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CASE NO.: Appeal (civil)  171 of 2004

PETITIONER: M/s Crawford Bayley & Co. & Ors                                  

RESPONDENT: Union of India & Ors                                                  

DATE OF JUDGMENT: 05/07/2006

BENCH: H.K.SEMA & A.K. Mathur

JUDGMENT: J U D G M E N T  W I T H :

C.A.No. 172 of 2004, C.A.No.5990 of 2004,  W.P) 168 of       2004 & W.P.(C) No.244 of 2004.

A.K. MATHUR, J.

       All these appeals & writ petitions raise  similar question of law,  therefore they are disposed off by this common order.

       For the convenient disposal of  these matter, the  facts  given in  the  Civil Appeal No. 171/2004 are taken into consideration.         This appeal is directed against an order passed by  the   Division Bench  of the Bombay High Court in Writ Petition No.  3105/2002 on   25th April, 2003 whereby  the High Court of  Bombay  dismissed the  Writ Petition and held that in view of the certain  proposition of law laid-down by the apex Court none of the argument  raised by the party is sustainable  and accordingly dismissed the writ  petition.         The appellant  No. 1 is  a firm of  Advocates and solicitors  whereas appellant Nos. 2 & 3 are  its partners.  The appellants  moved this writ petition before Bombay High Court  under Article 226  of the Constitution of India  for striking down the provisions of Section  3 of  the Public Premises (Eviction of unauthorized occupants) Act,  1971 (hereinafter referred to as the said Act , 1971) on the ground  that it is violative of Article 14 of the Constitution of India.  They also  sought an order  for quashing of  the termination of  tenancy dated  17th April, 2002 issued by the   respondent No. 2 as also a show  cause notice dated 3rd October, 2002 issued by the respondent No. 2  under the provisions of the said Act.   The appellants  also claimed a writ of prohibition prohibiting the  respondent No. 2  (Estate Officer) from  proceeding  with Case No. 3  of 2002 initiated by him.  The respondent No. 3, the  State Bank of  India owns a building in Fort, Mumbai.  According to the appellants  the management of  the  Imperial  Bank which was the predecessor  of respondent  No.3 \026  State Bank of India (hereinafter referred  to as  "the Bank ")  leased out the  premises  to  appellant No. 1 in  1943.   The ground floor and the second floor of the said building is occupied  by the  respondent no. 3 \026 Bank.  The lease granted in favour of  the  appellants was  renewed  from time to  time and  it was last renewed  till 1973.  But after that  same was not renewed.   But by notice dated  6th January, 2000 respondent No.3 terminated the tenancy of the    appellant No. 1 on the ground that it requires the premises to  accommodate their  Capital Market Branch,  Personal Bank Branch and other branches.  But subsequently on  17th April, 2002,  the

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termination notice dated 6th January, 2000 was withdrawn.    Thereafter, another notice dated 17th April, 2002 was  given  terminating the tenancy at the end of  calendar month next to the  calendar month in which the notice  was received by the appellant  no.1.  Several reasons were given for  termination of  the tenancy.    Thereafter the respondent No. 2 issued a show  cause notice under  sub-section (1)  and  clause (b)(ii) of  sub-section (2) of Section 4 of  the Act, 1971   to the appellant No. 1  to show cause why  the order  of  eviction should not  be passed against them.   This show  cause  notice issued by respondent No. 2  was challenged by filing present   writ petition.         The  appellant raised   five grounds before the High Court ; first  the provisions of the Maharashtra Rent Control Act, 1999  (herehinafter referred to as the Maharashtra Rent Act) shall prevail   over the provisions of the said Act of 1941 in view of Article 254 (2) of  the Constitution of India as the Maharashtra Rent Act applies to all  premises belonging to the respondent and therefore, the appellant  No. 1 is a protected tenant under the provisions of the  Maharashtra  Rent Act and  the order of  eviction for the appellant No. 1  cannot  be  made.    It was submitted that the Mahrashtra Rent Act is a law made  by the Legislature of  the State in respect of  matters  enumerated  under the Concurrent List i.e. Entries 6 & 46.    The public premises  Act, 1971   is  an earlier law made by the Parliament under the  Concurrent List i.e. Entry 6.    It was submitted since it was  reserved  for the assent of  the  President of India as it contained the   repugnant provisions to the earlier law made by the Parliament.   Therefore, the later Act, i.e., The Maharashtra Rent Act  having been  reserved and  having received an assent of the  President of India,  would prevail over the  Act, 1971.           The second submission  was that the provisions of Section 3 of  the Public Premises Act are violative of Article 14 of the Constitution  of India as it makes the Estate Officer  of the statutory authority as a   Judge in his own cause.  Thirdly, it was submitted that the show  cause notice  is violative  of  the  guildelines issued by  the Central  Government from time to time.  Fourthly,  it was submitted that the  Government of  India Allocation of Business Rules 1961 allots the  powers of the Central Government  to  appoint Estate Officer under  the  provisions  of the Act to the Ministry of Urban Development  and  not to the Ministry of Finance.  Therefore,  the  order appointing the   respondent No. 2 as Estate Officer was made by the  Ministry of  Finance and not by  the Ministry of  Urban Development.  Therefore it  is  contrary to the  rules of  Allocation of Business.   Fifthly and lastly  it was submitted that the  respondent No. 2  was appointed as  an  Estate Officer by order dated 24th June, 2002 which refers  to the  notification dated 29th July, 1988.    It was submitted that the  notification dated 29th July, 1988  had been  superceded by the  notification dated 25th January, 1993, therefore appointment is bad &  without jurisdiction.         All these contentions were considered by the Division Bench   and  rejected on the basis of  the decision  given by  this Court from  time to time.         Aggrieved against this order passed by the Division Bench the  present S.L.P. was preferred.         Leave was granted in these petitions & now finally appeals  have come up for final disposal.         The first and the foremost question raised before this Court was  validity  of Section  3  of the Act of 1971.  It is  suffice it to say that the  validity of Section 3 had already been upheld by this Court to which  we will refer later however our special  attention was drawn to  the   second proviso to Section 3 (a)  of the Act, 1971, Section 3 of the Act  of 1971 reads as  under:         "3. Appointment of Estate Officers \026 The Central  Government may, by notification in the Official Gazette. \026                  (a) appoint such person, being Gazetted Officers  of

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Government  or of the Government of any Union Territory  or officers of  equivalent rank of the  Statutory Authority,   as it thinks fit, to be  Estate Officers for the purposes of  this Act;                   Provided that no officer of the Secretariat of the Rajya  Sabha shall be so appointed except after consultation  with the Chairman of the Rajya Sabha and no officer of  the Secretariat of the Lok Sabha shall be so appointed  except after consultation with Speaker of the Lok Sabha:

       Provided further that an officer of a Statutory Authority  shall  only be appointed as an  Estate Officer in respect of  the public premises controlled by that authority; and  

       (b) define the local limits within which, or  the  categories   of public premises in respect of which, the Estate Officers  shall exercise the powers conferred, and  perform the  duties imposed, on Estate Officers by or under this Act."

          In this connection it may be mentioned here that the  first  case  which arose before  this Court was the case of Northern  India Caterers Private Ltd., & Anr. Vs. State of Punjab &  Another  reported  in (1967)3 SCR 399.  In that case the  majority  view was that a law prescribing two procedures one more drastic or  prejudicial to the party than the other and which can be applied  at  the arbitrary   will of the authority,  is  violative of Art 14 of the  Consititution.  This case subsequently came up for consideration  before this Court again in the  case of Maganlal Chhaganlal (P)  Ltd. Vs  Municipal Corporation of Greater Bombay and Ors.  Reported in (1974) 2 SCC 402.  In that case the majority  view  was  overruled by the majority.  The case of Maganlal(Supra)  was a  Seven  judges  Bench  case in which four judges; Hon. Mr. A.N.  Ray, CJ, Hon. Mr. Palekar, Hon. Mr.  Mathew &  Hon. Mr.  Alagiriswami overruled by Majority  and held: "The argument based on the availability of two  procedures, one more onerous and harsher than  the other, and  therefore, discriminatory has led to  the apparently more onerous and harsher  procedure becoming  the rule,  the resort to the  ordinary civil court being taken away altogether.  It  is difficult to imagine who benefits  by resort to the  ordinary civil courts being barred.  It is difficult to  reconcile oneself to the position that the mere  possibility of resort to the civil court should  make  invalid a procedure which would otherwise be  constitutionally valid.

Where a statute providing for a more drastic  procedure different from the ordinary procedure  without any guidelines as to the class of cases in  which either procedure is to be resorted to, the  statute will be hit by Article 14. Even there, a  provision  for appeal may cure the defect.  Further,  in such cases, if from the preamble and surrounding  circumstances, as well as the provisions of the  statute themselves explained and amplified by  affidavits, necessary guidelines could be inferred,  the statute will not be hit by Article 14.  Then again  where the statute itself covers only a class of cases,  the statute will not be bad.  The fact that in such  cases the executive will choose which cases are to  be tried under the special procedure will not affect  the validity of the statute.  Therefore, the contention

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that the mere availability of two procedures will  vitiate one of them, that is the special procedure, is  not supported by reason  or  authority. The statutes themselves in the two classes of cases  before the   Court clearly lay down the purpose  behind them, that is that premises belonging to the  Corporation and the Government should be subject  to speedy procedure in the matter of evicting  unauthorized persons occupying them.  This is a  sufficient guidance for the authorities on whom the  power has been conferred.  With such an indication  clearly given in the statutes, one  expects  the  officers concerned to avail themselves of the   procedures prescribed by the Acts and not resort to  the  dilatory procedure of the ordinary civil courts.

It would  be extremely unreal to hold that an  administrative officer would in taking proceedings  for eviction of unauthorized  occupants of  Government property or Municipal Property resort to  the procedure prescribed by the two Acts in one  case and to the ordinary civil Court in the other. The  provisions of these two Acts  cannot be struck down  on the fancilful theory that power would be  exercised in such an unrealistic fashion.  In  considering whether the officers would be  discriminating between one set of persons and  another, one has got to take into account normal  human behaviour and not  behaviour which is  abnormal.          It is not every fancied possibility of discrimination  but the real risk of discrimination that must be taken  into account.  Discrimination may be possible but is  very improbable.   And if there is discrimination in  actual practice the Supreme Court is not powerless.   Furthermore, the fact that the Legislature  considered that the ordinary procedure is  insufficient or ineffective in evicting unauthorized  occupants of Government and Corporation property  and provided a special speedy procedure therefore  is a clear guidance for  the  authorities charged with  the duty of evicting unauthorized occupants.         ‘ Therefore, it is  not possible to agree with the  majority in the Northern India Caterers’  case\005\005."

Thereafter this proposition  again came up for consideration   in the case of In Re The Special Courts Bill, 1978  reported in   (1979) 1 SCC 380 in which their Lordships  referred to the  case  of Maganlal Chhagganlal (Supra)  and did not differ from the  majory view of the Maganlal Chhagganlal’s case (Supra).   In  para 70 the relevant portion  of the case reads as under:         "This analysis will be incomplete without reference  to a recent decision of this Court in  Maganlal  Chhagganlal (P) Ltd. Vs. Municipal Corporation of  Greater Bombay.  In that case two parallel  procedures, one under Chapter VA of  the Bombay  Municipal Corporation Act, 1888 and the other  under the Bombay Government Premises (Eviction)  Act, 1955 were available for eviction of persons  from public premises.   The constitutional validity of

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the relevant  provisions of the two Acts was  challenged on the ground that they contravened  Article 14,  since the procedure prescribed by the  two Acts was more drastic and prejudicial than the  ordinary procedure of a civil suit and it was left to  the arbitrary and unfettered discretion of  the  authorities ;to adopt such special procedure against  some and the ordinary remedy of civil suit against  others.  It was held by this Court that where a  statute providing for more drastic procedure  different from  the ordinary procedure covers the  whole field covered by the ordinary procedure  without affording any guide-lines as to the class of  cases in which either procedure is to be resorted to,  the statute will be hit by Art. 14.  However, a  provision for appeal could cure the defect and if   from the preamble and the surrounding  circumstances as well as the provisions of the  statutes themselves, explained and amplified by  affidavits, necessary guidelines could be spelt out,  the statute will not be hit by Article 14.  On the  merits of  the procedure prescribed by the two Acts  it was held by the Court that it was not so harsh or  unconscionable as to justify the conclusion that  a  discrimination would result if resort to them is had in  some cases and to the ordinary procedure of Civil  Courts in others.  By a separate but concurring  judgment two of us, namely, Bhagwati, J., and V.R.  Krishna Iyer, J., held that it was inevitable that when  a special procedure is prescribed for a defined class  of persons, such as occupiers of municipal or  government premises, discretion which is guided  and controlled by the underlying policy and purpose  of  the legislation has necessarily to be vested in the  administrative authority to select occupiers of  municipal or government premises for bringing them  within the operation of the special procedure.  The  learned Judges further observed that minor  differences between the special procedure and the  ordinary procedure are not sufficient for invoking the  inhibition of the equality clause and that it cannot be  assumed that merely because one procedure   provides the forum of a regular court while the other  provides for the forum of an administrative tribunal,   the latter is necessarily more drastic and onerous  than the former.  Therefore, said the learned  Judges,  whenever a special machinery is devised  by the Legislature entrusting the power of   determination of disputes  to an authority set up by  the Legislature in substitution of regular courts of  law, one should not react adversely against the  establishment of such an authority merely because  of a certain predilection for the prevailing system of  administration of Justice by courts of law.  In  the   context of the need for speedy and expeditious  recovery of public  premises  for utilisation for  important public uses, where dilatoriness of the  procedure may defeat the very object of recovery,  the special procedure prescribed by the two Acts  was held not to be really and substantially  more  drastic and prejudicial than the ordinary procedure  of a Civil Court.  The special procedure prescribed  by the two Acts, it was observed, was not so  substantially and qualitatively disparate as to attract  the vice of discrimination."

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       So far as the validity of the provision of the Act, 1971 is  concerned, this is no more res-integra.  However, learned counsel  submitted that the proviso  is ultra virus of Art. 14 of the Constitution  of India.  The public premises Act 1971 was amended in 1980 by Act  No. 61 of 1980 and the aforesaid proviso  as quoted above was  inserted, it specially provided that  an officer of a Statutory Authority  shall only be appointed as an Estate Officer in respect of the public  premises controlled by that authority.  It is submitted that this will  amount to a Judge in his own cause and therefore, this proviso  should be struck-down.  In this connection, learned counsel have  drawn our attention to the following cases:  (1)  1988(4)SCC 324 :Accountant and Secretarial  Services Pvt. Ltd. and Another Vs. Union of  India and Others.           (2)     2004(11)SCC 625: Delhi Financial Corpn. and Another      Vs.  Rajiv Anand And Ors.                

        (3)     1974(2)SCC 402 : Maganlal Chhaganlal (P) Ltd. Vs.                                 Municipal Corporation of Greater Bombay and Ors.              

                  So far as the validity part is concerned, it has already been  pointed out that  Northern India Caterer’s case has not  been  followed by the  subsequent decision of this Court and the validity of  Section 3 has been upheld.  But the question in the present case is  with regard to proviso.  In this connection, a reference was made to  a case of  Accountant and Secretarial Services Pvt. Ltd. and  Another Vs. Union of India and Others  reported in 1988(4)SCC  324 and  they tried to take a benefit of an observation made therein  that  though the bank is a corporation wholly  owned and controlled  by the Government,  it has a distinct personalilty of its own and  its  property cannot be said to be the property of the Union.   In this  case, Hon’ble S.  Ranganathan, J who wrote the leading judgment  exhaustively considered all the submissions and held in no certain  terms  that this Act is   applicable to the premises of the Bank.           In this case, the question arose whether the public premises  (Eviction  of Unauthorised Occupants) Act, 1971 will prevail over   the West Bengal Premises Act, 1956 and the West Bengal Public  Land(Eviction  of unauthorized occupants) Act, 1962.  It was argued  that since eviction   from premises of Central Statutory corporation  owned or controlled by Government, like nationalized bank in the  State of West Bengal is sought therefore both these Acts will  govern.  In that connection, Hon. Sh. Ranganathan J. observed as  under:         "The present case is clearly governed by the  primary rule in Article 254(1) under which the law  of  Parliament on a subject in the Concurrent List  prevails over the State law.  Article 254(2) is not  attracted because no provision of the State Acts           (which were enacted in 1956 and 1962)  were  repugnant to the  provisions of an earlier law of  Parliament or existing law.  The fact that the  1956  Act was enacted, after being reserved for the  President’s assent is, therefore, immaterial. Even if  the provisions of  the  main part of Article 254(2)   can be said to be somehow applicable,  the proviso,  read with Article 254(1) reaffirms the  supremacy of  any subsequent legislation of Parliament on the  same matter even though such subsequent  legislation does not in terms amend, vary or repeal  any provision  of the State legislation.  The

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provisions of  the  1971 Act will, therefore, prevail  against those of the State Acts and were rightly  invoked in the present case by the respondent- Bank."

               Therefore, His  Lordship  has held that the premises of  bank shall also be governed by the  provisions of the Act, 1971.   In  view of  the decision of this Court, the argument made by the  appellant   has no legs to stand.                In this connection, a reference was made to  a case of  Delhi  Financial Corpn. and Another  Vs.  Rajiv Anand And Ors.   Reported in 2004(11) SCC 625   with regard to personal bias i.e. an  officer of  the Statutory Authority has been appointed as an Estate  Officer,   therefore,  they will carry their  personal bias.   However,   this Court in the aforesaid case held that  a doctrine ’no man can be a  judge in his own cause’ can be  applied  only to cases where the  person concerned has a personal  interest or has  himself  already   done some act or taken a decision in the matter concerned.  Merely  because an officer of a corporation is  named to be the  authority,   does not by itself bring into operation the doctrine, "no man can be a  judge in his own cause".  For  that doctrine to come into play it must  be shown that the officer concerned has a personal bias or   connection or a personal interest or has personally acted in the  matter concerned and /or has already taken a decision one way or  the other  which  he may be interested in supporting.            In view  of  the  aforesaid observation made by this Court  that  ’no  man can be a judge in his own cause’   certain parameters   has to be observed i.e. a personal bias of the person concerned or  personal interest or person acted in the matter concerned and has  already taken a decision which he may be interested in  supporting  the same.   These parameters   have to be observed before coming  to the conclusion that  ’ no man can be a judge in his own cause’. This is a matter  of factual inquiry.  Be that as it may.   Mr. Gopal  Subramanian  learned Addl. Solicitor General of India with his usual  fairness  has submitted that the officer who has been appointed as  an Estate Officer though alleged  to have been associated as an  officer dealing with the  eviction matters  will not  be  presiding over  as an Estate Officer.  Therefore,  in view of this submission  made  by  Mr. Subramanian  we do  not think that the matter is required to  be prosecuted further.             It was next  contended  with reference to the allocation of  Business Rules  that the  Central Government in the urban  department can appoint an Estate Officer but in the present case,  finance department has appointed an Estate Officer  which is in  violation of  the Allocation of Business Rules, 1961.  Though the  division bench dealt with this aspect exhaustively in its judgment  &  held that  the provisions of the Business Rules are  not  mandatory  and will  not vitiate the appointment, we fully agree  that  the rules of   Business are administrative in nature for  governance of its  business of Govt. of  India framed under Art. 77 of  the Constitution  of India.   In this connection, Division Bench referred to the decision  of this Court; Dattatreya Moreshwar Pangarkar  vs. The State of  Bombay and  Others reported in  (1952)SCR 612. There an  analogous   Rules of business  framed by the State under Art.  166   of  the Constitution of India came up for consideration and it was  observed that they are director and no order will be invalidated, if  there is a breach thereof.  However, the division bench  has also  gone into the  history how the nationalized banks came under the  department of Economic Affairs, etc. which  is a larger part of the  Ministry of  Finance.   Be that as it may, it appears  that the correct  facts were not brought to  the notice of  the  division bench, but  now  before us an affidavit  has been filed  by the Deputy Director of  Estates, Urban Development, Deptt. Of  Directorate of Estates and  in that he has clarified in para 4 that the  authority to appoint Estate  Officer by the Central Government was decentralized with effect

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from 1.1.1973 vide office Memorandum No.21012(8)72-Po.I dated   29.11.1972.  By the said memorandum all  Ministries/Departments  have been authorized to appoint Estate Officer in respect of Public  Sector Undertakings/Government Companies, etc. under their  respective administrative control.  And the copy of the same was  placed on record.  This  memorandum dated 29th November, 1972  was issued by the Deputy Director of Estates, Government of India,  Ministry of Works & Housing.  By this notification the power has  been decentralized.  The relevant provisions  of the  Office  Memorandum  reads as under:            "Hitherto, notification regarding appointment of estate  officers of Central Government departments autonomous  bodies, Government companies, etc. had been issued  centrally by this Ministry but it has been found that with  the inclusion of the premises of the Corporation  Companies  within the purview of the above Act,  the  number of requests for appointment of Estate Officers has  considerably increased.  The matter has, therefore, been  reviewed and it has been decided that such notifications,  with effect from 1.1.1973, be issued by the  Ministries/Departments concerned themselves even in  respect of the public sector undertakings/Government  Companies, etc. under their respective administrative  control.   In so far as the requests for appointment of  estate officers already pending with this Ministry or that   may be received upto 31.12.1972 are concerned,  necessary notifications will be issued by this Ministry.                          Whenever it is proposed to issue a notification the  draft of  the proposed notification should be got vetted  from the  Ministry of law and justice (legislative Deptt.)  after the notification has been vetted by that Ministry,  it  should be got translated into  Hindi from the Official  Language (legislative) Commission Indian Law Institute  Building, New Delhi and other  after both the English and  Hindi versions sent to the General Manager Government  of India Press, Minto Road, New Delhi for publication in  Part-II Section 3, sub-Section (ii) of the Gazette of India."

         After  this notification,  nothing survives  as the power has been  decentralized  for appointment of  the Estate Officers and it has been  given to the Ministry concerned and the Public Sector  Undertakings  and Government companies, etc.  Therefore this submission of  learned counsel also does not survive.          Lastly, with regard to the notifications dated 29th July 1988 and  25th January, 1993; suffice it to say that the matter has been  exhaustively dealt with by the High Court and nothing turns on that as  the Presiding Officer in the present case is gazetted officer i.e. the   Assistant General Manager of  the State Bank of India.    Therefore,  nothing turns on that issue.  More so, learned counsel has already  mentioned that the present officer who is presiding  as an Estate  Officer    is also the Assistant General Manager of  the  Estates  &  Premises .                However, we may clarify that the  Estate Officer appointed by  the concerned administrative department cannot be said  to be a  judge in  his own cause.   This Court in the case of  Delhi Financial  Corpn. And Another Vs  Rajiv Anand and Others reported in  (2004) 11 SCC 625 has  already  laid down parameters.  Applying  those parameters  we hold  that  there is no personal bias  of Estate  Officer in these proceedings  because he has no personal interest.   However, this will further depend upon  facts of each case and   no  generalization  can be made.  However,  in the present case,  there is  no such bias & even there is remote chance  after the statement  made by learned Addl. Solicitor General.   In this  view  of the matter, we do not find any merit in these

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appeals/writ petitions hence, they are dismissed.   The Estate Officer  may now  proceed  and dispose of the matters expeditiously.  No  order  as to costs.