TMI Blog1972 (5) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The 1958 Act was amended in 1968Z 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 a- rears of rent payable under section 7 ( 1 ) or damages payable under section 7 (2) or costs ,awarded under section 9(5) of the Act. The appellants raised the contention that the amendment effected by section 1 OE of the Act was not retrospective and therefore the proceedings forming subject matter of the appeals were not saved by the amendment. 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply 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 contention. In the appeal filed by Bhartiya Hotel and others the appellants raised the Principal contention that the 1958 Art violated Article 14 of the, Constitution. The High Court referred to the decision of this Court in Northern India Caterers Private Ltd, Anr. v. State of Punjab Anr.(1). The High Court hold that the decision ,of this Court in Northern India Caterers Private Ltd,(1) case 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, In this context the 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 constitutionality of the 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayable under section 7(2) or the costs under section 9(5). The scheme of the 1971 Act is that it confers power on Estate Officer to issue notice to persons who are in unauthorised occupation of any public premises to show cause why an order of eviction should not be made. Unathorised occupation' under the Act in relation to any public premises means the occupation 'by any person of the public premises without authority for such occupation and includes the cotinuance in occupation by any person of the Public premises after the authority whether by way of grant or any other mode of transfer) under which he, was allowed to occupy the promises has expired or has been determine for any reason whatsoever. Premises' are defined to mean any land or any building or part of a building and includes the garden, grounds and outhouses, appertaining to such building or part of a building and any fttting affixed to such building or part of a building for the more beneficial enjoyment thereof. 'Public premises' means any premise,; belonging to or taken on lease or requisitioned by, or on behalf of the Central Government as enumerated in section 2 (e) of the Act. The notice. t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drastic and 'more prejudicial remedy' under the 1959 Act. Consequently, section 5 was held to violate Artcle 14 of the Constitution. 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 etrospective 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 tile 1971 Act. In the third place. the 1971 Act by section 15 provided bar of jurisdiction of courts in respect of eviction of any person who is in unauthorised occupation of any public promises. It. therefore, follows that under the provisions of the 1 971 Act which had retrospective oneration from 16 Sentember, 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 (1) [19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the earlier Act. The West Ramnad Electric Distribution Co. Ltd. challenged the 1954 Act. It was contended that the validation section was ineffectual and inoperative. The submission in West Ramnad Electric Distribution Co. Ltd. ( 2 ) case was that the notification in the year 1951 was invalid and inoperative because it contravened Article 31 of the Constitution. It was therefore contended that by reason of the decision of this Court that the Act of 1949, was invalid, the notification was not supported by any authority of any pre-existing law. This Court did not accept that contention. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to achieve the purpose of validation. The reason is this. The 1955 Act was found to be violative of Article 31(2) of the Constitution as it stood before the Constitution (Fourth Amendment) Act, 1955, because it did not ensure payment of a just equivalent of the land appropriated. The 1955 Act was also found to be violative of Article 14 of the Constitution. There was discrimination between owners of land similarly situated by the mere accident of some land being required for the purposes mentioned in the 1955 Act and some land being required for other purposes. The validation clause of the 1960 Act was held by this Court to be totally ineffective. The 1955 Act was invalid. The 1960 Act provided for validating acquisitions under the 1955 Act. This Court said that if the 1955 Act was invalid the deemed acquisition under the 1960 Act was equally invalid. The ratio is that the 1960 Act had no power to enact that an acquisition under a constitutionally invalid Act was valid. The 1960 Act did not stand independent of the 1955 Act. The deeming provision of the 1960 Act was that land was deemed to be acquired under the 1955 Act. If the 1955 Act was unconstitutional the 1960 Act cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction was impeached on the ground that there were still two Acts which covered the same field but prescribed two different procedures. It was also said that the Acquisition Act was a more prejudicial procedure and was discriminatory. This Court found that the legislature retrospectively made a single law for the acquisition of these properties. It was contended that an acquisition hit by Article 14 or anything done previously could not be validated unless the vice of unreasonable classification was removed. The 1962 Validation Act was impeached on that ground. This Court did not accept the submission and said if two procedures exist and one is followed and the other discarded, there may in a given case be found discrimination. But the Legislature has still the competence to put out of action retrospectively one of the procedures leaving one procedure only available, namely, the one followed and thus to make disappear the discrimination. In this way a Validating Act can get over discrimination. Where, however, the legislative competence is not available, the discrimination that if there is legislative competence the legislature can put removed by a legislature having., power to cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether thelegislature possesses competence over the subject matter, and,secondly, whether by validation the legislature has removed thedefect which the courts had found in the previous law. 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 unconstitutional 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 1971 Act. It was contended that the word 'premises' in the Act would not apply to agricultural land. The word 'premises' is defined to mean any land. Any land will include agricultural land. There is nothin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. [1963] Supp. 1 S.C.R. 912. Sharma Rao Vs. The Union Territory of Pondicherry([1967] 2 S.C.R. 650); Deputy Commissioner Collector, Kamrup Ors. Vs. Durga Nath Sarma([1968] 1 S.C.R. 561), P. Bhooma Reddy Vs. State of Mysore Ors.( [1969]3 S.C.R. 14). I do not think that all the cases listed above really support the submissions made on behalf of the appellants. And, those from which learned Counsel for the appellants could derive some support for any proposition put forward by him do not really apply, for two broad reasons, to the position we have to consider in the cases before us : Firstly, this Court has not so far declared any part of the Public Premises (Eviction of Unauthorised Occupants) Act, 32 of 1958, to be a void piece of legislation, and, therefore, no question of applying Article 141 of the Constitution arose here before the High Courts. Secondly, the argument of the learned Counsel for the Appellants seems to me to rest entirely on the erroneous assumption that provisions of the Public Premises (Eviction of Unauthorised Occupants) Act 32 of 1958 were void for a contravention of Part III of the Constitution covered by Article 13 (2) of the Constitution, on the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... And, what the Act did not contain was still something outside the Act. The unconstitutionality of Section 5 of the Punjab Act thus really arose from matters extraneous to the Act. It is true that in Northern India Caterer's case (supra), it was held by this Court that Section 5 of the Punjab Act was 'void , but, it seems clear that this consequence followed from examining the more drastic statutory procedure in the context of ordinary procedural law. It am, therefore, inclined to interpret the majority view in that case as laying down nothing more than 'that, although the more drastic procedure may be otherwise valid, yet, it became merely incapable of adoption or unenforceable in the situation emerging from the totality of provisions of law considered there. I do not find that anything was held in- that case to justify the view that Section 5 of the Punjab Act was per se or ab initio void. This question was not discussed in Northern India Caterers' case (supra), because no method of validating a provision which could be assumed to be valid but which became void only in the context of other ordinary law of the land was under consideration there. The resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non est , and, therefore, it could not be deemed to be as good as action taken under the Public Premises (Eviction of Unauthorised Occupants) Act 40 of 1971. To accept this view would make the deeming provision meaningless. I think that the view which we have taken involves that the deeming provision would not cure illegality in any past action which may still be there when tested by the standards and the procedure provided by Act 40 of 1971. That is a logical and natural consequence of using the word deemed . The word purported was used only to describe or identify past action taken under a repealed Act and it had no effect beyond that. That action would now be deemed to have taken place under Act 40 of 1971. It has not even been contended before us that any action against the appellants is invalid tested by the provisions of Act 40 of 1971. The more fact that the procedure adopted under Act 32 of 1958 was attributable to a past enactment when that procedure, taken by itself, did not infringe a constitutional guarantee, did not make its shortcoming or deficiency incurable. The invalidity of that procedure, if any, could only result from the Operation or effect upon it of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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