# Babu Rao Shantaram More v. The Bombay Housing Board and another

- **Citation:** [1967] 3 S.C.R. 399
- **Court:** Supreme Court of India
- **Decided:** 1967-04-04
- **Case number:** Civil Writ No. 16 of 1960
- **Bench:** K. Subba Rao
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/babu-rao-shantaram-more-v-the-bombay-housing-board-and-another-4060
- **Pages:** 16

## Headnote

M. HIDAYATULLAH,
R. S. BACHAWAT,
J, M. SHBLAT AND C. A. VAIDIALINGAM, JJ.)
Punjab Public Premises and Land (Eviction and Rent Recovery) Act
(31 of 1959), s. 5-Scope of -If ~lo/ates Art. 14 of the Constitution.
The respondent-State leased its premises to the appellant for running
a hotel and when the lease expired called upon the appellant to hand over
vacant possession.
On the appellant failing to do so, the Collector issued
a notice under s. 4 of the Punjab Public Premises and Land (Eviction and
Rent Recovery) Act, 1959 requiring ,the appellant to show cause why an
order of eviction should not be passed under s. 5. The appellant thereupon
filed a writ petition in the High Court contending that the Act violated Art.
14 of the Constitution in two ways : (I) that it dillC'riminated between
the occupants of public premises and th* of other pretnises; and ( 2) that
it discriminated between the occupants of public premises Inter se as the
State could arbitrarily proceed against an occupant either under the Act
or by way of suit. The High Court dismined the petition holding that
the proceeding under the Act is the exclus:ve remedy for ev,iction of un·
authorised occupants of public premises, that there was a valid classlfication
between the occupiers oI public premises and those of private properties,
and that, as the Act was substitutive and not supplemental there waa no
question of discrimination between the occupiers of public premises Inter se.
In appeal to this Court,
HELD : (I) The Hi$b Court erred in holding that the Act impliedly
took away the right of suit by the Government. The Act was only intend·
ed to provide an additional remedy to the Government which was speedier
than the one by way of a suit under the ordinary Jaw of eviction. [ 404G;
411B)
(Per Subba Rao, C. J., Shelat and Vaidialingam, JJ.) : The impugned
Act is neither in negative terms nor in such terms which result in negativing the right of the Government as a landlord to sue for eviction under the
ordinary law.
Nor is it possible to say that the co-existence of the two
sets of provisions relating to eviction under the ordinary law and under the
Act, leads to any inconvenience or absurdity. The impugned Act deals
with the Government's right to evict the occupants and tenants of public
premises, but that fact, by itself would not lead to the inference that the
Legislature intended to take away the Government's right to file a suit for
eviction. [404C-E]
(Per Hidayatullah and Bachawat, JJ.) : The Act does not create a new
right of eviction. It creates an additional remedy for a right existing under
the general law and does not repeal the ordinary law giving the remedy of
a suit for eviction.
[411CJ
(2) By Full Court : Th~re is an intelligible differentia between the two
classes of occupiers, namely, occupiers of public property and premises and
other occupiers. The classification has a reasonable relation to the object of
the Act and does not offend Art. 14. The two classes of PC,cupiers are not
similarly situated in that, in the case of public properties and premises, the
members of the public have a vital interest in seeing that such properties
400
SUPREME COURT REPORTS
(!967] 3 S.C.R.
and jlremises are freed from encroachment and unauthorised occupation as
opeedily as possible;· and the impugned Act has properly devised a special
machinery for the speed_y recovery of premises belonging to the Government. [406C-D; 412C-E]
Babu Rao Shantaram More v. The Bombay Housing Board and another,
[1954] S.C.R. 572, followed.
A
(3) (Per Subba Rao, C. J., Shelat and Vaidialingam, JJ.)Section 5 of
B
the Act confers an additional remedy over and above the remedy by way of
suit.
The section violates Art. 14 by providing two alternative remedies to
the Government and in leaving it to the unguided discretion of the
Collector to resort to one or the other and to pick and choose some of
those in occupation of public properties and premises for the application
.of the more drasti

## Text

_Characters 0–39,942 of 48,175. This is a partial read: ask again with offset=39942 for what follows._

~
NORTHERN INDIA CATERERS PRIVATE LTD., & ANR.
B
c
D
E
·F
G
H
v,
STATE OF PUNJAB AND ANOTHER
April 4, 1967
[K. SUBBA RAO, C.J.,
M. HIDAYATULLAH,
R. S. BACHAWAT,
J, M. SHBLAT AND C. A. VAIDIALINGAM, JJ.)
Punjab Public Premises and Land (Eviction and Rent Recovery) Act
(31 of 1959), s. 5-Scope of -If ~lo/ates Art. 14 of the Constitution.
The respondent-State leased its premises to the appellant for running
a hotel and when the lease expired called upon the appellant to hand over
vacant possession.
On the appellant failing to do so, the Collector issued
a notice under s. 4 of the Punjab Public Premises and Land (Eviction and
Rent Recovery) Act, 1959 requiring ,the appellant to show cause why an
order of eviction should not be passed under s. 5. The appellant thereupon
filed a writ petition in the High Court contending that the Act violated Art.
14 of the Constitution in two ways : (I) that it dillC'riminated between
the occupants of public premises and th* of other pretnises; and ( 2) that
it discriminated between the occupants of public premises Inter se as the
State could arbitrarily proceed against an occupant either under the Act
or by way of suit. The High Court dismined the petition holding that
the proceeding under the Act is the exclus:ve remedy for ev,iction of un·
authorised occupants of public premises, that there was a valid classlfication
between the occupiers oI public premises and those of private properties,
and that, as the Act was substitutive and not supplemental there waa no
question of discrimination between the occupiers of public premises Inter se.
In appeal to this Court,
HELD : (I) The Hi$b Court erred in holding that the Act impliedly
took away the right of suit by the Government. The Act was only intend·
ed to provide an additional remedy to the Government which was speedier
than the one by way of a suit under the ordinary Jaw of eviction. [ 404G;
411B)
(Per Subba Rao, C. J., Shelat and Vaidialingam, JJ.) : The impugned
Act is neither in negative terms nor in such terms which result in negativing the right of the Government as a landlord to sue for eviction under the
ordinary law.
Nor is it possible to say that the co-existence of the two
sets of provisions relating to eviction under the ordinary law and under the
Act, leads to any inconvenience or absurdity. The impugned Act deals
with the Government's right to evict the occupants and tenants of public
premises, but that fact, by itself would not lead to the inference that the
Legislature intended to take away the Government's right to file a suit for
eviction. [404C-E]
(Per Hidayatullah and Bachawat, JJ.) : The Act does not create a new
right of eviction. It creates an additional remedy for a right existing under
the general law and does not repeal the ordinary law giving the remedy of
a suit for eviction.
[411CJ
(2) By Full Court : Th~re is an intelligible differentia between the two
classes of occupiers, namely, occupiers of public property and premises and
other occupiers. The classification has a reasonable relation to the object of
the Act and does not offend Art. 14. The two classes of PC,cupiers are not
similarly situated in that, in the case of public properties and premises, the
members of the public have a vital interest in seeing that such properties
400
SUPREME COURT REPORTS
(!967] 3 S.C.R.
and jlremises are freed from encroachment and unauthorised occupation as
opeedily as possible;· and the impugned Act has properly devised a special
machinery for the speed_y recovery of premises belonging to the Government. [406C-D; 412C-E]
Babu Rao Shantaram More v. The Bombay Housing Board and another,
[1954] S.C.R. 572, followed.
A
(3) (Per Subba Rao, C. J., Shelat and Vaidialingam, JJ.)Section 5 of
B
the Act confers an additional remedy over and above the remedy by way of
suit.
The section violates Art. 14 by providing two alternative remedies to
the Government and in leaving it to the unguided discretion of the
Collector to resort to one or the other and to pick and choose some of
those in occupation of public properties and premises for the application
.of the more drastic procedure under s. 5.
[409F-0]
Discrimination would result if there are two available procedures one
more drastic or prejudicial to the party concerned than the other and which
C
can be applied at the arbitrary will of the authority.
Assuming that persons in occupation of government properties and premises form a class by
themselves as agai.nst tenants. and occupiers of private owned properties and
that such classification is justified on the ground that they require a differential treatment in public interest those who fall under that classification are
entitled to equal treatment among themselves.
[409B-D]
State of West Bengal v. Anwar Ali, [1952] S.C.R. 284, Sura; Mull
D
Mohta v. A. V. Visvanatha Sastri, [1955] 1 S C.R. 448, Shr.,. Meenakshi
"Mills Ltd., Madurai v. A. V. Visvanathan Sastri, [1955] 1 S.C.R. 787 and
Banarsi Das v. Cane Commissioner, U.P. (1963] Supp. 2 S.C.R. 7(;1J:
A.I.R. 1963 S.C. 1417, followed
(Per Hidayatullah and Bachawat, JJ. dissenting) : The, impugned Act
makes no unjust discrim~nation among the occupants of government properties inter se. it promotes public welfare and is a beneficial measure of
E
legislation.
[414D-E]
The impugned Act is not unfair or oppressive.
The unauthorised occupant has full opportunity of being heard and of producing his evidence
before the Collector; he may obtain a review of the Collectors order by
an appeal to the Commissioner and in appropriate cases ask for a writ of
certiorari from the High Court.
He is not denied equal protection of the
laws merely because the Government has the option of proceeding against
him either by way of a suit or under the Act. An unauthorised occupant
F
ha• no C-Ons.itutional right to dictate that the Government should have no
choice of proceedings.
The argument based upon the option of the Government to file a suit is unreal) because in practice, the Government is not
likely to institute a suit in a case when it can seek rel'ef under the Act.
[4!4B-D]
Kanamrt Ha/dar & Another v. State of Wm Bengal, [1960] 2 S.C.R.
646; Shanti Pra.rad Jain v. The Director of Enforcemen,r, [1963] 2 S.C.R.
G
297, 303-304, Seth Banarsi Dass v. Cane Commissioner, U,.P. [1963]
Supp. 2 S.C.R. 7(;/J and Arizona Copper Co. v. Hammer, 250 U.S. 400 :
63 L.Ed. 1058, referred to.
Suraj Mull Mohta & Co. v. A. V. Visvanatha Sastri, [1955] I S C.R.
448, 466, explained.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1101 of
1%5.
H
Appeal from the judgment and order dated January 22, 1963
of the ~unjab High Court in Civil Writ No. 16 of 1960.
A
B
c
D
E
F
G
H
N. INDIA CATERERS v . . PUNJAB (Shelat, J.)
401
A. K. Sen and Ravinder Narain, for the appellants.
Gopal Singh and R. N. Sachthey, for the respondents.
The
Judgment
of
SUBBA RAo, C.J.,
SHBL~T A!'D
VAIDIALINGAM, JJ., was delivered by SHELAT, J. The diss~nting
Opinion of HIDAYATULLAH and BACHAWAT JJ., was delivered
by BACHAWAT, J,
Shelat, J. This appeal, by . certificate, is dir~cted. ag~~t the
judgment and order of the High Court of Punia~ disllllSSmg ~e
appellants' writ petition which challenged the validity of the Punjab
Public Premises and Land (Eviction and Rent Recovery) Act,
XXXI of 1959.
In or about September, 1953, the State of Punjab leased the
"Mount View Hotel" at Chandigarh to the appellants for a period
of six years commencing from September 24, 1953 at an annual
rent of Rs. 72,000/ ~ subsequently reduced to Rs. 50,000/-. The
deed of lease of the said Hotel, however, was drawn up and executed on May 21, 1959. On or about August 27, 1959, the Government offered to sell the said Hotel to the appellants at a price
of Rs. 12,00,000/-. Since the appellants did not accept the said
offer the same was withdrawn and as the said period of six years
had by that time expired, the Government called upon the appellants
to hand over vacant possession on or before January 1, 1960. On
January 1, 1960, the Estate Officer and Collector, Capital Project,
Chandigarh served the appellants with a notice alleging that their
occupation of the said Hotel had become unauthorised after December 31,
19 5 9 and required them under s.
4 of the Act to
show cause on or before January 11, 1960 as to why an order of
eviction should not be passed against them. The appellants, in the
meantime, filed the writ petition in the High Court and obtained an
interim stay against any order of eviction.
The appellants contended in the High Court (1) that the Act
discriminated between the occupants of public premises and those
of private property and also discriminated between the former
inter se and, therefore, infringed their right of equality before law
and equal protection under Art. 14 of the Constitution, (2) that
the Act infringed their light to property, ( 3) that the procedure
laid down in s. 5 of th\) Act infringed rules of natural justice and
( 4) that the said noth:e was invalid as it did not give ten clear
days as required by s. 4(2) (b) of the Act.
The High Court
negatived contentions 2, 3 and 4. As regards th~ first contention,
it held that as appearing from the preamble, the object and the
provisions of the Act, the Act substituted the remedy of the
Government of eviction as a landlord under the ordinary law, i.e.
that by reason of the Act, the Government could only resort to
the remedy under the Act and not by way of a suit for eviction
and that the Act impliedly did away with the Government's right
to sue under the Civil Prncedure Code in respect of public pro-
402
SUPRBMB COURT REPORTS
11967] 3 s.c.tt.
perties and premises, that there was a valid classification between
the occupiers of pul>lic premises and those of private property
and that as the Act was substitutive and not supplemental, there
was no question of discrlmination also between the occupiers
of public premises inter se.
The High Court, however, agreed
that if the Act furnished a 'supplemental' and not a 'substitutive'
remedy, the contention as to discrimination would be one of
substance.
The reasons for holding that the Act impliedly repealed the ordinary Jaw of eviction in respect of public property and premises were that the Act covered the entire subiect-matter of Jaw relating to eviction, that the two laws
could. not haVe been intended to exist simultaneously, that
the preamble and the provisions of the Act lent themselves to the
deduction that it was intended to substitute the general law of
eviction as applicable to public premises, that the object of the Act
was to discard the cumbersome procedure under the ordinary law
involving delay and to provide a special and speedier remedy and
lastly that though the absence of ex_press words of repeal may raise
a presumption that the pre-existing law was not repealed that presumption was offset by a comparison of the two laws which demonstrated the legislative intent to supplant the ordinary Jaw.
Counsel for the appellants contended that the conclusions
reached by the High Court were erroneous.
Before we proceed to examine them it is necessary to read the
relevant provisions of the Act. The objects and reasons given for
the enactment of the Act (as quoted by the High Court) were that
there was no provision in the Land Revenue Act or in any other
Act providing for summary removal of unauthorised encroachments
on or occupation of Government and Nazul properties including
agricultural lands and residential buildings and sites and for recovery of rent, that the only procedure available to Government
was to sue the party concerned in a civil court which was a cumbersome procedure involving delay and that therefore to keep all
Government owned lands whether put to agricultural or non-agricultural use free from encroachments and unlawful possessions, it
was necessary to provide a speedy machinery. The preamble of
the Act declares that the Act was passed to provide for· eviction of
unauthorised occupants from public premises and for certain incidental matters. Section 3 of the Act provides that a person shall
be deemed to be in unauthorised occupation of any public premises, where being a lessee, he has, by reason of the determination
of his lease, ceased to be entitled to keep or hold such public premises. Section 4 provides that if the Collector is of opinion that
any person is in unauthorised occupation of public premises and
that he should be evicted, be shall issue a notice in writing calling
upon such person to show cause why an order of eviction should
not be passed. The notice shall specify the grourtds on which the
A
B
c
D
E
F
G
H
N. INDIA CATERERS v. PUNJAB (Shelat, /,)
403
A
order of eviction is proposed to b~ mad~ and require such. person
to show cause on or before such date being a date not earber than
1 O days from the date of issue thereof. Section 5 provides that if
after considering the cause and the evidence produced by such per·
son and after giving him reasonable opportunity of being heard,
the Collector is satisfied that the public premises are in unauthorised
B
occupation he 'may make an order of eviction'.
Section 7 em·
powers. the Collector to recover rent in arrears and assess and re·
cover damages in respect of public premises as arrears of land
revenue.
Section 9 provides an appeal against an order of the
Collector under s. 5 or s. 7 before the Commissioner. Section 10
confers finality to the order made by the Collector or the Come
missioner and such order cannot be called in question in any suit,
application or execution proceedings.
We will first consider the High Court's conclusion as to im·
plied repeal of the Government's remedy of eviction under the
ordinary law.
The rule of construction is that where a statute
provides in express terms that its enactment will repeal an earlier
D
Act by reason of its inconsistency with such earlier Act, the latter
may be treated as repealed. Even where the latter Act does not
contain such express words, if the co-existence of the. two sets of
provisions is destructive of the object with which the latter Act
was passed, the Court would treat the earlier provision as impliedly
repealed. A latter Act which confers a new right would repeal an
earlier right if the fact of the two rights co-existing together proE
duces inconvenience, for, in such a case it is legitimate to infer
that the legislature did not intend such a· consequence. If the two
Acts are general enactments and the latter of the two is couched
in negative terms, the inference would be that the earlier one was
impliedly repealed.
Even if the latter sl'dtute is in affirmative
terms, it is often found to involve that negative which makes it
r
fatal to the earlier enactment. Thus s. 40 of the Requirements of
Fines and Recoveries Act, 1833, which empowered a married
woman to dispose of land by deed which she held in fee, provided
she did so with the concurrence of her husband and by deed
acknowledged, was held to have been impliedly repealed by the
Married Women's Property Act, 1882 which authorised her in
general terms to dispose of all real property as if she were a feme
G
sole(1). But repeal by implication is not generally favoured by
courts. Farwell, J. following such disinclination observed in Re.
Chance(') that "if it is possible, it is my duty to read the section
as not to effect an implied repeal of the earlier Act". Maxwell on
Interpretation of Statutes, 11th Ed., p. 162 remarks : "A sufficient
Act ought not to be held to be repealed by implication without some
H
strong reason. It is a reasonable presumption that the legislature
did not intend to keep really contradictory enactments on the
(I) Re. Drummond[IS9111 Ch. 524.
LS Sup C. 1./67-13
(2) 1936 Ch. 266, 27J.
404
SUPREME COURT REPORTS
(1967] 3 S.C.R.
Statute Book, or, on the other hand, to effect so important a
measure as the repeal of a law without expressing an intention to
do so.
Such an interpretation, therefore, is not to be adopted
unless it be inevitable. A reasonable construction which offers an
escape from it is more likely to be in consonance with the real
intention.'' The well-settled rule of construction is that when the
latter enactment is worded in affirmative terms without any negative
it does not impliedly repeal the earlier law. "What words'', observed Dr. Lushington, in The India,(') (as quoted in Craies on Statute Law, 6th Ed. 371) "will establish a repeal by implication it is
impossible to say from authority or decided cases .... The prior
statute would, I conceive, be repealed by implication if its provisions were wholly incompatible with a subsequent one; or if the
two statutes together would lead to wholly absurd consequences;
or if the entire subject-matter were taken away by the subsequent
statute". The impugned Act is neither in negative tenns nor in
such terms which result in negativing the right of the Government
as a landlord to sue for eviction under the ordinary law. Nor is
it possible to say that the co-existence of the two sets of provisions
relating to eviction lead to inconvenience or absurdity which the
legislature would be presumed not to have intended.
The impugned Act no doubt deals with the Government's right to evict
the occupants and tenants of public premises. In that sense it is
an Act dealing with a particular subject-matter, but that fact by
itself would not lead to the inference that the legislature intended
to take away the Government's right to file a suit for eviction. As
the reasons and objects, relied on by the High Court, show the
legislature intended to provide an additional remedy to the Government, a remedy which it thought was speedier than the one by
way of a suit under the ordinary law of eviction. In our view,
there is nothing in the Act to warrant the conclusion that it impliedly takes away the right of suit by Government or that, therefore, it is substitutive and not supplemental. Nor is it possible to
say that the co-existence of the two remedies would cause such inconvenience or absurdity that the Court would be compelled to
infer that the enactment of the Act resulted in an implied deprivation of the Government's right to sue in the ordinary courts. In
our view, the High Court with respect was in error in holding that
there was an implied repeal only because the two sets of provisions
deal with the subject-matter of eviction in respect
of
public
premises.
As aforesaid, the High Court was of the view that if the Act
conferred an additional remedy, the contention ~.s to discrimination
would have force.
The guarantee of equality before law and
equal protection under Art. 14 means that there should be no
discrh.?i_?ation between one person· and another if as regards the
(!) (!8G4) 33 L. J. Adm. 193.
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
N. INDIA CATERERS v. PUNJAB (Shelat, !.)
405
subject-matter of the legislation, the~ position is the same.
I~ is
well-recognised, however, that the legislature has power of m~king
special laws to attain particular objects and for that pu~ose it has
the power of selection or f:la,~sifisa~i?n of pe.rson~ and things upon
whiGh such Jaws are to operate. S,tich classification, however, has
to be based on some real distinction 'bearing a just and reasonable
relation. The two tests laid down by this Court tor a valid classification are that it must be founded on an intelligible differentia
which distinguishes those who are grouped together from others
and that differentia must have a rational relation to the objects to
be achieved by the Act. When, therefore, an enactment is challenged on the ground of discrimination, the Court must first ascertain the object sought to be achieved by the legislature and then
a,pply the two tests. If the tests are satisfied, the classification cannot be held to be violative of Art. 14.
In Baburao Shantaram More v. The Bombay Housing Board
and another('), section 4 of the Bombay Rents Act, 194 7 which
exempted certain public properties from the operation of the Act
was challenged on the ground that the exemption caused discrimination between the tenants bf the Housing Board and the rest of the
tenants of private properties. This Court upheld the section on
the ground that there was an intelligible differentia which distinguished the tenants of the Board from the other tenants and that
that differentia had a rational nexus with the object of the Act.
The object of the Act, it ·.vas observed, was to solve the residential
accommodation to achieve which the Housing Board was set up.
The Board was not actuated by any profit motive and, therefore,
there was no likelihood of its evicting its tenants for the purpose of
unduly raising the rents as private landlords were likely to do
taking advantage of dearth of accommodation. This Court held
that the two classes of tenants were not, therefore, siniilarly situated
and were not, by force of circumstances, placed on an equal footing and, therefore, there was no denial of equality before Jaw or of
equal protection.
A modern State in a complex and growing
society can no longer content itself with performance only of its
traditional activities. To meet the manifold and variegated needs
of society it has to undertake activities of considerable diversity.
Such activities now-a-days range from supplying the elemental
needs of its citizens such as housing, importation and distribution
of food and clothes and other such necessities to highly industralised and technocratic projects, which it is said, the State alone can
undertake. In such activities its citizens have a vital interest. If
a classification is made between those who take advantage of such
activities such as accommodation and the rest it may be difficult
to say that there is not an intelligible differentia between the two
or that there is no relation between such differentia and the object
(I) [1954] S.C.R. 572.
406
SUPRBMB COURT RBPORTS
[1967] 3 s.c.R.
of such legislation. In such cases, if the law .Provides for differential
treatment, it is possible to contend that it is JUStifiable on consicilera·
tion of the circumstances, the object and the policy of such legisla·
tion though the mere fact that it is a Government-owned activity
may not by itself be sufficient.
The objects and reasons of the impugned Act and its preamble
indicate that the Act was passeci to provide for eviction of unauthorised occupants from public properties and premises, and to
keep such properties free from encroachment and unlawful pos·
session and to provide a speedier machinery for that purpose as
against the lengthy proceedings under the ordinary law of evic·
tion involving delay.
The Act no doubt differentiates occupiers
of public property and premises from other occupiers. Neverthe·
less, it is possible to say that there is an intelligible differentia between the two classes of occupiers, that they are not similarly situa·
ted in that in the case of puolic properties and premises the mem·
bers of the public have a vital interest and are mterested in seeing
that such properties and premises are freed from encroachment and
unauthorised occupation as speedily as possible. It is also possi·
ble to contend that such classification is justified in that it is in the
interest of the public that speedy recovery of rents and speedy
eviction of unauthorised occupiers is made possible through the
instrumentality of a speedier procedure instead of the elaborate
procedure by way of suit involving both expense and delay. On
these considerations, it may be contended that the segregation of
tenants of public properties and premises from the tenants of pri·
vate property is based on justifiable reason and that such segrega·
tion has a rational nexus with the object and policy of the Act.
Assuming that such classification is valid, the complaint of the
appellants is that s. 5 of the Act makes a discrimination amongst
those in occupation of public properties and premises inter se and
that such discrimination has no valid basis nor any reasonable nexus
with the object of the Act.
Under s. 4, if the Collector is of
opinion that any person is in unauthorised occupation of any pub·
lie premises and that he should be evicted, he has to issue a notice
calling upon such person to show cause why an order of eviction
should not be made. Under s. 5, if the Collector is satisfied that
the public premises are in unauthorised occupation he has the
power to make an order of eviction giving reasons therefor. The
contention is that the Government thus has two remedies open to
it, one under the ordinary law and the other a drastic and more
prejudicial remedy under the present Act. The words "the Collector may make an order of eviction" in s. 5 show that the section
confers discretion to adopt the procedure under ss. 4 and 5
or not. Section 5 has left it to the discretion of the Collector to
make such an order in the case of some of the tenants and nnt to
make such an order against others.
Section 5 thus enables the
A
B
c
D
E
F
G
H
A
B
c
N. INDIA CATl!R.&llS v. PUNJAB (Shelat, /.)
407
Collector to discriminate against some by exercising his power
under s. S and take :iiroceedings by way of a suit against others,
both the remedies be111g simultaneously available to the Government. There can be no doubt that if the Collector were to proceed
under ss. 4 and S, the remedy is drastic for a mere opinion l-y him
that a person is in unauthorised occupation authorises him to issue
a show cause notice and his satisfaction under s. 5 is sufficient for
him to pass an order of eviction and then to recover under s. 7
rent in arrears and damages which he may assess in respect of such
premises as arrears of land revenue. Section 5 does not lay down
any guiding principle or policy under which the Collector has to
decide in which cases he should follow one or the other procedure
and, therefore, the choice is entirely left to his arbitrary will. Consequently, s. 5 by conferring such unguided and absolute discretion
manifestly violates the right of equality guaranteed by Art. 14.
It is well-settled that if a law were to provide for differential
treatment for amongst persons similarly situated, it violates the
equality clause of Art. 14. In the State of West Bengal v. Anwar
D
Ali,(') s. 5 of·the W.B. Special Courts Act, 1950 was challenged
as infringing Art. 14. The majority judgment held that the procedure laid downfor trial by the Special Courts varied substantially
from that laid down for tha trial of offences generally
under the Code of Criminal Procedure and that the Act did not
classify or lay down any basis for classification of cases which.may
be directed to be tried by the Special Courts but left it to. the unE
controlled discretion of the State Government to direct cases which
it liked to be tried by the Special Courts .. The language of s. 5(1)
vested the State with unrestricted discretion to direct any case or
class of cases to be tried by the Special Courts, not a discretion to
refer ca~es.where it is of opinion.that a speedier trial is necessary.
The ma1on~ ~eld that a .rule of procedure laid down by law comes
I'
as much ~1thin the purview of Art. 14 as rules of substantive law
and that 1t was necessary that all litigants, who are similarly situat~, are able to avail th~ms~lves of the same procedural rights for
r7lief and .fo~ defenc~ with hke protection and without discriminati?n.. ~f 1.t 1s es~ablished that the P71'SOi;t complaining has been
~cnmin~ted against as a :esult of leg1slation and denied equal priG
vileges with others occupying the same position it would be enough
to make ~uch a law violative of Art. 14. In Suraj Mall Mohta v
A. V .. Visvanatha Sastri, (2). th~ challenge was to s. 5 ( 4) of th~
Taxation and Income (Investigation Commission) Act 194 7
The
C?ntentio!l was that s. 5(4) gave arbitrary power to the C~mmis
~on ~o pick and choose the evaders of income-tax as it liked and
H Thf e ~re, rtthh j~bth:ction was highly discriminatory in character'
f s
ou
e
t sub-s. (4) of s. 5 dealt with the same clas~
o persons who fell within the ambit of s. 34 of the Income-tax
(l} [l952] S.C.R. 284.
(2) [1955] I S.C.R. 448.
408
SUPRBMB COURT REPORTS
[1967] 3 s.c.a.
Act, 1922, that both s. 34 of the Income Tax Act and s. 5(4) of
the Investigation Act dealt with persons who had similar characteristics and similar properties, the common characteristics being
that they were persons who had not truly disclosed their income
and had evaded payment of taxation on income, that the procedure
prescribed by the Investigation Act was substantially more prejudicial and more drastic to the assessee than the one under the
Income Tax Act and that, therefore, s. 5(4) in so far as it affected
persons proceeded against under that sub-section was a piece of
discriminatory legislation and offended Art. 14. It appears that
after that decision, Parliament amended s. 34 of the Income-tax
Act providing for the cases of those very persons who originally
fell within the ambit of s. 5(1) of the Investigation Act to be dealt
with under the amended s. 34 and under the procedure of the Income-tax Act. As a result of the amendment both categories of
. persons, viz., those who came within the ambit of s. 5 ( 1) as well as
those who came within the ambit of s. 34 of the Income-tax Act
now formed one class. That being the effect of the amendment, it
was urged in Shree Meenakshi Mills Ltd., Madurai v. A. V. Vlsvanatha Sastri(') that assuming thats. 5(1) of the Investigation Act
was based on a rational classification that classification had, because of the amendment of s. 34 become void, as the classification
which saved it from the mischief of Art. 14 had become ineffective,
its distinctive characteristics having disappeared, and that the per-
'sons falling within the class defined in s. 5(1) now belonged to the
same class as was dealt with by s. 34 as amended.
This Court
accepted the contention and held that as a result of the said amendment s. 34 as amended operated on the same field as s. 5(1) of
the Investigation Act, assuming that the latter was based on
a rational classification, and that therefore it became void and
unenforceable as being discriminatory in character. Similarly, in
Banarsi Das v. Cane Commissioner, Uttar Pradesh('), Rule 23 of
the U.P. Sugar Factories Rules, 1938 was impeached on
the
ground that it provided two different procedures either of which
could be followed by the Cane Commissioner. Raghubar Dayal,
J. who gave a dissenting opinion was of the view that the rule was
discriminatory and should, therefore, be struck down as contravening Art. 14. Hidayatullah, J. who spoke for the majority agreed
with him on principle that if "it could be said tha~ the rule as framed, allows the Cane Commissioner to discriminate between one
party and another then the rule must offend Art. 14". . He, however, construed the rule to mean that the parties, instead of leaving the dispute to the decision of the Commissioner, could go to
arbitration with his permission. On this construction, he held that
where there are two procedures, one for every one and the other,
if the disputants voluntarily agree to follow it, there would be no
(I) [1955] I S.C.R. 787.
(2) A.I.R. 1963 S.C.R. 1417.
A
B
c
D
E
F
G
H
A
B
c
D
G
B
N. INDIA CATERERS v. PUNJAB (Bachawat, J.)
409
discrimination because discrimination can only be found to exist
if the election is with someone else who can exercise his will arbitrarily. The principle which emerges from these decisions is that
discrimination would result if there are two available procedures
one more drastic or prejudicial to the party concerned than the
other and which can be applied at the arbitrary will of the
authority.
Assuming that persons in occupation of Government properties and premises form a class by themselves as against tenants and
occupiers of private owned properties and that such classification
is justified on the ground that they require a differential treatment
in public interest, those who fall under that classification are
entitled to equal treatment among themselves. If the ordinary law
of the land and the special law provide two different and alternative procedures, one more prejudicial than the other, discrimination must result if it is left to the will of the authority to exercise
the more prejudicial against some and not against the rest.
A
person who is proceeded against under the more drastic procedure
is bound to complain as to why the drastic procedure is exercised
against him and not against the others, even though those others
are similarly circumstanced. The procedure under s. 5 is obviously
more drastic and prejudicial than the one under the Civil Procedure
Code where the litigant can get the benefit of a trial by an ordinary
court dealing with the ordinary law of the land with the right of
appeal, revision, etc., as against the person who is proceeded against
under s. 5 of the Act as his case would be disposed of by an executive officer of the Government, whose decision rests on his mere
satisfaction, subject no doubt to an appeal but before another executive officer, viz., the Commissioner. There can be no doubt that
s. 5 confers an additional remedy over and above the remedy by
way of suit and that by providing two alternative remedies to the
Government and in leaving it to the unguided discretion of the
Collector to resort to one or the other and .to pick and choose some
of those in occupation of public properties and premises for the
application of the more drastic procedure under s. 5, that section
has lent itself open to the charge of discrimination and as being
violative of Art. 14. In this view s. 5 must be declared to be void.
In the result, the appeal is allowed. The order of the High
Court is set aside and the writ petition filed by the appellants is
made absolute with costs.
Bachawat, J. An unauthorised occupant of public premises
claims immunity from eviction under the summary procedure of
the Punjab Public Premises and Land (Eviction and Rent Recovery)
Act, 1959 (Punjab Act No. 31 of 1959), on the ground that the
Act offends art. 14 of the Constitution. The State of Punjab leased
the premises known as Mount View, Chandigarh to the appellant
410
SUPRJ!MB 'COURT lU!POllTS
(1967] 3 s.c.R.
upto December 31, 1959 after which the lease was not extended.
On January 1, 1960, the Collector issued a notice under s. 4 of
the Act to the appellant to show cause on or before January 11,
1960, why an order of eviction from the premises should not be
made against it. · On January 7, 1960, the appellant filed a writ
petition challenging the vires of the Act. Since then it has successfully defied the law and continued to be in occupation of the premises under the shelter of stay orders and injunctions. The High
Court dismissed the writ petition. This appeal has been filed on a
certificate granted by the High Court.
·
The object of the impugned Act is to provide a summary procedure for the eviction of unauthorised occupants of public premises without recourse to. the cumbersome procedure of a title suit.
Public premises' means any premises belonging to, or taken on lease
or requisitioned by, or on behalf of, the State government, or requisitioned by the competent authority under the Punjab Requisitioning and Acquisition of Immovable Property Act, 1953, and
includes any premises belonging to any district board, municipal
committee, notified area committee or panchayat [s. 2(d)]. A
person deemed to be in unauthorised occupation of any public premises includes where he, being an allottee, lessee or grantee, has, by
reason of the determination or cancellation of his allotment, lease
or grant in accordance with the terms in that behalf therein contained, ceased, whether before or after the commencement of this
Act, to be entitled to occupy or hold such public premises [s. 3(b)].
If the Collector is of the opinion that any persons are in unauthorized occupation of any public premises situate within his jurisdiction and that they should be evicted, he shall issue a notice in
writing calling upon all persons concerned to show cause why an
order of eviction should not be made ( s. 4). If after considering
the objection, if any, of the person concerned and giving him a
reasonable opportunity of being heard, the Collector is satisfied that
the public premises are in unauthorized occupation, he may make
an order of eviction for reasons to be recorded therein ( s. 5).
Section 6 provides for disposal of property left on public premises
by unauthorized occupants. Section 7 gives the Collector the power
to recover rent or damages in respect of public premises as arrears
of land revenue. For the purpose of holding any inquiry under
the Act, the Collector has the power of summoning witnesses and
certain other powers vested in the civil court when trying a suit
(s. 8.
An appeal lies from every order of the Collector under
ss. 5 and 7 to the Commissioner (. 9. Save as provided in the Act,
every order made by the Collector or Commissioner is final and
cannot he called in question in any original suit, application or
execution proceeding (s. 10). Section 11 prote9ts action taken
under the Act in good faith. Section 12 gives power to make rules.
This in short is the scheme of the Act. Its provisions are similar to
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
N. INDIA CATERERS v. PUNJAB (Bachawat, /.)
411
those of the Public Premises (Eviction of Unauthorized Occupants)
Act, 1958, save that an appeal under the Central Act from an.
order of the estate officer lies to the district judge.
The High Court found that the Act does not offend arts. !4
and 19(1)(f) of the Constitution. The appellant has now abandoned
the attack based on art. l 9(1)(f). Being an unauthorized occupant,
it has no right of property in the premises. The High Court repelled the attack based on art. 14 on the ground that the proceeding under the Act is the exclusive remedy for the eviction of unauthorized occupants of public premises. With this reasoning we
cannot agree. The Act does not create a new right of eviction. It
creates an additional remedy for a right existing under the general
law. It does not repeal the law giving the remedy of a suit or bar
the jurisdiction of civil courts to try a suit for eviction. The government is at liberty to proceed against the occupant either under the
Act or by way of a suit.
The argument for the appellant is that the Act violates art. 14
in two ways, first, that it discriminates between unauthorized occupants of public premisC11 and those of other premises and the class!·
fication of public premises has no reasonable relation to the object
of the Act.
Second, that it discriminates between occupants of
public premises inter se as the State can arbitrarily proceed against
the occupant either under the Act or by way of a suit at its sweet
will. The argument must be rejected.
The constitutionnl guarantee of art 14 requires that there shall
be no unjust discrimination and all persons shall be treated alike
under like circumstances and conditions. The article sustains a
rich diversity of laws and permits reasonble classification and differential treatment based on substantial differences having reasonable relation to the object of the legislation, The protection of
art. 14 extends to procedural laws, but the legislature may adopt
one or more types of procedure for one class of litigation and a
different type for another so long as the clnsiiflcation satisfies the
test of ·reasonableness.
Thus without violating nrt, 14, the law
may prohibit cross-examination of witnesses in proceedings for
externment of undesirable persons, see G11rbacha11 Singh v. State
of Bombay and another(1),
Article 14 permit! differential treatment of the government in
matters of both substantive law and procedure.
The legislature
may reasonably provide a longer period of limitation for suits by
the government, see Nav Rattanmal and others v.