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Nanak Chand Lachhman Dass Vs. Estate Officer Cum Executive Engineer, Madhopur and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Ref. No. 2 of 1968
Judge
Reported inAIR1969P& H304
ActsPublic Premises (Eviction of Unauthorised Occupants) Act, 1958 - Sections 5, 9 and 10E; Code of Civil Procedure (CPC), 1908 - Sections 113 and 2(8); Constitution of India - Article 14
AppellantNanak Chand Lachhman Dass
RespondentEstate Officer Cum Executive Engineer, Madhopur and anr.
Excerpt:
.....under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - - (1) if, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and any evidence he may produce in support of the same and after giving him a reasonable officer is satisfied that the public premises are in unauthorised occupation, the estate officer may, on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door..........the additional district judge, gurdaspur, acting as an appellate officer under section 9 of the public premises (eviction of unauthorised occupants) act, 1958, (hereinafter called the act) has made this reference under section 113 of the code of civil procedure for the determination of the question as to whether section 5 of the act is void or not. under section 9 of the act the appellate officer is not a court but is a persona designata as has been held in a full bench judgment of this court in m/s pitman's shorthand academy v. m/s. b. lila ram and sons etc. i.l.r. (1949) ep 606=(air 1950 ep 181) (fb). the reference under section 113 of the code of civil procedure can only be made by a court and, therefore, this reference by him is not competent.2. however, acting in exercise of the.....
Judgment:
ORDER

1. The Additional District Judge, Gurdaspur, acting as an Appellate Officer under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, (hereinafter called the Act) has made this reference under Section 113 of the Code of Civil Procedure for the determination of the question as to whether Section 5 of the Act is void or not. Under Section 9 of the Act the Appellate Officer is not a Court but is a persona designata as has been held in a Full Bench judgment of this Court in M/s Pitman's Shorthand Academy v. M/s. B. Lila Ram and Sons etc. I.L.R. (1949) EP 606=(AIR 1950 EP 181) (FB). The reference under Section 113 of the Code of Civil Procedure can only be made by a Court and, therefore, this reference by him is not competent.

2. However, acting in exercise of the powers of this Court under Article 227 of the Constitution. I decide the constitutional point referred to this Court by the Additional District Judge. Section 5 of the Act is in the following terms:-

'(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence he may produce in support of the same and after giving him a reasonable officer is satisfied that the public premises are in unauthorised occupation, the estate officer may, on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.

(2) If any persons refuses or fails to comply with the order of eviction within thirty days of the date of its publication under sub-section (1) the estate officer or any other officer duly authorised by the estate officer in this behalf may evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary'.

A similar provision in Section 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959, came up for hearing before their Lordships of the Supreme Court in Northern India Caterers (Private) ltd., v. State of Punjab, 1967-69 Pun LR 781 = (AIR1967 SC 1581), and it was struck down as violative of Article 14 of the Constitution. Their Lordships held as under:-

'Assuming that such classification is valid, the complaint of the appellants is that Section 5 of the Act makes a discrimination amongst those in occupation of public properties and premises inter se and that such discrimination has no valid basis nor any reasonable nexus with the object of the Act. Under Section 4 if the Collector is of opinion that any person is in unauthorised occupation of any public premises and that he should be evicted, he has to issue a notice calling upon such person to show cause why an order of eviction should not be made. Under Section 5 of the Collector is satisfied that the public premises are in unauthorised occupation, he has the power to make an order of eviction giving reasons therefor. The contention is that the Government thus has two remedies open to it, one under the ordinary law and the other a drastic and more prejudicial remedy under the present Act. The words 'the Collector may make an order of eviction' in Section 5 show that the section confers discretion to adopt the procedure under Sections 4 and 5 or not. Section 5 has left it to the discretion of the Collector to make such an order in the case of some of the tenants and not to make such an order against others, both the remedies being simultaneously available to the Government. There can be no doubt that if the Collector were to proceed under Sections 4 and 5, the remedy is drastic for a mere opinion by him that a person is in unauthorised occupation authorises him to issue a show cause notice and his satisfaction under Section 5 is sufficient for him to pass an order of eviction and then to recover under Section 7 rent in arrears and damages which he may assess in respect of such premises as arrears of land revenue. Section 5 does not lay down any guiding principle or policy under which the Collector has to decide in which cases he should follow one or the other procedure and, therefore, the choice is entirely left to his arbitrary will. Consequently, Section 5 by conferring such unguided and absolute discretion manifestly violates the right of equality guaranteed by Article 14'.

On the same reasoning and following that decision I hold Section 5 of the Act to be void as it violated the equality guaranteed under Article 14 of the Constitution.

3. It appears that the Central Government, in view 'of the judgment of their Lordships of the Supreme Court above referred to, amended the Act by means of an Ordinance called the Public Premises (Eviction of Unauthorised Occupants), Amendment Ordinance 5 of 1968, which was promulgated on the 17th June, 1968. This Ordinance inserted a new Section 10-E after Section 10-D of the Act which reads as under:-

'Bar of jurisdiction - 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 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'.

The insertion of this new Section 10-E makes the provisions of Section 5 of the Act intra vires as the jurisdiction has only been left with the Estate Officer under Section 5 and the jurisdiction of the Civil Courts has been barred. But this section has no retrospective effect. It has validated the provisions of Section 5 of the Act with effect from June 17, 1968, when it came into force. The proceedings taken prior to that date under Section 5 of the Act were not valid.

4. For the reasons given above this reference is answered as under :-

That Section 5 of the Act was void prior to June 17, 1968, when Section 10-E was inserted by Ordinance 5 of 1968. Any proceedings taken under Section 5 of the Act prior to that date were null and void and cannot be proceeded further. Proceedings under Section 5 of the Act after June 17, 1968, can, however, be taken. There is no order as to costs of this reference. A copy of this order of this reference. A copy of this order may be sent to the Additional District Judge Gurdaspur, who has made the reference.

5. MVJ/D.V.C.

6. Answer accordingly


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