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Shri Krishna Investment And Others v. Union Of India And Others
Factual and Procedural Background
Two appeals under Clause 15 of the Letters Patent arise from two writ petitions in which the petitioners challenged notices issued by the Estate Officer under Section 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, originally the 1958 Act as amended (and later repealed and re-enacted as the 1971 Act). The notices (dated 4 July 1970 and 25 June 1970) called upon the petitioners to show cause why eviction orders should not be made, the Estate Officer having opined that the petitioners were unauthorised occupants. While the writ petitions were pending, the 1958 Act was repealed and re-enacted as the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, with retrospective effect to 16 September 1958; the impugned notices were deemed to have been issued under the 1971 Act. A learned single Judge dismissed the writ petitions (discharged the Rules), relying in part on the Supreme Court decision in Hari Singh v. Military Estate Officer, Delhi, which upheld the constitutional validity of the Act. The petitioners filed these appeals against that judgment and the dismissal of their writ petitions.
Legal Issues Presented
- Whether Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act (as re-enacted in 1971) is violative of Article 14 of the Constitution (i.e., whether it is discriminatory or arbitrary).
- Whether the appeals (asserting enforcement of fundamental rights under Article 14) were subject to suspension by the Presidential proclamation under Article 359(1) of the Constitution (as argued by the appellants).
Arguments of the Parties
Appellant's Arguments
- Section 5 is violative of Article 14 because it uses the word "may" when authorising the Estate Officer to make an eviction order, thereby permitting the Estate Officer to make an order against one occupier and not against another — a power said to be inherently discriminatory.
- A preliminary objection: relying on the Presidential proclamation dated 27 June 1975 under Article 359(1), the appellants contended that proceedings for enforcement of Article 14 rights were suspended while the proclamation was in force, so the appeals should be suspended.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rajendra Prasad Singh v. Union of India, 72 Cal WN 787 : AIR 1968 Cal 560 | Cited as a Special Bench decision of this Court that inspired the petitioners' contention; noted to have been based on the Supreme Court decision in Northern India Caterers. | Referenced as antecedent authority that motivated the writ petitions; not treated as overruling later Supreme Court authority. |
| Northern India Caterers Ltd. v. State of Punjab, AIR 1967 SC 1581 | Referred to as the Supreme Court decision on which Rajendra Prasad Singh was based and as background authority for challenges to the Act. | Used to explain the origin of the petitioners' challenge; the court did not accept that Northern India Caterers required a different outcome in light of subsequent Supreme Court authority. |
| Hari Singh v. Military Estate Officer, Delhi, (1972) 2 SCC 239 : AIR 1972 SC 2205 | The Supreme Court held the material provisions of the Public Premises Act to be intra vires Article 14, thereby upholding the constitutional validity of the Act. | The court treated this Supreme Court decision as concluding the constitutional question; it held that the point raised by the appellants was no longer res integra and that Hari Singh precluded the appellants' challenge. |
Court's Reasoning and Analysis
The court proceeded by first identifying that the constitutional challenge raised in the appeals was identical to the challenge already decided against the petitioners by the learned single Judge, who had relied on the Supreme Court decision in Hari Singh. The 1958 Act had been repealed and re-enacted as the 1971 Act with retrospective effect, and the impugned notices were to be regarded as issued under the re-enacted statute.
On the substantive challenge to Section 5 (that the Estate Officer's discretion to "make an order of eviction" could be exercised discriminatorily), the court rejected the argument for two principal reasons stated in the opinion:
- Binding precedent: The Supreme Court in Hari Singh had held the material provisions of the Act to be intra vires Article 14. The court held that appellants could not re-open the constitutional question on a new ground which, the court reasoned, the Supreme Court must have implicitly considered when upholding validity; therefore the issue was concluded by Hari Singh.
- Statutory scheme and non-arbitrariness: The court agreed with the learned single Judge that the Act lays down sufficient guidelines and provides reasonable opportunities for representation and hearing. Section 5 contemplates adjudication and affords procedural safeguards (recording of reasons by the Estate Officer; availability of appeals under Section 9). The mere presence of discretionary language ("may") in an enabling provision does not, by itself, render the statute arbitrary; abuse of discretion in individual cases can be challenged, but such potential for abuse does not invalidate the statute as a whole.
On the preliminary contention based on the Presidential proclamation under Article 359(1), the court found the objection not bona fide. The proclamation suspends proceedings for enforcement of fundamental rights under Article 14, but the court concluded that, on its findings, the appellants' Article 14 rights were not shown to have been infringed; therefore the ongoing appellate proceedings could not be characterized as proceedings for enforcement of those rights subject to suspension under the proclamation. The court also observed that the appellants had obtained interim stays in the eviction proceedings and that the preliminary objection appeared aimed at delaying the appeals.
Holding and Implications
APPEALS DISMISSED
Direct effect on the parties: All points raised in the appeals were overruled; the appeals failed and were dismissed with costs. The hearing fee was assessed at 5 G. Ms. The judgment of the learned single Judge dismissing the writ petitions was upheld.
Broader implications: The court relied on and treated the Supreme Court decision in Hari Singh as settling the constitutional validity of the material provisions of the Public Premises Act under Article 14. The opinion does not discuss any new, binding precedent created by this decision; it confined its conclusion to applying existing Supreme Court authority and to rejecting the novel ground advanced by the appellants.
Anil K. Sen, J.:— These two appeals under Clause 15 of the Letters Patent are at the instance of the two petitioners in two Rules. Those were the two Rules obtained on two writ petitions. As the Rules raised a common question as to constitutional validity of the material provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, they were heard together and were disposed of by a common judgment dated July 31, 1973 by a learned single Judge of this Court. Those Rules were discharged and the writ petitions were dismissed by the learned single Judge and feeling aggrieved by the said decision and the orders dismissing the respective writ petitions, the petitioners have preferred these two appeals.
2. The subject matters of challenge in those writ petitions were the two notices respectively dated 4th July, 1970 (in the case of Sri Krishna Investment and another) and 25th June, 1970 (in the case of Manton and Company Limited), both issued by the Estate Officer under Section 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 as amended by Act 40 of 1963 and Act 32 of 1968. The Estate Officer being of opinion on grounds set out in the notices that the petitioners were in unauthorised occupation of the respective Public Premises specified in the respective notices, called upon the petitioners to show cause why an order of eviction in respect of each of the petitioners should not be made. Before there could be any adjudication by the Estate Officer, the petitioners moved this Court with the aforesaid writ petitions challenging the validity of the initiation of the proceedings on the ground that material provisions of the Act are ultra vires the constitution being violative of Article 14 thereof. Inspiration for such a contention was obviously derived from the Special Bench decision of this Court in the case of Rajendra Prasad Singh v. Union of India, 72 Cal WN 787 : (AIR 1968 Cal 560) based as the same was on the decision of the Supreme Court in the case of Northern India Caterers Ltd. v. State of Punjab, AIR 1967 SC 1581.
3. Pending the Rules in this Court, the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 was repealed and re-enacted in Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the said Act) and on the provisions of Section 20 thereof the impugned notices are to be deemed to have been issued under Section 4 of the said Act. The material provisions of the said Act were also retrospective having effect from September 16, 1958 (when the earlier Act had come into effect). In the case of Hari Singh v. Military Estate Officer, Delhi, (1972) 2 SCC 239 : AIR 1972 SC 2205 the Supreme Court having upheld the constitutional validity of the said Act, the learned single judge hearing the above Rules overruled the solitary ground of challenge of the impugned notices in the writ petitions and dismissed those writ petitions.
4. In these appeals the petitioner - appellants have raised the same point which had unsuccessfully been raised before the learned single Judge hearing the writ petitions. According to them Section 5 of the said Act is violative of Article 14 of the Constitution and as such void.
5. Mr. Ghosh, learned Advocate appearing in support of these appeals has contended that the said provision may not be violative of Article 14 of the Constitution on grounds such as those in the case of Northern India Caterers (AIR 1967 SC 1581) (supra) or Rajendra Prasad Singh v. Union of India, 72 Cal WN 787 : (AIR 1968 Cal 560), but it is so because when Section 5 provides that the Estate Officer may make an order for eviction, the Estate Officer may or may not make an order or make an order against one but not against the other and as such the provision is highly discriminatory. Apart from the fact that there is a fundamental fallacy in this argument of Mr. Ghosh, we are of the opinion that the learned trial Judge is right in his conclusion that such a point is no longer res integra in view of the Supreme Court decision in the case of Hari Singh v. Military Estate Officer, Delhi ((1972) 2 SCC 239 : AIR 1972 SC 2205). According to Mr. Ghosh the ground on which he contends the provision to be ultra vires was not raised before or considered by the Supreme Court in the case of Hari Singh and as such that decision cannot conclude the points sought to be raised by him. We are, however, unable to accept such a contention. The Supreme Court held the material provisions of the Act to be intra vires Article 14 of the Constitution and it is not permissible for Mr. Ghosh to contend or suggest that though the provision is ultra vires for reasons suggested by him, the Supreme Court overlooked the said aspect in declaring the provision to be intra vires. In this view we uphold the view taken by the learned trial Judge that the point sought to be raised is concluded by the decision of the Supreme Court in the case of Hari Singh v. Military Estate Officer, Delhi.
6. That apart, as indicated hereinbefore there is a fundamental fallacy in this contention of Mr. Ghosh. We are in agreement with the learned trial Judge that the Act itself has laid down sufficient guideline for exercise of power under the Act and also provides reasonable opportunities for the parties to be affected to make representations and showing cause as to why such an order for eviction should or should not be made against them. The power or the discretion vested in the Estate Officer is not arbitrary. If the Estate Officer exercises his power or discretion in an arbitrary or discriminatory manner such exercise of power or discretion would not be bona fide. But no statute can be struck down only on the ground that powers thereunder when abused would result in discrimination. We must always proceed on the footing that the powers conferred by a statute would be used and not abused. An abuse of powers vested by a statute does not render the source of the power tainted, it only renders such act of abuse liable to be struck down. Section 5 no doubt uses the word ‘may’ in authorising the Estate Officer to make an order of eviction as such words are always used in all enabling provisions. That section contemplates an adjudication prior to the making of the order and furnishing of a reasonable opportunity of being heard to the party proceeded against. Such adjudication, in our opinion, may in some cases make out reasonable grounds for not making an order of eviction. Therefore on the scheme of things, the statute cannot but only make an enabling provision, as it is made, leaving exercise of such powers to the discretion of the Estate Officer to be exercised only on the guidelines prescribed by the statute. That is explicit when the provision itself lays down that the Estate Officer is to record his reasons and the orders so made are subject to appeals under Section 9 thereof. It is however incorrect to think-as suggested by Mr. Ghosh that such a provision authorises any abuse or discriminatory use of the powers thereunder. We therefore find no merit in the only point raised by Mr. Ghosh in these appeals.
7. Incidentally Mr. Ghosh raised a preliminary objection to the hearing of these appeals. Relying on the Presidential proclamation dated June 27, 1975 under Article 359(1) of the Constitution, Mr. Ghosh contended that the present appeals being pending proceedings for enforcement of the appellants' fundamental rights under Article 14, such appeals are liable to be suspended during the period the proclamation remains in force. We do not think such a plea is really bona fide. Having obtained stay of further proceedings of the eviction proceedings under the Act under interim orders obtained in these appeals, it would certainly be to their interest for the appellants to delay hearing of these appeals.
8. The objection so raised by Mr. Ghosh is but an endeavour in this respect to delay the hearing of these appeals. But what the proclamation had suspended is any proceedings for enforcement of fundamental rights under Article 14 but when on our findings made hereinbefore no such right of the appellants had at all been infringed, the proceedings now before us cannot be said to be proceedings for enforcement of such rights which are liable to be suspended on the Presidential Proclamation relied on by Mr. Ghosh.
9. Thus all the points raised in these appeals fail and are overruled. On the conclusion as above these appeals fail and are dismissed with costs. Hearing fee is assessed at 5 G. Ms.
10. A.P Bhattacharya, J.:— I agree.
11. Appeals dismissed.
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