Gangeshwar Prasad, J.
1. These connected writ petitions, which raise among other-questions the question of the vires of the U. P. Public Land (Eviction and Recovery of Rent and Damages) Act XIII of 1959, came up for hearing before this Full Bench upon a reference made by G. C. Mathur, J.
2. The facts leading up to the petitions nay be briefly stated. Certain plots of laud in District Naini Tal are in occupation of the petitioners, the plots in occupation of the petitioner in Writ Petition No. 3755 being situate in village Nagla Tarai Tahsil Khatima while those in occupation of the petitioners in Writ Petition No. 8756 being situate in village Rahpura Tehsi] Kaichba. It is admitted that the U. P. Zamindari Abolition and Land Reforms Act of 1950 does not apply to the areas in which the plots are situate and they are governed by the U. P. Tenancy Act of 1939. Proceedings for the eviction of the petitioners from the aforesaid plots were started under the provisions of the U. P. Public Land (Eviction and Recovery of Rent and Damages) Act XIII of 1959 (hereinafter referred to as the Act unless described otherwise to avoid confusion). The Public Authority constituted under the Act issued notices to the petitioners under Section 3 of the Act calling upon them to show cause why orders of eviction be not passed against them in respect of the plots in tbeir occupation. The petitioners filed objections contending, inter alia, that the Act was ultra vires the Constitution and that in any case they had acquired rights of hereditary tenants in the plots and were, therefore, not liable to eviction under the provisions of the Act. The objections were, however, rejected by the Public Authority and orders of eviction were passed by him against the petitioners. Appeals against the orders of the Public Authority were then preferred by the petitioners to the District Judge Naini Tal under Section 5 of the Act. After hearing elaborate arguments on behalf of the parties on the objections raised by the petitioners, the learned District Judge came to the conclusion that the Act was intra vires, that the petitioners were in unauthorised occupation of the disputed plots and had not acquired rights of hereditary tenants therein, and that they were liable to be evicted under the provisions of the Act. He, accordingly, affirmed the orders of the Public Authority and dismissed the appeals. The petitioners, thereupon, filed these petitions, praying for a writ of certiorari quashing the orders ofthe Public Authority and those of the District Judge and also praying for a writ of mandamus directing the respondents to the petitions not to interfere in any manner with the possession of the petitioners over the plots in dispute.
3. Broadly speaking, the contentions put forward before us on behalf of the petitioners were the same as those advanced before the District Judge: first, that the Act is violative of Article 14 of the Constitution and is, consequently, void; and secondly, that, by virtue of their possession for the requisite period, petitioners became hereditary tenants under Section 180 (2) of the U. P. Tenancy Act of 1939 long before the commencement of the proceedings taken against them under the Act, and the plots were, therefore, not public land as defined in the Act and no proceedings with respect to them could be taken thereunder. There is, however, one vital difference in the basis on which the constitutionality of the Act was attacked before us. The ground of attack before the learned District Judge that the Act discriminates between occupants of Government land on the one hand and those of private land on the other, but, before us, the constitutional vice imputed to the Act was that it discriminates amongst persons in occupation of Government land inter se by leaving it to the unguided and unfettered choice of the State to take ordinary legal proceedings in the civil or the revenue Court against some of them and to resort to the more drastic provisions of the Act against others.
4. Before considering the validity of the ground on which the constitutionality of the Act was challenged before us it seems proper to refer to certain facts connected with the history of the Act. The first legislative attempt to achieve the objects of the Act was the enactment of the Government Land (Eviction and Recovery of Rent) Act of 1953. That Act was declared unconsititutional by a Division Bench of this Court in Bir Pratap Singh v. State of Uttar Pradesh 1960 All LJ 52. The basis of the decision in the above case was that the necessity for speedier process of eviction from Government land of unauthorised occupants which, according to the preamble, was the reason behind the enactment, could not justify the placing of trespassers of Government land in a separate class to be dealt with differently, when there was nothing in the Act to suggest that Government land was immediately required for any public purpose. In consequence of that decision the legislature enacted the U. P. Public Land (Eviction and Recovery of Rent and Damages) Act XIII of 1959, which repealed the earlier Act of 1953 and expressly stated in its preamble that Government land was immediately required for purposes detailed therein. Later, however, in the light of the pronouncement of the Supreme Court in Manna Lal v. Collector of fhalawar. AIR 1981 SC 828 and Navrattanmal v. State of Rajasthan : 2SCR324 , the decision in Bir Pratap Singh's case, 1960 All LJ 52, was reconsidered in Sucha Singh v. Administrative Officer Afzalgarh Colonization Scheme Bijnor : AIR1963All528 , by a FullBench of this Court which overruled Bir Pratap Singh's case, I960 All LJ 52, and held that the U. P. Land (Eviction and Recovery of Rent) Act of 1953 was constitutional. It was also noted by the Full Bench in its judgment that the constitutionality of the Act of 1959 was nut challenged before it. Some amendments, which are not material for the question under consideration, were introduced in the Act by the U. P. Public Land (Eviction and Recover) of Rent and Damages) Amendment Ordinance 1965 which was subsequently replaced by the U. P. Act V of 1965. Since the aforesaid amendments were introduced subsequent to the taking of the proceedings against the petitioner and the passing of the impugned orders they may for the present be ignored. Now, neither in Bir Pratap Singh's case, 1960 All LJ 52, nor in Sucha Singh's case : AIR1963All528 , was the constitutionality of the Act of 1953 challenged on the score of discrimination inter se between unauthorised occupants of Government land, and the sole question raised and determined in those cases was whether the aforesaid Act was void for being discriminatory between trespassers of Government land and those of private land. Applying the principle laid down by the Supreme Court in Manna Lal's case : 2SCR962 the Full Bench, in Sucha Singh's case : AIR1963All528 , held that just as the Government can be constitutionally differentiated from other people in respect of claim to money so also the Government can be differentiated in respect of claim to recover possession over land illegally occupied. In view of the above Full Bench decision Sri S. G. Khare, the learned counsel for the petitioners, did not seek to challenge tbe constitutionality of the Act on the ground of discrimination between trespassers of Government land and those of private land, and he confined his attack to the narrower ground that the violation by the Act of Article 14 of the Constitution consists in its discrimination among unauthorised occupants of Government land, and thus in its differential treatment of persons similarly situated. In support of his argument the learned counsel placed strong reliance on the decision of the Supreme Court in Northern India Caterers (Private) Ltd. v. State of Punjab : 3SCR399 , by which the Punjab Public Premises and Land (Eviction and Rent Recovery) Act 31 of 1959 was struck down on an identical ground, and he urged that the U. P. Public Land (Eviction and Recovery of Rent and Damages) Act of 1959 bears such a close resemblance to the Punjab Act that it must also be condemned as unconstitutional.
5. Obviously, the Act can be said to be discriminatory on the ground urged by the learned counsel only if it allows scope for taking proceedings under the ordinary law against some unauthorised occupants of Government land and proceedings under the Act against others. If, on the other hand, the Act operates as a bar to ordinary legal proceedings in respect of persons falling within its purview and limits the remedy of the State against suchpersons only to proceedings under the Act, no question of discrimination can arise. The point for determination, therefore, is whether the remedy provided by the Act is an additional remedy which leaves the ordinary remedy of a suit in the civil or the revenue Court intact or whether it is the exclusive remedy--whether, in other words, the Act is supplemental or substitutive,
6. It will be seen that the Act applies to both agricultural and non-agricultural land. Against a person in unauthorised occupation of land of the latter kind a suit is maintainable in the civil Court whereas against a person in unauthorised occupation of land of the former kind a suit is maintainable only in the revenue Court because of Section 242 of the U. P. Tenancy Act of 1939 and Section 331 of the U. P. Zamindari Abolition and Land Reforms Act of 1950, which expressly exclude the jurisdiction of the civil Court in relation to a suit of that nature. Considering for the time being oases of unauthorised occupation of non-agricul-tural land, the question is whether by reason of the provisions of the Act the State is precluded from instituting suit for recovery of possession in civil Court. Admittedly, there is nothing in the Act which expressly takes away the jurisdiction of the civil Court, and all that is suggested is that there is an implied exclusion or that jurisdiction. Implied exclusion of the jurisdiction of the civil Court cannot, however, be inferred from the mere fact of the existence of a statutory tribunal which may give the same relief as may be bad in the civil Court, nor is the cognizance of a suit by the civil Court to be regarded as barred merely because another statutory proceeding for the object to be gained by a suit is available. There must be something in the provisions of the statute constituting such tribunal or providing for such proceeding to clearly rule out the remedy of a suit in the civil Court. Nothing of that kind is to be found in the Act and, as will hereafter appear, the provisions of the Act lead unmistakably to the conclusion that the remedy of a suit in the civil Court was intended to be and has in fact been left unaffected. And if the jurisdiction of the civil Court in respect of suits of a particular nature has been transferred to the revenue Court, as has in effect been done by Section 242 of the U. P. Tenancy Act of 1939 and Section 331 of the U. P. Zamindari Abolition and Land Reforms Act of 1950, it should naturally follow that the remedy of a suit in the revenue Court has likewise been left unaffected. It is indisputable that implied exclusion of the jurisdiction of ordinary Courts amounts to implied repeal of those laws which enable resort to such Courts. In judging whether the Punjab Act which was in question in Northern India Caterers (Private) Limited the Supreme Court subjected that Act to those tests which an enactment must stand before it can be regarded as having effected an implied repeal of another enactment and enunciated the principles which should act as guides in tbe determination of the question whether there has been an implied repeal. Delivering themajority judgment of the Court, Shelat, J. observed:
'The rule of construction is that where a statute provides in express terms that its enactment will repeal an earlier Act by reason of its Inconsistency with such earlier Act, the later may be treated as repealed. Even where the later 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 later Act was passed, the Court would treat the earlier provision as impliedly repealed. A later Act which confers a new right would repeal an earlier right if the fact of the two rights coexisting together produces inconvenience, tor, 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 later of the two is couched in negative terms, the inference would be that that the earlier one was impliedly repealed. Even if the later statute is in affirmative terms, it is often found to involve that negative whicb makes it fatal to the earlier enactment. Thus Section 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 Sole. But repeal by implication is not generally favoured by Courts. Farwell, J. following such disinclination observed In re, Chance, 1936 Ch 266 at p. 270 that 'if it is possible, it is my duty to read the section as not to effect an implied repeal of the earlier Act'
His Lordship then quoted the following remarks from Maxwell on Interpretation of Statutes, 11th Edition page 162:
'A sufficient Act ought not to be held to be repealed by implication without some strong reason. It is a reasonable presumption that the legislature did not intend to keep really contradictory enactments on the Statute Book, or, on the other hand, to effect so important a measure as the repeal of a law without ex-pressing 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', thereafter his Lordship proceeded to observe:
'The well settled rule of construction is chat when the later enactment is worded in affirmative terms without any negative it does not impliedly repeal the earlier law'. The following observations of Dr. Lushington in The India, (1864) 33 LJ PM & A 193 (as quoted in Craies on Statute Law 6th Edition 171) were also referred to by his Lordship.
'What words 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 togetherwould lead to wholly absurd consequence; or if the entire subject-matter were taken away by the subsequent statute'.
7. The provisions of the Act may now be examined in the light of the above principles. The foremost thing to be noted is that the Act does not create a new right but only provides a special remedy for the enforcement of a preexisting right. The right of the Government to recover possession of Government land from a person who is in unauthorised occupation thereof is inherent in the right to the land. This right is not derived from the Act but exists independently of it. The entire subject-matter of the law relating to Government land is, therefore, not covered by the Act, and the Act cannot be likened to a code as was suggested by the learned Standing Counsel in the course of his arguments for the State. It is true that if a statute creates a new right or a new obligation and also specifies the particular mode in which the same is to be enforced, the jurisdiction of ordinary Courts is by implication excluded and the enforcement of the right or the obligation has to be done only by recourse to the procedure laid down by that statute. But where a statute is not of that kind and a right or obligation does not owe its existence to the statute, and all that the statute does is that it provides a special procedural machinery for its enforcement, there is no justification for inferring a necessarily implied exclusion of the ordinary, usual, and well-recognized remedies. The learned Standing Counsel cited a number of authorities in support of his argument that an implied exclusion of the jurisdiction of ordinary Courts is involved in the Act, but all those cases deal with statutes belonging to the first of the two above mentioned categories, and if does not, therefore, appear necessary to refer to then:
8. It is in the tight of this feature of the Act that its provisions have to be scrutinized. The most important among them for the purpose of the question in controversy is Section 3 under which proceedings under the Act are initiated. It appears to me that an anylasis of Section 3 would clearly reveal the supplemental nature of the remedy provided by the Act against unauthorised occupation of Government land. The section runs as follows:
'(1) Where public land is in unauthorised occupation of any person and the Public Authority is of the opinion that the same is required for one or more public purposes of this Act, it may, by notice in writing, call upon him to show cause, within the period specified therein, not being less than 10 days from the date of service thereof, why an order of his eviction therefrom in accordance with the provisions of this Act be not passed.
(2) The notice shall--
(a) specify the grounds on which the order of eviction is proposed to be made; and
(b) require all parsons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public land, to show cause against the proposed order; and
(c) be tent by post or delivered or tendered to every person who in THE knowledge of the Public Authority is in unauthorized occupation of the public land, and shall also be served in such other manner as may be prescribed; and
(d) on service in accordance with the provisions of Clause (c) be deemed to have been duly served for the purpose of this Act'.
It will be noticed that there are two requisite conditions for the issue of a notice by the Public Authority under the above section. Firstly, public land is to be in unauthorised occupation; and secondly, the Public Authority is to be of opinion that the public land is required for one or more public purposes of the Act. The first is an objective fact ascertainable !by evidence, but the second is a purely subjective condition for the exercise of the power conferred by the Act. The objectivity of the first and the utter subjectivity of the second condition become pronounced by a reference to Section 4 (1) ,of the Act which reads thus:
'Where in pursuance of the notice under Section 3 no objection is filed, or if an objection, not being an objection referred to the Civil Judge under Section 7, is filed, then after giving the parties reasonable opportunity of producing evidence, if any, and or being heard, the Public Authority may, on being satisfied that the public land or part thereof is in unauthorized occupation, assess damages for such occupation, having regard to such principles of assessment as may be prescribed and make an order of eviction, for reasons to be recorded in writing, directing that the public land or part thereof, shall be vacated and damages paid'.
The fact regarding which the Public Authority has to be satisfied before passing an order under the above provision is that of unauthorized occupation and it is, therefore, obvious that the evidence, for producing which opportunity is to be given under Section 4(1), is evidence pertaining to that fact alone. Whether the public land is required for one or more public purposes of the Act is not a matter on which satisfaction is needed, and no question of production of evidence in regard to it arises. That is a matter for mere opinion, and relevant only at a stage prior to the issue of notice under Section 3; but once the notice has been Issued the opinion is not a subject of enquiry or open to question at any further stage of the proceedings under the Act.
9. The Act does not enable the alleged unauthorised occupants to show that the public land is not really needed for any of the public purposes of the Act and no notice under Section 3 should have been issued. If the Public Authority does not form the required opinion and declines to start proceedings under the Act the State too has no remedy under the provisions of the Act. In fact, the section does not compel the Public Authority to issue notice that in its opinion the public land is required for any one or more public purposes of the Act and leaves the issue of notice entirely to its discretion. It is true that it may be possible or even necessary to construe the word 'may' as 'shall' in acertain context and in relation to particular subject matter, but, prima facie, the expression 'may' is only potential and has no compulsive force. There is nothing in Section 3 or in the scheme of the Act which requires the word 'may' occurring in the section to be read as 'shall', and, indeed, the fact that the issue of a notice is made conditional upon the purely subjective factor of a certain opinion makes it, clear that the word, as used in the section, is only permissive and not obligatory. It would be useful here to compare Sections 3 and 4 (1) or the Act with Sections 4 (1) and 5 (1) of the Punjab Act which was involved in Northern India Caterers (Private) Limited, Section 4 (1) of the Punjab Act was in the following terms:
'If the Collector is of opinion that any persons are in authorised occupation of any public premises situate within his jurisdiction and that they should be evicted, the Collector shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be passed'.
Section 5(1) of the Punjab Act provided that if after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and the evidence may produce in support of the same and after giving him a reasonable opportunity of being heard the Collector is satisfied that the public premises are in unauthorised occupation, the Collector may make an order of eviction giving reasons. It will thus appear that there was an obligation cast upon the Collector to initiate proceedings and to issue notice under Section 4 (1) if he formed the requisite opinion. But even then the Supreme Court held that the words used in Section 5 showed diat the section conferred upon the Collector die discretion to adopt the procedure under Sections 4 and 5 or not. Here, the Act with which we have to deal the word 'may' has been used in relation to the very first step to be taken for starting proceedings under the Act and there can be no justification for regarding the word 'may' as doing anything more than conferring a discretion. And this discretion, it will be seen, is not open to question under the provisions of the Act. Section 5 which provides for an appeal against the order of the Public Authority is limited to an appeal against an order under Section 4 (1), and a refusal to issue notice under Section 3 is patently outside the scope of Section 5. It may here be mentioned that even when Section 5 was amended in 1965 and a provision enabling the State Government to prefer an appeal was introduced in Section 5, the power of appeal was confined to an order of the Public Authority refusing to issue a direction under Section 4 (1) and did not extend to a refusal to issue notice under Section 3. The position, therefore, is that the initiation of proceedings under the Act is made dependent upon an entirely subjective condition of a mere opinion and this opinion is not open to any scrutiny or challenge under the provisions of the Act. The State too has no remedy provided by the Act against the in-action of the Public Authority it it does not issue a notice under Section 8. Even when a noticehas been issued under Section 3 and the Public Authority, after taking evidence under Section 4 (]), is satisfied that a public land is in unauthorised occupation it has a discretion either to make or not to make a direction that the public land be vacated. If it chooses not to make the aforesaid direction its refusal to do so could not be questioned in appeal under Section 5, as it stood before the amendment of 1965. Even the provision for an appeal against such refusal --which provision did not exist when the proceedings in the instant cases were taken and when the orders impugned before us were passed--does not take away the discretionary nature of the power conferred upon the Public Authority under Section 4 (1). Surely, then, a remedy of the 'nature provided by Sections 3 and 4 of the Act can he no substitute and could not have been intended by the legislature to be a substitute for the remedy under the ordinary law. The Court having jurisdiction is bound to grant relief whenever a legal right and an infringement thereof are shown, unless the reEef sought is itself of a dicretionary nature. When a claim has been properly made before the Court and it is duly prosecuted, the claim has to be determined, a judgment has to be pronounced and the claim, if accepted by the Court, has to be enforced. In none of these matters, the Court can be said to have any option. Then are of the essence of ordinary judicial proceedings in a Court, and if these elements are altogether lacking in a proceeding it is not possible to regard it as having, by implication, entirely supplanted the ordinary judicial proceeding and taken its place. At the stage of forming an opinion as to whether a public land is required for any of the public purposes of the Act and issuing a notice under Section 3 the Public Authority cannot he said to exercise any judicial function and there is nothing to indicate that its approach to the task then before it has to be a judicial approach. The only conclusion deducible from the above mentioned features of Sections 3 and 4(1) of the Act appears to be that the Act provides an additional remedy to the State for a speedier enforcement of its rights but it does not deprive the State of its power to have recourse to the ordinary legal remedy. A suit filed by the State in the civil Court for recovery of possession of non-agricultural Government land or in the revenue court for the recovery of posession of agricultural land against an unauthorised occupant thereof cannot be thrown out on the ground that the land is required for one of the purposes of the Act and the State should, therefore, only approach the Public Authority for action and try to persuade it to form an opinion that the land is required for one or more public purposes of the Act and to further persuade it to exercise its discretion of issuing notice under Section 3 of the Act. In fact, the question whether the land is required for anj one or more public purposes of the Act will not he a question to be enquired into by the civil or the revenue court.
10. The matter may be examined from another point of view also. Let us assume that the Public Authority has once declined to issuea notice under Section 3 of the Act either because, in its opinion, the public land is not required for any of the public purposes of the Act or because of any other reason. Is there anything to prevent me Public Authority from forming the said opinion and from issuing a notice under Section 3 subsequently? The principle of res judicata can have application only to an adjudication and not to a mere opinion or to an arbitrary act of will. The opinion might change as a result of new facts brought to the knowledge of the Public Authority and changed circumstances might, at a later point of time, incline the Public Authority to exercise in favour of the State the discretionary power of issuing a notice. There is nothing in the Act to prevent this from happening. If such be the nature of the proceedings under the Act, there can be no doubt that it is so far removed from the nature of ordinary judicial proceedings that the Act could not have been intended to provide a substitute for the ordinary legal remedies in Courts of law and to have effected, an implied repeal of laws relating to such remedies.
11. In Northern India Caterers (Private) Ltd : 3SCR399 the Supreme Court, after laying down the principles relating to an inference of an implied repeal, observed a follows in regard to the Punjab Act:
'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 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 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.' These observations apply with equal, if not with greater, force to the Act before us. Obvious-ly, the Act is not negative in terms and a negation of the remedies under other enactments is not even involved in the provisions of the Act. The remedy provided by the Act is noi incompatible with the remedies available under other laws and the inconsistency, if any, between the remedy under the Act and thoseavailable in the ordinary courts is not so irreconcilable as to exclude the possibility of their co-existence. The provisions of the Act clearly disclose that the Public Authority is not bound to put the machinery of the Act in motion, and whether or not it will do so has been left to its arbitrary choice. The remedy of the Act may not be made available to the State eveu though land belonging to the Government is in unauthorised occupation. That being so, the Act cannot be construed as abrogating other laws in ,so far as they provide remedies for the enforcement of a right which may have a chance of being enforced under the Act. Attention may here be drawn to the fact that for a considerable period of time questions relating to conflict of jurisdiction between the civil and the revenue courts in respect of suits relating to agricultural land have been constantly arising before the courts in this State and raising problems of complexity and causing as a result of differences in judicial opinion great inconvenience and hardship to suitors. Section 242 of the U. P. Tenancy Act of 1939 which confers jurisdiction on the revenue Court and excludes the jurisdiction of the civil court in relation to suits of a certain nature had to be amended from time to time in order to clearly mark out the extent to which the jurisdiction of the civil court was excluded, and Section 331 of the U. P. Zamindari Abolition and Land Reforms Act also had once to be amended in that respect. It will be presumed that the legislature was aware of this state of things. In these circumstances it is difficult to conceive that the legislature could have omitted to ex-clude the jurisdiction of the civil and the revenue courts by express words and could have left such exclusion to be inferred by implication, if the exclusion had really been intended. It seems clear, therefore, that the Act does not exclude the jurisdiction of the civil and the revenue courts to entertain suits by the State for the eviction of unauthorised occupants of Government land and it thus leaves scope for proceedings in the ordinary courts against some of such unauthorised occupants and for proceedings under the Act against others.
12. The next question to be considered is whether proceedings under the Act are of a more drastic nature and are more prejudicial to the person against whom they may be employed than the ordinary legal proceedings court. On an examination of the Act from this point of view that feature of the Act which stands out most prominently is the absence of a provision prescribing a period of limitation for starting proceedings thereunder. Whatever the duration for which a person has been in unauthorised occupation of Government hind, the Act empowers the Public Authority to issue a notice against him under Section 3 and to make a direction under Section 4(1) for his eviction. Even with regard to damages, there is nothing in Section 4 (1) to prevent the Public Authority from directing payment of damages for the entire period of unauthorised occupation. This complete freedom from the trammels of limitation makes proceedings under the Act far more onerous than the ordinarylegal proceedings for the person against whom they are taken. And since from amongst person belonging to the same class some may be chosen for proceedings in the ordinary courts of law and others for proceedings under the Act, this feature of the Act by itself, renders it violative of Article 14 of the Constitution.
13. The second conspicuous feature of the Act in this connection is that the order of the District Judge on appeal against the direction issued under Section 4(1) is made final by Section 5. Similarly, the order of the District Judge on appeal against a decision of the Civil Judge under Section 7 (2) is made final by Section 7(5), No order passed or decision given ia proceedings under the Act is, therefore, Open to appeal or revision before the High Court even in those cases in which questions of title are involved. Of a more drastic nature is the finality which the Act attaches to an opinion of the Public Authority itself on a matter of vital importance. Section 7 provides that where an objection is taken on the ground that the disputed land is not public land the Public Authority shall refer the question to the Civil Judge for decision, but it also empowers the Public Authority not to refer the question to the Civil Judge if it is of opinion that the objection is prima facie baseless or frivolous. It is, therefore, made to depend upon the opinion of the Public Authority on the merit of the objection whether or not the same will be enquired into by the Civil Judge, and if in the opinion of the Public Authority the objection is prima facie baseless or frivolous there is an end to the objection. The appeal to the District Judge under Section 7(5) is confined to an order of the Civil Judge under Section 7(3) and there is no appeal against the opinion of the Public Authority that the objection is baseless or frivolous or his consequent refusal to refer the objection for decision to the Civil Judge. Reference in this connection may be made to Section 286 of the U. P. Tenancy Act of 1939 which contains an analogous provision requiring the revenue court to refer, on a plea of proprietary right being raised, the question of proprietary right to the civil court, but also modifying the requirement by the explanation that a plea of proprietary right which is clearly untenable and intended solely to oust the jurisdiction of the revenue court shall not be deemed to raise a question of proprietary right, That section, however, differs from Section 7 of the Act in some essential respects. Firstly, whether the plea of proprietary right is clearly untenable and intended solely to oust the jurisdiction of the revenue court is to be decided objectively by a court like any other question in issue between the parties and is not a matter of mere opinion. Secondly, if the court hold* that the plea of proprietary right is clearly untenable and intended solely to oust the jurisdiction of the revenue court and it does not, therefore, refer the question of proprietary right to the civil court, the decision is not final and tbe courts of first and second appeal will examine the correctness of the decision in the appeal against the decree which is ultimately passed. Manifestly, Section 7 of the Act makesa provision of a most prejudicial nature, and, to revert to the question of implied repeal, the Section further emphasises the supplemental character of proceedings under the Act inasmuch as the opinion of the Public Authority on a question of title could never have been intended to be a substitute for a judicial decision.
14. For the reasons discussed above I am of the opinion that the U. P. Public Land (Eviction and Recovery of Rent and Damages) Act XIII of 1959 infringes Article 14 of the Constitution and is ulra vires. The proceedings taken against the petitioners were accordingly invalid. In view of my opinion in regard to the vires of the Act it is not necessary to examine the other contentions raised on behalf of the petitioners.
15. In the result both these writ petitions should be allowed and the orders of the Public Authority and the District Judge Naini Tal impugned thereby should be quashed.
16. JAGDISH SAHAI, J.: I agree with the opinion of my brother Gangeshwar Prasad J.
17. S. D. SINGH, J. : These two writ petitions, the former by Raja Ram Verma and the latter by Chaudhri Ram and eight others, are directed against the orders of the 'Public Authority' constituted under the U. P. Public Land (Eviction and Recovery of Rent and Damages) Act, 13 of 1959 (to be referred to hereafter as the Act, the 1959 Act) under Section 4 (1.) thereof and the orders of the District Judge, Nainital. passed in appeal against the orders of the Public Authority. The dispute in Writ Petition No. 3755 relates to some plots of land in land Nagla Tarai in Tahsil Khatima, district Nainital, and in the other petition in Village Rahpura, Tahsil Kichha in the same district. The aforesaid U. P. Act XIII of 1959 defines 'public land' in Clause (e) of Section 2 and then prescribes under Sections 3 and 4 thereof a summary procedure for the eviction of persons In 'unauthorised occupation', thereof. Section 3 provides for the 'Public Authority' initiating proceedings for the eviction of the persons in unauthorised occupation' if he is of opinion that the land in 'unauthorised occupation' is required for certain public purposes specified in some detail in the section itself. It was in exercise of this power of jurisdiction that notices were issued by the Public Authority (which jurisdiction is in these particular cases being exercised by the Sub-Divisional Officer). Objections were filed by the present petitioners but they were overruled and eviction ordered under Section 4 (1) of the Act. The applicants went up in appeal to the District judge who considered the various questions raised before him, but finding that none of the points raised on behalf of the petitioners (appellants before him) had any force the appeals were dismissed. The learned Single Judge G. C. Mathur, J., before whom these petitions came up for hearing having been of opinion that the questions which arise for decision in these petitions, including the vires of the 1959 Act, are of considerable importance, referred these petitions to the Full Bench and that is how they came up for hearing before us.
18. It was conceded by the parties, and in fact the cases were heard by the 'Public Authority' and the appeals by the District Judge on the supposition, that the area in which the land in question in the two petitions lies is not one to which the U.P. Zamindari Abolition and Land Reforms Act, I of 1951, applies. The area is governed by the provisions of the U. P. Tenancy Act, 1939, and it is that Act which provides the law in respect of the same.
19. Clause (e) of Section 2 of the 1959 Act defines 'public land' as under:
'Public land' means land belonging to or owned by, the State Government but does not include land
(i) for the time being held by a tenure-holder from the State Government under the U. P. Zamindari Abolition and Land Reforms Act, 1950 or the U. P. Tenancy Act, 1939.
(ii) which has vested in the Gaon Samaj in pursuance of the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950.
(iii) for the time being occupied by any building constructed before unauthorised occupation of the land'.
In order, therefore, that this land may be 'public land' it must belong to or owned by e State Government and it must not have been covered by any one of the exceptions contemplated in the definition itself. The question as to whether the land belongs to or is owned by the State is easily answered. The petitioners do not claim to be the owners of the land. It was their own contention that the land was let out to them by and on behalf of the State Government and it is quite obvious, therefore, that title of the State Government to this land was admitted by the petitioners.
(20) Two questions were raised before us during the hearing of these petitions:
(1) That the petitioners had acquired hereditary rights under Sub-section (2) of Section 180 of the U. P. Tenancy Act and were consequently tenure-holders under the U. P. Tenancy Act, 1939, within the meaning of Sub-clause (i) of Clause (e) of Section 2 of the 1959 Act and that the land in their possession was not consequently 'public land' within the meaning of that Act.
(2) That the Act itself is invalid as it violates Article 14 of the Constitution.
21. Having heard the learned counsel on either sides I am of opinion that the second contention raised on behalf of the petitioners must prevail and the petitions are consequently entitled to be allowed on that ground alone. That being so, it is not necessary for us to consider in these petitions the first contention raised by tbe petitioners regarding their having acquired rights of a tenure-holder in the lands in question under Sub-section (2) of Section 180 of the U. P. Tenancy Act, 1939.
22. The 1959 Act replaces an earlier Act, the U. P. Government Land (Eviction and Rent Recovery) Act, 29 of 1953. The vires of that Act was challenged in 1960 All LJ 52, and the contention was even accepted by a Division Bench of this Court. Later in 1959 the Act itself was replaced by the present Act and the same question was raised over again before a Full Bench in 1963 All LJ 311 = (AIR 1968 All 528). The decision in Bir Pratap Singh's case, 1960 All LJ 52, was overruled by the Full Bench (to which I was a party) and it was held that the earlier Act was valid and even in respect of this Act of 1959 it was pointed out that the constitutionality of it was not questioned. Since then, however, there has been a decision of the Supreme Court in : 3SCR399 , in which the constitutionality of a similar Act in Punjab, namely the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 31 of 1959, was challenged and the challenge was even upheld.
23. The challenge to the validity of the provisions of the 1959 Act has been three-Fold:
(1) It provides a special procedure for the eviction of trespassers in Government land and is to that extent discriminatory in respect of ejectment of trespassers by the Government on the one hand and by the owners of private property on the other.
(2) It provides for a special procedure for the eviction of unauthorised occupiers of land when that land is required by the State for a public purpose whereas unauthorised occupiers of even Government land which is not so required have to be evicted in accordance with the provisions of Section 180 (2) of the U. P. Tenancy Act or according to the general provisions of the law for the ejectment of the trespassers as may be applicable to the facts of the particular case, and to that extent there is discrimination as between the different trespassers in the Government land even.
(3) There is discrimination even between unauthorised occupiers in land which is required for a public purpose, inasmuch as the 'public authority has discretion to proceed against such unauthorised occupiers either in accordance with the summary procedure prescribed under the Act or proceed against them under the ordinary law at his own sweet-will.
24. The first of these attacks has already been considered by this Court in the Full Bench case : AIR1963All528 . As then Supreme Court held in AIR 1981 SC 828, the Government can, even as a banker be legitimately put in a separate class. The dues of the Government of a State being the dues of the entire people of the State, a law giving special facility for the recovery of such dues could not be said to offend against Article 14 of the Constitution. The position in respect of the Government lands being treated as a class even in respect of ejectment of trespassers is, therefore, fully supported by this decision of their Lordships of the Supreme Court and it was mainly in view of this decision of the Supreme Court that it was held in : AIR1963All528 , that the validity of the Act was not open to challenge on this ground.
25. The second alleged discrimination is based upon the requirements of the State. If the land to which reference has been made inSection 3 of the 1959 Act is required for any of the public purposes mentioned therein, then certainly ejectment of trespassers or unauthorised occupiers of such land which is needed for the public purpose would form a class by itself and would not be hit by Article 14 of the Constitution.
26. The discrimination under the third count, however, stands on a different footing; and it is this discrimination which will in any case be violative of Article 14 of the Constitution, inasmuch as the provision in Section 3 of the 1959 Act enables the 'Public Authority' to discriminate between even persons in unauthorised occupation of land which is required for a public purpose. That authority may or may not take action under the summary procedure prescribed under Section 3 aforesaid and if that is the interpretation of the provisions of Section 3 aforesaid, it would certainly be violative of the provisions of Article 14 of the Constitution.
27. The contention of the learned Senior Standing Counsel in this respect was that the procedure prescribed under Section 3 of the impugned Act is substitutive and not supplemental and consequently replaces or repeals the remedy available either under Section 180 (1) of the U. P. Tenancy Act or otherwise, and all suits against 'unauthorised occupiers' over the land which is required for a public purpose would be governed by Section 3 aforesaid. It appears, however, that there is no force in this contention. As pointed out by Sutherland in Statutory Construction, Volume I, page 470: 'The presumption against implied repeals it classically founded upon the doctrine that the legislature is presumed to envision the whole body of the law when it enacts new legislation, and, therefore, if a repeal of the prior law it intended to expressly designate the offending provisions rather than to leave the repeal to arise by necessary implication from the later enactment'. Repeal by implication may be inferred only if the provisions of a later enactment are so inconsistent with or repugnant to tiie provisions of the earlier one, that the two cannot stand together. As pointed out by Smith, J. in Kutner v. Phillips, (1891) 2 QB 267, the test in such case is : AIR1963All528 :
'Now a repeal by implication is only effected when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one that the two cannot stand together, in which case the maxim, leges posteriores priores contrarias abrogant, applies. Unless the two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied'.
28. Even when there is express provision for the exclusion of the jurisdiction of the ordinary civil Courts that part of the statute which so excludes their jurisdiction has to be strictly construed. The general rule is that the statute excluding jurisdiction of the civil Courts ought to be construed as far as possible to avoid the transfer of power to deal with the matter from Courts to executive officers, Winterv. Attorney General, (1875) LR 6 PC 378 (380) and K.S. Venkataraman and Co. v. State of Madras, : 60ITR112(SC) . And if this is the law relating to the interpretation of statutes so far as provisions providing for express repeal are concerned, an implied repeal will be inferred all the more strictly.
29. Their Lordships of the Supreme Court dealt with this question in : 3SCR399 . They sum up the law as to an implied repeal:
'The rule of construction is that where a statute provides in express terms that its enactment will repeal an earlier Act by reason of its Inconsistency with such earlier Act, the latter may be treated as repealed. Even where the later 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 later Act was passed, the Court would treat the earlier provision as impliedly repealed. A later Act which confers a new right would repeal an earlier right if the fact of the two rights co-existing together, produces 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 later of the two is couched in negative terms, the inference would be that the earlier one was impliedly repealed. Even if the later statute is in affirmative terms, it is often found to involve that negative which makes it fatal to the earlier enactment'
and then observe that repeal by implication is not generally favoured by Courts. Their Lord-ships quoted Maxwell on Interpretation of Statutes, 11th Edition, p. 162:
'A sufficient Act ought not to be held to be repealed by implication without some strong reason, It is a reasonable presumption that the legislature did not intend to keep really contradictory enactments on the 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', and then observe that the well settled rule of construction is that when the later enactment is worded in the affirmative terms without any negative it does not impliedly repeal the earlier law. Their Lordships also referred to the observations of Dr. Lushington in (1864) 33 LJ PM and A 193. as quoted in Craise on Statute Law, 6th Edition, p, 371:
'What words will establish a repeal by implication it is impossible to say from authority or decided cases . The prior statute would. 1 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'
30. The procedure prescribed under Section 3 of the 1959 Act cannot possibly be said to satisfy this test. A summary procedure for ejectment prescribed under Section 3 of theAct is not so repugnant to or inconsistent with the procedure prescribed for ejectment under Section 180 of the U. P. Tenancy Act, 1939, or the general law for ejectment of trespassers that it may be said that the legislature did necessarily mean that the aforesaid earlier provisions for ejectment of the trespassers would stand repealed. If that were intention, nothing would have been easier for the legislature to express that intention in clear words rather than leave it to be inferred by necessary implication. Even Section 3, as it stands, uses the word 'may' for the exercise of jurisdiction in this respect by the 'Public Authority' which necessarily means that the 'Public Authority' is not bound to take action under the Act for the ejectment of the trespassers. Though in a certain background it is sometimes possible to read the word 'may' as 'shall' or 'must', there is nothing in Section 3 or any other section of the Act to lead to any such inference.
31. An argument was advanced that the procedure prescribed under the Act provides a complete Code by itself for ejectment of a trespasser and that that being so it must be inferred that in prescribing this complete Code the legislature intended to exclude the jurisdiction of the ordinary civil or revenue Courts to entertain a suit for ejectment of a trespasser from the public land and reliance for the purpose was placed upon a number of decisions, some among them being, Custodian Evacuee Property v. Jafran Begam : 3SCR736 ; Kamala Mills v. State of Bombay : 57ITR643(SC) , Raja Pandey v. Sheopujan Pandey, AIR 1942 Ml t29 'FR)
It is not necessary to consider all thesecases at any length. Suffice it to say that theyare all cases in which a new right or liabilitywas created or imposed and when that wasdone, the Legislature also provided a machinery for the enforcement of the new right orliability. In the absence of the new legislationthe rights or obligations created thereunderwould have been non-existent. If these newrights or obligations had to come in existence,it was obviously necessary for the Legislatureto provide a machinery for their enforcementand it was in that light that the procedure forthe purpose was prescribed under the relevantActs and when that provision was made, itwas inferred that what the Legislature intended was to provide how the new rights andobligations were to be enforced to the exclusionof the ordinary law of the land. It is, thereforeonly in the case of such new rights and obligations that exclusion of the jurisdiction of theordinary Courts may be inferred, if the legislation by which these rights and obligations werecreated provides adequate remedy in respectof them. In all other respects the jurisdictionof the ordinary Courts will remain intact eventhough it may be in the alternative. AIR 1942All 429 (FB), relates to a question of limitation.A Full Bench of this Court held in that casethat since the Provincial Insolvency Act provided a complete Code in the matter of limitation,the general provisions under the LimitationAct will be deemed to have expressly repealed.
32. : 57ITR643(SC) , relates to levy, assessment, collection and refund of sales tax. The imposition of sales tax was a view obligation created by the Bombay Sales Tax Act, 5 of 1946, and that power was invested in the hierarchy of authorities to administer the Act and these authorities were given power to decide all questions arising before them. The Supreme Court held that the question tinder the Act can be determined under the Act alone. It was in this connection that the Supreme Court observed that the Sales Tax Act provides a complete Code dealing with all the questions relating to the levy and assessment of sales tax.
33. The provisions in the Punjab Act similar to Sections 3 and 4 of the U. P. Act are Sections 4 and 5 and 'unauthorised occupation' was defined in Section 3. There were other provisions similar to those under the U. P. Act in that Act as well. On a consideration of the provisions of the Act as whole their Lordships pointed out:
'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 coexistence 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.
34. Earlier in the same judgment comparing the right of the Government to eject a trespasser in the summary procedure and under the normal procedure bv a suit, their Lordships observed:
'The impuned Act is neither in the 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 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 o 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'
35. It was contended by the learned Senior Standing Counsel for the State that the Supreme Court decision is distinguishable on several grounds, His contention was that the provisions made for the summary eviction of unauthorised occupants are different from the one in the Punjab Act, the main points of difference pointed out by him being:--
(1) that under the U. P. Act summary proceedings for ejectment are to be taken only if the land in unauthorised occupation is required for any of the purposes mentioned In Clauses (a) to (f) of Sub-section (1) of Section 3;
(2) that under the U, P. Act if an objectionis raised that the land in question is not 'public land', the objection is referred for decision to the Civil Judge corresponding to which there is no provision in the Punjab Act; and
(3) that an appeal is provided against the final order passed by the 'Public Authority' under the U. P. Act to a District Judge whereas under the Punjab Act an appeal lay to the Commissioner.
36. None of these distinguishing features, however, make any material difference in the consideration of the vires of the U. P. Act. It is certainly true that under this Act summary proceedings can be taken only if the land is required, in the opinion of the Public Authority, for any of the purposes mentioned in Clauses (a) to (f) of Sub-section (1) of Section 3 of the Act, but these Clauses (a) to (f) are by themselves so wide as to cover all 'public lands' over which a person might be found to be in possession, Whether or not the land was required for any particular purpose it can always be said that it was needed for distribution among landless agricultural labourers under Clause (d). Even Clause (f) is so wide as to bring within its sweep all types of land which might be alleged to be under unauthorised occupation as that Clause (f) reads:
'Any other purpose connected with observation of soil, development of forest, increase of food production or equitable distribution of land as to subserve the common good'.
37. Even if it be supposed that 'public purpose' would be attributed to only those lands in unauthorised occupation which are needed for a public purpose, the inference will be that the procedure applicable for ejectment of a trespasser in the case of lands other than those required for public purpose would be the procedure by suit and it is only in the limited case of those lands which are required for public purposes that the procedure under the Act would apply; but even to that extent the case would be covered by the decision of the Supreme Court concerning the Punjab Act.
38. So far as the other two points are concerned the fact that an issue regarding the land being public land has to be referred to the Civil Judge under the U. P. Act while there is no such corresponding provision in the Punjab Act makes no difference. Even if this question were decided under the Punjab Act by the Collector, his decision on the question was open to appeal.
39. Regarding the third contention, it was urged that an appeal to the District Judge amounts to getting the question relating to unauthorised occupation being examined by the civil Court as it is normally done when a suit is filed for the purpose and, therefore, the suit in civil Court has virtually been applied even to the eviction of a person in 'unauthorised occupation' in summary proceedings under the provisions of this Act; but even under the Punjab Act an appeal is heard by the Commissioner. If regard is had to the fact that it is mostly agricultural land in respect of which a suit is to be filed, and suits relating to agricultural land have been within the exclusive jurisdiction of revenue Courts and appeals thereform are heard by the Commissioners, it cannot be said that vesting of jurisdiction to hear an appeal in a District Judge under the U. P. Act makes such a material difference that it distinguishes the position under the Punjab Act from the one under the U. P. Act.
40. The point which has to be taken into consideration is the circumstances under which the Punjab Act was held by their Lordships of Supreme Court to be supplemental and not substitutive None of the circumstances aforesaid were taken into consideration by their Lordships in coming to that conclusion. The main consideration which weighed with their Lordships that the Collector had power under Section 5 of the Punjab Act to start proceedings against unauthorised occupiers of Government fend and he could also, if he so considered necessary or desirable, proceed against them by a regular suit
41. It would be worthwhile noting that Section 4 of the Punjab Act which corresponds to Section 3 of the U. P. Act of 1959 uses the word 'shall' in respect of taking of action for ejectment of the person in unauthorised occupa tion, the exact words being:
if the Collector is ot opinion that any persons are in unauthorised occupation of any public premises situate within his jurisdiction and that they should be evicted, the Collector shall issue in the manner hereinafter provided a notice in writing...'
The corresponding words in Section 3 of the U. P. Act of 1959 are:
'Where public land is in unauthorised occupation of any person and the Public Authority is of the opinion that the same is required for any of the following purposes....
It may call upon him to show cause....' The language used in Section 4 of the Punjab Act was imperative. According to that language the Collector was bound to take action under that section, but in spite of it the Supreme Court held that the procedure prescribed under that section was only supplemental and not substitutive. The reason for holding the procedure prescribed under the 1959 U. P. Act as supplemental is stronger still. Here only a discretion is given to the 'Public Authority to take action under Section 3. He may call upon the person in unauthorised occupation to show cause etc. Even if it were possible to read the word 'may' as 'shall', the position at best would be at par with the position under the Punjab Act, and it would not, therefore, be possible to take any other view of the validity of 1959 Act than what the Supreme Court did in respect of the Punjab Act.
42. Some reliance was placed by the learned counsel for the respondent on a recent Full Bench decision of the Calcutta High Court reported in Standard Literature Co. v. Union of India : AIR1968Cal1 . in which case the vires, of the corresponding Bengal Act, namely the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 was challenged. It was held that it was not violative of either Article 14or Article 19(1)(f) of the Constitution. But this case was decided just two days after the Supreme Court decision in Northern India Caterer's case : 3SCR399 and the Supreme Court decision was consequently, not taken into consideration at all. The view taken in that case is thus on no better footing than the earlier Full Bench decision of this Court reported in : AIR1963All528 .
43. The only other question which remains to be considered is the argument that the procedure prescribed under the 1959 Act was more onerous from the point of view of the persons who were sought to be ejected than the procedure under Section 180 (1) of the U. P. Tenancy Act. The first contention in this respect was that the Act gives unrestricted power to the State Government to appoint any person as 'Public Authority' irrespective of the qualifications which he might be possessed of for holding such office. 'Public Authority' as denned in Clause fd) ot Section 2 of the Act means any person authorised by the State Government to perform the functions of a 'Public Authority' under this Act for such area as may be specified in this behalf. As the definition stands any person may be appointed as 'Public Authority' but that does not of course mean that any persons in the street would be so appointed by the Government. This question was considered by the Supreme Court in Commissioner of Commercial Taxes v. Ram Kishan Sri Kishan Javar : 1SCR148 . In that case the question for consideration was about the person who may be authorised by the State Government to exercise powers of search and seizure under the Madras Sales Tax Act. Under Sub-section (2) of Section 4 of the Madras General Sales Tax Act, 1 of 1959, the State Government is given the power to empower any officer to make a search and it was contended on behalf of the respondents in the appeal before their Lordships that this meant that even an officer of a low status could be empowered to carry out the search. Their Lordships observed that the fact that the Act gave power to the Government to empower any officer was no reason to strike it down as the Government was expected to see that the officers of proper status were so empowered. There is no reason to believe that the Government would exercise its power even under the 1959 Act to authorise any person to exercise the jurisdiction of 'Public Authority' under the Act irrespective of his education, experience, status and other relevant consideration. This contention has, therefore, no force.
44. The more serious objection, however, which makes the provisions of the 1959 Act more onerous has to some extent been already considered. It relates to the limitation within which an unauthorised occupier might be ejected in proceedings under the Act. As the provisions of the Act stand even a person against whom a suit under Section 180 (2) of the U. P. Tenancy Act or any other law for the time being in force might have become barred by time (sic). The procedure under the Act alsodeprives the putty of a right of second appeal or revision to the High Court. The fact that the party can even now go to the High Court under Article 226 of the Constitution does not mean that the rights available under the ordinary law do not stand curtailed to any extent at all. After all the exercise of jurisdiction under Article 226 of the Constitution is discretionary.
45. Having regard to all the circumstances of the case, the provisions of Sections 3 and 4 of the U. P. Public Land (Eviction and Recovery of Rent and Damages) Act, 13 of 1959, cannot but be held to be discriminatory and consequently violative of Article 14 of the Constitution and have, therefore, to be struck down.
46. I would, therefore, allow the two petitions. The order of the Public Authority dated 23rd September, 1961 and of the District judge, Nainital, dated 17th September, 1962 in Writ Petition No. 3755 of 1962 and their orders dated 6th December, 1961 and 17th September, 1962, respectively in Writ Petition No. 3755 of 1962 should be quashed....
47. BY THE COURT: Both these writ petitions (No. 3755 of 1962 and No. 3756 of 1962) are allowed. The order of the Public Authority dated September 23. 1961 and that of the District Judge Nainital dated September 17, 1962 which are impugned in Writ Petition No. 3755 of 1962, quashed. The order of the Public Authority dated December 6, 1961 and that of the District Judge Naini Tal dated September 17. 1962 which are impugned in Writ Petition No. 8756 of 1982 are also quashed.