TMI Blog1991 (2) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... The challenge is based upon Arts. 14 and 19(1)(f) and (g) of the Constitution of India. It is also contended that, having regard to Art, 254(2), the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter clled the Bombay Rent Act ) prevail over those of the Eviction Act, 1971. 2. It may be mentioned that it was also contended that Parliament had no legislative competence to pass the Eviction Act, 1971. That challenge already stands rejected. 3. The relevant provisions of the Eviction Act, 1971, are these : It extends to the whole of India. Premises , as defined by S. 2(c) mean any land or any building or part of a building. 4. Unauthorised occupation is defined by S. 2(g) to mean the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of public premises after the authority..... under which he was allowed to occupy the same has expired or has been determined for any reason whatsoever. 5. Sections 4 and 5 read thus : Section 4.(1) If the estate officer is of opinion that any persons are in unauthorised occupation of any public premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... publication under sub-sec. (1), which is later, the estate officer or any other officer duly authorised by the estate officer in his behalf may, after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary. 6. Section 8 vests in the Estate Officer, for the purpose of holding an inquiry under the Eviction Act, 1971, the same powers as are vested in civil courts under the Code of Civil Procedure when trying a suit in respect of the summoning and enforcing the attendance of any person, of examining him on oath and of requiring the discovery and production of documents. Under the provisions of S. 9 an appeal lies from every order of the Estate Officer in respect of any public premises. The appellate officer shall be the district Judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years standing as the district Judge may designate in this behalf. Under S. 10 the orders of the Estate Officer and the appellate officer are made final and cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of private property was based on justifiable reason and that such segregation had a rational nexus with the object and policy of the said Act. The majority judgment held 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 was 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. 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. In the minority judgment it was noted that the class of public premises to which the benefit of the said Act extended included premises belonging to the District Board, Municipal Committee, Notified Area Committee and Panchayat. It was there said, The classification had reasonable relation to the object of the Act and does not offend An. 14. Asimilar classification, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s provisions were considered in the light of those of the Delhi Rent Control Act, 1958, and the Slum Areas (Improvement) and Clearance Act, 1956. The Supreme Court said, So far as the Premises Act is concerned it operated in a very limited field in that it applies only to a limited nature of premises belonging only to particular sets of individuals, a particular set of juristic persons like companies, corporations or the Central Government. Thus, the Premises Act has a,very limited application. Secondly, the object of the Premises Act is to provide for eviction of unauthorised occupants from public premises by a summary procedure so that the premises may be available to the authorities mentioned in the Premises Act which constitute a class by themselves. That the authorities to which the Premises Act applies are a class by themselves is not disputed by the counsel for the appellant as even in the case of Northern India Caterers Pvt. Ltd. v. State of Punjab, such authorities were held to form a class and, therefore, immune from challenge on Art. 14 of the Constitution. Similarly, the summary procedure prescribed by the Premises Act is also not violative of Art. 14 as held by this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who led the arguments on behalf of the petitioners and appellant in these matters, submitted that in the Northern India Caterers case the Act had not been challenged on the ground that tenants of Government companies and corporations were being discriminated against by being denied the protection of a Rent Act available to the tenants of private landlords. In Maganlal Chagganlal's case the Supreme Court reconsidered its judgment in the Northern India Caterers' case. It was also relevant to note here that the authorities concerned in Maganlal ChagganlaPs case, viz., the Municipal Corporation and the Government, were exempt from the provisions of the Bombay Rent Act. Consequently, there was no question of sustaining a challenge such as that made here. In the Jain Ink case the contentions related to two Central Statutes and the conflict between them had been resolved on that basis. The statement that the object of theEviction Act, 1971, was to provide for eviction of unauthorised occupants of public premises by summary procedure so that the premises may be available to the parties mentioned therein which constitute a class by themselves was not a finding by the court but a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of a person to hold property was unreasonable. In other words, for the law before us to be regarded as valid it must also satisfy the requirements of Article 19(5) and that only thereafter can the property of a person be taken away. It is sufficient to say that though this Court may not have pronounced on this aspect of the matter we are bound by the actual decisions which categorically negative an attack based on the right guaranteed by Article 19(1)(f). The binding effect of a decision does not depend upon whether_a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was_ actually decided. That point has been specifically decided in the three decisions referred to above. The same principle was set out again by the Supreme Court inDelhi Cloth and General Mills Co. Ltd. v. Shambhu Nath Mukherji, . Counsel there submitted that in ah earlier decision in regard to the vires of S. 10 of the Industrial Disputes Act the Supreme Court had been required to consider the objection raised on the score of Article 14 on a ground which was different from the one he took. The Supreme Court was unable to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiable and had a rational nexus to the object of the statute. It then proceeded to hold that if the ordinary law of the land and the special law provided two different and alternative procedures, one more prejudicial than the other, discrimination must result if it was left to the will of the authority to exercise the more prejudicial ' against some and not against the rest. The minority judgment expressly held that Article 14 was not infringed. The majority judgment in Maganlal Chhaganlal's case overruled the view of the majority in the Northern India Caterers' case in so far as it held that there was hostile discrimination in the matter of adopting one of two available procedures of eviction. It read the majority judgment in the Northern India Caterers' case as having accepted the position that there was an intelligible differentia between the two classes of occupants, viz., the occupiers of public property and the occupiers of private property, and that it was in the interest of the public that speedy and expeditious recovery of possession from unauthorised occupiers was made possible through the instrumentality of a speedier procedure and this was not overruled. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was no fundamental right in the petitioners under Article 19(1)(f) which the Eviction Act, 1971, could violate. The Bombay Rent Act placed restrictions upon the landlords' right to recover possession; put conversely, it protected tenants against eviction except in restricted cases. This protection could not be equated to a fundamental right to property, particularly when the Bombay Rent Act was only a temporary statute, the duration of which had been extended from time to time, and also because, while it remained in force, there was power therein both to give exemptions as also to direct that the statute would apply or cease to apply to stated areas of the State of Maharashtra. 20. The Supreme Court has, as we read its judgment in Bombay Corporation v. Pancham, , held (in paragraph 18) that the rights conferred on tenants by the Bombay Rent Act are fundamental rights and there, as far as we are concerned, the matter must rest. This was an appeal from this court and the question which fell for decision was whether a suit instituted by the plaintiffs (the respondents before the Supreme Court) in the City Civil Court at Bombay was maintainable. The plaintiffs were te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Andhra Pradesh Scheduled Area Land Transfer Regulation, 1959, were unconstitutional, being violative of Article 19(1)(f), in that they imposed unreasonable restrictions on non-tribal holders of properties in scheduled areas. It was held that the challenge rooted in Article 19(1)(f)cannot survive after the repeal of the said Article with effect from June 20, 1979 by virtue of the 44th Amendment. It cannot survive inasmuch as the doctrine of eclipse would come into play. It was contended that, on a parity of reasoning, the challenge rooted in Article 19(1)(f) to the provisions of the Eviction Act, 1971, could not survive after the repeal of Article 19(1)(f) with effect from 20th June 1979 inasmuch as the doctrine of eclipse would come into play. 23. Mr. Seervai countered the contention by reference to the Constitution Bench judgment of the Supreme Court in Mahendra Lal Jaini v. State of U.P., . It was there held, after a review of authorities, that the doctrine of eclipse would apply to pre-Constitution laws which were governed by Article 13(1) and would not apply to post-Constitution laws which were governed byArticle 13(2). 24. A discussion is clearly called for. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, for the time being, by the fundamental right. The effect of the Constitution (First Amendment) Act, 1951, was to remove the shadow and to make the impugned Act free from all blemish or infirmity.....All laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision of Article 13, rendered void to the extent of such inconsistency. Such laws were not dead for all purposes. They existed for the purposes of pre-Constitution rights and liabilities and they remained operative, even after the Constitution, as against non-citizens. It is only as against the citizens that they remained in a dormant or moribund condition. The question was considered yet again in M. P. V. Sundararamier v. State of A.P., . The majority judgment was delivered By Venkatarama Aiyar, J. This case related to a post-Constitution law. The learned Judge, speaking for a majority of the Constitution Bench held that a law made without legislative competence and a law violating constitutional limitations on the power to legislate were equally unconstitutional and unenforceable but they did not stand on the same footing for all purposes. A law which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution came into force and had since then become inoperative either wholly or partially; it cannot confer power on the State to enact a law in breach of Art. 13(2) which would be the effect of the application of the doctrine of eclipse to post-Constitution laws. Therefore, in the case of Art. 13(1) which applies to existing law, the doctrine of eclipse is applicable as laid down in Bhikaji Narain's case, ; but in the case of a law made after the Constitution came into force, it is Art. 13(2) which applies and the effect of that is what we have already indicated and which was indicated by this Court as far back as Saghir Admad's case, . A Constitution Bench of the Supreme Court reviewed all the aforementioned judgments in State of Gujarat v. Shri Ambica Mills, . The question before the court was whether a post-Constitutional law which took away rights conferred by Article 19 on citizens was effective against non-citizens. Mathew, J., speaking for the court, said that it was difficult to understand why, if the meaning of the word 'void' in Article 13(1) was the same as its meaning in Article 13(2), a pre-Constitution law which took away or abridged rights under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons or minorities or denominations should be void as against others who had no such fundamental right as the law did not contravene their right. There was nothing strange in the notion of a Legislature having no inherent legislative capacity or power to take away or abridge by a law the fundamental right conferred on citizens and yet having legislative power to pass the same law in respect of non-citizens who had no such fundamental rights. Mathew, J. referred to an authority of the Supreme Court to which we have not adverted, namely, Jagannath v. Authorised Officer, Land Reforms, , which held that a post-Constitution law which had been struck down for violating fundamental rights and was, therefore, stillborn had still an existence without re-enactment for being put in the Ninth Schedule of the Constitution. Mathew, J. said that this illustrated that any statement that a law which takes away or abridged fundamental rights conferred under Part III is still-born or null and void requires qualifications in certain situations. Although the general rule is that a statute declared unconstitutional is void at all times and that its invalidity must be recognised and acknowledged for all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lete the concerned fundamental right removes the shadow upon the pre-Constitution law and makes it effective once more, so also an amendment of the Constitution to delete the concerned fundamental right removes the shadow upon the post-Constitutional law and makes it effective once more. This, as we see it, is the basis of the finding in Rami Reddy's case. 29. We are unable to accept Mr. Seervai's submission that Ambica's judgment inters the theory of eclipse or that the finding in Rami Reddy's case is contrary to that in the Ambica case. In fact, the Ambica case suggests that the law laid down in Sundararamier's case is the operative law. 30. Assuming, therefore, that the provisions of the Eviction Act, 1971, contravened Article 19(1)(f)to the extent suggested, they were not enforceable so long as Article 19(1)(f) remained a part of the Constitution. Its deletion with effect from 20th June, 1979 made the Eviction Act, 1971, wholly enforceable. The challenge to the Eviction Act, 1971, rooted in Article 19(1)(f) cannot survive after the repeal of Article 19(1)(f). 31. Having so held, we must point out what appears to us to be a lacuna in the contention r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Eviction Act, 1971, can be applied to persons who are in unauthorised occupation of public premises A person, by reason of Section 2(g), is in unauthorised occupation if his occupation is without authority. He is in unauthorised occupation if he continues to occupy public premises after the authority under which he was allowed to occupy the same has expired or has been determined for any reason whatsoever. The provisions of the Eviction Act, 1971, therefore, entitle the Governnent company or corporation which is the owner of the public premises to terminate for any reason whatsoever the authority of the occupant to occupy the same and, by so doing, place the Government company or corporation and the occupant in the position of landlord and tenant governed by the provisions of the Transfer of Property Act. The provisions of Sections 4 and 5 of the Eviction Act, 1971, deal with the procedure for the eviction of an unauthorised occupant and must be read together. Section 4 prescribes that the unauthorised occupant must be issued with a notice in writing to show cause why an order of eviction should not be passed against him. That notice has to be issued by the Estate Officer pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been urged by the learned counsel for the petitioners that many of the corporations referred to in Section 2(e)(2)(ii) of the Public Premises Act, like the nationalised Banks and the Life Insurance Corporation, arc trading corporations and under the provisions of the enactments whereby they are constituted these corporations are required to carry on their business with a view to earn profit, and that there is nothing to preclude these corporations to buy property in possession of tenants at a low price and after buying such property evict the tenants after terminating the tenancy and thereafter sell the said property at a much higher value because the value of property in possession of tenants is much less as compared to vacant property. We are unable to cut down the scope of the provisions of the Public Premises Act on the basis of such an apprehension because as pointed out by this Court in M/s. Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay : Every activity of a public authority especially in the background of the assumption on which such authority enjoys immunity from the rigour of the Rent Act, must be informed by reason and guided by the public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmission to the judgment of a Division Bench of the Karnataka High Court in The Indian Bank Ltd. v. M/s. Blaze and Central (P.) Ltd., AIR 1986 Kar 258. Interpreting Section 5 of the Eviction Act, 1971, the Division Bench held that the only point for enquiry under Section 5 was whether or not a person was an unauthorised occupant of public premises and nothing more. If a person to whom notice was issued underSection 4 calling upon him to show cause why he should not be evicted were to plead that he was not in unauthorised occuaption, it became necessary for the Estate Officer to enquire whether such a plea was valid. But if he did not dispute that he had become an unauthorised occupant or, having raised a dispute, failed to prove that he was not an unauthorised occupant, the Estate Officer was empowered to pass an order of eviction under Section 5. The jurisdiction of the Estate Officer under Section 5 was only to he satisfied as to the unauthorised occupation of the person concerned and not about the bona fide requirements of the public authority or about comparative hardship just because the respondent chose to raise the pleas as they were not relevant to the inquiry under S. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to form an opinion that there are persons in unauthorised occupation of such premises and that it is necessary that they should be evicted from the premises unauthorisedly occupied by them. There is thus an indication in Section 4 of the Act that the Tribunal constituted under the Act has to initially form an opinion in respect of the matters to be decided finally by him after giving an opportunity to show cause and recording evidence. 42. It is important to note that the Division Bench was of the view that the Estate Officer had finally to decide under Section 5 'matters' in respect of which he had initially formed an opinion under Section 4, viz., that there are persons in unauthorised occupa- tion of such premises and that it is necessary that they should be evicted . The judgment, therefore, supports also the interpretation that we have placed uppn Section 5 viz., that the Estate Officer must thereunder decide both whether the person to whom he has addressed the notice under Section 4 is in unauthorised occupation of public premises and whether he should be evicted therefrom. 43. Reference was made by Mr. Seervai to the judgment of the Calcutta High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It is a statute of temporary duration. Its duration has been extended by Extension Acts from time to time. Each of the Extension Acts has received the assent of the President. The Bombay Rent Act was extended twice after 22nd December, 1980 and these Extension Acts also received Presidential assent. It was contended on behalf of the petitioners that by reason of such Presidential assent, and having regard to the provisions ofArticle 254(2), the provisions of the Bombay Rent Act prevailed over the provisions of theEviction Act, 1971, to the extent that there is repugnancy between them. 48. That there is repugnancy between the provisions of the Bombay Rent Act and the Eviction Act, 1971, is not disputed. 49. It was argued on behalf of the respondents that the Eviction Act, 1971, was not an earlier law within the meaning of Article 254(2) so that the assent of the President to the Extension Acts did not make the Bombay Rent Act a new law which, by reason of the assent, prevailed over theEviction Act, 1971, to the extent of the repugnancy between them. Emphasis was laid in this behalf upon the Division Bench judgment of this Court in The State of Bombay v. Heman Santlal Alreja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). The contention of the respondents in this behalf cannot, therefore, be accepted. 52. Mr. Seervai submitted that having regard to the fact that the extensions to the Bombay Rent Act had received Presidential assent, the Bombay Rent Act prevailed in the State of Maharashtra over the Eviction Act, 1971, to the extent of the repugnancy between them. On behalf of the respondents it was contended that the terms in which the assent was sought and given should have to be seen. 53. Letters of request were issued by this Court at the instance of the Life Insurance Corporation of India, which is a respondent in some of the matters before us, to various Central and State authorities to produce the documents by which the assent of the President to the Extension Acts extending the duration of the Bombay Rent Act was sought and given. The authorities placed all the files in this behalf before the Court; therefrom, counsel culled out documents which have been tendered (Ex. F, Collectively). We are concerned with the Extension Acts subsequent to the amendment of the Eviction Act, 1971, with effect from 22nd December, 1980. The documents that were tendered show that a letter was written on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Article 200 of the Constitution of India. A telegraphic message dated 25th February, 1986 sent by the Special Commissioner, New Delhi, addressed to two Secretaries of the State of Maharashtra and the Secretary to the Governor of the State of Maharashtra shows that the President accorded his assent to this Bill on 23rd February, 1986. 54. Counsel on behalf of the respondents placed reliance upon the judgment of the Supreme Court in Jamalpur Gram Panchayat v. Malwinder Singh, , and submitted that, inasmuch as the assent of the President had not been sought with specific reference to the Eviction Act, 1971, the Bombay Rent Act did not prevail over the Eviction Act, 1971. In the Jamalpur Gram Panchayat's case the question before the Supreme Court was whether the Punjab Village Common Lands (Regulation) Act, 1953, prevailed over the provisions of a Central Act called the Administration of Evacuee Property Act, 1950. Proceeding upon the basis that there was a repugnancy between the two statutes, the question was considered. The following extract from the Supreme Court's judgment is relevant: ..... The judgment of the High Court shows that the hearing of the writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Eviction Act, 1971, in respect of the repugnancy between them. 56. It was submitted by Mr. Seervai that the clear language of Article 254(2) established that if a State law in respect of any matter in the Concurrent List had been reserved for the consideration of the President and had received his assent that State law prevailed notwithstanding any earlier law made by Parliament. The Article did not envisage an assent being sought or given vis a vis particular Central statutes. That a State law to which the President had assented under Article 254(2) prevailed over an earlier law made by Parliament was clear from the judgment in U.P. Electric Supply Co. Ltd. v. R. K. Shukla, . The Supreme Court there said: Act 1 of 1957 received the assent of the President and by virtue of Article 254(2) of the Constitution Section 6-R(2) of the U. P. Act prevails notwithstanding any prior law made by the Parliament. In the Jamalpur Gram Pan-chayat case there was no finding or obiter dictum or even a casual observation that the President's assent under Article 254(2) could be limited to specified Central statutes. The word purpose used in the judgment (as extracted above) referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficacy of the President's assent must, therefore, be limited to that purpose, namely, that the Bombay Rent Act prevailed over the Transfer of'Property Act and the Presidency Small Cause Courts Act and cannot be extended beyond that. The Supreme Court wenton to say, Not only was the President not apprised in the instant case that his assent was sought because of the repugnancy between the State Act and the pre-existing Central Act..... but his assent was sought for a different, specific purpose altogether. Applying these words to the, instant case, not only was the President not apprised that his assent was sought because of the repugnancy between the Bombay Rent Act and the Eviction Act, 1971, but his assent was sought for a different, specific purpose, namely, to overcome the repugnancy between the Bombay Rent Act on the one hand and the Transfer of Property Act and the Presidency Small Cause Courts Act on the other. The President's assent cannot, therefore, be the basis for according precedence to the Bombay Rent Act over the Eviction Act, 1971. 58. The U. P. Electric Supply Co. Etd.'s case did not consider an argument relating to the ambit of the President&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construed as being in general terms. This letter was written to seek the administrative approval of the Government of India to the proposed Extension Bill. It was not written to seek the assent of the President under Article 254(2) to an Extension Bill which had been passed by the State Legislatures. It is, therefore, not possible to take any account of this letter in this context. 60. In the result, we cannot hold that the provisions of the Bombay Rent Act prevail in the State of Maharashtra over those of the Eviction Act, 1971. 61. We must now note that no arguments have been advanced before us in regard to the facts of the petitions and appeal before us, 62. Lastly, we record our appreciation of the industry and assistance of counsel. 63. Each of the writ petitions is dismissed. 64. In the appeal before us (Appeal No. 83 of 1989), the writ petition (OOCJ Writ Petition No. 3511 of 1988) was summarily dismissed by a learned single Judge by an order dated 11th January 1989. The order of summary dismissal is set aside, the appeal is allowed and the writ petition admitted. Having already been heard as aforementioned, the writ petition is now dismissed. This petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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