TMI Blog1974 (4) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... ter contains sections 105A and 105B. According to the provisions of those sections the Commissioner in relation to premises belonging to or vesting in, or taken on lease by the corporation and the General Manager (also defined as the Commissioner) of the Bombay Electric Supply and Transport Undertaking in relation to premises of the corporation which vest in it for the purposes of that undertaking were granted certain powers of eviction in respect of unauthorised occupation of any corporation premises. Unauthorised occupation is defined as occupation by any person of corporation premises without authority for such occupation and includes the continuance in occupation by any person of the premises after the authority under which he was allowed to occupy the premises has expired, or has been duly determined. Under section 105B the Commissioner, by notice served on the person in unauthorised occupation, could ask him to vacate if he had not paid for a period of more than two months the rent or taxes lawfully due from him in respect of such premises; or sub-let, contrary to the terms or conditions of his occupation, the whole or any part of such premises; or committed, or is committing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector or an Executive Engineer appointed by the State Government. The only other matter in respect of which the provisions of this Act differ from the provisions of the Bombay Municipal Corporation Act, just now referred to, is that section 8A of this Act provides that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person from any Government premises on any of the grounds specified in section 4 or the recovery of the arrears of rent or the damages payable for use or occupation of such premises. This amendment was made as a consequence of the decision of this Court in Northern India Caterers v. Punjab (1967 3 SCR 399). But the matters arising under this Act and now before this Court were in respect of proceedings taken before section 8A was introduced in the Act by Maharashtra Act 12 of 1969 and this section has, therefore, no relevance for the purposes of these cases. It was not and could not be argued that the Acts in so far as they provided for special procedures applying to the State and 2the Municipal Corporation were invalid. The decisions in Baburao Shantaram More v. The Bombay Housing Board (1954 SCR 572) uph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public property and premises and occupiers of private property and that it is in the interest of public that speedy recovery of rents and speedy eviction of unauthorised occupiers is made possible through the instrument mentality of a speedier procedure. However, they referred to the decisions of this Court in State of West Bengal v..Anwar Ali Sarkar (1952 SCR 284), Suraj Mall Mohta v. A. V. Visanatha Sastri (1965 1 SCR 448), Shree Meenakshi Mills Ltd. Madural v. A. V. Visvanatha Sastri (1955 1 SCR 787) and Banarsi Das v. Cane Commissioner, U.P. (1963 Supp. 2 SCR 760 : AIR 1963 SC 1417) and concluded that the principle which emerged from these decisions was that discrimination would result if there are two available procedures, one more drastic or prejudicial to the party concerned than the other which can be applied at the arbitrary will of the authority. They thought that as s. 5 conferred an additional remedy over and above the remedy by way of suit leaving it to the unguided discretion of the Collector to resort to one or the other by picking and choosing some only of those in occupation of public properties and premises for the application of the more drastic procedure under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in M. Begum v. State (AIR 1971 of 382) and Meharunnissa Begum v. State of Andhra Pradesh (1970-1 Andh. LT 88) and the Patna High Court in Bhartiya Hotel v. Union of India (AIR 1968 Pat. 476). The decision of the Patna High Court is one of the cases which was considered along with Hari Singh's case. It is rather interesting that this attack based on Art. 14 of the Constitution should have led to the apparently more onerous and harsher procedure becoming the rule, the resort to the ordinary Civil Court being taken away altogether. It is difficult to imagine who benefits by resort to the ordi- nary Civil Courts being barred. One finds it difficult to reconcile oneself to the position that the mere possibility of resort to the Civil Court should make invalid a procedure which would otherwise be valid. It can very well be argued that as long as a procedure does not by itself violate either Art. 19 or Art. 14 and is thus constitutionally valid, the fact that procedure is more onerous and harsher than the procedure in the ordinary civil courts, should not make that procedure void merely because the authority competent to take action can resort to that procedure in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some crimes of murder,. arson, loot and rape committed on a large scale during communal riots in particular localities and are they not really different from a case of a stray murder, arson, loot or rape in another district which may not be affected by any communal upheaval ? Do not the existence of the communal riots and the concomitant crimes committed on a large scale call for prompt and speedier trial in the very interest and safety of the community ? May not political murders or crimes against the State or a class of the community, e.g., women, assume such proportions as would be sufficient to constitute them into a special class of offences requiring special treatment ? Do not these special circumstances add a peculiar quality to these offences or classes of offences or classes of cases which distinguish them from stray cases of similar crime s and is it not reasonable and even necessary to arm the State with power to classify them into a separate group and deal with them promptly ? I have no doubt in my mind that the surrounding circumstances and the special features I have mentioned above will furnish a very cogent and reasonable basis of classification, for it is obvious t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11 of the Ordinance there under consideration was exactly in the same terms as s. 5(1) of the West Bengal Special Court Act. The only difference between the two was that the Saurashtra Ordinance was purported to have been passed to provide for public safety, maintenance of public order and preservation of peace and tranquility in the State of Saurashtra. However, an affidavit was filed on behalf of the state giving facts and figures relating to an increasing number of incidents of looting, robbery, dacoity, nose-cutting and murder by marauding gangs of dacoits in certain areas of the state and these details were held to support the claim that the security of the state and public peace were jeopardised and that it became impossible to deal with the offences that were committed in different places expeditiously. The affidavit also stated that the areas specified in the notification were the main zones of the activities of the dacoits. The impugned Ordinance having thus been passed to combat the increasing tempo of certain types of regional crime, the two-fold classification on the lines of type and territory adopted in the impugned Ordinance was held reasonable and valid and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be noticed that as in Anwar A1i Sarkar's case in this case also the ordinary law under the Indian Income-tax Act and the extraordinary procedure under the Taxation of Income (Investigation Commission) Act covered the same class of people and there is no indication as to why certain cases should be sent to the Commission and certain cases be dealt with by, the regular Income-tax authorities. But here again it is interesting to note the observation but the overall picture is that though under the Indian Income-tax Act the same officer who first arrives at a tentative conclusion hears and decides the case, his decision is not fin is subject to appeal, while under the provisions of sub-section (4) of section 5 of the decision of the Commission tentatively arrived at in the absence of the assessee becomes final when taken in his presence, and that makes all the difference between the two procedures. If there was a provision for reviewing the conclusions of the Investigation Commission when acting both as investigators and judges, there might not have been such substantial discrimination in the two procedures as would bring the case within article 14; but as pointed out above, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerning whom definite information came into the possession of the Income-tax Officer and in consequence of which the Income-tax Officer discovered that the income of those persons had escaped or been under-assessed or assessed at too low a rate or had been the subject of excessive relief, and the, class of persons envisaged by S. 47(1) was a definite class about which there was definite information leading to discovery within 8 years or 4 years as the case may be of definite item or items of income which had escaped assessment. On the other hand under S. 5 ( 1) of the Travancore Act XIV of 1124 the class of persons sought to be reached comprised only those persons about whom there was no definite in formation and no discovery of any definite item or items of income which escaped taxation but about whom the Government had only prima facie reason to believe that they had evaded payment of tax to a substantial amount. Further, it was definitely limited to the evasion of payment of taxation on income made during the war period, whereas s. 47(1) of the Travancore Act XXIII of 1121 was not confined to escapement from assessment of income-tax made during the war period. It was, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be held on the face of it to be discriminatory irrespective of the way in which it is applied. In Kedar Nath Bajoria v. The State of West Bengal (1954 SCR 30) the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 was under consideration. The Act provided for special procedure for the trial of certain offences. It was entitled an Act to provide for the more speedy trial and more effective punishment of certain offences. These offences were set out in the Schedule to the Act. The Act empowered the Provincial Government to constitute Special Courts of criminal jurisdiction for specified areas and to appoint Special Judges to preside over such courts. It was observed that : The vice of discrimination, it is said, consists in the unguided and unrestricted power of singling out for different treatment one among a class of persons ail of whom are similarly situated and circumstanced, be that class large or small. The argument overlooks the distinction --L131Supreme Court\75 between those cases where the legislature itself makes a complete classification of persons or things and applies to them the law which it enacts, and others where the legis- lature merely l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y which has been sought to be effectuated by the different provisions contained in the enactment. If special courts were considered necessary to cope with an abnormal situation, it cannot be said that the vesting of Authority in the State Government to select offences for trial by such courts is in ,any way unreasonable. We may now refer to the decision in Kangsari Haldar Anr. v. The State of West Bengal (1960 2 SCR 646). There the appellants were prosecuted for having committed offences under s. 120B read with ss. 302 and 438 of the Indian Penal Code before the tribunal constituted under the West Bengal Tribunals of Criminal Jurisdiction Act, 1952. A notification issued under that Act declared certain areas to be a disturbed area within a specified period, and the case against the appellants was in respect of their activities in that area and during that period. It was held that the classification made by the impugned Act is rational and the differentia by which offenders are classified has a rational relation with the object of the Act to provide for the speedy trial of the offences specified in the Schedule to the Act. It also dealt with certain other offences not specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act is rational and the differentiation on which the offenders included within the Act are treated as a class as distinguished from other offenders has a rational nexus or relation with the object of the Act and the policy underlying it. Therefore, it would be difficult to accede to the argument that the Act violates Art. 14 of the Constitution. The Court pointed out that the majority decision in Anwar All Sarkar's case was based on two principal considerations that, having regard to the bald statement made in the preamble about the need of speedier trials, it was difficult to sustain the classification made by s. 5(1), and that the discretion left to the executive was unfettered and for its exercise no guidance was given by the statute. It was pointed out that in the Saurashtra case the majority took the view that the preamble to the Act gave a clear indication about the policy underlying the Act and the object which it intended to achieve, that the classification on which the impugned provisions were based was a rational classification, and that the differentia on which the classification was made had a rational nexus with the object and policy of the Act. They then ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Administrator for the Union Territory of Delhi (1962 2 SCR 125) section 19 of the Slum Areas (Improvement and Clearance) Act, 1956, which provided that any decree obtained for the eviction of a tenant in respect of buildings in areas declared slum areas could not be executed without the, permission of ,the competent authority , was held not obnoxious to the equal protection of law on the ground that there was enough guidance to the competent authority in the use of his discretion under s. 19(1) of the Act. It was urged before this Court that s. 19(3) of the Slum Areas Act vested an unguided, unfettered, and uncontrolled power in an executive officer to withhold permission to execute a decree which the petitioner had obtained after satisfying the reasonable requirements of the law as enacted in the Rent Control Act and thus offends Art. 14. In considering this argument the Court referred to the summary of the decisions of this Court laying down the proper construction of Art. 14 rendered up to 1959, made by Das, C.J., in Ramakrishna Dalmia v. Justice Tendolkar (1959 SCR 279), and made its own summary on slightly different lines. of them 2 and 4 are important: 1......... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the ground not so much that it is in violation of the equal protection of the laws guaranteed by Art. 14, because exconcessis that was not permitted by the statute but on the ground of the same being ultra vires as not being sanctioned or authorized by the enactment itself. Though the Court then went into the question whether there was any guidance found or principles laid for the authorities' guidance in the Act, and upheld its validity, the fourth proposition is very important. In the present cases also affidavits have been filed by the officers stat- ing the purposes for which those provisions were enacted. The very policy and the purpose of the enactments clearly make it apparent that the legislature intended to make them applicable to a special class (1) the-property belonging to the Government, and (2) property belonging to the Bombay Municipal Corporation and provide for a speedy method of recovering those properties. To summarise: Where a statute providing for a more drastic procedure different from the ordinary procedure covers the whole field covered by the ordinary procedure, as in Anwar Ali Sarkar's case and Suraj Mall Mehta's case without an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to take into account normal human behaviour and not behaviour which is abnormal. It is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account. This is not one of those cases where discrimination is writ large on the face of the statute. Discrimination may be possible but is very improbable. And if there is discrimination in actual practice this Court is not powerless. Furthermore, the fact that the Legislature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorised occupants of Government and Corporation property and provided a special speedy procedure therefore is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We, therefore, find ourselves unable to agree with the majority in the Northern India Caterers' case'. We should add that the basis of that decision is that section 5 of the Act enables the Collector to discriminate against some by exercising his power under section 5 and take proceedings by way of suit against others. In proceeding on that basis the majority made an obvious mistake. Under section 4 of the Act 'if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay, or to' a District Judge in the districts who has got to deal with the matter as expeditiously as possible, also a sufficient safeguard as was recognised in Suraj Mall Mehta's case. The main diffe- rence between the procedure before an ordinary Civil Court and the executive authorities under these two Acts is that in one case it will be decided by a judicial officer trained in law and it might also be that more than one appeal- is available. As against that there is only one appeal available in the other but it is also open to the aggrieved party to resort to the High Court under the provisions of Art. 226 and Art. 227 of the Constitution. This is no less effective than the provision for a second appeal. On the whole, considering the object with which these special procedures were enacted by the legislature we would not be prepared to hold that the difference between the two procedures is so unconscionable as to attract the vice of discrimination. After all, Art. 14 does not demand a fanatical approach. We, therefore, hold that neither the provisions of Chapter V-A of the Bombay Municipal Corporation Act nor the provisions of the Bombay Government Premises (Eviction) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... really and substantially more drastic and prejudicial than the other and that we should avoid dogmatic and finical approach when dealing with life's manifold realities. I must also utter a note of caution against the tendency to lightly overrule the view expressed in previous decisions of the Court. It may be that. there is a feeling entertained by certain schools of thought, to quote the words of Cardozo, that the precedents have turned upon us and are engulfing and annihilating us-engulfing and annihilating the very devotees that worshipped at their shrine. So the air is full of new cults that disavow the ancient faiths. Some of them tell us that instead. of seeking certainty in the word, the outward sign, we are to seek for something deeper, a certainty relative and temporary, a writing on the sands to be effaced by the advancing tides. Some of them even go so far as to adjure us to give over the vain quest, to purge ourselves of those yearnings for the unattainable ideal, and to be content with an empiricism that is untroubled by strivings for the absolute. . (see page 9 Selected Writings of Benjamin Nathan Cardozo by Margaret E. Hall). At the same time, it has to be b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es as a result of the impact of new ideas and developments in different fields. of life. Law, if it has to satisfy human needs and to meet the problems, of life, must adapt itself to cope with new situations. Nobody is so gifted with foresight that he can divine all possible human events in advance and prescribe proper rules for each of them. There are, however, certain verities which are of the essence of the rule of law and no law can afford to do away with them. At the same time it has to be recognized that there is a continuing process of the growth of law and one can retard it only at the risk of alienating law from life itself. There should not be much hesitation to abandon an untenable position when the rule to be discarded was in its origin the product of institutions or conditions which have gained a new significance or development with the progress of years. It sometimes happens that the rule of law which grew up in remote generations may in the fulness of experience be found to serve another generation badly. The Court cannot allow itself to be tied down by and become captive of a view which in the light of the subsequent experience has been found to be ,patently erroneo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave had to do this sometimes in the field of constitutional law. (see page 170 and 171 Selected Writings of Benjamin Nathan Cardozo by Margaret E. Hall). So far as the question is concerned about the reversal of the previous view of this Court, such reversal should be resorted to only in specified contingencies. It may perhaps be laid down as a broad proposition that a view which has been accepted for a long period of time should not be disturbed unless the Court can say positively that it was wrong or unreasonable or that it is productive of public hardship or inconvenience. Question about the overruling of its previous decisions was considered by this Court in the case of Bengal Immunity Co. Ltd. v. The State of Bihar Ors.( [1955] 2 S.C.R. 603.) Das Acting CJ. after quoting from American, Australian and Privy Council decisions observed as under Reference is made to the doctrine of finality of judicial decisions and it is pressed upon us that we should not reverse our previous decision except in cases where a material pro- vision of law has been overlooked or where the decision has proceeded upon the mistaken assumption of the continuance of a repealed or expired statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the majority in Northern India Caterers case((1967) 3 S.C.R. 399.). It may be that the view expressed by the minority in that case appears to be preferable, but that by itself would not show that the decision arrived at in the Northern India Caterers case was plainly erroneous and as such requires overruling. It also cannot be said that aforesaid decision has given rise to public inconvenience and hardship. The legislature has in view of the decision in Northern India Caterers case made necessary amendments in many of the enactments so as to bar the jurisdiction of the civil courts in matters dealt with by those enactments. No constitutional amendment was required to set right the difficulty experienced ,as a result of the decision of this Court in Northern India Caterers case. I am, therefore, of the view that it is not necessary for the purpose ,,of this case to overrule the majority decision in the case of Northern India Caterers. BHAGWATI, J., These appeals and writ petitions challenge the ,constitutional validity of Ch. VA of the Bombay Municipal Corporation Act, 1888 (hereinafter referred to as the Municipal Act) and the Bombay Government Premises (Eviction) Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) that any corporation premises in the occupation of any person are required by the corporation in the public interest. the Commissioner may notwithstanding anything contained in any law for the time being in force, by notice-order that person, as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the notice. Before, however, an order can be made by the Municipal Commissioner against any person under subs. (1) of s. 105B, sub-s. (2) of that section says that the Municipal Commissioner shall issue a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. This notice is required to specify the grounds on which the order of eviction is proposed to be made and it is intended to give an opportunity to all persons who are or may be in occupation of or claim interest in the Corporation premises to show cause against the proposed order of eviction. Sub-s. (2) of s. 105B then proceeds to say that the person concerned may file a written statement and produce documents in support of his case and at the inquiry before the Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry under the Act, have the same powers as are vested in the civil Court.under the Code of Civil Procedure, when trying a suit, in respect of (a) summoning and enforcing attendance of any person and examining him on oath, (b) requiring the discovery and production of documents and (c) any other matter which may be prescribed by Regulations made under 3 3 s. 105H. This section clearly contemplates that the Municipal Commissioner, while holding an inquiry, can order discovery and production of documents and also examine witness on oath in the same manner as a civil court. Every order of the Municipal Commissioner under s. 105B or s. 105C is made appealable under s. 105F and the appeal lies to the Principal Judge of the City Civil Court of Bombay or such of their judicial officer in Greater Bombay of not less than ten years standing as the Principal Judge may designate in that behalf. The appellate officer is given power to stay the enforcement of the order of the Municipal Commissioner which is impugned in the appeal, for such period and on such conditions as he deems tit and the appeal is to be disposed of by him as expeditiously as possible. Sec. 105G gives finality to the order mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... introduction, of section 8A. Having set out the relevant provisions of the two statutes impugned in these cases, we may now turn to examine the grounds on which they are challenged. But before we do so, we may clear the ground by pointing out-and this is important to remember in the context of an argument advanced on behalf of the respondents which we shall have occasion to examine a little later-that the special procedure for determining the liability to eviction and securing eviction of persons found liable to be so evicted laid down in the two statutes has not been assailed before us on the ground that it is unreasonable and imposes unjustified restriction on the fundamental right to hold property guaranteed under Art. 19(1) (f). It was faintly argued before us that the impugned provisions of these two statutes by providing special procedure for eviction of occupants of Municipal or Government premises have made unjust discrimination between occupants of other premises and are on that account viola- tive of Art. 14. But there is no substance in this challenge. It is not uncommon to find legislation according special treatment to Government or other public bodies and such leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e object of the Legislation, and is not a mere arbitrary selection. The classification to be valid and permissible must satisfy a double test; 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 object sought to be achieved by the statute. It was on application of this double test that in the above-mentioned decision that the law making special provision for Government or other public bodies was held to be constitutionally valid. The application of the same double test, however, resulted in the invalidation of the exemption of debts due to the Central Government or the Government of any State or a local authority from the operation of the Rajasthan Jagirdar's Debt Reduction.Act which provided for scaling down of debts of Jagirdars whose Jagir lands had been resumed by the Government. Vide State of Rajasthan v. Mukanchand Ors.( [1964] 6 S.C.R. 903.) It will thus be seen that where a statute, according special treatment to Government or other public bodies, is challenged on the ground of discrimination, the validity of the statute has to be judged by applyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id basis of differentiation between occupiers of Municipal premises and those of other premises, and there is a rational relation and nexus between the basis of the classification and the object of the legislation. The constitutional validity of the impugned provisions in the two statutes cannot, in the circumstances, be assailed on the ground that they make unjust discrimination between occupiers of Government or Municipal premises and occupiers of other premises. The main ground of attack against the constitutionality of the impugned provisions, however, was that even if occupiers of Government or Municipal premises form a class by themselves as against occupiers of private, owned properties and such classification is justified on the ground that they require differential treatment in public interest, the impugned provisions discriminate amongst occupiers of Government or Municipal premises inter se and are, there- fore, violative of the equality clause. The petitioners- appellants contended that the special procedure for determining the liability to eviction laid down in the impugned provisions is more drastic and prejudicial than the ordinary procedure of a civil suit and bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that even amongst occupants of public premises inter se, there was discrimination, inasmuch as the special procedure set out in the Act was more drastic and prejudicial than the ordinary procedure of a civil suit and it was left to the arbitrary and unfettered discretion of the Government to adopt the special procedure against some and not against the rest. So far as the first ground is concerned, it was clearly and in so many terms repelled by Bachawat, J., in the minority judgment, and though the majority, speaking through Shelat, J., did not finally pronounce upon the validity of this ground, they pointed out that there was great force in it as it was possible to say that there was intelligible differentia between occupiers of public premises and other occupiers and the differentia had rational nexus with the object of the legislation. It was the second ground which evoked difference of opinion amongst the learned Judges, the majority, speaking through Shelat, J., taking the view that this ground was well founded, while the minority, speaking through Bachawat, J., holding that it was not. Shelat, J., speaking on behalf of the majority, referred to the earlier decisions of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... free choice of remedies, proceedings and tribunals for the redress of his grievances . The learned Judge observed that 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. 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 , and added : 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 . The learned Judge concluded by saying that Art. 14 does not require a fanatical approach to the problem of equality before law and upheld the validity of the Act. We find it difficult to accept the reasoning of the majority as well as the minority decisions. Neither reasoning commends itself to us. We shall presently explain our standpoint in--relation to this problem, which arises when there are two procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Mr. Justice Pitney said in this case :.......... it is thoroughly settled by our previous decisions that...... 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 . But this observation must be read in the, context of the question which arose for decision in that case and if it is so read, it would be clear that what Mr. Justice Pitney had in mind when he made this observation was the existence of several rights to relief arising out of the same act and not the existence of several remedies in enforcement of a single right to relief. Under the laws of Arizona, an employee injured in the course of his employment had open to him three avenues of redress, any one of which he might pursue according to the facts of his case, namely, (1) the common law liability relieved of the fellow-servant defense, and in which the defenses of contributory negligence and assumption of risk are questions to be left to the jury; (2) the Employers' Liability Law, which applies to hazardous occupations where the injury or death is not caused by his own negligence; and (3) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, two alternative procedures are available, one more drastic and prejudicial than the other and no guiding, policy or principle, is laid down by the legislature as to when one or the other procedure shall be followed so that either procedure may be indiscriminately adopted against persons similarly situated, the law providing for the more drastic and prejudicial procedure would be violative of the equal protection clause. That was laid down as far back as 1952 in the celebrated case of State of West Bengal v. Anwar Ali Sarkar (supra) which was decided ,by a Bench.of seven judges. Section 5(1) of West Bengal Act 10 of 1950 was impeached in that case and the majority decision held that section to be wholly invalid. The preamble to the Act merely stated that it was expedient to provide for speedy trial of certain offences and section 5(1) empowered a special Court to try such offences or class of offences or cases or class of cases as the State Government may by general or special order in writing direct. The majority cf the judges took the view that the procedure laid down by the Act for trial by the special court varied substantially from that laid down for the trial of offences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame Bench of seven Judges which decided Anwar Ali Sarkar's (supra) case. Section II of the Saurashtra Ordinance was in the same terms as section 5(1) of the West Bengal Act and the constitutional objection against the validity of that section was also the same, namely, that it committed to the absolute and unrestricted discretion of the executive Government the power to refer cases to be tried by the special procedure laid down in the Saurashtra Ordinance and the section was, therefore, discriminatory, and void. But this time the conclusion reached by the majority judges was different. The decision in Anwar Ali Sarkar's case (supra) was distinguished by three of the learned judges who were parties to the majority decision in that case. Fazl Ali, J., observed : The main objection to the West Bengal Act was that it permitted discrimination without reason or without any rational basis. . . The mere mention of 'speedier trial' as the object of the Act did not ,cure the defect', as the expression afforded no help in determining what cases required speedier trial. . . The clear recital (in the Saurashtra Ordinance) cf a definite objective furnishes a tangible and rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidation of section 5(1) of the West Bengal Act that the validity of section 11 of the Saurashtra Ordinance was sustained by them. The principle which was applied by the majority judges in Anwar Ali Sarkar's case and Kathi Raning Rawat's case([1952] S.C.R. 435) was the same and it was stated in these terms by Patanjali Sastri, C.J., delivering the majority judgment of the Court in Kedar Nath Bajoria.v. State of West Bengal([1954] S.C.R. 30) : if the impugned legislation indicates the policy which inspired it and the object which it seeks to attain, the mere fact that the legislation does not itself make a complete and precise classification of the persons or things to which it is to be applied, but leaves the selective application of the law to be made by the executive authority in accordance with the standard indicated or the underlying policy and object disclosed is not a sufficient ground for condemning it as arbitrary, and therefore, obnoxious to article 14. In the case of such a statute it could make no difference in principle whether the discretion which is entrusted to the executive Government is to make a selection of individual cases or of offences, classes of off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the ambit of section 34 of the Indian Income Tax Act , and it was, therefore, violative of article 14. This Court compared the provisions of section 5(4) of the Act with those of section 34(1) of the Indian Income Tax Act and came to the conclusion that section 5(4) dealt with the same class of persons who fell within section 34 of the Indian Income Tax Act and were dealt with in sub-section (1) of that section, and whose income could be caught by proceeding under that section. There was nothing uncommon, observed this Court, either in properties or in characteristics between persons who had been discovered as evaders of income tax during an investigation conducted under section 5 (1) of the Act and those who had been discovered by the Income Tax Officer to have evaded income tax. Both these kinds of persons had common properties and characteristics, and therefore, required equal treatment but some of them would, at the choice of the Co mission, be dealt with under the more drastic and prejudicial procedure for assessment laid down by the Act, while the others would be proceeded against under the ordinary procedure set out in section 34 of the Indian Income Tax Act. This was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, there is nothing uncommon either in properties or in characteristics between us and those evaders of income-tax who are to be discovered by the Income-tax Officer under the provisions of amended section 34. In our judgment no satisfactory answer can be returned to this query because the field on which amended section 34 operates now includes the strip of territory which, previously was occupied by section 5(1) of Act of 1947 and two, substantially different laws of procedure, one being more prejudicial to the Assessee than the other, cannot be allowed to operate on the same field in view of the guarantee of article 14 of the Constitution. The same line of reasoning prevailed with this Court in M. Ct. Muthiah Ors. v. The Commissioner of Income-tax, Madras Anr.( [1955] 2 S.C.R. 1247.) in holding that_though section 5(1) of the Taxation on Income (Investigation Commission) Act, 1947 was valid when section 34(1) of the Indian Income-tax Act stood in its unamended form, it. became void and unenforceable on the amendment of section 34(1) by the Indian Income-tax and Business Profit Tax (Amendment) Act, 1948 because then section 34(1), as amended, operated on the same field as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and prejudicial than the ordinary procedure. principle as well as precedent, clearly appreciated, would remove the mist of misunderstanding surrounding this facet of constitutional quality. The principle which emerges from the decisions of this Court-and we have already discussed some of the important decisions-is that where persons similarly circumstanced are exposed to the procedures for determination of liability, one being more drastic and prejudicial than. the other and no guidelines are provided by the legislature as to when one procedure shall be followed or the other. to that one person may be subjected to the more drastic and prejudicial procedure while the other may be subjected to the more favourable one, without there being any valid justification for distinguishing between the two, the law providing for the more drastic and prejudicial procedure is liable to be struck down as discriminatory. It is not necessary, in order to incur the condemnation of the equality clause, that the initiation of both procedures should be left to the arbitrary discretion of one and the same, authority. What the equality clause striker,, at is discrimination, howsoever it results. It is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uarantee of equality and to rob it of its substance by a subtle and well-manipulated statutory provision vesting the more drastic and prejudicial procedure in a different organ of the Government or public authority than the one in whose hands lies the power to, initiate the ordinary procedure. That would be disastrous. We must look at the substance and not the mere form. In fact in Suraj Mull Mohta's case (supra) and Shree Meenakshi Mills case (supra) the special procedure under the Income Tax Investigation Commission Act could be initiated by the Central Government while the ordinary procedure under the Income Tax Act could be initiated by an altogether different authority, namely, the income Tax Officer, and yet it was held that section 5, sub-section (4) in one case and section 5, sub-.section (1) in the other were violative of article 14 since the two procedures, one substantially more drastic and judicial than the other. operated in the same field without any guideline being provided by the legislature as to when one or the other shall be adopted. Moresoever, it is not correct to say that it is the Municipal Commissioner who would initiate the special procedure set out in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posing unreasonable restriction under article 19(1) (f). it would also be relevant if the special procedure were assailed as being in violation of the due process clause in a country like the United States. But where the attack is under article 14, what we have to consider is whether there is equality before law, and there the question that has to be asked and answered is whether the two procedures are so disparate substantially and qualitatively as to lead to unequal treatment. Equality before law cannot be denied to a person by telling him It is true that you are being treated differently from others who are similarly situate with you and the procedure to which you are subjected is definitely more drastic and prejudicial as compared to the procedure to which others are subjected, but you should not complain because the procedure adopted against you is quite fair . The question which such a person would legitimately ask is : why am I being dealt with under the more drastic and prejudicial procedure when others, similarly situate as myself are dealt with under the ordinary procedure which is less drastic and onerous ? There would have to be a rational answer to this query ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinary procedure of a civil suit ? The majority decision in Norther Indian Caterers Ltd. v. State of Punjab([1967] 3 S.C.R. 399 Ltd.) would seem to suggest that the impugned provisions do suffer from this vice but that is not correct. There is a basic fallacy from which the majority decision in Northern India Caterers v. State of Punjab ([1967] 3 S.C.R. 399) suffers and that is that it overlooks the distinction between those cam where the legislature itself makes a complete classification of persons or things and applies to them the law which it enacts and others where the legislature merely lays down the law to be applied to persons or things answering to a given description or processing certain common characteristics and having regard to the impossibility of making a precise and complete classification, leaves it to an administrative authority to make a selective application of the law to or things within the defined group, while laying down standard or at least indicating clear terms the underlying policy and purpose, in accordance with, and in fulfillment of which the administrative authority is expected to select the persons or things to be brought within the operation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner or Government is not compellable to adopt the special procedure set out in the impugned provisions against all occupiers of Municipal or Government premises, but is vested with a discretion in the matter, the in offend against article 14. What we have to see is Whether there is any standard indicated or policy and purpose disclosed in the impugned provisions in accordance with and in fulfillment of which the Municipal Corporation or Municipal Commissioner or Government is expected to select occupies of Municipal or Government premises for being proceeded against under the special procedure. If the discretion conferred on the Municipal Corporation or Municipal Commissioner or Government to make selective application of the special procedure is guided and controlled discretion, the impugned provisions would be, free from ,the vice of discrimination. It is inevitable that when a special procedure is being prescribed for a defined class of persons such as occupiers of Municipal or Government premises, discretion, of course guided and controlled by the underlying policy and purpose of the legislature, must necessarily be left in the administrative authority to select occupier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the specified categories for allotment to the special court to be tried under the special procedure, while other offenders of the same category would be left to be tried by ordinary courts. It was urged that section 4(1) permitted the Provincial Government to make a discriminatory choice amongst persons charged with the same offence or offences for trial by special court and such absolute and unguided power of selection, though it had to be exercised within,the class or classes of offences mentioned in the Schedule, was discriminatory.This contention urged on behalf of the petitioners was negatived and Patanjali Sastri, C.J., delivering majority judgment of the Court pointed out The argument overlooks the distinction between those cases where, the legislature itself makes a complete classification of persons or things and applies to them the law which it enacts, and other where the legislature merely lays down the law to be applied to persons or things answering to a given description or exhibiting certain common characteristics, but being unable to make a precise and complete classification, leaves it to an administrative to make a selective application of the law to persons or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian Penal Code are among the offences included in the Schedule to the Act, but they are triable in a summary way under section 260 of the Criminal Procedure Code where the value of the property concerned does not exceed fifty rupees. It would indeed be odd if the Government were to be compelled to allot such trivial cases to a Special Court to be tried as a warrant case with an appeal to the High Court in case of conviction. The gravity of the particular clime, the advantage to be derived by the State by recoupment of its loss, and other like considerations may have to be weighed before allotting a case to the Special Court which is required to impose a compensatory sentence of fine on every offender tried and convicted by it. It seems reasonable, if misuse of the special machinery provided for the more effective punishment of certain classes of offenders is to be avoided, that some competent authority should be invested with the power to make a selection of the cases which should be dealt with under the special Act. The other decision to which we may refer in this connection is A Thangal Kunju Musaliar v. M. Venkitachalam Potti.( (1955) 2 S.C.R. 1196) There the constitutional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n would not render section 5 ( 1 ) discriminatory and void...... The selection of the cases of persons falling within that category by the Government cannot be challenged as discriminatory for the simple reason that it is not left to the unguided or the unconditional discretion of the Government. The, selection is guided by the very objective which is set out in the terms of section 5 (1) itself and the attainment of that object controls the discretion which is vested in the Government and guides the Government in making the necessary selection of cases of persons to be referred for investigation by the Commission. It cannot, therefore, be disputed that there is a valid basis of classification to be found in section 5(1) of the Act. These passages from the decisions in Kedarnath Bajoria's case (supra) and A. Thangal Kunju Musaliar's case (supra) provide the most convincing refutation of the contention of the petitioners/appellants based on discrimination. It may be pointed out that the aforesaid decisions in Kedar Nath Bajoria v. State of West Bengal (supra) and A. Thangal Kunju Musaliar v. M. Venkitachalam Potti (supra) were not brought to the attention of the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejection of over-refined distinctions. The whole dimension of protection against discrimination in the processor sphere relates to real and substantial disparities in procedures. What is necessary to attract the inhibition of article 14 is that there must be substantial and qualitative differences between the two procedures so that one is really and substantially more drastic and prejudicial than the other and not mere superfine differences which in this imperfect world of fallible human instruments are bound to exist when two procedures are prescribed. We should avoid dogmatic and finish approach when handling life's flexible realities. We may also observe that there is no magic formula by which it can be said that one procedure is substantially more drastic and onerous than the other. It does not follow that merely because one procedure provides the forum of a civil court while the other provides the forum of an administrative tribunal, the latter is necessarily more ,drastic and onerous than the frontier. We cannot accept such a bald proposition. Indeed, not infrequently, the poor man gets lost when he is drawn into a regular suit in a civil court which, it is well known, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely and dispassionately, without any preconceived notion or prejudice against it, and find out whether the special machinery is really and substantially more drastic and prejudicial than the age old machinery of Civil court. When we say this we do not wish to underscore the high qualities which are, the inalienable attributes of administration of justice by civil courts, namely, detachment and impartiality, objectivity of approach, sensitivity and regard for natural justice and Skill and expertise in sifting of evidence and interpretation and application of the law. But we do wish to point out that the machinery of an administrative tribunal is not necessarily and invariably more drastic and onerous than that of a civil court. The two procedures would have to be compared objectively and dispassionately without any predilection or prejudice to determine whether one is really and substantially more drastic and prejudicial than the other. If we examine the question before us in the light of these general observations, it will be apparent that the special procedure set out in Chapter VA of the Municipal Act is not substantially more drastic and prejudicial than the ordinary. proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision given by him has resulted in grave miscarriage of justice, it is always open to the aggrieved party to bring it up before the High Court for examination under article 226 or article 227. The ultimate decision is, therefore, by a judicial officer trained in the art and skill of law and not by an executive officer. It is difficult to see bow, in the context of the need for speedy and expeditious recovery of public premises for utilisation for important public uses, where dilatoriness of the procedure may defeat the very object of recovery, the special procedure set out in Chapter VA of the Municipal Act-and this applies equally to the special procedure set out in the Government Premises Eviction Act- can be regarded as really and substantially more drastic and prejudicial than the ordinary procedure of a civil suit. We do not think that the two procedures are so substantially and qualitatively disparate as to attract the vice of discrimination. The result is that all the appeals and writ petitions fail and are dismissed. The petitioners in the writ petitions will pay one set of costs. So far as the appeals are concerned, they will be posted for final disposal before a D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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