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D. Macropolo And Co. v. Union Of India
Structured Summary of the Opinion
Factual and Procedural Background
The petitioner had been a long-term tenant of premises Nos. 9, 10, 11 and 12 Old Court House Street, Calcutta, paying rent at a fixed rate. The Government of India purchased the property on or about 31 January 1963. By a notice dated 22 July 1963 the tenancy was terminated effective at the end of August 1963. On 21 September 1963 the Estate Officer informed the petitioner that the petitioner was in unauthorised occupation and called upon the petitioner to show cause by 10 October 1963. The petitioner showed cause and, after negotiations, was allowed to remain until the end of October 1965 and vacated on 29 October 1965.
On 27 September 1965 the Estate Officer demanded damages of Rs. 2,626 for the period 1 September 1963 to 30 June 1965 and called for objections. By notice dated 5 October 1966 the Estate Officer demanded damages for 1 July 1965 to 29 October 1965. The Estate Officer then made an order under Section 7(2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958. An appeal was preferred; the Chief Judge, City Civil Court, Calcutta, by order dated 6 March 1968, set aside that assessment order and remanded the matter to the Estate Officer for fresh order after taking evidence of both sides.
By a notice dated 2 December 1968 the Estate Officer issued another notice under Section 7(2), asserting damages of Rs. 53,925 for the period 1 September 1963 to 29 October 1965 and calling upon the petitioner-company to show cause by 18 December 1968. The petitioner challenged the propriety of that 2 December 1968 notice by filing the present application under Article 226 of the Constitution.
Legal Issues Presented
- Whether the proposed action under Section 7(2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 (as invoked by the 2 December 1968 notice), is permissible in law.
- Whether Section 7 can stand independently of Section 5 of the Act — i.e., whether damages under Section 7(2) can be assessed without first determining that a person is in unauthorised occupation under Section 5.
- Whether Section 7(2) suffers from the same constitutional infirmity as Section 5 (namely a violation of Article 14 of the Constitution) because it vests wide discretion in the Estate Officer without guiding principles.
- Whether the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1968 (specifically the insertion of Section 10-E) can validate or cure any constitutional invalidity in Section 7(2) of the principal Act.
Arguments of the Parties
Petitioner's Arguments
- Section 7 could not stand independently of Section 5; damages under Section 7(2) presuppose a prior determination that the person was in unauthorised occupation under Section 5.
- Section 7 suffered from the same infirmity as Section 5 because it conferred a wide discretion on the Estate Officer without laying down guiding principles, enabling arbitrary distinctions and violating Article 14 of the Constitution.
- On parity with the reasoning of the Supreme Court in AIR 1967 SC 1581, Section 7(2) was void for violative of Article 14 and hence could not be validated by the Amendment Act, 1968; the correct legislative response would be repeal and reenactment rather than mere amendment.
- The petitioner relied on the reasoning in the Full Bench decision of the Delhi High Court (Sh P.L. Mehra v. Sh D.R. Khanna, AIR 1971 Delhi 1 (FB)) to contend that a provision void under Article 13(2) is non-existent for all purposes and cannot be cured by later amendment.
The opinion does not contain a detailed account of opposing or respondent arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Standard Literature Co. Ltd. v. Union of India, 71 Cal WN 719 : (AIR 1968 Cal 1) | Special Bench of the Calcutta High Court upheld the validity of the Act (though the controversy now under consideration was not raised in that case). | The opinion notes this decision but records that the specific controversy (as presently framed) was not raised there; it was not dispositive of the present issue. |
| Rejendra Prasad Singh v. Union of India, 72 Cal WN 787 : (AIR 1968 Cal 560) | The Special Bench, following the Supreme Court in Northern India Caterers, held that Section 5 of the Act was violative of Article 14 and therefore void. | The court relied on the analysis in that decision to recognize that Section 5 had been held void; this formed part of the foundation for comparing Section 7(2) with Section 5. |
| Northern India Caterers Pvt. Ltd. v. State of Punjab, AIR 1967 SC 1581 | Supreme Court reasoning used to assess whether statutory provisions (like Section 5) violated Article 14 by enabling arbitrary discrimination through summary procedures. | The court applied the parity of reasoning from this Supreme Court decision to conclude that Section 7(2) suffered from the same infirmity and was therefore void. |
| Deep chand v. State of U.P., AIR 1959 SC 648 | Authority for the proposition that the doctrine of eclipse does not apply to post-Constitution laws infringing Fundamental Rights — such laws are void ab initio to the extent of contravention. | The court relied on this authority to hold that a provision void for infringing Fundamental Rights cannot be validated by subsequent amendment; a void section is a nullity ab initio. |
| Sh P.L. Mehra v. Sh D.R. Khanna, AIR 1971 Delhi 1 (Full Bench) | Full Bench conclusion that a statute void under Article 13(2) is non-existent for all purposes including repeal, amendment or enforceability; an amendment to such a statute is ineffective. | The court expressed respectful agreement with the majority view of that Full Bench and relied on its reasoning to conclude that Section 7(2) could not be made valid by the 1968 Amendment. |
Court's Reasoning and Analysis
The court's reasoning proceeded along the following lines, reflecting the analysis contained in the opinion:
- The central legal inquiry was whether an action under Section 7(2) (assessment and recovery of damages for unauthorised occupation) was permissible without first determining unauthorised occupation under Section 5, and whether Section 7(2) was constitutionally valid.
- The court observed that Section 7(2) must be examined in light of the infirmities found in Section 5. Section 5 had been held to violate Article 14 by enabling summary procedures and arbitrary distinctions. The court found that Section 7(2) suffers from the same defect because it vests broad discretion in the Estate Officer without laying down guiding principles to prevent arbitrary action.
- Applying the reasoning of the Supreme Court in Northern India Caterers (AIR 1967 SC 1581) and the Special Bench decision in Rejendra Prasad Singh, the court concluded that Section 7(2), prior to the 1968 amendment, was void for contravening Article 14.
- The court addressed the effect of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1968, which inserted Section 10-E purporting to bar civil court jurisdiction over eviction and recovery proceedings. The court held that Parliament could not, by way of amendment, validate a provision that was void ab initio for breaching Fundamental Rights.
- Relying on the doctrine articulated in Deep chand v. State of U.P. (AIR 1959 SC 648), the court explained that post-Constitution enactments that infringe Fundamental Rights are void ab initio and cannot be kept alive or validated by subsequent amendment (the doctrine of eclipse does not apply to such laws).
- The court also noted and expressed respectful agreement with the majority reasoning of the Full Bench of the Delhi High Court (Sh P.L. Mehra v. Sh D.R. Khanna) that a statute void under Article 13(2) is non-existent for all purposes and that an amendment to such a statute is ineffective.
- On these grounds the court concluded that Section 7(2) of the principal Act (as it stood before the 1968 Amendment) was void and could not be validated by the Amendment Act, 1968; therefore the proposed action under Section 7(2) (the 2 December 1968 notice) was not permissible.
- Because of this conclusion the court did not find it necessary to decide other points urged in the application.
Holding and Implications
Core Holding:
Section 7(2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 (as it stood before the 1968 Amendment) is void for contravening Article 14 of the Constitution, and the notice dated 2 December 1968 issued under Section 7(2) cannot be given effect to.
Direct Consequences and Orders:
- The respondents are directed not to give effect to the notice dated 2 December 1968 and not to proceed further pursuant to that notice.
- A writ in the nature of Mandamus is issued accordingly; the Rule is made absolute to the extent indicated in the order.
- There will be no order as to costs.
- There is a stay of operation of this order for 12 weeks; during the period of stay the interim order will also continue.
- The application is allowed.
Implications beyond these direct effects are not expansively discussed in the opinion; the court limited itself to the direct consequence that the particular notice and action under Section 7(2) (as challenged) are not permissible and recorded the legal conclusion that Section 7(2) was void and could not be validated by the 1968 amendment.
1. In this application under Article 226 of the Constitution the petitioner challenges the notice dated 2nd December, 1968, issued by the Estate Officer under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1958. The petitioner was for a long time a tenant in respect of a building known and numbered as premises Nos. 9, 10, 11 and 12 of the Old Court House Street, Calcutta. The petitioner was paying rent at a particular rate. The Government of India purchased the said property on or about the 31st January, 1963. By a notice dated 22nd July, 1963, the Deputy Director of Estates and Under Secretary of the Government of India on behalf of the President of India terminated the tenancy in respect of the said premises on the expiry of the month of August, 1963. On the 21st September, 1963, the Estate Officer, Government of India, informed the petitioner that the petitioner was in unauthorised occupation of the said premises and called upon the petitioner to show cause on or before the 10th October, 1963, as to why an order of eviction should not be made against the petitioner. The petitioner duly showed cause and after negotiations there was an agreement and the petitioner was allowed to remain in occupation till the end of October, 1965. The petitioner vacated the said premises on the 29th October, 1965. On the 27th September, 1965. the said Officer demanded damages from the petitioner at the rate of Rs. 2,626/- for the period between the 1st September, 1963 to the 30th June, 1965 and called upon the petitioner to show cause why an order requiring the petitioner to pay the said amount should not be made. By another notice dated the 5th October, 1966, the Estate Officer again demanded from the petitioner damages at the said rate for the period from the 1st July, 1965, to the 29th October, 1965. The petitioner duly showed cause. Then the Estate Officer made an order under Section 7(2) of the Act. There was an appeal preferred and the appeal was heard by the Chief Judge, City Civil Court, Calcutta and by an order dated the 6th March, 1968, the learned Chief Judge, City Civil Court, Calcutta, set aside the order of assessment of damages under Section 7(2) of the Act and remanded the case back to the Estate Officer for passing a fresh order after taking evidence of both sides. By a notice dated 2nd December, 1968, the Estate Officer issued another notice under Section 7(2) of the Act and the respondents considered that the damages amounting to Rs. 53,925 were due for the period between the 1st September, 1963 to the 29th October, 1965 and the petitioner-Company was asked to show cause on or before the 18th December, 1968. It is the propriety of the last mentioned order that is under challenge in this application under Article 226 of the Constitution.
2. In the case of Standard Literature Co. Ltd. v. Union of India, 71 Cal WN 719 : (AIR 1968 Cal 1) the Special Bench of this Court upheld the said Act. In the said case however the controversy was not raised in the present form. In the case of Rejendra Prasad Singh v. Union of India, 72 Cal WN 787 : (AIR 1968 Cal 560) the Special Bench of this Court following the decision of the Supreme Court in the case of Northern India Caterers Pvt. Ltd. v. State of Punjab, AIR 1967 SC 1581, held that Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, was violative of Article 14 of the Constitution and, therefore, void. Sections 5 and 7 of the Act provide inter alia as follows:
“5. Eviction of unauthorised occupants.
(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Sec. 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may, on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.
(2) If any person refuses or fails to comply with the order of eviction within forty-five days of the date of its publication under sub-section (1), the estate officer of any other officer duly authorised by the estate officer in this behalf may evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary:
Provided that in the case of any such person who is not a Government employee and who has been in continuous occupation of the public premises for a period exceeding three years immediately preceding the date of the publication of the order of eviction, the estate officer shall not, if any application is made to him in this behalf, evict such person from the public premises within ninety days of such publication.
7. Power to recover rent or damages in respect of public premises as arrears of land-revenue.
(1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order.
(2) Where any person is, or has at any time been, in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order:
Provided that no such order shall be made until after issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer.
(3) If any person refuses or fails to pay the arrears of rent or any instalment thereof payable under sub-section (1) or the damages or any instalment thereof payable under sub-section (2) within the time specified in the order relating thereto, the estate officer may issue a certificate for the amount due to the Collector who shall proceed to recover the same as an arrear of land revenue.”
3. The Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1968 was passed by the Parliament on 16th August, 1968 and the relevant amendment with which we are concerned provides as follows:
“4. Insertion of new Section 10-E — After Section 10-D of the principal Act, the following section shall be inserted, namely:—
10-E. Bar of Jurisdiction — No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises or the recovery of the arrears of rent payable under sub-section (1) of Section 7 or the damages payable under sub-section (2) of that section or costs awarded to the Central Government under sub-section (4-A) of Section 9 or any portion of such rent, damages or costs.”
4. The main question that was canvassed in this application is, whether the proposed action under Section 7(2) of the aforesaid Act mentioned in the petition is permissible in law. It was urged that Section 7 could not stand independently of Section 5 of the said Act. Unless it was determined that a person was in unauthorised occupation, there could not be any scope of determination of damages by a person in unauthorised occupation, it was submitted. Therefore, it was submitted that Section 7 could not have any independent existence apart from Section 5. It was also urged that Section 7 also suffered from the same infirmity as mentioned in Section 5 of the Act inasmuch as wide discretion had been given to the Estate Officer without laying down any guiding principle to determine whether to go to Civil Court or to take steps under provisions of the Act Therefore, it was urged that on the parity of reasoning given in the Supreme Court in the case of AIR 1967 SC 1581 Section 7(2) of the Act was also void. It was submitted that Section 7(2) of the Act was void because it violated the provisions of Article 14 of the Constitution and it could not be amended by the provisions of the Amendment Act, 1968; the only way was to repeal the Act and enact a new legislation removing the infirmity. This point has been exhaustively considered by the Full Bench of the Delhi High Court in the case of Sh P.L Mehra… v. Sh D.R Khanna…, AIR 1971 Delhi 1 (FB). The majority of the learned Judges of the Delhi High Court consisting of Hardayal Hardy and Parkash Narain, JJ. came to the conclusion that the statute which was void within the meaning of Article 13(2) of the Constitution was non-existent for all purposes including repeal, amendment or enforceability. They further came to the conclusion that the whole of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, was void as it enabled the Government to discriminate between the occupants of Public Premises arbitrarily by adopting the summary procedure against some while giving to the others the benefit of the regular civil suits. As the Act was merely amended in 1968 by the insertion of an additional section, namely, Section 10-E, the amendment was ineffective and the Act remained void. In my opinion Section 7 of the said Act suffers from the same infirmity as Section 5. Section 7(2) is, therefore, liable to be struck down, The fact that Section 7(2) was not struck down prior to the passing of the amendment by the Amendment Act, 1968, makes no difference because if an Act is void it is void irrespective of the fact whether it has been so declared by the Court. In that view of the matter on the same reasons mentioned by the Supreme Court in the case of AIR 1967 SC 1581, I am of the opinion that Section 7(2) before the Amendment Act. 1968, was void. I am of the opinion that the Parliament was incompetent to enact the said Section 7(2) of the Act in violation of Article 14 of the Constitution because of Article 13(2) of the Constitution. Section 7(2) of the Act was a nullity ab initio. The doctrine of eclipse has no applica tion to post-Constitution laws infringing the Fundamental Rights as they would be void ab initio to the extent of their contravention of the Fundamental Rights. For this reliance may be placed on the observations of the Supreme Court in the case of Deep chand v. State of U.P, AIR 1959 SC 648. Therefore the said void section cannot be made valid by amendment. Therefore Section 4 of the Amendment Act of 1968 cannot make Section 7(2) of the principal Act valid. In so far as the majority of the learned Judges of the Delhi High Court expressed the aforesaid opinion in the aforesaid decision, I am in respectful agreement with the decision of the majority of the learned Judges of that High Court. It is not necessary for me to decide whether the whole Act was void or not. In the aforesaid view of the matter I, therefore, hold that the Section 7(2) of the Act was void and could not be amended in the manner purported to be done by the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1968. Therefore, the action proposed to be taken under Section 7(2) of the Act by the order of 2nd December, 1968, is not permissible. In the aforesaid view of the matter it is not necessary for me to decide other points urged In this application.
5. In the premises, this application must succeed. The respondents are directed not to give effect to the said notice dated the 2nd December, 1968, mentioned in the petition and not to proceed further in pursuance thereof.
6. Let a Writ in the nature of Mandamus issue accordingly. The Rule is made absolute to the extent indicated above. There will be no order as to costs. There will be a stay of operation of this order for 12 weeks. During the period of stay interim order will also continue.
7. Application allowed.
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