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Smt. Nirmala Chhabra Vs. Addl. District Judge, Lucknow and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 682 of 1968
Judge
Reported inAIR1971All227
ActsPublic Premises (Eviction of Unauthorised Occupants) Act, 1958 - Sections 5; Constitution of India - Article 13(2); Public Premises (Eviction of Unauthorised Occupants) (Amendment) Act, 1968 - Sections 10E
AppellantSmt. Nirmala Chhabra
RespondentAddl. District Judge, Lucknow and anr.
Appellant AdvocateP.N. Mathur, Adv.
Respondent AdvocateChief Standing Counsel for No. 1 and ;K.S. Verma, Adv. for No. 2
DispositionWrit petition allowed
Excerpt:
property - amendment - section 5 of public premises (eviction of unauthorised occupants) act, 1958 - principal act is void abinitio - sub-article(2) of article 13 of constitution of india - amendment - cannot validate it retrospectively. - - section 5 of the act being void ab initio and the attempt to revive and to resuscitate it having failed, there is no valid provision of law under which the actions of the military estates officer or the cantonment executive officer in evicting the petitioner from the land in dispute can be sustained......dated august 10, 1967 passed by the estate officer, lucknow cantonment, under section 5 of the public premises (eviction of unauthorised occupants) act, 1958 (annexure 3) directing the petitioner and her husband to vacate the house situate in lucknow cantonment which had originally been allotted to the petitioner's husband when he was posted as an army officer at lucknow and which after his transfer continued to be occupied by the petitioner. an appeal filed against that order under section 9 of the said act was dismissed by the additional district judge, lucknow, under his order dated 7-8-1968 (annexure 4) on the preliminary ground that since the petitioner had not filed any objection against the notice issued to her under section 4, she was not entitled to file this appeal.2. in.....
Judgment:
ORDER

Jagmohan Lal, J.

1. This writ petition filed under Article 226 of the Constitution is directed against an order dated August 10, 1967 passed by the Estate Officer, Lucknow Cantonment, under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 (annexure 3) directing the petitioner and her husband to vacate the house situate in Lucknow Cantonment which had originally been allotted to the petitioner's husband when he was posted as an Army Officer at Lucknow and which after his transfer continued to be occupied by the petitioner. An appeal filed against that order under Section 9 of the said Act was dismissed by the Additional District Judge, Lucknow, under his order dated 7-8-1968 (annexure 4) on the preliminary ground that since the petitioner had not filed any objection against the notice issued to her under Section 4, she was not entitled to file this appeal.

2. In this writ petition the petitioner challenges the validity of the aforesaid Act under which these proceedings were taken and further questions the legality of the appellate order passed by the Additional District Judge under which he dismissed the petitioner's appeal without going into the merits thereof.

3. The writ was contested on behalf of opposite party No. 2 and a counter-affidavit was filed. I have heard the learned counsel for the petitioner and the learned Chief Standing Counsel.

4. The point that was contended on behalf of the petitioner was that the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 was ultra vires in so far as it offended the principles contained in Article 14 of the Constitution. The Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959, of which the provisions were almost similar to the provisions of the said Act was struck down on this ground by the Supreme Court in Northern India Caterers Pvt. Ltd. v. State of Punjab, AIR 1967 SC 1581. In view of this Supreme Court decision, learned Chief Standing Counsel conceded that Section 5 of the said Act, as it was originally enacted in 1958, was invalid because it provided two parallel remedies to the Government to evict unauthorised occupants from their premises by either filing a suit under ordinary law of the land in regular court or taking proceedings under this Act. He, however, contended that this Act was retrospectively amended by the Public Premises (Eviction of Unauthorised Occupants) (Amendment) Ordinance, 1968, which came in force on June 17, 1968 and was subsequently replaced by the Public Premises (Eviction of Unauthorised Occupants) (Amendment) Act, 1968. Through this amendment a new Section 10-E was introduced which provided:

'No civil court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises or the recovery of the arrears of rent payable under Sub-section (1) of Section 7 or the damages payable under Sub-section (2) of that section or costs awarded to the Central Government under Sub-section (4-A) of Section 9 or any portion of such rent, damages or costs.'

So it would be evident that after this amendment the Government could only proceed under the provisions of this Act to evict the unauthorised occupants from the premises and could not follow the remedy of ordinary regular suit. Sub-section (2) of Section 5 of the Amending Act gave retrospective effect to this Act by providing:

'Notwithstanding such repeal, anything done or any action taken under the Principal Act, as amended by the said Ordinance shall be deemed to have been done or taken under the principal Act as amended by this Act as if this Act had come into force on the 17th day of June 1968'.

The Ordinance was also retrospective in its operation from the date on which the principal Act had come in force in 1958.

5. On behalf of the petitioner it Ss contended that since the principal Act was void ab initio under Article 13(2) of the Constitution this Amending Act could not validate that Act retrospectively. In support of this contention reliance is placed on a recent decision of this Court in Banwari Lal Tandon v. Military Estates Officer, 1969 All LJ 499, It was held in this case:

'Section 5 of the Act being void ab initio and the attempt to revive and to resuscitate it having failed, there is no valid provision of law under which the actions of the Military Estates Officer or the Cantonment Executive Officer in evicting the petitioner from the land in dispute can be sustained. The action is without the authority of any law.'

In arriving at this decision the learned Single Judge had relied on three previous decisions of the Supreme Court, Deep Chand v. The State of Uttar Pradesh, AIR 1959 SC 643, Mahendra Lal Jaini v. State of U. P., AIR 1963 SC 1019 and B. Shama Rao v. Union Territory of Pondicherry, AIR 1967 SC 1480. In all these three cases the original Acts had been struck down underh Artilce 13 (2) on account of their contravening the provisions of Fundamental rights contained in Part III of the Constitution. The subsequent attempts made by the legislature to revalidate those Acts through an amending Act and by giving retrospective effect to the same were held to be infructuous and not sustainable.

6. The learned Chief Standing Counsel, however, argued that this decision of the learned Single Judge needs reconsideration. He relied on three other decisions of the Supreme Court Rai Ramkrishna v. State of Bihar, AIR 1963 SC 1667, R.L. Arora v. State of Uttar Pradesh, AIR 1964 SC 1230 and Mahal Chand Sethia v. State of Bengal, (1969) 2 SC (Notes) 618. In these cases it was no doubt held by the Supreme Court that the legislature which is competent to pass a certain piece of legislation is also competent to pass that legislation with retrospective effect or to remove the defects found in a legislation already passed with retrospective effect. But in none of those decisions the legislation which was sought to be validated suffered from the illegality contemplated by Article 13(2). In the case of AIR 1963 SC 1667 the Bihar Finance Act under which a tax on passengers and goods carried by public service motor vehicles was levied was originally held as invalid by the Supreme Court as contravening the provisions of Article 301, subsequently those defects were removed through an amending Act which was given retrospective effect. The validity of the amending Act was upheld. In the case of AIR 1964 SC 1230 certain notifications issued by the State Government under the provisions of Land Acquisition Act had been struck down on the ground that they did not comply with the provisions of Sections 38 to 42 of that Act. Subsequently these sections were amended by Parliament with retrospective effect and providing at the same time that any notification issued under the original Act shall be deemed to have been issued under the amended Act. When these notifications were again challenged, their validity was upheld in view of this amending Act. The facts of the last case (1969) 2 SC (Notes) 618 have not been fully reported in the said report. It also does not appear to be a case in which the original Act was struck down under Article 13(2). As such these decisions have no bearing on the question that is involved for decision in this case. For that proposition the three Supreme Court rulings cited above which have been relied upon by the learned Single Judge in the case of 1969 All LJ 499 are directly in point. In view of these decisions the incorporation of Section 10-E in the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 by amending the same in 1968 would not make it a valid legislation which was originally ultra vires under Article 13(2) as offending the provisions contained in Part III of the Constitution. On this ground alone this writ petition succeeds. It is not necessary for us to go into other question whether or not the Additional District Judge was justified in dismissing the appeal on the preliminary objection and in not going into the merits of the appeal.

7. The writ is allowed. The orders passed by the opposite parties (annexures 3 and 4) are quashed. The petitioner shall get his cost from contesting opposite party No. 2.


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