MAGANLAL CHHAGGANLAL (P) LTD versus MUNICIPAL CORPORATION OF GREATER BOMBAY & ORS.

MAGANLAL CHHAGGANLAL (P) LTD.

MUNICIPAL CORPORATION OF GREATER BOMBAY & ORS .

April 11, 1974

rA. N. RAY, C.J., D. G. PALEKAR, H. R. KHANNA, K. K. MATHEW, A. ALAGIRISWAMI, P. N. BHAGWATI AND V. R. KRISHNA IYER, JJ.J

Consrit"tion of Jndfa, 1950, A.rt. 14-Provision in the Bon1bay Municipal Corporation Act, 1888 and the Bombay Goi•er11nlefll Pren1iscs (Eviction) Act, 1955, for .vpeedy procedure of eviction in addition to procedure in civil suit-Stn!cial procedure, if discrbninatory.

Chapter VA was introduced in the Bombay Municipal Corporation Act, 1888, bv Maharashtra Act 14 of 1961. It consists of ss. 105A to 105H. Se~tion Hl5A (d) defines unauthorised occupation. Under s. 1058 (p) tho Commi,sioner, by notice served on the person in unauthorised occupation could order him to vacate within one month of the date of service of the notice. on any of the grounds nicntioned in clau:ies (a), (b) and (c) of that sub-section. Vader sub-s. (2), before making such an order, the Commissioner shall issue notice to the pi:;rs:ons concerned specifying the grounds on which the order of eviction j5 proposed to be made and to show cause against the proposed q-rder of eviction. The person concerned can file written statement, produce docun1ents and is entitled to appear b:fore the Commissioner by lawyer. If, after hearing the person concerned the Commissioner is satisfied that the case falls under clauses (a), t b) or ( c} of sub-s. (I) he is~n1es notice of eviction, and, if the person .'>O ordered to vacate fails to comply with the order he, as well as any other person whl) obstructs eviction, can be evicted by force under eub-s. (3). Under :;ub-s. (6) the Commissioner may, in certain cases, in lieu of evicting the person cancel the· order under eub-s. (1) and such person may continue in oc..:upation. Under s. 105E tho Commissioner, for the purpose of holding an~· inquiry under the Act. has the siimo powers as are vested in civil court under thei C.P.C. in (e.;;pect of. (i) summoning and enforcing the attendance of any person and examining him on oath, (ii) requiring the discovery and production of docu-rnents. and (iii) any other matter which may be prescribed by regulations under s. f05H. Under s. 105F everv order of eviction is appealable to the Principal Judge of the Citv Civil Court of Bombay or su1;h other judicial officer of not less than 10 years standing as tho Principal Judge may designate. The appellate Judge. is given power to stay the enforcement of the order of Conunissioner on conditions and is required to dispooe of the appeal expeditiously. Section 105G provides that, subject to the result of the appeal, every order of the Co111n1iss.ioner or of the aopellate Judge is fina1. Under s. 105H regulations may he made. inter alia, in respect of holding of inquiries and the procedure to be followed in appeals.

The Bon1bay Government Premise!'\ (Eviction) Act, 1955, also lays down S1Jectal procedure for eviction of persoru from government premises which i~ 1nore or less similar to Chapter V of the Municipal Act. The power to order the eviction is given to an authority not lower in rank than Deputy Collector or an Executive Engineer, Section 8A of the Act provides that no civil conrt ~hall have jurisdiction to entertain any suit or proceedings in respect of eviction. The-re is no such provision in the Municipal Act but the proceedings in the in:ltant cases arose before s. 8A was introduced in the 1955-Act by Maharashtra Act of 1969.The constitutional validity of Chapter VA of the Municipal Act and the pro-visions of the Government Premises (Eviction) Act, as it stood prio1· to its amendment by Maharaahtra Act of 1969, was challenged on the ground that they contravene Art. 14. on the basis of the decision of thi3 Court in Northern !tr.dia Ca/ems [1967] 3 S.C.R. 399, wherein it was held, by tho majority of judges, that amongst occupants of public premises inter se there was discrimination in as much as the special procedure in the Punjab Public Premises and Land 2-1J!Sup.Clr75

(Eviction and Rent Recovery) Act, 1959, Vias more-drastic ilnd prejudicial than . the ordinary procedure of civil suit and that it was left to the arbitrary ani.I imfettered discretion of the Government to adopt such _special proJ:edurr:. against !Ome and not against the others.

HELD (By Full Court) : The impugned provisions of the two Acts are violative of Art. 14.

(Per A. N. Ray~ CJ .• Palekar. MatheW and Alagiriswami, JJ.) :

(1) It cOuld not be contended that the special provisions of law app!ying to government and public bodies are not based upon reasonable classitication or that they offend ArL 14. [10 F-GJ

(2) The mere av<i.ilability of two procedures· will not vitiate one of them, namely. the special procedure. (23 B]

\Vhere statute providing for more drastic procedure different from the ordinary procedure covers the whole field covered by the ordinary procedure a, ;in A11waraJi Sarkar's Case [1952] S.C.R. 284 and Surajn1al Afollftls case'[l96.5j 1 S.CR. 448, without any· guidelines as to the c!ass of cases in which either . pro:edure to is be resorted to, the statute will be hit by Art. 14. But provi':)ion for appeal may cure the-defect. Also in such cases, if from the preamble and surrounding circumstances as welt as the provisions of the statutes themselves. explaint:d and amplified by affid; vits, necessary guidelines could be infern;d as . in the Saurashtra Case [1952) S.C.R. 435 and Jyoti Persllads' case [1962) 2 S.C.R. 125.· the statute will not be hit by the Article. \V"'ere the !"tatute itself covers only clasS of cases as in Haldar's case [1960]'2 S.C.R. '>46 and Bajoriffs case (1954] S.C.R. 30 the statute will not be bad. The fact that in such cases executive will choose which cases are to be tried under tho special procedure will not affect the validity of the statute. [22 G-23 BJ

(3) In the present cases, the statutes themselves, in the two clisses of cases, that~, •premises belonging to the Corporation and the Government, clearly lay ·down the purpose behind- them; namely that they should be subject to speedy procedure in the matter of evicting unauthorised persons occupying them. The fact that the legislature considered that the ordinary procedure is insufficient or ineffective for evicting the unauthorised occupants and provided special !peedy procedure therefor. is clear and sufficient guidance for the authorities on whom the duty of evicting such occupants and the power to do so has been conferred. [23 B-GJ

(4) Further, it .would be extremely unreal° to hold that an administrative ·officer· would,- in taking proceedings for eviction of unauthorised occupants of government and municipal property, resort to the procedure prescribed in the two Acts in some cases and to the ordinary civil court in others. In considering whether the officers would be discriminating between one set of persons and another, ·one has to take into account normal human behaviour. It is not every fancied possibility of discrimination but real risk that must be taken into account. Discrimination is not writ large on the face of the statute; it may be pcssible but highly improbable, and, if there is discrimination in actual practice the p0wer of thil Court can be invoked. (23 D-G)

· (5) Moreover, considering the object with which the special procedure has been enacted the procedures laid down by the two Acts are not so harsh or un· conscionable as to suggest that discrimination would result if resort to them is had in i;ome cases and to the ordinarv civil court in others. Even though the ofti :rS deciding the question are administrative officers there is ample provision in the A.ct."" for notice of the grounds of eviction and opportunity to the person affected to- tile written statement and produce documents. He c:i.n also be rcpresCnteJ by lawyer and the officer himself has ~wer to enforce attcn~ance of witnesses to examine them on oath, and to order discovery and production of doi:Uments. • 'There is also provision for aopeal to the Principal Judge of th: City · Civil Court .or District Juclge. · It may be that second appeal is no_t avai11ble to the affected pen;,on ~ when procedure before an ordinary civil court is foUow· ed, but ~e aggrieved party may _resort to the High Court under either Art. 226 or 227 Bild this Is not less effective than second appeal. (24 D-H]

Lachmandas Kewalram Ahuia v. Bombay [1952] S.C.R. 710; Shru Meellllbhl Mills Ltd. v. Sri A. V. ViswaMtha Sastri [!955] 1 S.C.R. 787; Muthlah v. C.l.T. Madras [1955) 2 S.C.R. 1247; T/umgal Kuniu Musaliar v. M. Venkltachalam Patti & Anr. [1955] 2 S.C.R. 1196 and Rarnkrishna Dalmia v. Justice Tendolkar [1959] S.C.R. 279. referred to.

(6) Th~ majority of the Court ~n the Northern India Ca~ere1s' case in i~~r­ing the obligatory nature of the notice under s. 4 of the PuD]ab Act and tho dis-cretionary power under s. 5 which was to be exercised after hearing the party, were in error in proceeding on the basis of s. 5 alone and holding that it con-ferred arbitrary Power on the Collector to resort to the power under the Act in the case of some and to suit in the case of others. Under s. 4, if the Collector is of opinion that person is in unauthorised occup&tion and has to be evicted he shall issue notice to him to show cause why an order of eviction should not be passed. But after consjderine; the cause shown, evidence produced and after giving the person reasonable opportunity of being heard the Collector '"4Y order eviction. Therefore, if he is of opinion that it is Ca!e where suit ii more appropriate he may not order eviction, and then, it would be for the Government to institute the suit. The ColJector has no discretion either to file suit or to take proceedings under the Act. Nor can the Government order the Collector to pass an order of eviction in every case under s. 5 as the power under th.at section is the Collectors' statutory pcwer. [23 H-24 DJ

Northern India Caterers Ltd. v. Punjab [1967] 3 S.C.R. 399, overfl!led.

(Per Khanna J) :(1) The simple fact that there are two forums with diffe-rent procedures would net justify the· quashing of the impugned provisions as being violative of Art 14 especially when both procedures are fair and in con-sonance with the nrinciples of natural justice. What is necessary to attract the inhibition of the Article is that there must be substantial and qualitative dit'fc-rences between the two procedures so that one is really and substantially more drastic and prejudicial than tne other. dogmatic and finical approach in appJyin• the Article should be avoided. [26 C-D]

The impugned provisions provided for the giving of notice to the party affect-E ed; he bas to be informed of the grounds on v:hich the order for eviction is pro-posed to be made; he has to be afforded an opportunity to file ·written statement and produce documents; and he can be represented by lawyers. The provisions of the C.P.C. regarding summoning and enforcing attendanee of persons and examining them on oath as also those relating to discovery ana production of documents which are made applicable, provide valuable safeguard. The aggrieved party has right of appeal and the appeal lies not to an administra-tive officer but to judicial officer of the status of Principal Judge of the City Civil Court or District Judge. If the appellate officer concerned acts beyond his jurisdiction his order would be liable to be assailed under Arts. 226 and 227 of the Constitution. Therefore. the procedure envisaged in the impugned provisions is not so onerous and drastic as would justify an inferCnce of discri-minatio~. [25 H-26 CJ

(2) It ~·ould thus appear that some of the infirmities from which the Punjab Act, which was struck down in the Northern India Catereri Case LI 9671 3 S.C.R. 399, ~uffered. are not present in the impugned enactments. Hence there are no trufficient grounds for overruJing the view expressed by the majority in the Northern India Cater"s Case. [25 D, 29E-F]

This Court may, no doubt, in appropriate cases overrule the view previously taken by it but that should only be for cornoelling reasons. Necessity mav sometimes be felt of ridding stare dtcisis of its petrifying rigidity, Some ncW aspe-<:ts may come to light and it may become essential to cover fresh grounds to meet the· new situations or to overcome difficulties which did not manifest them-selves or were not taken into account when the earlier view was propounded. Law. if it has to satisfy human needs and to meet the problems of· Hfe. must adapt it.elf to cope with new situatiollS. It has to bo recognised th•t there is continuous process of growth of law and one can retard it onlv at the risk of alienating Jaw from life itself. There should not be much hesitation to abandon an untenable position when the rule to be discarded was, in its origin, the product

of institutions or conditions which have gained new significance or development with the progress of years. It sometimes happen that the rule of law \vhich grew up in remote generations may, in the fulness of expenence, be found to serve another generation badly. The Court cannot allow itself to be tied down and become captive of view which, in the light of the subsequent experience, has been found to be patently erroneous, manifestly unreasonable or to cause hard-ship or to result in plain iniquity or public inconveni.ence. [27 B-G] . In Bengal Inununity Co·. Ltd. v. State of Bi!1ar, {1955J 2 S.C.R. 603 althoe.gh this Court affirmed its pO\Ver to overrule and depart from the view expressed in its previous judgments, it also stressed the importance of not lightiy dissenting (rom previous pronouncements of this Court. view which has been accepted for long period of time should. not be disturbed unless the court can say posi-tively that it \Vas wrong, or unreasonable, or that it was productive of public hardship or inconvenience. It has to be borne in mind that certainty and con-tinuity are essential ingredients of rule of law, and certainty in law would be con-siderably eroded and suffer serious set back if the highest cowi of the land r~adily overrules the view expressed by it in earlier cases even thougil that view has held the field for number of years. ln inany cases \vhich come up before this Court two views are possible and !limply because the Court considers that the view not taken by the Court in an earlier ca<ie was better view would not justify the overruling of the view· taken in the earlier case. The law laid down by this Court is binding upon all courts in the country under Art. 141 and numerous cases all over the country are decided in accordance with the view taken bv this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this Court. It \Vould create uncertainty. instability and confusion if such view is held lo be not the correct law. [26 F-27 B; 28 E·G; 27 E·F]

'fhe Court has thus to keep the balance- behvecn the need o! certainty and i.:ontinuity and the desirability of growth and develop1neut of law. On the one hand the need is to ensure that the judicial inventiveness shall not be desiccated or stunted and on the other it is essential to curb the temptation to lay down new and novel principles in substitution of \Vell-established principles in the ordinary run of cW1es and the readiness to canonise the new principles too quickly before their saintliness has been affirmed by the passage of time. (27 F-H]

It n1ay be that the view expressed by the minority in the 1\/ortiur11 India Caterers case appears to be preferable but that by itself would not show that decision arrived at by the majbrity was plainly erroneous requiring to be over-ruled. It also cannot be said that the decision had given rise to public incon-venience and hardship. 'fhe legislature, in view of the inajority decision in . the ca<>e, made necessary arnend111ents in many ot the enacr1nents 1:.0 as to bar the jurisdiction of the civil court in matters dea1t with.by those enactments, and no con.stitutional amendment was required to set right the difficulty c:xperienced as result of the majority decision. [29 F-H]tPer Bhagwati and Krishna Iyer, JJ) : ( 1) It is not uncorun1on to find legis-lation according special treatment to Government or other public bodies, and such legislation has been upheld by this Court in numerous decided cases. But from that it does not follo\v that every laW which gives differential treatment to government or other public bodies is nece!'i<Jarily immune from challenge on the ground of discrimination. 'fo get out of the reach of the equality clause in Art. 14 it must appear that not only classification has been made but also that it is one ba<>ed on some real distinction bearing just and reasonable relation to the object of the legislation a:s<l is not mere arbitrary selection. [34 C-D, G-H. 35 A·B]

In the present case, the speedy machinery for eviction of unauthorised occu-pants of 9ublic premises is justified in that it is _in the interest of. public t.hat speedy and expeditious recovery of such preffilses from unauthonse<l occupiers is made possible through the in<>trumentality of speedier procedure instead of tho elaborate procedure bv way ?f civil. s~it involving both_ex~'ense an~ ~elay. There is thus valid basis of differentiation and the constitutional vahd1ty of the impugned provision~ in the rwo statutes cannot, in the circumstances, be assailed on the ground that they make unjust ~iscrimination bet~een oc:upiers of goverrunent or 1nunicipal premises and occupiers of other pren11~es. [3) G-36 CJ

(2) Unlike the decision in Arizona Copper Co. v. Hanuner (63 Law. Ed. 1058; 250 U.S. 400} which was concerned with party having several rights to relief arising out of the same act, the present case is concerned 'vith the existence of several remedies in enforcement of single right to relief. The only right which is sought to be enforced by the Municipal C)rporation and the Government is right based on title given by the general law (1f the land and it is for the enforce-ment of this right that two alternative procedures are available to the !Vlunicipal Corporation or the Government. Therefore, it could not be urg~d by the res-pondents, on the basis of the Hanuner case, that the constitutional guarantee under Art. 14 is not violated where the law gives free choice of remedies to person entitled to relief even if one remedy is more drastic and prejudicial than the other. If for determination and enforcen1ent of liability two alternative procedures are available, one more drastic and prejudicial than the o.ther and no guiding policy or principle is laid down by the legislature as to whi!n one or the other procedure shall be followed, so that, either procedure may be indiscrimi-nately adopted against persons similarly situated, the la\v providing for the more drastic and prejudicial procedure would be violative of the equal protection clause. [40 A-C, El

Arizona Copper Co. v. llanuner, 63 Law. E<l. 1058; 250 U.S. 400, explained. State of West Bengal v. Anwar Ali, [1952] S.C.R. 284, Shri Meenakslu1 Mills Ltd., Madurai v. A. V. Visvanatlia _Sastri, [1955] 1 S.C.R. 787, Surai Mull Mohta v. A. V. Vishvanatha Sastri, [1955] 1 S.C.R. 448, Kathi RaninR Rawat v. The State of Saurashtra, [19521 S.C.R. 4J5, Kedar Nath Baj.aria v. State of West Bengal, [1954] S.C.R. 30, and M. Ct. Muthiah & Ors. v~ The Commissioner of l11con1e-tax. Madras & Anr. [1955] 2 S.C.R. 1247, referred to. (3) The initiation of the special procedure provided in Chapter V1\ of the :rviunicipal Act is with the Municipal Commissioner as he is to issue notice under s. 105-B(3)but, so far as the ordinary procedure of civil suit is concerned, it can only be filed by the Municipal Corporation with the previous approval of the Standing Committee. It could not however be contended, on this basis that the choice between the two alternative procedures is not vested in the same authority and that therefore there is no violation of Art. 14. [45 E-G]

It is not necessary in order to incur the condemnation of the equ.ality clause that the initiation of both procedures should be left to the arbitrary discretion of one and the same authority. What thi equality clause strikes at is discrimina-tion howsoe.ver it results. To the person subjected to the more drastic and onerous procedure it is immaterial whether such procedure is put into operation by one or the other agency of the government or the public authority. lt would he nothing short of hypertechnicality to say that action against him is not initiated by the Municipal Commissioner or the Collector. TI1e constitutionality of statutory provision cannot turn on mere difference of the hands that harm, though both belong to the Government or the Corporation for otherwise, it would be easy to circumvent the guarantee of equality and to rob it of its substance by subtle and well manipulated statutory provision vest.ing the more drastic and prejudicial procedure in different organ of the government or public authority than the one in whose hands lies the power to initiate the ordinary procedure. One must look at the substance and not the form. · [46 A-H]

( 4) l\tioreover, it is not correct to say that it is the Municipal Commissioner who initiates the special procedure set out in Chapter VA of the Municipal Act. When he issues notice under s. 105B (2) against an occupant he really acts on behalf of aond for the benefit of the Municipal Corporation, whose right he seeks to enforce. Similarly the Dy. Collector or Executive Engineer acts on behalf of the Government. Therefore, it is really the Municipal Corporation and the Government that avail themselves of the. special procedure. (47 B-D]

(5) It could not also be contended on behalf of the respondents that even where two procedures are available against person, one substantially more drastic and prejudicial than the other and there is no guiding principle or policy laid down by the legislature as to when one or the other sha1I be adopte<l. there \Vould still be no violation of the equality clause if both procedures are fair. Such contention n1ay be relevant where the question is as regards reasonable~ ness of the restriction under Art. 19, But when the question is under Art. 14, mere fairness of the special procedure which is in1pugned as discrin1inatory is

not enough to take it out of its inhibition. What has to be considered is whether there is equality before law; and therefore the question whether the two proce-dures are so disparate substantially and qualitatively as to lead to unequal treatment, has to be asked and answered. [47 E-48 C]

unequal

(6) The challenge against the constitutional validity of Chapter V-A of the l\iunicipal Act and Government Pre111ises Eviction Act must, however, be rejected. [53 G-Hl

No classification can be logically complete or precise. Life is not capable of being divided into water-tight divisions and categories. The legislature .can therefore do not more than define broad categories and indicate the policy and purpose underlying the legislation and leave it to stated authority to make selective application of the law in accordance with such policy and purpose. It is inevitable that when special procedure is being prescribed for defined class of persons such as occupiers of municipal or government premises, dis-cretion--of course guided and controlled by the underlying policy and purpose of the legislature-must necessarily be left in the administrative authority to select occupiers of municipal or government premises to be brought within the operation of the special procedure. That would not be obnoxious to Art. 14 because, in such case, the discretion to make the selection would be guided and controlled discretion and not an absolute and unfettered one. In such cases, the power given to the executive body would import duty on it to classify the subject-matter of legislation in accordance with the objective indicated in the statute. The discretion has to be exercised in conformity with the policy to effectuate which the direction is given and it is in relation to that objective that the properiety of the classification would have to be tested. It is, therefore, not correct, to say that merely because the Municipal Corporation or Government is not compellable to adopt the special procedure set out in the impugned provisions against ail occupiers of municipal or government pren1ises, but is vested, with the discretion in the matter, the impugned provisions offend against Art. 14. It would indeed to be odd and certainly harsh and oppressive to the occu-piers of municipal or government premises if the Municipal Corporation or Munici-pal Commissioner or Government were to be compelled to adopt the special procedure in all cases. The nature of the dispute, the c.Jmplexity of the issue arising for consideration and the legal competence of the adjudicatng authority to decide such questions will have to be [1]..veighed alongside with the need for speedy and expeditious recovery of municipal or gov~rnment premises for public uses which is the basic volicy and purpose underlying the legislation. and, the Municipal Corporation or Municipal Commissioner or Government would have to decide in accordance with the guidance furnished by these con-siderations, whether, in given case, the special procedure should be adopted or the occupier of the municiPal or government premises should be proceeded against under the ordinary procedure. There is thus clear guidance provided by the legislature_ as to when the special procedure should be adopted and when the case should be left to be dealt with under the ordinary procedure and the impUgned provisions do not suffer from the vice of discrimination. [4'9 C-50 F)

Kathti Ranin~ Rawat v. Tlze State of Saurashtra, [1952] S.C.R. 435, Kedar Nath Bajon'a v. State of West Bengal, [19541 S.C.R 30, and A. Thangal Kunju Mu.raliar v. M. Venkitacha{am Potti, [1955] 2 S.C.R. 1196, referred to. Northern [ndi'a Caterers Ltd. v. Stare of Pu·n;ab, [1967] 3 S.C.R. 399, overruled.

(7) It must also be constantly borne in mind, for otherwise it is likely to distort the proper perspective of Art. 14, that mere minor differences between the two procedures would not be enough to invoke the inhibition of the equal.ity clause. What the equality clause is intended to strike at are real and substantial disparities, substantive or processual, and arb~trary or. capricious actions of t~e executive, and, it would be contrary to the obJect and 1ntendment of the equality clause to exalt delicate distinctions, shades of harshness and theoretical possi-bilities of, prejudice into legislative inequality or executive discri1nination. [54

There is no formula by which it can be said that one procedure is stantially n1ore drastic and onerous than the other. It

is sub-It does not follow that

merely because one procedure provides the forum of civil court- while the other provides the forum of an . administrative tribunal that the latter . is • necessarily more drastic and onerous than the former. It is well konwn that regular suit in the civil court has long dtawn out, expensive and escalating litigative system which often spells ruin to the ordinary man, and consequently, by contrast, prompt and inexpensive instrument, though · manned by •Wministrative personnel untrained in the sophisticated court methodology and unaid-cd by long and intricate arguments of counsel eniiaged on o_nero_us terms, may be preferred by many in this country. The procedure of the civil court also suffers from many technicalities. It functions on the· basis of adversary system of administration of justice which may bring about inequality where the opposing adversaries are not evenly balanced. It is quite possible that in certain types of cases people may reteive better justice where judicial formalism is kept out and the procedure is made informal. The many-tiered system of appeals built into the judicial pyramid often results in pyrrhic victory and leads to disenchantment with the end product of delayed justice. Therefore, whenever special machinery is devised by the legislature entrusting the power of determination of disputes to another authority set up by the legislature in substitution of courts of law one should not react adversely against the establish-ment of such an authority merely because of certain predilection for tho prevailing system of administration of justice by courts of la~. [~4 F-55 GJIn the present case, it is apparent that the special procedure set out in Chapter V-A of the Municipal Act is not substantially more drastic and pre-D judicial than the ordinary procedure of civil suit. Tho initial authority to determine the liability to eviction is no doubt the Municipal Commissioner who is the Chief Executive Officer of the Municipal Corporation and who may not be possessed of any legal trainin~ but s. 68 o_t the Municipal Act provides that this function may be discharged by any Municipal Officer whom the Municipal Commissioner may generally or specially empower and the Municipal Commissioner can authorise Deputy Municipal Commissioner attached to the • 1 legal department of the Municipal Corporation to discharge this function. The determination of liability to eviction is therefore really, in practice, made by an officer having proper arid adequate legal training. Then again, the occupant against whom the snecial procedure is set in motion would have right to file his written statemeilt and produce documents and be would also be ·entitled to examine and cross-examine witnesses. The officer holding the inquiry is given the power to summon and enforce the attendance of witnesses, examine them on oath and also require the discovery and production of documents. The occupant is entitled to appear at the inquiry by an Advocate. Thus, in effect and substance the same procedure which is followed in civil court ~ made available in the proceeding before the ·officer holding the inquiry~ There is also right of appeal against the decision of such officer to senior and highly experienced judicial officer and not to mere executive authority, namely, the Principal Judge of the City Civil Court or any other judicial officer of not Jess than 10 years standing. It is also op~ to the aggrieved party to bring up th.e matter before the High Court for examination under Art. 226 and 227 even though revision application against the appellate or~er is not provided f~r. The ultimate decision is, thus, by jU.dicia1 officer trained in the art and skill of law and not by an executive officer. Therefore, in the context of need for speedy and expeditious recovery of public premises for utilisation for important public uses, where dilatoriness of the procedure may defeat the very object of recovery, the special procedure set out in the two Acts cannot be reg<irded as really and substantially more drastic and prejudicial than . the ordinary procedure of civil court. The two procedures are not so substantially and qualitatively disparate as to attract the vke of discrimination. (55 c;._._56]

Crv1L APPELLATE JURISDICTION : Civil Appeal No. 680 of 1968. II From the judgment and order dated the 21/23rd day of. August, 1967 of the Bombay High Court in Misc. Petition No. 478 of 1966 .. Civil Appeals Nos. 2076-2080 of 1969 & 2093-2103 of 1969.

From the judgment and order dated the 14/17th March, 1969 of the Bombay High Court in Special Civil Application Nos. 676, 837, 838, 840 and 841 of 1967 and 827 to 836 and 839 of 1969.

Civil Appeal No. 2527 of 1969.

From the judgment and order dated the 21st/24th August, 1967 of the· Bombay High Court in Special Civil Application No. 1116 of 1966, Civil Appeal No. 249 of 1970.

From the judgment and order dated the 25th August, 1967 of the Bombay High Court in Special Civil Appeal No. 1138 of 1966. ·Writ Petitions Nos. 333-348 of 1970.

Under Art. 32 of the Constitution of India.

A. K. Sen, S. C. Mazumdar and S. K. Basu, for the appellant (in

C.A. 680/68).

• G. L. Sanghi, A. D. Merchant and B. R. Agarwala, for the appellant (in C.As. 2076-2080/69 and 2093-2103/69).

S. l. Sorabjee and B. R. Agarwala, for the appellant (in C.A. 2527 /69).

S. l. Sorabjee, A. D. Merchant and B. R. Agarwala, for the peti-tioner (in W.P. 333-348/70).

B. R. Agarwala, K. L. flathi and P. C. Kapoor, for the appellant (in

C.A. 249/70).

R. l. Joshi, M. N. Kothari, K. S. Kadam, P. C. Bhartari, J, B. Dada-chanji, 0. C. Mathur and Ravinder Narain, for respondents Nos. 1 & 2 (in C.A. 680/68).

M. C. Bhandare, K. S. Kadam, P. C. Bhartari, J. B. Dadachanji, 0, C. Mathur and Ravinder Narain, for respondents Nos. 2 and 3 (in C.A. Nos. 2527169). ·

M. C. Setalvad, Y. S. Chitale, K. S. Kadam, P. C. Bhartari, J. B. ·_ Dadachanji, 0. C. Mathur and Ravinder Narain for respondent Nw. 1 and 2 (in CA No. 249 /70) .

. M. C. Bhandare and M. N. Shroff, for respondent Nos. 7 (in C.A. 2527 /69) and for respondent no. 3 (in C.A. 249/70).

V. S. Desai and M. N. Shroff, for respondent No. 3 (in C.A. 680/ 68 and respondent no 2 in (in C.As. 2076-2080/68, 2093-2103) and for respondent nos. 2 & 3 (in all the W.Ps.) .

. The Judgment of A. N. Ray, C.J., D. G. Palekar, K. K. Mathew and A._ Alagiriswami, JJ., was delivered by A. Alagiriswami J., H. R. Khanna, J. gave separate opinion. P. N. Bhagwati, J. also gave separate opinion on behalf of himself and V. R. Krishna Iyer, J.

ALAGIRisWAM1, J.-These appeals and writ petitions relate to the legality of certain proceedings taken under Chapter V-A of the Bom~ay Municipal Corporation Act and the Bombay Government Premises (Ev)ction) Act, 1955. chapter.\:'cA was introduced in the Bombay Municlpal Act,· 1888 by Maharashtra Act 14 of 1961. That chapter cpnta:in$ sections · 105A l!,ntl - 105B. According to- the· provisions · · of those ~e<;tions the Cqmm:issioner in relation· to_ pteJ:nises bl;longing to' or ves\)ng_ ,iJ1,, qrc l'll::~n ~n)~a,•w ' ' --• • • • '• • -._ j '" -!,, • 1[by ]\ ) [tp.ec~ornorl!t\ou;~ud_ ]--.' J I ' " • -" [!~I( ]- •• , " [Oeru,;ral ]''

Manager (also defined as the Commissioner) of the Bombay Electric Supply artd Transport Vndertaking in relation to premises Qf the cor-poration which vest in it for the purposes of that undertaking were granted C"!tain powers of eviction iii respect of unauthorised occupation of any corporation premises. Unauthorised occupation is defined as occupation by any person, of corporation premises without authority for such occupation and includes the continuance in occupation: by any person of the premises after the authority under which he was all?wed to occupy the premises bas expired, or, bas. been duly determlned. Under section I05B the Commissioner, by notice served on the person in unauthorised uccupatioa, could ask him to vacate if he had not paid for period ot more than two months the rent or taxes lawfully due from him in respect of such premises; or sub-let, contrary to the terms or conditions of his occupation, the whole or any part of such premises; or committed,· or is committing, such acts ot waste as are likely to diminish materially the value, or impair substantially the utility, of the premises, or otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such premises; or if any person is in unauthorised occupation of any corpo-ration premises; or any corporation premises in the occupation of any person are required by the corporation in the public interest. Before making such an order the Commissioner should issue notice calling upon the person concerned to show cause why an order of eviction should not be made and specify the grounds on which the order of evic-tion is proposed to be made. The person concerned can file written statement and produce documents and is entitled to appear before the Commissioner by advocate, attorney or pleader. Persons failing to comply with the order of eviction. as well as any other person who obstrl!cts eviction can be evicted by force. Under section 105C there is power to recover rent or damages as arrears of property taxes. person ordered to vacate on the grounds of being in arrears of rent or acting in contravention of the terms under which he is authorised to occupy the premises could be allowed to continue if he satisfies the Commissioner. The Commissioner has, for the purpose of holding any inquiry, the same ·powers as are vested in civil court under the Code qf Civil Procedure, when trying suit, in respect of (a) summoning and enforcing the presence of any person and examining him on oath, (b) requiring the discovery and production of documents, and (c) any other matter which may be prescribed by regulations. An appeal from cver:y order of the Commissioner lies to the principal Judge of the City Civil Court or such other judicial officer as the principal Judge may designate. The appeal is to be disposed .of as expeditiously as possible. Subject to the results of the appeal every order of the Commissioner or the appellate officer is final. The power to make regulaticns includes the power to make regulations in respect of hoJding of inquiries .and the procedure •• -.,. • to " be fo!lowed in such appeals.,. ' • --0.' ·--·---' · . . ' . . . . . . . .

;fl1e, prJ)visio)ls of the Bombay Oover)inient Premises .. (Eviction) A~t ate more. or Jess. siinilar,. eltcept tliat~ey relate to Qovemment pte-lllises and the powerto order .eyietion ls gi;ven. to. the competent aut~o­iity.nQt lower inral)k; than,tlJ<1t.of a,Pep)!ty.CoUector or aq ~x~c:nt1ve ~eer •. ' .-app,o)nted by ' th.e-. "' State ... G~emml'.n~, -. ., ' -· · .. The only qtl)er -matt~r '

I 0 SUPREME COURT REPORTS

in respect cif which the provisions of this Act differ from the provisiens of.the-Bombay Municipal Corporation Act, just now referred to, is that section. 8A of this Act provides that no Civil Court shall have jurisdic-tion to entertain any suit or proceeding in respect of the eviction of any person from any Government premises on any of the grounds specified in section 4 or the recovery of the arrears of rent or the damages pay-able for·use or occupation of such premises. This amendment was made as consequence of the decision of this Court in Northern India Caterers v. Punjab (1967 3 SCR 399). But the matteis arising under this Act and now· before this Court were in respect of proceedings taken before section 8A was introduced in the Act by Maharashtra Act 12 of 1969 and this section has, therefore, no relevance for the purposes of these cases. -

lt was not and could not be argued that the Acts in so far as they provided for special procedures applying te> the State and the Municipal Corporation were invalid. The decisions in Baburao Shantaram More v. The Bombay Housing Board (1954 SCR 572) upholding the exemption of l!remises belonging to the Government or local authority from the provisions of the Bombay Rents~ Hotel and Lodging House Rates Control Act, 1947; The Collector of Malabar v. Erimal Ebrahim Hajee (1957 SCR 970) upholding the provision for special modes of recovery for income-tax; Asgarali Nazarali Singaporawalla v. The Stau of.Bombay (1957 SCR 678) upholding the validity of Criminal Law AmendmenJ Act, 1952 providing for the trial of all olfences punishable under ss. 161, 165 or 165-A of the Indian Penal Code, or sub-s. (2) of s. 5 of the Prevention of Corruption Act, 194 7 exclusively by Special Judges; Shri .Munna Lal&: A.nr. v. Collector of lhalawOI' & Ors. (1961 2 SCR 962) upholding the provision of the Rajasthan Public Demands Recovery Act, 1952 for recovering moneys due to State Bank; Nav Rattanmal v. State of Rajasthan (1962 2 SCR 324) upholding special period of limitation for the Government; Lachhman Das on behalf of Firm Tilak Ram Ram Bux v. State of Punjab (1963 2 SCR 353) up-holding the prollisions of an Act setting up separate authorities for deter-mination of disputes and prescribing special procedure to be followed by them for the recovery of the dues of State Bank; and· Builders Corp. v. Union (1965 2 SCR 289) upholding the Doctrine of priority of Crown Debts, are all instances :where ·special provisions applicable to the State were upheld. It cannot now be contended that special provi-sion of law applying to Government and public bodies is not based upon reasonable classification or that it offends Att. 14.

The submission was much more limited one and that is that as there are two procedures available to the Corporation and the State Government, one by way of suit under the ordinary law and .the other under either of the two Acts, which is harsher and ·more onerous than the procedure under the ordinary law, the latter is hit by Article 14 of the Constitution in the absence of any guidelines as to which pro-cedure .may be adopted, For. this- reliance was wholly placed on tbe decision in the Northern India Caterers' c:ase . . In that case tbe question arose under the Punjab Public .Premises and Land (Eviction and Rent Recovery) Act· of 1959. The majority consisting of Subba Rao, C.J. and Shela! and Vaidialingam, JJ. accepted that there is an intelligible

differentia between the two classes of occupiers, namely, occupiers of public property and premises and occupiers of private property and that it is in the interest of public that speedy recovery of rents and speedy eviction of unauthorised occupiers is made possible through the instru-mentality of speedier procedure. However, they referred to the deci-sions of this Court in State of West Bengal v. Anwar Ali Sarkar (1952 SCR 284), Suraj Mall Mohta v. A. V. Visvanatha Sastri (1965 1 SCR 448), Shree Meenakshi Mills Ltd. Madurai v. A. V. Visvanatha Sastri (1955 1 SCR 787) and Banarsi Das v. Cane Commissioner, U.P. (1963 Supp. 2 SCR 760 : AIR 1963 SC 1417) and concluded that the principle which emerged from these decisions was that discrimination would result if there are two available procedures, one more drastic or prejudicial to the party concerned than the other which can be applied at the arbitrary will of the authority. They thought that as s. 5 con-ferred an additional remedy over and above the remedy by way of suit leaving it to the unguided discretion of the Collector to resort to one or the other by picking and choosing some only of those in occupation of public properties and premises for the application of the more drastic procedure under s. 5 that section laid itself open to the charge of dis-crimination and as being violative of Art. 14, and in that view held that section void. The minority consisting of Hidayatullah and Bachawat. JJ. held that the impugned Act made no unjnstdiscrimination among the occnpants of government properties inter se, that it promoted public welfare and was beneficial measure of legislation, that it was not un-fair or oppressive and that the unauthorised occupant was· not denied equal protection of the laws merely because the Government had the option of proceeding against him either by way of suit or under the Act. They further held that "an authorised occupant has no constitu-tional right to dictate that the Government should have no choice of proceedings, and that the argument based upon the option of the Gov-ernment to file suit is unreal because in practice the Government is not likely to institute suit in case when it can seek relief under the Act".

The decision in Northern India Caterers' case led to the Public Pre-mises (Eviction of Unauthorised Occupation) Act, 1958 being replaced by Public Premises (Eviction of Unauthorised Occupants) Act, 1971 which was given retrospective operation from the date of the 1958 Act and barred the jurisdiction of the Court to entertain suit or proceeding in respect of eviction of any person in unauthorised occupation of public premises. It also led to the amendment of one of the Acts now under consideration, the Bombay Government Premises (Eviction) Act in-troducing therein section 8A, already referred to, barring resort to the Civil Court. Jn Hari Singh v. Military Estate Officer (1973 1 SCR 515) this Court referred to the decision in Northern India Caterers' case and upheld the validity of the 1971 Act on the ground that there was only one procedure for ejectment of persons in unauthorised occu-pation of public premises under the 1971 Act and that there was no vie~ of discrimination under it.

'The. argument based on the availability of two procedures, one more onerous and harsher than the other and, therefore, discriminatory has led some High Courts to resort to various reasoning in order to get

round the effect of the decision in the Northem India Caterers' case. This has happened in tlie case of Madras High Court in Abdul Rashid v. Asst. Engineer (Highways) (AIR 1970 Mad. 387), the Andhra Pradesh High Court in_ M. Begum _v. State (AIR 1971 AP 382) and Meharunnissa Begum v. State of Andhra Pradesh (1970-1 Andh. LT 88) and the Patna High Court in Bhartiya Hotel v. Union of India (AIR 1968 Pat. 4 7 6). The decision of the Patna High Court is one of the cases which was considered along with Hari Singh's case. It is rather interesting that this attack based on Art. 14 of the Constitution should have led to the apparently more onerous and harsher procedure becom-ing the rule, the resort to the ordinary Civil Court being taken away al-together. It is difficult to imagine who benefits by resort to the ordi-nary Civil Courts being barred. One finds it difficult to reconcile one-' self to the position that the mere possibility of resort to the Civil Court should make invalid procedure which would otherwise be valid. It can very well be argued that as long as procedure does not by itself violate either Art. 19 or Art. 14 and is thus constitutionally valid, the fact that that procedure is more onerous and harsher than the procedure in the ordinary civil courts, should not make that procedure void merely because the authority competent to take action can resort to that proce-dure in the case of some and ordinary civil court procedure in the case of others. That constitutionally valid provision of law should be held to be void because there is possibility of its being resorted to in the case of some and the ordinary civil court procedure in the case of others somehow makes one feel uneasy aud that has been responsible for the attempts to get round the reasoning which is the basis in the decision in Northern India Caterers' ca:te.

Let us now, therefore, sce_J/Jhether the decisions of this Court neecs-sarily lead to the conclusion reached by the majority in Northern India Caterers' case. In doing so we shall take the various decisions o[ this Court in their chronological order. The first of these is Anwar Ali Sarkar's case (supra). In that case under s. 5(1) of the West Bengal Special Courts Act, 1950, which read as follows-: ·

"5 (1). Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Govern-ment may by general or special order in writing, direct."

number of persons were tried by the Special Courts constituted under s. 3 of that Act. The Act was entitled "An Act to provide for the speedier trial c~ certain offences" and the preamble declared that "it is expedient to provide for the speedier trial of certain offences." The majority came to the conclusion that the necessity for speedier trial of offences did not provide reasonable basis of classification and the pro-cedure laid down by the Act for trial by Special Courts varied substan-tially from that laid down for the trial of offences genen1lly by the Code of Criminal Procedure and as it left it to the uncontrolled discretion of the State Government to ditect any case which it liked to be tried by the Special Court, it was vold. Das J. (as he then was), who agreed with the majority's conclusion, however, referred to the circumstances which may legitimately call for speedier trial and swift retribution by way ol -punishment to check the commission of such offences, in these words :

"On the other hand, it is easy to visualise situation when certain offences, e.g. theft in dwelling house, by reason of the frequency of their perpetration or other attending circum-stances, may legitimately call for speedier trial and swift retribution by way of punishment to check the commission of such offences. Are we not familiar with gruesome crimes of murder, arson, loot and rape committed on large scale duriog communal riots in particular localities and are they not really different from case of stray murder, arson, loot or rape in another district which may not be affected by any communal upheaval? Do not the existence of the commu-nal riots and the concomitant crimes committed on large scale call for prompt and speedier trial in the very ioterest and safety of the community ? May not political murders or crimes against the State or class of the community, e.g., . women, assume such proportions as would be sufficient to constitute them into special class of offences requiring spe-cial treatment ? Do not these special circumstances add peculiar quality to these offences or classes of offences or classes of cases which distinguish. them from stray cases of similar crimes and is it not reasonable and even necessary to arm the State with power to classify them into separate group and deal with them promptly? I have no doubt in my mind that the surrounding circumstances and the special fea-tures I have mentioned above will furnish very cogent and reasonable basis of classification, for it is obvious that they do clearly distinguish these offences from similar or even same species of offences committed elsewhere and under ordi-nary circumstances. This diffcrentia quite clearly has reasonable relation to the object sought to be achieved by the Act, namely, the speedier trial of certain offences. Such classification will not be repugnant to the equal protection clause of our Constitution for there will be no discrimination, for whoever may connnit the specified offence in the specified area in the specified circumstances will be treated alike and sent up before Special Court for trial nnder the special pro.. cedure. Persons thus sent up for trial by Special Court cannot point their fingers to the other persons who may be charged before an ordinary Court with similar or even same species of offences in different place and in different cir-cumstances and complain of unequal treatment, for those other persons are of different category and are not their -equals."

He, therefore, held that :

"Section 5 ( 1). in so far as it empowers that State Govern-ment to direct 'offences' or 'classes of offences' or 'classes of cases' to be tried by Special Court, alsci, by necessary imp_lication and intendment, empowers the State Govern-ment to classify the 'offeru:es' or 'classes of offences' or 'classes of cases', that is to say, to make proper classifi-

(1975] 1 S.C.R.

cation in the sense I have explained. In my judgment, this part of the sectwn, properly construed and understood, does not confer an uncontrolled and unguided power on the state Government. On the contrary, this power is controlled by the necessity for making proper classification which is guided by the preamble in the sense that the classification must have rational relation to the object of the Act as recited in the preamble. It is, therefore, uot an arbitrary pO\VCf," •

It is interesting to compare this decision with the decision of this Court in the next case, Kathi Raning Rawat v. The State of Saurashtra (1952 SCR 435) which was heard in part alongwith it (Anwl11' Ali Sarkar',· case) but was adjourned to enable the respondent state to lile an affidavit explaining the circumstances which led to the enact-ment of the Saurashtra State Public Safety Measures (Third Amend-ment) Ordinance, 1949. It was heard by the same Bench which decided Anw&r Ali Sarkar's case. Section 11 of the Ordinance there under consideration was exactly in the saine terms as s. 5 (1) of the West Bengal Special Court Act. The only difirence between the two was that the Saurashtra Ordinance was purported to have been passed to provide "for public safety, maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra. However, an affidavit was filed on behalf of the state giving facts and figures relating .to an increasrng number of incidents of looting, TObbery, dacoity, nose-cutting and murder by marauding gangs of dacoits in certain areas of the state and these details were held to support the claim that the security of the state and public peace were jeopardised and that it became impossible to deal with the offences that were committed in different places expeditiously. The affidavit also stated that the areas specified in the notification were the main zones of the activities of the dacoits. The impugned Ordinance hav-ing thus been passed to combat the increasing tempo of certain types of regional crime, the tw<>-fold classification on the lines of type and territory adopted in the impugned Ordinance was held reasonable and ·valid and the degree of disparity of treatment involved as in no way "in excess of what the situation demanded. It was held that "the reference to public safety, maintenance of public order and preserva-non of peace and tranquillity in the preamble shows definite ob-jective and furnishes tangible and rational basis of classification to the State Government for the purpose of applying the provisions of the Ordinance and for choosing only such offences or cases as affect public safety, maintenance of public order and preservation of peace and tranquillity." It would be noticed thus that Anwar Ali Sarkar's case was concerned with piece of legislation which covered the whole field of criminal law without any basis for classification except speedier trial which was. held not to be good ground for classifica-tion, while in f(athi Raning Rawat v. The State of Saurashtra the preamble as well as the notification issued under the Act specified certain types of offences in certain areas alone as being those which ·were to be tried by the Special Judge and were held to validate an .exactly similar provision.

In Lachmandas Kewalram Ahuja & Anr. v. The State of Bombay (1952 SCR 710) section 12 of the Bombay Public Safety Measures Act, 1947 empowered Government to refer cases for trial. by Special Judge and was, therefore, held void as it did not purport to proceed on any classification. This would belong to the same category as Anwar Ii Sarkar' s case. The next case in chronological order is of Suraj Mall Mohta & Co. v. A. V. Visvanatha Sastri & Anr. (1955 1 SCR 448). In that case section 5(4) of the Taxation·on Income Investigation Commission) Act, 1947 was held as· "dealing with the same class of persons who fall within the ambit of section 34 of the Indian Income-tax Act, and as both these sections dealt with all per· sons who have similar characteristics and similar properties, the common characteristics being that they are persons who have not truly disclosed their income and have evaded payment of taxation on in-come, and the procedure prescribed by the Taxation on Income (In· vestigation Commission) Act is substantially prejudical and more tlrastic to the assessee than the. procedure under the Indian Income-tax Act, and therefore, s. 5 ( 4) being piece of discriminatory legis-lation offends against the provisions of article 14 of the Constitution and is thus void." It would be noticed that as in Anwar Ali Sarkar's case in this case also the ordinary law under the Indian Income-tax Act and the extraordinary procedure under the Taxation of Income (Investigation Commission) Act covered the same class of people and there is no indication as to why certain cases should be sent to the Commission and certain cases be dealt with by the regular Income· tax authorities. But here Jagain it is interesting to note the obser-vation :

". . . but the overall picture is that though under the ln<lian Income-tax Act the same officer who first arrives at tentative conclusion hears and decides the case, his deci-sion is not final but is subject to appeal, while under the provisions of sub-section ( 4) of section 5 of the decision of the Commission tentatively arrived at in the absence of the assessee becomes final when taken in his presence, and that makes all the difference between the two procedures. If tMU was provisi.on for reviewing the conclusioltS of the Investigation Commission when acting both as investi-iators and judges, there might not have been such subs-tantial discrimination in the two procedures as would bring the case within article 14; but as pointed out ab@ve, there is no provision of that kind in the impugned Act."

It would, thus appear that if there had been provision for appeal against the decision -0f the Investigation Commission the reference to that Commission would have been held valid. We are referring particularly to this aspect because in both the statutes now under consideration there is provision for appeal to the Civil Court which is safer and more liberal than the provision of appeal under the Income-tax Act to the Appellate Assistant Commissioner and the Appellate Tribunal. Mr. Sen appearing for the appellants, however, tried to argue that the reference to the appeal in this decision wasonly reference to the appeal against the orders of the Income-tax Officer to the Appellate Assistant Commissioner. We do not see how that makes any difference. As already pointed out, the fact that under the statutes under consideration the appeal lies to ,the ordinary Civil Court is point in their favour. The common feature between this case and Anwar Ali Sarkar's case is that the special procedure covers the whole field covered by the ordinary procedure and it was held that there was no rational basis of classification of cases which could be sent to the Investigation Commission. The decisions in Shree Meenakshi Mills Ltd. v. Sri A. V. Visvantha Sastri &; Anr. (1955 1 SCR 767) and M. Ct. Muthioh & Ors. v. The Commis-sioner of lncome-Tax, Madras & Anr. (1955 2 SCR 1247) are on the same lines as in Sura; Mall Mohta's case and do not cali for any discussion. It is interesting to pass on next to A. Thangal Kun;u Musaliar v. M. Venkitacha/am Patti & Anr. (1955 2 SCR l 196) cosc referred by the Government of the United State of Travancore and Cochin under s. 5(1) of the Travancore Taxation on Income (Investigation Commission) Act, 1124 modelled on the Indian Taxation oa Income (Investigation Commission) Act, 194 7, for investigation by the Travancore Income-tax Investigation Commission in 1949. In 1950 the Indian Act was extended to Travancore and Cochin and the Travancore Act was allowed to continue to be in force with certain modifications. It was held that s. 5 (1) of the Travancore Act XIV of 1124 read in Juxta-position with s. 47 of the Travancore Incomc-tax Act, 1121 (XXIII of 1121) was not discriminatory because s. 47(1) of the Travancore Act XXIII of 1121 was directed only against those persons concerning whom definite information came into the possession of the Income-tax Officer and in consequence of which the Income-tax Officer discovered that the income of those persons had escaped or been under-assessed or assessed at too low rate . or had been the subject of excessive relief, and the class of persons envisaged by s. 4 7 ( 1) was definite class about which there was definite information leading to discovery within 8 years or 4 years as the case may be of definite item or items of income which had escaped assessment. On the other hand under s. 5 ( 1) of the Travan- · core Act XIV of 1124 the class of persons sought to be reached comprised only those persons about whom there was no definite in-formation and no discovery ,.f any definite item or item:; of income which escaped taxation but about whom the Government had only prima facie reason to believe that they had evaded payment o( tax to substantial amount. Further, it was definitely limiu:d to the evasion of payment of taxation on income made during the war period, whereas s. 47(1) of ;he Travancorc Act x;xnr of 1121 was not confined to escapement from assessment of mcome-tax made during the war period." It w~, therefore, _held that .there w_as_ no discrimination. It would be noticed how thm IS the !me of d1stmc-tion between tho two lines of classification. But that was held as justifying the different trea_tment ~etween the t;vo classes of Ca;;<'.S: It is interesting to note that m Sura1 Mall Mohtas case the provIS1C!l1 of s.5(1) of the Taxation on income (Investigation Commission) Act

(Act XXX of 1947) referring to the class of "substantial evaders of Income-tax" who required to be specially treated un<ier the drastic procedure provided in that Act was held not to provide valid classi-fication. But in this case the word "substantial" was, by reference to Stroud's Judicial Dictionary and the statement of law by Viscount Simon in Palsor v. Grinling (1948 AC 291, 317) taken along with an affidavit filed in the case, held to mean "class of persons who are intended to be subjected to this drastic procedure". It was also held that "the possibility of such discriminatory treatment of persons fall-ing within the same group or category, however, cannot necessarily invalidate this piece of legislation and that it was to be presumed, unless the contrary were shown, that the administration of paqicu-lar law would be done 'not with an evil eye and unequal hand' and the selection made by the Government of the cases of persons to be referred for investigation by the Commission would not be discrimi-natory." Reference was made to the judgment of Mukherjea, J. in the Saurashtra case to the effect :

". . . ln such cases, the power given to the executive body would import duty on it to classify the subjec.t" matter of legislation in accordance with the objective indi-cated in the statute. The discretion that is conferred on official agencies in such circumstances is not an unguided discretion, it has to be exercised in conformity with the policy to effectuate which the direction is given and it is in relation to that objective that the propriety of the classi-hcation would have to be tested. If the administrative · body proceeds to classify persons or things on basis which has no rational relation to the objective of the legis-lature, its action can certainly be annulled offending against the equal protection clause. On the other hand, if the statute itself does not disclose defirlite policy or objecti\·e and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory irrespective of the way in which it is\ applied."

In Kedar Nath Bajoria v. The State of West Bengal (1954 SCR 30) the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 was under consideration. The Act provided !or special procedure for the trial of certain offences. It was entitled an Act to provide for the more speedy trial and more effective punishment of certain offences. These offences were set out in the Schedule to the Act. The Act empowered the Provincial Government to constitute Special Courts of criminal jurisdiction for specified areas and to appoint Special Judges tc1 preside over such courts. Il was observed that :

" . . . The vice of discrimination, it is said, consists in the unguided and unrestricted power of singling out for ditterent treatment one among class of persons all of whom are similarly situated and circumstanced, be that class large or small. The argument overlooks the distinction 3-LI 3!SupremeCourt]75

between those cases where the legislature itself makes complete classific~tion. of persons or things and applies to them the law which it enacts, and others where the legis-lature merely lays down the law to be applied to persons or things answering to given description or exhibiting certam common characteristics, but being unable to make precise and complete classification, leaves it to an ad-ministrative authority to make selective application of the law to persons or things within the defined group, while laymg down the standards or at least indicating in clear terms the underlying policy and purpose, in accordance with, and in fulfilment of, which the administrative autho-rity is expected to select the persons or things to be brought under the operation of the law. familiar example of this type of legislation is the Preventive Detention Act, 1950, which, having indicated in what classes of cases and for what purposes preventive detention can be ordered, vests in the executive authority discretionary power to select particular persons to be brought under the law. Another instance in point is furnished by those provisions of the Criminal Procedure Code which provide immunity from prosecution without sanction of the Government for offences by public servants in relation to their official acts, the policy of the law being that public officials should not be unduly harassed by private prosecution unless in the opi· nion of the Government, there were reasonable grounds for prosecuting the public servant which accordingly should con-dition the grant of sanction. It is not, therefore, correct to say that section 4 of the Act offends against article 14 of the Constitution merely because the Government is not compellable to allot all cases of offences set out in the schedule to Special Judges but is vested with discrewon in the matter."

Later, reference was made to Anwar Ali Sarkar s case and it was pointed out that the observations made therein were not applicable to the statute under consideration in Bajoria's case which was based on classification which, in the context of the abnomial post-war economic and social conditions was readily intelligible and obvioasly {;alculated to subserve the legislative purpose. Reference was also made to the statement by Mukherjea, J. in the Saurashtra case that:

". . . The object of passing this new Ordinance is identi-cally the same for which the earlier Ordinance was passed, and the preamble to the. latter, taken ~long ~ith. the s~r­rounding circumstances, discloses defimte legislative policy which has been sought to be effectuated by the different provisions contained in the enactment. If special c?urt~ were r:onsidered necessary to cope wzth an abnormal sztuatwn, 11 cannot be said that the vesting of Authority in the State . Government to select offences for trial by such courts is in any way unreasonable."

We may now refer to the decision in Kangsari Haldar & Anr. v. The State of West Bengal (1960 2 SCR 646). There the appellants were prosecuted for having committed offences under s. 120B read with ss. 302 and 438 of the Indian Penal Code before the tribunal constituted under the West Bengal Tribunals of Criminal Jurisdic-tion Act, 1952. notification issued under that Act declared cer-tain areas to be disturbed area within specified period, and the case against the appellants was in respect of their activities in that area ,and during that period. It was held that the "classification made by the impugned Act is rational and the differentia by which offenders are classified has rational relation with the object of the Act to provide for the speedy trial of the offences specified in the Schedule to the Act." It also dealt with certain other offences not specified in the' Schedule to the Act. In dealing with this case the Court observed :

"This question necessarily leads us to inquire whether the discriminatory provisions of the Act are based on any rational classification, and whether the differentiation of the offenders brought within the mischief of the Act has rational nexus with the policy of the Act and the object which it intends to achieve. The preamble shows that the Legisla-ture was dealing with the problem raised by disturbances which had thrown challenge to the security of the State and raised grave issue about the maintenance of public peace and tranquillity and the safeguarding of industry and business. It, therefore, decided to meet the situation by providing for speedy trial of the scheduled offences. Thus the object of the Act and the principles underlying it are not in doubt, It is true that speedy trial of all criminal offences is desirable; but there would be no difficulty in appreciating the anxiety of the Legislature to provide for special procedure for trying the scheduled offences so as to avoid all possible delay which may be involved if the normal procedure of the Code was adopted. If the disturbances facing the areas in the State had to be controlled and the mischief apprehended had to be checked and rooted out very speedy trial of the offences committed was obviously indicated.

The classification of offenders who are reached by the Act is obviously reasonable. The offences specified in the four items in the schedule are clearly of such character as led to the disturbance and it is these offences which were intended to be speedily punished in order to put an end to the threat to the security of the State and the maintenance of public peace and tranquillity. It would be idle to contend that if the offences of the type mentioned in the schedule were com-mitted and the Legislature thought that they led to the dis-ruption of P.ublic peace and tranquillity and caused jeopardy to the secunty of the State they could not be dealt with as class by themselves. Other offences committed by indivi-duals under the sa~e categories of offences specified by the Code could be rationally excluded from the classification

adopted by the Act because they did not have the tendency to create the problem which the Act intended to meet. We are, therefore, satisfied that the classification made by the Act is rational and the differentiation on which the offenders in-cluded within the Act are treated as class as distinguished fpom other offenders has rational nexus or relation with the object of the Act and the policy underlying it. There-fore, it would be difficult to accede to the argument that the Act violates Art. 14 of the ConSIItution."The Court pointed out that the majority decision in Anwar Ali Sarkar's case was based on two principal considerations that, having regard to the bald statement made in the preamble about the need of speedier trials, it was difficult to sustain the classification made by s. 5 (I), and that the discretion left to the executive was unfettered and for its exer-cise no guidance was given by the statute. 1t was pointed out that in the Saurashtra case the majority took the view that the preamble to the Act gave clear indication about the policy underlying the Act and the object which it intended to achieve, that the classification on which the impugned provisions were based was rational classification, and that the differentia on which the classification was made had rational nexus with the object and policy of the Act. They then referred to Lachman-das Kewalram Ahu1a's case and pointed out that it merely followed Anwar Ali Sarkars' case. Reference was then made to the decision in Kedar Nath Bajoria's case and to Chief Justice Patanjali Sastri's state-ment that "the Saurashtra case would seem to lay down the principle that if the impugned legislation indicates the policy which inspired it and the object which it seeks to attain, the mere fact that the legislation does not itself make complete and precise classification of the persons or things to which it is to be applied, but leaves the selective application of the law to be made by the executive authority in accordance with the standard indicated or the underlying policy and object disclosed, is not sufficient ground for eondemning it as arbitrary and, therefore, obno-xious to Art. 14". The result of the earlier decisions was summed up thus :

"The result of these decisions appears to be this. In considering the validity of the impugned statute on the ground that it violates Art. 14 it would first be necessary to ascer-tain the policy underlying the statute and the object intended to be achieved by it. In this process the preamble to the Act and its material provisions can and must be considered. Hav-ing thus ascertained the policy and the object of the Act and court should apply the dual test in examining its validity : Is the classification rational and based CIIl intelligible diffc-rentia; and has the basis of differentiation any rational nexus with its avowed policy and object ? If both these tests are satisfied the statute must be held to be valid; and in snch case the consideration as to whether the same result could not have been better achieved by adopting different classifica-tion would be foreign to the scope of the judicial enquiry. If either of the two tests is not satisfied the statute must be struck

down as violative of Art. 14. Applying this test it seems to us that the impugned provisions contained in s. 2(b) and the proviso to s. 4(1) cannot be said to contravene Art. 14. As we have indicated earlier, if in issuing the notification autho-rised by s. 2(b) the State Government acts ma/a fide or exercises its power in colourable way, that can always be effectively challenged; but, in the absence of any such plea and without adequate material in that behalf this aspect of the matter does not fall to be considered in the present appeal."In Jyoti Pershad v. Administrator for the Union Territory of Delhi (1962 2 SCR 125) section 19 of the Slum Areas (Improve-ment and Clearance) Act, 1956,, which provided that any decree ob-tained for the eviction of tenant in respect of buildings in areas dec-lared "slum areas" could not be executed without the permission of the "competent authority". was held not obnoxious to the equal pr<>-tection of law on the ground that there was enough guidance to the competent authority in the use of his discretion under s. 19 ( 1) of the Act. It was urged before this Court that s. 19(3) of the Slum Areas Act vested an unguided, unfettered, and uncontrolled power in an executive officer to withhold permission to execute decree which the petitioner had obtained after satisfying the reasonable requirements of the law as enacted in the Rent Control Act and thus offends Art. 14. In considering this argument the Court referred to the summary of the decisions of this Court laying down the proper constrnction of Art.. 14 rendered up to 1959, made by Das, C.J., in Ramakrishna Dalmia v. Justice Tendolkar (1959 SCR 279), and made its own summary on slightly different lines. Of them 2 and 4 are important :

1 ................ .

2. The enactment or the rule might not in terms enact discriminatory rule of law but might enable an unequal or discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the legislature vests discretion in an authority, be it the Government or an administrative official acting either as an executive officer or even in quasi-judicial capacity by legislation which does not lay down any policy or disclose any tangible or intelligible purpose, thus clothing the authority with unguided and arbitrary power enabling it to discriminate .

In such circumstanoes the very provision of the law which enables or permits the authority to discriminate, offends the guarantee of equal protection afforded by Art. 14.

3 ............... ,.

4. It is not, however, essential for the legislation to com-ply with the rule as to equal protection, that the rules for the guidance of the designated authority, which is to exercise the power or which is vested with the discretion, should be laid down in express terms in the statutory provision itself.

(Then reference was made to the statement of law in Bajoria's case, which is already extracted.)

Such guidance may thus be obtained from or afforded by (a) the preamble read in the light of the surrounding cip-cumstances which necessitated the legislation, taken in con-junction with well-known facts of which the court might take judicial notice or oL which it is appraised by evidence before it in the form c~ affidavits, Kathi Raning Rawat v. The State of Saurashtra being an instance where the guidance was gathered in the manner above indicated, (b) or even from the policy and purpose of the enactment which may be gathered from other operative provisions applicable to analo-gous or comparable situations or generally from the object sought to be achieved by the enactment."

The Court then went on to observe :

"In the circumstances indicated under the fourth head, just as in the third, the law enacted would be valid being neither case of excessive delegation or abdication oOegisla-tive authority viewed from one aspect, nor open to objection on the ground of violation of Art. 14 as authorising or per-mitting discriminatory treatment of persons similarly situated. The particular executive or quasi-,judicial act would, how-ever, be open to challenge as already stated on the ground not so much that it is in violation of t~e equal protection of the laws guaranteed by Art. 14, because ex concessis that was not permitted by the statute but on the ground of the same being ultra vires as not being sanctioned or authorized by the enactment itself."Though the Court then went into the question whether there was any guidance found or principles laid for the authorities' guidance in the Act, and upheld its validity, the fourth proposition is very important. lu the present cases also affidavits have been filed by the officers stat-ing the purposes for which those provisions were enacted. The very policy and the purpose of the enactments clearly make it apparent that the legislature intended to make them applicable to_ special class (I) the property belonging to the Government,, and (2) property belonging to the Bombay Municipal Corporation and provide for speedy method of recovering those properties.

To summarise:

Where statute providing for more drastic procedure different from the ordinary procedure covers the whole field covered by the ordinary procedure, as in Anwar Ali Sarkar's case and Suraj Mall Mehta's case without any guidelines as to the class of cases in which either procedure is to be resorted to, the statute will be bit by Article 14. Even there, as mentioned in Sura; Mall Mehta's case, provision for appeal may cure the defect. Further, in such cases if from the preamble and surrounding circumstances, as well as the provisions of

the statute themselves explained and amplified by affidavits, necessary guidelines could be inferred as in Saurashtra case and Jyoti Per shad: s case the statute will not be hit by Art. 14. Then agam where tne 3tatute itself covers only class o! cases as in Haldar's case and Bajona's Cilfe the statute will not be bad. The fact that in such cases the executive will choose which cases are to be tried under the special procedure will not affect the validity of the statute. Therefore, the contention that the mere availability of two procedures will vitiate one of them, that is the special procedure, is not supported by reason or authority. · ·

The statute itself in the two classes of cases before us clearly lays down the purpose behind them, that is premises belonging to the Cor-poration and the Government should be subject to speedy procedure in the matter of evicting unauthorized persons occupying them. This is u sufficient guidance for the authorities on whom the power has been conferred. With such an indication clearly given in the statutes one expects the officers concerned to avail themselves of the procedures prescribed by the Acts and not resort to the dilatory procedure of the ordinary Civil Court. Even normally one cannot imagine an officer hJving the choice of two procedures, one which enables him to get possession of the property quickly and the other which would be prclonged one, to resort to the latter. Administrative officers, no less than the courts, do not function in vacuum. It would be extremely unreal to hold that an administrative officer wonld in taking proceed,-ings for eviction of unauthorised ocsupants of Government property or Municipal property resort to the procedure prescribed by the two Acts in one case and to the ordjnary Civil Court in the other. The provisions of these twp Acts cannot b_e struck down on the fanciful theory that power would be exercised in such an unrealistic fashion. fn considering whether the officers would be discriminating between one set of ;persons and another, one has got to take into account normal human behaviour and not behaviour which is abnormal. It is not every fancied possibility of discrimination but the real risk of discrimi-F nation that we must take into account. This is not one of those cases where discrimination is writ large on the face of the statnte. Discrimi-nation may be possible but is very improbable. And if there is dig.. crimination in actual practice this Court is not powerless. Further-more, the fact that the Legislature considered that the ordinary pro-cedure is insufficient or ineffective in evicting unauthorised occupants of Government and Corporation· property and provided special speedy procedure therefor is 'a clear guidance for the authorities ch.irged with the duty of evicting unauthorised occupants. We, there.-fore, find ourselves unable to agree with the majority in the Northern lndia Caterers' 'Case .

- ..,. .•

We should add that the basis of that decision is that section S of the Act enables the Collector to discriminate against some by exercis-ing his power under section 5 and take proceedings by way of suit against others. In proceeding on that basis the majority made an obvious mistake. Under section 4 of the Act 'if the Collector is of

opinion that any person is in unauthorised occupation of auy public premises and that he has to be evicted he shall issue notice in writing calling upon such person to show cause why an order of eviction should not be passed'. Thus the Collector has no option at all but to issue notice. But after considering the cause and the evidence produced by such· person and after giving him reasonable opportunity of bei>1g heard. . . . he may make an order of eviction. Therefore, if he is of opinion that it is case where suit is more proper remedy because of the circumstances of the case or its compHcated nature he may not order eviction. Then it would be for the Government to institute suit. It .is not for the Collector to do so. The Collector has no dis-cretion either to file suit or to take proceedings under the Act. Nor can the Government order the Collector to pass an order of eviction in every case under section 5 as the power under that section is the Collector's statutor}C. power. Thus, the majority, in ignoring the obli,-gatory nature of the notice under section 4 and the discretionary power under secticltl 5 which has to be exercised after hearing the party was in error in proceeding on the basis of section 5 alone and holding that it conferred arbitrary power on the CoJlector to r·esort to the power under the Act in the case of some and suit in the case of some others.It is also necessary to point out that the procedures laid down by the two Acts now under consideration are not so' harsh or onerous as to suggest that discrimination would result if resort is made to the provisions of these two Acts in some cases and to the ordinary Civil Court in other cases. Even though the officers deciding these questions would be administrative officers there is provision in these Acts for giving notice to the party affected, to inform him of the grounds on which the ,order of eviction is proposed to be made, for the party affected to file written statement and produce documents 'l.fld be re-[Jresented by lawyers. The provisions of the Civil Procedure Code regarding summoning and enforcing attendance of persons and examin-ing them on oath, and requiring the discovery and production of docu-ments are valuable safeguard fcj: the person affected. So is the pro-vision for appeal to the Principal Judge of the City Civil Court in the city of Bombay, or to District Judge in the districts who has got to deal with the matter as expeditiously as possible, also sufficient safe-guard as was recognised in Surai Mall Mehta's case. The main diffe-rence between the prclcedure before an ordinary Civil Court and the executive authorities under these two Acts is that in one case it will be decided by judicial officer trained in law and it might also be that more than ·one appeaUs available. As against that there is only one appeal available in the other .but it is also open to the aggrieved party to resort to the High Court under the provisions of Art. 226 and Art. 22 7 of the Constitution. This is no Jess effective than the provision for second appeal. On tlie whole, considering the object with which these Special procedures were enacted by the legislature we would not be prepared to hold that the differen20 between the two procedures is so unconscionable as to attract the vice of discrimination. After aII, Art. 14 does not demand fanatical approach. We, therefore, hold

that neither the provisions of Chapter V-A of the Bombay Municipal Corporation Act nor the provisions of the Bombay Government Pre-mises (Eviction) Act, 1955 are hit by Art. 14 of the Constitution.

In the result all the appeals and writ petitions ar€ dismissed. The Petitioners will pay one set of costs. The Appeals will be posted for disposal before division Bench.

KHANNA, J. I agree that the writ petitions be dismissed, but I would base ,my ccinclusion on the ground that the procedure prescrib-ed by the impugned provisions is not onerous or drastic when compared with that contained in the Civil Procedure Code. My learned brother Alagiriswami J. has analysed the impugned provisions contained in the Bombay Municipal Corporation Act as well as those contained in the Bombay Government Premises (Eviction) Act. It would appear therefrom that some of infirmities from which the Punjab Public Premises and Land (Eviction and Rent Recovery) Act of 1959 suffered are not present in the impugned enactments. The impugned provisions provide for the giving of notice to the party affected. Such party has to be informed of the grounds on which the order for eviction is propos-ed to be made and has to be afforded an opportunity to file written statement and produce documents. The party can also be represented by lawyers. The provisions of the Code of Civil Procedure regarding sun1n1oning and enforcing attendance of persons and examining them on oath as also those relating to discovery and production of documents provide valuable safeguard. The aggrieved party has right of appeal, and the appeal lies not to an administrative officer but to judi-cial officer of the status of Principal Judge of the City Civil Court or District Judge. It is also apparent that if the officer concerned acts beyond his jurisdiction, his order would be liable to assailed under arti-cles 226 and 227 of the Constitution. I would, therefore, hold that the procedure envisaged in the impugned provisions is not onerous and drastic as would justify an inference of discrimination. The simple fact that there are two forums with different procedures would not justify the quashing of the impugned provisions as being violative of article 14, especially when both procedures are fair and in consonance with the principles of natural justice. I agree with my learned brother Bhagwati J. that what is necessary to attract the inhibition of article 14 is that there must be substantial and qualitative differences between the two procedures so that one is really and substantially more drastic and pre-judicial than the other apd that we should avoid dogmatic and finical approach when dealing with life's manifold realities.

I must also utter note of caution against the tendency to lightly overrule the view expressed in previous decisions of the Court. It may

be that there is feeli!'g entertained by certain schools of thought, to quote the words of Cardozo, that "the precedents have turned upon us and are engulfing and annihilating us-engulfing and annihilating the very devotees that worshipped at their shrine. So the air is full of new cults that disavow the ancient faiths. Some of them tell us that instead of seeking certainty in the word, the outward sign, we are to seek for something deeper, certainty relative and temporary, writing on the sands to be effaced by the advancing tides. Some of them even go so far as to ad ju re us to give over the vain quest, to purge ourselves of those yearnings for the unattainable ideal, and to be content with an empiricism that is untroubled by strivings for the absolute.". (see page 9 Selected Writings of Benjamin Nathan Cardozo by Margaret E. Hall). At the same time, it has to be borne in mind that certainty and continuity are essential ingredients of rule of law. Certainty in law would be considerably eroded and suffer serious set back if the highest court of the land readily overrules the view expressed by it in earlier cases, even though that. view has held the field for number of years. In quite number of cases which come up before this Court, two views are possible, and simply because the Court considers that the view not taken by the Court in the earlier case was better view of the matter would not justify the overruling of the view. The law laid down by this Court is binding upon all courts in the country under article 141 of the Constitution, and numerous cases all over the country are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this Court. It would create uncertainty, instability and confusiqn if the law propounded by this Court on the basis of which numerous cases have been decided ·and many transactions have taken place is held to be not the correct law. This Court may, ilo doubt, in appropriate cases overrule the view previously taken by it but that should only be for compelling reasons. Necessity may sometimes be felt of ridding stare decisis of its petrify-ing rigidity. As observed by Brandeis, "stare decisis is always desideratum, even in these constitutional cases. But in them, it is never command" (see The Unpublished Opinions, page 152). Some new aspects may come to light and it may become essential to cover fresh grounds to meet the new situations or to overcome difficulties which did. not manifest themselves or were not taken into account when the earlier view was propounded. Precedents have value and the ratio decidendi of case can no doubt be of assistance in the decision of future cases. At the same time we have to, as observed by Cardozo, guard against the notion that because principle has been formulated as the ratio decidendi of given problem, it is therefore to be applied

as solvent of othfr problems, regardless of consequences, regardless of deflecting factors, inflexibly and automatically, in all its pristine generality (see Selected Writings, page 31). As in life so in law things are not static. Fresh vistas and horizons may reveal themselves as result of the impact of new ideas and developments in different fields of life. Law, if it has to satisfy human needs and to meet the problems of life, must adapt itself to cope with new situations. Nobody is so gilled with foresight that ·he can divine all possible human events in advance and prescribe proper rules for each of them There are, however, certain verities which are of the essence of the rule of law and no law can afford to do away with them. At the same time it has to be recognized that there is continuing process of the growth of law and one can retard it only at the risk of alienatiog law from life itself. There should not be much hesitation to abandon an untenable position when the rule to be discarded was in its origin the product of institutions or conditions which have gained new significance or development with the progress of years. It sometimes happens that the rule of law which grew np in remote generations may in the fulness· of experience be found to serve another generation badly. The Court cannot allow itself to be tied down by and become captive of view which in the light of the subsequent experience has been found to be patently erroneous, manifestly unreasonable or to cause hardship or to result in plain iniquity or public inconvenience. The Court has to keep the balance between the need of certainty and continuity and the desir-ability of growth and development of law. It can neither by judicial pronouncements allow law to petrify into fossilised rigidity nor can it allow revoltitic1nary iconoclasm to sweep away established principles. On the one hand the need is to ensure that judicial inventiveness shall not be desiccated or stunted, on the other it is essentful to curb- the temptation to lay down new and novel principles in substitution of well established principles in the ordinary run of cases and the readiness to canonise the :<ew principles too quickly before their saintliness has been affirmed by the passage of time. The votaries of the pragmatic idea that principles and rules should be accommodated to ends must also take into account the truth that of the ends to be achieved defineness-and order are themselves amongst the greatest and the most obvious. Toc distinction between evolution of law which is permissible by pro-cess of judicial pronouncements and radical changes in law which caII only be brought about as result cf. legislation cannot also be lost sight of. As observed by Cardozo J. :

"I think adherence to precedent should be the rule and not the exception. I have already had occasion to dwell upon some of the considerations that sustain it. To these

I may add that the labour of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid down by ·Others who had gone before him. . . . . . The situation would, bowever, be intolerable if the weekly changes in the com-position of the Court were accompanied by changes in its rulings. In such circumstances there is nothing to do except to stand by the errors of our brethren of the wee1: before, whether we relish them or not. But I am ready to concede that the rule of adherence to precedent, though it ought not to be abandoned, ought to be in some degree relaxed. I think that when rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. We have had to do this sometimes in the field of constitutional law." (see page 170 .and 171 Selected Writings of Benjamin Nathan Cardozo by Margaret E. Hall).

So far as the question is concerned about the reversal of the previous view of this Court, such reversal should be resorted to only in specified contingencies. It may perhaps be laid down as broad proposition tbat view which has been accepted for long period of time should not be disturbed unless the Court can say positively that it was wrong ·or unreasonable or that it is productive of public hardship or incon-·venience. Question about the overruling of its previous decisions was considered by this Court in the c.ase of Bengal Immunity Co. Ltd. v. The State of Bihar & Ors.(') Das Acting CJ. after quoting 'frcjm .American, Australian and Privy Council decisions observed as under :

"Reference is made to the doctrine of finality of judicial •decisions and it is pressed upon us that we shou!il not reverse ·our previous decision except in cases where material pro-vision of law has been overlooked or where the decision bas proceeded upon the mistaken assumption of the continuance of repealed or expired statute and that we should not differ from previous decision merely because contrary view appears to us to be preferable. It is needless for us to say that we should not lightly dissent from previous pronounce-ment of this Court. Our power of review, which undoubtedly exists, must be exercised with due care and caution and only for advancing the public well being in the light of the sur-rounding circumstances of each case brought to our notice b_ut we do not oonsider it right to continue out power w1thm

rigidly fixed limits as suggested before us. If on re-exami-nation of the question we come to the conclusion, as indeed we have, that the previous majority decision was plainly erroneous then it will be our duty ro say so and not to perpe-tuate onr mistake even when one learned Judge who was party to the previous decision considers it incorrect on further reflection. We should do so all the more readily as our deci-sion is on constitutional question and our erroneous decision has imposed illegal tax burden on the consuming public and' has otherwise given rise to public inconvenience or hardship, for it is by no means easy to amend the Constitution. Some-times frivolous attempts may be made to question our pre-vious decisions but if the reasons on which our decisions are founded are sound they will by themselves be sufficient safe-h'l!ard against such frivolous attempts. Further, the doctrine of stare decisis has hardly any application to an isolated and stray decision of the Court very recently made and not follow-e1d by series of decisions based thereon. The problem be-fore us does not involve overruling series of decisions but only involves the question as to whether we should approve or disapprove follow or overrule, very recent previolli deci-sion as precedent. In any case, the doctrine of stare decisis is not an inflexible rule of law and cannot be permitted to perpetuate our errors to the detriment to the general welfare of the public or considerable section thereof."

It would follow from the above that although this Court affirmed itsc. power to overrule and depart from the view expressed in its previous judgmeuts, it also stressed the importance of not lightly dissenting from, previous pronouncements of this Court.

Applying the principle enunciated above also, I am of the view that no sufficient ground has been shown for overruling the view expressed by th(: majority in Northern India Caterers case(!). It may be that the view expressed by the minority in that case appears to be prefer-G able, but that by itself would not show that the decision arrived at in the Northern India Caterers case was plainly erroneous and as such requires overruling. It also cannot be said that aforesaid decision has given rise to public inconvenience and hardship. The legislature has in view of the decision in Northern India Caterers case made necessary amendments in many of the enactments so as to bar the jurisdiction of the civil courts in matters dealt with by those enactments. No consti-

Jutional amendment was required to set right the difficulty experienced .as result of the decision of this Court in Northern India Caterers case.

I am, therefore, of the view that it is not necessary for the purpose of this case to overrule the majority decision in the case of Northern India Caterers.

BHAGwAn, J., These appeals and writ petitions challenge the constitutional validity of Ch. VA of the Bombay Municipal Corpora-tion Act, 1888 (hereinafter referred to as the Municipal Act) and the Bombay Government Premises (Eviction) Act, 1955 (hereinafter referred to as the Government Premises Eviction Act) as it stood prior to its amendment by Maharashtra Act 12 of 1969, on the ground 'that they contravene Art. 14 of the Constitution. The challenge is based mainly on the decisicn of this Court in Northern India Caterers Ltd. v. State of Punjab(!) where this Court held s. 5 of the Punjab .Public Premises and Land (Eviction and Rent Recovery) Act, 1959 to be void as being in conflict with Art. 14 of the Constitution. The -.question is whether the ratio of this decision is applicable to the pro-·visions contained in Ch. VA of the Municipal Act and the Govern-lfilent Premises Eviction Act, and if it is, whether this decision requires .to be reconsidered by us.The Municipal Act is an old statute enacted for the purpose of 11roviding for the municipal administration of the city of Bombay. Ch. VA was introduced in the Municipal Act by Maharashtra Act 14 of 1961. It consists of fasciculus of sections commencing from s. ~05A ,and ending with s. 105H. Section 105A is tl]e definition section which gives definitions of various terms used! in Ch. VA and one of those terms is "unauthorised occupation" which is defined by cl. ( d) to mean occupation by any person of Corporation premises withcjut authority for such occupation and includes continuance in occupation ·by any person of the premises after the authority under which he was allowed to occupy the premises has expired or has been duly deter-.mined. Sub-s. (I) of s. 105B provides inter alia as follows :

"I 05B. (1) Where the Commissioner is satisfied.-

( a) that the person authorised to occupy any corpora-

tion premises has, whether before or after the com-

'(I)) [1967) 3 S.C.R. 399.

mencement of the Bombay Municipal Corporation (Amendment) Act, 1960.-

(i) not paid for period of more than two months, the rent or taxes lawfully due from him in respect of such premises; or

(ii) sub-let, contrary tq the terms or conditions of his. occupation, the whole or any part of such premises; or

(iii) committed, or is committing, such acts of waste as are likely to diminish materially the value, or impair substantially the utility, of the premises; or (iv) otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such premises;

(b) that any person is in unauthorised occupation of any corporation premises;

( c) that any corporation premises in the occupation of any person are required by the corporation in the public interest.

the Commissioner may notwithstanding anything con-tained in any law for the time being in force, by notice-order that that person, as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the notice."

Before, however, an order can be made by the Municipal Commis-sioner against any person under su~. (1) of s. 105B, sub-s. (2) of that section says that the Municipal Commissioner shall is5ue notice in writing calling upon all _persons concerned to show cause why an order of eviction should not be made. This notice is required to speci-fy the grounds on which the order of eviction is proposed to be made and it is intended to give an opportunity to all persons who are or may be in occupation of or claim interest in the Corporation premises to show cause against the proposed order of eviction. Sub-s. (2) of s.105B then proceeds to say that the person concerned may file written statement and produce documents in support of his case and at the inquiry before the Municipal Commissioner, he is entitled to appear by advocate, attorney or pleader. This procedure is intended to give effect to the principle of natural justice embodied in the maxim audi a/term partem and it is as it should be, for the Municipal Commis-sioner is given power to determine whether person is liable to be evicted from any Corporation premises under cl. (a), or cl. (b) or cl. (c) of sub-s. (1), and before any determination adverse to him is made affecting his right to hold the said premises, he mnst be given reasonable opportunity of being heard. If after hearing the person concerned, the Municipal Commissioner is satisfied that the case falls within cl. (a), cl. (b) or cl. (c), and such person is liable to be evicted under' any of these three clauses, he may by notice order such person to vacate the Corporation premises within one month of the date of the service of the notice. If the person ordered to vacate the Corporation premises does not comply with the order of eviction, the Municipal Commissioner can under sub-s. (3) of s. 105B evict that person and any other person who ol;istructs him and take possession of the Corporation premises, if necessary, by use of force. Sub·s. (6) _of s. 105B provides that if person, who has been ordered to vacate any Corpcration premises under sub-cl. (i) or sub-cl. (iv) of cl. (a) sub-s. (1), within one month of the date of service of the notice, or such longer time as the Municipal Commissioner may allow, pays to the Municipal Commissioner the rent and taxes in arrears, or as the case may be, carries. out or otherwise complies with the terms contra-vened by him to the satisfaction of the Municipal Commissioner, the Municipal Commissioner shall on such terms as he thinks fit, in lieu of evicting such person under sub-s. (2), cancel the order made by him under sub-s. (1), and thereupon such person may continue to hold the Corporation premises on the same terms as before. Then follows s. 1 OSC which inter alia confers power on the Municipal Com-missioner to assess damages on account of use and occupation of the Corporation premises in cases where any person is found to be in un-authorised occupation of the same. Sec. 105D is not material for our purpose and we may omit it from consideration. Sec. 1 OSE is the next section and that says that the Municipal Commissioner shall, for the purpose of holding any inquiry under the Act, have the same powers as are ves.ted in the civil Court under the Code of Civil Pro-cedure, when trying suit, in respect of (a) summoning and enforc-ing attendance of any person and examining him on oath, (b) re-quiring the discovery and produc~ion of documen~s and ( c) any other· matter which may be prescribed by Regulations made under

s. 105H. This section clearly contemplates that the Municipal Commissioner, while holding an inquiry, can order discovery and production of documents and also examine witness on oath in the same manner as civil court. Every order of the Municipal Com-missioner under s. 105B or s. 105C is made appealable under s. 105F and the appeal lies to the Principal Judge of the City Civil Court of Bombay or such of their judicial officer in Greater Bombay of not less 1b2n ten years standing as the Principal Judge may designate in that behalf. The appellate officer is given power to stay the enforce-ment of the order of the Municipal Commissioner which is impugned in the appeal, for such period and on such conditions as he deems lit and the appeal is 1to be disposed of by him as expeditiously as possible. Sec. 105G gives finality to the order made by the Muni-cipal Commissioner or the appellate officer and provides that it shall not be called in question in any original suit, application or execution proceedings. There is lastly s. 105H which confers power on the Municipal Commissioner, with the approval of the Standing Com· mittee, to make Regulations for all or any of the matters set out in that section, which include inter alia the holding of enquiries, the principles which may be taken into account in assessing damages under s. 105C and the procedure to be followed in appeals preferred under s. 105F. It would thus be seen that special procedure is enacted under these sections for eviction of any person from Cer-poration premises on any of the grounds set out in cl. (a), cl. (b) or cl. (c) of sub-s. (!) of s. 105B.

The Government Premises Eviction Act also lays down special procedure for eviction of any person from government premises which is more or less identical with that set out in Ch. VA of the Municipal Act. The only difference is that whereas under Ch. VA of the Municipal Act the power to determine the liability and make an order of eviction is given to the Municipal Commissioner, the Government Premises Eviction Act gives this power to the Competent Authority, who would be an officer not lower in rank than that of Deputy Collector or an executive engineer appointed by the State Government. There is also one other difference between the provi-sions of Ch. VA of the Municipal Act and the provisions of the Government Premises Eviction Act and that arises because section SA has been introduced in the Government Premises Eviction Act by an amendment made by Maharashtra Act 12 of 1969 whereas no such amendment has been made iri Ch. VA of the Municipal Act. This amendment was made in the Government Premises Eviction Act in consequence of the decision of this Court in Northern India Caterers Ltd. v. State of Punjab,(!) but that is not material because, so far as the present cases arising under the Government Premises Eviction Act are concerned, the proceedings for eviction were taken and the order of eviction was made before section SA was introduced in the Government Premises, Eviction Act and the provisions of the Government Premises Eviction Act with which we are concerned are, therefore, the provisions as they stood prior to their amendment by the introduction of section SA.

Having set out the relevant provisions of the two statutes im-pugned in these cases, we may now turn to examine the grounds on which they are d1a!lenged. But before we do so, we may clear the ground by pomtmg out-and this is important to remember in the context of an argument advanced on behalf of the respondents which we shall have occasion to examine little later-that the special procedure for determining the liability to eviction and securino evic-tion of persons found liable to be so evicted laid down in the two statutes has not been assailed before us on the ground that it is nn-reasonable and imposes unjustified restriction on the fundamental right to hold property guaranteed under Art. 19 (1) ( f) . It was faintly argued before us that the impugned provisions of these two statutes by providing special procedure for eviction of occupants of Municipal or Government premises have made unjust discrimination between occupants of other premises and arc on that account viola-tive of Art. 14. But there is no substance in this challenge. It is not uncommon to find legislation according special treatment to Go-vernment or other public bodies and such legislation has been upheld by this Court in numerous decided cases. Bachawat, J., in his minority judgment in Northern India Caterers Ltd. v. State of Punjab (1) has referred to several such decisions and there are many more. We may mention few of them. The decision in Baburao Shantarm More v. The Bombay Housing Beard and Anr.(') upheld the validity of the exemption of premises belonging to the Govern-ment or local authority from the provisions of the Bombay Rents Hotel & Lodging House Rates Control Act, 194 7. The decision in Shri Munnalal & Anr. v. Collector of Jhalawar & Ors.(') held that the Rajasthan Public Demands Recovery Act, 1952 was not unconstitu-tional as giving special facility .to the Government as banker for recovery of its dues. It was decided in Nav Rattanmal & Ors. v. The State of Rajasthan([4 ]) that the legislature may reasonably provide longer period of limitation for suits by the Government and in Lachhman Das v. State of Punjab & Ors.(') it was held that the Patiala Recovery of States Dues Act, IV of 2002K, in setting up separate authorities for determination of disputes and prescribin~ special procedure to be followed by them for recovery of dues of the Patiala State Bank by summary process, was not discriminatory and void. Now, in all these decisions the law providing for special treat-ment to Government or other public bodies was held not to be dis-criminatory, but from that it does not follow that every law which gives differential treatment to Government or other public bodies Is necessarily immune from challenge on the ground of discrimination. There is no ta,•;sman or charm protecting law from the vice of un-constitutional discrimination, when the discrimination is in favour of the Government or other public bodies. The law is now well set-tled that the legislature has power of making special laws to attain particular ends, and for that purpose it may select or classify persons

(2) [1954] S.C.R. 572. (4) [1962] 2. S.C.R. 324

(!) [19o7] 3 S.C.R. 399. (3) [19611 2 S.C.R. 962. (5) [1963] S.C.R. 353'

and things upon which such laws are to operate. But the mere fact of classification is not sufficient to relieve statute from the reach of the equality clause contained in Art. 14. To get out of its reach it must appear that not only classification has been made but also that it is one based on some real distinction, bearing just and reasonable relation to the ci':Jject of the Legislation, and is not mere arbitrary selection. The classification to be valid and permissible must satisfy double test; it must be founded on an intelligible difkrentia. which distinguishes those who are grouped together from others, and that differentia must have rational relation (o the object sought to be achieved by the statute. It was on application of this double test that in the above-mentioned decision that the law making special pro-vision for Government or other public bodies was held to be consti-tutionally valid. The application of the same double test, however, resulted in the invalidation of the exemption of debts due to the Central Government or the Government of any State or local authority from the operation of the Rajasthan Jagirdar's Debt Re-duction .Act which provided for scaling down of debts of Jagirdars whose Jagir lands had been resumed by the Government. Vide State of Rajasthan v. Mukanchand & Ors.(1) It will thus be seen that where statute, according special treatment to Government or other public bodies, is challenged on the ground of discrimination, the validity of the statute has to be judged by applying this double test, and it is this double test which we must, therefore, proceed to apply in determining the validity of the impugned provision contained in the two statutes.

So far as Ch. VA of the Municipal Act is concerncd,-and what we say in regard to Ch. VA of the Municipal Act must also apply equally in relation to the Government Premises Eviction Act with the words "Government Premises" substituted for the words "Muni-cipal premises"-the statement of objects and reasons for the intro-duction of this Chapter, as also the provisions contained in it, clearly indicate that this Chapter was enacted to provide to the Municipal Corporation speedier remedy for eviction of unauthorised occu-pants from Municipal premises, as against the ordinary remedy of civil suit involving expense and delay, so that the Municipal Cor-poration sbciuld be able to carry out effectively 'its policy of slum clearance, speedy development of 'the estates :of the Corporation and providing more housing; accommodation'. Chapter VA of the Municipal Act, no doubt, differentiates occupiers of Municipal pre-mises from occupiers of other premises, but there is socially valid and legally intelligible differentiation between the two classes of occupiers. So far as Municipal premises are concerned, the mem-bers of the public arc vitally interested in seeing that such premises are freed from unauthorised occupation as speedily and expeditiously as possible in order that the Municipal Corporation should be able to implement its policy of slum clearance, speedy development of Municipal estates and providing for more housing accommodation,which are projects redounding to public benefit. This element of public interest. in speedy and expeditious recovery of possession from _unauthonsed occupants is absent in case of premises belonging to pnvate parl!es. The speedy machinery for eviction of unautho-nsed _oc~ui:ants from Municipal pren_iises is, therefore, justified, in that it 1s m the. ':"terest of the public that speedy and expeditious recovery of Mumc1pal premises from unauthonsed occupiers is made possible through the instrumentality of speedier procedure, instead of the elaborate procedure by way of civil suit involving both ex-pense and delay. Speedy justice is to-day, in view of the existing procedural skem of an ordinary suit, an almost impossible feat. There _is, thus, valid basis of differentiation between occupiers of Mumcipal prenuses and those of other premises, and there is rational relation and nexus between the basis of the classification and the object of the legislation. The constitutional validity of the impugned provisions in the two statutes cannot, in the circumstances, be assailed on the ground that they make unjust discrimination bet-ween occupiers of Government or Municipal premises and occupiers of other premises.

The main ground of attack against the constitutionality of the impugned provisions, however, was that even if occupiers of Govern-ment or Municipal premises form class by themselves as against occupiers of private owned properties and such classification is justified on the ground that they require differential treatment in public interest, the impugned provisions discriminate amongst occu-piers of Government or Municipal premises inter se and are, there-fore, violative of the equality . clause. The petitioners-appellants contended that the special procedure for determining the liability to eviction laid down in the impugned provisions is more drastic and prejudicial than the ordinary procedure of civil snit and both these procedures operate in the same field without there being any guide-lines provided in the impugned provisions as to when cjne or the other procedure shall be followed with the result that the impugned pro-visions permit discrimination amongst occupiers of Government or Municipal premises in that some may be subjected to the special procednre while others may be subjected to the ordinary procedure. The occupiers of Government or Municipal premises can be proceed-ed against under the impugned provisions as also under the ordinary procedure of civil suit, and there being no principle or policy to guide the authority as to when the special procedure should be adopted, or the case should be dealt with under the o_rdii;ar.Y pro-cedure it would be open to the authonty to make discnmmatory choice' amongst occupiers of Government or Municipal premises, and this absolute and unguided power of selection, though exercisable within the class of occupiers of Government or Municipal premises, is discriminatory. The vice of discrimination, it was argued, con-sists in the un_guided and unrestricted power of singling out for being subjected to the special procedure some '.l~ongst _class of persons, namely, occupiers of Govern.men! or Mumcipal_' premises, all of whom are similarly situate and ~trcumstanced, leavmg _others to be dealt with according to the ordinary procedure. This argument was

sought to be supported by the majority decision of this Court in Northern India Caterers Ltd. v. State of Punjab.(!) We do not think this argument is sound. The majority decision in Northern India' Caterers Ltd. v. State of Punjab(!) has no application in the present case, and in any event, we are of the view that decision does not represent the correct law. The statute which came up for consideration before this Court in Northern India Caterers Ltd. v. State of Punjab(!) was the Pun-jab Public Premises and Land (Eviction and Rent Recovery) Act, 1959. This Act laid down special procedure for eviction of un-authorised occupants from public premises. The constitutional vali-dity of the enactment of this special procedure was challenged before this Court as being violative of Art. 14. There were two grounds c;n which the challenge was based : one was that · the Act discrimi· nated unjustly between occupants of public premises and those of private property and the other was that even amongst occupants of public premises inter se, there was discrimination, inasmuch as the special procedure set out in the Act was more drastic and prejudi-cial than the ordinary procedure of civil suit and it was left to the arbitrary and unfettered discretion of the Government to adopt the special procedure against some and not against the rest. So far as the first ground is concerned, it was clearly and in so many terms repelled by Bachawat, J., in the minority judgment, and though the majority, speaking through Shela!, J., did not finally pronounce upon the validity of this ground, they pointed out that there was ~reat force in it as it was possible to say that there was intelligible differ-entia between occupiers of public premises and other occupiers and the differentia had rational nexus with the object of the legislation. It was the second ground which evoked difference of opinion amongst the learned Judges, the majority, speaking through Shelat, J., taking the view that this ground was well founded, while the minority, speaking through Bachawat, J., holding that it was not. Shelat, J., speaking on behalf of the majority, referred to the earlier decisions of this Court in State of West Bengal v. Anwar Ali(') Shree Meenakshi Mills Ltd., Madurai v. A. V. Visvanatha Sastri,([3 ]) Sura; Mull Mohta v. A. V. Visvanatha Sastri(') and Banarsi Das v. Cane Commissioner, U.P.,(') and pointed out that the "principle which emerges from these decisions is that discrimination would result if there are two available procedures, one more drastic and prejudicial to the party concerned than the other and which can be applied at the arbitrary will of the authority". The learned Judge then pro-ceeded to add : "if the ordinary law of the land and the special law provide two different and alternative procedures, one more prejudi-cial than the other, discrimination must result if it is left to the will of the authority to exercise the more prejudical against some and not against the rest. person who is proceeded against under the more drastic procedure is bound to complain as to why the drastic pro-H cedure is exercised against ----------··--- -him and not against the others. even (I) [1967] 3 S.C.R. 399. (2) [1952] S.C.R. 284. (3) [1955] 1 S.C.R. 787. (4) [1955] l S.C.R. 448.

(5) [1963] Supp. 2 S. C. R. 760.

though those others are similarly circumstanced. The procedure un-der s. 5 is obviously more drastic and prejudicial than the one under the Civil Procedure Code where the litigant can get the benefit of trial by an ordinary court dealing with the ordinary law of the land with the right of appeal, revision, etc., as against the person who is proceeded against under s. 5 of the Act as his case would be dispos-ed of by an executive officer of the Government, whose decision rests on his mere satisfaction, subject no doubt to an appeal but befc~e another executive officer, viz., the Co1nmissioner. There can be no doubt that s. 5 confers an additional remedy over and above the remedy by way of suit and that by providing two alternative reme-dies to the Government and in leaving it to the unguided discretion of the Collector to resort to one or the other and tq pick and choose some of those in occupation of public properties and premises for the application of the more drastic procedure under s. 5, that section has lent itself open to th·o charge of discrimination and as being violative of Article 14 and in that view, held s. 5 of the Act to be void. Bachawat, J., delivering judgment on behalf of himself and Hidayatullah, J., (as the then was) held that "without violating Art. 14, the law may allow ltigant frei; choice of remedies, proceedings and tribunals for the redress of his grievances''. The learned Judge observed that "it is not pretended that the proceeding under the impugned Act is unfair or oppressive. The unauthorised occupant has full opportunity of being heard and of producing his evidence. He is not denied the equal protection of the laws because the government has the option of proceeding against him either by suit or under the Act'', and added : "an unauthorised occn· pant has no constitutional right to dictate that the government should have no choice of proceedings. The argument based upon the option of the government to file suit is unreal, because in practice the government is not likely to institute suit in case where it can seek reld under the Act". The learned Judge concluded by saying that "Art. 14 does not require fanatical' approach to the problem of equaiity before law" and upheld the validity of the Act. We find it difficult to accept the reasoning of the majority. as well as the minority decisions. Neither reasoning commends itself to us. We shall presently explain our standpoint in· relation to this problem, which arises when there are two procedures laid down by the L<egislature, one harsher than the other, and the ques!Jon 1s w~e-ther that involves violation of the constitutional mandate of equality before law. But one point we wish to 1nake, and we cannot over-emphasise it, that Art. 14 enunciates vital principle whi~h lies ~t the core of our republicanism and shines hke beacon hght pmntmg towards the goal of classless egalitarian socio-economic or~er wh!ch we promised to build for ourselves when we made tryst _with destmy on that fateful day when we adopted our .constitution .. If we have .to choose between fanatical devotion to this great prmc1ple of equality and feable allegience to it, we would unhesitat!ngly prefer to en- .on the side of the former as against the latter. Vve ~hould be brealdn_g our faith with the Constitution if we whittle down m any measure this high and noble principle which is pregnant with h~pe for '.he commo~ man and which is at once goal as well as pursmt, for history shows

that it is by insidious encroachments made in the name of pragmatism and expediency that freedom and liberty are gradually but impercep· tibly eroded and we should not allow the same fate to overtake equality and egalitarianism in the name of expediency and practical convenience.

The first and preliminary answer given by the respondents to the challenge levelled on behalf of the petitioners-appellants was that no violation of the Constitutional guarantee under Art. 14 is involved where the law gives free choice of remedies to person entitled to relief, e\·en if one remedy is more drastic and prejudicial than the other. The respondents relied on the decision c1f the United States Supreme Court in Arizona Copper Co. v. Hammer(!) in support of this contention. Now it may be noted that the minority decision in Northern India Caterers Ltd. v. State of Punjab(') also found support in the decision in Arizona Copper Co. v. Hammer,([1]) and on the basis of that decision. held that the law does not violate Art. 14 be-cause it gives an aggrieved party the free choice of remedies and proceedings for the redress of his grievances. We cannot accept this broad and unqualified statement of the law as correct and if we scru-tinise the decision in Arizona Copper Co. v. Hammer(!) closely, we wou[1]a find that it does not support any such statement. It is, no dc1Ubt, true that Mr. Justice Pitney said in this case : " ........ it is throughly settled by our previous decisions that ...... election of reme-dies is an option very frequently given by the law to person entitled to an action, -an option normally exercised to his own advantage, as matter of course". But this observation must he read in the context of the question which arose for decision in that case and if it is so read, it would he clear that what Mr. Justice Pitney had in mind when he made this observation was the existence of several rights to relief arising out of the same act and not the existence of several remedies in enforcement of single right to relief. Under the laws of Arizona, an employee injured in the course of his employment had open to him three avrnues of redress. any one of which he might pursue according to the facts of his case. namely, ( 1) the common law liability relieved of the fellow-servant defense, and in which the defenses of contributory negligence and assumption of risk arc questions to be left to the jury; (2) the Employ·ers' Liability Law, which applies to hazardous occu-pations where the injury or death is not caused by his own negligence; and ( 3) the Compulsory Compensation Law, applicable to especially dangerous occupations, by which he may recover compensation with-out fault upon the part of the employer. The question which arose .for determination was whether this system denied equal protection to employers because it conferred upon the employee free, choice amongst several remedies. Mr. Justice Pitney answered the question againsl the employers by saying that it is well settled by previous decisions that the law may give election of remedies to person entitled to an action. The reference here ohvionsly was to election between different rights to relief given by different laws for the injury suffered in the course of employment. The employee could claim damages undei:__tlif'_c~mmoniaW or under the Employees' Liability Law or (I) [19671L1wEd.1058250 U,S. 4CO. (2) [19671lS.C.R.399.

under the Compulsory Compensation Law. He could elect under what law he would claim damages,-which right he wonld enforce--depending on the facts of his case. It is not as if he had different procedures available to him for enforcing right given to him by law. Here m the present case, there are no different rights conferred on the Municipal Corporation or the Government by different laws with choice to the Municipal Corporation or the Government to-enforce one right or the other. The only right which is sought to be enforc.ed by the Municipal Corporation or the Government is the right based on title given by the general law of the land, and it is for the enforcement of this right that two alternative procedures are, according to the peti-tioners-appellants, available to the Municipal Corporation or the Govern-ment. That is totally different situation from the one in Arizona Cop-per Co. v. Hammer (supra) and that decision has, therefore, no appli-cation in the present case. ·

It is, indeed too late and too much now to contend that Art. 14 does not forbid discrimination in matters of procedure. rule of procedure comes as Il}UCh within the purvie\V of article 14 as any rule of substantive law, and to quote the words of Mukherjea, J., in the State of West Bengal v. Anwar Ali Sarkar, (supra) "it is nece;sary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like pro-tection and without discrimination". Vide also Weaver's Constituliqnal Law, page 407. If for determination and enforcement of liability, two alternative procedur·os are available, one more drastic and prejudi· cial than the other and no guiding policy or principle is laid down by the legislature as to when one or the other procedure shall be followed so that either procedure may be indiscriminately adopted against persons similarly situated, the law providing for the more drastic and prejudicial procedure would be violative of the equal protection clause. That was laid down as far back as 1952 in the celebrated case of State of West Bengal v. Anwar Ali Sarkar (supra) which was decided by Bench of seven judges. Section 5 (1) of West Bengal Act 10 of 1950 was impeached in that case and the majcirity decision held that section to be wholly invalid. The preamble to the Act merely stated that it was expedient to provide for speedy trial of certain offences and section 5 (I ) empowered special Court to try such offences or class of offences or cases or class of cases as the State Government may by general or special order in writing direct. The majority c~ the judges took the view that the procedure laid down by the Act for trial by the special court varied substantially from that laid down for the trial of offences generally by the Ccide of Criminal Procedure and no standard was laid down and no principle or policy was disclosed in the Act to guide the exercise of the discretion by the Government in f,electing cases for reference to the special court for trial under the spec:ial prcl-cedure provided under the Act. All that was relied on as indicative of guiding principle for selection was the object, as disclosed in the pre-amble of the Act, of providing fcir the "speedier trial of certain offences", but the majority of the judges brushed that aside af, too in-definite and vague to constitute reasonable basis for classification. "Speedier trial of clffences", observed Mahajan J., "may be the reason

and motive for the legislation but it does not amount either to classi-fication of offences or of cases ... In my opinicrn it is no classification at all in the real sense of the term as it is not based on any characteris-tics which are peculiar to persons or to cases which are to be subject tci the special procedure prescribed be the Act". Mukherjea, J .. said, "I am definitely of opinion that the necessity ot speedier m~l 1s too vague, uncertain and elusive criterion tci form :ational basis for _the discrimination made. The necessity for speedier tnal may be the obiect which the legislature had in view or it may be the occasion for making the enactment. In sense C!llick disposal is thing which is desirable in all legal proceedings. . . This is not reasonable classification at all but an arbitrary selection". Similar observations were also made by Faz! Ali, J., and Chandrasekhara Aiyar, J. The majority judges ac-cordingly held that section 5 ( 1) vested an arbitrary and uncontrolled discretion in the State Government to direct any cases which it liked to be tried by the special court and it was therefore, violative of article 14.

It is interesting to compare the decision in State of West Bengal v. Anwar Ali Sarkar (supra) with the decisicin of this Court in Kathi Ran-ing Rawat v. The State of Saurashtra(I). Both these cases were taken up for hearing together, but the Saurashtra case was adjourned to en-able the State Government to file an affidavit explaining the circum-stances which led to the enactment of the Saurashtra State Public Safety (Third Amendment) Ordinance, 1949 which was impugned in that case. The Saurashtra case was thereafter heard by the same Bench of seven Judges which decided Anwar Ali Sarkar's (supra) case. Sec-tion 11 of the Saurashtra Ordinance wa-s in the saine terms as. section 5 (1) c[ the West Bengal Act and the constitutional objection against the validity of that section was also the same. namely, that it com-mitted to the absolute and unrestricted discretion of the executive Government the power to refer cases to be tried by the special proce-dure laid down in the Saurashtra Ordinance and the secticrn was there-fore, di.scr.imhiatory and void. But this time the conclusion rea~hed by the maionty 1ndges was different. The decision in Anwar Ali Sarkar's case (supra) was distinguished by three of the learned judges who were parties to the majority decision in that case. Faz! Ali J., ob-se~ved : ."T~e .mai_n obj~ction to the West Bengal Act was that it per-mitted d1scnmmat10n without reason or without any rational basis. . . The mere mention of 'speedier trial' as the object of the Act did not 'cure the d~fect', as t~e exl?ression afforded no help in determiGing whaf case.s reqmred speedier tnal. .. The clear recital (in the Saurashtra Or~mance) ~[ ?efinite objective furnishes tangible and rational ?as1s of clas~tfica!Jon to the s.tate Government for the purpose of apply-mg the provmons of the Ordinance ~nd for choosing only such clffences or cases .as affect pubhc safety, maintenance of public order and the preservat10n of peace and tranquillity. Thus under section I l the State Government is expected clnly to select such offences or cla~s of offence~ or class o~ cases for being tried in Special Court in accord-ance with .the special procedure, as are calculated to affect the public s.afety, i;iamtenanc~ ?f public order etc." Mukhcrjea. J., also, after dis-tmgu1shmg the dec1SJon in Anwar Ali Sarkar's case (supra) on similar

(1) [!952] S.C.R. 435.

grqunds, said : "In my ?Pinion, 'if the legislative policy is clear and defi:llte .and, as an effective method of carrying out that policy, dis-cret10n is vested by the statute upon body of administrators or officers_ to make selective application of the law tq certain ·classes or groups of persons, the statute itself cannot be condemned as piece of disc~iminatory legisl~tion .... In such cases the power given to the execut~ve body would import duty .on it to classify the subject-matter of leg1slat10n in accordance with the objective indicated in the statute. The discretion that is conferred on official agencies in such circumstances is not an unguided discretion; it has to be exercised in conformity with the policy to effectuate which the discretion is given, and it is in relation to that objective that the propriety of the classifica-tion would have to be tested". Das, J., also pointed out that in the pream-ble the Saurashtra Ordinance there was sufficient indication of policy to guide the executive Government in selecting offences or class of offences or class of cases for reference to the special court and section 11 of the Saurashtra Ordinance did not, therefore, confer an uncon-trolled and unguided power on the State Government. The majority judges accordingly held section 11 of the Saurashtra Ordinance to be valid.

Though the minority judges in Kathi Raning Rawat v. State of Saurashtra(') observed that the'decision of the majority judges in that case marked retreat from the position taken up by the majority in the earlier case of Anwar Ii Sarkar (supra), the majority judges strongly refuted this proposition and pointed out that it was on an application of the same principle which resulted in the invalidation of section 5 ( !) of the West Bengal Act that the validity of section 11 of the Saurashtra Ordinance was sustained by them. The principle which was applied by the majority judges in Anwar Ali Sarkar's case and Kathi Raning Rawat's case(') was the same and it was stated in these terms by Patanjali Sastri, C.J., delivering the majority judgment of the Court in Kedar Nath Bajoria v. State of West Bengal(") : "-if the impugned legislation indicates the policy which inspired it and the object which it seeks to attain, the mere fact that the legislation does not itself m!lke complete and precise classification of the persons or things to which it ·is to be applied, but leaves the selective aptilicatio_n of the law to b_e made by the executive authority in accordance with the standard md1-cated. or the underlying policy and object disclosed is not s_ufficient ground for condemning it as arbitrary, ai:d therefore, ob~ox1ous ~o article 14. In the case of such statute 1t could make no difference. m principle whether the discretion _which .is ~ntrusted to the . executive Government is to n1ake selection of ind1v1dual cases or of offe_nces, classes of offences or classes of cases. For, in either .case,, the discre-tion to make the selection is guided and controlled d1screl!on and not an absolute or unfettered one and is equally liable t.o be abused, but. as has been pointed out, if it be shown in any given case that the d1screuon has been exercised in disregard of the standard or ~ontrary to the declared policy and object of the legislation, such exerct?e ~o~ld be c~al­lenged and annulled under article 14 which includes w1thu1; ~ts purv1~w both executive and legislative acts." The statutory prov!Slon which (l) [l952] S.C.R. 435. (2) [1954] S.C.R. 30

was challenged in this case was section 4(1) of the West Bengal Crimi-nal Law Amendment (Special Courts) Act, 1949. This Act had been passed to provide for the more speedy and more effective punishment of cc:llcin offences because the Legislature thought that it was expe-dient 10 provide for the more speedy trial and more effective punish-ment cl certain offences which were set out in the Schedule annexed to the Act. Section 4(1) authorised the provincial Government to allot cases for trial to special judge by notification as well as transfer cases from cne special judge to another or to withdraw any case from the jurisdiction of the special judge or make such modifications in the des-cription of case as may be considered necessary. Patanjali Sastri, C.J., applied the aforesaid principle extracted from the decisions in Anwar Ali Sarkar's case (supra) and Kathi Raning Rawat's case (supra) and held that section 4(1)' of the Act was valid and the speciill court had jurisdiction to try and convict the appellants. This decision might at first blush appear to be unimportant as representing merely one more case falling \vithin one or the other ruling in Antt-·cr Ali Sar-kar' s case or Kathi Raning Rawat' s case, but little scrutiny will re-veal that it furnishes complete answer to the argument of discrimina-tion which found favour with the majority judges in Northern India Caterers Ltd. v. State of Punjab (supra). We shall deal with that aspect of the decision little later.

We may then refer to the decision of this Court in Suraj Mull Mohta v. A. V. Visvanatha Sastri (supra). The constitutional validity of section 5 ( 4) of the Taxatictn on Income (Investigation Commission) Act, 194 7 was assailed in that case on the ground that "evasion, whether substantial or unsubstantial, came within its ambit as well as within the ambit of section 34 of the Indian Income Tax Act'', and it was, therefore, violative of article 14. This Court compared the provisions of section 5 ( 4) of the Act with those of section 34(1) of the Indian Income Tax Act and came to the conclusion that section 5 ( 4) dealt with the same class of persons who fell within section 34 of the Indian Income Tax Act and were dealt with in sub-section (1) of that section, and whose income could be caught by proceeding under that section. There was nothing uncommon, observed this Court, either in properties or in characteristics between persons who had been discovered as evaders of income tax during an investigation conducted under section 5 ( 1) of the Ac~ and those who had been discovered by the Income Tax Officer to have evaded income tax. Both these kinds of persons had commcn properties and characteristics, and therefore, required equal treatment but some of them would, at the choice of the Commission, be dealt with under the more drastic and prejudicial procedure for assess-ment laid down by the Act, while the others would be proceeded against under the ordinary procedure set out in section 34 of the Indian Income Tax Act. This was clearly discriminatory and section 5 ( 4) was there-fore held by this Court to be void and unenforceable as offending article 14.

The decision of this Court in Shree Meenakshi Mills Ltd., Madurai v. A. V. Visvanatha Sastri (supra) may also be noted in this connec-tion. In this case it was section 5 (I) of the Taxation on Income (In-vestigation Commission) Act, 1947 which was chal!enged as consti-

:utionaJ!y invalid and the ground of challenge was that after the com· mg_ mt~ force of the I_ndian Incc1111e Tax (Amendment) Act, 1954, ~h1ch mtroduced sect10n 34(1A) in the Indian Income Tax Act sec-hon_ 5 ( 1) became discriminatory and void as the newly introduced sectwn 34(1A) operated in the same field as section 5(1!. This challenge \;\'as upheld in unanimous judgment and the reasons which weighed with· this Court in taking that view may best be stated in the words of Mahajan, C.J., who delivered the judgment of the Court :

"Parliament has-by amending section 34 of the Indian Income-tax Act, now provided that cases of those very persons who originally fell within the am bit of section 5 (I) of Act XXX of 194 7, and who it was alleged formed dis· tinct class, can be dealt with under the amended section 34 and under the procedure provided in the Income-tax Act. Both categories of persons, namely, those who came within the scope of section 5 (1) as well those who came within the ambit of section 34, now form one class. In other words, substantial tax-dodgers or war profiteers who were alleged to have formed definite class according to the contention of the learned Attorney-General under section 5 I J), and whose cases needed special treatment at the hands of the Investigation Commission now clearly fall within the ambit of amended section 34 of the Indian Income-tax Act. That being so, the only basis for giving them differential treat-ment, namely, that they formed distinct class by them-selves, has completely disappeared, with the result that con-tinuance of discriminatory treatment to them comes within the mischief of article 14 of the Constitution and has thus to he relieved against. All these persons can now well ask the question, why are we now being dealt with by the dis· criminatory and drastic procedure of Act XXX of 194 7 when those similarly situated as ourselves can be dealt with by the Income-tax Officer nnder the amended provisions of section 34 of the Act-in other words, there is nothing un-common either' in properties or in characteristics between us and those evaders of income-tax who are to be discover-ed by the Income-tax Officer nnder the provisions of amend-ed section 34. In our judgment no satisfactory answer can be returned to this query because the field on which amended section 34 operates now includes the strip of terri· tory which previously was occupied by section S ( l) of Act of 1947 and two substantially different laws of proce-dure, one being more prejudicial to the Asscssec than t~c other cannot be allowed to operate on the same field m view 'of the guarantee of article 14 of the Constitution."

The same line of reasoning prevailed with this Court in M. Ct. Muthiah & Ors. v. The Commissioner of Income-tax, Madras & Anr.(1) in holding that though section 5(1) of the Taxation on Income (Investigation Commission) Act, 1947 was valid when sc·ction

(1) [1955} 2 S.C.R. 1247.

34 (I) of the fadian Income-tax Act stood i!l its unamended form, it became void and unenforceable on the amendment of section 34 (1) by the Indian Income· tax and Business Profit Tax (Amendment) Act, 1948 because then section 34( I), as amended, operated on the same field as section 5 (I) and cases which were covered by section 5 (I) could' be dealt with under the procedure laid down in section 34(1) .

It is, therefore, clear from these decisions, that where there are, two procedures for determination and enforcement of liability, be it civil or criminal or revenue, one of which is sub5tantia!ly more drastic and prejudicial than the other, and they operate in the same field, without any guiding policy or principle available from the legis-lation as to when one or the other procedure shall be followed, the law providing for the more drastic and prejudicial procedure would be liable to be condemned as discriminatory ancl void. This prin~ ciple has held the field fov over twenty years and it is logically sound and unexceptionable. The respondents however, tried to narrow its scope and ambit by contending that it applies only where the choice of two alternative procedures is vested in the same authority with--out any policy or principle being provided by the legislature to guide and control the exercise of his discretion and it has no validity where· the initiation of one procedure is in the hands of one authority and the initiation of the other in the hands of another. The respondents pointed out that Chapter VA of the Municipal Act does not leave it to the discretion of the Municipal Commissioner to adopt at his own sweet will the special procedure provided in that Chapter or the ordinary procedure of civil suit as he thinks fit. The initiation of the special procedure provided in Chapter VA is, no doubt, with the· Municipal Commissioner as he is to issue notice under secti011c 105B(2), but so far as the ordinary procedure of civil suit is con-cerned, it is not in the hands of the Municipal Commissioner to initiate it since the suit can be filed by the Municipal Corporation only with the previous approval of the Standing Committee under the provisions. of the Municipal Act. The arbitrary choice of two alterna-tive procedures is, therefore, not given to the same authority and there is accordingly no violation of article 14. This contention of the respondents, is, in our opinion, having regard to the substance of the guarantee of equality, untenable and cannot be accepted. It proceeds on misconception of the true principle on which this Court has struck down laws providing for special procedure which is sub· stantially more drastic and prejudicial than the ordinary procedure. Principle as well as precedent, clearly appreciated, would remove the mist of misunderstanding surrounding this facet of constitutional equality. The principle which emerges from the decisions of this Court-and we have already discussed some of the important deci-sions-is that where persons similarly circumstanced are exposed to two procedures for determination of liability, one being more drastic and prejudical than the other and no guidelines are _provided by the legislature as to when one procedure shall be followed or the other. so that one person may be subjected to the more drastic and prejudi-cial procedure while the other may be subiected to the more favour-able one, without there being any valid justification for distinguishing ·

b.etween the tw?, the law providing for the more drastic and prcjudi-eta! procedure 1s liable to be struck down as discriminatory. It is not necessary, in order. to incur the condemnation of the e<.juality clause, that the initiation of both procedures should be left to the arbitrary discretion of one and the same authority. What the equality clause sl:.tikes at is discrimination, hOl\'SOever it results. It is not constricted by any constitutional dogma or rigid formula. Th·cre is an infinite variety of ways in which discrimi~ation may oc~m" It may assume multitudinous forms. But wherever it is found aad how-soever it arises, it is within the inhibition of the equality clause. Where, therefore, as between persons similarly situated, one may be sub-jected to one procedure while another may be subjected to the other, without there beini: any rational basis for distinction and one proce-dure is substantially more drastic and prejudicial than the other, unjust discrimination would result, irrespective of whether the arbi-trary choice of initiation of the two procedures is vested in the same authority or not. Indeed to the person subjected lo the more drastic and onerous procedure it is immaterial whether such procedure is put into operation by one or the other organ or agency of the Gov-ernment or the public. authority. It is poor comfor~ to him to be told that he is treated differently from others like him, but the differ· ential treatment emanates from one organ or agency of the Govern-ment or the public authority as distinct from another. His rejoinder would immediately be that it makes no difference, because, whichever be the organ or agency of the Government or the public authority which initiates the differential treatment against him, it is traceable to the broad source of State power or power of the public authority. The unequal treatment by reason of the adoption of the substantially more drastic and onerous procedure would be meted out to him by the Administration in its larger sense-may be legally particularised in the shape of different instrumentalities-and he would sulkr all the same. We are here dealing with the common man and when action is initiated against him for determining his liability to eviction, it would be incomprehensible to him to make distinction between Municipal Commissioner and Municipal Corporation or Collector and Government. It would be nothing short of hypertechnicality to say that action against him is initiated not by the Municipal Corporation or the Government but by the Municipal Commissioner or the Collec-tor. The constitutionality of statutory provision cannot tum on mere difference of the hands that harm, though both belong to the Govern-ment or the Municipal Corporation, for otherwise it would be easy to circumvent the guarantee 0£ equality and to rob it of its substance by subtle and well-manipulated statutory provision vesting the more drastic and prejudicial procedure in different organ of the Govern-ment or public authority than the one in whose hands lies the power to initiate the ordinary procedure. That would be disastrous. We must look at the substance and not the mere form. In fact in Suraj Mull Mohta's case (supra) and Shree Meenakshi Mills case (supra) the special procedure under the Income Tax Investigation Commission Act could be initiated by the Central Government while the ordinary

procedure under the Income Tax Act could be initiated by an altogether different authority, namely, the Income Tax Officer, and yet it was held that section 5, sub-section ( 4) in one case and section 5, sub-section (1) in the other were violative of article 14 since the two procedures, one substantially more drastic and prejudicial than the other, operat-ed in the same field without any guideline being provided by the legis-lature as to when one or the other shall be adopted. Moresoever, it is not correct to say that it is the MunicipJI Commissioner who would initiate the special procedure set out in Chapter VA. The Municipal Commissioner would be moved by the Estate Officer of the Municipal Corporation to issue notice under section !05B, sub-section (2·) just as civil court would be moved by the Municipal Corporation to issue process against the occupant. Alternatively, the matter can also be viewed from slightly different standpoint. When Muni-C cipal Commissioner issues notice under section !05B, sub-section (2) initiating the special procedure against an occupant, he really acts on behalf and for the benefit of the Municipal Corporation-he seeks to enforce the right of the Municipal Corporation. Therefore, it is really the Municipal Corporation which avails of the special procedure set out in Chapter VA. The scope and content of the aforemention-ed rule against discrimination in matters of procedure cannot, there-D fore, be narrowed down or its applicability in the present case obviat-ed on the ground suggested by the respondents.

lt was then contended on behalf of the respondents that even where two procedures are available against person, one substan-tially more drastic and prejudicial than the other, and there is no guiding principle or policy laid down by the legislature as to when one or the other shall be adopted, there would be no violation of the equality clause, if both procedures are fair. The argument was that the special procedure provided by the legislature would not fall foul of the equality clause even if it is substantially more drastic and pre-judicial than the ordinary procedure, if it is otherwise fair and reason-able. This argument was sought to be supported by reference to certain observations in the minority judgment in Northern India Caterers Ltd. v. State of Punjab.([1]) Bnt we do not think this is sound in the context of the guarantee of equality although its rele-vance to reasonable restrictions under article 19 is obvious. When we are dealing with question under article 14, we have to enter the comparative arena for determining whether there is equal treatment of persons similarly situated so far as the procedure for determina-tion of liability is concerned. Mere fairness of the special procedure which is impugned as discriminatory is not enough to take it out of the inhibition of article 14. The fairness of the special procedure would undoubtedly be relevant if the special procedure is challenged as imposing unreasonable restriution under article I9(1)(f). It would also be relevant if the special procedure were assailed as being in violation of the due process clause in country like the United States. But where the attack is under article 14, what we have to consider is whether there is equality before law, and there the question that has ·to be asked and answered is whether the two procedures are so dis-parate substantially and qualitatively as to lead to unequal treatment. (lJ[l967jTS:-C.R. 399

48 .. SUPREME COURT REP OR TS [1975] I S.C.R.

Equality before law cannot be denied to person by telling him : "It is true that you are being treated different!Y from others who are similarly situate with you and the procedure to which you are subject-ed is definitely more drastic and prejudicial as compared to the pro-cedure to which others are subjected, but you should not complain because the procedure adopted against you is quite fair". The ques-tion which such person would legitimately ask is : "why am I being dealt with under the more drastic and prejudicial procedure when othe!S1 similarly situate as myself are dealt with under the ordinary procedure which is Jess drastic and onerous ?" There would have to be rational answer to this query in order to meet the challenge of article 14. It is, therefore, no argument on the part of the respond-ents to say that the special procedure set out in Chapter VA of the Municipal Act is fair and consequently it does not have to stand the test of article 14.

Having cleared the ground, we may now proceed to apply the princip~ which we have discussed above and consider whether the impugned provisions in Chapter VA of the Municipal Act and the Government Premises Eviction Act are void and unenforceable as being discriminatory in character. Now, as already pointed out, the differen-tiation of occupiers of Municipal or Government premises from occu-. piers of other premises for the applicability of the special procedure laid down in the impugned provisions is based on an intelligible princi-ple having clear and reasonable relation with the object of the legis-lation, which is to ensure speedy and expeditious recovery of Munici-pal or Government premises from unauthorised occupiers in public interest and the impugned provisions cannot, therefore, be condemned as invalid on the ground that they make unjust discrimination between occupiers of Municipal or Government premises and occupiers of other premises. But the question is and that is the argument we must consider-whether the impugned provisions permit discrimination amongst occupiers of Municipal or Government premises inter se and are on that account invalid. Can it be said that the special procedure laid down in the impugned provisions and the ordinary procedure of civil suit operate on the same class of occupiers of Municipal or Government premises without any guiding policy or principle being laid down by the legislature as to when one or the other procedure shall be ad'opted so that within the class of occupiers of Municipal or Government premises, some may, in the arbitrary uncontrolled discre-tion of the Municipal Corporation or Municipal Commissioner or Gov-ernment, be proceeded against under the special procedure, while others may be left to be dealt with under the ordinary procedure ? Do the impugned provisions vest absolute and unguided power in the Municipal Corporation or Municipal Commissioner or Government to pick and choose some occupiers of Municipal or Government premises for being dealt with under the special procedure set out in the impugned provisions leaving others to be dealt with under the ordinary procedure of civil suit? The majority decision in Northern Indian Caterers Ltd. v. State of Punjab(') would seem to suggest that the impugned pro-visions do suffer from this vice but that is not correct. There is basic fallacy from which the majority decision in Northern India Caterers (I) [1967] 3 S.C.R. 399

Ltd. v. St.ale of Punjab( [1]) suffers and that is that it overlooks the dis· tinction between thost cases where the legislature itself makes COID· plete c~ifu:ation of persons or things and applies to them the law which it enacts and others where the legislature merely Jays down the Jaw to be applied to persons or things answering to given descriptii:ln or possessing certain common characteristics and having regard to the impossibility of making precise and complete classification, leaves it to an administrative authority to make selective application of the law to persons or things within the defined group, while laying down the standard or at least indicating in clear terms the underlying policy and purpose, in accordance with, and in fulfilment of which the administrative authority is expected to select the persons or things to be brought within the operation of the law. It must be remembered that having regard to the manifold complexities of llie, an infinite variety of situations may arise which cannot be fitted into straight jacket for-mulae or classified into rigid inflexible divisions. No classification can be logically complete or accord with the pattern of plumb line pre-cision. Life is not capable of being divided into water-tight divisions and categories and it is not possible to force the teeming multiplicity and variety of human activity into procrustean be<! of symmetrical roles. Absolute precision or complete symmetry are unattainable and it is as well that it should be so, for otherwise life would be mechanical and lose its manifold variety. The legislature can, therefore, do no more than define broad categories and indicate the policy and purpose under-lying the legislation and leave it to stated authority to make selective application of the law in accordance with such policy and purpo11e. That would not be obnoxious to article 14 because in such case the discretion to make the selection would be guided and controlled dis-E cretion and not an absolute and unfettered one. Mukherjee, J., pointed out in Kathi Raning Rawafs case([2]); "-if the legislative policy is clear and definite and as an effective method of carrying out that policy discretion is vested by the statute upon body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as piece of discriminatory legislation. After all "the Jaw does all that is needed when it does all that it can, indicates policy-and seeks to bring within the lines all similarly situated so far as its means allow". (Vide Buck v. Bell,([8]). In such cases, the power given to the executive bcdy would import duty on it to classify the subject-matter of legislation in accordance with the objective indicated in the statute. The discre-tion that is conferred on official agencies in such circumstances is not an unguided discretion; it has to be exercised in conformity with the policy to effectuate which the direction is given and it is in relation to that objective that the propriety of the classification would have to be tooted." It is, therefore, not correct to say that merely because the Municipal Corporation, or Municipal Commissioner or Government is not compellable to adopt the special procedure set out in the impugned provisions against all occupiers of Municipal or Government premises, but is vested with discretion in the matter, the impugned provisions offend against article 14. What We have to see is whether there is any

(I) [1967J 3 S.C.R. 399 (2) [1952] 3 S.C.R. 435.

(3) 274 U.S. 200, 208.

5-LI3!Sup.Cl/75

standard indicated ot policy and purpose disclosed in the impullOOI provisions in accordance with and in fulfilment of which the Municipal C-Orporation or Municipal Commissioner or Government is expected to select occupiers of Municipal or Government premises for being pr<>-ceeded against under the special procedure. If the discretion conferred on the Municipal Corporation or Municipal Commissioner or Govern-ment to make selective application of the special procedure is guided and controlled discretion, the impugned provisions would be free from the vice of discrimination. It is inevitable that when special procedure is being prescribed for defined class of persons such as occupiers of Municipal or Government premises, discretion, of course guided and controlled by the underlying .policy and purpose of the legislature, must necessarily be left in the administrative authority to select occupiers of Municipal or Government premises to be brought within the operation of the special procedure. There may be endless variations from case to case depending on the peculiar facts and circumstances of each case, and it may be that some cases are such, as for example involving corn· plicated questions of law or fact, where special procedure, which is comparatively of summary nature, may not be found to be appro-priate iri the interest of justice. It woulct indeed be odd and certainly harsh and oppressive to the occupiers of Municipal or Government premises if the Municipal Corporation or Municipal Commissioner or Government were to be compelled to adopt the special procedure in such cases. The nature of the dispute, the complexity of the questions arising for consideration and the legal competence of the adjudicating authority to decide such questions would all have to be weighed along-side with the need for speedy and expeditious recovery of Municipal or Government premises for public uses which is the basic policy and purpose underlying the legislation and the Municipal Corporation or Municipal Commissioner or Government would have to decide in accordance with the guidance furnished by these considerations whether in given case the special procedure should be adopted or the occupier of Municipal or Government premises should be proceeded against under the ordinary procedure. There is thus clear guidance provided by the legislature as to when the special procedure should be adopted and when case should be left to be dealt with under the ordinary procedure and the impugned provisions do not suffer from the vice of discrimination.

This view, which we are taking on principle, is not something novel or unusual. It treads the beaten path laid out by at least two decisions of this Court. The first is the decision in Kedar Nath Bajoria v. State of West Benga/.(1) There also an argument was advanced that even if the Scheduled offences and· the persons charged with the commissio• thereof could: properly form class in respect of which special legis-Jatim could be enacted, section 4(1) of the West Bengal Criminal Law Amendment (Special Courts) Act. 1949 was discriminatory and void inasmuch as it vested an unfettered discretion in the Provincial Gov-ernment to choose any particular case of person alleged to have committed an offence falling under any of the specified categories for allotment to the special court to be tried under the special procedure, while other offenders ct the same category would be left to be tried by ordinary courts. It was urged that section 4 (1 ) permitted the (I) (1951fS.C.R. 30i

Provincial Government to make discriminatory choice amongst persons charged with the same offence or cl!ences for trial by special court and such absolute and unguided power of selection, though it had to be exercised within the class or classes of offences mentioned in the Schedule, was discriminatcJy. This contention urged on behalf of the petitioners was negatived and Patanjali Sastri, C.J., dehvering the majority judgment of the Court pointed out :

"The argument overlooks the distinction between those cases where the legislature itself makes complete classi· fication of persons or things and applies to them the law which it enacts, and other where the legislature merely lays down the law to be applied to persons or things answering to given description or exhibiting certain common charac-teristics, but be.ing unable to make precise and complete classification, leaves it to an administrative authority to make selective application of the law to persons or things within the defined group, while laying down the standards or at least indicating in clear terms the underlying policy and pur· pose, in accordance with, and in fulfilment of which the administrative authority is expected to select the persons or things to be brought under the operation of the law. fami· liar example of this type of legislation is the Preventive Detention Act, 1950, which, having indicated in what classes of cases and for what pmposes preventive detention can be ordered, vests in the executive authority discretionary power to select particular persons to be brought under the law. Another instance in point is furnished by those pro-visions of the Criminal Procedure Code which provide immunity from prosecution without sanction of the Gov· ernment for offences by public servants in relation to their official acts. the policy of the law being that public officials should not be unduly harassed by private prCf;ecution unless in the opinion of the Government, there were reasonable grounds for prosecuting the public servant which accordingly should condition the grant of sanction. It is not, therefore, correct to say that section 4 of the Act offends against article 14 of the Constitution, merely because the Government is not compellable to allot all cases of offences set out in the schedule to Special Judges but is vested with discretion in the matter-Mr. Chatterjee brought to our notice in the course of his argument decision of the Calcutta High Court in !. K. Gupta v. The State([1]) where Special Bench (Harries, C.J., Das and Das Gupta, JJ.) inclined to the view that the Act now under challenge did not create valid class or classes of offences, and held that even if the classification were held to be proper, section 4(1) was ultra vires article 14 of the Constitution in that discretionary power was given to the State to allot cases to the Special Court or not

as the State Government felt inclined, and thus to discrimi-nate between persons charged with an offence fallillg within the same class. We are unable to share this view. There may be endless variations from case to case in the facts and cir-cumstances attending the e-0mmission of the same type of offence, and in many of those cases there may he nothing that justifies or calls for the application of the provisions of the special Act For example, sections 414 and 417 of the Indian Penal CQde are among the offences included in the Schedule to the Act, but they are triable in summary way under section 260 of the Criminal Procedure Code where the value of the property concerned does not exceed fifty rupees. It would indeed be odd if the Government were to be compelled to allot such tri:;ial cases to Special Court to be tried as warrant case with an appeal to the High Court in case of conviction. The gravity of the particular crime, the advan-tage to be derived by the State by recoupment of its loss, and other like considerations may have to be weighed before allotting case to the Special Court which is required to impose compensatory sentence of fine on every offender tried and convicted by it. It seems reasonable, if misuse of the special machinery provided for the more effective punish-ment of certain classes of offenders is to he avoided, that some competent authority should be invested with the poweu to make selection of the cases which should be dealt with under the special A<;t."

The other decision to which we may refer in this connection is A. 7 hamml Kunju Musaliar v. M. Venkitachalam Potti.([1 ]) There the const.itutirn!.al validity of section 5 (I) of the Travancore Taxation on Income (Investigation Commission) Act, 1124 was challenged mainly on the ground that the procedure for assessment prescribed by it was. discriminatory as compared with the procedure prescribed under section. 4 7 of the Travancorc Act XX III of 1121. This challenge was repelled on the view that the persons dealt with under section 5 ( l} forme<l distinct class of substantial evaders of income-tax who required to be specially treated under the drastic procroure provided by the Travancorc Taxation on Income (Investigation Commission) Act, 1.124. But it was urged as an alternative argument that even if the persons who could be proceeded against under section 5 ( 1) formed distinct class by themselves and there was rational justification for pro-viding special procedure for assessing them, "it would be open to the Government within the terms of section 5 ( 1) of the Act itself to dis-criminate between persons and persons who fall within the very group or category; the Govemmept might refer the case of to the Commis-sion leaving the case of to be dealt with by the ordinary procedure laid down in the Travancore Act, XXIII of 1121''. This was an identi-cal argument as the one advanced before us and it challenged the validitv of section 5 ( l ) on the ground that it was discriminatory as between persons who fall within the category of substantia[ evaders of incomiTtax. This Court however negatived the argument 'uul N_ H. Bhagwati, J., speaking on behalf of the Cottrt olmerved : (I) (1955) 2 S.C.R. 1196

, ...,_

The possibility ol such discrimiuatory treatment of per-sons falling within the same group or category, however, cannot necessarily invalidate this piece of legislation. 1t is to be presumed, unless the contrary were shown, that the administration of particular law would be done "not with an evil eye and ·unequal hand" and the selection made by the Government of the cases oi porsons to be referred for 8 investigation by the Commission would not be discrimi-natory."

The learned Judge then referred to the decisions of this Court in Kathi Raning Rawat's case (supra) and Kedar Nath Bajoria's case (supra)and concluded by saying: ·

"It therefore, follows that the mere fact that the Govern-ment is entrusted with the power to select cases of persons falling \\~thin the group of category of substantial evaders of income-tax for reference to the commission would not render section 5 (I ) discriminatory and void ...... The selec-tion of the cases of persons falling within that category by the Government cannot be challenged as discriminatory for the simple reason that it is not left to the unguided or the uncontrolled discretion of the Government. The selection is guided by the very objective which is set out in the terms of section 5 (1) itself and the attainment of that object cqio trols the discretion which is vested in the Government and guides the Government in making the necessary selection of cases of persons to be referred for investigation by the commission. It cannot, therefore, be disputed that there is valid basis of cla!iSification to be found in section 5 (I) of the Act."

These passages from the d·~cisions in Kedarnath Bajoria's case (supra) and A. Thangal Kunju Musaliar's case (supra) provide the most con-vincing refutation of the contention of the petitioners/appellants based on discrimination.

It may be pointed out that the aforesaid decisions in Kedar N1111z Bajoria v. State of West Bengal (supra) and A. Thangal Kunju Muso/iar v. M. Venkilacha/am Potti (supra) were not brought to the attention of the learned Judges who decided Northern India Caterers Ltd .. v. State of Punjab (supra). If their attention had been drawn to these deci-G sions, we have no doubt that the majority judges would not have come to the decision to which they did. We are of the view that the deci-sion in Northern India Caterers Ltd. v. State of Punjab (supra) does not represent the correct Jaw and must be overruled. The challe::ige against the constitutional validity of Chapter VA of the Municipal Act and the Government Premises Eviction Act must accordingly be rejected.

It would on this view appear to be unnecessary to consider whether the special procedure set out in Chapter VA of the Municipal Act is substantially more drastic and prejudicial than the ordinary proce-dure of civil suit. That is one more requirement which mru;t be

satisfied before the special procedure provided in Chapter VA of the Mumc1pal Act can be condemned as d1scnmmatory. We would not have ordmarily proceded to consider whetncr this requirement is satisfied or not as it IS unnecessary to do so, but since we !ind that there is some confusion in regard to this question which needs to be cleared up and the mist of uncertainty surrounding this question needs to be dispelled, we propose to deal with this question. We may point at the outset-and this must be constantly borne in mind, for otherwise it is likely to distort the proper perspective of article 14-that mere minor differences between the two procedures would not be enough to invoke the inhibition of the equality clause. The equality clause would become the delight of legal casuistry and be shorn of its real purpose which is to provide hope of equal dispensation to the common man-"the butcher, the baker and the candle stick maker" -,-.if we indulged in weaving gossamer webs out of this guarantee of equality or started meticulous hunt for minor differences in procedure. What the equality clause is intended to strike at are real aud substantial disparities, substantive or processual and arbitrary or capricious actions of the executive and it would be contrary to the object and intendment of the equality clause to exalt delicate distinctions, shades of harshness and theoretical possibilities of prejudice into legislative inequality or executive discrimination. Our approach to article 14 must be informed by sense of perspective and proportion based on robust understanding and rejection of over-refined distinctions. The whole dimension of protection against discrimination in the processual sphere relates tio real and substantial disparties in procedures. What is necessary to attract the inhibition of article 14 is that there must be substantial and qualitative differences between the two procedures so that one is really and substantially more drastic and prejudicial than the other and not mere superfine differences which in this im-perfect world of fallible human instruments arc bound to exist when two procedures are prescribed. W should avoid dogmatic and finical approach when handling life's flexible realities.

We may also observe that there is no magic formula by w~ich it can be said that one procedure is substantially more drastic and onerous than the other. It does not follow that merely because one procedur~ provides the forum of civil court while the other provides the forum of an administrative tribunal, the latter is necessarily more drastic and onerous than the frontier. We cannot accept such bald proposition. Indeed, not infrequently, the poor man gets lost when he is drawn into regular suit in civil court which, it is well known, has long drawn out expensive and escalating litigative system which often spells ruin to the ordinary man and, consequently, by contrast, prompt and inexpensive instrument, though manned by administra-tive personnel untrained in the. sophisticated court methodology and unaided by long and intricate argument of counsel cn~agcd on onerous terms, may be preferred by many in this ec~mtry. The procedure of the civil court also suffers from many technicalities. . It proceeds on rules of "vidence which are sometimes highly technical, receives pro-

bative material only when placed on record through prescribed pro· cedures even though better appreciation of the situation may per-h•i1" w 1'.,s.;11>le bj' otner mectns and acts SL>Jely on the matenal brou6ht on record excludmg what commonsense and experience may sometime :rugggest as useful in reaching the truth. Aga:n, it functions on the basis of advenary system of administration of justice which may bring about inequality where the opposing advei:saries are net evenly balanced. It IS qui.e possible that m certain types ot cases people may receive better justice where judicial formalism is kept out and the procedure is made informal. The many-tiered system of app~als built into the jud1c1al pyramid often results in pyrrhic vietory and leads to disen-chantment with the end product of delayed justice. We cannot, tberetore, accept as an axiomatic exemption or universal generalisa-tion that as between an administrative tribunal and civil court, the latter is always functionally better than the former. We have grown up in system of administration of justice where civil courts have been the primary authority entrusted with the task of determination of disputes and, therefore, whenever special machinery is devised by the Legislature entrusting the power of determination of disputes to another authority set up by the Legislature in substitution of courts of law, our minds which are conditioned by the historical existence of courts of law and which have, therefore, acquired certain predilection for the prevailing system of administration of justice by courts of Jaw, react adversely against the establishment of such an authority. We must cast aside our predilection for the existing system of administra-tion of justice which has prevailed over long period of time and examine the special machinery set up by the legislature objectively and dispassionately, without any pre-conceived notion or prejudice against it, and find out whether the special m<!f:hinery is really and substantially more drastic and prejudicial than the age old machinery of Civil court. When we say this we do not wish to underscore the high qaalities which are the inalienable attributes of administration of justice by civil courts, namely, detachment and impartiality, objecti-vity of approach, sensitivity and regard for natural justice and skill and expertise in sifting of evidence and interpretation and application of the law. But we do wish to point out that the machinery of an administrative tribunal is not necessarily and invariably more drastic and onerous than that of civil court. The two procedures would have to be compared objectively and dispassionately without any predilection or prejudice to determine whether one is really and sub-stantially more drastic and prejudicial than the other.

If we examine the question before us in the light of these general o~rvations, it will be apparent that the speciar procedure set out in Oiaoter VA of the Municipal Act is not substantially more drastic and oreiud;cial than the ordinary procedure of civil suit. The ini•hl authority to determine the liabiHtv to eviction is no donbt tlie Mnniciual Commissioner who is the chief executive officer of the Municioal Coroo1dtion and who mav not be possessed of any legal trainin~ but section 68 of the Municipal Act provides that this funo-tion may be discharged bv any Municipal officer whom the MunicipalCommissioner may generally or specially empower in writing in that behalf and the Municipal Comiµissioner can, therefore, authorise ·a Deputy Municipal Commissioner attached to the Legal Department of the Municipal Corporation, who would be an officer trained in law, to discharge this function and indeed we have no doubt that the Mumcipal Commissioner, if he is himself not trained in law, would do so. · The determination of the liability to eviction would, thtre-fore, really in practice be made by Municipal officer having proper and adequate legal training. Then again, the occupant against whom the special procedure is set in motion would have right to file his written statement and produce documents and he would also be en-titled to examine and cross-examine witnesses.· The Municipal Com· mjssjoner or other officer holding the inquiry is given the power to summon and enforce the attendance of witnesses and examine them on oath and also require the discovery and production of documents. The occupant is also entitled to appear at the inquiry by advocate, attorney or pleader. Thus, in effect and substance the same proce-dure which is followed in civil court ~ niade available in the pro-ceeding · before the Municipal Commissioner or other officer holding the inquiry. Then there is also right of appeal against the decision of the Municipal Commissioner or other officer and this right of appeal is to senior and highly experienced judicial officer and not t() mere executive authority. The appeal lies to the Principal Judge of the City Civil Court or such other judicial officer in Greater Boin;. bay of not less than ten years standing as the Principal Judge may designate in that_ behalf and itjs an appeal both on law and fact. It is true that revision application against the appellate order is excluded, but if the judicial officer invested with appellate power has failed to exercise his jurisdiction or acted in excess of his jurisdiction or. committed an error of law apparent on the face of the record or the decision given by him has resulted in grave miscarriage of justice, it. is always open to the aggrieved party to !'ring it up before the High Court for examination under article 226 or article 227. The ultimate decision is, therefore, by judicial officer trained in the art and skill of law and not by an executive officer. It is difficult to see how, in the context of the need for speedy and expeditious recovery of public premises tor utilisation for important public uses, where difatoriness of the procedure may defeat the very object of recovery, the soecial procedure set out in Oiapter VA of the Municipal Act-and this applies equally to the special procedure set ont in the Government Premises Eviction Act~n be regarded as really and sqbstantially more drastic and preiudicial than the ordinary procedure nf o dvil suit. We do not think that the two procedures are so substantially and qualitatively disparate as to attract the viee of discrimination.

The result is that all the appeals and writ petitions fail and are dismissed. The petitioners in the writ petitions will pay one set of costs. So far as the appeals are concerned, they will be posted for final disposal before Division Bench. .

Appeals and petitions dlsmi<il'i.