1. The question whether the Government Premises (Eviction) Act 27 of 1950 is ultra vires of the Legislature on the ground that it offends certain principles laid down in the Constitution of India has arisen in a large number of cases pending in this Court, including a number of writ petitions filed under Article 226 of the Constitution as well as in a reference by a Subordinate Judge to the High Court under the provisions of Section 113, Civil Procedure Code.Several of these cases, including the reference, have been placed before the Bench for hearing today and we have decided that the best method of dealing with the matter is to answer the question referred to the Court by the Subordinate Judge under Section 113, civil Procedure Code, and to leave the writ petitions to be decided by Single Judges in accordance with the answer given to the question referred to us and any special features which may arise in the individual cases.
2. The suit in which the reference has been made was filed by two brothers, Satish Chandar and Suresh Chandar, against the Delhi improvement Trust and certain pro forma defendants, who are apparently related to the plaintiffs, on the allegation that some land belonging to the Government situated inside Ajmeri Gate, Delhi, had been leased for 90 years to the predecessor-in-interest of the plaintiffs and pro forma defendants for the purpose of building ships and subsequently on a partition among the descendants of Bengali Mal the lease-hold rights had become the exclusive property of the plaintiffs.
Shortly before the suit was instituted, however, the Chairman of the Delhi Improvement Trust acting as a Competent Authority under the Government Premises (Eviction) Act issued a notice under Section 3 of the Act calling on the plaintiffs to surrender possession of the land within fifteen days on the ground that the lease had been terminated by the Delhi Improvement Trust which was managing the property.
The suit was instituted for a declaration that the notice issued by the Chairman of the Trust as competent authority was invalid and illegal on various grounds one of which was that the Government Premises (Eviction) Act was ultra vires as it offended the provisions of the Constitution. At the same time the defendant raised the plea based on Section 6 of the Act that the civil Court had no jurisdiction to entertain the suit, and preliminary issues were framed on these two points.
The learned Subordinate Judge has only dealt with the question of the validity of the Act, which apparently has already been held to be ultra vires by a learned Judge of the Calcutta High Court in the case Jagu Singh v. Shaukat Ali, 58 Cal W. N. 1066 (A) and also by a Division Bench of the Allahabad High Court in the case Brigade Commander, Meerut Sub-Area v. Ganga Prasad, (S) AIR 1956 Ml. 507 (B). In the circumstances, with the agreement of the learned counsel for the defendant in the suit, he framed the question.
'Is the Government Premises (Eviction) Act or any provisions thereof ultra vires of the Constitution?'
and has referred it to this Court under the provisions of Section 113, Civil Procedure Code.
3. In dealing with the matter it is necessary first to give some description of the impugned Act which begins with the words 'Act to provide for the eviction of certain persons from Government Premises and for certain matters connected, therewith.'' The following abstract from the statement of objects and reasons appears to be relevant.
'In Bombay and Calcutta there are many cases of unauthorised occupation of accommodation requisitioned/hired/owned by Government. The local military authorities who have sought the assistance of the Provincial Government in securing the eviction of unauthorised occupants have been advised to file ejectment suits. The occupation of these unauthorised occupants extends in many cases to considerable periods and Government has been put to loss in having to pay rent for requisitioned/hired premises without being able to use them or to recover rent. Government has also been advised against acceptance of rent as such acceptance would amount to recognition of tenancy. Eviction by resort to the civil Court in which several cases were filed has not yielded results for obvious reasons. In these circumstances the only remedy is legislation to provide Government with powers of eviction of unauthorised occupants corresponding to similar provision made under the Delhi Premises (Requisition and Eviction) Act, 1947.'
Section 2 of the Act contains definitions, and Section 3 reads -
'Power to evict certain persons from Government premises. -- (1) If the competent authority is satisfied -
(a) that the person authorised to occupy any Government premises has, whether before or after the commencement of this Act, ---
(i) sub-let, without the permission of the Central Government or of the competent authority, the whole or any part of such premises, or
(ii) otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such premises, or
(b) that any person is in unauthorised occupation of any Government premises, the competent authority may, by notice served by post or otherwise, order that that person as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within fifteen days of the date of the service of the notice.
(2) If any person refuses or fails to comply with an order made under Sub-section (1), the competent authority may evict that person from, and take possession of, the premises, and may for that purpose use such force as may be necessary.' Section 4 reads -
'Power to recover damages. -- (1) Where any person is in unauthorised occupation of any Government premises, the competent authoritymay, in the prescribed manner, assess such damages on account of the use and occupation of the premises as it may deem fit, and may, by notice served by post or otherwise, order that person to pay the damages within such time as may be specified in the notice.
(2) If any person refuses or fails to pay the damages within the time specified in the notice, the damages may be recovered as arrears of land revenue.' Section 5 deals with appeals and reads -
'(1) Any person aggrieved by an order of the competent authority under Section 3 or Section 4 may, within ten days of the date of the service of the notice under Section 3 or Section 4, as the case may be, prefer an appeal to the Central Government:
Provided that the Central Government may entertain the appeal after the expiry of the said period of ten days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2) On receipt of an appeal under Sub-section (1), the Central Government may, after calling for a report from the competent authority, and after making such further inquiry, if any, as may be necessary, pass such orders as it thinks fit, and the order of the Central Government shall be final..........'
Section 6 bars the jurisdiction of Civil Courts in the following terms -
'No order made by the Central Government or the competent authority in the exercise of any power conferred by or under this Act shall be called in question in any Court and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.' Section 7 bars suits, prosecution or other legal proceeding against the Central Government or the competent authority in respect of acts done in good faith in pursuance of the Act. Section 8 provides for the delegation of its powers under the Act to a specially empowered officer. Section 9 provides a punishment up to a fine of Rs. 1,000 for contravention of the provisions of the Act or rules or orders made thereunder or obstruction of the lawful exercise of any power, and the last Section No. 10 is the usual section empowering the Central Government to frame rules for carrying out the purposes of the Act.
4. It is rather surprising to find that although the reasons given by the learned Judges of both the Calcutta and Allahabad High Courts for holding the Act to be ultra vires are in substance the same, they have based their decisions on different provisions in the Constitution, The learned Judge of the Calcutta High Court held the Act to be ultra vires because it offended against the provisions of Article 19 (1) (f) of the Constitution, whereas the learned Judges of the Allahabad High Court found that the Act offended the provisions of Article 14.
5. Article 14 embodies the principle of equality before the law in the words 'The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India', and the point taken in the Allahabad decision was briefly that persons occupying Government premises should not be on any worse footing in the way of defending any rights they may possess than persons occupying private premises.
6. On the other hand Article 19(1) starts with the words 'All citizens shall have the right' and item (f) 'to acquire, hold and dispose of property'. This is subject to the restrictions contained in the 5th part of the Article which reads -
'Nothing in Sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.'
The conclusion of Sinha, J., was that the provisions of the Act constitute a wholly unreasonable restriction on the fundamental right granted to a citizen of acquiring and holding property and as such are void.
7. On the whole it seems to me that in view of the reasons given for arriving at these conclusions, as long as these reasons are sound, the view of Sinha, J., is more correct and it is the provisions of Article 19 (1) (f) of the Constitution which are infringed rather than those of Article 14. Indeed the final conclusions of the learned Judges of the Allahabad Court on the latter point expressed towards the end of the judgment are to some extent inconsistent with an earlier passage of the judgment to the following effect -
'Thus it is obvious that the whole object of the Act was to provide for the eviction of persons who are in unauthorised occupation of Government premises in a speedy and effective manner. The object is laudable and there can be no doubt that the Government does at times stand in need of speedy recovery of possession over its property. This necessity offers an intelligible basis of differentiation between occupants of Government premises and occupants of private premises.'
8. One of the reasons given for invalidating the Act is the definition of 'Competent Authority' contained in Section 2 which has not yet been set out. Section 2 (a) reads -
' 'competent authority' means any person authorised by the Central Government, by notification in the Official Gazette, to perform the functions of the competent authority under this Act for such area as may be specified in the notification.'
It is to be borne in mind that it is the satisfaction of the competent authority which forms the sole basis both of orders to quit issued under Section 3 and the fixing and levying of damages under Section 4. Both Courts had taken the view that since the competent authority is all-important in these matters, the Act is unreasonable in leaving it open to the Government to choose anybody for appointment as competent authority, whether in fact he possesses the necessary qualification or not for determining the questions of title likely to be involved in issuing orders under Section 3.
I myself am not sure that this is altogether a valid objection to the Act in that I am of the opinion that there is no presumption that the Government is at all likely to appoint unsuitable persons to be placed in such a responsible position, and in fact it appears to me that there would be a presumption to the opposite effect. In this I derive support from the observations of Kania, C. J., in Dr. N. B. Khare v. State of Delhi, AIR 1950 SC 211 (C), cited in his judgment by Sinha, J., --
'Moreover, this whole argument is baaed on the assumption that the Provincial Government when making the order will not perform its duty and may abuse the provisions of the section. In my opinion it is improper to start with such an assumption and decide the legality of an Act on that basis. Abuse of the power given by a law sometimes occurs but the validity of the law cannot be contested because of such an apprehension.'
9. I consider, however, that there is more force in the view expressed in both the judgments that the powers given to the competent officer under the Act are so wide and capable of abuse, and that the protections provided by the Act to the rights of any persons affected by orders passed by the competent authority under sections to be enforced are so inadequate, that the provisions of the Act as a whole amount to interference with the fundamental right of a citizen under Article 19 (1) (f) to hold property which is not saved by the provisions of Clause (5) of the Article.
The only right given to any person affected by such an order is contained in Section 5 by way of appeal to the Central Government, which means to an officer appointed by the Central Government in this behalf, and it seems to me that the protection afforded by this so-called appeal is almost illusory. The section gives no right to the person affected to be heard by the appellate authority, and on this point it is also to be borne in mind that in the first instance the competent officer is empowered to issue orders under Sections 3 and 4 on being satisfied that certain conditions exist, and there is no provision in these sections for the issuing of any preliminary notice to show cause to the person affected, who thus at no stage has any right to be heard in his defence.
According to Section 5 all that the appellate authority has to do is to call for a report from the competent authority, who may naturally be expected to state the case as he himself sees it and to justify his 'order, and who is not likely to mention any fact which the person affected by the order may have to set up in his defence, and then the appellate authority, if it thinks necessary, may hold some further enquiry, but it may not do so.
It is obvious that any report submitted by the competent officer to justify his orders is hardly likely to contain any grounds which suggest the necessity of any further enquiry. Finally, in order to bar any loophole by which the person affected by the order might escape, the Legislature has expressly taken away the powers of civil Courts to entertain any actions challenging any orders passed under the Act or to issue any injunctions.
10. It seems to me that the Act as a whole might not be so bad if it were only to be applied in the sort of cases for which, to judge by the passage from the statement of objects and reasons set out above, it seems to have been intended, and if competent officers were only to pass orders under Sections 3 and 4 in clear cases of wrongful occupation of premises either owned or requisitioned or leased by the Government for allotment for residential purposes to Government servants by virtue of their occupation.
The ordinary way of getting rid of persons in wrongful or unauthorised occupation of premises, or persons who have contravened the terms of their leases by subletting or otherwise, is by proceedings for their ejectment under the ordinary law, which generally speaking, at any rate in urban areas, means proceedings under the local Rent Restriction Act. In most of such Acts there is already a provision excluding premises which are allotted or leased to employees by their employers as a direct consequence or condition of their employment. Thus the use of an Act allowing Government to adopt summary methods for eviction of persons in wrongful occupation of Government residential premises might appear to be legitimate.
11. The trouble, however, is that the Act is capable of widest possible employment in matters of a wholly different nature to the cases mentioned above. For instance, in the Calcutta case the Act was invoked to get rid of certain hawkers who were alleged to have wrongfully occupied the pavements of the ground-floor of office premises leased by the Government, whereas apparently according to the judgment the hawkers in question had been paying rent for a long period of years.
Moreover, the suit from which this reference has arisen is of a different kind from that originally contemplated by the Act if the statement of objects and reasons is correct, since the powers conferred by the Act on the competent officer are being used in this case to terminate an agreement conferring lease-hold rights for 90 years for the purpose of building shops, and obviously a person whose lease-hold rights are terminated in this way is entitled to more of a hearing than he can possibly get under the provisions of the Act. The question whether the cancellation of the lease-hold rights in question is justified is one which requires to be fully thrashed out which obviously can properly be done in a regular trial in a civil Court.
12. The learned Solicitor General has attempted to argue that although Section 6 of the Act ostensibly bars the jurisdiction of the civilCourts, it might not in fact effectually do so, since it might be open to a civil Court to decide the question whether the premises in dispute were Government premises within the meaning of the Act, and could therefore be the subject of orders passed under Section 3 or 4 of the Act
This argument in my opinion sounds extraordinary when it comes from the mouth of the learned Solicitor General, speaking on behalf of the Government which quite evidently has done its best expressly to bar the jurisdiction of the civil Courts to question the validity of any order passed under the Act, and it may be recalled, as I stated earlier, that in the very suit from which this reference has arisen the Government has in fact taken the plea that the jurisdiction of the civil Court to entertain the suit is barred.
13. In the circumstances my opinion, for generally the same reasons as have been given in the Calcutta and Allahabad cases, is that the Government Premises (Eviction) Act is ultra vires as it offends against the fundamental right to property conferred on citizens by Article 19 (1) (f) of the Constitution and that it is not saved by the provisions of Clause (5) of Article 19. I would accordingly answer the question referred to the Court by the learned Subordinate Judge under Section 113, Civil Procedure Code, in the affirmative. Costs in the reference will be costs in the suit. Counsel's fee Rs. 150.
Mehar Singh, J.