
(2,TO6,7,16,20,23,25,26,7,30,3 NF 1974 SC2044 (1,3) O 1975 SC1187 (16,81) RF
1977 SC 366 (15) R 1979 SC1588 (12) E 1980 SC 801 (3,6) R 1980 SC1144 (3) RF
1980 SC1438 (13) RF 1981 SC 670 (8) RF 1982 SC 781 (5) RF 1983 SC 658 (13) O
1985 SC 930 (1) RF 1989 SC 406 (5) R 1991 SC 855 (7)
ACT:
Punjab Public Premises and Land (Eviction and
Rent Recovery) Act (31 of 1959), s. 5-Scope of -If Violates Art. 14 of the
Constitution.
HEADNOTE:
The respondent-State leased its premises to
the appellant for running a hotel and when the lease expired called upon the
appellant to hand over vacant possession. On the appellant failing to do so,
the Collector issued a notice under s. 4 of the Punjab Public Premises and Land
(Eviction and Rent Recovery) Act, 1959 requiring the appellant to show cause
why an order of eviction should not be passed under s.
5. The appellant thereupon filed a writ
petition in the High Court contending that the Act violated Art. 14 of the
Constitution in two ways : (1) that it discriminated between the occupants of
public premises and those of other premises; and (2) that it discriminated
between the occupants of public premises inter se as the State could
arbitrarily proceed against an occupant either under the Act or by way of suit.
The High Court dismissed the petition holding that the proceeding under the Act
is the exclusive remedy for eviction of unauthorised occupants of public
premises, that there was a valid classification between the occupiers of public
premises and those of private properties, and that, as the Act was substitutive
and not supplemental there wag no question of discrimination between the
occupiers of public premises inter se. In appeal to this Court,
HELD : (1) The High Court erred in holding
that the Act impliedly took away the right of suit by the Government.
The Act was only intended to provide an
additional remedy to the Government which was speedier than the one by way of a
suit under the ordinary law of eviction. [404G; 41 1B] (Per Subba Rao, C. J.,
Shelat and Vaidialingam, JJ.) : The impugned Act is neither in negative terms
nor in such terms which result in negativing the right of the Government as a
landlord to sue for eviction under. the ordinary law. Nor is it possible to say
that the co-existence of the two sets of provisions relating to eviction under
the ordinary law and under the Act, leads to any inconvenience or absurdity.
The impugned Act deals with the Government's
right to evict the occupants and tenants of public premises, but that fact, by
itself would not lead to the inference that the Legislature intended to take
away the Government's right to file a suit for eviction. [404C-E] (Per Hidayatullah
and Bachawat, JJ.) : The Act does not create a new right of eviction. it
creates an additional remedy for a right existing under the general law and
does not repeal the ordinary law giving the remedy of a suit for eviction. [41
1C] (2) By Full Court : There is an intelligible differentia between the two
classes of occupiers, namely, occupiers of public property and premises and
other occupiers. The classification has a -reasonable relation to the object of
the Act and does not offend Art. 14. The two classes of occupiers are not
similarly situated in that, in the case of public properties and premises, the
members of the public have a vital interest in seeing that such properties 400
and premises are freed from encroachment and unauthorised occupation as
speedily as possible; and the impugned Art has properly devised a special
machinery for the speedy recovery of premises belonging to the Government.
[406C-D; 412C-9] Babu Rao Shantaram More v. The Bombay Housing Board and
another, [1954] S.C.R. 572, followed.
(3) (Per Subba Rao, C. J., Shelat and
Vaidialingam, JJ.)Sectioii 5 of the Act confers an additional remedy over and
above the remedy by way of ,suit. The section violates Art. 14 by providing two
alternative remedies to the Government and in leaving it to the unguided
discretion of the Collector to resort to one or the other and to pick and
choose some of those in occupation of public properties and premises for the
application of the more drastic procedure under s. 5. [409F-G] Discrimination Would
result if there are two available procedures one more drastic or prejudicial to
the party concerned than the other and which can be applied at the arbitrary
will of the authority. Assuming that persons in occupation of government
properties and premises form a class by themselves as against tenants and
occupiers of private owned properties and that such classification is justified
on the ground that they require a differential treatment in public interest
those who fall under that classification are entitled to equal treatment among
themselves. [409B-D] State of West Bengal v. Anwar Ali, [1952] S.C.R. 284,
Suraj Mull Mohta v. A. V. Visvanatha Sastri, [1955] 1 S C.R. 448, Shree
Meenakshi Mills Ltd., Madurai v. A. V. Visvanathan Sastri, [1955] 1 S.C.R. 787
and Banarasi Das v. Cane Commissioner, U.P. [1963] Supp. 2 S.C.R. 760 A.I.R.
1963 S.C. 1417, followed.
(Per Hidayatullah and Bachawat, JJ.
dissenting) : The impugned Act makes no unjust discrimination among the
occupants of government properties inter se. It promotes public welfare and is
a beneficial measure of legislation.
[414D-E] The impugned Act is not unfair or
oppressive. The unauthorised occupant has full opportunity of being heard and
of producing his evidence before the Collector; he may obtain a review of the
Collector's order by an appeal to the Commissioner and in appropriate cases ask
for a writ of certiorari from the High Court. He is not denied equal protection
of the laws merely because the Government has the option of proceeding against
him either by way of a suit or under the Act. An unauthorised occupant has no constitutional
right to dictate that the Government should have no choice of proceedings. The
argument based upon the option of the Government to file a suit is unreal,
because in practice, the Government is not likely to institute a suit in a case
when it can seek relief under the Act. [414B-D] Kanasari Haldar& Another v.
State of West Bengal, [1960] 2 S.C.R. 646; Shanti prasad v. The Director of
Enforcement, [1963] 2 S.C.R. 297, 303-304. Seth Banarsi Dass v. Cane
Commissioner, U.P. [1963] Supp. 2 S.C.R. 760 and Arizona Copper Co. v. Hammer,
250 U.S. 400 63 L.Ed. 1058, referred to.
Suraj Mull Mohta & Co. v. A. V.
Visvanatha Sastri [1955] 1 S C.R. 448, 466, explained.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1101 of 1965.
Appeal from the judgment and order dated
January 22, 1963 of the Punjab High Court in Civil Writ No. 16 of 1960.
401 A. K. Sen and Ravinder Narain, for the
appellants.
Gopal Singh and R. N. Sachthey, for the
respondents.
The Judgment of SUBBA RAO, C.J., SHELAT AND
VAIDIALINGAM, JJ., was delivered by SHELAT, J. The dissenting Opinion of
HIDAYATULLAH and BACHAWAT JJ., was delivered by BACHAWAT, J.
Shelat, J. This appeal, by certificate, is
directed against the judgment and order of the High Court of Punjab dismissing
the appellants' writ petition which challenged the validity of the Punjab
Public Premises and Land (Eviction and Rent Recovery) Act, XXXI of 1959.
In or about September, 1953, the State of
Punjab leased the "Mount View Hotel" at Chandigarh to the appellants
for a period of six years commencing from September 24, 1953 at an annual rent
of Rs. 72,000/subsequently reduced to Rs. 50,0001-. The deed of lease of the
said Hotel, however, was drawn up and executed on May 21, 1959. On or about
August 27, 1959, the Government offered to sell the said Hotel to the
appellants at a price of Rs. 12,00,000/-. Since the appellants did not accept
the said offer the same was withdrawn and as the said period of six years had
by that time expired, the Government called upon the appellants to hand over
vacant possession on or before January 1, 1960.
On January 1, 1960, the Estate Officer and
Collector, Capital Project, Chandigarh served the appellants with a notice
alleging that their occupation of the said Hotel had become unauthorised after
December 31, 1959 and required them under s. 4 of the Act to show cause on or
before January 11, 1960 as to why an order of eviction should not be passed
against them. The appellants, in the meantime, filed the writ petition in the
High Court and obtained an interim stay against any order of eviction.
The appellants contended in the High Court
(1) that the Act discriminated between the occupants of public premises and those
of private property and also discriminated between the former inter se and,
therefore, infringed their right of equality before law and equal protection
under Art. 14 of the Constitution, (2) that the Act infringed their tight to
property, (3) that the procedure laid down in s. 5 of the Act infringed rules
of natural justice and (4) that the said notice was invalid as it did not give
ten clear days as required by s. 4(2) (b) of the Act. The High Court negatived
contentions 2, 3 and 4. As regards the first contention, it held that as
appearing from the preamble, the object and the provisions of the Act, the Act
substituted the remedy of the Government of eviction as a landlord under the
ordinary law, i,e. that by reason of the Act, the Government could only resort
to the remedy under the Act and not by way of a suit for eviction and that the
Act impliedly did away with the Government's right to sue under the Civil
Procedure Code in respect of public pro402 perties and premises, that there was
a valid classification between the occupiers of public premises and those of
private property and that as the Act was substitutive and not supplemental
there was no question of discrimination also between the occupiers of public
premises inter se. The High Court, however, agreed that if the Act furnished a
'supplemental' and not a 'substitutive' remedy, the contention as to
discrimination would be one of substance.
The reasons for holding that the Act
impliedly repealed the ordinary law of eviction in respect of public property
and premises, were that the Act covered the entire subject matter of law
relating to eviction, that the two laws could not have been intended to exist
simultaneously, that the preamble and the provisions of the Act lent themselves
to the deduction that it was intended to substitute the general law of eviction
as applicable to public premises, that the object of the Act was to discard the
cumbersome procedure under the ordinary law involving delay and to provide a
special and speedier remedy and lastly that though the absence of express words
of repeal may raise a presumption that the pre-existing law was not repealed
that presumption was offset by a comparison of the two laws which demonstrated
the legislative intent to supplant the ordinary law.
Counsel for the appellants contended that the
conclusions reached by the High Court were erroneous.
Before we proceed to examine them it is
necessary to read the relevant provisions of the Act. The objects and reasons
given for the enactment of the Act (as quoted by the High Court) were that
there was no provision in the Land Revenue Act or in any other Act providing
for summary removal of unauthorised encroachments on or occupation of
Government and Nazul properties including agricultural lands and residential
buildings and sites and for recovery of rent, that the only procedure available
to Government was to sue the party concerned in a civil court which was a
cumbersome procedure involving delay and that therefore to keep all Government
owned lands whether put to agricultural or nonagricultural use free from
encroachments and unlawful possessions, it was necessary to provide a speedy
machinery.
The preamble of the Act declares that the Act
was passed to provide for eviction of unauthorised occupants from public
premises and for certain incidental matters. Section 3 of the Act provides that
a person shall be deemed to be in unauthorised occupation of any public
premises, where being a lessee, he has, by reason of the determination of his
lease, ceased to be entitled to keep or hold such public premises. Section 4
provides that if the Collector is of opinion that any person is in unauthorised
occupation of public premises and that he should be evicted, be shall issue a
notice in writing calling upon such person to show cause why an order of
eviction should not be passed. The notice shall specify the grounds on which
the 403 order of eviction is proposed to be made and require such person to
show cause on or before such date being a date not earlier than 10 days from
the date of issue thereof.
Section 5 provides that if after considering
the cause and the evidence produced by such person and after giving him
reasonable opportunity of being heard, the Collector is satisfied that the
public premises are in unauthorised occupation he 'may make an order of
eviction'. Section 7 empowers the Collector to recover rent in arrears and
assess and recover damages in respect of public premises as arrears of land
revenue. Section 9 provides an appeal against an order of the Collector under
s. 5 or s. 7 before the Commissioner. Section 10 confers finality to the order
made by the Collector or the Commissioner and such order cannot be called in
question in any suit, application or execution proceedings.
We will first consider the High Court's
conclusion as to implied repeal of the Government's remedy of eviction under
the ordinary law. The rule of construction is that where a statute provides in
express terms that its enactment will repeal an earlier Act by reason of its
inconsistency with such earlier Act, the latter may be treated as repealed.
Even where the latter Act does not contain
such express words, if the co-existence of the two sets of provisions is
destructive of the object with which the latter Act was passed, the Court would
treat the earlier provision as impliedly repealed. A latter Act which confers a
new right would repeal an earlier right if the fact of the two rights
co-existing together produces inconvenience, for, in such a case it is
legitimate to infer that the legislature did not intend such a consequence. If
the two Acts are general enactments and the latter of the two is couched in
negative terms, the inference would be that the earlier one was impliedly
repealed. Even if the latter statute is in affirmative terms, it is often found
to involve that negative which makes it fatal to the earlier enactment.
Thus s. 40 of the Requirements of Fines and
Recoveries Act, 1833, which empowered a married woman to dispose of land by
deed which she held in fee, provided she did so with the concurrence of her
husband and by deed acknowledged, was held to have been impliedly repealed by
the Married Women's Property Act, 1882 which authorised her in general terms to
dispose of all real property as if she were a feme sole(1).
But repeal by implication is not generally
favoured by courts. Farwell, J. following such disinclination observed in Re.
Chance ( 2 ) that "if it is possible, it is my duty to read the section as
not to effect an implied repeal of the earlier Act". Maxwell on
Interpretation of Statutes, 11th Ed., p. 162 remarks : "A sufficient Act
ought not to be held to be repealed by implication without some strong reason.
It is a reasonable presumption that the legislature did not intend to keep
really contradictory enactments on the (1) Re. Drummond [1891] 1 Ch. 524.
L5 Sup C. I./67-13 (2) 1936 Ch. 266, 27 404
Statute Book, or, on the other hand, to effect so important a measure as the
repeal of a law without expressing an intention to do so. Such an interpretation,
therefore, is not to be adopted unless it be inevitable. A reasonable
construction which offers an escape from it is more likely to be in consonance
with the real intention." The well settled rule of construction is that
when the latter enactment is worded in affirmative terms without any negative
it does not impliedly repeal the earlier law.
"What words", observed Dr.
Lushington, in The India, (1) (as quoted in Craies on Statute Law, 6th Ed. 371)
"will establish a repeal by implication it is impossible to say from
authority or decided cases .... The prior statute would, I conceive, be
repealed by implication if its provisions were wholly incompatible with a
subsequent one; or if the two statutes together would lead to wholly absurd
consequences; or if the entire subject-matter were taken away by the subsequent
statute". The impugned Act is neither in negative terms nor in such terms
which result in negativing the right of the Government as a landlord to sue for
eviction under the ordinary law. Nor is it possible to say that the
co-existence of the two sets of provisions relating to eviction lead to
inconvenience or absurdity which the legislature would be presumed not to have
intended. The impugned Act no doubt deals with the Government's right to evict
the occupants and tenants of public premises. In that sense it is an Act
dealing with a particular subject-matter, but that fact by itself would not
lead to the inference that the legislature intended to take away the
Government's right to file a suit for eviction. As the reasons, and objects,
relied on by the High Court, show the legislature intended to provide 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.
In our view, there is nothing in the Act to
warrant the conclusion that it impliedly takes away the right of suit by
Government or that, therefore, it is substitutive and not supplemental. Nor is
it possible to say that the coexistence of the two remedies would cause such
inconvenience or absurdity that the Court would be compelled to infer that the
enactment of the Act resulted in an implied deprivation of the Government's
right to sue in the ordinary courts. In our view, the High Court with respect
was in error in holding that there was an implied repeal only because the two
sets of provisions deal with the subject-matter of eviction in respect of
public premises.
As aforesaid, the High Court was of the view
that if the Act conferred an additional remedy, the contention as to
discrimination would have force. The guarantee of equality before law and equal
protection under Art. 14 means that there should be no discrimination between
one person and another if as regards the 405 subject-matter of the legislation,
their position is the same. It is well-recognised, however, that the
legislature has power of making special laws to attain particular objects and
for that purpose it has the power of selection or classification of persons and
things upon which such laws are to operate. Such classification, however, has
to be based on some real distinction bearing a just and reasonable relation.
The two tests laid down by this Court for a valid classification are that it
must be founded on an intelligible differentia which distinguishes those who
are grouped together from others and that differentia must have a rational
relation to the objects to be achieved by the Act. When, therefore, an
enactment is challenged on the ground of discrimination, the Court must first
ascertain the object sought to be achieved by the legislature and then apply
the two tests. If the tests are satisfied, the classification cannot be held to
be violative of Art. 14.
In Baburao Shantaram More v. The Bombay
Housing Board and another(1), section 4 of the Bombay Rents Act, 1947 which
exempted certain public properties from the operation of the Act was challenged
on the ground that the exemption caused discrimination between the tenants of
the Housing Board and the rest of the tenants of private properties. This Court
upheld the section on the ground that there was an intelligible differentia
which distinguished the tenants of the Board from the other tenants and that
that differentia had a rational nexus with the object of the Act. The object of
the Act, it was observed, was to solve the residential accommodation to achieve
which the Housing Board was set up.
The Board was not actuated by any profit
motive and, therefore, there was no likelihood of its evicting its tenants for
the purpose of unduly raising the rents as private landlords were likely to do
taking advantage of dearth of accommodation. This Court held that the two
classes of tenants were not, therefore, similarly situated and were not, by
force of circumstances, placed on an equal footing and, therefore, there was no
denial of equality before law or of .equal protection. A modern State in a
complex and growing society can no longer content itself with performance only
of its traditional activities. To meet the manifold and variegated needs of
society it has to undertake activities of considerable diversity. Such
activities now-a-days range from supplying the elemental needs of its citizens
such as housing, importation and distribution of food and clothes and other
such necessities to highly industralised and technocratic projects, which it is
said, the State alone can undertake. In such activities its citizens have a
vital interest. If a classification is made between those who take advantage of
such activities such as accommodation and the rest it may be difficult to say
that there is not an intelligible differentia between the two or that there is
no relation between such differentia and the object (1) [1954] S.C.R. 572.
406 of such legislation. In such cases, if
the law provides for differential treatment, it is possible to contend that it
is justifiable on consideration of the circumstances, the object and the policy
of such legislation though the mere fact that it is a Government-owned activity
may not by itself be sufficient.
The objects and reasons of the impugned Act
and its preamble indicate that the Act was passed to provide for eviction of
unauthorised occupants from public properties and premises, and to keep such
properties free from encroachment and unlawful possession and to provide a
speedier machinery for that purpose as against the lengthy proceedings under
the ordinary law of eviction involving delay. The Act no doubt differentiates
occupiers of public property and premises from other occupiers. Nevertheless, it
is possible to say that there is an intelligible differentia between the two
classes of occupiers, that they are not similarly situated in that in the case
of public properties and premises the members of the public have a vital
interest and are interested in seeing that such properties and premises are
freed from encroachment and unauthorised occupation as speedily as possible. It
is also possible to contend that such classification is justified in that it is
in the interest of the public that speedy recovery of rents and speedy eviction
of unauthorised occupiers is made possible through the instrumentality of a
speedier procedure instead of the elaborate procedure by way of suit involving
both expense and delay. On these considerations, it may be contended that the
segregation of tenants of public properties and premises from the tenants of
private property is based on justifiable reason and that such segregation has a
rational nexus with the object and policy of the Act.
Assuming that such classification is valid,
the complaint of the appellants is that s. 5 of the Act makes a discrimination
amongst those in occupation of public properties and premises inter se and that
such discrimination has no valid basis nor any reasonable nexus with the object
of the Act. Under s. 4, if the Collector is of opinion that any person is in
unauthorised occupation of any public premises and that he should be evicted,
he has to issue a notice calling upon such person to show cause why an order of
eviction should not be made. Under s. 5, if the Collector is satisfied that the
public premises are in unauthorised occupation he has the power to make an
order of eviction giving reasons therefore. 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 s. 5 show that the
section confers discretion to adopt the procedure under ss. 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 407 Collector to
discriminate against some by exercising his power under s. 5 and take
proceedings by way of a suit against others, both the remedies being
simultaneously available to the Government. There can be no doubt that if the
Collector were to proceed under ss. 4 and 5, the remedy is drastic for a mere
opinion by him that a person is in unauthorised occupation authorises him to
issue a show cause notice and his satisfaction under s. 5 is sufficient for him
to pass an order of eviction and then to recover under s. 7 rent in arrears and
damages which he may assess in respect of such premises as arrears of land
revenue. Section 5 does not lay down any guiding principle or policy under
which the Collector has to decide in which cases he should follow one or the
other procedure and, therefore, the choice is entirely left to his arbitrary
will. Consequently, s. 5 by conferring such unguided and absolute discretion
manifestly violates the right of equality guaranteed by Art. 14.
It is well-settled that if a law were to
provide for differential treatment for amongst persons similarly situated, it
violates the equality clause of Art. 14. In the State of West Bengal v. Anwar
Ali,(1) s. 5 of the W.B.
Special Courts Act, 1950 was challenged as
infringing Art.
14. The majority judgment held that the
procedure laid down for trial by the Special Courts varied substantially from
that laid down for the trial of offences generally under the Code of Criminal
Procedure and that the Act did not classify or lay down any basis for
classification of cases which may be directed to be tried by the Special Courts
but left it to the uncontrolled discretion of the State Government to direct
cases which it liked to be tried by the Special Courts. The language of s. 5(1)
vested the State with unrestricted discretion to direct any case or class of
cases to be tried by the Special Courts, not a discretion to refer cases where
it is of opinion that a speedier trial is necessary. The majority held that a
rule of procedure laid down by law comes as much within the purview of Art. 14
as rules of substantive law and that it was necessary that all litigants, who
are similarly situated, are able to avail themselves of the same procedural
rights for relief and for defence with like protection and without
discrimination. If it is established that the person complaining has been
discriminated against as a result of legislation and denied equal privileges
with others occupying the same position it would be enough to make such a law
violative of Art. 14. In Suraj Mall Mohta v. A. V. Visvanatha Sastri, ( 2 ) the
challenge was to s. 5 (4) of the Taxation and Income (Investigation Commission)
Act, 1947. The contention was that s. 5(4) gave arbitrary power to the
Commission to pick and choose the evaders of income-tax as it liked and,
therefore, the sub-section was highly discriminatory in character. This Court
held that sub-s. (4) of s. 5 dealt with the same class of persons who fell
within the ambit of s. 34 of the Income-tax (1) [1952] S.C.R. 284.
(2) [1955] 1 S.C.R. 448.
408 Act, 1922, that both s. 34 of the Income
Tax Act and s. 5(4) of the Investigation Act dealt with persons who had similar
characteristics and similar properties, the common characteristics being that
they were persons who had not truly disclosed their income and had evaded
payment of taxation on income, that the procedure prescribed by the
Investigation Act was substantially more prejudicial and more drastic to the
assessee than the one under the Income Tax Act and that, therefore, s. 5(4) in
so far as it affected persons proceeded against under that sub-section was a
piece of discriminatory legislation and offended Art.
14. It appears that after that decision,
Parliament amended s. 34 of the Income-tax Act providing for the cases of those
very persons who originally fell within the ambit of s. 5(1) of the Investigation
Act to be dealt with under the amended s. 34 and under the procedure of the
Income-tax Act. As a result of the amendment both categories of persons, viz.,
those who came within the ambit of s. 5 (1) as well as those who came within
the ambit of s. 34 of the Income-tax Act now formed one class. That being the
effect of the amendment, it was urged in Shree Meenakshi Mills Ltd., Madurai v.
A. V. Visvanathasastri(1) that assuming that S. 5(1) of the Investigation Act
was based on a rational classification that classification had, because of the
amendment of s. 34 become void, as the classification which saved it from the
mischief of Art. 14 had become ineffective, its distinctive characteristics
having disappeared, and that the persons falling within the class defined in s.
5(1) now belonged to the same class as was dealt with by s. 34 as amended. This
Court accepted the contention and held that as a result of the said amendment
s. 34 as amended operated on the same field as s. 5(1) of the Investigation
Act, assuming that the latter was based on a rational classification, and that
therefore it became void and unenforceable as being discriminatory in
character. Similarly, in Banarsi Das v. Cane Commissioner, Uttar Pradesh(2),
Rule 23 of the U.P. Sugar Factories Rules, 1938 was impeached on the ground
that it provided two different procedures either of which could be followed by
the Cane Commissioner. Raghubar Dayal, J.
who gave a dissenting opinion was of the view
that the rule was discriminatory and should, therefore, be struck down as
contravening Art. 14. Hidayatullah, J. who spoke for the majority agreed with
him on principle that if "it could be said that the rule as framed, allows
the Cane Commissioner to discriminate between one party and another then the
rule must offend Art. 14". He, however, construed the rule to mean that
the parties, instead of leaving the dispute to the decision of the
Commissioner, could go to arbitration with his permission. On this
construction, he held that where there are two procedures, one for every one
and the other, if the disputants voluntarily agree to follow it, there would be
no (1) [1955] 1 S.C.R. 787.
(2) A.I.R. 1963 S.C.R. 1417.
409 discrimination because discrimination can
only be found to exit if the election is with someone else who can exercise his
will arbitrarily. The principle which emerges from these decisions is that'/
discrimination would result if there are two available procedures one more
drastic or prejudicial to the party concerned than the other and which can be
applied at the arbitrary will of the authority.
Assuming that persons in occupation of
Government properties and premises form a class by themselves as against
tenants and occupiers of private owned properties and that such classification
is justified on the around that they require a differential treatment in public
interest, those who fall under that classification are entitled to equal
treatment among themselves. If the ordinary law of the land and the special law
provide two different and alternative procedures, one more prejudicial than the
other, discrimination must result if it is left to the will of the authority to
exercise the more prejudicial against some and not against the rest. A person
who is proceeded against under the more drastic procedure is bound to complain
as to why the drastic procedure is exercised against him and not against the
others, even though those others are similarly circumstanced. The procedure
under s. 5 is obviously more drastic and prejudicial than the one under the
Civil Procedure Code where the litigant can get the benefit of a trial by an
ordinary court dealing with the ordinary law of the land with the right of
appeal, revision, etc., as against the person who is proceeded against under s.
5 of the Act as his case would be disposed of by an executive officer of the
Government, whose decision rests on his mere satisfaction, subject no doubt to
an appeal but before another executive officer, viz., the Commissioner. There
can be no doubt that s. 5 confers an additional remedy over and above the
remedy by way of suit and that by providing two alternative remedies to the
'Government and in leaving it to the unguided discretion of the Collector to
resort to one or the other and to pick and choose some of those in occupation
of public properties and premises for the application of the more drastic
procedure under s. 5, that section has lent itself open to the charge of
discrimination and as being violative of Art. 14. In this view s. 5 must be
declared to be void.
In the result, the appeal is allowed. The
order of the High Court is set aside and the writ petition filed by the
appellants is made absolute with costs.
Bachawat, J. An unauthorised occupant of
public premises claims immunity from eviction under the summary procedure of
the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959
(Punjab Act No. 31 of 1959), on the ground that the Act offends art. 14 of the
Constitution.
The State of Punjab leased the premises known
as Mount View, Chandigarh to the appellant 410 upto December 31, 1959 after
which the lease was not extended. C n January 1, 1960, the Collector issued a
notice under s. 4 of the Act to the appellant to show cause on or before
January II, 1960, why an order of eviction from the premises should not be made
against it. On January 7, 1960, the appellant filed a writ petition challenging
the vires of the Act. Since then it has, successfully defied the law and
continued to be in occupation of the premises under the shelter of stay orders
and injunctions. The High Court dismissed the writ petition. This appeal has
been filed on a certificate granted by the High Court.
The object of the impugned Act is to provide
a summary procedure for the eviction of unauthorised occupants of public
premises. without recourse to the cumbersome procedure of a title suit. Public
premises means any premises belonging to, or taken on lease or requisitioned
by, or on behalf of, the State government, or requisitioned by the competent
authority under the Punjab Requisitioning and Acquisition of Immovable Property
Act, 1953, and includes any premises belonging to any district board, municipal
committee, notified area committee or panchayat [s. 2(d)]. A person deemed to
be in unauthorised occupation of any public premises includes where he, being
an allottee, lessee or grantee, has, by reason of the determination or
cancellation of his allotment, lease or grant in accordance with the terms in
that behalf therein contained, ceased, whether before or after the commencement
of this Act, to be entitled to occupy or hold such public premises [s. 3(b)].
If the Collector is of the opinion that any persons are in unauthorized
occupation of any public premises situate within his jurisdiction and that they
should be evicted, he shall issue a notice in writing calling upon all persons
concerned to show cause why an order of eviction should not be made (s. 4). If
after considering the objection, if any, of the person concerned and giving him
a reasonable opportunity of being heard, the Collector is satisfied that the
public premises are in unauthorized occupation, he may make an order of
eviction for reasons to be recorded therein (S. 5).
Section 6 provides for disposal of property
left on public premises by unauthorized occupants. Section 7 gives the
Collector the power 'to recover rent or damages in respect of public premises
as arrears of land revenue. For the purpose of holding any inquiry under the
Act, the Collector has the power of summoning witnesses and certain other
powers vested in the civil court when trying a suit (S. 8. An appeal lies from
every order of the Collector under ss. 5 and 7 to the Commissioner (. 9. Save
as provided in the Act, every order made by the Collector or Commissioner is
final and cannot be called in question in any original suit, application or
execution proceeding (s. 10). Section 11 protects action taken under the Act in
good faith. Section 12 gives power to make rules. This in short is the scheme
of the Act. Its provisions are similar to 411 those of the Public Premises
(Eviction of Unauthorized Occupants) Act, 1958, save that an appeal under the
Central Act from an, order of the estate officer lies to the district judge.
The High Court found that the Act does not
offend arts. 14 and 19(1)(f) of the Constitution. The appellant has now
abandoned' the attack based on art. 19(1)(f). Being an unauthorized occupant,
it has no right of property in the premises. The High Court repelled the attack
based on art.
14 on the ground that the proceeding under
the Act is the exclusive remedy for the eviction of unauthorized occupants of
public premises. With this reasoning we cannot agree.
The Act does not create a new right of
eviction. It creates an additional remedy for a right existing under the
general law. It does not repeal the law giving the remedy of a suit or bar the
jurisdiction of civil courts to try a suit for eviction. The government is at
liberty to proceed against the occupant either under the Act or by way of a
suit.
The argument for the appellant is that the
Act violates art.
14 in two ways, first, that it discriminates
between unauthorized occupants of public premises and those of other premises
and the classification of public premises has no reasonable relation to the
object of the Act. Second, that it discriminates between occupants of public
premises inter se as the State can arbitrarily proceed against the occupant
either under the Act or by way of a suit at its sweet will.
The argument must be rejected.
The constitutional guarantee of art. 14
requires that there shall' be no unjust discrimination and all persons shall be
treated alike under like circumstances and conditions. The article sustains a
rich diversity of laws and permits reasonable classification and differential
treatment based on substantial differences having reasonable relation to the
object of the legislation. The protection of' art. 14 extends to procedural
laws, but the legislature may adopt one or more types of procedure for one
class of litigation and a different type for another so long as the
classification satisfies the test of reasonableness. Thus without violating
art. 14, the law may prohibit crossexamination of witnesses in proceedings for
externment of undesirable persons, see Gurbachan Singh v. State of Bombay and
another(1).
Article 14 permits differential treatment of
the government in matters of both substantive law and procedure. The
legislature may reasonably provide a longer period of limitation for suits by
the government, see Nav Rattanmal and others v. State of Rajasthan (2) , give
the government the right of priority in payment of its claims, see Builders,
Supply Corporation v. Union of India and (1) [1952] S.C.R. 737,743-44.
(2) [1962] 2 S.C.R. 324.
412 others(1) and deny the protection of the
Rent Act to tenants of premises belonging to the government while extending its
protection to the government, see Baburao Shantaram More v. The ,Bombay Housing
Board and another(2).
It is settled by our previous decisions that
the Revenue Recovery Acts and other Acts creating special tribunals and
procedure for the expeditious recovery of revenue and State dues are in the
public interest and do not violate art. 14, see Shri Manna Lal and -another v.
Collector of Jhalawar and others(3), Nav Rattanmal and others v. State of
Rajasthan (4 ) , The Collector of Malabar v. Erimal Ebrahim Hajee(5),
Purshottam Govindji Halai v. Shree B. M. Desai, Additional Collector of Bombay
and others(6) and Lachhman Das v. State of Punjab and others (7 ) . If quick
recovery of revenue is in the public interest, expeditious recovery of State
property from which revenue is derived is a fortiori in the public interest.
The impugned Act has properly devised a special machinery for the speedy
recovery of premises belonging to the ,government.
The class of public premises to which the
benefit of the impugned Act extends includes premises belonging to the district
board, .municipal committee, notified area committee and panchayat. The
-classification has reasonable relation to the object of the Act and does not
offend art.
14. We have upheld similar classification for
the purpose of other Acts, see Baburao Shantaram More v. The Bombay Housing
Board and another(2).
The government has the option of proceeding
against an unauthorized occupant of public premises either under the Act or by
a civil suit. On the question whether such an option offends art., 14, our
decisions upholding the validity of the Revenue Recovery Acts are conclusive.
The Revenue Recovery Acts do not deny the equal protection of the laws because
the government has the free choice of recovering its revenue either by a suit
or by a proceeding under those Acts.
We have struck down harsh, oppressive and
unjust laws giving the government an arbitrary power of directing a summary
trial ,of offences by a special criminal court instead of trial by the ordinary
courts or of subjecting assessee to the inquisitorial procedure of the Taxation
of Income (Investigation Commission) Act, 1947. It is because those laws were
harsh, despotic and tyrannical that they were struck down. It is remarkable
that in Suraj Mall Mohta and Co. v. A. V. Visvanatha Sastri and another(8), the
Court said that if there was a provision for reviewing the conclusions (1)
[1965] 2 S.C.R. 289. (2) [1954] S.C.R, 572.
(3) [1961] 2 S.C.R. 962. (4) [1962] 2 S.C.R.
324, 332.
(5) [1957] S.C.R. 970. (6) [1955] 2 S.C.R.
887.
(7) [1963] 2 S.C.R. 353. (8) [1955] 1 S.C.R.
448 at 466.
413 of the investigation commission when
acting both as investigators and judges, the Taxation of Income (Investigation
Commission) Act 1947, might have been sustained. Even an Act giving the
executive an option of sending a case for trial by a special criminal court is
not necessarily violative of art. 14, see Kangsari Haldar and anr. v. The State
of West Bengal(1). We have upheld an Act empowering an administrative tribunal
trying an offence to send the case to a court for trial if the case deserves
more severe punishment, see Shanti Prasad Jain v. The Director of
Enforcement(2).
Without violating art. 14, the law may allow
a litigant a free choice of remedies, proceedings and tribunals for the redress
of his grievances. The plaintiff may have a choice of claiming specific relief
or damages. As dominus litis, he has the option of suing in one of several
courts having concurrent jurisdiction, and the defendant cannot insist that he
must be sued at a place where he can more conveniently carry on the litigation.
The plaintiff may even fix the original and appellate forums on the basis of
his own ;arbitrary valuation. For a suit on a negotiable instrument, he may
instead of choosing the ordinary procedure, adopt the summary procedure of
Order XXXVII of the Code of Civil Procedure and shut out the defence altogether
unless leave to defend is obtained. .A landlord may evict a tenant by a suit or
by a summary proceeding under chapter VII of the Presidency Small Cause Courts
Act.
An aggrieved party may be free to choose one
of several types of tribunals and modes of proceeding. He may obtain a
rectification of the share register by a suit or by an application to the court
taking company matters or by appealing to an administrative tribunal against
the refusal of the company to register the transfer of shares.
Instead of filing a suit or a proceeding
before an administrative tribunal, a party may at his option obtain quick and
effective relief against the government by an application in the writ
jurisdiction and by adopting this mode of proceeding may deprive the government
of the procedural safeguards available to it in suits and other proceedings.
Likewise, the law may give the government an option of recovering its revenue
and properties by a suit or by a proceeding before an administrative tribunal.
The law does not violate art. 14 because it
gives an. aggrieved party the free choice of remedies and proceedings for the
redress of his grievances. In Arizona Copper Co. v. Hammer,(3) the U.S. Supreme
Court held that employers were not denied the equal protection of the laws
because an employee injured in course of his employment had open to him three
avenues of redress under three (1) [1960] 2 S.C.R. 646. (2) [1963] 2 S.C.R. 297,
303-4.
(3) 250 US 400 :63 L.Ed. 1058.
414 different laws, each one of which he
might pursue at his free choice. As Pitney J., said, "election of remedies
is an option very frequently given by the law to a person entitled to an
action-an option normally exercised to his own advantage as a matter of
course." It is not pretended that the proceeding under the impugned Act is
unfair or oppressive. The unauthorised occupant has full opportunity of being
heard and of producing his evidence before the Collector. He may obtain a
review of the order of the Collector by an appeal to the Commissioner.
He may in appropriate cases ask for a writ of
certiorari from the High Court. He is not denied the equal protection of the
laws because the government has the option of proceeding against him either by
a suit or under the Act.
An unauthorised occupant has no constitutional
right to dictate that the government should have no choice of proceedings. The
argument based upon the option of the government to file a suit is unreal,
because in practice the government is not likely to institute a suit in a case
where it can seek relief under the Act.
Article 14 does not require a fanatical
approach to the problem of equality before the law. It permits a free choice of
remedies for the redress of grievances. The impugned Act makes no unjust
discrimination. It promotes public welfare and is a beneficient measure of
legislation. If we strike down the Act, we shall be giving a free charter to
unauthorized occupants and to officers squatting on public premises after they
have vacated their offices to continue in occupation for an indefinite time
until they are evicted by dilatory procedure of a title suit. The Act does not
suffer from any blemish and we uphold it.
In Seth Banarsi Das v. Cane Commissioner(1),
the Court upheld a law prescribing two procedures one for every one and the
other if the disputants agree to follow it. The Court did not say that a law
cannot allow a choice of procedure to an aggrieved party.
We would accordingly dismiss the appeal with
costs.
ORDER In accordance with the opinion of the
majority, the appeal is allowed. The order of the High Court is set aside and
the writ petition filed by the appellants is made absolute with costs.
V.P.S.
(1) [1963] Supp. 2 S.C.R. 760.
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