Case: Hari Singh And Ors Vs. The Military Estate Officer And Anr

Section 5 (1) of the 1958 Act conferred power on the Estate officer to make an order of eviction against persons who are in unauthorised occupation of public premises. The vice of section 5 (1) of the 1958 Act against Article 14 of the Constitution was this. The Government had two alternative remedies of eviction of persons in unauthorised occupation. One was to seek the remedy in a court of law by instituting a suit for eviction. The other was the remedy prescribed by the 1958 Act. The 1958 Act was attacked on the ground that there was the unguided discretion of the authorities to either of the remedies and to pick and choose some of them in occupation of public premises for the application of the drastic procedure under the 1958 Act.2. The 1958 Act was amended in 1968. Section 10E was introduced into the 1958 Act. Section 10E created bar of jurisdiction of civil court to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises or the recovery of the arrears of rent payable under S.7(1) or damages payable under S.7 (2) or costs awarded under S.9(5) of the Act. The appellants raised the contention that the amendment effected by section 10E of the Act was not retrospective and therefore the proceedings forming subject matter of the appeals were not saved by the amendment.3. In the appeal filed by Hari Singh one Behari Lal obtained lease from the President through the Military Estate Officer, Delhi Circle of 36.73 acres of land at Ambala Cantonment. The lease was for four years from 1 May, 1952. The annual rent was Rs.3310/-. The rent was payable in advance. Behari Lal failed to pay rent. The lease expired on 1 May, 1957. The period of the lease was not extended. Behari Lal failed to surrender possession. There was an order dated 17 June, 1960 under the 1958 Act for eviction of Behari Lal. The appellants claimed to be sub-lesses of Behari Lal. The lease permitted sub-letting only with the permission of the competent authority. Notice was given under the 1958 Act to the appellants to show cause as to why they should not be evicted under the Act, because they were in unauthorised occupation of the land. The Estate Officer found that there was no sanction of the competent authority permitting sub-lease. On 25 July, 1961 an order was passed under section 5 of the 1958 Act evicting the appellants. The appellants preferred an appeal to the District Judge, Ambala. On 18 April, 1962 the appeal was dismissed. Thereafter the appellants filed a writ petition in the Punjab High Court. The learned Single Judge dismissed the petition on 13 May, 1963. The appellants preferred Letters Patent Appeal. The High Court dismissed the appeal on 5 September, 1966. The appeal filed by Hari Singh and others is by certificate against the decision of the High Court of Punjab.4. The appeal filed by Bhartiya Hotel and others is by certificate against the judgment dated 12 December, 1967 of the High Court at Patna. The appellants there are partners carrying on business under the name of Bhartiya Hotel at Ratanpura. One of the partners obtained lease of a plot of land at Chapra in Bihar. Ram Lakhan Prasad is the partner who obtained the lease. The Estate Officer, North Eastern Railway served a notice dated 12 June, 1964 under section 4 (1) of the 1958 Act on Ram Lakhan Prasad for eviction of the appellants on the ground that the appellants were in unauthorised occupation. The Estate Officer on 16 March, 1966 passed an order of eviction against the appellants. The appellants thereafter moved the High Court at Patna for quashing the order of eviction. The High Court on 21 December, 1967 dismissed the writ petition of the appellants. The appeal is by certificate from the decision of the High Court.5. In the appeal filed by Hari Singh and others two contentions were raised in the High Court. First, it was said that the word premises did not apply to agricultural land. Secondly, it was said that the legislation on agricultural land was within the exclusive legislative filed of the State and, therefore, the Central Act was unconstitutional. The High Court rejected both the contentions.6. In the appeal filed by Bhartiya Hotel and others the appellants raised the principal contention that the 1958 Act violated Article 14 of the Constitution. The High Court referred to the decision of this Court in Northern India Caterers (Pvt.) Ltd. v. State of Punjab (1967) 3 SCR 399   = (AIR 1967 SC 1581  ). The High Court held that the decision of this Court in Northern India Caterers Private Ltd. case (1967) 3 SCR 399   = (AIR 1967 SC 1581  ) (supra) was on the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959 and the provisions of the 1958 Act which formed subject matter of the decision in the Patna High Court contained distinguishable features.7. In this context that appellants raised the constitutionality of the 1958 Act. During the pendency of these appeals the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 received the assent of the President on 23 August, 1971. The appellants were allowed to add a new ground. The new ground challenged the constitutionality of the 1971 Act.

Court's reasoning:
12. The 1971 Act came into existence to validate anything done or any action taken or purported to have been done or taken under the 1958 Act. In the first place, the 1971 Act is made retrospective with effect from 16 September, 1958 except sections 11, 19 and 20. In the second place, section 20 of the 1971 Act which is described as the section for validation provides that anything done or any action taken or purported to have been done or taken shall be deemed to be as valid and effective as if such thing or action was done or taken under the corresponding provisions of the 1971 Act. In the third place, the 1971 Act by S.15 provided bar of jurisdiction of courts in respect of eviction of any person who is in unauthorised occupation of any public premises. It, therefore, follows that under the provisions of the 1971 Act which had retrospective operation from 16 September, 1958, there is only one procedure available for eviction of persons in unauthorised occupation of public premises. That procedure is to be found in the 1971 Act. The other courts have no jurisdiction in these matters. The vice of Article 14 which was found by this Court in the decision of Northern India Caterers Private Ltd. (1967) 3 SCR 399   = (AIR 1967 SC 1581  ) (supra) no longer appears under the 1971 Act.The validity of the 1971 Act depends on the legislative competence to validate anything done or any action taken or purported to have been done or taken under the 1958 Act. Validation is achieved by enacting that anything done or any action taken or purported to have been done or taken shall be deemed to be as valid and effective as if such thing or action was done or taken under the corresponding provisions of the 1971 Act. The result is that the 1971 Act is made retrospective with effect from 16 September, 1958. Anything done or any action taken under the 1958 Act is to be deemed as valid and effective under the provisions of the 1971 Act. The consequence is that the validity of action done or taken is to be tested with reference to the provisions of the 1971 Act. This Court in West Ramnad Electric Distribution Co. Ltd. v. State of Madras, (1963) 2 SCR 747   = (AIR 1962 SC 1753  ) held that it is within the competence of the legislature to enact a law and make it retrospective in operation.The ruling of this Court in West Ramnad Electric Distribution Co. Ltd. case, (1963) 2 SCR 747   = (AIR 1962 SC 1753  ) (supra) establishes competence of the legislature to make laws retrospective in operation for the purpose of validation of action done under an earlier Act which has been declared by a decision of the Court to be invalid. It is to be appreciated that the validation is by virtue of provisions of the subsequent piece of legislation.The distinction between West Ramnad Electric Distribution Co. Ltd. case, (1963) 2 SCR 747   = (AIR 1962 SC 1753  ) and Durga Nath Sarmas case (1968) 1 SCR 561   = (AIR 1968 SC 394  ) (supra) is this. In the West Ramnad Electric Distribution Co. Ltd. case, (1963) 2 SCR 747   = (AIR 1962 SC 1753  ) (supra) the 1954 Act validated actions and proceedings under the earlier Act by a deeming provision that acts or things were done by virtue of the provisions of the 1954 Act. The 1954 Act was not found to have any constitutional infirmity. On the other hand Durga Nath Sarmas case, (1968) 1 SCR 561   = (AIR 1968 SC 394  ) (supra) validated by the 1960 Act acquisition under the 1955 Act. The acquisition was not by or under the 1960 Act. The acquisition was under the 1955 Act. The 1955 Act was constitutionally invalid. Therefore, there was no validation of earlier acquisition.The meaning of a Validation Act is to remove the causes for ineffectiveness or invalidity of actions or proceedings which are validated by a legislative measure. This Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1970) 1 SCR 388   = (AIR 1970 SC 192  ) dealt with the Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963. Under Section 73 of the Bombay Municipal Boroughs Act, 1925 a municipality could levy a rate on building or lands or both situated within the municipality. This Court held in Patel Gordhandas Hargovindas v. Municipal Commissioner Ahmedabad (1964) 2 S. C. R. 608 = (AIR 1963 SC 1742  ) that the term rate must be confined to an impost on the basis of annual letting value and it could not be validly a levy on the basis of capital value. Because of this decision the Gujarat Legislature passed in Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963. The 1963 Act provided that past assessment and collection of rate on lands and buildings on the basis of capital value or a percentage of capital value was declared valid despite any judgment of a Court or Tribunal to the contrary. The earlier decision of this Court was applicable to the meaning of the word rate occurring in the 1925 Act. The Validation Act gave its own meaning and interpretation of the law under which the tax was collected. It was also said by the Court that a tax declared illegal could be validated if the ground of illegality was capable of being removed. Therefore, a validating law is upheld first by finding out whether the legislature possesses competence over the subject-matter, and, secondly, whether by validation the legislature has removed the defect which the courts had found in the previous law.22. The legislature had legislative competence to enact the 1971 Act. It means that it could legislate on the subject of providing a speedy procedure for eviction of persons in unauthorised occupation of public premises. The legislature has power to pass laws with retrospective operation. The challenge to the 1971 Act is that the 1958 Act is unconstitutional, and, therefore, there cannot be validation of anything done under an unconstitutinal Act. The fallacy of the appellants submission is in overlooking the crucial provisions in the 1971 Act that the 1971 Act is effective from 16 September, 1958 and the action done under the 1958 Act is deemed to be done under the 1971 Act. There is no vice of discrimination under the 1971 Act. There is only one procedure under the 1971word premises is defined to mean any land. Any land will include agricultural land. There is nothing in the Act to exclude the applicability of the Act to agricultural land. Reference was made to Sections 42 and 43 of the Punjab Tenancy Act, 1887. Section 42 of the 1887 Act speaks of restriction on ejectment. Section 43 provides for application to the Revenue Officer foris no substance in that contention. Section 15 of the 1971 Act provides only one procedure for ejectment of persons in unauthorised occupation of public premises.24. The 1958 Act has not been declared by this Court to be unconstitutonal. Sec. 5 of the 1959 Punjab Act was held by this Court in the decision in Northern India Caterers Private Ltd. case, (1967) 3 SCR 399   = (AIR 1967 SC 1581  ) (supra) to be an infraction of Article 14. Section 5 of the 1958 Central Act is in terms similar to section 5 of the 1959 Punjab Act. The arguments on behalf of the appellants therefore proceeded on the footing that the 1958 Act will be presumed to be unconstitutional. It was therefore, said that the 1971 Act could not validate actions done under the 1958 Act. The answer is for the reasons indicated above that the legislature was competent to enact this legislation in 1958 and the legislature by the 1971 Act has given the legislation full retrospective operation. The legislature has power to validate actions under an earlier Act by removing the infirmities of the earlier Act. The 1971 Act has achieved that object of validation.This Court said that if the Act is retrospective in operation and section 24 has been enacted for the purpose of retrospectively validating actions taken under the provisions of the earlier Act it must follow by the very retrospective operation of the relevant provisions that at the time when the impugned notification was issued, these provisions were in existence. That is the plain and obvious effect of the retrospective operation of the statute. Therefore in considering whether Article 31 (1) has been complied with or not, we must assume that before the notification was issued, the relevant provisions of the Act were in existence and so, Article 31 (1) must be held to have been complied with in that sense".15. In West Ramnad Electric Distribution Co. Ltd. case, (1963) 2 SCR 747   = (AIR 1962 SC 1753  ) (supra) this Court referred to the provisions of Article 20 of the Constitution to emphasise the instance where the Constitution prevented retrospective operation of any law. Accent was placed on the words "law in force at the time" occurring in Article 20. The words "by authority of law" in Article 31 (1) were distinguished from the words occurring in Article 20. This Court said that if subsequent law passed by the legislature was retrospective in operation, it would satisfy the requirement of Art.31 (1) and would validate the impugned notification in the West Ramnad Electric Distribution Co. Ltd. case (supra).