HARI SINGH AND ORS. versus THE MILITARY ESTATE OFFICER AND ANR.

BARI SINGH AND ORS.

THE MILITARY ESTATE OFFICER AND ANR. May 3, 1972 [S. M. Snou, C.J., J. M. SHELAT, A. N. RAY, I. D. DuA, D. G. PALEKAR, H. R. KHANNA AND M. H. BEG, JJ.J

Public Premises (Eviction of Unauthorised Occupants) Act, ( 15 of 1971), ss. 15 and 20-Validation of eviction orders passed under 1958-Act-Jf constitutionallv valid.

When the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, was in force, the Government had two alternative remedies of e~ic­tion of per ons in unauthorued occupation of public premises, ll&lllely, one in 11 court of law by instituting suit for evic1ion, and the other, unoor s. 5 (1) of the Act, which conferred power on the Esta le Otlicec to mue an order of eviction.

Orders were passed under s. 5 in 1961 and 1964, evicting the appel-lants, and, writ petitions filed by them in the High Court we1 dismilsed. While th.!ir appeals in this Court were pend in~. the Public Premises (Eviction of Unauthorised Occupant ) Act, 1971, came into force. t repealed th1> 19~8-Act and had retrospective operation from 16th Septem-ber, 1958. Under it, there is only one prooodure available for eviction of persons in unautlwnsed occupation of public premises. Its scheme is that it confers power on the F~tate Officer to issue notice to persons who are in unauthorised occupation of any public premi es to show cause why an order of eviction should not he made, and after considering the gro1Jnds, to pass an order of eviction. 'Premises' are defined to include anv land or any building or part of building. Section 20 provides that anything done or any action taken 01 purported to have been done or taken under the 1958-Act shall be deemed to he as valid and effective as if such thing or action was done or taken under the corresponding provisions of the 1971-Act. Also, '· IS provichs bar to the juris'iction of the court to entertain suit or oroceeding in resryect of eviction of any person in unauthorised occupation of pubiic premises.

The aooPllants challenged the constitutionality of the 1971-Act aboo in the appeals.

Dismissing the appeals,

HELD: (Per S. M. Sik)'i, C. J. J. M. Shelat. A. N. Ray, I. D. Dua, D. G. Palekar and H. R. Khanna, JJ.) : (1) The validity pf the 1971-Act deoends on, (a) the legislative competence to Validate anythin~. dcme or actioo taken under the 1958-Act; (b) whether the Legislature pos-G sesses competence over the subject m•tter; and (c) whether by valida-tion the I..e~slature has remove;! the defect which the Court had found in the previous Jaw. [523 D; 527 B-FJ

. (a) In Northern India Caterers Private Ltd. v. State of Punjab, (1%7) 3 $.C.R. 399 this Court held that s. 5 of the Punjab Premises and Land (Eviction and Rent Recoverv) Act, 1959, was v'olative of Art. 14 of th• Constituti"'l <'n the ground that, the •ection left it to the un-H guided d'scre'ion of tbt ~oJ,ertor 1<, taken .a<11o' either un~ the o·din~ry Jaw or follow the drastic pro"edure pro'"ded by the section. Assummg that the t 958-Act is uncO..sFtution'l on the .. ame 1>:ro••nd it could not be contended that the 1971-Act could not validate anything done under

the 1958-Act, because, Clld l!>?l-Ad is eft'ectivo from 16th Sep:ember 1958, and provides that the action taken under the 1958-Act is deemed to be taken under the 1971-Act. It i's not cas-> of the latter Act validat-ing action taken nodei' die earlier Act, · bll! caae ~. by deeming provision. acts or thin11s do~ under an. 1nrb'er Act were deemed to be done uniter the latter validatln11 Acl. (522 D-F; 524 E-F; 525 E...,-0 I

Mis. Wen Ram11ad lttectrlc Distribution Co. Ltd. v. State of Madras, [1963] 2 S.C.R. 147. followed.

Deputy Commisnoner and Collector, Kamrup & Ors. v. Dw1a Nillh &nna, (1%8) I S.C.R. I S.C.R. 561, referred to.

(b) The Leg;slature bad legislative competence to enact the 1971-Act

and provide speedy prooedure for eviction of persoos in unauthor'sed occupation of public premises, and to pass the law with retrospective operation. (527 F--GJ

( c) The Legislature can put out of ac•ion retrosnectiwly one of the procedures 1"1!vin~ one !1focedure only availeble and thus remove the vice of discrimination found in Northern India Cattrer9 case. (526 .E-GJ State of Mysore & Anr. v. D. Achiah Chttty etc., [1963) 3 S.C.R. SS. followed.

Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Uunicipafity & Ors. [1970)) S.C.R. 388, refe!Ted to . ... -; (2} Since the word 'premises' means land which includes agticultural land, the aJ)P'llant who W3S in unauthorised occup~tion of agricultu'al land belonging to the Government, was validly evicted under the Act. [528 Al

(3) procedure for eviction may be available under the Pun'ab Tenancy Act, 1887; but it could not, on that acco·Jnt, be conten~rd that the procedure under the 197.1-Act offended Art. 14. The 1971-Act provides only one procedure for ejec'ment of persons in unauthoris"d occupation of public premises, and there is no vice of discrimination under it. [528 A-<:!

Per M. H. Beg J.: (!) Thi· Court had not dec'ared any part of the 1958-Act ,to b.i void piec~ of legisl-ation, and therefore, no question of applying Art. 141 of the Constitution arises because of the dec'so" of thi• Court in Northern India Caterers Private Ltd. v. State of Punjab, 11967] 3 S.C.R. 399. [529 Cl

(2) The assumption that the provisions of the 1958-Act were void and that therefore action talren under it could not be legalised or validated is erroneous .. [529 C-EJ

In the No.rthern India Caterers ca·e s. 5 of the Punjab Public Pre-mi..,,, and Land (Eviction and Rent Recovery) Act 1959, was he'd to be invalid because of the option left to adopt ei'her t'ie pt'O':edure under the sectio" or the procedure under the ordioary Jaw which lay ourside the Act. The defect or lacana in the Punjab Act which invalidated the sect'M was tha• it did hot confaio prohibitioo again•t the alternative l)riredm'e and no!, that it contamed \Otnethi..g which was, in Itself, prohibited. The tt"ro'1!!fitu•io..alify of !he •""'io" thus really arose from matters extraneous 10' the Act. That case laid down n·o·hiog more than that allhaugb the more drastic procedore may be otherwiim

vali4, yet it became 1111enfo<ceable in lilCJ ~tuation, eimrging from th~ totality Cif pro,jsions of law considered ther~in. Tb~ is is nothing in the decision to justify the view that the section was per se or ab initio void..

Tb~ is is nothing in the se or ab initio void.. [530 B-FJ

(3) The result of ~ 1971-Aet 'is 11<Mbing short of re-enactment retrospeotively so that no ground is left open for the argument that tbete is any possibility of discrimination between different un•uthorised occu-pants of public premises. Siace the date from which tho 1971-Act be-B came applicable the validity of any Pll-'t action 1111der the 1958-Aot will have to be adjudged in the light of the provisions of the 1971-Act. If some p~ng taken was till pendi.1g its correctness smd validity would be governed by the requirem,nts laid down in the 1971-Act. be-cause, the prorueding taken under the 1958-Act would be deemed to be proceeding under the 1971-Act. The rights protected by the pro-cedure the 1971-AC' wete not infringed by the action taken under the earlier Act, beoause, the procedure for eviction including the right of appeal is identical under bo'h Acts. [530 G-H; 531 A-DJ

( 4) Even if il is case of validation and not one of re-enactment, in substance. it also mado invalid any pOMfole d'scrimin1tory act whi;ll may have been committed during the currency of the 1958-Act. [531 J).E]

(5) Thero is no substanc.o in Ire contention that the effect of s. 20 of the 1971-Act was really to validate whot was merely 'purported to have been done' in the· past. and that therefore, it could not be dceired to be action taken under the 1971-Act. The word 'purported' is uood only to descrite .or identify the pa t action taken under the rep!a[1]ed Act and has no efl'ect beyond that. Therefore, the action taken would now be deemed to have been taken under the 1971 Act. tS3! E----0]

(6) If at all, the drastic procedure in the 1958-Act was merely under shadow, or, in state of sus-iension or unenforceability due tc> reasons falling outside the Act; but once th:>se reaso'8 were elimi iated by the new cnoc'n..rtt the shadow i removed and the procedure became operative and eft"ective retroopectively. The elf'"'' of the 1971-Act was that the option to proceed to evict unauthocigxJ occupants in any way ou•side the Act was shut out retrospectively an<! it was within the legis-lative competence of Parliament to do so the action taken against the ap~dlants is not invalid when tested by the provi ions ot 1911-Act.

!S32 A-Dl

Keshavan Madhava Menon v. The Srate of Bombay, [1951] S.C.:R.. 228, Beh..am Khurshed Pesikaka v. The Sr<h! of B'mbay, [1955] 1 S.C.R. 613. Saghir AhlTllld v. The State of U.P. cl Or1. [1955] I S.C.R. 707. Bhikaii Nan;·in Dhakras· & Of<s. v. The Sta'e of M. P. & Ors., [1955} 2 S.C.R. 589, M. P. I'. SundaraMmi•r cl Co. v. The S•a•e of A. P. cl Anr. [1958] S.C.R. 1422, Deep Chand v. State of U.P. cf Ors. [1959] Sm>p. 2 S.C.R. !I. Mahen~a Lal Jaini v. The State of U.P. & Ors., [1%3] Supp. 1 S.C.lt:. 912, B. ShaWlll Rao v. ·r114 Union T•rritory of Pondlche.'J; [1967] 2 S.C.R. 650; Deoufy Commissioner cl Collector, Kanpur & On'. v. Durga N"th SarlTlll. [1968] 1 S.C.R. 561 an' P • . Bhooma Reddy v. State of Mysore & Ors., [1969] 3 S.C:R. 14 refehed' to.

Civil Appeal No. 493

CML APPELLATE JURISDICTION : of 1967.

Appeal from the judgment and order dated September 6, 1966 of the Pu11j'lb High C,.,urt in Letters Patent Appeal No. 234 of 1963 and Civil Appeal No. 1456 of 1968.

Appeal from the judgment wd order dated December 21 1967

-of the Patna High Court in Civil Writ Jurisdiction Case N~. 222 of 1966.

Rameshwar D'al, Sharda Rani and A. D. Mathur, for the appel-

lants (in C.A No. 493 of 1967).

K. K. Sinha, S. K. Sinha, 8. 8. Sinha and S. K. Bisaria for the appellants (in C.A. No. 1456 of 1967). · ' Jagadish Swarup, Solicitor-General of India, L. M. Singhvi, P. Parameswara Rao and S. P. Nayar, for respondent No. 1 (in both the appeals). · Ravinder Narain, Bhuvnesh Kumar' and Subba Rao for intervener No. 1 (in C.A. No. 493 of 1967). · '

Soli Sorabjee, Lalit Bhasin, R. N. Banerj~e. Ravinder Narain

and P. C. Bhartari, f:Jr intervener No. 2 (in C.A. No. 493 of 1967).

R. K. Garg and S. C. Agarwal, for inte·vener No. 3 (in C.A.

No. 493 of 1967) and the intervener (in C.A. No. 1456 of 1968).

A. K. Sen, S. C. Majum-lar and R. K. Ja.'n, for intervener No.

4 (in C.A. No. 493 of 1967).

The Judgment of S1KRI, C.J., SHELAT, RAY, DuA, PALEKAR

·and KHANNA, JJ. was delivered by RAY, J.

BEc.>, J. delivered

.separate concurring opinion.

Ray, J. These two appeals raised originallv the constitutionality

of the Public Premis~s (Eviction of Unauthorised Occupants) Act, 1958. The challenge was on the ground that section 5(1) of the 1958 Act viola:ed Article 14 oi the Constitution. Section 5(1) of the 1958 Act conferred power on the Estate Officer to make an order of eviction aqainst persons who are in unauthorised oc;upa-tion of public premises. The vice of section 5 ( 1) of the 1958 Act against Article 14 of the Constitution was th·s. The Government had two alternative remdies of eviction of pe-sons in unauthJrised occupation. One was to seek the remedy in court of law by instituting suit for eviction. The other was the remedy pres-cribed 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 occuTJation of public premises for the application of the d!'astic procedure under 1.ne 1958 Act.

The 1958 Act was amended in 1968. Section lOE was intro-

duced into the 1958 Act. SectiJn lOE created bar of j•uisdiction of civil court to ent~rtain any suit or proceeding in respect of the eviction of any person who is in unauthori,sed occupation of any ~ublic premises or the recovery of the a-rears of rent payable under section 7 (1) or damages payable under secti Jn 7 ( 2) or costs ~warded under section 9 ( 5) of the Act. The appellants raised the

contention that the amendment effected by section lOE of the Act was not retro.;pective and therefo.e the proceedings forming subject matter of the appeals we.e not saved by the amendment.

In the appeal filed by Harl Singh one Behari Lal obtained lease from the President through the Military Estate Officer, Delhi Circle of 36. 73 acres of land at Ambala Cantonment. The lease was for four years from 1 May, 1952. The annual rent was Rs. 3310/-. The rent was payaMe in advance. Behari Lal failed to pay ent. The lease expired on 1 May, 1957. The period of the lease was not extended. Behari Lal failed to surrender possession. There was an order dated 17 :June, 1960 under the 1958 Act for eviction of Behari Lal. The appellants claimed to be sub-lessees of Behari Lal. The lease permitted subletting only with the permission of l"'e competent autho·ity. Notice was given under the 1958 Act to the appellants to show cause as to why they should not be evicted under the Act, because they were in unauthorised occupa-tion of ihe land. The Estate Officer found that there was no sanction of the c[0]mpe'ent authority permitting sub-lease. On 25 July, 1961 an order was passed under section 5 of the 1958 Act evictin~ the appellants. The anpellants preferred on appeal to the D'strict Judge, Ambala. On 1"8 April, 1962 the appeal was dis-missed. Thereafter the appellants filed" W" i• petition in the Punjab High Court. The learned Single Judge dismissed the petition on 13 May, 1963. The appe'lants preferred Letters Patent appeal. The Hi~h Court" dismissed the appeal on 5 Se"tember, 1966. The appeal filed by Hari Singh and others- is by certificate against the decision of the High Court of Punjab.The appeal filed by Bhar•iya H1tel & Ors. is by certificate against the judgnient dated 12 Decemter, 1967 of the High Court at Patna. The appellants there are partners carrying on bu<iness under the name of Bhartiya Hotel at Ratanpu·a. One of the part-ners obtained lease of plot of land at Chaora in Bihar. Ram Lakhan Prasad is the partner ·who obtained the lease. The Estate Offi[0]er, No-th Eastern Railway served notice dated 12 June, 1964 under section 4(1) of the 1958 Act on Ram Lakhan Prasad for eviction of the apoellants on the ground that the appellants were in unau'horised occupation. The Esta•e Officer on 16 March, 1966 oassed an order of eviction acrainst the aTJpel'ants. The a'lnel-}ants thereaf'er moved the Wgh Court at Patna for quashing the order of eviction; The Hiqh Cou-t on 21 December. 1967 dis-mi<sed the writ pe•ition of the anTJelhnts. The appeal is by certi-ficate from the decision of the High Court.

In the appeal "file<! bv Hari Sincrh and others two contentions were ra;s~d in the High C"urt. Fi•<!. it wa< <aid that the word 'premises' did not apply to agricultural land. Secondly, it was said

'that the legislation on agricultural land was within the exc~usive iegis1ative neid of the State, and, therefore, the Central Act was unconstitutional. The High Court rejected bofh the contention.

In the appeal filed by Bbartiya Ho.tel and others the appellants raised the principal contention that the 1958 Act violated Article 14 of the Constitu.ion. The High Court referred to the decision . -0f this Court in Northern India Ca erers Private Ltd. & Anr. v. State of Punjab & Anr.([1]). The High Court held that the decisiQon of this Court in Northern India Caterers Prfrate Ltd.([1]) case was on the Punjab Public Premise.s 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 constitu·ionality of the 1958 Act. Dllring the pendency of these appeals the Public pre-mises {Eviction of Unauthorised Occupants) Act, 1971 received the assent of the President on 23 August, 1971. The appellants were allowed to add new ground. The new ground chal!engc.d the constitutionality of the 1971 Act.

The dechon in the present appeals turns on the que~tion as to whether the 1 971 Act is constitutionally valid piece of le~islation. The 1971 Act is deemed to have come into force on 16 Sept"1ll•er. 1958 except section~ 11, 19 and 20 which came into force on 23 August, 197 J.. Section 11 of the 1971 Act speaks of offence under the Act. The offence is that if any person who has been evicted from any public premises under this Act again occupie~ the P' emi•es without authority for such occupat;on, he shall be "Unishable with im:>ri~onroent for term which may extend to ooe year, or wi•h fine which may extend to one thousand ruooes, or w;th both. Secfrm · 19 enacts th1t the 19~8 Act is repealed. The most important :section is 20. Section 20 is as follows :-

"Notwith'tandiilg any judgment. decree or oruer of anv court, anyhting do11e or any acti 1n taken (including rules or orde·s made, no'ices issued. evicti'cms ordered or eff•cted, damages assessed, rentq or d~ama?,es or cos•s recovered and procee<iing~ initiate-I) nr ou-norte1 to have been done 0r taken under the Public Premises (Evict;on o.f Unau•horised Occuryantq) Ad. 1958 (he•e-inafter in this •ecthn refe•red to -as the 1958 Act) sh"Jl be deemed to be as valid and effective as if such th;ng or actio., w~q tlone or t"ken under the cor-esoondino.; provisions of this Act which. under sub-sect;on (3) of SP.~t10,, 1 ~h'llll h~ rt"':~mer1 1" h'lve com~ into force on the 16•h day of Sentember, 1958 and accordingly-

(a) llO suit or other legal proceeding shall be main-tained or continued in any c->11rt for tile refund of any rent or damages or cJsts recovered under the 1958 Act where such rcfu.nd has been claimed merely on the ground that the said Act has been declared to be uncon-stitutional and void; and

(b) no court shall enforce decree or order direct-

ing the re.fund of any rent or damages or coots recovered under the 1958 Act mei:ely on the ground that the said Act has been declared to be uncons.itutional and void.

Another important section of the 1971 Act is section 15. Broadly stated, seclion 15 speaks of bar of jurisdiction o. courts. Section 15 provides that no court shall have jurisdiction to ente tain any suit or proceeding in respect of the eviction Of any person who is in unau,horised occupation of any public premises or the recovery of the arrears of rent payable under section 7 ( 1) of the damages payable unc!er 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 Lsue notice to persons who are in unauthorised occupa-tion of any public pcemises to show cause why a,n order of eviction should not be made. 'Unauthorised occupation' under the Act in rdation to any public premises means the occupation by any person of the public premJses without authority for such occupa-E tio;n, and i.ncludes the continuance in occupation by any pe-son of the publ'c premises aft& the au hority ( whe•her by way of grant or any otner mo je of transfer) under which he was allowed to occupy the premises has exoired or bas been detenni.ned for any reason whatsoever. 'P•emhes' are defined to mean any land or any bulld-~ng or part of building an1 includes the garden, orounds and ou'bouses, apoertaining to such building or part of building and any fittingq affixed to such building or part of building for the more beneficial enjoyment thereol. 'Public premises' means any premi1e~ b~lon11;iue: to or taken on lease or -equisitbnerl by, or on behalf of the Central Government as enumerated in section 2f e) of the Act. The mtice to show cause a'!ain•t o-der of eviction shall sp~cify th~ grounds on wliich the order of eviction is ryr<J"O<P,d to be m~de. The E'tate ('ffic[0]r1 under •he Act a·e aopo'nte-1 b'y the Central Government. The Estate Office·s are G~zette~ Officers or officers of equivalent rank. 'Corporate autho•ity' under tlie Act m~ans·any c"moany or Coroorati"n or any c"mmiftee or the Autb'lrity as m~"ti"ne1 in the Act. The Estate Officer sh~ll, for the pu-po'e of holdh~ anv inquirv under this Act, h•v~ the 'ame powerq a' are ves'ed in civil court under the Co~e of c;vil P.roce-dure. 1908 wb~n trying suit. in resnect nf motte·s m•nt1,,ned in section 8 of the Act. These matters are summoning and enforc-

ing the attendance of any person and examining him on oath; secondly, requiring the discovery and proouction of do:ument; and thirdly, any other matter which mJy be prescribed. Section 10 of of the Act provides for finality of orders in circumstances mentioned in section 10 of the Act therein.

Section 10 of of

It is necessary to notice that this Court on 4 April, 1967 decid-ed the Northern India Caterers Private Ltd.( [1]) case on the validity of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959 and decla-ed sectiQ!l 5 of that Act to be violative of Article 14. In Northern India Caterers Private Ltd.([1]) case the State of Punjab leased the Mount View Hotel at Chandigarh for period of six yea•s from 24 September, 1953. The Estate Officer gave no:ice requiring the appellants in that case to show cause as to why the ::· der of eviction should not be made. Section 5 of the 1959 Punjab Act provided that if after consi fodng the cause and the evidence produced by any person in unauthorised occupation of public premises and after giving him reasonable opportunity of teing heard, the Collector is satisfied that the public premis~s are in unauthorised occuoation he 'may make an order of eviction'. Section 5 of the 1959 Act was held to leave it to the discretion of the Collector to make an order of eviction in the case of some of the tenants and not to mako the order in the case of others. It was found that section 5 did 1._,t lay down any guiding principle or policv under which the Collector had to decide in which cases he shnuld follow one or the other p•ocedure. This Court found that the Government ha1 two reme-dies open to it. One was under the ordinary law. The ntht • w"S drastic and 'more prejudichl remedy' under the 1959 Act. Consequently, section 5 was held to vblate Artcle 14 of the Constitution.

The 1971 Act came into existence to velidate 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 retrospec-tive with effect from 16 September, 1958 except sections 11, 19 and 20. In the sec0nd place, sec'ion 20 of the .1971 Act which is described as the section for validation provides that anything done or any action taken or purprirted to have been dnne or taken shall be deemed to be as valid an<l eff~ctive as if such thing or a:t'on was done or taken under the corresp'Jnding provisions of the 197 l Act. In the third ohce. the 1971 Act bv <P-ction 15 provided bar of jurisdiction of courts in respect of eviction of any person who is in unauthorised occuoation of anv puhlic pr•mi<es. Jt. there-fore, follows that under the orovisi [0]ns of the 1971 Act which had retrosnective oneratinn frnm 16 Sentemb~r. 1958 there i< only one· procedu•e evailable for eviction nf oer<o"s i11 unau•horise<i cjrcnna-tion of pubfo premises. That procedure is to be found in tlte 1971

Act. Tho other courts have no jurisdiction in these matters. The vice ol Article 14 which was found by this Court in the decision of Northern India Caterers Private Ltd. (1) no longer appears under the 1971 Act.

The

. Counsel for the appellants contended that orders made or evic-B tion ·ordered under the 1958 Act are not and cannot be validated by section 20 of the 1971 Act. The contention was ampfffied in this manner. Section 20 of the 1971 Act pre-supposes and postu-lates that the 1958 Act was ill operation and in existence. The 1958 Act Wli!' violative of Article 14 of the Constitution and accord-ingly it never came into existence and was non-est. Accordingly there could be no eviction order under the 1958 Act. Secondly, Parliament cannot by ordinary legislation enact that eviction under the unconstitutional 1958 Act shall be deemed to be valid eviction under the 1971 Act.The validity of the 1971 Act depends on the legislative compe-tence to validate anything done or any action taken or purported to have been done or taken under the 1958 Act. Validation is ach'ieved b!y enacting that anything done or any action taken or pur-ported to have been done or taken shall be deemed to be, as valid and effective as if such thing or action was done or taken under the corresponding provisions of the 1971 Act. The result is that the 1971 Act is made retrospective with eftect from16 September, 1958. Anything done or any action taken under the 1958 Act is. to be deemed as valid and effer,tive under the provisions of the 1971 Act. The consequence is that the validity of action done or taken is to be tested with reference to the provisions of the 1971 Act. This Court in M/s West Ramnad Eler;tric Distribution Co. Ltd. v. State of Madras(') held that it is within the competence of the legislatu:·e to enact law and make it retrospective in operation. In the West Ramnarf Electric Distribution Co. Ltd(') case the electric company vested in the State of Madras under an order dated 17 May, 1951 under the provisions of section 4 (1) of the Madras Electricity Supply Undertakings Act, 1949. The validity of the Act was challenged. This Court held that the Act of 1949 was ultra vires. After the decision was pronounced the Madras Legislature passed the Madras Act 29 of 1954. The 1954 Act incorporated the main provisions of the earlier Act of 1949 and validated action taken under the earlier Act. The West Ramnad Electric Distribution Co. Ltd. cha!Jenged 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 ol the Constitution. It was therefore contended that by reason of (I) [I967J 3 s.c.R. s.c.R. 399. 121 [t963J 2 s.c.R. 747.

(I) [I967J 3 s.c.R. s.c.R. 399.

J6-LJ286 CI/72

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 r~trospec­tive operation of. the statute. Therefore ·in considering whether Article 31 ( 1) has been complied with or not, we must assume that before the notification was issued, the relevant provisions of the Act were in existence and so, Article 31 ( 1) must be held to have been complied with in that sense".

In West Ramnad Ecctric Distribution Co. Ltd. (1) case this Court referred io the provisions of Article 20 of the Constitu-tion to emphasise the instance where the Constitution prevented retrospective operation of ·an, law. Accent was placed on the words "law in force at the time" occurring in Article 20. The words ','by authority of law" in Article 31 ( 1 ) were distinguished from the words occurring in Article 20. This Court said that if subsequent law passed by the legislature was retrospective in operation, it would satisfy the requirement of Article 31 ( 1) and would validate the impugned notification in the West Ramnad Electric Distribution Co. Ltd. ([1]) case.

The ruling cl this Court ion West Ramnad Electric Distribution Co. Ltd. (1) case establishes competence of the legislature to make laws retrospective in operation for the purpose of valida-tion of action done ·under an earlier Act which has ~en declared by decision of the court to be invalid. It is to be appreciated that the validation is by virtue of the provisions of the subsequent piece of legislation. An illustration of ineffective validation may be found in the case of Deput.v Commissioner and Collector, Kamrup & Ors. v. Durga Nath Sarma([2]). In that case, there was the As•~::: Acquisition of Land for Flood Control and Prevention of Erosion Act, 1955. It was passed on 11 April, 1955. The Assam Acquisition of Land for Flood Control and Prevention of Erosion (Validation) Act, 1960 was passed validating the acquisi-tion of lands of which possession had been taken. The Assam Government took possession of lands in that case in 1954. There was an order of acquisition under the 1955 Act. The owner of the land was asked to submit claim for compensation under the · 1955 as well as 1960 Acts. Sarma challenged the validity of both the Acts. The High Court held that the 1955 Act was violative 1) [1963] 2 S.C.R. 747. (2) [1968] 1 S.C.R. 561.

The o

of Article 31(2) of the <;:onstitution as it stood before the Constitu-tion (Fourth Amendment) Act, 1955 and that the 1960 Act was not independent of the 1955 Act. This Court held that section 2 of the 1960 Act which validated land taken under the 1955 Act by enacting that the same 'shall be deemed to have been validly acquired under the provisions of' the 1955 Act 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 just equivalent of the land appropriated. The 1955 Act was also found to be violative o.f Article 14 of the Constitution. There was discrimination between owners of land similarly situated by the mere accident of some land hieing required for the purposes mentioned in the 1955 Act and some land being required for other purposes. The vaFdation clause of the 1960 Act was held by this Court to be totally ineffec-tive. The 1955 Act was invalid. The 1960 Act provided for validating acquisitions under the 1955 Act. This Court sai4 that if the 1955 Act was invalid the deemed acquisition under the l 960 Act was equally invalid. The ratio is that the 1900 Act had no power to enact that an acquisition under .constitutionally inv~lid 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 could not make the 1955 Act constitutional.The dis1inction between West Ramnad Electric Distribution Co. Ltd. (1) case and Druga Nath Sarma's([2 ]) case is this. In the West Ramnad Electric Distribution Co. Ltd. case (supra) the 1954 Act validated actions and proceedings under the earlier AcJ by deeming provision 1tha1 acts or things were done by virtue of the provisions of the 1954 Act. The 1954 Act was not found to have any constitutional infirmity. On the other hand Dutga Nath Sarma's(") case (supra) validated by the 1960 Act acquisition under' the 1955 Act. The acquisition was not by or under the 1960 Act. The acquisition was under the 1955 Act. The 1955 Act was constitutionally iilvalid. Therefore, there was no validation of earlier acquisition. The question of legisla!tive competence to remove discrimina-tion by retrospective legislation came up for consideration be-fore this Court in State of Mysore & Anr. v. D. Achiah Chetty etc. ( [3]). There were two Acts in Mysore for acquisition of private land for public purposes. One was the Mysore Land Acquisition Act, 1894. The other was the City of Bangalore Improvement Act, 1945. notification under the 1894 Act (\) {1963) 2 S.C.R. 747. (2) [l 9€8J 1 s.c.R.561.

(3) [1969] 3 S.C.R. 55

was issued f.or acquisition of Chetty's plots in Bangalore. Chetty challenged the acquisition on the ground that using the provisions of the Land Acquisition Act was discriminatory because in other cases the provisions of the Improvement Act were applied. The High Court accepted Chetty's contention. During ithe pendency of appeal to this Court the Bangalore Acq\Ji, sition of Lands (Validation) Act, 1962 was passed. It validat-ed all acquisitions made, proceedings held, notifications issued or orders made under the Land Acquisition Act before the 1962 Validation Act came into force. The 1962 Validatio)l Act was challenged on the ground that the tw J Acts prescribed two diffe. rent procedures. It was also said that the Improvement Act was special law, and, therefore, the Acquisition Act was to give way to the special law. The validating section in the Mysore case (supra) provided that every acquisition of land for the pur-pose of improvement, expansion or development of the City ot Bangalore by the State acting or purporting to act under the Mysore Land Acquisition Act shall be deemed to have been validly made, held or issued. The validating section was im-peached on the ground that there were still two Acts which cover-ed the same field but prescribed two different procedures. It was also said that the Acquisition Act was more prejudicial proce· dure and was discriminatory. This Court found that the legisla· ture retrospectively made single law for the acquisition of these properties. It was contended that an acquisition hit by Article 14 or anythin~ done previously could not be validated unless the vice of unreasonable classification was removed. The 1962 Validation Act was impeached on that gro1md. This Court did not accept the submission and said "if two procedures exist and one is followed and ithe other discarded, there may in given case be found discrimination. But the Legislature has still the competence to put out of action retrospectively one of the proce-dures leaving one procedure only available, namely, lhe one followed and 1thus to make disappear the discrimination. In this way Validating Act can get over discrimination. Where, how-ever, the legislative competence is not available, the discrimina-tion that if there is legislative competence the legislature can put removed by legislature having power 1to create single proce-dure out of two and· not by legislature which has not that power"The Mysore case (supra) .is an authority for .the proposi-tion that if there is legisla'tive competence the legislature can put out of action retrospectively one of the procedures leaving one procedure only available and thus removing the vice of discrimi-nation. That is exactly what has happened in the 1971 Act in the present appeals. The 1958 Act was challenged on the ground that there were two procedures and the choice of either was Teft

to the unguided discretion of the Estate Officer. The 1971 Act does not leave any such discretion to the Estate Office'.. Und~r the 1971 Act there is only one procedure. The ~eemmg pr?v1-sion contained in section 20 of the 1971 Act validates actions done by virtue of the provisions of the 1971 Act .

The meaning of Validation Act is to remove the causes for ineffectiveness or invalidity of actions or proceedings which are validated by Legislative measure. This Court in ~h;i ~rithvl Cotton Mills Ltd. & Anr. v. Broach Borough Mumczpallly & Ors., (1970) 1 S.C.R. 388 dealt with the Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963. Under ~e~­tion 73 of the Bombay Municipal Boroughs Act, 1925 mumc1-c pality could levy rate on building or lands or both situate within the municipality. This Court held in Patel Gordhandas Hargo-·vindas v. Municipal Commissioner, Ahmedabad, ( 1964) 2 S.C.R. 608 that the term 'rate' must be confined to an impost on the basis of annual letting value and it could not be validly levy on the basis of capital value. Because of this decision ~he Gujarat Legislature passed the Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963. The 1963 Act provided that past assessment and collection of 'rate' on lands and build-ings on the basis of capital value or percentage of capital value was declared valid despite any judgment of court or Tribunal to the contrary. The earlier decision of this Court was applicable to the meaning of the word 'rate' occurring in the 1925 Act. The Validation Act gave its own meaning and interpretation . of the law under which the tax was collected. It was also said by 1his Court that tax declared illegal could be validated if the ground of illegality was capable of being removed. Therefore, validating law is upheld first by finding out whether the legislature possesses compete11ce over the sub.iect matter, and, secondly, whether by validation the legislature has removed the defect which the courts had found in' th>~ previous law.

The legislature had legislative competence to enact the 1971 Act. It means that it could legislate on the subject of providing speedy procedure for eviction of persons in unauthonsed occupa-G tion of public premises. The legislature has power to pass Jaws 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 pro-cedure under the 1971 Act.It wa~ clln~ tllatthe 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 nothing in the Act to exclude the applicability of the Act to agricultural land. Reference was made to sections 42 and 43 of the Punjab Tenancy Act, 1887. Section 42 of the 1887 Act speaks of restriction on ejectment. Section 43 provides for appli-cation to the Revenue Officer for ejectment. It was said on behalf of the appellants that Article 14 of the Constitution was offended because of the procedure under the Punjab Tenancy Act. 1887 being available. There is no substance· irt that contention. Section 15 of the 1971 Act provides only one procedure for eject-ment of persons in unauthorised occupation of public premises.

The 1958 Act has not been declared by this Court to be un-constitutional. Section 5 of the 1959 Punjab Act was held by this Court in the decision in Northern India Caterers Private Ltd. case (supra) to be an infraction of Article 14. 'Section 5 of the 1958 Central Act is in terms similar to section 5 of the 1959 Punjab Act. The arguments on behalf of the appellants therefore proceeded on the footing that the 1958 Act will be pre-sumed to be unconstitutional. It was therefore said that the 1971 Act could not validate actions done under the 1958 Act. The answer is for the reasons indicated above that the legislature was competent to enact this legislation in 1958 and the legislature by the 1971 Act has given the legislation full retrospective operation. The legislature has power to validate actions under an earlier Act by removing the infirmities of the earlier Act. The 1971 Act has achieved that object of validation.

For these reasons, the appeals fail and are dismissed. Partiei will pay and bear their own costs.

' Beg, J. I entirely agree with my learned Brother Ray whose Judgment I have had the advantage of perusing. I would. how-ever. like to add some observations about the contention. put forward with some vehemence by the learned Counsel for the Appellantn. based mainly on Keshavan Madhava Menon Vs. The State of Bombay('); Behram Khurshed Pasikaka Vs. The State of Bombay('); Saghir Ahmad Vs. The State at U.P. & Ors('); Bhikaji Narain Dhakras & Ors. Vs. The State af M:P. & Ors.('); M. P. V. Sundararamiah & Co. Vs. The State of A.P. & Anr.('); Deep Chand Vs. State of U.P. & Ors.([6]); Mahendra Lal Jaini Vs. The State of H.P. & Ors.(1); B. Sharma Rao Vs. The

Union Territory of Pondicherry('); Depu_..y Commissioner & Collector, Kamrup & Ors. Vs. Durga Nath Sarma([2]), P. Bhooma Reddy Vs. State of Mysore&. Ors.(').

1 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 forw~d by him do not r.1'llllY apply, for two broad reasons, to the position we have :o consider in 1he cases before us : Firstly, this Court has not so far declared any part of the Public Pr>~mises (Eviction of Unauthorised Occu-pants) Act, 32 of 1958, to be void piece of legislation, and, therefore, no question of applying Article 141 of the Constitution arose here before the High Courts. Secondly, ·the 1rgument of the learned Counsel for the Appellants seems to me to r>~st entirely on the erroneous assumption that provisions of tl>e Public Premises (Eviction of Unauthorised Occupants) Act 32 of 1958 were void for "contrav~ntion" of Part. III of the Constitudon covered by Article 13 ( 2) of the Constitution, on the strength of which it was submitted that what was "non est" in the eye of law, or "still-born" in popular languag>~, cannot be legalised, validated, or given life and force. An examination of the cases which could be relied upon by the learned, Counsel for the appellants, to sup-port his submission on the effect of .constitutional invalidity, shows that each of these cases dealt with situation in which either an ab initio or per se void enactment or action taken under it was sought to be validated.

In Northern Indla Caterers (Pvt.) Ltd., Vs. State of Pun-jab(' ) , there was no difference of opinion in this Court on the question whether, in providing separate procedure for eviction of unauthorised occupantS of. public properties, there was reason-.able rela:tionship or nexus between the object of the Punjab Public Premjses & Land (Eviction & Rent Recovery) Act, 1959, and foe special procedure designed for achieving valid object. Even the majority view in that case was based upon the assump-G tion that the special procedure did not, by itself, infringe Article 14 of the Constitution. This meant that the special procedure under Section 5 of the Punjab Act was not held to constitute per sea "contravention" contemplated by Article 13(2) of the Consti-tution. There was, however, differenee of opinion between learned Judges of this Court on the question wh~her this special and more drastic procedure, when viewed in the context of the

SJO

less drastic procedure permissible under the ordinary law, for filing suits against unauthorised occupants, did or did not becoll)e unconstitutional. It was held that the "additional" drastic remedy, together with the option to proceed otherwise also, left room for discriminaion between unauthorised occupants against whom either of the two procedures may be utilised. Therefore, the majority view was that, although, '!he procedure provided under Section 5 of the Punjab. Act may be otherwise valid, yet, it be-came invalid or incapable of being used because of the option left to adopt another procedure existing under the ordinary law of the land which lay outside the Act. If there was defect or lacuna left in framing the Punjab Act, which invalidated Section 5, it was that it did not contain prohibition against the alternative pro-cedure left open and not that it contained something which was, in itself, prohibited. And, what the Act did not contain wao 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 Aot 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 tire majo-rity view in that case as laying down nothing more ·than that, al-though the more drastic procedure may be otherwise valid, yet, it became merely incapable of adoption or "unenforceable" in the situation ew~rging 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 provision which eould be assumed to be valid but which became "void" only in the context of other ordinary law of the land was under considera-tion there.

The result of the Act of 1971 ·appears to me to be nothing short of "re-enactment" retrospectively so that no ground is left open for the argument ithat there is any possibility of discrimina-tion between unauthorised occupants of public premises since the date from which the Act of 1971 became applicable. The validity of any past acti.:m, even under the old Act 32 of 1958, will have to be judged in the light of provisions of the Act 40 of 1971. If some proceeding taken under Act 32 of 1958 is still pending, as it is in the case of the appellants M/ s. Bharti ya Hotel, Chupra, Bihar, its correctness and validity will be governed by the requirements laid down by Aot 40 of 1971 as it would be "deemed" to be proceeding under the new· Act. In the case of the other Appellants Hari Singh & Others, from Punjab,

the eviction took place in accordance with the pro-cedure under Act 32 of 1958. But, even these appellants could not complain that any of the rights protected by the procedure found in Act,AO of 1971 were infringed, because the procedure for eviction, including right ~o appeal to the District Judge, is indentical under both the Acts. Indeed, the judgments under appeal before us were giwn before the Act 40 of 1971 came into force. The Act of 1971 became relevant for these cases only because the objection to the validity of the procedure under the' Act of 1958 was no longer available to the appellants after the retrospecfr,;c filling up of .the previous lacuna retrospectively. Learned Counsel had urged that the legisla~ive incompetence to violate rights conf.erred by Part III of ,the Constitution could ~ not be cured by any law short of valid amendment of the Con-stitution. But, it seems to me that there was no per se "void" or "unenforceable" (a term which I would employ in preference to ''void" in such context) law before us which was validated. Even if there was "validation" and not re-enactment, in sub-stance, it also made invalid any possible discriminatory acts which may have been committeed during the currency of the Act of 1958, of which there is no evidence before us, by the Govern-mental authorities, in proceeding under the ordinary law agai11st some· unauthorised occupants. ·

E. It was submitted that the effeot of Section 20 of Act 40 of 1971 was really to validate what was merely "purported" to have been done in the past, so that it was assµmed to be legally "non est'', and, therefore, it could not be "deemed" to be as good as action taken under the Public Premises (Eviction of Unauthorised Occupants) Aot 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 ;n any past action which may still be there when tested by the standards and the procedure provided by Act 40 of 1971. That is logical and natural con&~quence of using the word "deemed". The word "purported" was used only to describe or identify past aotion taken under repealed Act and it had no effect beyond that. That action would now be deemed to have taken place under Act 40 of J 971.

It has not even been contended before us that any action against the appellant£ 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 past enactment when that pro-cedure, taken by i.l!self, did not infringe constitutional guarantee, did not make its shortcOming or deficiency incurable. The in· validity of that procedure, if any, could only result from the

operation or effect upon it of the extraneous factors of an omis· sion from the lltatute and of the procedure under the ordinary law. I would equate the legal position, which may thus emerge, with one in which the drastic procedure was merely under shadow or in state of suspension or unenforceability due to reasons falling outside the Act 32 of 1958. Once those reasons are eliminated by the new enactment, the shadow is removed and the ·old procedure becomes operative and effective retrospectively in new garb without change in the substance beneath it. If no one can have vested right in procedure which does not, by itself, violate comstitutional guarantee, one could not,. .fortiori, insist that it should not bear particular descriptive label •ldlich is there to alucidate the meaning only. Afterall, we are coilcerri· ed with the real meaning and effe()I ofthe words .used and not with what they may be made to appear to convey by merely clever play with words.. The unmistakable effect of what was laid down by the Act 40 of 1971 was simply that the oJl'lion to proceed to evict unauthorised occupants of public properties in any way out-side the Act was shut out retrospe()lively This was dearly wi1hin the legislative competence of Parliament.

For all the reasons given by my learned Brother Ray as well as for few more given above I respectfully agree with orders made hy my I.earned Brethren.

Appeals dismissed.