http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 16  

PETITIONER: HARI SINGH AND ORS.

       Vs.

RESPONDENT: THE MILITARY ESTATE OFFICER AND ANR.

DATE OF JUDGMENT03/05/1972

BENCH: RAY, A.N. BENCH: RAY, A.N. SIKRI, S.M. (CJ) SHELAT, J.M. DUA, I.D. PALEKAR, D.G. KHANNA, HANS RAJ BEG, M. HAMEEDULLAH

CITATION:  1972 AIR 2205            1973 SCR  (1) 515  1972 SCC  (2) 239  CITATOR INFO :  RF         1972 SC2538  (10)  RF         1974 SC2009  (5,6)  RF         1975 SC1187  (20)  RF         1975 SC1389  (23)  R          1976 SC2250  (23)  R          1987 SC2310  (14)  RF         1988 SC 587  (15)  R          1989 SC 406  (1,3,4,5,6,7)  R          1991 SC 855  (8,27)

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

HEADNOTE: When   the   Public  Premises  (Eviction   of   Unauthorised Occupants)  Act, 1958, was in force, the Government had  two alternative  remedies of eviction of persons in  unauhorised occupation of public premises, namely, one in a court of law by instituting a suit for eviction, and the other, under  s. 5(1) of the Act, which conferred power on the Estate Officer to make an order of eviction. Orders  were passed under is. 5 in 1961 and  1964,  evicting the  appellants,  and, writ petitions filed by them  in  the High  Court  were dismissed.  While their  appeals  in  this Court   were  pending  the  Public  premises  (Eviction   of Unauthorised Occupant ) Act, 1971, came into force. repealed the  1958-Act  and  had retrospective  operation  from  16th September,  1958.   Under it, there is  only  one  procedure available for eviction of persons in unauthorised occupation of public premises.  Its scheme is that it confers power  on the  Estate Officer to issue notice to persons who,  are  in unauthorised occupation of any public premies to show  cause why  an  order  of eviction should not  be  made  and  after considering  the  grounds,  to pass an  order  of  eviction. ’Premises’  are defined to include any land or any  building

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 16  

or  part of a building.  Section 20 provides  that  anything done  or any action taken on purported to have been done  or taken under the 1958-Act shall be deemed to be as valid  and effective as if such thing or action was done or taken under the  corresponding  provisions of the  1971-Act.   Also.  15 provides  a  bar  to  the  jurisdiction  of  the  ’court  to entertain a suit or proceeding in respect of eviction of any person in unauthorised occupation of public premises. The appellants challenged the constitutionality of the 1971- Act also in the appeals. Dismissing the appeals, HELD:     (Per  S. M. Sikri, C. J. J. M. Shelat, A. N.  Ray, I. D. Dua, D.  G.  Palekar and H. R. Khanna, JJ.) : (1)  The validity  of  the 1971Act depends on,  (a)  the  legislative competence  to validate anything done or action taken  under the   1958-Act;  (b)  whether  the   Legislature   possesses competence  over  the  subject matter; and  (c)  whether  by validation the Legislature has removed the defect which  the Court had found in the previous law. [523 D; 527 E-F] (a)  In  Northern  India Caterers Private Ltd. v.  State  of Punjab, [1967] 3 S.C.R. 399 this Court held that s. 5 of the Punjab  Premises and Land (Eviction and Rent Recovery)  Act; 1959,  was violative of Art. 14 of the Constitution  on  the ground that, the section left it to the unguided  discretion of  the Collector to taken action either under the  ordinary law or follow the drastic procedure provided by the section. Assuming  that the 1958-Act is unconstitutional on the  same ground it could not be contended that the 1971-Act could not validate anything done under 516 the  1958-Act, because, the 1971-Act is effective from  16th September 1958, and provides that the action taken under the 1958-Act  is deemed to be taken under the 1971-Act.   It  is not  a case of the latter Act validating action taken  under the  earlier Act, but a case where. by a deeming  provision. acts  or things done under an earlier Act were deemed to  be done  under the latter validating, Act. [522 D-F; 524  E-F-; 525 E-G] M/s.  West Ramnad Electric Distribution Co. Ltd. v. State of Madras, [1963] 2 S.C.R. 747, followed. Deputy  Commissioner and Collector, Kamrup & Ors.  v.  Durga Nath sarma, [1968] 1 S.C.R. 1 S.C.R. 561, referred to. (b)  The Legislature bad legislative competence to enact the 1971-Act  and  provide a, speedy procedure for  eviction  of persons in unauthorised occupation of public premises,,  and to pass, the law with retrospective operation. [527 F-G] (c)  The  Legislature can put out of action  retrospectively one  of the procedures leaving one procedure only  available and thus remove the vice of discrimination found in Northern India Caterers case. [526 E-G] State  of Mysore & Anr. v. D. Achiah Chetty etc.,  [1963]  3 S.C.P.. 55. followed. Shri   Prithvi   Cotton  Milts  Ltd.   A  Anr.   v.   Broach Municipality & Ors. [1970] 1 S.C.R. 388, referred to. (2)  Since  the  word ’premises’ means land  which  includes agricultural  land,  the appellant who was  in  unauthorised occupation of agricultural land belonging to the Government, was validly evicted under the Art. [528 A] (3)  A  procedure  for eviction may be available  under  the Punjab Tenancy Act, 1887; but it could not, on that account, be contended that the procedure under the 1971-Act  offended Art.  14.   The  1971-Act provides only  one  procedure  for ejectment  of persons in unauthorised occupation  of  public premises,. and there is no vice of discrimination under  it.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 16  

[528 A-C] Per  M. H. Beg J. : (1) The Court had not declared any  part of  the  1958-Act  to be a void piece  of  legislation,  and therefore,   no  question  of  applying  Art.  141  of   the Constitution arises because of the decision of this Court in Northern  India  Caterers Private Ltd. v. State  of  Punjab, [1967] 3 S.C.R. 399. [529 C] (2)  The assumption that the provisions of the 1958-Act were void  and that therefore action taken under it could not  be legalised or validated is erroneous. [529 C-E] In  the  Northern  India Caterers case s. 5  of  the  Punjab Public  Premises and Land (Eviction and Rent  Recovery)  Act 1959,  was held to be invalid because of the option left  to adopt  either  the  procedure  under  the  section‘  or  the procedure under the ordinary law which lay outside the  Act. The defect or lacuna in the Punjab Act which invalidated the section  was that it did not contain a  prohibition  against the  alternative  procedure  and  not,  that  it   Contained something   which   was,   in   itself,   prohibited.    The unconstitutionality  of the section thus really  arose  from matters extraneous to the Act.  That case laid down  nothing more  than that although the more drastic procedure  may  be otherwise 517 valid, yet it became unenforceable in the situation emerging from the totality of provisions of law considered  therein. there  is nothing in the decision to justify the  view  that the section was per se or ab initio void. [530 B-F] (3)  The  result of the 1971-Act is nothing short of it  re- enactment retrospectively so that no ground is left open for the argument that there is any possibility of discrimination between   different   unauthorised   occupants   of   Public premisses.   Since the date from which the  1971-Act  became applicable the validity of any past action under the1958- Act will have to be adjudged in the light of the  provisions of the1971-Act.  if  some  proceeding  taken  was   till pending its correctnessand  validity would be governed  by the requirements laid down in the1971-Act,  because,   the proceeding taken under the 1958-Act would he deemed to be  a proceeding under the 1971-Act.  The rights protected by  the procedure  in the 1971-Act were not infringed by the  action taken  under  the earlier Act, because,  the  procedure  for eviction  including the right of appeal is  identical  under both Acts. [530 G-14; 531 A-D] (4)Even  if  it  is  case of validation  and  not  one  of reenactment, in substance it also made invalid any possible discriminatory act which may have been committed during  the currency of the 1958-Act. [531 D-E] (5)There  is  no  substance, in the  contention  that  the effect of s. 20 of the 1971-Act was really to validate  what was  merely ’purported to have been done in the  past,,  and that  therefore, it could not be deemed to be  action  taken under  the 1971-Act.  The Word ’purported’ is used  only  to describe  or  identify  the  part  action  taken  under  the repalced Act and has no effect beyond that.  Therefore,  the action  taken would now be deemed to have been  taken  under the 1971 Act. [531 E-G] (6)If at all, the drastic procedure in 1958-Act was merely under   a  shadow,  or,  in  a  state of   suspension   or unenforceability due to reasons failing outside the Act; but once those reasons were eliminated by the new enactment  the shadow  is  removed and the procedure became  operative  and effective  retrospectively.  The effect of the 1971-Act  was that  the option to proceed to evict unauthorised  occupants in any way outside the Act was shut Out retrospectively  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 16  

it was within the legislative competence of Parliament to do so  the action taken against the appellants is  not  invalid when tested by the provisions of 1971-Act. [532 A-D] Keshavan  Aladhava  Menon  v. The State  of  Bombay,  [195]1 S,C.R. 228, Behram Khurshed Pesikaka V. the State of Bombay, [1055]  1  S.C.R. 613, Saghir Ahmad v. The State of  U.P.  & Ort.  [1955] 1 S.C.R. 707, Bhikaji Narain Dhakras & Ors.  v. The  State  of M. P. & Ors., [1955] 2 S.C.R. 589, M.  P.  V. Sundararamier  &  Co.  v. The State of A P.  &  Anr.  [1958] S.C.P,. 1422 Deep Chand v. State of U.P. & Ors. [1959] Supp. 2 S.C.R. 8, Maheredra Lal jaini v. the State of U.P. & Ors., [1961]  Supp.   I  S.C.R. 912, B Sharma  Rao  v.  The  Union Territory  of  Pondichary,  [1967]  2  S.C.R.  650,   Deputy Commissioner  & CollectorKanpur & Ors. v. Durga Nath  Sarma. [1968]  1  S.  C. R. 561 an I P. Bhooma Reddy  v.  State  of Mysore & Ors., [1969] 3 S.C.P,. 14 referred to.

JUDGMENT: CIVIL  APPELLATE,  JURISDICTION : Civil Appeal  No.  493  of 1967. Appeal  from the judgment and order dated September 6,  1966 of the Punjab High Court in Letters Patent Appeal No.  214of 1963 and Civil Appeal No. 1456 of 1968. 518 Appeal  from the judgment and order dated December 21,  1967 of the Patna High Court in Civil Writ Jurisdiction Case  No. 222 of 1966. Rameshwar Dial, Sharda Rani and A. D. Mathur, for the appel- lants (in C.A. No. 493 of 1967). K.K.  Sinha, S. K. Sinha, B. B. Sinha and S. K.  Bisaria, for the appellants (in C.A. No. 1456 of 1967). Jagadish Swarup, Solicitor-General of India, L. M.  Singhvi, P. Parameswara Rao and S. P. Nayar, for respondent No. 1 (in both the appeals). Ravinder  Narain,  Bhuvnesh Kumar,’ and A.  Subba  Rao,  for intervener No. 1 (in C.A. No. 493 of 1967). Soli Sorabjee, Lalit Bhasin, R. N. Banerjee, Ravinder Narain and P. C. Bhartari, for intervener No. 2 (in C.A. No. 493 of 1967). R.K.  Garg  and S. C. Agarwal, for intervener No.  3  (in C.A.  No. 493 of 1967) and the intervener (in C.A. No.  1456 of 1968). A.K.  Sen, S. C. Majumdar and R. K. Jain, for intervener No. 4 (in C.A. No. 493 of 1967). The  Judgment of SIKRI, C.J., SHELAT, RAY, DUA, PALEKAR  and KHANNA,  JJ.  was delivered by RAY, J. BEG, J.  delivered  a separate concurring opinion. Ray,   J.   These   two  appeals   raised   originally   the constitutionality  .of  the Public  Premises  (Evict‘ion  of Unauthorised Occupants) Act, 1958.  The challenge was on the ground that section 5(1) of the 1958 Act violated Article 14 of  the  Constitution.   Section  5(1)  ,of  the  1958   Act conferred  power on the Estate Officer to make an  order  of eviction against persons who are in unauthorised  occupation of public premises.  The vice of section 5 ( 1 ) of the  195 8 Act against Article 14 of the Constitution was this.   The Government  had  two  alternative remedies  of  eviction  of persons  in  unauthorised occupation.  One was to  seek  the remedy in a court of law by instituting a suit for eviction. The  other  was the remedy prescribed by the 1958  Act.  The 1958  Act  was  attacked on the ground that  there  was  the unguided  discretion  of the authorities to  either  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 16  

remedies  and to pick and choose some of them in  occupation of  public  premises  for the  application  of  the  drastic procedure under the 1958 Act. The 1958 Act was amended in 1968Z Section 10E was introduced into the 1958 Act.  Section 10E created bar of  jurisdiction of  civil  court  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  a- rears  of  rent  payable under section 7 ( 1  )  or  damages payable under section 7 (2) or costs ,awarded under  section 9(5) of the Act.  The appellants raised the 519 contention  that the amendment effected by section 1  OE  of the Act was not retrospective and therefore the  proceedings forming subject matter of the appeals were not saved by  the amendment. In  the appeal filed by Hari Singh one Behari  Lal  obtained lease  from  the  President  through  the  Military   Estate Officer,  Delhi  Circle  of 36.73 acres of  land  at  Ambala Cantonment.  The lease was for four years from 1 May,  1952. The  annual  rent was Rs. 3310/-.  The rent was  payable  in advance.   Behari Lal failed to payment.  The lease  expired on  1 May, 1957.  The period of the lease was not  extended. Behari  Lal  failed to surrender possession.  There  was  an order dated 17 June, 1960 under the 1958 Act for eviction of Behari  La].   The appellants claimed to be  sub-lessees  of Behari  Lal.  The lease permitted subletting only  with  the permission  of  the competent authority.  Notice  was  given under the 1958 Act to the appellants to show cause as to why they should not be evicted under the Act, because they  were in unauthorised occupation of the land.  The Estate  Officer found that there was no sanction of the competent  authority permitting sub-lease.  On 25 July, 1961 an order was  passed under  section  5 of the 1958 Act evicting  the  appellants. The  appellants preferred on appeal to the  District  Judge, Ambala.   On  18  April,  1962  the  appeal  was  dismissed. Thereafter  the  appellants  filed a writ  petition  in  the Punjab  High Court.  The learned Single Judge dismissed  the petition on 13 May, 1963.  The appellants preferred  Letters Patent  appeal.   The High Court dismissed the appeal  on  5 September, 1966.  The appeal filed by Hari Singh an,] others is by certificate against the decision of the High Court  of Punjab. The appeal filed by Bhartiya Hotel & Ors. is by  certificate against  the  judgment dated 12 December, 1967 of  the  High Court at Patna.  The appellants there are partners  carrying on  business under the name of Bhartiya Hotel at  Ratanpura. One  of  the partners obtained lease of a plot  of  land  at Chapra  in  Bihar.   Ram Lakhan Prasad is  the  partner  who obtained  the  lease.   The Estate  Officer,  North  Eastern Railway  served a notice dated 12 June, 1964  under  section 4(1)  of the 1959 Act on Ram Lakhan Prasad for  eviction  of the  appellants on the ground that the appellant,,  were  in unauthorised  occupation.  The Estate Officer on  16  March, 1966  passed an order of eviction against  tile  appellants. The appellants thereafter moved the High Court at Patna  for cluashing  the  order  of eviction.  The High  Court  on  21 December,   1967   dismissed  the  writ  petition   of   the appellants.  The appeal is by certificate from the  decision of the High Court. In the appeal filed by Hari Singh and others two contentions were raised in the High Court.  First. it was aid that  tile word   ’premises’  did  not  apply  to  agricultural   land. Secondly, it was said 620

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 16  

that  the  legislation on agricultural land was  within  the exclusive  legislative, filed of the State, and,  therefore, the  Central  Act  was  unconstitutional.   The  High  Court rejected both the contention. In  the  appeal  filed  by Bhartiya  Hotel  and  others  the appellants raised the Principal contention that the 1958 Art violated  Article 14 of the, Constitution.  The  High  Court referred  to  the decision of this Court in  Northern  India Caterers  Private Ltd, & Anr. v. State of Punjab &  Anr.(1). The  High  Court hold that the decision ,of  this  Court  in Northern  India  Caterers Private Ltd,(1) case  was  on  the Punjab Public Premises and Land (Eviction and Rent Recovery) Act,  1959 and the provisions of the 1958 Act  which  formed subject  matter  of  the decision in the  Patna  High  Court contained distinguishable, features, In this context the appellants raised the  constitutionality of  the 1958 Act.  During the pendency of these appeals  the Public  Premises (Eviction of Unauthorised  Occupants)  Act, 1971  received  the assent of the President  on  23  August, 1971.  The appellants were allowed to add a new ground.  The new ground challenged constitutionality of the 1971 Act. The decision in the present appeals turns on the question as to  whether the 1971 Act is a constitutionally valid  piece- of  legislation.  ’The 1971 Art is deemed to have come  into force  on 16 september. 1958 except sections 11, 19  and  20 which came into force on 23 August. 1971.  Section 11 of the 1971  Act speaks of offence under the Act.  The  offence  is that  if  any person who has been evicted  from  any  public premises under this Act again occupied the premises  without authority  for such Occupation, he shall be Punishable  with imprisonment  for  a term which may extend to one  year,  or with  fine which may extend to one thousand rupees, or  with both.  Section 19 enacts that the 1958 Apt is repealed.  The most important :section is 20.  Section 20 is as follows :- "Notwithstanding any judgment, decree or order of any court, anything done or any action taken (including rules or orders made, notices issued. evictions ordered or effected, damages assessed,   rents   or  damages  or  costs   recovered   and proceedings  initiated)  or purported to have been  done  or taken  under the Public Premises (Eviction  of  Unauthorised Occupants)  Act. 1958 (hereinafter in this section  referred to as  the 1958 Act) shall be deemed to be  as  valid  and effective as if such thing or action was done or taken under the  corresponding provisions of this Act which, under  sub- section (3) of section 1 shall be deemed to have come into force on the 16th  day of September, 1958 and accordingly[1967] 3  S.C.R. 399. 521 (a)  no  suit or other legal proceeding shall  be  main.  or continued in any court for the refund of any rent or damages or costs recovered under the, 1958 Act where such refund has been claimed merely on the ground that the said Act has been declared to be, unconstitutional and void; and (b)no court shall enforce a decree or order directing  the refund of any rent or damages or costs recovered under  the 1958  Act  merely on the ground that the said Act  has  been declared so be unconstitutional and void. Another  important  section of the 1971 Act is  section  15. Broadly stated, section 15 speaks of bar of jurisdiction of courts.   Section  15  provides that no  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 section 7(1) of  the  damages

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 16  

payable under section 7(2) or the costs under section 9(5). The  scheme  of  the 1971 Act is that it  confers  power  on Estate  Officer  to  issue  notice to  persons  who  are  in unauthorised occupation of any public premises to show cause why  an order of eviction should not be  made.   Unathorised occupation’ under the Act in relation to any public premises means  the occupation ’by any person of the public  premises without  authority  for  such occupation  and  includes  the cotinuance  in  occupation  by  any  person  of  the  Public premises after the authority whether by way of grant or  any other  mode  of  transfer) under which he,  was  allowed  to occupy  the promises has expired or has been  determine  for any  reason whatsoever.  Premises’ are defined to  mean  any land or any building or part of a building and includes  the garden, grounds and outhouses, appertaining to such building or  part  of  a building and any  fttting  affixed  to  such building  or  part  of a building for  the  more  beneficial enjoyment  thereof.  ’Public premises’ means  any  premise,; belonging  to or taken on lease or requisitioned by,  or  on behalf of the Central Government as enumerated in section  2 (e) of the Act.  The notice. to show cause against order  of eviction  shall  specify the grounds on which the  order  of eviction is nro-ozed to be made.  The Estate Officers  under the  Act are appointed by the Central Government. nv  Estate Officers are Gazetted Officers or officers of equivalent rank.  ’Corporate authority’ under the Act means any company or Corporation or any committee or the  Authority as mentioned in the Act.  The Estate  Officer shall,  for  the purpose of holding any inquirv  under  this Act,  have  the same powers as are vested in a  civil  court under the Code of Civil Procedure. 1908, when trying a suit, in  respect  of matters mentioned in section 8 of  the  Act. These matters are summoning and enforc- 52 2 ing the attendance of any person and examining him on  oath; secondly,   requiring  the  discovery  and   production   of document;  and  thirdly,  any  other  matter  which  may  be prescribed.  Section 10 of the Act provides for finality  of orders  in circumstances mentioned in section 10 of the  Act therein. It  is necessary to notice that this Court on 4 April,  1967 decided the Northern India Caterers Private Ltd. (1) case on the  validity  of  the  Punjab  Public  Premises  and   Land (Eviction and Rent Recovery) Act, 1959 and declared  section 5  of that Act to be violative of Article 14.   In  Northern India  Caterers  Private Ltd.(1) case the  State  of  Punjab leased  the Mount View Hotel at Chandigarh for a  period  of six years from 24 September, 1953.  The Estate Officer  gave a notice requiring the appellants in that case to show cause as to why the order of eviction should not be made.  Section 5 of the 1959 Punjab Act provided that if after  considering the  cause  and  the  evidence produced  by  any  person  in unauthorised occupation of public premises and after  giving him reasonable opportunity of being heard, the Collector  is satisfied  that  the  public premises  are  in  unauthorised occupation he ’may make an order of eviction’.  Section 5 of the  1959 Act was held to leave it to the discretion of  the Collector  to make an order of eviction in the case of  some of  the  tenants and not to make the order in  the  case  of others.   It was found that section 5 did not lay  down  any guiding principle or policy under which the Collector had to decide  in  which cases he should follow one  or  the  other procedure.   This  Court found that the Government  had  two remedies  open to it.  One was under the ordinary law.   The other was a drastic and ’more prejudicial remedy’ under  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 16  

1959  Act.   Consequently,  section 5 was  held  to  violate Artcle 14 of the Constitution. The  1971 Act came into existence to validate anything  done or any action taken or purported to have been done or  taken under  the  1958 Act.  In the first place, the 1971  Act  is made etrospective with effect from 16 September, 1958 except sections 11, 19 and 20.  In the second place, section 20  of the  1971  Act  which  is  described  as  the  section   for validation  provides that anything done or any action  taken or  purported to have been done or taken shall be deemed  to be  as  valid and effective as if such thing or  action  was done  or  taken under the corresponding provisions  of  tile 1971  Act.  In the third place. the 1971 Act by  section  15 provided  bar  of  jurisdiction  of  courts  in  respect  of eviction of any person who is in unauthorised occupation  of any public promises.  It. therefore, follows that under  the provisions  of  the  1  971  Act  which  had   retrospective oneration  from  16  Sentember,  1958  there  is  only  one’ procedure available for eviction of persons in  unauthorised occupation  of  public premises.  That procedure  is  to  be found in the 1971 (1)  [1967] 3 S.C.R. 399. 523 Act.   The other courts have no function in  these  matters. The vice of Article 14 which was found by this Court in  the decision  of  Northern India Caterers Private  Ltd.  (1)  no longer appears under the 1971 Act. Counsel  for the appellants contended that orders  made  or eviction  ordered under the 1958 Act are not and  cannot  be validated by section 20 of the 1971 Act.  The contention was amplified  in this manner.  Section 20 of the 1971 Act  pre- supposes  and postulates that the 1958 Act was in  operation and in existence.  The 1958 Act was violative of Article  14 of  the  Constitution  and accordingly it  never  came  into existence  and was non-est.  Accordingly there could  be  no eviction  order  under the 1958 Act.   Secondly,  Parliament cannot  by. ordinary legislation enact that  eviction  under the unconstitutional 1958 Act shall be deemed to be a  valid eviction under the 1971 Act. The  validity  of the 1971 Act depends  on  the  legislative competence to validate anything done or any action taken  or purported  to  have been done or taken under the  1958  Act. Validation is achieved by enacting that anything done or any action  taken or purported to have been done or taken  shall be  deemed to be as valid and effective as if such thing  or action was done or taken under the corresponding  provisions of  the 1971 Act.  The result is that the 1971 Act  is  made retrospective with effect from 16 September, 195 8. Anything done or any action taken under the 1958 Act is to be  deemed as valid and effective under the provisions of the 1971 Act. The consequence is that the validity of action done or taken is to be tested with reference to the provisions of the 1971 Act.   This Court in M/S West Ramnad  Electric  Distribution Co. Ltd. v. State of Madras (2 ) held that it is within  the competence  of  the legislature to enact a law and  make  it retrospective  in  operation.  In the West  Ramnad  Electric Distribution Co. Ltd(2) case the electric company vested  in the State of Madras under an order dated 17 May, 1951  under the  provisions  of section 4(1) of the  Madras  Electricity Supply Undertakings Act, 1949.  The validity of the Act  was challenged.  This Court held that the Act of 1949 was  ultra vires.   After  the  decision  was  pronounced  the   Madras Legislature passed the Madras Act 29 of 1954.  The  1954 Act incorporated the main provisions of the earlier Act of  1949 and validated action taken under the earlier Act.  The  West

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 16  

Ramnad  Electric Distribution Co. Ltd. challenged  the  1954 Act.   It  was  contended that the  validation  section  was ineffectual and inoperative.  The submission in West  Ramnad Electric  Distribution  Co.  Ltd. ( 2 ) case  was  that  the notification  in the year 1951 was invalid  and  inoperative because  it contravened Article 31 of the Constitution.   It was therefore contended that by reason of (1) [1967] 3 S.C.R. 399. 16-L 1286 CII 72 (2) [1963] 2S.C.R. 747. 524 the  decision  of  this  Court that the  Act  of  1949,  was invalid, the notification was not supported by any authority of  any  pre-existing law.  This Court did not  accept  that contention.    This   Court  said  that  ’if  the   Act   is retrospective  in operation and section 24 has been  enacted for the purpose of retrospectively validating actions  taken under  the provisions of the earlier Act, it must follow  by the very retrospective operation of the relevant  provisions that at the time when the impugned notification was  issued, these  provisions were in existence.  That is the plain  and obvious  effect  of  the  retrospective  operation  of   the statute.   Therefore in considering whether Article  31  (1) has  been complied with or not, we must assume  that  before the notification was issued, the relevant provisions of  the Act  were in existence and so, Article 3 1 (1) must be  held to have been complied with in that sense". In  West Ramnad Electric Distribution Co. Ltd.(1) case  this Court  referred  to  the provisions of  Article  20  of  the Constitution   to   emphasise  the   instance   where,   the Constitution prevented retrospective operation of any  law. Accent  was placed on the words "law in force at  the  time" occurring in Article 20.  The words "by authority of law" in Article 31(1) were distinguished from the words occurring in Article  20.  This Court said that if subsequent law  passed by the legislature was retrospective in operation, it  would satisfy the requirement of Article 31(1) and would  validate the  impugned  notification  in  the  West  Ramnad  Electric Distribution Co.  Ltd. (1) case. The   ruling   of  this  Court  in  West   Ramnad   Electric Distribution Co.  Ltd.(1) case establishes competence of the legislature to make laws retrospective in operation for  the purpose  of validation of action done under an  earlier  Act which  has  been declared by a decision of the court  to  be invalid.  It is to be appreciated that the validation is  by virtue  of  the  provisions  of  the  subsequent  piece   of legislation. An  illustration of ineffective validation may be  found  in the  case of A Deputy Commissioner and Collector,  Kamrup  & Ors.  v. Durga Nath Sarma(2).  In that case, there  was  the Assam  Acquisition of Land for Flood Control and  Prevention of Erosion Act, 1955.  It was passed on 11 April, 1955.  The Assam  Acquisition of Land for Flood Control and  Prevention of Erosion (Validation) Act, 1960 was passed validating  the acquisition  of  lands of which possession had  been  taken. The  Assam Government took possession of lands in that  case in  1954.  There was an order of acquisition under the  1955 Act.   The owner of the land was asked to submit  claim  for compensation  under  the 1955 as well as 1960  Acts.   Sarma challenged  the validity of both the Acts.  The  High  Court held that the 1955 Act was violative (1) [1963] S.C.R. 474. (2) [1968] 1 S.C.R. 561. 525 of Article 31(2) of the Constitution as it stood before  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 16  

Constitution (Fourth Amendment) Act, 1955 and that the  1960 Act  was not independent of the 1955 Act.  This  Court  held that  section 2 of the 1960 Act which validated  land  taken under  the  1955 Act by enacting that the  same  ’shall  be, deemed  to have been validly acquired under  the  provisions of’   the  1955  Act  failed  to  achieve  the  purpose   of validation.  The reason is this.  The 1955 Act was found  to be  violative  of Article 31(2) of the  Constitution  as  it stood before the Constitution (Fourth Amendment) Act,  1955, because  it did not ensure payment of a just  equivalent  of the  land appropriated.  The 1955 Act was also found to  be violative  of  Article 14 of the  Constitution.   There  was discrimination between owners of land similarly situated  by the  mere  accident  of some land  being  required  for  the purposes  mentioned  in  the 1955 Act and  some  land  being required  for other purposes.  The validation clause of  the 1960  Act was held by this Court to be totally  ineffective. The  1955  Act  was  invalid.  The  1960  Act  provided  for validating acquisitions under the 1955 Act.  This Court said that  if  the 1955 Act was invalid  the  deemed  acquisition under  the 1960 Act was equally invalid.  The ratio is  that the 1960 Act had no power to enact that an acquisition under a constitutionally invalid Act was valid.  The 1960 Act  did not  stand  independent  of  the  1955  Act.   The   deeming provision  of  the 1960 Act was that land was deemed  to  be acquired   under  the  1955  Act.   If  the  1955  Act   was unconstitutional  the 1960 Act could not make the  1955  Act constitutional. The  distinction between West Ramnad  Electric  Distribution Co.  Ltd(1) case and Druga Nath Sarma’s(2) case is this.  In the West Ramnad Electric Distribution Co. Ltd. case  (supra) the  1954  Act validated actions and proceedings  under  the earlier Act by a deeming provision ,that acts or things were done by virtue of the provisions of the 1954 Act.  The  1954 Act was not found to have any constitutional infirmity.   On the other hand Durga Nath Sarma’s(2) case (supra)  validated by  the  1960  Act  acquisition under  the  1955  Act.   The acquisition  was  not  by  or  under  the  1960  Act.    The acquisition  was  under  the 1955 Act.   The  1955  Act  was constitutionally   invalid.    Therefore,   there   was   no validation of earlier acquisition. The question of legislative competence to remove discrimina- tion   by   a   retrospective  legislation   came   up   for consideration before this Court in State of Mysore & Anr. v. D. Achiah Chetty etc.(3). There were two Acts in Mysore  for acquisition  of private land for public purposes.   One  was the  Mysore Land Acquisition Act, 1894.  The other  was  the City  of  Bangalore Improvement Act, 1945.   A  notification under the 1894 Act (1) [1963] 2 S.C.R. 747. (3) [1969] 3 S.C.R. 55 (2) [1968] S.C.R.561. 526 was  issued for acquisition of Chetty’s plots in  Bangalore. Chetty  challenged the acquisition on the ground that  using the   provisions   of   the   Land   Acquisition   Act   was discriminatory because in other cases the provisions of  the Improvement  Act  were  applied.  The  High  Court  accepted Chetty’s contention.  During the pendency of appeal to  this Court  the Bangalore Acquisition of Lands (Validation)  Act, 1962  was  passed.  It validate ed  all  acquisitions  made, proceedings held, notifications issued or orders made  under the Land Acquisition Act before the 1962 Validation Act came into  force.  The 1962 Validation Act was challenged on  the ground   that  the,  two  Acts  prescribed   two   different

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16  

procedures.  It was also said that the Improvement Act was a special law, and, therefore, the Acquisition Act was to give way  to  the  special law.  The validating  section  in  the Mysore case (supra) provided that every acquisition of  land for the purpose of improvement, expansion or development  of the  City of Bangalore by the State acting or purporting  to act under the Mysore Land Acquisition Act shall be deemed to have  been  validly made, held or  issued.   The  validating section  was impeached on the ground that there  were  still two  Acts  which covered the same field but  prescribed  two different procedures.  It was also said that the Acquisition Act was a more prejudicial procedure and was discriminatory. This Court found that the legislature retrospectively made a single law for the acquisition of these properties.  It  was contended that an acquisition hit by Article 14 or  anything done  previously could not be validated unless the  vice  of unreasonable   classification   was   removed.    The   1962 Validation Act was impeached on that ground.  This Court did not accept the submission and said "if two procedures  exist and one is followed and the other discarded, there may in  a given case be found discrimination.  But the Legislature has still  the competence to put out of  action  retrospectively one of the procedures leaving one procedure only  available, namely,  the  one followed and thus to  make  disappear  the discrimination.   In this way a Validating Act can get  over discrimination.  Where, however, the legislative  competence is  not  available,  the discrimination  that  if  there  is legislative competence the legislature can put removed by  a legislature having., power to create a single procedure  out of two and not by a legislature which has not that power". The Mysore case (supra) is an authority for the  proposition that if there is legislative competence the legislature  can put  out  of action retrospectively one  of  the  procedures leaving  one procedure only available and thus removing  the vice  of discrimination.  That is exactly what has  happened in  the 1971 Act in the present appeals.  The 1958  Act  was challenged on the ground that there were two procedures  and the choice of either was left                             527 to  the unguided discretion of the Estate Officer. The  1971 Act  does  not  leave  any such  discretion  to  the  Estate Officer.   Under the 1971 Act there is only  one  procedure. The  deeming provision contained in section 20 of  the  1971 Act  validates actions done by virtue of the  provisions  of the 1971 Act. The meaning of a Validation Act is to remove the causes  for ineffectiveness  or  invalidity of  actions  or  proceedings which are validated by a Legislative measure.  This Court in Shri  Prithvi  Cotton  Mills Ltd. & Anr.  v.  Broach  Borogh Municipality  &  Ors., ( 1970) 1 S.C.R. 388 dealt  with  the Gujarat  Imposition of Taxes by Municipalities  (Validation) Act,  1963.   Under  section  73  of  the  Bombay  Municipal Boroughs  Act,  1925  a municipality could levy  a  rate  on building  or lands or both situate within the  municipality. This Court held in Patel Gordhandas Hargovindas v. Municipal Commissioner,  Ahmedabad, (1964) 2 S.C.R. 608 that the  term ’rate’ must be confined to an impost on the basis of  annual letting  value  and it could not be validly a  levy  on  the basis  of  capital  value.  Because  of  this  decision  the Gujarat  Legislature passed the Gujarat Imposition of  Taxes by  Municipalities  (Validation) Act, 1963.   The  1963  Act provided  that past assessment and collection of  ’rate’  on lands  and  buildings  on the basis of capital  value  or  a percentage  of capital value was declared valid despite  any judgment  of  a  court or Tribunal to  ,the  contrary.   The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 16  

earlier decision of this Court was applicable to the meaning of  the  word  ’rate’  occurring  in  the  1925  Act.    The Validation  Act gave its own meaning and  interpretation  of the law under which the tax was collected.  It was also said by .his Court that a tax declared illegal could be validated if  the ground of illegality was capable of  being  removed. Therefore, a   validating law is upheld first by finding out whether thelegislature  possesses  competence  over  the subject matter, and,secondly, whether by validation the legislature has removed thedefect which   the courts  had found in the previous law. The legislature had legislative competence to enact the 1971 Act.   It  means that it could legislate on the  subject  of providing  a  speedy procedure for eviction  of  persons  in unauthorised occupation of public premises.  The legislature has  power to pass laws with retrospective  operation.   The challenge  to  the  1971  Act  is  that  the  1958  Act   is unconstitutional, and, therefore, there cannot be validation of anything done under an unconstitutional Act.  The fallacy of the appellants’ submission is in overlooking the  crucial provisions  in the 1971 Act that the 1971 Act  is  effective from  16 September, 1958 and the action done under the  1958 Act  is deemed to be done under the 1971 Act.  There  is  no vice  of discrimination under the 1971 Act.  There  is  only one procedure under the 1971 Act. 528 It  was contended that the word ’premises’ in the Act  would not  apply  to agricultural land.  The  word  ’premises’  is defined   to   mean  any  land.   Any  land   will   include agricultural  land.  There is nothing in the Act to  exclude the   applicability  of  the  Act  to   agricultural   land. Reference  was  made  to sections 42 and 43  of  the  Punjab Tenancy  Act,  1887.  Section 42 of the 1887 Act  speaks  of restriction  on ejectment.  Section 43 provides  for  appli- cation to the Revenue Officer for ejectment.  It was said on behalf of the appellants that Article 14 of the Constitution was  offended  because  of the procedure  under  the  Punjab Tenancy Act, 1887 being available.  There is no substance in that  contention.  Section 15 of the 1971 Act provides  only one  procedure  for ejectment of  persons  in  unauthorised. occupation of public premises. The  1958 Act has not been declared by this Court to be  un- constitutional.   Section 5 of the 1959 Punjab Act was  held by  this  Court in the decision in Northern  India  Caterers Private Ltd. case (supra) to be an infraction of Article 14. Section  5  of the 1958 Central Act is in terms  similar  to section  5 of the 1959 Punjab Act.  The arguments on  behalf of  the appellants therefore proceeded on the  footing  that the  1958 Act will be presumed to be  unconstitutional.   It was  therefore  said that the 1971 Act  could  not  validate actions  done  under the 1958 Act.  The answer  is  for  the reasons  indicated above that the legislature was  competent to enact this legislation in 1958 and the legislature by the 1971  Act  has  given  the  legislation  full  retrospective operation.   The legislature has power to  validate  actions under  an  earlier Act by removing the  infirmities  of  the earlier  Act.   The  1971 Act has achieved  that  object  of validation. For  these  reasons,  the appeals fail  and  are  dismissed. Parties will pay and bear their own costs. Beg,  J. I entirely agree with my learned Brother Ray  whose Judgment  I  have had the advantage of perusing.   I  would, however, like to add some observations about the contention, put  forward with some vehemence by the learned Counsel  for the  Appellant;, based mainly on Keshavan Madhava Menon  Vs.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 16  

The  State of Bombay(1); Behram Khurshed Pasikaka  Vs.   The State  of Bombay(2); Saghir Ahmad Vs.  The State of  U.P.  & Ors(3);  Bhikaji  Narain Dhakras & Ors.  Vs.  The  State  of M.P. & Ors.(4); M. P. V. Sundararamiah & Co. Vs.  The  State of A.P. & Anr.(5); Deep Chand Vs.  State of U.P. &  Ors.(6); Mahendra Lal Jaini Vs. The State of H.P. & Ors.7B. Sharma Rao Vs. The      (1) [1951] S.C.R. 228.(2) [1955] 1 S.C.R. 613.      (3) [1955] 1 S.C.R. 707. (4) [1955] 2 S.C.R. 589.      (5) [1958] S.C.R. 1422.  (6) [1959] 2 Supp. S.C.R. 8. (7)  [1963] Supp. 1 S.C.R. 912. 529 Union  Territory  of Pondicherry(1); Deputy  Commissioner  & Collector,  Kamrup  &  Ors.  Vs.  Durga  Nath  Sarma(1),  P. Bhooma Reddy Vs.  State of Mysore & Ors.(3). I  do  not  think that all the  cases  listed  above  really support  the submissions made on behalf of  the  appellants. And,  those  from which learned Counsel for  the  appellants could derive some support for any proposition put forward by him  do  not  really apply, for two broad  reasons,  to  the position  we  have  to consider in the  cases  before  us  : Firstly, this Court has not so far declared any part of  the Public Premises (Eviction of Unauthorised Occupants) Act, 32 of 1958, to be a void piece of legislation, and,  therefore, no  question  of applying Article 141  of  the  Constitution arose  here before the High Courts.  Secondly, the  argument of  the  learned Counsel for the Appellants seems to  me  to rest entirely on the erroneous assumption that provisions of the Public Premises (Eviction of Unauthorised Occupants) Act 32  of 1958 were void for a "contravention" of Part  III  of the   Constitution  covered  by  Article  13  (2)   of   the Constitution, on the strength of which it was submitted that what  was  "non est" in the eye of law,  or  "stillborn"  in popular  language, cannot be legalised, validated, or  given life and force.  An examination of the cases which could  be relied  upon by the learned Counsel for the  appellants,  to support  his  submission  on the  effect  of  constitutional invalidity,  shows that each of these cases dealt  with  a situation  in  which  either an ab initio  or  per  se  void enactment  or  action  taken  under  it  was  sought  to  be validated. In  Northern  India  Caterers (Pvt.)  Ltd.,  Vs.   State  of Punjab(4), there was no difference of opinion in this  Court on  the question whether, in providing a separate  procedure for eviction of unauthorised occupants of public properties, there  was  a reasonable relationship or nexus  between  the object of the Punjab Public Premises & Land (Eviction & Rent Recovery) Act, 1959, and the special procedure designed  for achieving  a valid object.  Even the majority view  in  that case  was  based  upon  the  assumption  that  the   special procedure  did  not, by itself, infringe Article 14  of  the Constitution.  This meant ’that the special procedure  under Section  5 of the Punjab Act was not held to constitute  per se  a "contravention" contemplated by Article 13(2)  of  the Constitution.   There was, however, a difference of  opinion between learned Judges of this Court on the question whether this special and more drastic procedure, when viewed in  the context of ’the (1)  [1967] 2 S.C.R. 650. (3)  [1969]3 S.C.R. 14. (2)  [1968] 1 S.C.R. 561. (4)  [1967] 3 S.C.R. 399 530 less  drastic procedure permissible under the ordinary  law, for filing suits against unauthorised occupants, did or  did

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 16  

not   become  unconstitutional.   It  was  held   that   the "additional"  drastic  remedy, together with the  option  to proceed otherwise also, left room for discrimination between unauthorised  occupants  against  whom  either  of  the  two procedures  may be utilised.  Therefore, the  majority  view was  that, although, the procedure provided under Section  5 of  the  Punjab Act may be otherwise valid, yet,  it  became invalid  or  incapable of being used because of  the  option left to adopt another procedure existing under the  ordinary law  of the land which lay outside the Act.  If there was  a defect  or  lacuna  left in framing the  Punjab  Act,  which invalidated  Section  5, it was that it did  not  contain  a prohibition against the alternative procedure left open  and not  that  it  contained something  which  was,  in  itself, prohibited.   And,  what the Act did not contain  was  still something  outside  the  Act.   The  unconstitutionality  of Section  5 of the Punjab Act thus really arose from  matters extraneous to the Act. It is true that in Northern India Caterer’s case (supra), it was held by this Court that Section 5 of the Punjab Act  was ’void",  but, it seems clear that this consequence  followed from  examining the more drastic statutory procedure in  the context  of  ordinary  procedural law.   It  am,  therefore, inclined  to  interpret the majority view in  that  case  as laying  down  nothing  more than ’that,  although  the  more drastic  procedure  may be otherwise valid, yet,  it  became merely  incapable  of  adoption or  "unenforceable"  in  the situation  emerging from the totality of provisions of  law considered there.  I do not find that anything was held  in- that  case to justify the view that Section 5 of the  Punjab Act  was  per se or ab initio void.  This question  was  not discussed in Northern India Caterers’ case (supra),  because no  method of validating a provision which could be  assumed to  be valid but which became "void" only in the context  of other  ordinary  law  of the land  was  under  consideration there. The  result, of the Act of 1971 appears to me to be  nothing short of a "re-enactment" retrospectively so that no  ground is left open for the argument that there is any  possibility of  discrimination between unauthorised occupants of  public premises  since the date from which the Act of  1971  became applicable.  The validity of any past action, even under the old  Act 32 of 1958, will have to be judged in the light  of provisions of the Act 40 of 1971.  If some proceeding  taken under Act 32 of 1958 is still pending, as it is in the  case of  the appellants M/s.  Bhartiya Hotel, Chupra, Bihar,  its correctness   and   validity  will  be   governed   by   the requirements  laid  down by Act 40 of 1971 as  it  would  be "deemed" to be a proceeding under the new Act.  In the  case of the other Appellants Hari Singh & Others, from Punjab, 531 the  eviction  took place in accordance with  the  procedure under Act 32 of 1958.  But, even these appellants could  not complain   that   any  of  the  rights  protected   by   the procedure .found in Act, 40 of 1971 were infringed,  because the  procedure for eviction, including a right to appeal  to the  District  Judge,  is indentical under  both  the  Acts. Indeed,  the  judgments under appeal before  us  were  given before the Act 40 of 1971 came into force.  The Act of  1971 became  relevant for these cases only because the  objection to the validity of the procedure under the Act of 1958  was no   longer   available   to  the   appellants   after   the retrospective   filling   up   of   the   previous    lacuna retrospectively. Learned Counsel had urged that the legislative  incompetence

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 16  

to violate rights conferred by Part III of the  Constitution could not be cured by any law short of a valid amendment  of the Constitution.  But, it seems to me that there was no per se  "void" or " unenforceable" (a term which I would  employ in  preference  to "void" in such a context) law  before  us which  was validated.  Even if there was a "validation"  and not  a re-enactment, in substance, it also made invalid  any possible discriminatory acts which may have been  committeed during the currency of the Act of 1958, of which there is no evidence  before  us, by the  Governmental  authorities,  in proceeding under the ordinary law against some  unauthorised occupants. It was submitted that the effect of Section 20 of Act 40  of 1971  was realty to validate what was merely "purported"  to have  been  done in the past, so that it was assumed  to  be legally "non est", and, therefore, it could not be  "deemed" to  be  as good as action taken under  the  Public  Premises (Eviction  of  Unauthorised Occupants) Act 40 of  1971.   To accept   this   view  would  make  the   deeming   provision meaningless.   I  think that the view which  we  have  taken involves   that  the  deeming  provision  would   not   cure illegality in any past action which may still be there  when tested by the standards and the procedure provided by Act 40 of 1971.  That is a logical and natural consequence of using the  word "deemed".  The word "purported" was used  only  to describe or identify past action taken under a repealed  Act and it had no effect beyond that.  That action would now  be deemed to have taken place under Act 40 of 1971. It  has  not even been contended before us that  any  action against  the appellants is invalid tested by the  provisions of Act 40 of 1971.  The more fact that the procedure adopted under  Act 32 of 1958 was attributable to a  past  enactment when  that  procedure, taken by itself, did not  infringe  a constitutional  guarantee, did not make its  shortcoming  or deficiency incurable.  The invalidity of that procedure,  if any, could only result from the 532 Operation or effect upon it of the extraneous factors of  an omission  from  the statute and of the procedure  under  the ordinary law.  I would equate the legal position, which  may thus  emerge,  with one in which the drastic  procedure  was merely  under  a  shadow  or in a  state  of  suspension  or unenforceability  due to reasons failing outside the Act  32 of  1958.   Once  those reasons are eliminated  by  the  new enactment,  the  shadow  is removed and  the  old  procedure becomes  operative  and effective retrospectively in  a  new garb without a change in the substance beneath it. if no one can  have a vested right in a procedure which does  not,  by itself, violate a constitutional guarantee, one could not, a fortiori,  insist  that  it should  not  bear  a  particular descriptive  label  which is thereto alucidate  the  meaning only.   After  all, we are concerned with the  real  meaning and  effect of the words used and not with what they may  be made to appear to convey by a merely clever play with words. The unmistakable effect of what was laid down by the Act  40 of  1971  was  simply that the option to  proceed  to  evict unauthorised occupants of public properties in any way  out- side the Act was shut out retrospectively.  This was clearly within the legislative competence of Parliament. For all the reasons given by my learned Brother Ray as  well as  for  a few more given above I  respectfully  agree  with orders made by my learned Brethren. V.P.S.                                               Appeals dismissed. 533

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 16