Delhi High Court
Bawa R. Singh vs Union Of India on 22 May, 1970
Equivalent citations: 6(1970)DLT409
JUDGMENT
M.R.A. Ansari (1) The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India for the issuance of an appropriate writ direction or order (a) declaring the provisions of Sections 4 5, 6, and 10 (E) of the Public Premises (Eviction of Urauthorised Occupants) Act, 1958 to be illegal and void, (b) d daring the action of respondent No. 2 taken in respect of shop? Nos. I and 2 belonging to the petitioner under the provisions of sections 4 and 5 of the Act to be had in law and (c)directing respondent No. 2 to deliver possession of shops Nos. 1 and 2 to the the petitioner.
(2) The petitioner purchased a property known as "Malrose" bearing Door No. 245/4 Situated in Upper Kaithu, Simla, in a public auction held by the Regional Settlement Commissioner, Jullundur under the provisions of the Displaced Persons Compensation Act and the said property was transferred to the petitioner with effect from 14th January, 1957. Thereafter the petitioner constructed six stalls in the compound attached to the property. On 30th December, 1958 the petitioner received a notice from the Executive Engineer, Simla Central Division informing the petitioner (bat the land on which he had constructed the stalls belonged to the Government of India and calling upon the petitioner to remove the encroachment. Accordnig to the petitioner he made a representation to the Executive Engineer to the effect that these stalls were constructed on land belonaing to him and that there was no encroachment upon, any part of the Government land and that on such representation the authorities were satisfied that there was no encroachment by the petitioner and consequently no action was taken aginst him. But again on 22nd February, 1962, another notice was issued to the petitioner by respondent No. 2 purporting to be under section 4(1) of the Public Premises (Eviction of un-authorised Occupants) Act, 1958 (hereinafter referred to as the Act) alleging that the petitioner had encroached upoi Government land to the extent of 30 square yards and 6 square feet by constructing the stalls and callingpon the petitioner to show cause against his eviction from the said piece of land. The petitioner again made a representation to the Estate Officer against the prooosed eviction and according to the petitoner the authorities were satistified with his representation and no action was taken against him. Then again on 15th May, 1957 another notice was sent to the petitioner by respondent No, 2 stating that the first and second shops in the row of stalls had been unauchorisedly constructed on Government land and calling upon the petitioner to vacate the same within 45 days of the receipt of the notice. According to the petitioner he again made representation to the second respondent against the proposed eviction but his representations were not accepted and.. respondent No. 2 issued an order dated 1st May, 1960 under Sub-section (2) of Section 5 of the Act to the effect that respondent No. 2 had decided to take over possession of the premises in question. On 15th May, 1969 respondent No 2followed up this Older by actually taking over possession of the two of the shops eonstructed by the petitoneer On 15th May 1969 the second Respondent 1ssued a notice to the petitioner under Section 6() of the Act calling upon him to remove the structures in question' within 14 day from the date of the issue of the notice failing which the structures were liable to be rcmoved or disposed of by respondent No. 2 in public auction. Awording to the petitioner he sent. a number of representations to rsepondent No. 2 against the action taken by him but in spite of such representations the petitioner did not obtain any relief at the hands of the respondent.
(3) In his petition the petitioner has challenged the action taken by the second respondent on the following grounds :- (1) That Sections 4 and 5 of the Act were violative of Article 14 of the Constitution of India inasmuch as two remedies were open to the Estate Officer for the eviction of persons alleged to be in unauthorised possession of premises, namely :- Under the normal Saw by filing a regular civil suit and another by having recourse to the provisions of sections 4 and 5 of the Act and no guiding principles were prescribed in the Act with regard to the choosing of the two remedies in a prticular case, and 21 that Section 10(E) of the Act did not have the effect of validating Sections 4 and 5 of the Act which were void ab initio. The petitioner, therefore, seeks a declaration from this Court that the action taken by the respondents under Sections 4, 5 and 6 of the Act was illegal and that the petitioner was entitled to restoration of the property from which he has been dispossessed by respondent No. 2.
(4) The respondents in their written statement maintained that the petitioner had encroached upon Government land and had been rightly evicted under Sections 4 5 and 6 of the Act. According to them Sections 4, 5 and 6 of the Act were not violative of Article 14 of the Constitutuion and were quite valid. Any infirmity that might have existed in these provisions was removed by the introduction of Section 10 (E) in the Act, by the Amendment Act of 1968. The potion taken by respondent No. 2 under sections 4, 5 and 6 of the Act for the removal of the encroachment upon the Government land was, therefore, legal and valid and the same could not be questioned by the petitioner The petitioner had also filed a suit in the Court of the Senor Subordinate Judge Simla against respordents Nos.l ?nd 2 and obtained a temporary inJurction restraining the respondents from removing stalls Nos 1 and 2 constructed by the petitioner. The suit was still pendirig and the petitioner was precluded by reason of the suit firm filing the present petition. The petitioner, was rot, entitled to the same relief in these proceedirgs.
(5) The question whether or not the petitoner had encroached upon Government land by constructing the 'stalls in dispute cannot be gone into by this Court in the present proceedings and as a matter of fact the petitioner does not seek any declaration from this Court in these proceedings on this question. But even if this Court is precluded from going into the question whetheor not the petitioner had encroached upon he Goverrment land, the petitioner would be entitled to recovery of possession of the stalls in dispute if this Court is satisfied that the action taker) by respondent No. 2 under sections 4, 5 and 6 of Act v as illegal by reason of the said provision of the Act being violative cf Article 14 of the Constitution. The effect of Sectiion 10 (E) on Section 4, 5 end 6 will be considered at a later stage. Put apart from section 10 (E) the quest on whether Sections 4, 5 and 6 of the Act were vi'olative of Article 14 of the Constitution is not lenger resintegia after the decision of the Supreme Court in in the Nor lhem India Caterers (Private) Ltd. end another v. State of Punjabin which the majority judgment held as follows.- "THEREcan be doubt that section 5 confers an additional remedy over and above the remedy by way of suit and that by providing two alternative remedies to the Government and in leaving it to the unguided discretion of the Collector to resort to one or the other and to pick and choose some of those in occupation of public properties and premises for the application of the more drastic procedure under section 5, that section has lent itself open to the charge of discrimination and as being violative of Article 14. In this view Section 5 must be declared to be void."
(6) This rule was no doubt laid down in respect of Section 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act'(31 of 1959). But Section 5 of the said Act being exactly similar to Section 5 of the Act, the rule laid down by the Supreme Court is equally applicable to the present case. In Banwari Lal Tandon v. Military Estates Officer the Allahabad High Court applied the rule laid down by the Supreme Court in the case of Northern India Caterers to a case under section 5 of the Act and in 1. A. 165 of 1970 in Executions Nos, 4 to 7 of 1967, this Court also applied the ru'e laid down by the Supreme Court in the case of Northern India Caterers to Section 7 (1) of the Act A Full Bench of the Calcutta High Court in Rajendra Prasad Singh v. Union of India .also has applied the The rule laid down in Northern India Caterer's case to Section 5 of the Act. Therfor ignoring the effect of Section 10 (E) of the Ac; for the present it must be held that Sections 4 5 and 6 of the Act are void as being violative of Article 14 of the Constitution.
(7) The questioa now for consideration is whether Section I (E) of the Act which was introduced by the.Amendment Act of 1968 had the effect of Validating Sections 4, 5 and 6 of the Act section 10 E) was no doubt enacted specifically with a view to meet the objection raised in the judgment of the Supreme Court in the Northern India Caterer's case by taking away the alternative remedy of filing a suit and making it obligatory on the Estate Officer to resort to the provisions of Sections 4, 5. and 6 of the Act in all cases. But it would appear that the legislature has failed to achieve this object by introducing Section 10 (E) in the Act.
(8) The legal effect of a particular statute or part there of being declared null and void as being violativeof the fundamental rights guaranted under the Constitution and the legal effect of amendment of such statutes or portions there of with the object of revalidating them has been examined by the Supreme Court in several cases. In Deep Chand v. State of U. P the distinction between the effect of the subsequent amendments on preconstitution and post constitution laws has been explained in the following terms: "ARTICLE13(1)deals with laws in force in the territory of India before the commencement of the Constitution and such laws in si far as they are inconsistent with the provisions of Part Iii shall, to the extent of such inconsistency be void The clause, therefore, recognises the validity of the pre-constitution laws and only declares that the said laws would be void thereafter to the extent of their inconsistency with Part Iii, whereas clause (2) of that article imposes a p"ohibition on the State making laws taking away or abridging the rights conferred by Part Iii and declares that laws made in contravention of this clause shall to the extent of the contravention, be void. There is a clear distinction between the two clauses Under clause (1), a pre-Constitution law subsists except to the extent of its inconsitency with the provisions of Part III; whereas, no post-Constitution law can be made contravening the provisions of Part Ip, and therefore the law, to that extent though made, is a nullity from its inception."
(9) Their Lord .hips have also quoted with the approval the following passage from Constitutional limitations by Cooley "when a statute is adjudged to be unenstitutional, it is as if it had never been........And what is true of an Act void in toto is true also as to any part of an act which is found to bs uncostitutional, and which. consequently, is to be regarded as having never at any time, been possessed of any legal force" The effect of such still born laws by subsequent amendments either of the Constitution or of the laws them3. selves has also been explained by their Lordships by quoting with the approval the following passage from an earlier decision of the Supreme Court in Saghir Ahmad v. State of U. P. "ASProcessor Cooley has staled in his work on Consititutional Limitations (Vol. I, page 304 lute^ 'a statute void for unconstitutionality is dead and cannot be vicalised by a subsequent amendement of the Constitution removing the constitutional objection but must be re-enacted' We think that this is sound law and our conclusion is that the legislation in question which violates the fundamental right of the appelants under article 19(l)(g) of the Constitution and is not shown to bs protected by clause (6) of the article, as it stood at the time of the enactment. must be held to be void uader article 13(2) of the Constitution"
The same view was reiterated by the Supreme Court in Mahandra Lal Jaini v. State of Uttatr Pradesh and it was also held that the doctrine of Eclipse did not apply to Host Constitutional law which are Held to be null and void from their inception.The following passage from the judgment will explain the position: - "THENcomes the question as to what is the effect of an amendment of the Constitution in the two types of' cases So far as pre Constitution laws are concerned, the amendment of the Constitution which removes the inconsistency will result in the revival of such laws by virtue of the doctrine of eclipse, as laid dowa in Baikaji Narain's case, , for the pre existing laws were not still born and would still exist though e lipsed on account of the inconsistency to govern per-existing matters. But in the case ofpost Constitution laws tiey would be still-born to me extent of the contravention. And it is this distinction which results in the impossibility of applying the doctrine of eclipse to post Constiution laws, for nothing can be revived which never had any valid existence 10. The Supreme Court had occasioned to consider the same question in a latter case, namely, B Shama Rao v Union Territory of Pandicherry when examing the provisions of the Pandicherry General Sales Tax Act of 1903 in the; light of the Pandicherry General Sales Tax (Amendment) Act (.13 of 1966) and it was held that "as the Pondicherry General Sales Tax Act (i0 of 1965) was void. abinUiu the Pondichery General Salss Tax. (Amendment) Act (13 of 1 66) which attempted to revive it also became fi uprated and had no efficacy."
(11) Following the rule laid down in above cited cases the Allahabad High Court has held in Banwari Lal Tandonv. Military Estates Officer that since section 5 of the Act was still-born and did not exist, it could not be revived or resuscitated by 'he introduction on Section 10-E and that the Amending Ordinance and the Amending Act .have completely failed to achieve their object to revive Section 5 which was void ab into This Court also has taken the same view in the decision alreasy cited, viz. in the case of M/s Trans Atlantic Airlines Inc. v. 1. A. 165/1970 in Executions Nos. 4 to 7 of 1967 decided on March 10, 1970 In view of all these decisions I think there is no longer any scope for the argument that Section 10 (E) of the Act had removed the vice that had existed in Sections 4 to 6 of the Act and that Sections 4 to 6 of the Act are now valid, ll follows that the action taken by the respondents under Sections 4 to 6 of the Act Js illegal.
(12) A feeble attempt has been made on behalf of the respondents to challenge the maintainablily of the present writ petition on two grounds, namely, (1) that the petitioner had already filed a civil suit seeking the same relief and (2) that the petitioner by consenting to deliver possession of the stalls to the respondents can have no grievance against the action taken by the respondents. the copy of the injunction application in the suit which has been filed by the respondents themselves would go to show that the suit was filed for a permanent injunction restraining the defendants from taking any further action under Section 6 of the Act in respect of shops Nos. 1 and 2 and from removing or disposing of the structures of the said shops until actual measurements were taken and until the Court gave a verdict that the said shops were situated on Governmnet land. The Court in which the suit was filed would not be competent to pronounce- on the constitutionality of the provisions of the Act. The scope of the suit, is, therefore, quite different from the scope of the present petition. As regards the allegd consent of the petitioner to deliver possession of the stalls to the respondents. Annexure E to I to the petition, would make it clear that the petitioner had agreed to deliver possession to the respondents as he did not wish to resist the respondents who had obtained the help of the police in taking possession of the shops and that the petitioner while agreeing to deliver possession of the shops, however, insisted upon measurements being taken of the land to find out whether there was in fact any encroachment. Under these circumstances the petitioner is not precluded from challenging the action taken by the respondents. The action taken by the respondents under Sections 4, 5 and 61 of the Act is, therefore, declared to be illegal and void and the respondents are directed to deliver possession of shops Nos. I and 2 to the petitioner. The petition is, therefore allowed with costs. Counsel's fee Rs. 250.